Common use of Warranties; Exclusion of Consequential Damages; Limitation on Liability Clause in Contracts

Warranties; Exclusion of Consequential Damages; Limitation on Liability. This Agreement and any addenda is an agreement for services and except as expressly provided in this Agreement, and any addenda, we and our affiliates disclaim all representations or warranties, express or implied, made to merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement. Notwithstanding anything in this in this Agreement and any addenda to the contrary, in no event shall we or our affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this Agreement and any addenda to the contrary, we and our affiliates’ cumulative liability, in the aggregate (inclusive of any and all claims made by Sub-Merchant against us and/or our affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein for services performed in the immediately preceding 12 months.

Warranties; Exclusion of Consequential Damages; Limitation on Liability. This Agreement and any addenda is an agreement for services and except as expressly provided in this Agreement, and any addenda, we Servicers and our affiliates Servicers’ Affiliates disclaim all representations or warranties, express or implied, made to merchant Sub-Merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement. Notwithstanding anything in this in this Agreement and any addenda to the contrary, in no event shall we or our affiliates Servicers and Servicers’ Affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this Agreement and any addenda to the contrary, we Servicers and our affiliatesServicers’ Affiliates’ cumulative liability, in the aggregate to the Sub-Merchant (inclusive of any and all claims made by Sub-Merchant against us Servicers and/or our affiliatesServicers’ Affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement and any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein Servicers from Payment Facilitator under the PFAC Agreement for services performed pursuant to this Agreement in the immediately preceding 12 months. Payment Facilitator is providing services under this Agreement to effectuate its provision of a larger scope of services provided for in the Master Contract. Therefore, Sub-Merchant, in addition to all rights and remedies available to it at law, has all rights and remedies against Payment Facilitator available to it under the Master Contract, and Payment Facilitator’s liability to Sub-Merchant is limited only to the extent limited in the Master Contract. Sub-Merchant shall be responsible for losses, damages, costs, or expenses arising or resulting from (i) Sub-Merchant’s misrepresentation or breach of warranty, covenant, or any provision under this Agreement; or (ii) Sub-Merchant’s or Sub-Merchant’s employees’/agents’ fraud, gross negligence, willful misconduct or failure to comply with applicable law and this Agreement. Sub-Merchant is responsible for reimbursing Payment Facilitator for applicable Network fines and assessments pursuant to the Master Contract; however, if Sub-Merchant fails to reimburse Payment Facilitator for fines and assessments resulting from a failure to comply with applicable Network Rules, Servicers may directly collect such amounts from Sub-Merchant. Other than the liability associated with reimbursement for Network fines and assessments, Sub-Merchant’s liability for any claim arising from this Agreement is limited to compensatory damages no greater than $100,000.00 or 10% of the average annual amount paid to Servicers to provide the services outlined in this Agreement, whichever is less. In the event that Sub-Merchant is liable for a claim within the first year of this Agreement, the average annual amount will be determined by averaging the monthly amount paid to Servicers to provide the services outlined in this Agreement and multiplying it by twelve (12).

