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a. The Customer acknowledges that, in providing the Services hereunder itGenius Australia may be required to work on the Customer’s data and that it is the Customer’s responsibility to ensure that its data is backed up properly and adequately. In particular, without limitation, it is the Customer’s responsibility to ensure that critical business data is saved externally to Cloud Services. itGenius Australia shall not be liable for any data loss which the Customer suffers before, during or after itGenius Australia have performed any services in relation to Cloud Services or any other Services if such data is not recoverable due to there being no available or proper backup of the Customer’s data.
b. The Customer acknowledges that Cloud Services are hosted services where its data is held by 3rd party companies or their agents, and not by the Customer. It is for the Customer to determine if such a service is suitable for its business given the nature of its business and data. Moreover the Customer acknowledges that under Cloud Services neither Google, Dialpad Inc nor itGenius Australia provide a backup service for any data and that, if it requires such a service, it is responsible for setting up its own service or engaging itGenius Australia to supply the Customer a 3rd party backup solution (such as Backpify). itGenius Australia shall have no liability for the Customer’s failure to do so.
c. itGenius Australia shall not be liable to the Customer for any of the following types of loss or damage, howsoever arising namely: i. any indirect or consequential loss; ii. any loss of profits, anticipated savings, revenue, contracts, goodwill or business; or iii. any loss of data.
d. Without prejudice to the foregoing provisions of this Agreement, should itGenius Australia have any liability to the Customer arising out of Cloud Services howsoever, including from the provision of, or failure to provide, or any delay in providing, or any defects in, Cloud Services, itGenius Australia’s total liability to the Customer in relation to all claims whether arising in contract, negligence or otherwise, shall not exceed the total fees for Cloud Services paid by the Customer to itGenius Australia.
e. Without prejudice to the other limitations in this Agreement, itGenius Australia’s entire liability to the Customer in respect of all claims arising from this Agreement on whatever basis shall not in any event exceed the total amount paid by the Customer under this Agreement.
f. The parties agree that this Clause sets out a reasonable allocation of liability between them in all the circumstances including the availability of insurance and the nature and price of Cloud Services.
g. Notwithstanding the other provisions in this Agreement, itGenius Australia does not exclude or limit its liability under this Agreement for:
h. death or personal injury caused by its negligence or that of its employees or agents; ii. fraud or fraudulent misrepresentation; or iii. any liability the exclusion or limiting of which is forbidden by law.