Allocation of Liability It is expressly understood and agreed that the Seller shall be liable to third parties for any and all obligations, claims, losses, damages, liabilities, and expenses to the extent arising out of events, contractual obligations, acts, or omissions of the Seller that occurred in connection with the ownership or operation of the Property during the period in which the Seller owned the Property prior to the Closing and the Purchaser shall be liable to third parties for any and all obligations, claims, losses, damages, liabilities and expenses to the extent arising out of events, contractual obligations, acts, or omissions of the Purchaser that occur in connection with the ownership or operation of the Property during the period in which the Purchaser owns the Property after the Closing. The provisions of this Section 12.1 shall survive the Closing.
Limitation of Liability No provision hereof, in the absence of any affirmative action by the Holder to exercise this Warrant to purchase Warrant Shares, and no enumeration herein of the rights or privileges of the Holder, shall give rise to any liability of the Holder for the purchase price of any Common Stock or as a stockholder of the Company, whether such liability is asserted by the Company or by creditors of the Company.
Indemnity; Limitation of Liability As an officer of the Company, the Executive shall be entitled to indemnity and limitation of liability as provided pursuant to the Company’s Articles of Incorporation, bylaws and any other governing document, as the same shall be amended from time to time.
Limitation of Liabilities TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR ANY BREACHES OF OR FOR LIABILITY ARISING OUT OF SECTION 3 (RESTRICTIONS), 5 (CONFIDENTIALITY) OR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF (UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE) FOR: (a) ANY LOST PROFITS, LOST BUSINESS OPPORTUNITIES, LOST DATA, OR SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, OR (b) AN AMOUNT THAT EXCEEDS THE TOTAL FEES PAYABLE TO XXXXXXXX.XX FOR THE RELEVANT SAAS PRODUCT, DATA PRODUCT, OR PROFESSIONAL SERVICES DURING THE TWELVE-MONTH PERIOD BEFORE THE EVENT GIVING RISE TO SUCH LIABILITY. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY SPECIFIED IN THIS AGREEMENT. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SPECIFIED IN THIS SECTION 11.
WARRANTY; LIMITATION OF LIABILITY (a) Supplier warrants that all PET Preforms sold to Purchaser (i) shall be free from defects in workmanship and materials, except for any defects arising out of actions taken by or at the direction of Purchaser or materials provided by or on behalf of Purchaser and (ii) shall comply with the historical specifications for Existing PET Preforms and with any agreed upon specifications for New PET Preforms. Supplier’s liability under this warranty, whether in contract or tort, shall be limited exclusively to the repayment of the purchase price of the defective PET Preforms. Supplier will make no other warranties with respect to the PET Preforms. OTHER THAN THE ABOVE WARRANTY, SUPPLIER MAKES NO WARRANTY, WHETHER OF MERCHANTABILITY, FITNESS OR OTHERWISE, EXPRESS OR IMPLIED, IN FACT OR BY LAW, AND SUPPLIER SHALL HAVE NO FURTHER OBLIGATION OR LIABILITY UNDER THE ABOVE WARRANTY OR WITH RESPECT TO THE PET PREFORMS. SUBJECT TO THE FOLLOWING SENTENCE, SUPPLIER SHALL IN NO EVENT BE LIABLE FOR PUNITIVE, CONSEQUENTIAL OR INCIDENTAL DAMAGES.
(b) Purchaser agrees to waive all claims for shortages in the PET Preforms ordered and received hereunder unless such claims are submitted in writing to Supplier within 30 days after receipt of notice from the Constar Customer of such shortage.
(c) Subject to the above provisions, Purchaser shall not bring any other action arising hereunder unless such action is brought within one year after the date such cause of action accrues.
(d) Supplier shall not be liable for, and Purchaser assumes responsibility for, all personal injury and property damage resulting from the handling, possession, use or resale of the PET Preforms produced hereunder after such PET Preforms are delivered to the Constar Customer, whether the same is used alone or in combination with other substances, except to the extent any such personal injury or property damage results from the willful misconduct of Supplier.
EXCLUSION OF LIABILITY All statements made in the Proclamation of Sale and Conditions of Sale or otherwise relating to the Property are made without responsibility on the part of the Assignee/Bank, the Solicitors and Auctioneers or either of them. No such statement may be relied upon as a statement or representation of fact. All bidders must satisfy themselves by inspection or otherwise as to the correctness of any such statements and neither the Assignee/Bank, the Solicitors, the Auctioneer nor any person in their employment has any authority to make or give any representation or warranty whatsoever in relation to the Property.
