Common use of Remedies and Limitation of Liability Clause in Contracts

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS NO LIABILITY FOR PROSPECTIVE PROFITS, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENT, THE PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (c) ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS NO RIDGEVILLE TELEPHONE COMPANY'S ENTIRE LIABILITY FOR PROSPECTIVE PROFITS, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENT, THE PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (c) ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SOFTWARE PROVIDED OR USED BY RIDGEVILLE TELEPHONE COMPANY SHALL BE THE REPLACEMENT OF ANY RIDGEVILLE TELEPHONE COMPANY SOFTWARE FOUND TO BE DEFECTIVE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OTHER DISPUTE WITH RIDGEVILLE TELEPHONE COMPANY IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL RIDGEVILLE TELEPHONE COMPANY'S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE RIDGEVILLE TELEPHONE COMPANY SERVICES EXCEED THE TOTAL AMOUNT OF RIDGEVILLE TELEPHONE COMPANY AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE RIDGEVILLE TELEPHONE COMPANY SERVICES, SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR MEMBERSHIP WITH RIDGEVILLE TELEPHONE COMPANY. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF RIDGEVILLE TELEPHONE COMPANY HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, RIDGEVILLE TELEPHONE COMPANY AND ITS SUPPLIER'S LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT FOR OFFERS EXPRESSLY MADE OR GUARANTEED BY RIDGEVILLE TELEPHONE COMPANY, RIDGEVILLE TELEPHONE COMPANY AND ITS SUPPLIERS DO NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH RIDGEVILLE TELEPHONE COMPANY AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The.

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS 9.1. IN NO LIABILITY EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR PROSPECTIVE PROFITS, ANY SPECIAL, INDIRECT INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENTUSE, THE PRODUCTS DATA, BUSINESS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"PROFITS), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE SERVICES, WHETHER BASED ON BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT; CONTRACT, BREACH OF WARRANTY, TORT (c) ANY BODILY INJURY, DEATH OF ANY PERSONINCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EATE DIGITAL’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS PROVISION OF INDEMNIFYING PARTY OR ITS PERSONNEL SERVICES, NOTWITHSTANDING THE FORM (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERALE.G., STATECONTRACT, TORT, OR LOCAL LAWSOTHERWISE) IN WHICH ANY ACTION IS BROUGHT, REGULATIONS, OR CODES SHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY EATE DIGITAL FROM CLIENT FOR THE APPLICABLE SERVICES IN THE PERFORMANCE SIX (6) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT VIEW OF THE FAVORABLE FEES BEING CHARGED BY EATE DIGITAL RELATIVE TO THE PRODUCTS OR SERVICESSERVICES DESCRIBED HEREIN, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. TheARE MATERIAL TERMS HEREOF.

