Clarification of Term. The Parties agree that the use of the word "will" in this Agreement is to be interpreted as "has a duty to," or more broadly, "is required to."
Clarification of Term. “Losses”. Except in the case of Fraud, the Parties acknowledge and agree that in no event shall the TopCo Sellers be liable to a Buyer Indemnified Party for any punitive, exemplary or special damages unless such damages were actually assessed against the Buyer Indemnified Party in connection with a Third-Party Action. In addition, the term “Losses” as used in this Agreement shall only include consequential damages, damages for lost profits or any similar measure of damages if (i) the Buyer Indemnified Party seeking such damages is able to prove all elements necessary for recovery of such damages under Delaware law, or (ii) if such damages were actually assessed against the Buyer Indemnified Party in connection with a Third-Party Action. (f) Insurance Proceeds. The amount of any Loss for which indemnification is provided under this Article IX shall be net of any amounts actually recovered by a Buyer Indemnified Party under insurance policies with respect to such Loss, less such Buyer Indemnified Party’s out-of-pocket costs of obtaining or receiving such recovery, including any deductible paid in obtaining such proceeds and increased costs of insurance related to the making of such claim, including retrospective premium adjustments and experienced based premium adjustments. In the event that an insurance recovery is made by any Buyer Indemnified Party with respect to any Losses for which such Person has been indemnified hereunder and has received funds in the amount of the Losses or portion thereof, then a refund equal to the aggregate amount of the insurance recovery (less such Buyer Indemnified Party’s reasonable out-of-pocket costs of receiving such recovery, including any deductible paid in obtaining such proceeds and increased costs of insurance related to the making of such claim), but in no event in excess of the amount of such indemnification payment, shall be made promptly to the TopCo Sellers (in accordance with their respective Indemnity Pro Rata Portion). In addition, in the event Buyer obtains actual knowledge that a Buyer Indemnified Party is entitled to recovery under the E&O Tail Policy and/or the D&O Tail Policy (in each case, as defined under the Company Purchase Agreement), Buyer shall use commercially reasonable efforts to submit to the relevant insurance provider a corresponding claim for recovery. (g)
