2. Appointment
2.1 Subject to these Terms and Conditions and in consideration of the payment of the Charges, MyGARD undertakes to use reasonable endeavours to provide the Services to the Customer for the duration of the Agreement.
3. Limitation of liability
3.1 MyGARD shall indemnify the Customer for personal injury or death caused by the negligence of MyGARD’s and its Agents’ employees, in connection with the provision of the Services.
3.2 Subject to this clause, in no event shall MyGARD be liable for any claim:
3.2.1 for damages resulting from loss of data, goodwill, profits, loss of anticipated savings, nor for any damages that are an indirect or secondary consequence of any act or omission of MyGARD and its Agents, whether such damages were reasonably foreseeable or actually foreseen;
3.2.2 unless the Customer gives written notice of such claim to MyGARD within six months of the date on which the Customer firstbecame aware, or ought reasonably to have become aware, of the facts giving rise to such claim; or
3.2.3 made by the Customer if the Customer shall be in breach of any of its obligations under these Terms and Conditions where such breach is a material and contributing cause of the loss, damage or liability giving rise to the claim.
3.3 Except as provided above in the case of personal injury and death, MyGARD’s maximum liability to the Customer for any causewhatsoever (whether in the form of a refund, the additional cost of remedial services or otherwise) will be for direct costs and damages only, and will be limited to the lesser of:
3.3.1 the actual amount of damage or loss suffered by the Customer; or
3.3.2 the actual amount recovered by MyGARD under any policies of insurance in force from time to time; provided that if any such costs and damages arises as a result, wholly or in part, of the fault of the Customer (including its employees, agents and contractors), the amount payable by reason of this clause shall be reduced by such proportion as is just and equitable having regard to the degree to which the Customer is responsible.
3.4 MyGARD undertakes to effect and maintain a policy of insurance in respect of claims made by the Customer arising from MyGARD’s negligence or breach of these Terms and Conditions for an insured sum of not less than £1,000,000.
3.5 All liability that is not expressly assumed in these Terms and Conditions is hereby excluded. These limitations will apply regardless ofthe form of action, whether under statute, in contract, tort, including negligence, or any other form of action. For the purposes of thisclause, “MyGARD” includes its employees, sub-contractors, Agents and suppliers. The Customer acknowledges that MyGARD’s employees, sub-contractors, Agents and suppliers shall have the benefit of the limits and exclusions of liability set out in this clause in terms of the Contracts (Rights of Third Parties) Act 1999. Nothing in these Terms and Conditions shall exclude or limit liability for fraudulent misrepresentation.
3.6 All warranties not expressly stated in these Terms and Conditions, including any implied warranties of satisfactory quality or fitness forpurpose are hereby excluded to the fullest extent permitted by the applicable law. In the absence of fraud, no oral or written information or advice given by MyGARD or its Agents shall create a warranty or give rise to any other liability other than is given in these Terms
and Conditions.
3.7 The Customer acknowledges and agrees that the indemnities and limitations of liability set out in these Terms and Conditions are fairand reasonable having regard to the facts that:
3.7.1 the potential losses that might or could be caused as a result of any breach of the terms of these Terms and Conditions are greatly in excess and wholly disproportionate to the amount being charged by MyGARD for the provision of the Services;
3.7.2 MyGARD has no responsibility for, the installation of the Alarm System at the Protected Premises; and
3.7.3 MyGARD has no control over the actions of Respondents.
3.8 Recognise that it is the Customer’s responsibility to maintain adequate insurance cover and security arrangements for the Protected Property and its contents.
3.9 If any such loss or damage occurs or any liability arises as a result wholly or in part at the fault of the Customer, its employees or agents, the amount which would otherwise have been payable shall be reduced to such an extent as it is just and equitable, having regard to the degree to which such fault is responsible for the loss, damage or liability in question.
4. Indemnity
4.1 The Customer shall indemnify and keep indemnified MyGARD against any claims in respect of loss, damage or injury to any person or property caused or resulting from a breach of the Customer’s obligations as set out in these Terms and Conditions or as a result of the Customer’s negligence.
4.2 The Customer agrees to indemnify and hold harmless MyGARD in respect of:
4.2.1 all claims made against MyGARD by any person or body (other than the Customer) of whatever nature for death or injury arising from any negligence on the part of MyGARD, its servants, agents or anyone else for whom MyGARD is responsible in law;
4.2.2 all claims, loss or actions brought against MyGARD arising from the Customer’s use of the internet access facility to update information held on computer systems within the AMS. It is further agreed that where such a facility is granted to the Customer either for the direct input by the Customer into the Security Response Instructions or in writing to MyGARD, MyGARD accepts no
responsibility for its accuracy;
4.2.3 all claims and expenses incurred by MyGARD in excess of MyGARD’s contractual limit of liability where such claim and expenses arise, wholly or in part, as a result of the act or omission of the Customer (including its employees, agents and contractors).
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