Remedies and Limitation of Liability. Limitation 5.1.1 The Customer and the Vendor recognize that circumstances may arise entitling the Customer to damages for breach or other fault on the part of Liability the Vendor arising from this Agreement. The parties agree that in all such circumstances the Customer’s remedies and Indemnification: SELLER HAS NO LIABILITY FOR PROSPECTIVE PROFITSthe Vendor’s liabilities will be limited as set forth below and that these provisions will survive notwithstanding the termination or other discharge of the obligations of the parties under this Agreement. 5.1.2 TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, SPECIALVENDOR, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENT, THE PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESSITS AFFILIATES, AND DEFEND SELLER AND ITS MANAGERSEACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, EMPLOYEES AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY SHAREHOLDERS’ ENTIRE LIABILITY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (c) ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLERCUSTOMER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER EXCLUSIVE REMEDY WITH RESPECT TO THE PRODUCTS SERVICES AND ANY OTHER PRODUCTS, MATERIALS OR SERVICESSERVICES SUPPLIED BY THE VENDOR IN CONNECTION WITH THIS AGREEMENT FOR DAMAGES FOR ANY CAUSE AND REGARDLESS OF THE CAUSE OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING WITHOUT LIMITATION FUNDAMENTAL BREACH, NEGLIGENCE, STRICT LIABILITY OR ANY WARRANTY OTHER LEGAL THEORY, SHALL NOT EXCEED IN THE AGGREGATE AN AMOUNT THAT IS EQUAL TO THE SERVICES FEES PAID UNDER THE PARTICULAR STATEMENT OF MERCHANTABILITYWORK UNDER WHICH THE CLAIM AROSE. 5.1.3 TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, WARRANTY THE CUSTOMER, ITS AFFILIATES, AND EACH OF FITNESS THEIR RESPECTIVE, OFFICERS AND EMPLOYEES’ ENTIRE LIABILITY AND THE VENDOR’S EXCLUSIVE REMEDY IN CONNECTION WITH THIS AGREEMENT FOR A PARTICULAR PURPOSE, WARRANTY DAMAGES FOR ANY CAUSE AND REGARDLESS OF TITLE OR WARRANTY AGAINST INFRINGEMENT THE CAUSE OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTYACTION, WHETHER EXPRESS IN CONTRACT OR IMPLIED BY LAWIN TORT, COURSE OF DEALINGINCLUDING FUNDAMENTAL BREACH, COURSE OF PERFORMANCENEGLIGENCE, USAGE OF TRADE STRICT LIABILITY OR OTHERWISE. SELLER ANY OTHER LEGAL THEORY, SHALL NOT EXCEED IN THE AGGREGATE AN AMOUNT THAT IS EQUAL TO THE SERVICES FEES PAID UNDER THE PARTICULAR STATEMENT OF WORK UNDER WHICH THE CLAIM AROSE. 5.1.4 IN NO EVENT SHALL THE CUSTOMER OR THE VENDOR, ITS AFFILIATES AND EACH OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND SHAREHOLDERS, BE RESPONSIBLE LIABLE FOR ANY DEFECT CAUSED BY ABUSECONSEQUENTIAL, MISUSE INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, OR LACK SPECIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO FOR LOST REVENUE OR LOSS OF MAINTENANCE FOR PRODUCTS AND PROFITS, LOSS OF BUSINESS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED SAVINGS, OR COST OF SUBSTITUTE GOODS OR SERVICES PROVIDED UNDER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT. The, EVEN IF IT HAS BEEN ADVISED OF THE LIKELIHOOD OF THE OCCURRENCE OF SUCH LOSS OR DAMAGE OR SUCH LOSS OR DAMAGE IS FORSEEABLE AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER IN THE EVENT THE BUYER CLAIMS THE COMPANY HAS BREACHED ANY OF ITS OBLIGATIONS UNDER THE SALES CONTRACT, WHETHER OF ANY WARRANTY OR OTHERWISE, THE COMPANY MAY BUT HAS NO LIABILITY OBLIGATION TO, REQUEST THE RETURN OF THE PRODUCTS AND TENDER TO THE BUYER THE PURCHASE PRICE THERETOFORE PAID BY THE BUYER, AND IN SUCH EVENT, THE COMPANY SHALL HAVE NO FURTHER OBLIGATION UNDER THE SALES CONTRACT OF ANY TYPE WHATSOEVER EXCEPT TO REFUND SUCH PURCHASE PRICE UPON REDELIVERY OF THE PRODUCTS. IF THE COMPANY SO REQUESTS THE RETURN OF THE PRODUCTS, THE PRODUCTS WILL BE REDELIVERED TO THE COMPANY IN ACCORDANCE WITH THE COMPANY’S INSTRUCTIONS AND AT THE COMPANY’S EXPENSE. THE REMEDIES CONTAINED IN THIS AND THE PRECEDING PARAGRAPH SHALL CONSTITUTE THE SOLE AND EXCLUSIVE RECOURSE OF THE BUYER AGAINST THE COMPANY FOR PROSPECTIVE PROFITSBREACH OF ANY OF THE COMPANY’S OBLIGATIONS UNDER THE SALES CONTRACT, WHETHER OF ANY WARRANTY OR OTHERWISE. IN NO CASE SHALL THE COMPANY BE LIABLE FOR ANY SPECIAL, PUNATIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES DAMAGES, LOSS OR INJURY OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENT, THE PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (c) ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY ECONOMIC LOSS, LOSS OF MERCHANTABILITYANTICIPATED SAVINGS, WARRANTY WASTED OPPORTUNITY, LOSS OF FITNESS FOR A PARTICULAR PURPOSEREVENUE, WARRANTY OR LOSS OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTYPROFITS, WHETHER EXPRESS BASED UPON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR IMPLIED BY LAWANY OTHER LEGAL THEORY, COURSE EVEN IF THE COMPANY IS AWARE OF DEALINGOR NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, COURSE LOSS OR INJURY. IN ALL CASES, THE COMPANY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF PERFORMANCEOR RELATING TO THE SALES CONTRACT (INCLUDING WITHOUT LIMITATION THE PERFORMANCE THEREUNDER OR ANY CLAIM OR CLAIMS RELATING TO THE PRODUCTS) WHETHER BASED UPON BREACH OF CONTRACT, USAGE OF TRADE NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHERWISE. SELLER ANY OTHER LEGAL THEORY, SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED EXCEED THE CONTRACT PRICE ACTUALLY PAID BY ABUSE, MISUSE OR LACK THE BUYER IN RESPECT OF MAINTENANCE FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. TheTO WHICH SUCH LIABILITY RELATES.

