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4.4. Company shall not be liable for any loss, cost, expense, or damages resulting from unauthorized calls
<br />made using the Equipment, or other fraudulent activities from Equipment, except where the unauthorized
<br />calls or other fraudulent activities are from or attributable to Company, its officers, employees, agents or
<br />representatives, including its subcontractors.
<br />4.5. EXCEPT AS OTHERWISE PROVIDED FOR IN THIS MSA or SSA, COMPANY MAKES NO
<br />REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, WITH
<br />RESPECT TO THE EQUIPMENT, OR ITS CONDITION, PERFORMANCE, MERCHANTABILITY,
<br />FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER.
<br />4.6. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED
<br />TO CUSTOMER ON AN "AS IS" `WHERE IS" AND "AS AVAILABLE" BASIS WITHOUT
<br />WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
<br />TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
<br />PURPOSE, AND NON -INFRINGEMENT. PACKET FUSION MAKES NO REPRESENTATIONS OR
<br />WARRANTIES THAT USE OF THE ANY CLOUD SERVICE WILL BE UNINTERRUPTED,
<br />TIMELY, COMPLETE, OR ERROR -FREE. The Company technology and third -party technology may
<br />be subject to limitations, delays, and other problems inherent in the use of the internet and electronic
<br />communications. Company is not responsible for any delays, delivery failures, or other damage resulting
<br />from such problems.
<br />4.7. Where Company acts as a reseller of third -party technology, Company represents and warrants that any
<br />third -party technology provider has authorized Company to grant licenses or sublicenses to use their
<br />products, including but not limited to the third -party technology, for use in Company's performance of
<br />the solution and Customer's use in connection therewith.
<br />5. LIMITATION OF LIABILITY
<br />5.1. Neither party shall be liable for any special, indirect, incidental or consequential damages or for loss, damage,
<br />or expense directly or indirectly arising from customer's use of or inability to use the equipment either
<br />separately or in combination with other equipment, or for personal injury or loss or destruction of other
<br />property.
<br />5.2. Customer and Company indemnifies and holds each party harmless for any claims, actions, expenses,
<br />losses, damages, or liabilities for any property damage or bodily injury (including death) arising in
<br />connection with this Agreement or the Support Services provided under this Agreement, except to the
<br />extent that any such property damage or bodily injury results from the negligence or willful misconduct
<br />of each party, its officers, employees, agents including subcontractor or for claims, damages or injuries
<br />by Company's employees covered under California's workers' compensation statutes.
<br />5.3. IN NO EVENT SHALL EITHER PARTY OR ANY OF ITS RELATED PARTIES BE LIABLE TO
<br />THE OTHER PARTY OR ANY OF ITS RELATED PARTIES FOR ANY INDIRECT, SPECIAL,
<br />INCIDENTAL, PUNITIVE DAMAGES OF ANY CHARACTER, CONSEQUENTIAL OR
<br />EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS OR GOOD WILL, WORK
<br />STOPPAGE, LOST PROFITS, REVENUE, DATA OR USE, COMPUTER FAILURE OR
<br />MALFUNCTION AND TELECOMMUNICATIONS CHARGES FROM UNAUTHORIZED
<br />ACCESS), COVER DAMAGES, OR OTHER SIMILAR DAMAGES REGARDLESS OF THE
<br />LEGAL THEORY ASSERTED, WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT
<br />(INCLUDING NEGLIGENCE), PRODUCT LIABILITY, STRICT LIABILITY OR OTHERWISE,
<br />EVEN IF SUCH PARTY OR ANY OF ITS RELATED PARTIES (AND IN THE CASE OF MITEL,
<br />ITS LICENSORS OR SERVICE PROVIDERS) HAS BEEN ADVISED OF THE POSSIBILITY OF
<br />SUCH DAMAGES AND EVEN IF AN AGREED REMEDY FAILS OF ITS ESSENTIAL PURPOSE
<br />OR IS HELD UNENFORCEABLE FOR ANY OTHER REASON.
<br />5.4. THIS LIMITATION OF LIABILITY SHALL NOT OPERATE SO AS TO: (I) REDUCE ANY
<br />AMOUNTS DUE AS FEES; (II) LIMIT LIABILITY ARISING IN CONNECTION WITH
<br />INDEMNIFICATION OBLIGATIONS; OR (III) LIMIT LIABILITY FINALLY DETERMINED TO
<br />HAVE RESULTED FROM A PARTY'S GROSS NEGLIGENCE OR WILFULL MISCONDUCT,
<br />PH MSA Page 3 of 9 Rev. 4.30.2022
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