Common use of WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION Clause in Contracts

WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION. A. TRG Arts represents and warrants to Client that the Application Services shall be provided in a workmanlike, professional manner. Unless otherwise set forth herein, all Application Services are provided on an “As- is” basis. TRG Arts disclaims all other warranties, express or implied, including but not limited to those regarding performance, merchantability, infringement, title, or fitness for a particular purpose. TRG Arts does not warrant that the Data Center Application or Application Services will meet Client’s, or as applicable End User’s requirements or will operate in the combinations which may be selected for use by Client, or as applicable End Users, or that operation of the Data Center Application or Application Services will be uninterrupted or error-free, or that data stored by the Data Center Application or Application Services will not be lost. TRG ARTS SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY, INCLUDING END USERS, FOR: (i) ANY DAMAGE THAT CLIENT OR ANY END USER MAY SUFFER ARISING OUT OF THE USE OF OR THE INABILITY TO USE ANY APPLICATION SERVICE UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL OR A GROSSLY NEGLIGENT ACT OF TRG ARTS; (ii) ANY LOSS OF DATA OR THE INACCURACY OF DATA; (iii) THE CONTENT OF INFORMATION OR DATA PROVIDED OR TRANSMITTED BY CLIENT OR ANY END USER; (iv) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CLIENT, END USERS OR THEIR EMPLOYEES OR AUTHORIZED AGENTS; (v) INTEROPERABILITY OF SPECIFIC APPLICATIONS; (vi) CLIENT OR AN END USERS INABILITY TO ACCESS OR INTERACT WITH THE APPLICATION SERVICES THROUGH THE INTERNET; (vii) PERFORMANCE IMPAIRMENTS CAUSED ON THE INTERNET; OR (viii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY. B. TRG Arts’ cumulative liability for damages arising out of or in connection with the Agreement, including the Data Center Application, regardless of the legal theory of any claim, shall not exceed the Service Fees paid directly by Client to TRG Arts in the calendar year immediately prior to the date the claim accrues, and such a claim for a return of amounts paid shall be Client’s exclusive remedy. In no event shall TRG Arts be liable for any claim against Client or TRG Arts by any third party, including as applicable End Users, even if it has been advised of the possibility of such a claim. C. Client hereby warrants and represents that Client’s, or End User’s as applicable, use of the Data Center Application and provision of Client Data to TRG Arts is consistent with and not prohibited by any privacy policy, terms of use, or similar representation made by the Client or End User to the individual(s) to whom the Client Data relates (“Privacy Policy”). Client agrees that it shall not use the Data Center Application for a purpose prohibited by any such Privacy Policy and shall not request that TRG Arts take any action pursuant to this Agreement which is inconsistent with or prohibited by any such Privacy Policy. Client agrees to defend, indemnify, and hold harmless TRG Arts from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of or resulting from Client or End User’s actual or alleged use, misuse, unauthorized use or use of Client Data in a manner contrary to any applicable Privacy Policy or applicable law. Client’s duty of indemnification shall extend to any regulatory investigation or enforcement action threatened or pursued by a federal or state government or regulatory agency, whether or not such investigation or enforcement action results in a complaint in state or federal court. D. TRG Arts shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including without limitation damages for loss of goodwill, work stoppage, data loss, or computer failure, incurred by either party or any third party, whether in an action in contract or tort, even if the damages were foreseeable or if the party or any other person has been advised of the possibility of such damages.

WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION. A. TRG Arts represents and warrants to Client that the Application Services shall be provided in a workmanlikeYOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, professional mannerWITH ALL FAULTS. Unless otherwise set forth hereinEXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED BY CHARMING CHINA (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT), all Application Services are provided on an CHARMING CHINA (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), (COLLECTIVELY THE “As- is” basis. TRG Arts disclaims all other warrantiesCHARMING CHINA PARTIES”), express or impliedITS THIRD-PARTY LICENSORS, including but not limited to those regarding performancePROVIDERS AND SUPPLIERS, merchantabilityDISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SERVICE, infringement, title, or fitness for a particular purpose. TRG Arts does not warrant that the Data Center Application or Application Services will meet Client’s, or as applicable End User’s requirements or will operate in the combinations which may be selected for use by Client, or as applicable End Users, or that operation of the Data Center Application or Application Services will be uninterrupted or error-free, or that data stored by the Data Center Application or Application Services will not be lost. TRG ARTS SHALL NOT BE LIABLE TO CLIENT WHETHER EXPRESS OR ANY THIRD PARTYIMPLIED, INCLUDING END USERSBUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, FOR: (i) ANY DAMAGE THAT CLIENT OR ANY END USER MAY SUFFER ARISING OUT ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF THE USE COMPUTER SYSTEMS,COMPATIBILITY OF OR THE INABILITY TO USE ANY APPLICATION SERVICE UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL OR A GROSSLY NEGLIGENT ACT OF TRG ARTS; (ii) ANY LOSS OF DATA OR THE INACCURACY OF DATA; (iii) THE CONTENT OF INFORMATION OR DATA PROVIDED OR TRANSMITTED BY CLIENT OR ANY END USER; (iv) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CLIENTSOFTWARE PROGRAMS, END USERS OR THEIR EMPLOYEES OR AUTHORIZED AGENTS; (v) INTEROPERABILITY OF SPECIFIC APPLICATIONS; (vi) CLIENT OR AN END USERS INABILITY TO ACCESS OR INTERACT WITH THE APPLICATION SERVICES THROUGH THE INTERNET; (vii) PERFORMANCE IMPAIRMENTS CAUSED ON THE INTERNET; OR (viii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODSINTEGRATION, SERVICESANDTHOSEARISINGFROMCOURSEOFDEALING, COURSEOF TRADE, OR TECHNOLOGYARISING UNDER STATUTE. ALSO, THERE IS NO WARRANTY OF WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY CHARMING CHINA OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED. B. TRG Arts’ cumulative liability for damages arising out of or in connection with the Agreement, including the Data Center Application, regardless of the legal theory of any claim, shall not exceed the Service Fees paid directly by Client to TRG Arts in the calendar year immediately prior to the date the claim accrues, and such a claim for a return of amounts paid shall be Client’s exclusive remedy. In no event shall TRG Arts be liable for any claim against Client or TRG Arts by any third party, including as applicable End Users, even if it has been advised of the possibility of such a claim. C. Client hereby warrants and represents that Client’s, or End User’s as applicable, use of the Data Center Application and provision of Client Data to TRG Arts is consistent with and not prohibited by any privacy policy, terms of use, or similar representation made by the Client or End User to the individual(s) to whom the Client Data relates (“Privacy Policy”). Client agrees that it shall not use the Data Center Application for a purpose prohibited by any such Privacy Policy and shall not request that TRG Arts take any action pursuant to this Agreement which is inconsistent with or prohibited by any such Privacy Policy. Client agrees to defend, indemnify, and hold harmless TRG Arts from and against any and all claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' fees, arising out of or resulting from Client or End User’s actual or alleged use, misuse, unauthorized use or use of Client Data in a manner contrary to any applicable Privacy Policy or applicable law. Client’s duty of indemnification shall extend to any regulatory investigation or enforcement action threatened or pursued by a federal or state government or regulatory agency, whether or not such investigation or enforcement action results in a complaint in state or federal court. D. TRG Arts shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including without limitation damages for loss of goodwill, work stoppage, data loss, or computer failure, incurred by either party or any third party, whether in an action in contract or tort, even if the damages were foreseeable or if the party or any other person has been advised of the possibility of such damages.

WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION. A. TRG Arts represents and warrants to Client that the Application Services shall be provided in a workmanlike(a) LICENSEE ACKNOWLEDGES, professional mannerUNDERSTANDS AND ACCEPTS THAT ICE MAKES NO WARRANTY WHATSOEV­ER TO LICENSEE AS TO THE SERVICES, EXPRESS OR IM­PLIED, AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AT LICENSEE’S SOLE RISK. Unless otherwise set forth hereinICE EXPRESSLY DISCLAIMS ANY IMPLIED WARRAN­TIES OF MERCHANT­ABIL­ITY OR FITNESS FOR A PARTICU­LAR PURPOSE. NEITHER ICE, all Application Services are provided on an “As- is” basisITS AFFILIATES, NOR THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, SUBSIDIARIES, SHAREHOLDERS, EMPLOY­EES OR AGENTS MAKE ANY WARRANTY WITH RESPECT TO, AND NO SUCH PARTY SHALL HAVE ANY LIABILITY TO, LICENSEE FOR (I) THE ACCURA­CY, ADEQUACY, TIMELI­NESS, COM­PLETE­NESS, COMPLIANCE WITH RULES OR REGULATIONS, NONINFRINGEMENT, RELIABILITY, SEQUENCING, PERFOR­MANCE OR CONTINUED AVAILABILITY OF THE SERVICES OR (II) DE­LAYS, OMIS­SIONS OR INTERRUPTIONS THERE­IN OR (III) COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND FURTHERMORE, NO GUARANTEE IS MADE AS TO THE EFFICACY OR VALUE OF ANY SERVICES PERFORMED OR SOFTWARE, DATA, CODE OR OTHER MATERIALS DEVELOPED. TRG Arts disclaims all other warranties, express or implied, including but not limited to those regarding performance, merchantability, infringement, title, or fitness for a particular purpose. TRG Arts does not warrant that the Data Center Application or Application Services will meet Client’s, or as applicable End User’s requirements or will operate in the combinations which may be selected for use by Client, or as applicable End Users, or that operation of the Data Center Application or Application Services will be uninterrupted or error-free, or that data stored by the Data Center Application or Application Services will not be lost. TRG ARTS NEITHER ICE NOR LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE TO CLIENT LICENSEE FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY THIRD PARTY, INCLUDING END USERS, FOR: (i) ANY DAMAGE THAT CLIENT TYPE WHICH LICENSEE MAY SUSTAIN OR ANY END USER MAY SUFFER ARISING OUT INCUR IF THE QUANTITY OR CHARACTER OF THE USE OF UTILITY PROVIDED ELECTRIC SERVICE IS CHANGED, IS NO LONGER AVAILABLE, OR IS NO LONGER SUITABLE FOR LICENSEE’S REQUIREMENTS. FURTHER, LICENSEE ACKNOWLEDGES THAT ICE IS PROVIDING THE INABILITY SERVICES AND QUESTIONS OR ISSUES REGARDING THE SERVICES MUST BE DIRECTED TO USE ANY APPLICATION SERVICE UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL OR A GROSSLY NEGLIGENT ACT OF TRG ARTS; (ii) ANY LOSS OF DATA OR THE INACCURACY OF DATA; (iii) THE CONTENT OF INFORMATION OR DATA PROVIDED OR TRANSMITTED BY CLIENT OR ANY END USER; (iv) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CLIENT, END USERS OR THEIR EMPLOYEES OR AUTHORIZED AGENTS; (v) INTEROPERABILITY OF SPECIFIC APPLICATIONS; (vi) CLIENT OR AN END USERS INABILITY TO ACCESS OR INTERACT ICE. LICENSEE UNDERSTANDS THAT ICE WILL PROVIDE POWER AND COOLING SERVICES IN CONNECTION WITH THE APPLICATION SERVICES THROUGH BUT IN NO WAY DOES ICE WARRANT, REPRESENT THE INTERNET; (vii) PERFORMANCE IMPAIRMENTS CAUSED ON ADEQUACY OR GUARANTEE THE INTERNET; SUFFICIENCY OF THE POWER SUPPLY OR (viii) COOLING SERVICE. NEITHER ICE NOR LANDLORD SHALL BE LIABLE OR RESPONSIBLE TO LICENSEE FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY TYPE WHICH LICENSEE MAY SUSTAIN OR INCUR IF THE COST QUANTITY OR CHARACTER OF PROCUREMENT OF SUBSTITUTE GOODSTHE UTILITY PROVIDED ELECTRIC SERVICE CHANGED, SERVICESIS NO LONGER AVAILABLE, OR TECHNOLOGYNO LONGER SUITABLE FOR LICENSEE’S REQUIREMENTS. B. TRG Arts’ cumulative liability for damages arising out of or in connection with (b) To the Agreementfullest extent permitted by law, including the Data Center ApplicationLicensee shall indemnify, regardless of the legal theory of any claim, shall not exceed the Service Fees paid directly by Client to TRG Arts in the calendar year immediately prior to the date the claim