Common use of WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION Clause in Contracts

WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION. A. TRG Arts represents and warrants to Client that the Application Services shall be provided in a workmanlike, professional manner. Unless otherwise set forth herein, all Application Services are provided on an “As- is” basis. TRG Arts disclaims all other warranties, express or implied, including but not limited to those regarding performance, merchantability, infringement, title, or fitness for a particular purpose. TRG Arts does not warrant that the Data Center Application or Application Services will meet Client’s, or as applicable End User’s requirements or will operate in the combinations which may be selected for use by Client, or as applicable End Users, or that operation of the Data Center Application or Application Services will be uninterrupted or error-free, or that data stored by the Data Center Application or Application Services will not be lost. TRG ARTS SHALL NOT BE LIABLE TO CLIENT OR ANY THIRD PARTY, INCLUDING END USERS, FOR: (i) ANY DAMAGE THAT CLIENT OR ANY END USER MAY SUFFER ARISING OUT OF THE USE OF OR THE INABILITY TO USE ANY APPLICATION SERVICE UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL OR A GROSSLY NEGLIGENT ACT OF TRG ARTS; (ii) ANY LOSS OF DATA OR THE INACCURACY OF DATA; (iii) THE CONTENT OF INFORMATION OR DATA PROVIDED OR TRANSMITTED BY CLIENT OR ANY END USER; (iv) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CLIENT, END USERS OR THEIR EMPLOYEES OR AUTHORIZED AGENTS; (v) INTEROPERABILITY OF SPECIFIC APPLICATIONS; (vi) CLIENT OR AN END USERS INABILITY TO ACCESS OR INTERACT WITH THE APPLICATION SERVICES THROUGH THE INTERNET; (vii) PERFORMANCE IMPAIRMENTS CAUSED ON THE INTERNET; OR (viii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES, OR TECHNOLOGY.

WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION. A. TRG Arts represents and warrants to Client that the Application Services shall be provided in a workmanlikeYOU ACKNOWLEDGE AND AGREE THAT THE SERVICE SUPPLIED HEREUNDER IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS, professional mannerWITH ALL FAULTS. Unless otherwise set forth hereinEXCEPT AS OTHERWISE SPECIFICALLY SET FORTH IN THIS AGREEMENT AND AS OTHERWISE SPECIFICALLY SET FORTH IN ANY MANUFACTURER WARRANTY FOR ANY EQUIPMENT PROVIDED BY CHARMING CHINA (BUT ONLY IF SUCH WARRANTY IS INCLUDED WITH SUCH EQUIPMENT), all Application Services are provided on an CHARMING CHINA (AND ITS OFFICERS, EMPLOYEES, PARENT, SUBSIDIARIES, AND AFFILIATES), (COLLECTIVELY THE “As- is” basisCHARMING CHINA PARTIES”), ITS THIRD-PARTY LICENSORS, PROVIDERS AND SUPPLIERS, DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS FOR THE SERVICE, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, NON-INTERFERENCE, TITLE, COMPATIBILITY OF COMPUTER SYSTEMS,COMPATIBILITY OF SOFTWARE PROGRAMS, INTEGRATION, ANDTHOSEARISINGFROMCOURSEOFDEALING, COURSEOF TRADE, OR ARISING UNDER STATUTE. TRG Arts disclaims all other warrantiesALSO, express or impliedTHERE IS NO WARRANTY OF WORKMANLIKE EFFORT OR LACK OF NEGLIGENCE. NO ADVICE OR INFORMATION GIVEN BY CHARMING CHINA OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY WITH RESPECT TO ADVICE PROVIDED. CHARMING CHINA DOES NOT WARRANT OR GUARANTEE THAT SERVICE CAN BE PROVISIONED TO YOUR LOCATION, including but not limited to those regarding performanceOR THAT PROVISIONING WILL OCCUR ACCORDING TO A SPECIFIED SCHEDULE, merchantabilityEVEN IF CHARMING CHINA HAS ACCEPTED YOUR ORDER FOR SERVICE. THE PROVISIONING OF SERVICE IS SUBJECT TO NETWORK AVAILABILITY AND THE CONDITION OF WIRING INSIDE YOUR LOCATION, infringementAMONG