Warranties; Exclusion of Consequential Damages; Limitation on Liability. This Agreement and any addenda is an agreement for services and except as expressly provided in this Agreement, and any addenda, we Servicers and our affiliates Servicers’ Affiliates disclaim all representations or warranties, express or implied, made to merchant Sub-Merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom custom, or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement. Notwithstanding anything in this in this Agreement and any addenda to the contrary, in no event shall we or our affiliates Servicers and Servicers’ Affiliates be liable under any theory of tort, contract, strict liability liability, or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this Agreement and any addenda to the contrary, we Servicers and our affiliatesServicers’ Affiliates’ cumulative liability, in the aggregate aggregate, to the Sub-Merchant (inclusive of any and all claims made by Sub-Merchant against us Servicers and/or our affiliatesServicers’ Affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement and any addenda) and regardless of the form of action or legal theory theory, shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein Servicers from Payment Facilitator under the PFAC Agreement for services performed pursuant to this Agreement in the immediately preceding 12 months. Payment Facilitator is providing services under this Agreement to effectuate its provision of a larger scope of services provided for in the Master Contract. Therefore, Sub-Merchant, in addition to all rights and remedies available to it at law, has all rights and remedies against Payment Facilitator available to it under the Master Contract, and Payment Facilitator’s liability to Sub-Merchant is limited only to the extent limited in the Master Contract. Sub-Merchant shall be responsible for losses, damages, costs, or expenses arising or resulting from (i) Sub-Merchant’s misrepresentation or breach of warranty, covenant, or any provision under this Agreement; or (ii) Sub-Merchant’s or Sub-Merchant’s employees’/agents’ fraud, gross negligence, willful misconduct or failure to comply with applicable law and this Agreement. Sub-Merchant is responsible for reimbursing Payment Facilitator for applicable Network fines and assessments pursuant to the Master Contract; however, if Sub-Merchant fails to reimburse Payment Facilitator for fines and assessments resulting from a failure to comply with applicable Network Rules, Servicers may directly collect such amounts from Sub-Merchant. Other than the liability associated with reimbursement for Network fines and assessments, Sub-Merchant’s liability for any claim arising from this Agreement is limited to compensatory damages no greater than $100,000.00 or 10% of the average annual amount paid to Servicers to provide the services outlined in this Agreement, whichever is less. In the event that Sub-Merchant is liable for a claim within the first year of this Agreement, the average annual amount will be determined by averaging the monthly amount paid to Servicers to provide the services outlined in this Agreement and multiplying it by twelve (12).

Warranties; Exclusion of Consequential Damages; Limitation on Liability. This Sub-Merchant Agreement and any addenda is an agreement for services and except as expressly provided in this Sub-Merchant Agreement, and any addenda, we and our affiliates disclaim all representations or warranties, express or implied, made to merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Sub-Merchant Agreement. Notwithstanding anything in this in this Sub-Merchant Agreement and any addenda to the contrary, in no event shall we or our affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this Sub-Merchant Agreement and any addenda to the contrary, we and our affiliates’ cumulative liability, in the aggregate (inclusive of any and all claims made by Sub-Merchant against us and/or our affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Sub-Merchant Agreement any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,0003,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein for services performed in the immediately preceding 12 3 months.

Warranties; Exclusion of Consequential Damages; Limitation on Liability. This Agreement and any addenda is an agreement for services and except as expressly provided in this Agreement, and any addenda, we and our affiliates disclaim all representations or warranties, express or implied, made to merchant or any other person, including without limitation, any warranties regarding quality, suitability, merchantability, fitness for a particular purpose or otherwise (regardless of any course of dealing, custom or usage of trade) of any services or any goods provided incidental to the Services provided under this Agreement. Notwithstanding anything in this in this Agreement and any addenda to the contrary, in no event shall we or our affiliates be liable under any theory of tort, contract, strict liability or other legal theory for lost profits, lost revenues, lost business opportunities, exemplary, punitive, special, incidental, indirect or consequential damages, each of which is hereby excluded by agreement of the parties, regardless of whether such damages were foreseeable or whether any party or any entity has been advised of the possibility of such damages. Notwithstanding anything in this Agreement and any addenda to the contrary, we and our affiliates’ cumulative liability, in the aggregate (inclusive of any and all claims made by Sub-Sub- Merchant against us and/or our affiliates, whether related or unrelated) for all losses, claims, suits, controversies, breaches, or damages for any cause whatsoever (including, but not limited to, those arising out of or related to this Agreement any addenda) and regardless of the form of action or legal theory shall not exceed the lesser of (i) $100,000; or (ii) the amount of fees received by us pursuant to any addenda attached and incorporated herein for services performed in the immediately preceding 12 months.