31. Except for any liability that cannot lawfully be excluded a party will be liable under or in connection with these General Terms only to the extent that the party has breached these General Terms.
32. Subject to clauses 33-36 and 39, and to the extent permitted by law, the maximum liability of each party relating to or in connection with these General Terms will be an amount equal to either:
(a) for liability relating to breach of privacy, confidentiality and security obligations under this Agreement; two times the Charges paid or payable under the relevant Statement of Work during the 12 months immediately before the liability arose; or
(b) for all other liability:
(i) the charges paid or payable under the relevant SOW during the 12 months immediately before the liability arose; less
(ii) any amount paid or payable under that SOW for third party intellectual property rights, equipment or Products to be provided by us.
33. To the extent permitted by law, neither party will be liable for:
(a) any indirect or consequential Loss, even if that party has been advised of the possibility of such Loss; and
(b) any Loss of profit, business, revenue, anticipated savings, goodwill or opportunity; and
(c) the Loss of any third party which is not a Related Company.
34. The limitation set out in clause 32 will not apply if the liability is due to :
(a) a breach of obligations under the intellectual property rights provisions;
(b) fraud; or
(c) a party's failure to pay any amount due and owing under a SOW.
35. Datacom will not be liable due to:
(a) an event or circumstance where you or your personnel, contractors, or representatives have:
(i) acted or omitted to act in way that causes Datacom to breach these General Terms;
(ii) given an instruction, direction or requirement, which would cause or have caused Datacom to breach the law, these General Terms or an agreement between Datacom and a third party; or
(iii) not provided a response or direction to Datacom in the timeframe reasonably requested by Datacom or that is otherwise agreed between the parties.
36. Subject to clause 39, except for any warranties, conditions or guarantees specified in a SOW. to the extent permitted by law, all implied warranties, conditions and guarantees are expressly excluded including as to the quality, state or condition of any goods or Services or their appearance, quality, content or fitness for any particular purpose (including the United Nations Convention on Contracts for the International Sale of Goods 1980 and the Contracts and Commercial Law Act 2017).
37. To the extent permitted by law and the relevant third party terms, we will pass through to you or hold for your benefit all manufacturer’s warranties in respect of the Products.
38. Subject to clause 39, Datacom may, at its sole discretion and in full satisfaction of any liability it has to the you under these General Terms or a SOW, repair or replace any defective deliverable or Product, re-provide the Product or Services or credit the portion of the charges applicable to the Product or Services in respect of any claims accepted.
39. This clause applies only if you are a consumer under the Consumer Guarantees Act 1993 (NZ). If the Products or Services supplied by Datacom are
not of a kind ordinarily acquired for personal, domestic or household use or consumption, then Datacom limits its liability for a breach of any of the conditions, guarantees and warranties implied in this Agreement for the supply of those Products or Services by Datacom to:
(a) for Services: re-supplying the services or paying the costs of resupplying the Services; and
(b) for Products: replacing the Products or supplying equivalent Products; repairing the Products; paying the costs of replacing the Products or acquiring equivalent Products; or paying the costs of repairing the Products.
40. Each party will take reasonable steps to mitigate any Loss for which that party is entitled to bring a claim against the other.
41. You are responsible for ensuring compliance with all applicable laws in the relevant jurisdiction(s).