OTHER FACTORS. IN THE EVENT YOUR LINE IS NOT PROVISIONED FOR ANY REASON, titleNEITHER YOU NOR CHARMING CHINA SHALL HAVE ANY DUTIES OR OBLIGATIONS UNDER THIS AGREEMENT (OTHER THAN YOUR OBLIGATION TO RETURN ANY CHARMING CHINA-PROVIDED EQUIPMENT). IN NO EVENT SHALL THE CHARMING CHINA PARTIES OR CHARMING CHINA’S THIRD-PARTY LICENSORS, or fitness for a particular purpose. TRG Arts does not warrant that the Data Center Application or Application Services will meet Client’s, or as applicable End User’s requirements or will operate in the combinations which may be selected for use by Client, or as applicable End Users, or that operation of the Data Center Application or Application Services will be uninterrupted or error-free, or that data stored by the Data Center Application or Application Services will not be lost. TRG ARTS SHALL NOT PROVIDERS OR SUPPLIERS BE LIABLE TO CLIENT OR ANY THIRD PARTY, INCLUDING END USERS, FOR: (iA) ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE, LOSS OF PROGRAMS OR INFORMATION OR DAMAGE THAT CLIENT OR ANY END USER MAY SUFFER TO DATA ARISING OUT OF THE USE, PARTIAL USE OF OR THE INABILITY TO USE ANY APPLICATION SERVICE UNLESS THE SERVICE, OR RELIANCE ON OR PERFORMANCE OF THE SERVICE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF CHARMING CHINA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE IS CAUSED BY AN INTENTIONAL CLAIM OR A GROSSLY NEGLIGENT ACT OF TRG ARTS; DAMAGES, OR (iiB) ANY LOSS CLAIMS AGAINST YOU BY ANY OTHER PARTY. THE LIABILITY OF DATA THE CHARMING CHINA PARTIES, OR (SUBJECT TO ANY DIFFERENT LIMITATIONS OF LIABILITY IN THIRD-PARTY END-USER LICENSE OR OTHER AGREEMENTS) OUR THIRD-PARTY LICENSORS, PROVIDERS OR SUPPLIERS, FOR ALL CATEGORIES OF DAMAGES SHALL NOT EXCEED A PRO RATA CREDIT FOR THE MONTHLY FEES (EXCLUDING ALL NONRECURRING CHARGES, REGULATORY FEES, SURCHARGES, FEES AND TAXES) YOU HAVE PAID TO CHARMING CHINA FOR THE SERVICE DURING THE SIX (6) MONTH PERIOD PRIOR TO WHEN SUCH CLAIM AROSE, WHICH SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY REGARDLESS OF THE TYPE OF CLAIM OR NATURE OF THE CAUSE OF ACTION. THE FOREGOING LIMITATIONS SHALL APPLY TO THE FULL EXTENT PERMITTED BY LAW, AND ARE NOT INTENDED TO ASSERT ANY LIMITATIONS OR DEFENSES WHICH ARE PROHIBITED BY LAW. ALL LIMITATIONS AND DISCLAIMERS STATED IN THIS SECTION 12ALSO APPLY TO CHARMING CHINA’S THIRD-PARTY LICENSORS, PROVIDERS AND SUPPLIERS, AS THIRD-PARTY BENEFICIARIES OF THIS AGREEMENT. THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE INACCURACY EXCLUSION OR LIMITATION OF DATA; CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU. The Customer agrees to indemnify, defend and hold harmless CHARMING CHINA, its affiliates, officers, directors, employees, consultants, representatives and agents from any and all third-party claims, liability, loss, damages and/or costs (iiiincluding, but not limited to, attorney’s fees and costs) THE CONTENT OF INFORMATION OR DATA PROVIDED OR TRANSMITTED BY CLIENT OR ANY END USER; (iv) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CLIENTarising from all use of CHARMING CHINA services, END USERS OR THEIR EMPLOYEES OR AUTHORIZED AGENTS; (v) INTEROPERABILITY OF SPECIFIC APPLICATIONS; (vi) CLIENT OR AN END USERS INABILITY TO ACCESS OR INTERACT WITH THE APPLICATION SERVICES THROUGH THE INTERNET; (vii) PERFORMANCE IMPAIRMENTS CAUSED ON THE INTERNET; OR (viii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODSany violation of the terms of service or infringement of any intellectual property or of other rights of any person or entity. The terms of service will inure to the benefit of CHARMING CHINA, SERVICESits successors, OR TECHNOLOGYassigns, and licensees.