Remedies and Limitation of Liability. Limitation 9.1. In the event of Liability and Indemnification: SELLER HAS a breach of the Performance Warranty under Section 8.1, Smarsh shall use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity. The foregoing represents Client’s sole remedy for any breach of the Performance Warranty. 9.2. IN NO LIABILITY EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR PROSPECTIVE PROFITS, ANY SPECIAL, INDIRECT INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENTUSE, THE PRODUCTS DATA, BUSINESS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"PROFITS), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE SERVICES, WHETHER BASED ON BREACH OF ITS OBLIGATIONS CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. XXXXXX’X AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER THIS AGREEMENTOR RELATING TO THE PROVISION OF SERVICES, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, OR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, SHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY SMARSH FROM CLIENT FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. 9.3. THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY SMARSH RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF. THE FOREGOING EXCLUSIONS/LIMITATIONS OF LIABILITY SHALL NOT APPLY (1) TO PERSONAL INJURY OR DEATH CAUSED BY XXXXXX’X XXXXX NEGLIGENCE; (c2) FOR FRAUD; (3) FOR ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS OTHER MATTER FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED WHICH LIABILITY CANNOT BE EXCLUDED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The.

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS NO A. THE EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF THE PARTIES FOR PROSPECTIVE PROFITSANY CLAIM, SPECIALLOSS, INDIRECT DAMAGE, OR CONSEQUENTIAL DAMAGES EXPENSE OF EITHER PARTY OR ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO OTHER ENTITY ARISING OUT OF THIS AGREEMENT, OR THE PRODUCTS USE OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY, OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER STRICT LIABILITY SHALL BE AS FOLLOWS: (AS 1) FOR INFRINGEMENT--THE REMEDY SET FORTH IN THE "INDEMNIFYING PARTY") SHALL INDEMNIFYPATENTS, HOLD HARMLESSTRADEMARKS, AND DEFEND SELLER COPYRIGHTS" CLAUSE; (2) FOR THE PERFORMANCE OR NON-PERFORMANCE OF HARDWARE, SOFTWARE, APPLICATIONS AND SERVICES OR CLAIMS THAT THEY DO NOT CONFORM TO A WARRANTY--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY" CLAUSE; (3) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT OF THE DIRECT DAMAGES NOT TO **** Confidential materials submitted and filed separately with the Securities and Exchange Commission. Four asterisks are used to denote omissions. 15 EXCEED $100,000 INCLUDING AWARDED COUNSEL FEES AND COSTS. B. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY AND ITS MANAGERSAFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTSINDIRECT, OR EXPENSES OF WHATEVER KINDCONSEQUENTIAL DAMAGE OR LOST PROFITS, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"), REVENUES OR SAVINGS ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH THIS AGREEMENT, OR NON- FULFILLMENT THE USE OR PERFORMANCE OF ANY REPRESENTATIONSOFTWARE, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (c) ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING WITHOUT LIMITATION NEGLIGENCE INDEMNITY, OR STRICT LIABILITY. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. C. EACH PARTY SHALL GIVE THE OTHER PROMPT NOTICE OF ANY WARRANTY CLAIM. ANY ACTION OR PROCEEDING MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE CAUSE OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. TheACTION ACCRUES.

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS NO RTEC COMMUNICATIONS'S ENTIRE LIABILITY FOR PROSPECTIVE PROFITS, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENT, THE PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (c) ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER YOUR EXCLUSIVE REMEDY WITH RESPECT TO THE USE OF ANY SOFTWARE PROVIDED OR USED BY RTEC COMMUNICATIONS SHALL BE THE REPLACEMENT OF ANY RTEC COMMUNICATIONS SOFTWARE FOUND TO BE DEFECTIVE. YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY OTHER DISPUTE WITH RTEC COMMUNICATIONS IS THE CANCELLATION OF YOUR ACCOUNT. IN NO EVENT SHALL RTEC COMMUNICATIONS'S CUMULATIVE LIABILITY TO YOU FOR ANY AND ALL CLAIMS RELATING TO THE USE OF THE RTEC COMMUNICATIONS SERVICES EXCEED THE TOTAL AMOUNT OF RTEC COMMUNICATIONS AND ITS SUPPLIERS SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGE ARISING FROM YOUR USE OF THE RTEC COMMUNICATIONS SERVICES, SOFTWARE, THE INTERNET OR FOR ANY OTHER CLAIM RELATED IN ANY WAY TO YOUR MEMBERSHIP WITH RTEC COMMUNICATIONS. THESE EXCLUSIONS FOR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES INCLUDE, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, LOST DATA, LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, EVEN IF RTEC COMMUNICATIONS HAD BEEN ADVISED OF THE POSSIBILITY THEREOF AND REGARDLESS OF THE LEGAL OR EQUITABLE THEORY UPON WHICH THE CLAIM IS BASED. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, RTEC COMMUNICATIONS AND ITS SUPPLIER'S LIABILITY IN SUCH STATE OR JURISDICTION SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. EXCEPT FOR OFFERS EXPRESSLY MADE OR GUARANTEED BY RTEC COMMUNICATIONS, RTEC COMMUNICATIONS AND ITS SUPPLIERS DO NOT ENDORSE, WARRANT OR GUARANTEE ANY PRODUCT OR SERVICE OFFERED THROUGH RTEC COMMUNICATIONS AND WILL NOT BE A PARTY TO OR IN ANY WAY BE RESPONSIBLE FOR MONITORING ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The.

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS 9.1 IN NO LIABILITY EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR PROSPECTIVE PROFITS, ANY SPECIAL, INDIRECT INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENTUSE, THE PRODUCTS DATA, BUSINESS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"PROFITS), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE SERVICES, WHETHER BASED ON BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT; CONTRACT, BREACH OF WARRANTY, TORT (c) ANY BODILY INJURY, DEATH OF ANY PERSONINCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FLEX’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS PROVISION OF INDEMNIFYING PARTY OR ITS PERSONNEL SERVICES, NOTWITHSTANDING THE FORM (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERALE.G., STATECONTRACT, TORT, OR LOCAL LAWSOTHERWISE) IN WHICH ANY ACTION IS BROUGHT, REGULATIONS, OR CODES SHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY FLEX FROM RESELLER FOR THE APPLICABLE SERVICES IN THE PERFORMANCE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT VIEW OF THE FAVORABLE FEES BEING CHARGED BY FLEX RELATIVE TO THE PRODUCTS OR SERVICESSERVICES DESCRIBED HEREIN, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. TheARE MATERIAL TERMS HEREOF.