Warranty Limitation of Liabilty
Customer hereby agrees that KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS makes no warranties, express or implied and Customer hereby waives any claim based upon any breach thereof. Customer further agrees that KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS shall not be liable for any consequential, indirect or punitive damages arising out of any breach, delay or default in performance of this Agreement, and in any event, the amount of damages due from KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS to Customer shall never exceed, and shall be limited to, a credit allowance of all payments made to date of claim, but not to exceed one (1) months' service fee at current rates. KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS liability arising out of delays in installation, commencement or restoration of Service, or out of mistakes, accidents, omissions, interruptions, delays, or defect in transmission, including those which may be caused by regulatory or judicial authorities, shall in no event exceed the amount of the credit allowance, if any, available under this Section. Without limiting the foregoing, KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS shall have no obligation to provide alternative routing with respect to any Service provided pursuant to this Agreement.
IN NO EVENT SHALL KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS BE LIABLE TO CUSTOMER OR ANY OTHER PERSON, FIRM OR ENTITY IN ANY RESPECT, INCLUDING, WITHOUT LIMITATION, FOR ANY DAMAGES, EITHER DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, ACTUAL, PUNITIVE, OR FOR ANY OTHER DAMAGES, OR FOR ANY LOST PROFITS OF ANY KIND OR NATURE WHATSOEVER, ARISING OUT OF MISTAKES, NEGLIGENCE, ACCIDENTS, ERRORS, OMISSIONS, INTERRUPTIONS OR DEFECT IN TRANSMISSION, OR DELAYS, INCLUDING, BUT NOT LIMITED TO, THOSE WHICH MAY BE CAUSED BY REGULATORY OR JUDICIAL AUTHORITIES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE OBLIGATIONS OF KANGA HOSTING AUSTRALIA PURSUANT TO THIS AGREEMENT. KANGA HOSTING AUSTRALIA MAKES NO WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, AS TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS OR FITNESS FOR ANY PURPOSE FOR THE SERVICE OR LOCAL ACCESS, OR AS TO ANY OTHER MATTER, ALL OF WHICH WARRANTIES BY KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS ARE HEREBY EXCLUDED AND DISCLAIMED.
KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS shall not be liable to Customer or any other person, firm or entity for any failure of performance under this Agreement if such failure is due to any cause or causes including, but not limited to, acts of God, fire, explosion, vandalism, cable cut, storm, or other similar occurrences; any law, order, regulation, direction, action or request of the Australian government or of any other government (including state and local governmental agency, department, commission, court, bureau, corporation or other instrumentality of any one or more of said governments) or of any civil or military authority; national emergencies, insurrections, riots, wars; or strikes, lockouts, or work stoppages or other labor difficulties; KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS failures, shortages, breaches or delays.
Indemnity by Customer
Customer agrees to release, hold harmless, defend and indemnify KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS, employees and agents from any claims, damages, including but not limited to consequential damages, or any other liability arising from customer's use of KANGA HOSTING AUSTRALIA's services and facilities provided to customer under this agreement, even if KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS has been advised of the possibility of such damages, including payment of KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS reasonable attorney's fees.
Liability of Customer
Any mistakes, accidents, omissions, interruptions, delays, errors or defects in transmission or Service which are caused or contributed to, directly or indirectly, by an act or omission of the Customer or by the use of Customer-provided facilities or equipment, or by the use of facilities or equipment furnished by any other person using Customer's facilities which are connected to KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS facilities, shall not result in the imposition of any liability upon KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS and Customer shall pay to KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS any reasonable costs, expenses, damages, fees or penalties incurred by KANGA HOSTING AUSTRALIA as a result thereof, including costs of local exchange company, labour and materials.
KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS may assign this Agreement without Customer's prior written consent. Customer may assign this Agreement with the prior written consent of KANGA HOSTING AUSTRALIA or QCLICK WEB SOLUTIONS. Such consent shall not be unreasonably withheld.
The law that will apply to this Agreement is the law of the State of Western Australia, Australia. This Agreement is performable in Western Australia and Customer expressly consents to the personal jurisdiction of the Federal and State courts of Western Australia.
Any notice under this Agreement may be e-mailed, delivered personally or mailed by registered mail to the addresses written below, or to such other places as the parties may designate in writing.
KANGA HOSTING AUSTRALIA | QCLICK WEB SOLUTIONS
PO Box 365