Common use of Consequential Damages Waiver Clause in Contracts

Consequential Damages Waiver. EXCEPT FOR EACH PARTY’S OBLIGATION TO INDEMNIFY FOR CERTAIN DAMAGES AWARDED TO THIRD PARTIES UNDER SECTIONS 10.10 AND 12 (INDEMNIFICATION) AND ANY BREACH OF SECTION 2.9(e) OR 13 (CONFIDENTIALITY), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE PARTIES AGREE THAT ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE UNDER THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES, AND NO PORTION OF ANY SUCH EXPRESS PAYMENT OBLIGATION SHALL BE DEEMED CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1; AND PROVIDED FURTHER, HOWEVER, THAT TO THE EXTENT LICENSEE IS HELD LIABLE FOR ITS CUSTOMERS’ OR APPROVED THIRD PARTY CONTRACTORS’ MAKING OF UNAUTHORIZED COPIES OF THE PS LICENSED PRODUCTS, ANY LICENSE FEES, ROYALTIES OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1.

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR EACH PARTYSUPPLIER’S OBLIGATION TO INDEMNIFY FOR CERTAIN DAMAGES AWARDED TO THIRD PARTIES UNDER SECTIONS 10.10 OBLIGATIONS IN SECTION 17.3 (OPEN SOURCE WARRANTY), 18 (EPIDEMIC FAILURE) AND 12 SECTION 19 (INDEMNIFICATION) AND ANY OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2), FOR BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 2.9(e) 20, AND FOR VIOLATION OR 13 (CONFIDENTIALITY), NEITHER INFRINGEMENT BY ONE PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM INTELLECTUAL PROPERTY OF THE ACTIONOTHER PARTY OR A THIRD PARTY, WHETHER IN UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), STRICT PRODUCT LIABILITY ARISING OUT OF OR OTHERWISERELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF ANY REPRESENTATIVE OF A WHETHER OR NOT THAT PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE PARTIES AGREE THAT ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE UNDER THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES, AND NO PORTION OF ANY SUCH EXPRESS PAYMENT OBLIGATION SHALL BE DEEMED CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF DAMAGE. THIS SECTION 14.1; AND PROVIDED FURTHER, HOWEVER, THAT DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) OR PHYSICAL DAMAGE TO THE EXTENT LICENSEE IS HELD LIABLE FOR ITS CUSTOMERS’ OR APPROVED THIRD PARTY CONTRACTORS’ MAKING OF UNAUTHORIZED COPIES OF THE PS LICENSED PRODUCTS, ANY LICENSE FEES, ROYALTIES OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1TANGIBLE PROPERTY.

Consequential Damages Waiver. EXCEPT NO PARTY SHALL UNDER ANY CIRCUMSTANCES BE RESPONSIBLE FOR EACH PARTY’S OBLIGATION TO INDEMNIFY FOR CERTAIN DAMAGES AWARDED TO THIRD PARTIES UNDER SECTIONS 10.10 AND 12 (INDEMNIFICATION) AND ANY BREACH OF SECTION 2.9(e) OR 13 (CONFIDENTIALITY), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL SPECIAL, EXEMPLARY, PUNITIVE, TREBLE, STATUTORY OR PUNITIVE CONSEQUENTIAL DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUELOSSES, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR RELATED IN CONNECTION WITH ANY WAY TO THIS AGREEMENT, REGARDLESS THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT OR ACTIONS OR INACTIONS OF THE FORM OF THE ACTIONPARTIES TO THIS AGREEMENT THAT ARISE OR RELATE TO THAT PARTY’S PERFORMANCE UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF A PARTY HERETO HAS BEEN ADVISED OF NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED TO THE OTHER PARTY IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH OTHER PARTY EXCEPT TO THE EXTENT THAT SUCH DAMAGES HAVE BEEN PAID OR ARE PAYABLE BY AN INDEMNIFIED PARTY HEREUNDER TO A PERSON WHO IS AN UNAFFILIATED THIRD PARTY PURSUANT TO A THIRD PARTY CLAIM. SUBJECT TO THE PRECEDING SENTENCE, BUYER, ON BEHALF OF EACH OF THE BUYER INDEMNITIES AND EVEN IF THE SELLER, ON BEHALF OF EACH OF SELLER INDEMNITIES, WAIVE ANY LIMITED REMEDY SPECIFIED RIGHT TO RECOVER ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, TREBLE, STATUTORY OR CONSEQUENTIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OR ACTIONS OR INACTIONS OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE PARTIES AGREE TO THIS AGREEMENT THAT ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE ARISE OR RELATE TO THAT PARTY’S PERFORMANCE UNDER THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES, AND NO PORTION OF ANY SUCH EXPRESS PAYMENT OBLIGATION SHALL BE DEEMED CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1; AND PROVIDED FURTHER, HOWEVER, THAT TO THE EXTENT LICENSEE IS HELD LIABLE FOR ITS CUSTOMERS’ OR APPROVED THIRD PARTY CONTRACTORS’ MAKING OF UNAUTHORIZED COPIES OF THE PS LICENSED PRODUCTS, ANY LICENSE FEES, ROYALTIES OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1AGREEMENT.

