Common use of Liability and Waiver Clause in Contracts

Liability and Waiver. 5.1. XS shall not be liable for any claim of whatsoever nature (whether in contract or in delict) and whether for damages or otherwise, howsoever arising, including but without limiting the generality of the aforesaid for: 5.1.1. Any act or omission of XS or an agent or employee of XS; and/or 5.1.2. Any loss, damage or expense arising from or in any way connected with any circumstances, cause or event beyond the reasonable control of XS, including but without limiting the generality of the aforesaid, strike, lock-out, stoppage or restraint of labour, health emergencies; and/or 5.1.3. Damage or injury suffered by the MEMBER or any person whomsoever arising out of any cause whatsoever as a result of XS’s execution or attempted execution of its obligations to the MEMBER. 5.1.4. For the avoidance of doubt, and notwithstanding anything to the contrary herein, XS shall not be liable to the MEMBER or any third party, whether in contract, delict or otherwise, for any direct, indirect or consequential damages arising from or in connection with the use of the services rendered by XS in terms hereof, including (without limitation) loss of data, profits or custom, and/or business foregone, whether foreseeable or not and whether or not in the contemplation of the parties at the time of the conclusion of this agreement, whether negligent or otherwise. 5.1.5. The MEMBER shall be responsible for any damage caused by it to any XS facility or equipment, irrespective of whether such damage was caused by the MEMBER personally, persons belonging to his/her company or third parties who are present in or about the relevant XS facility with the knowledge, or at the invitation, of the MEMBER, and irrespective, moreover, of whether such damage was caused negligently or deliberately.