D3C is not liable to Client for failing to provide the Services unless such failure results from a breach of a Service Level Agreement, or results from our gross negligence, willful misconduct, or intentional breach of the Agreement. The credits stated in the Service Level Agreement are Client’s sole and exclusive remedy for our failure to meet those guaranties for which credits are provided unless such failure is due to D3C’s willful misconduct.
Neither party (nor any of employees, agents, affiliates or suppliers of either party) is liable to the other for any indirect, special, incidental, exemplary or consequential loss or damages of any kind. In addition, neither party is liable for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either party be liable to the other for any punitive damages or for any loss of profits, revenue, customers, contracts or goodwill. The foregoing limitations shall not apply to losses, claims, suits, controversies, breaches and/or damages caused by a party’s gross negligence, willful misconduct, and a breach of Section 9 (Access To Your Customer Data Or Use of the Services).
Subject to Section 9, D3C is not liable to Client for lost data unless D3C fails to provide the backup services as agreed. Client will release D3C from liability for loss of data to the extent that the data has changed since the time that D3C were last required by the Agreement to perform a backup.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from D3C’s negligence, and liability for breach of Section 9, the maximum aggregate monetary liability of D3C and any of its employees, agents, suppliers, or affiliates in connection with the Hosting Services, the Agreement, and any act or omission related to the Hosting Services or Agreement, under any theory of law (including breach of contract, tort, strict liability, violation of law, and infringement) shall not exceed: (i) for Hosting Services an amount that is twelve (12) times one month’s recurring fee under the Agreement for the Services that are the subject of the claim as of the time of the occurrence of the events giving rise to the claim, and (ii) for Supplementary Services, fees paid for the Supplementary Services that are the subject of the claim.