Disclaimers and Limitation of Liability EXCEPT AS EXPRESSLY SET FORTH HEREIN, ALL SERVICES TO BE PROVIDED BY FLG AND FLG MEMBER (FOR PURPOSES OF THIS PARAGRAPH 6, COLLECTIVELY “FLG”) HEREUNDER ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER. CLIENT RECOGNIZES THAT THE “AS IS” CLAUSE OF THIS AGREEMENT IS AN IMPORTANT PART OF THE BASIS OF THIS AGREEMENT, WITHOUT WHICH FLG WOULD NOT HAVE AGREED TO ENTER INTO THIS AGREEMENT. FLG EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, TERMS OR CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, REGARDING THE PROFESSIONAL SERVICES, INCLUDING ANY, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE AND INFRINGEMENT. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT REGARDING THE SERVICES PROVIDED HEREUNDER SHALL BE DEEMED A WARRANTY FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF FLG WHATSOEVER. IN NO EVENT SHALL FLG BE LIABLE FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, UNDER ANY CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO: LOST PROFITS; REVENUE OR SAVINGS; WAIVER BY CLIENT, WHETHER INADVERTENT OR INTENTIONAL, OF CLIENT’S ATTORNEY-CLIENT PRIVILEGE THROUGH CLIENT’S DISCLOSURE OF LEGALLY PRIVILEGED INFORMATION TO FLG; OR THE LOSS, THEFT, TRANSMISSION OR USE, AUTHORIZED OR OTHERWISE, OF ANY DATA, EVEN IF CLIENT OR FLG HAVE BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY THEREOF. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, FLG’S AGGREGATE CUMULATIVE LIABILITY HEREUNDER, WHETHER IN CONTRACT, TORT, NEGLIGENCE, MISREPRESENTATION, STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LAST TWO (2) MONTHS OF FEES PAYABLE BY CLIENT UNDER PARAGRAPH 2(A) OF THIS AGREEMENT. CLIENT ACKNOWLEDGES THAT THE COMPENSATION PAID BY IT UNDER THIS AGREEMENT REFLECTS THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT FLG WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. THIS PARAGRAPH SHALL NOT APPLY TO EITHER PARTY WITH RESPECT TO A BREACH OF ITS CONFIDENTIALITY OBLIGATIONS.
A. As a condition for recovery of any amount by Client against FLG, Client shall give FLG written notice of the alleged basis for liability within ninety (90) days of discovering the circumstances giving rise thereto, in order that FLG will have the opportunity to investigate in a timely manner and, where possible, correct or rectify the alleged basis for liability; provided that the failure of Client to give such notice will only affect the rights of Client to the extent that FLG is actually prejudiced by such failure. Notwithstanding anything herein to the contrary, Client must assert any claim against FLG by the sooner of: (i) ninety (90) days after discovery; (ii) ninety (90) days after the termination of this Agreement; (iii) ninety (90) days after the last date on which the Services were performed; or, (iv) sixty (60) days after completion of a financial or accounting audit for the period(s) to which a claim pertains.
Assumption of Liability Notwithstanding any provision in this Agreement to the contrary, Licensee shall be solely responsible for any product liability, liability for death, illness, personal injury, improper business practice or any other statutory liability or any other liability under any law or regulation in respect of the Compound, Product and/or Licensed Product.
Disclaimer; Limitation of Liability IN NO EVENT WILL COMPANY BE LIABLE TO YOU FOR (A) ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR EXTRA- CONTRACTUAL DAMAGES OF ANY KIND; OR (B) ANY LOSS OF DATA OR BUSINESS, DIMINUTION IN VALUE, LOSS OF PROFITS OR REVENUE, OR BUSINESS INTERRUPTION, REGARDLESS OF LEGAL THEORY (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), WHETHER OR NOT FORESEEABLE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT TO THE EXTENT LIMITED BY APPLICABLE LAW, AND REGARDLESS OF THE BASIS FOR ANY CLAIM BY YOU (EVEN IF BASED ON NEGLIGENCE), OUR MAXIMUM AGGREGATE LIABILITY UNDER OR RELATED TO THIS AGREEMENT OR ITS SUBJECT MATTER IS LIMITED TO $50.00 USD. THE LIMITATIONS IN THIS SECTION 5 (DISCLAIMER; LIMITATION OF LIABILITY) WILL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE. YOU ARE SOLELY RESPONSIBLE FOR ANY CONTENT, APPLICATION OR NON- COMPANY SOFTWARE THAT YOU LOAD INTO OR CREATE WITHIN THE EVALUATION ENVIRONMENT, AND AGREE, AT YOUR SOLE COST AND EXPENSE, TO DEFEND US AGAINST ANY CLAIM AND INDEMNIFY US FROM ANY DAMAGES, LIABILITIES, COSTS AND EXPENSES OR THE SETTLEMENT AGREED TO BY YOU, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY SUCH CONTENT, APPLICATION OR NON- COMPANY SOFTWARE. WE ARE NOT RESPONSIBLE FOR THE SECURITY OF ANY CONTENT, APPLICATION OR SOFTWARE THAT YOU LOAD INTO OR CREATE WITHIN THE EVALUATION ENVIRONMENT.
