8. LIABILITY AND INDEMNIFICATION
8.1 MClimate’s liability under the Agreement is limited to errors resulting from a deviation from the agreed specifications or other express requirements set forth in the Agreement and which causes a material incorrect or inadequate result or functioning (hereinafter referred to as “Defect”). Faults or shortcomings attributable to the same circumstances or substantially the same circumstances shall, for the sake of clarity, be considered attributable to one and the same Defect.
8.2 MClimate’s liability is further limited to Defects which appear within a period of twenty four (24) months from the date of delivery of Product. If the Product is used more intensely than agreed, the period shall be reduced proportionately.
8.3 Except for what has been set out in Section 8.1, all warranties (including without limitation warranties related to fitness for general or particular purpose or warranties on freedom to operate in relation to any project results, as applicable), are hereby excluded. Hence, Section 8.1 does exhaustively regulate MClimate’s liability for defects or deviations.
8.4 Subject to Section 8.5, in the event of a Defect proven by the Customer, MClimate shall, at its own discretion either: (i) deliver new Product, or (ii) perform remedial actions. Such remedial actions shall be performed within a reasonable period (including time necessary to investigate complaints and alleged faults or shortcomings). Remedial actions shall be performed at MClimate’s premises in Sofia or Veliko Tarnovo in Bulgaria, or at any other location which MClimate may choose. Transportation costs shall be borne by the Customer.
8.5 In the event of an erroneous complaint, the Customer shall pay compensation to MClimate for work performed and costs incurred.
8.6 MClimate shall not be liable towards the Customer for any damage to person or property or for any consequential or indirect damage or loss, including but not limited to loss of profit, loss of revenue, loss of data, loss of goodwill or loss of other economic advantage. MClimate shall neither be liable for any cost, loss or damage which is the result of any material provided by the Customer or a consequence of MClimate having performed work in accordance with the Agreement or the Customer’s instructions.
8.7 MClimate shall be liable to pay damages for damage incurred only if caused by gross negligence or intent by MClimate. MClimate’s liability for damages whether arising in contract, tort, by negligence or otherwise shall be limited to a maximum amount equivalent to fifteen (15) per cent of the purchase price for the defective Product.
8.8 MClimate is not responsible for failure to meet a requirement, if the failure is caused by: (i) any modification by Customer without MClimate’s written consent; (ii) circumstances outside MClimate’s area of responsibility such as failure of communications or circumstances which relate to network and infrastructure or other products or services from third parties which are procured directly from a third party by Customer; (iii) normal wear and tear; (iv) faulty maintenance or incorrect installation on the part of the Customer; (v) any circumstance referred to as Force Majeure; or (vi) other use by the Customer contrary to the Agreement (including instructions set forth in operation manuals, etc.).
8.9 If the Customer becomes aware or should reasonably have become aware of a breach of the Agreement which may result in a claim, it shall inform MClimate in writing within thirty (30) days. If the Customer does not inform MClimate within the stipulated period, it shall lose its right to claim compensation or assert any other remedy for that particular breach.
8.10 If components or software from a third party are included in MClimate’s delivery, the third party’s special provisions with respect to such products or software shall take precedence, as applicable. MClimate shall have no liability due to the Customer’s use contrary to the third party’s special provisions.
8.11 The Customer hereby agrees to indemnify, defend and hold harmless MClimate, from all cost, loss or damage arising out of or related to any breach of this Agreement by the Customer or resulting from any suit or action of any third party against MClimate resulting from MClimate having performed work in accordance with the Customer’s instructions.
8.12 This Article 8 does exhaustively regulate MClimate’s liability and Customer’s remedies related to Defect.