The Service, Mobile Applications, and all related content and materials are provided on an "as is" basis. To the fullest extent permitted by law, they are provided without warranties of any kind, express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, title and non-infringement, and any warranties arising from course of dealing or usage of trade.
inKind does not warrant that the Service, Mobile Applications, or related content and materials are accurate, complete, reliable, current, or error-free, that they will meet Merchant's requirements, will be available at any particular time or location or without interruption, that defects or errors will be corrected, or are free of viruses or other harmful components. Use of the Service is at Merchant's own risk and Merchant is solely responsible for any loss or damage to property or data that may result.
inKind does not warrant, endorse, guarantee, or assume responsibility for any product or service purchased using a House Account. inKind is not a party to any transaction between an inKind User and a participating Merchant or any third-party provider of products or services.
Some state laws do not allow limitations on implied warranties or the exclusion or limitation of certain damages. If these laws apply, some or all of the above disclaimers, exclusions, or limitations may not be applicable.
4.2. Limitation of Liability
NEITHER PARTY NOR & ITS AFFILIATES WILL BE LIABLE TO THE OTHER PARTY FOR ANY DAMAGES WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, OR DATA) OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER INKIND NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) THE MERCHANT'S INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR THE MERCHANT'S USE OF OR ACCESS TO THE SERVICES, (II) INKIND'S DISCONTINUATION OF THE SERVICES, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY THE MERCHANT IN CONNECTION WITH THIS AGREEMENT OR THE MERCHANT'S USE OF OR ACCESS TO THE SERVICES; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS, OR FAILURE TO STORE ANY DATA, OTHER THAN IN THE CASE OF GROSS NEGLIGENCE, FRAUD OR WILFUL MISCONDUCT. IN ANY CASE, EITHER PARTY AND THEIR AFFILIATES' AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT THE MERCHANT ACTUALLY PAYS INKIND UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE RISE TO THE CLAIM.
4.3. Force Majeure
inKind, Merchant and their respective Affiliates will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond inKind's or Merchant's reasonable control (as applicable), including acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war. In the event the force majeure event continues for a period of more than sixty (60) days, either party may terminate this Agreement upon written notice to the other party.