10. Warranty, Liability and Indemnification
10.1. Warranty. eKomi warrants that the eKomi Customer Feedback System and/or related products and services are the intellectual property of eKomi and do not violate the rights of any third party.
10.2. WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTIES EXPRESSLY GIVEN BY EKOMI IN THE GTC, EKOMI MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND APPLICABILITY FOR A PARTICULAR USE. THE EKOMI CUSTOMER FEEDBACK SYSTEM IS PROVIDED BY EKOMI “AS IS”. EKOMI DOES NOT WARRANT THAT THE EKOMI CUSTOMER FEEDBACK SYSTEM WILL BE AVAILABLE AND ACCESSIBLE AT ALL TIMES AND FREE FROM ERRORS. DELAYS OR INTERRUPTIONS IN ACCESS OR TRANSMISSION MAY OCCUR AS A RESULT OF TECHNICAL CIRCUMSTANCES OVER WHICH EKOMI HAS NO CONTROL.
10.3. Liability. eKomi is liable for any damages caused by it or its employees intentionally or through gross negligence.
10.4. EXCLUSION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, NON-FORESEEABLE, SPECIAL, INDIRECT, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST DATA OR LOST PROFITS ARISING FROM THE PERFORMANCE OF THE GTC. ANY TECHNICAL INFORMATION PROVIDED BY EKOMI OR CONSULTANCY SERVICES RENDERED WHICH ARE NOT INCLUDED WITHIN THE CONTRACTUALLY AGREED SCOPE OF SERVICES OF EKOMI ARE PROVIDED FREE OF CHARGE AND TO THE EXCLUSION OF ANY LIABILITY. EKOMI CANNOT BE MADE RESPONSIBLE FOR ANY FALL IN OR STAGNATION OF SALES FOLLOWING IMPLEMENTATION OR FOR NEGATIVE RATINGS & REVIEWS. SOFTWARE ERRORS, ANY SERVER BREAKDOWNS AND THEIR CONSEQUENCES CAUSED BY THE INSTALLATION OF THE EKOMI CUSTOMER FEEDBACK SYSTEM OR OTHER COMPARABLE CONSEQUENCES ARE ALSO EXCLUDED FROM LIABILITY. EKOMI IS NOT LIABLE FOR SERVICES OR PRODUCT FUNCTIONALITIES OF THIRD PARTIES.
10.5. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL EKOMI’S TOTAL, CUMULATIVE LIABILITY (INCLUDING INDEMNIFICATION COSTS, IF ANY) EXCEED THE TOTAL AMOUNT PAYABLE OR PAID BY THE COMPANY (IN THE AGGREGATE) FOR THE PERFORMANCE OF THE SERVICES COVERED BY THESE GTC.
10.6. Indemnification by the Company. The Company shall indemnify, defend and hold harmless eKomi from and against any and all damages, liabilities, costs and expenses (including reasonable attorney fees) related to any action, suit, claim or proceeding made, brought or threatened by a third party against eKomi arising out of or in connection with any breach of the Company’s obligations under the GTC.
10.7. Indemnification by eKomi. eKomi shall indemnify, defend and hold harmless the Company from and against any and all damages, liabilities, costs and expenses (including reasonable attorney fees) related to any action, suit, claim or proceeding made, brought or threatened by a third party against the Company arising out of or in connection with an actual or alleged breach of eKomi’s representations and warranties in this section 10.
10.8. The indemnification obligations of this section 10 are contingent on the indemnified party
i. giving prompt written notice of any such claim to the indemnifying party,
ii. providing reasonable cooperation in the defence and all related settlement negotiations to the indemnifying party, and
iii. agreeing that the indemnifying party shall have sole control over the litigation or settlement of such claim.