INDEMNITY AND LIMITATIONS OF LIABILITY. 13.1. Neither Party limits or excludes its liability for: 13.1.1. Death or personal injury caused by its negligence or the negligence of its employees (and in respect of TransferMate, TransferMate Personnel); 13.1.2. Fraud or fraudulent misrepresentation by it or its employees (and in respect of TransferMate, TransferMate Personnel); 13.1.3. Any act or omission of the Party which causes the other Party to be in breach of Data Protection Law (and in respect of TransferMate, TransferMate Personnel); or 13.1.4. Any liability to the extent that it cannot be limited or excluded by Applicable Law. 13.2. You assume responsibility in full for any direct losses arising from: 13.2.1. all Payment Transactions entered by Users using authorised usernames and passwords; and 13.2.2. Your failure to obtain appropriate agreement and consent from Affiliates in relation to funding Payment Transactions from a Funding Account in the name of that Affiliate. 13.3. We assume responsibility in full for any direct losses arising from any failure to pay monies to the designated Beneficiary, unless the reason for such non-payment is provided for herein; 13.4. Notwithstanding anything to the contrary herein, each Party’s liability under Clauses 13.2 or 13.3 respectively, in respect of each claim or dispute shall not exceed the actual amount that was subject to the Payment Transaction. 13.5. TransferMate shall not be liable for any suspension, withdrawal, interruption or termination of Your access to the Services where such suspension, withdrawal, interruption or termination is in line with TransferMate’s legal and / or regulatory obligations. 13.6. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold the other Party and its Affiliates (the “Indemnified Party”), harmless against all costs, liabilities, losses, and expenses (including reasonable legal fees) suffered by the Indemnified Party as a result of a third party claim (each a “Claim”), that results from the Indemnifying Party’s, its Affiliates’, or their respective employee’s, agent’s, representative’s or subcontractor’s, Subprocessors; 13.6.1. misuse of the Services; 13.6.2. breach of Clause 17 (Confidential Information); 13.6.3. where applicable, a Claim brought by Your Affiliate alleging that it has not authorised a Payment Transaction entered by a User using an authorised username and password and made by TransferMate in accordance with these Terms; 13.6.4. failure to comply with the Applicable Law (including without limitation, Data Protection Law); or 13.6.5. infringement or misappropriation of the intellectual property rights of a third party due to the use of the Services or the use of the other Party’s Intellectual Property Rights, to the extent such costs, liabilities, losses and expenses are not the result of the Indemnified Party’s misuse of the Services, breach of these Terms or failure to comply with the Applicable Law; provided that (1) the Indemnifying Party is promptly notified of the Claim by the Indemnified Party provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure has actually materially prejudiced the Indemnifying Party; (2) the Indemnifying Party has sole authority and control over the defense of the Claim; (3) the Indemnified Party provides reasonable cooperation and assistance in the defense or settlement of the Claim; and (4) the Indemnified Party undertakes to take reasonable steps to mitigate any loss, damage or expense with respect to the Claim. The Indemnifying Party will not agree to any settlement of a Claim that includes an admission of liability on the part of the Indemnified Party or that imposes any obligation on or otherwise materially affects the Indemnified Party without the Indemnified Party’s prior written consent, which consent will not be unreasonably withheld. 13.7. Subject to Clauses 13.1, 13.4 and 13.6, the aggregate liability of either Party and its Affiliates, subcontractors and partners for all other claims, liabilities, losses, damages, costs and expenses howsoever arising (whether in contract, tort (including negligence), breach of statutory duty or otherwise) in respect of these Terms, shall not exceed $50,000 (USD) or the equivalent amount in Your local jurisdiction. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so, to the extent not allowed by law, some of the above limitations may not apply. The liability limitation set forth in this paragraph shall not apply in connection with any material breach of confidentiality and data protection obligations caused by the negligence or intentional misconduct of either Party or of that Party’s employees, agents or representatives. 13.8. Subject to Clauses 13.1, 13.4 and 13.6, in no event shall either party be liable to the other party for: (a) indirect loss, including (i) loss of profits; (ii) loss of business; (iii) loss of revenue; (iv) depletion of goodwill or similar losses;
Appears in 4 contracts
Samples: Terms of Service, Terms of Service, Terms of Service
INDEMNITY AND LIMITATIONS OF LIABILITY. 13.1. Neither Party limits or excludes its liability for:
13.1.1. Death or personal injury caused by its negligence or the negligence of its employees (and in respect of TransferMate, TransferMate Personnel);
13.1.2. Fraud or fraudulent misrepresentation by it or its employees (and in respect of TransferMate, TransferMate Personnel);
13.1.3. Any act or omission of the Party which causes the other Party to be in breach of Data Protection Law (and in respect of TransferMate, TransferMate Personnel); or
13.1.4. Any liability to the extent that it cannot be limited or excluded by Applicable Law.
13.2. You assume responsibility in full for any direct losses arising from:
13.2.1. all Payment Transactions entered by Users using authorised usernames and passwords; and
13.2.2. Your failure to obtain appropriate agreement and consent from Affiliates in relation to funding Payment Transactions from a Funding Account in the name of that Affiliate.