WARRANTIES, LIMITATION OF LIABILITY AND INDEMNIFICATION. A. TRG Arts represents and warrants to Client that the Application Services shall be provided in a workmanlike(a) LICENSEE ACKNOWLEDGES, professional mannerUNDERSTANDS AND ACCEPTS THAT ICE MAKES NO WARRANTY WHATSOEV­ER TO LICENSEE AS TO THE SERVICES, EXPRESS OR IM­PLIED, AND THAT THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS AT LICENSEE’S SOLE RISK. Unless otherwise set forth hereinICE EXPRESSLY DISCLAIMS ANY IMPLIED WARRAN­TIES OF MERCHANT­ABIL­ITY OR FITNESS FOR A PARTICU­LAR PURPOSE. NEITHER ICE, all Application Services are provided on an “As- is” basisITS AFFILIATES, NOR THEIR RESPECTIVE DIRECTORS, MANAGERS, OFFICERS, SUBSIDIARIES, SHAREHOLDERS, EMPLOY­EES OR AGENTS MAKE ANY WARRANTY WITH RESPECT TO, AND NO SUCH PARTY SHALL HAVE ANY LIABILITY TO, LICENSEE FOR (I) THE ACCURA­CY, ADEQUACY, TIMELI­NESS, COM­PLETE­NESS, COMPLIANCE WITH RULES OR REGULATIONS, NONINFRINGEMENT, RELIABILITY, SEQUENCING, PERFOR­MANCE OR CONTINUED AVAILABILITY OF THE SERVICES OR (II) DE­LAYS, OMIS­SIONS OR INTERRUPTIONS THERE­IN OR (III) COURSE OF DEALING, USAGE OR TRADE PRACTICE, AND FURTHERMORE, NO GUARANTEE IS MADE AS TO THE EFFICACY OR VALUE OF ANY SERVICES PERFORMED OR SOFTWARE, DATA, CODE OR OTHER MATERIALS DEVELOPED. TRG Arts disclaims all other warranties, express or implied, including but not limited to those regarding performance, merchantability, infringement, title, or fitness for a particular purpose. TRG Arts does not warrant that the Data Center Application or Application Services will meet Client’s, or as applicable End User’s requirements or will operate in the combinations which may be selected for use by Client, or as applicable End Users, or that operation of the Data Center Application or Application Services will be uninterrupted or error-free, or that data stored by the Data Center Application or Application Services will not be lost. TRG ARTS NEITHER ICE NOR LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE TO CLIENT LICENSEE FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY THIRD PARTY, INCLUDING END USERS, FOR: (i) ANY DAMAGE THAT CLIENT TYPE WHICH LICENSEE MAY SUSTAIN OR ANY END USER MAY SUFFER ARISING OUT INCUR IF THE QUANTITY OR CHARACTER OF THE USE OF UTILITY PROVIDED ELECTRIC SERVICE IS CHANGED, IS NO LONGER AVAILABLE, OR IS NO LONGER SUITABLE FOR LICENSEE’S REQUIREMENTS. FURTHER, LICENSEE ACKNOWLEDGES THAT ICE IS PROVIDING THE INABILITY SERVICES AND QUESTIONS OR ISSUES REGARDING THE SERVICES MUST BE DIRECTED TO USE ANY APPLICATION SERVICE UNLESS SUCH DAMAGE IS CAUSED BY AN INTENTIONAL OR A GROSSLY NEGLIGENT ACT OF TRG ARTS; (ii) ANY LOSS OF DATA OR THE INACCURACY OF DATA; (iii) THE CONTENT OF INFORMATION OR DATA PROVIDED OR TRANSMITTED BY CLIENT OR ANY END USER; (iv) SERVICE IMPAIRMENTS CAUSED BY ACTS WITHIN THE CONTROL OF CLIENT, END USERS OR THEIR EMPLOYEES OR AUTHORIZED AGENTS; (v) INTEROPERABILITY OF SPECIFIC APPLICATIONS; (vi) CLIENT OR AN END USERS INABILITY TO ACCESS OR INTERACT ICE. LICENSEE UNDERSTANDS THAT ICE WILL PROVIDE POWER AND COOLING SERVICES IN CONNECTION WITH THE APPLICATION SERVICES THROUGH BUT IN NO WAY DOES ICE WARRANT, REPRESENT THE INTERNET; (vii) PERFORMANCE IMPAIRMENTS CAUSED ON ADEQUACY OR GUARANTEE THE INTERNET; SUFFICIENCY OF THE POWER SUPPLY OR (viii) COOLING SERVICE. NEITHER ICE NOR LANDLORD SHALL BE LIABLE OR RESPONSIBLE TO LICENSEE FOR ANY LOSS, DAMAGE OR EXPENSE OF ANY TYPE WHICH LICENSEE MAY SUSTAIN OR INCUR IF THE COST QUANTITY OR CHARACTER OF PROCUREMENT OF SUBSTITUTE GOODSTHE UTILITY PROVIDED ELECTRIC SERVICE CHANGED, SERVICESIS NO LONGER AVAILABLE, OR TECHNOLOGYNO LONGER SUITABLE FOR LICENSEE’S REQUIREMENTS.