accrues, and such a claim for a return of amounts paid shall be Client’s exclusive remedy. In no event shall TRG Arts be liable for any claim against Client or TRG Arts by any third party, including as applicable End Users, even if it has been advised of the possibility of such a claim. C. Client hereby warrants and represents that Client’s, or End User’s as applicable, use of the Data Center Application and provision of Client Data to TRG Arts is consistent with and not prohibited by any privacy policy, terms of use, or similar representation made by the Client or End User to the individual(s) to whom the Client Data relates (“Privacy Policy”). Client agrees that it shall not use the Data Center Application for a purpose prohibited by any such Privacy Policy and shall not request that TRG Arts take any action pursuant to this Agreement which is inconsistent with or prohibited by any such Privacy Policy. Client agrees to defend, indemnifyprotect, and hold harmless TRG Arts ICE, and each of their respective directors, officers, affiliates, employees and agents from and against any and all losses, liabilities, judg­ments, suits, actions, proceedings, claims, demands, judgments, liability, damages, losses, costs and expenses, including reasonable attorneys' (includ­ing attorney's fees, ) resulting from or arising out of of: (a) any act or resulting from Client or End User’s actual or alleged use, misuse, unauthorized use or use of Client Data in a manner contrary to omission by any applicable Privacy Policy or applicable law. Client’s duty of indemnification shall extend to any regulatory investigation or enforcement action threatened or pursued by a federal or state government or regulatory agencyperson using the Services, whether or not has authorized such investigation access; (b) the use or enforcement action results in a complaint in state occupancy of the Leased Premises, the Building or federal court. D. TRG Arts shall not be liable for any indirect, incidental, special, consequential, punitive, or exemplary damages, including without limitation damages for loss of goodwill, work stoppage, data loss, or computer failure, incurred the surrounding property by either party Licensee or any third partyperson claiming by, whether in an action in contract through or tortunder Licensee, even if its partners, and their respective officers, agents, servants or employees, (c) the damages were foreseeable negligence or if the party willful misconduct of Licensee or any other person has been advised Licensee with respect to the Leased Premises, the Building or the surrounding property; or (d) any default of this Agreement by Licensee. Notwithstanding any provision to the possibility of such damagescontrary contained in this Section 6, nothing contained in the Section 6 shall be interpreted or used in any way to affect, limit, reduce or abrogate any insurance coverage provided by any insurer to either Licensee or ICE. (c) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL ICE OR ITS AFFILIATES BE LIABLE FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDEN­TAL, PUNITIVE OR CONSE­QUEN­TIAL DAMAG­ES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOST DATA, LOST TIME OR GOOD WILL, EVEN IF THEY HAVE BEEN AD­VISED OF THE POSSIBILI­TY OF SUCH DAMAG­ES. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN THE EVENT THAT ICE IS DETERMINED TO BE LIABLE TO LICENSEE FOR ANY CAUSE, LICENSEE EXPRESSLY AGREES THAT IN ENTERING INTO THIS AGREEMENT, ICE’S AGGREGATE LIABILITY, FOR ANY DAMAGES OR LOSSES UNDER ALL CAUSES OF ACTION, WILL NOT EXCEED THE FEES PAID AND PAYABLE BY LICENSEE TO ICE UNDER THIS AGREEMENT FOR THE SERVICE(S) IN QUESTION IN THE SIX (6) MONTHS SUCH LIABILITY IS ALLEGED TO HAVE ARISEN. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. IN NO EVENT SHALL ICE OR ITS AFFILIATES BE LIABLE FOR ANY TELECOMMUNICATIONS CHARGES OR OTHER COSTS INCURRED, BY LICENSEE IN ACCESS OR USING ANY OF THE SERVICES. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICES MAY BE BROUGHT BY LICENSEE MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.