4.2 Indemnification: Subject to Section 4.3, each party ("Indemnitor") shall defend, indemnify and hold the other party and its respective shareholders, directors, officers, employees, subcontractors and agents ("Indemnitee") harmless against all claims, suits, costs, damages liabilities, expenses (including court costs and reasonable attorney's fees), settlements and judgments incurred, claimed or sustained by third parties (“Claims”) for the Indemnitor's breach of this Agreement and for breach of a third party's Intellectual Property rights, provided that: (a) Indemnitee notifies Indemnitor in writing within a commercially reasonable time after its receipt of notice of any Claim; (b) Indemnitor has sole control of the defense and all related settlement negotiations (except that the Indemnitor shall not settle any Claim in any manner which would admit fault by the Indemnitee without Indemnitee’s reasonable consent); and (c) Indemnitee provides Indemnitor with reasonable assistance, information and authority necessary to perform its obligations under this Section. Indemnitee may participate in the defense of a Claim at Indemnitee’s expense, and such participation shall not waive or reduce any obligations on the Indemnitor under this Section.
4.3 Limitations of Liability:
(a) Nothing below shall operate to exclude or limit liability for which liability cannot be excluded or limited under law (together the "Excluded Losses").
(b) Except in respect of the Excluded Losses, the liability of each Party to any other Party in contract, tort (including negligence or breach of statutory duty, misrepresentation or otherwise) or for any other common law or statutory cause of action or otherwise arising by reason of or in connection with this Agreement and each EIO shall be limited to the Payouts fees paid by Advertiser to Media Partner through Impact Radius pursuant to EIOs.
(c) Except in respect of the Excluded Losses, neither Party shall be liable to the other in contract, tort (including negligence) or otherwise for any: any loss of actual or potential profits, contracts or customers; loss of data and undertaking data or other restoration; loss of reputation; any other indirect, consequential, special, punitive, exemplary damages whether arising from negligence, breach of contract or otherwise.
5.1 Waiver of Remedies: No forbearance or delay by either Party in exercising or enforcing the provisions of this Agreement or an EIO shall prejudice or restrict the rights (whether provided by this Agreement, an EIO or by law) of that Party nor shall any waiver of its rights operate as a waiver of any subsequent breach. No right, power or remedy herein conferred upon or reserved for either Party or available by law is exclusive of any other right, power or remedy available to that Party (whether under this Agreement, an EIO or at law) and each such right, power or remedy shall be cumulative.
5.2 Assignment: Either Party may assign any or all of its rights under this Agreement or an EIO, or transfer or sub-contract any or all of its obligations under this Agreement or an EIO, upon notification to the other Party, subject to the non-assigning Party’s right to terminate.
5.3 Audit rights: Each Party agrees to maintain adequate books and records relating to its compliance with the terms of this Agreement during the term of this Agreement and for a period of one (1) year thereafter. Copies of such records shall be made available to the other party upon written request. An officer of the party supplying the records shall certify the authenticity of the copies.
5.4 Notices: All notices which are required to be given under this Agreement shall be in writing. Notices of termination of an EIO by Advertiser for convenience shall be made via the Platform. All other notices shall be sent to the postal address or facsimile number of the Party as provided via the Platform, as such address may be updated from time to time. Any such notice may be delivered personally or by first class pre-paid letter (or by air-mail if overseas) or by facsimile transmission, and shall be deemed received, when delivered (if by hand); or if by mail 5 (five) days after deposit in mail, if by facsimile transmission, when successfully dispatched in full.
5.5 Governing Law and Venue: Unless the Parties mutually agree otherwise in writing, this Agreement, Schedule 1 and each EIO shall be governed by the laws of the state where an action is filed by either party to adjudicate or interpret this Agreement, on the condition that such an action is brought in an appropriate venue and forum. A party that primarily prevails in an action brought under this Agreement is entitled to recover from the other party its reasonable attorneys' fees and costs.