Limitation of Liability. EXCEPT FOR (A) ANY BREACH OF THE RESTRICTIONS OR CONFIDENTIAL INFORMATION SECTIONS OF THIS AGREEMENT, (B) AMOUNTS CONTAINED IN JUDGMENTS OR SETTLEMENTS WHICH PROVIDER OR CUSTOMER IS LIABLE TO PAY TO A THIRD PARTY UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT AND CUSTOMER IS LIABLE TO PAY ON BEHALF OF OR TO PROVIDER UNDER THE CONDUCT, EXPORT, MSP LICENSE, AND USE BY THIRD PARTIES SECTIONS OF THIS AGREEMENT, OR (C) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW, IN NO EVENT SHALL CUSTOMER OR ITS AFFILIATES, OR PROVIDER, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR (X) ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND OR (Y) LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF CONTRACTS, LOSS OF GOODWILL OR REPUTATION, LOSS OF ANTICIPATED SAVINGS, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA, HOWSOEVER ARISING, WHETHER SUCH LOSS OR DAMAGE WAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES AND WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE.
EXCEPT FOR (A) ANY BREACH OF THE SOFTWARE LICENSE, RESTRICTIONS, OR CONFIDENTIAL INFORMATION SECTIONS OF THIS AGREEMENT, OR ANY OTHER VIOLATION OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS; (B) PROVIDER’S EXPRESS OBLIGATIONS UNDER THE INFRINGEMENT INDEMNITY SECTION OF THIS AGREEMENT AND CUSTOMER’S EXPRESS OBLIGATIONS UNDER THE CONDUCT, EXPORT, MSP LICENSE, AND USE BY THIRD PARTIES SECTIONS OF THIS AGREEMENT, (C) PROVIDER’S COSTS OF COLLECTING DELINQUENT AMOUNTS WHICH ARE NOT THE SUBJECT OF A GOOD FAITH DISPUTE; (D) A PREVAILING PARTY’S LEGAL FEES PURSUANT TO THE LEGAL FEES SECTION OF THIS AGREEMENT; OR (E) ANY LIABILITY TO THE EXTENT LIABILITY MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF APPLICABLE LAW, THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY OF CUSTOMER AND ITS AFFILIATES, AND PROVIDER, ITS AFFILIATES AND SUPPLIERS, FOR DAMAGES UNDER THIS AGREEMENT, WHETHER ARISING IN OR FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, SHALL BE AN AMOUNT EQUAL TO (Y) THE GREATER OF THE FEES PAID AND/OR OWED (AS APPLICABLE) BY CUSTOMER OR ITS AFFILIATES FOR THE PRODUCTS THAT ARE THE SUBJECT OF THE BREACH OR FIVE HUNDRED DOLLARS ($500.00),EXCEPT FOR (Z) MAINTENANCE SERVICES OR A PRODUCT SUBJECT TO RECURRING FEES, FOR WHICH THE MAXIMUM AGGREGATE AND CUMULATIVE LIABILITY SHALL BE THE GREATER OF THE AMOUNT PAID AND/OR OWED (AS APPLICABLE) FOR SUCH MAINTENANCE SERVICE OR PRODUCT DURING THE TWELVE (12) MONTHS PRECEDING THE BREACH OR FIVE HUNDRED DOLLARS ($500.00). THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR PROVIDER PROVIDING PRODUCTS AND SERVICES TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES OR FAILURES.
Provider’s Affiliates and suppliers and Customer’s Affiliates shall be beneficiaries of this Limitation of Liability Section and Customer’s Clients and Third-Party Users are entitled to the rights granted under the MSP License and Use by Third Parties Sections of this Agreement; otherwise, no third-party beneficiaries exist under this Agreement. Provider expressly excludes all liability to Third-Party Users, Clients and to any other third-party.
Protected Data. For purposes of this Section, “Protected Data” means any information or data that is provided by Customer to Provider during this Agreement that alone or together with any other information relates to an identified or identifiable natural person or data considered to be personal data as defined under Privacy Laws, and “Privacy Laws” means any applicable law, statute, directive or regulation regarding privacy, data protection, information security obligations and/or the processing of Protected Data.
Except as permitted herein or to the extent required by Privacy Laws or legal process, Provider shall implement reasonable technical and organizational measures to prevent unauthorized disclosure of or access to Protected Data by third parties, and shall only store and process Protected Data as may be required to fulfill its obligations under this Agreement. If Provider complies with Customer’s written instructions with respect to the Protected Data, Provider shall have no liability to Customer for any breach of this Section resulting from such compliance. Provider shall promptly notify Customer of any disclosure of or access to the Protected Data by a third party in breach of this Section and shall cooperate with Customer to reasonably remediate the effects of such disclosure or access. Provider further affirms to Customer that it has adequate agreements in place incorporating the EU standard contractual clauses for the transfer of Protected Data from the European Union (“EU”) to a country outside the EU.
Customer hereby (i) represents that it has the right to send the Protected Data to Provider, (ii) consents for Provider to store and use the Protected Data worldwide for the sole purpose of performing its obligations under this Agreement, (iii) agrees that the Protected Data may be accessed and used by Provider and its Representatives worldwide as may be needed to support Provider’s standard business operations, and (iv) agrees that Protected Data consisting of Customer contact information (e.g., email addresses, names) provided as part of Maintenance Services may be sent to Provider’s third party service providers as part of Provider’s services improvement processes.