13.3. We assume responsibility in full for any direct losses arising from any failure to pay monies to the designated Beneficiary, unless the reason for such non-payment is provided for herein;
13.4. Notwithstanding anything to the contrary herein, each Party’s liability under Clauses 13.2 or 13.3 respectively, in respect of each claim or dispute shall not exceed the actual amount that was subject to the Payment Transaction.
13.5. TransferMate shall not be liable for any suspension, withdrawal, interruption or termination of Your access to the Services where such suspension, withdrawal, interruption or termination is in line with TransferMate’s legal and / or regulatory obligations.
13.6. Each Party (the “Indemnifying Party”) shall indemnify, defend and hold the other Party and its Affiliates (the “Indemnified Party”), harmless against all costs, liabilities, losses, and expenses (including reasonable legal fees) suffered by the Indemnified Party as a result of a third party claim (each a “Claim”), that results from the Indemnifying Party’s, its Affiliates’, or their respective employee’s, agent’s, representative’s or subcontractor’s, Subprocessors;
13.6.1. misuse of the Services;
13.6.2. breach of Clause 17 (Confidential Information);
13.6.3. where applicable, a Claim brought by Your Affiliate alleging that it has not authorised a Payment Transaction entered by a User using an authorised username and password and made by TransferMate in accordance with these Terms;
13.6.4. failure to comply with the Applicable Law (including without limitation, Data Protection Law); or
13.6.5. infringement or misappropriation of the intellectual property rights of a third party due to the use of the Services or the use of the other Party’s Intellectual Property Rights, to the extent such costs, liabilities, losses and expenses are not the result of the Indemnified Party’s misuse of the Services, breach of these Terms or failure to comply with the Applicable Law; provided that (1) the Indemnifying Party is promptly notified of the Claim by the Indemnified Party provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure has actually materially prejudiced the Indemnifying Party; (2) the Indemnifying Party has sole authority and control over the defense of the Claim; (3) the Indemnified Party provides reasonable cooperation and assistance in the defense or settlement of the Claim; and (4) the Indemnified Party undertakes to take reasonable steps to mitigate any loss, damage or expense with respect to the Claim. The Indemnifying Party will not agree to any settlement of a Claim that includes an admission of liability on the part of the Indemnified Party or that imposes any obligation on or otherwise materially affects the Indemnified Party without the Indemnified Party’s prior written consent, which consent will not be unreasonably withheld.
13.7. Subject to Clauses 13.1, 13.4 and 13.6, the aggregate liability of either Party and its Affiliates, subcontractors and partners for all other claims, liabilities, losses, damages, costs and expenses howsoever arising (whether in contract, tort (including negligence), breach of statutory duty or otherwise) in respect of these Terms, shall not exceed $50,000 (USD) or the equivalent amount in Your local jurisdiction. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so, to the extent not allowed by law, some of the above limitations may not apply. The liability limitation set forth in this paragraph shall not apply in connection with any material breach of confidentiality and data protection obligations caused by the negligence or intentional misconduct of either Party or of that Party’s employees, agents or representatives.
13.8. Subject to Clauses 13.1, 13.4 and 13.6, in no event shall either party be liable to the other party for: (a) indirect loss, including (i) loss of profits; (ii) loss of business; (iii) loss of revenue; (iv) depletion of goodwill or similar losses;
(v) loss of anticipated savings; (vi) loss of goods; (vii) loss of use; (viii) loss of data; and (ix) loss of production (to the extent that each such loss is indirect); or (b) special, incidental, indirect or consequential damages.
13.9. Without prejudice to any other rights or remedies that both Parties may have, damages alone may not be an adequate remedy for any breach of these Terms by the other Party. Accordingly, either Party shall be entitled to seek the remedies of injunctions, specific performance or other equitable relief for any threatened or actual breach of these Terms by the other Party.
Appears in 2 contracts
Samples: Terms of Service, Terms of Service
INDEMNITY AND LIMITATIONS OF LIABILITY. 13.1. 11.1 Neither Party limits or excludes its liability for:
13.1.1. 11.1.1 Death or personal injury caused by its negligence or the negligence of its employees (and in respect of TransferMate, TransferMate Personnel)employees;
13.1.2. 11.1.2 Fraud or fraudulent misrepresentation by it or its employees (and in respect of TransferMate, TransferMate Personnel)employees;
13.1.3. 11.1.3 Any act or omission of the Party which causes the other Party to be in breach of Data Protection Law (and in respect of TransferMate, TransferMate Personnel)Laws; or
13.1.4. 11.1.4 Any liability to the extent that it cannot be limited or excluded by Applicable LawLaws.
