Warranties, Disclaimers, Limited Liability

9. Representations, Warranties and Disclaimers

9.1 Each Party represents that it has validly entered into this Agreement and has the legal power to do so.

9.2 We warrant that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in section 8.5 herein.

9.3 Except as specifically set forth in section 9.2, the Sites and the Services, including all server and network components are provided on an “as is” and “as available” basis, without any warranties of any kind to the fullest extent permitted by law, and We expressly disclaim any and all warranties, whether express or implied, including, but not limited to, any implied warranties of merchantability, title, fitness for a particular purpose, and non-infringement. You acknowledge that We do not warrant that the Services will be uninterrupted, timely, secure, error-free or free from viruses or other malicious software, and no information or advice obtained by You from Us or through the Services shall create any warranty not expressly stated in this Agreement.

10. Limitation of Liability

10.1 Under no circumstances and under no legal theory (whether in contract, tort, negligence or otherwise) will either party to this Agreement, or their Affiliates, officers, directors, employees, Administrators, service providers, suppliers or licensors be liable to the other Party or any third party for any lost profits, lost sales or business, lost data, business interruption, loss of goodwill, or for any type of indirect, incidental, special, exemplary, consequential or punitive loss or damages, or any other loss or damages incurred by the other Party or any third party in connection with this Agreement, the Services or Consulting Services, regardless of whether such Party has been advised of the possibility of or could have foreseen such damages.

10.2 Notwithstanding anything to the contrary in this Agreement, the Aptree Group’s aggregate liability to You or any third party arising out of this Agreement, the Services or Consulting Services, shall in no event exceed the Fees paid by You (and received by Us) during the twelve (12) months prior to the first event or occurrence giving rise to such liability. You acknowledge and agree that the essential purpose of this section 10.2 is to allocate the risks under this Agreement between the Parties and limit potential liability given the Fees, which would have been substantially higher if We were to assume any further liability other than as set forth herein. We have relied on these limitations in determining whether to provide You with the rights to access and use the Services and/or Consulting Services provided for in this Agreement.

10.3 Some jurisdictions do not allow the exclusion of certain implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. In these jurisdictions, the Aptree Group’s liability will be limited to the greatest extent permitted by law.

10.4 Any claims or damages that You may have against Aptree shall only be enforceable against Aptree and not any other entity or its officers, directors, representatives or agents.

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