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messaging device being turned off or outside the coverage area or
having a weak battery. This section applies notwithstanding to any other
provisions of this Agreement. AMBIENT AND ITS NETWORK AFFILIATES
SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF (i) LATENT OR
PATENT EQUIPMENT OR SERVICES DEFECTS, OR (ii) LOSS OF USE OF ANY
OF THE EQUIPMENT OR SERVICES, OR (iii) THE CONTENT OF ANY MESSAGE,
OR (iv) ANY FAILURE OR DELAY IN THE TRANSMISSION OR RECEIPT OF A
MESSAGE, OR (v) ANY INTERCEPTION OR UNAUTHORIZED DISCLOSURE OF
A MESSAGE. AMBIENT AND ITS NETWORK AFFILIATES SHALL NOT BE LIABLE
FOR LOST PROFITS OR EXEMPLARY, SPECIAL, INCIDENTAL, CONSEQUENTIAL
OR PUNITIVE DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THIS
AGREEMENT, THE EQUIPMENT OR THE SERVICES, EVEN IF AMBIENT AND
ITS NETWORK AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. IF ANY LIMITATION OF LIABILITY SET FORTH HEREIN IS
UNENFORCEABLE OR INAPPLICABLE FOR ANY REASON, AMBIENT AND ITS
NETWORK AFFILIATES MAXIMUM AGGREGATE LIABILITY TO THE CUSTOMER
UNDER ANY LEGAL THEORY (INCLUDING ITS OWN NEGLIGENCE) FOR
DAMAGES ARISING DIRECTLY OR INDIRECTLY OUT OF THIS AGREEMENT,
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THE EQUIPMENT OR THE SERVICES WILL NOT EXCEED THE LESSER OF THE
ACTUAL DIRECT DAMAGES SUFFERED BY CUSTOMER OR THE AMOUNT
PAID BY CUSTOMER FOR THE SPECIFIC UNIT OF EQUIPMENT OR SERVICE
AND SERVICE PERIOD OUT OF WHICH THE CLAIM AROSE.
14. Indemnification:
The Customer will indemnify and hold harmless Ambient and its affiliates
and their agents, employees, officers, directors, successors and assigns from
and against all liabilities and expenses, including reasonable attorneys’ fees,
arising out of a Customer Default or any claim by anyone not a party to this
Agreement and involving the use, condition or operation of any equipment
or the use of the services. This indemnity shall survive the termination of
this Agreement.
15. Applicable Law:
THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF DELAWARE
(EXCLUDING CONFLICTS OF LAW PRINCIPLES) AND WILL, TO THE MAXIMUM
EXTENT POSSIBLE, BE DEEMED TO CALL FOR PERFORMANCE IN DELAWARE.
EACH OF THE PARTIES WAIVES, TO THE FULLEST EXTENT PERMITTED BY
LAW, ANY RIGHT TO TRIAL BY JURY AND ANY CLAIM THAT (i) SUCH PARTY