Allocation of Liabilities (a) The parties agree that in the event that liabilities are incurred by any party hereto or any Subsidiary thereof directly relating to, arising out of or resulting from a final, non-appealable judgment being entered, or any settlement permitted hereby being entered into, in connection with the Lawsuit, such liabilities ("IRI Liabilities") shall be allocated among the parties as follows:
(i) ACNielsen agrees to assume exclusive liability for the IRI Liabilities up to the ACN Maximum Amount; and
(ii) Cognizant and D&B each agree to assume exclusive liability for 50% of any IRI Liabilities not payable by ACNielsen pursuant to this Agreement.
(b) No later than five business days after the date on which any IRI Liabilities are incurred, ACNielsen shall give notice to each of Cognizant and D&B of the amount of such IRI Liabilities which ACNielsen will then pay (such amount, the "ACN Payment") and of the amount which ACNielsen has determined to be the ACN Maximum Amount, and ACNielsen will deliver the ACN Payment to Counsel of Record for delivery to the plaintiff in the Lawsuit. Each of Cognizant and D&B agrees to pay to the plaintiff in the Lawsuit on the Payment Date an amount equal to 50% of the excess (if any) of (x) the aggregate amount of the IRI Liabilities over (y) the ACN Payment (such amount, the "Cognizant/D&B Payment"). In the event Cognizant or D&B disputes or disagrees with ACNielsen's determination of the ACN Maximum Amount, the dispute shall be resolved and the ACN Maximum Amount determined as described in Section 2.2.
(c) Upon the payment of the Cognizant/D&B Payment pursuant to the immediately preceding sentence, ACNielsen shall issue a note (an "ACN Note") to each of Cognizant and D&B. The principal amount of each ACN Note shall be equal to the Note Amount, as defined below, and each such ACN Note shall be in the form of Schedule A hereto. Interest on the Note Amount as finally determined for each ACN Note shall accrue at a rate equal to the rate of interest per annum publicly announced from time to time by The Chase Manhattan Bank as its prime rate in effect at its principal office in New York City and shall be payable at maturity. For purposes hereof, the "Note Amount" of each Note shall initially be equal to the Cognizant/D&B Payment, provided, however, (i) that upon the determination of the ACN Maximum Amount, if the Note Amount is greater than 50% of the difference between the ACN Maximum Amount and the ACN Payment, then the Note Amount shall be reduced to and shall equal 50% of such difference, and (ii) that upon receipt of the aggregate amount of proceeds generated by any Recapitalization Plan (as defined below) upon completion thereof in accordance with the first sentence of Section 2.2(g), if the Note Amount (after giving effect to any adjustment pursuant to clause (i)) is greater than 50% of the amount of such proceeds, then the Note Amount shall be reduced to and shall equal 50% of the amount of such proceeds. The Note Amount, together with accrued and unpaid interest thereon, shall be payable upon the earlier of (x) the completion of the Recapitalization Plan, provided, however, that if the Recapitalization Plan is structured to generate proceeds which are receivable by ACNielsen at different times without being contingent upon the completion of any other aspect of the Recapitalization Plan, then at each time that proceeds are so received, 50% of such proceeds shall be payable to each of Cognizant and D&B, and the receipt by Cognizant and D&B of their respective share of such proceeds shall reduce the then applicable Note Amount accordingly, and (y) the declaration by the Payee of an ACN Note (as defined therein) that such Note Amount and interest thereon are immediately due and payable in accordance with the terms of such ACN Note upon determination being made under Section 2.2(g) hereof that ACNielsen has not exercised its good faith best efforts to implement the Recapitalization Plan as soon as practicable, or as otherwise provided by such ACN Note.
(d) Immediately after the Payment Date, ACNielsen agrees to grant to, and to cause each of its Subsidiaries to grant to, Cognizant and D&B, as collateral security for the payment and performance of ACNielsen's obligations under the ACN Notes and otherwise to indemnify Cognizant and D&B against any IRI Liabilities as required by this Article II, a perfected first priority security interest in all of its tangible and intangible assets (including, without limitation, intellectual property, real property and all of the capital stock of each of its direct and indirect domestic subsidiaries and first-tier foreign subsidiaries), to the extent permitted by any other bona fide security or other similar agreements with third-parties not controlled by ACNielsen or any of its Affiliates, pursuant to such documents (the "Security Documents") as Cognizant and D&B shall deem reasonably necessary or advisable to grant to them a perfected first priority lien on such assets. Each of the Security Documents shall be in form and substance reasonably satisfactory to Cognizant and D&B, shall contain terms and conditions which are usual and customary for similar documents delivered in secured financings and shall include guarantees executed and delivered by each of ACNielsen's Subsidiaries which shall be secured by the security interests granted by such Subsidiaries pursuant to the Security Documents. Without limiting the foregoing, ACNielsen agrees to take, and to cause each of its Subsidiaries to take, all actions necessary or advisable to cause the liens granted pursuant to the Security Documents to be duly perfected in accordance with all applicable requirements of law, including, without limitation, the filing of financing statements in such jurisdictions as may be requested by Cognizant and D&B and the delivery to Cognizant and D&B (or their representative) of any certificates representing pledged stock, together with undated stock powers executed and delivered in blank by a duly authorized officer of ACNielsen or the relevant Subsidiary.
