10.1 All conditions, warranties, representations, indemnities and guarantees with respect to the software and/or the services, or other goods or services that may be provided by Computer Crisis Centre under these Conditions, that may otherwise be implied by statute, law, equity, trade custom, prior dealings between the Parties or otherwise (including, but not limited to, any implied warranty of merchantability, fitness for particular purpose, quiet enjoyment or non-infringement) are hereby expressly excluded.
10.2 Except to the extent specifically provided in these Conditions, Computer Crisis Centre’s sole liability to Customer for any and all breaches of any term or terms of these Conditions, whether express or implied, shall be limited to:
10.2.1 subject to sub-clauses 10.2.2 and 10.2.3, the aggregate amount of the fees and charges paid by the Customer under these Conditions as at the date of the breach;
10.2.2 in relation to software if supplied to Customer as a consumer (as defined in the Trade Practices Act 1974):
(a) the replacement of the software or the supply of equivalent software; or
(b) payment of the cost of replacing the software or acquiring equivalent software; or
(c) the repair of the software or payment of the cost of having the software repaired; and
10.2.3 in relation to services if supplied to Customer as a consumer (as defined in the Trade Practices Act 1974):
(a) the supplying of the services again; or
(b) the payment of the cost of having the services supplied again, as in each case Computer Crisis Centre may elect.
10.3 In no event will Computer Crisis Centre be liable to Customer or to any third party under or in connection with these Conditions or in respect of the use of (or failure or performance of) the software or the supply of the services for:
10.3.1 malfunctions or failures caused directly or indirectly by:
(a) any third party;
(b) actions of Computer Crisis Centre that were expressly or impliedly authorised by Customer, or by Customer’s employees or agents;
(c) accident, misuse or abuse by anyone other than the Computer Crisis Centre;
(d) alteration or modification of the software by anyone other than the Computer Crisis Centre;
(e) products (including any hardware or software) not licensed or supplied by Computer Crisis Centre that are attached to or used with the software;
(f) Customer’s failure to provide a proper operating and working environment for the software;
(g) damage during any movement, relocation or re-installation of the software;
(h) power surge or failure;
(i) acts of God or acts outside Computer Crisis Centre’s control;
(j) any other condition not arising under normal operating conditions; or
(k) normal wear and tear; or
10.3.2 any loss or damage of any nature arising or caused directly or indirectly by any breach of the Customer’s obligations or responsibilities set out in these Conditions.
10.4 Any replacement of parts under warranty will be carried out at the premises nominated by Computer Crisis Centre. The cost and risk of transport of any defective part to the nominated premises is the responsibility of the Customer.
10.5 In no event will Computer Crisis Centre be liable to Customer or to any third party under or in connection with these conditions or in respect of the use of (or failure or performance of) the software or the supply of the services for:
10.5.1 any loss of profit, business interruption, loss of or damage to goodwill, and/or any expectation benefit;
10.5.2 Customer’s liability to any third party; or
10.5.3 incidental, consequential, special, exemplary or punitive damages of any nature, howsoever arising or caused, including without limitation the breach of these Conditions or any expiration or termination of these Conditions, whether such liability is asserted on the basis of statute, contract, tort (including negligence or strict liability), equity or otherwise, even if Computer Crisis Centre has been advised of the possibility of such loss or damage.
10.6 Computer Crisis Centre will not be liable for any loss or damage suffered by the Customer where Computer Crisis Centre has failed to meet any delivery date or cancels or suspends the supply of goods or services.
10.7 Nothing contained in these Conditions excludes, restricts or modifies any:
10.7.1 implied condition, warranty or other implied obligation in relation to these Conditions or the software and services where pursuant to applicable law to do so is unlawful or void; or
10.7.2 liability for fraud or deceit; or
10.7.3 liability for death or personal injury caused by the negligence of either Party.