13.2. You assume 11.2 Customer assumes responsibility in full for any direct losses arising from:
13.2.1. 11.2.1 all Payment Transactions entered by Transfermate Users using authorised usernames and passwords; and
13.2.2. Your 11.2.2 Customer’s failure to obtain appropriate agreement and consent from Affiliates Subsidiaries in relation to funding Payment Transactions from a Funding Account in the name of that Affiliatethe Subsidiary.
13.3. We assume responsibility in full for any direct losses arising from any failure to pay monies to the designated Beneficiary, unless the reason for such non-payment is provided for herein;
13.4. Notwithstanding anything to the contrary herein, each Party’s liability under Clauses 13.2 or 13.3 respectively, in respect of each claim or dispute shall not exceed the actual amount that was subject to the Payment Transaction.
13.5. TransferMate 11.3 Transfermate shall not be liable for any suspension, withdrawal, interruption or termination of Your Customer’s access to the Services where such suspension, withdrawal, interruption or termination is in line with TransferMate’s legal and / or regulatory obligationsServices.
13.6. 11.4 Each Party (the “Indemnifying Party”) shall indemnify, defend and hold the other Party and its Affiliates Subsidiaries (the “Indemnified Party”), ) harmless against all costs, liabilities, losses, and expenses (including reasonable legal fees) suffered by the Indemnified Party as a result of a third party claim (each a “Claim”)) , that results from the Indemnifying Party’s, its AffiliatesSubsidiaries’, or their respective employee’s, agent’s, representative’s or subcontractor’s, Subprocessors;
13.6.1. ; (i) misuse of the Services;
13.6.2. , (ii) breach of Clause 17 Clauses 14 or 15 of the Framework Agreement, or (Confidential Information);
13.6.3. where applicable, a Claim brought by Your Affiliate alleging that it has not authorised a Payment Transaction entered by a User using an authorised username and password and made by TransferMate in accordance with these Terms;
13.6.4. iii) failure to comply with the Applicable Law (including without limitation, Data Protection LawLaws); or
13.6.5. infringement or misappropriation of the intellectual property rights of a third party due to the use of the Services or the use of the other Party’s Intellectual Property Rights, to the extent such costs, liabilities, losses and expenses are not the result of the Indemnified Party’s misuse of the Services, breach of these Terms the Framework Agreement or failure to comply with the Applicable Law; provided that (1) the Indemnifying Party is promptly notified of the Claim by the Indemnified Party provided that the failure to so notify the Indemnifying Party will not relieve the Indemnifying Party of its obligations hereunder except to the extent such failure has actually materially prejudiced the Indemnifying Party; (2) the Indemnifying Party has sole authority and control over the defense of the Claim; (3) the Indemnified Party provides reasonable cooperation and assistance in the defense or settlement of the Claim; and (4) the Indemnified Party undertakes to take reasonable steps to mitigate any loss, damage or expense with respect to the Claim. The Indemnifying Party will not agree to any settlement of a Claim that includes an admission of liability on the part of the Indemnified Party or that imposes any obligation on or otherwise materially affects the Indemnified Party without the Indemnified Party’s prior written consent, which consent will not be unreasonably withheld.
13.7. 11.5 Subject to Clauses 13.111.1, 13.4 11.2 and 13.611.4, the aggregate liability of either Party and its Affiliates, subcontractors and partners for all other claims, liabilities, losses, losses damages, costs and expenses howsoever arising (whether in contract, tort (including negligence), breach of statutory duty or otherwise) in respect of these Termsthis Framework Agreement, shall not exceed $50,000 (USD) or 50,000. However, the equivalent amount in Your local jurisdiction. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages so, to the extent not allowed by law, some of the above limitations may not apply. The liability limitation set forth in this paragraph Clause 11.5 shall not apply in connection with any material breach of confidentiality and data protection obligations caused by the negligence or intentional misconduct of either Party or of that Party’s employees, agents or representatives.
13.8. 11.6 Subject to Clauses 13.1, 13.4 11.1 and 13.6, 11.4 in no event shall either party be liable to the other party for: (a) indirect loss, including (i) loss of profits; (ii) loss of business; (iii) loss of revenue; (iv) depletion of goodwill or similar losses;; (v) loss of anticipated savings; (vi) loss of goods; (vii) loss of use; (viii) loss of data; and (ix) loss of production (to the extent that each such loss is indirect); or (b) special, incidental, indirect or consequential damages.
Appears in 1 contract
Samples: Framework Agreement
