1. Warranties of Website Contents

• • The Company warrants and represents to Visitor that:
    • The Company has the right, power and authority to enter into this Agreement and grant to Visitor the rights (if any) contemplated herein;
    • any Services will be performed:
      1. by suitably qualified and competent personnel who shall exercise all due skill and care and all due diligence in the execution thereof;
      2. in compliance with the Service Levels;
      3. so as to conform with all statutory requirements and applicable regulations relating to the Services and the Website;
      4. in such a way as not to cause any fault or malfunction in any related software, products or system of Visitor; and
      5. in such a way as not to cause any interruption to the business processes of Visitor (other than any agreed and unavoidable interruption which is required in order to perform the Services in a proper and efficient manner).
  • The warranties and representations specified in the above paragraph are subject to Visitor giving notice to the Company as soon as it is reasonably able upon becoming aware of the breach of warranty or representation. When notifying the Company of a breach, Visitor shall use its reasonable endeavours to provide the Company with such documented information, details and assistance as the Company may reasonably request.
  • All other warranties and representations, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
  • Any warranties and representations given in by the Company with respect to the performance of any Website shall not apply to the extent that the defect or error is wholly caused by any Visitor Content or third-party software used in connection with the Website (save to the extent that The Company requested or required the use of such third party software).

2. Intellectual Property Rights Indemnity. Each party (“Indemnifying Party”) shall indemnify and keep indemnified and hold harmless the other (“Indemnified Party”) from and against any losses, damages, liability, costs (including legal fees) and expenses incurred by the Indemnified Party as a result of or in connection with any action, demand or claim that use or operation of any Content or Software provided by the Indemnifying Party infringes the Intellectual Property Rights of any third party (“IPR Claim”), provided that the Indemnifying Party shall not have any such liability if the Indemnified Party:

• • does not notify the Indemnifying Party in writing setting out full details of any IPR Claim of which it has notice as soon as is reasonably possible;
  • makes any admission of liability or agrees any settlement or compromise of the relevant IPR Claim without the prior written consent of the Indemnifying Party (which shall not be unreasonably withheld or delayed);
  • does not let the Indemnifying Party at its request and own expense have the conduct of or settle all negotiations and litigation arising from the IPR Claim; or
  • does not, at the Indemnifying Party’s request and own expense, give the Indemnifying Party all reasonable assistance in the circumstances described above.

3. Limits on Liability

1. • Subject to the following sub-paragraphs, in no event shall the aggregate liability of any party to the other (whether in contract, tort (including negligence) or otherwise) and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed:
     • $5000 in respect of any one claim or series of related claims the total amount is less than $5000; and
     • provided that the amount is exceeding an overall limit of $5000 as the total amounts payable under this Agreement (whichever is greater) in respect of any and all actual claims, losses and damages arising under or in connection with this Agreement.
   • The above limits on liability shall apply in respect of any indemnities provided by either party under this Agreement, including without limitation to the indemnities under para (a).
   • Each party’s liability to the other in contract, tort (including negligence), misrepresentation (whether innocent or negligent), breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any:
     • loss of profits;
     • loss of business opportunity;
     • loss of goodwill;
     • loss of data — consider whether this is appropriate depending on the nature of the web hosting services being provided, how significant lost data might be and who is best placed to prevent or mitigate the effects of lost data;
     • loss of anticipated savings; or
     • any special, indirect or consequential loss or damage whatsoever.
   • The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement.