Limitation of Liability
Indirect Damages. Except as set forth below, neither party shall be liable for any indirect, special, punitive or consequential damages, or the loss of profits regardless of the form of action, even if advised of the possibility of such damages. Each party acknowledges that this limitation reflects an informed, voluntary allocation between the parties of the risks (known and unknown) that may exist in connection with this agreement and constitutes a substantial portion of the consideration exchanged between the parties with respect to this agreement.
Aggregate Liability. Except as set forth below, in no event will either parties aggregate liability for any damages arising from or related to this agreement, whether in contract or in tort or under any other legal theory including strict liability and negligence, exceed the aggregate amounts paid by Customer to AwareX under this agreement for the Twelve (12) months prior to the month in which the most recent event giving rise to liability occurred. The foregoing shall not release Customer from its obligations to pay all amounts due hereunder with respect to the periods up to the date of termination or expiration of this agreement.
The disclaimer set forth in paragraph 1 above and the liability cap set forth in paragraph 2 above shall not exclude or limit the liability of either party in the case of: (a) the payment obligations set forth in the indemnification provisions in this Agreement; (b) fraud or willful misconduct of either party; (c) death or personal injury or damage to real or tangible property caused by either party’s negligence, misconduct or breach; (d) breach of the usage restrictions set forth in Section 3; or (e) breach by either party of its confidentiality obligations as set forth in this Agreement.