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Terms and Conditions to the Agreement
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<br />5. Credit Allowance, Warranty Disclaimer, Limitation of Liability and Indemnity
<br />(a) Credit Allowances for Interruption of Service. If an interruption or failure of Service is caused solely by TPx
<br />and not by Customer or any third party agent, carrier, vendor, employee, or repres entative of Customer or other
<br />causes beyond TPx's reasonable control, Customer may be entitled to a credit allowance not to exceed an amount
<br />equivalent to the proportionate charge to Customer for the affected Service for the time period from the time of
<br />Customer's report to TPx of the Service interruption to the time Service is restored, not to exceed in any month, the
<br />total monthly recurring charge owed by Customer for the affected Service in that month. The specific service levels,
<br />related credits and steps Customer must take to apply for credits are available on TPx's website at www.tpx.com/sla.
<br />TPx will not be liable for any act or omission of any other entity furnishing Customer with facilities or equipment
<br />used with the Services, nor will TPx be liable for any damages or losses due in whole or in part to Customer's fault
<br />or negligence or due in whole or in part to the failure of equipment or facilities that Customer provides. For the
<br />avoidance of doubt, any credit allowances or adjustments permitted under the Agreement shall only relate to
<br />payments for Services and shall not be applied as an offset, credit, adjustment or recoupment against any payments
<br />owing by Customer for equipment purchased from TPx pursuant to an Equipment Addendum.
<br />(b) WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH IN THE "WARRANTY" SECTION OF A
<br />SERVICE ADDENDUM, TPx MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO ANY SERVICE OR
<br />DELIVERABLES. TPx SPECIFICALLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING
<br />WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
<br />PURPOSE, OR TITLE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
<br />(c) EXCLUSIONS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER CUSTOMER
<br />NOR TPX WILL BE ENTITLED TO RECEIVE PUNITIVE, INCIDENTAL, EXEMPLARY, INDIRECT,
<br />CONSEQUENTIAL, RELIANCE OR SPECIAL DAMAGES (INCLUDING DAMAGES FOR LOST BUSINESS,
<br />REVENUE, PROFITS OR GOODWILL) IN AN ACTION OR CLAIM OF ANY KIND OR NATURE, INCLUDING
<br />BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY,
<br />MISREPRESENTATION AND OTHER TORTS.
<br />(d) LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
<br />TPX’S TOTAL LIABILITY FOR ALL CLAIMS IN ANY MANNER ARISING OUT OF THE AGREEMENT WILL IN NO
<br />EVENT EXCEED THE LESSER OF (1) CUSTOMER’S PROVEN DIRECT DAMAGES, (2) THE AMOUNTS
<br />CUSTOMER PAID TO TPX FOR THE SERVICES GIVING RISE TO LIABILITY UNDER THE APPLICABLE
<br />AGREEMENT DURING THE SIX (6) MONTH PERIOD IN WHICH ANY SERVICE-RELATED PROBLEMS WERE
<br />EXPERIENCED, OR (3) THE CREDITS AVAILABLE TO CUSTOMER UNDER TPX’S TARIFFED LIMITATION OF
<br />LIABILITY. FOR CLARITY, THE FOREGOING LIMITATIONS APPLY TO ALL DISPUTES, CAUSES OF ACTION
<br />AND CLAIMS OF ANY KIND OR NATURE, INCLUDING BREACH OF CONTRACT, BREACH OF WARRANTY,
<br />NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
<br />(e) Indemnification.
<br />(i) TPx Infringement Indemnity and Remedy.
<br />(A) TPx Infringement Indemnity. If a third party that is not an Affiliate of Customer asserts a claim against
<br />Customer asserting that TPx’s proprietary materials used or provided with the Services infringes a U.S. patent
<br />existing as of the effective date of the Agreement pursuant to which the Service is provided or a trade secret or
<br />copyright owned by that third party (a “TPx Infringement Claim”), then TPx will, at its own expense defend or settle
<br />the TPx Infringement Claim; and pay the damages finally awarded against Customer. However, TPx shall have no
<br />obligation for any such claim or other obligation for infringement to the extent resulting or alleged to result from: (1)
<br />modifications made other than by TPx, (2) use of the Services or any work product of TPx in combination with any
<br />equipment, software or materials not provided by TPx, (3) compliance with the instructions, designs or specifications
<br />provided by or on behalf of Customer, or (4) Customer's continuing any allegedly infringing activity after being
<br />notified thereof or after being informed and provided with modifications that woul d have avoided the alleged
<br />infringement.
<br />ENV91971328-9742-EAEE-4663-DBAC
<br />03/11/2021 21:41 PM UTC
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