Consequential Damages Waiver. EXCEPT NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR EACH PARTY’S OBLIGATION ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, MULTIPLE OR INDIRECT DAMAGES (INCLUDING LOST PROFITS, LOSS OF USE, DAMAGE TO INDEMNIFY FOR CERTAIN DAMAGES AWARDED GOODWILL, OR LOSS OR BUSINESS) ARISING FROM OR RELATING TO THIRD PARTIES UNDER SECTIONS 10.10 AND 12 (INDEMNIFICATION) AND ANY BREACH OF SECTION 2.9(e) OR 13 (CONFIDENTIALITY), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF A PARTY HERETO HAS BEEN ADVISED NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED DAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS AGREEMENT SECTION IS DEEMED INTENDED TO HAVE FAILED OR SHALL LIMIT OR RESTRICT (A) THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF A PARTY UNDER SECTION 11.1 (INDEMNIFICATION BY SELECTA) AND SECTION 11.2 (INDEMNIFICATION BY ASTELLAS), (B) ANY DAMAGES AVAILABLE FOR A PARTY’S BREACH OF ITS ESSENTIAL PURPOSE; PROVIDEDCONFIDENTIALITY OBLIGATIONS IN ARTICLE 9 (CONFIDENTIALITY), HOWEVER, THAT THE PARTIES AGREE THAT (C) ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE UNDER THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES, AND NO PORTION OF ANY SUCH EXPRESS PAYMENT OBLIGATION SHALL BE DEEMED CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1; AND PROVIDED FURTHER, HOWEVER, THAT TO THE EXTENT LICENSEE IS HELD LIABLE AVAILABLE FOR ITS CUSTOMERSASTELLAS’ OR APPROVED THIRD PARTY CONTRACTORS’ MAKING OF UNAUTHORIZED COPIES BREACH OF THE PS LICENSED PRODUCTSSCOPE OF THE LICENSE GRANT IN SECTION 3.1 (GRANT OF LICENSE) OR SELECTA’S BREACH OF ITS OBLIGATIONS IN SECTION 3.3 (EXCLUSIVITY), OR (D) ANY LICENSE FEESDAMAGES AVAILABLE FOR A PARTY’S GROSS NEGLIGENCE, ROYALTIES INTENTIONAL MISCONDUCT OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1FRAUD.

Consequential Damages Waiver. EXCEPT FOR EACH PARTY’S OBLIGATION TO INDEMNIFY FOR CERTAIN DAMAGES AWARDED TO THIRD PARTIES UNDER SECTIONS 10.10 AND 12 (INDEMNIFICATION) AND ANY A BREACH OF SECTION 2.9(e4.1 (“CONFIDENTIAL INFORMATION”) OR 13 (CONFIDENTIALITY), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS IN NO EVENT WILL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER FOR ANY TYPE OF THE FORM OF THE ACTIONINCIDENTAL, WHETHER IN CONTRACTEXEMPLARY, TORT (INCLUDING NEGLIGENCE)SPECIAL, STRICT PRODUCT LIABILITY PUNITIVE, INDIRECT OR OTHERWISECONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOST PROFITS, OR REPLACEMENT GOODS, EVEN IF ANY REPRESENTATIVE OF A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT STRICT LIABILITY OR OTHERWISE. FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST EITHER PARTY. THE MAXIMUM TOTAL LIABILITY OF HIGHPOINT TECHNOLOGY GROUP TO CUSTOMER FOR ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED CLAIMS ARISING OUT OF OR RELATING TO HAVE FAILED ANY NEGLIGENT, INTENTIONAL OR FRAUDULENT ACTS OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE PARTIES AGREE THAT ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE UNDER THIS AGREEMENT A PARTY SHALL BE DEEMED DIRECT DAMAGES, AND NO PORTION OF LIMITED TO THE TOTAL FEES PAID TO HIGHPOINT TECHNOLOGY GROUP FOR SERVICE IN THE ONE-YEAR PERIOD PRECEDING THE DATE UPON WHICH ANY SUCH EXPRESS PAYMENT OBLIGATION CLAIM IS MADE. HIGHPOINT TECHNOLOGY GROUP SHALL NOT BE DEEMED CONSEQUENTIAL DAMAGES WITHIN THE MEANING RESPONSIBLE FOR FAILURES, MALFUNCTIONS, OR INADEQUACIES OF THIS SECTION 14.1; AND PROVIDED FURTHERCUSTOMER AND/OR ANY THIRD PARTY’S TERMINALS OR COMMUNICATIONS SYSTEMS, HOWEVERINCLUDING, THAT TO THE EXTENT LICENSEE IS HELD LIABLE FOR ITS CUSTOMERS’ BUT NOT LIMITED TO, MALFUNCTIONS OR APPROVED THIRD PARTY CONTRACTORS’ MAKING INADEQUACIES OF UNAUTHORIZED COPIES OF THE PS LICENSED PRODUCTSTELECOMMUNICATIONS CARRIERS, ANY LICENSE FEES, ROYALTIES OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1SIMILAR SYSTEMS.

Consequential Damages Waiver. EXCEPT FOR EACH PARTY’S OBLIGATION TO INDEMNIFY A BREACH OF SECTION 11, NEITHER PARTY SHALL BE LIABLE FOR CERTAIN ANY LOSS OF GOODWILL, REPUTATION, BUSINESS, REVENUES, INDIRECT PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES (REGARDLESS OF HOW THESE ARE CLASSIFIED AS DAMAGES) OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER IT HAS BEEN INFORMED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR THE TYPE OF CLAIM, CONTRACT OR TORT (INCLUDING NEGLIGENCE). NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS ANY LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FOR ANY OTHER LIABILITY WHICH CANNOT LEGALLY BE EXCLUDED OR LIMITED. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS SET FORTH IN THIS SECTION 14.1 SHALL NOT LIMIT AN INDEMNITOR’ S LIABILITY FOR DAMAGES AWARDED TO ANY THIRD PARTIES PARTY IN CONNECTION WITH ANY CLAIM FOR WHICH A PARTY IS ENTITLED TO INDEMNIFICATION UNDER SECTIONS 10.10 SECTION 13. NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION 14.1, THE LICENSOR SHALL NOT BE LIABLE FOR ANY LOSS OF PROFIT CLAIMED BY IMMEDICA TO THE EXTENT SUCH LOSS OF PROFIT ARISES FROM AN ACT OR OMISSION OF A THIRD PARTY SUPPLIER TO LICENSOR AND 12 (INDEMNIFICATION) THE TERMS OF THE CONTRACT BETWEEN LICENSOR AND ANY BREACH SUCH THIRD PARTY SUPPLIER EXCLUDES OR LIMITS THE RECOVERY OF SECTION 2.9(e) OR 13 (CONFIDENTIALITY), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY SUCH LOSS OF PROFIT. A PARTY’S AGGREGATE LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR AND ALL CLAIMS BY THE OTHER PARTY FOR ANY DIRECT LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS PROFIT ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS AGREEMENT SHALL NOT EXCEED [*] OF THE FORM TOTAL OF THE ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF A PARTY HERETO HAS SUMS WHICH HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED PAID BY IMMEDICA TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE PARTIES AGREE THAT ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE LICENSOR UNDER THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGESEXCLUDING, AND NO PORTION EXCEPT IN THE CASE OF ANY SUCH EXPRESS PAYMENT OBLIGATION SHALL BE DEEMED CONSEQUENTIAL DAMAGES AN INTENTIONAL BREACH BY LICENSOR WITHIN THE MEANING OF THIS SECTION 14.1; AND PROVIDED FURTHER, HOWEVER, THAT TO THE EXTENT LICENSEE IS HELD LIABLE FOR ITS CUSTOMERS’ OR APPROVED THIRD PARTY CONTRACTORS’ MAKING OF UNAUTHORIZED COPIES [*] OF THE PS LICENSED PRODUCTSEFFECTIVE DATE, ANY LICENSE FEESTHE UPFRONT PAYMENT REFERRED TO IN SECTION 6.1.1, ROYALTIES OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1.TOGETHER WTTH

Consequential Damages Waiver. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR EACH AMOUNTS PAYABLE BY CUSTOMER TO POSIT, THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 8, ANY BREACH BY CUSTOMER OF ITS OBLIGATIONS UNDER SECTIONS 2.1, 2.2, 3, 5.2 OR 13.10, EITHER PARTY’S OBLIGATION TO INDEMNIFY FOR CERTAIN DAMAGES AWARDED TO THIRD PARTIES UNDER SECTIONS 10.10 AND 12 (INDEMNIFICATION) AND ANY GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR BREACH OF CONFIDENTIALITY UNDER SECTION 2.9(e) OR 13 (CONFIDENTIALITY)10, NEITHER IN NO EVENT SHALL EITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL PUNITIVE, OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUEACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF GOODWILL, LOSS OF DAMAGE TO, OR OTHER FINANCIAL CORRUPTION OF, DATA, FAILURE OF SECURITY MECHANISMS, LOSS ARISING OUT OF USE, OR IN CONNECTION WITH THIS AGREEMENTCOSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE FORM OF THE ACTIONHOWEVER CAUSED, WHETHER IN ARISING UNDER STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE)) OR UNDER ANY OTHER THEORY OF LIABILITY, STRICT PRODUCT LIABILITY WHETHER OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF A NOT THE PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED DAMAGE OR WHETHER SUCH DAMAGE WAS FORESEEABLE OR IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE PARTIES AGREE THAT ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE UNDER THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES, AND NO PORTION OF ANY SUCH EXPRESS PAYMENT OBLIGATION SHALL BE DEEMED CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1; AND PROVIDED FURTHER, HOWEVER, THAT TO THE EXTENT LICENSEE IS HELD LIABLE FOR ITS CUSTOMERS’ OR APPROVED THIRD PARTY CONTRACTORS’ MAKING OF UNAUTHORIZED COPIES CONTEMPLATION OF THE PS LICENSED PRODUCTS, ANY LICENSE FEES, ROYALTIES OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1PARTIES.