Common use of Damages Cap Clause in Contracts

Damages Cap. (1) Subject to Section 16.01, each Party shall be liable to the other for damages arising out of or relating to its performance or failure to perform its obligations under the Agreement; provided that subject to Section 16.02(2), the liability of a Party to the other, whether based on an action or claim in contract, equity, negligence, tort or otherwise, for any event, act or omission occurring during the Term, shall not exceed, in the aggregate, an amount equal to the greater of (1) $3,500,000 and (2) the Fees paid or payable by Voya for the 30-consecutive-month portion of the Term preceding the date of the occurrence of the applicable event, act or omission giving rise to such damages or, if fewer than 30 months have elapsed since the Effective Date, then 30 times the average monthly Fees paid or payable during the elapsed time since the Effective Date (the “Damages Cap”). (2) The limitations on liability set forth in Section 16.02(1) shall not apply to: (a) Losses suffered by Voya resulting from BNY Mellon’s Abandonment; (b) Xxxxxx suffered by a Party resulting from the Gross Negligence, Willful Misconduct or fraud of the other Party; provided, however, that a Party’s recovery of Consequential Damages resulting from the Gross Negligence of the other Party shall be subject to the Damages Cap; (c) Xxxxxx suffered by a Party resulting from the direct infringement of such Party’s IP by the other Party; (d) Losses suffered by Voya resulting from an intentional breach of Section 7.01 by BNY Mellon; provided, however, that Voya’s recovery of Consequential Damages resulting from an intentional breach of Section 7.01 by BNY Mellon shall be subject to the Damages Cap; or (e) the indemnification obligations of either Party; provided, however, that (a) the disclaimer of Consequential Damages set forth in Section 16.01(1) shall not be interpreted to relieve a Party from complying in full with its indemnity obligations under this Agreement, and (b) BNY Mellon’s indemnification obligations under Section 15.02(3), Section 15.02(5), and Section 15.02(8) shall be subject to the Damages Cap. (3) The limitation of liability set forth in Section 16.02(1) shall not apply in the case of the failure (a) of Voya to pay Fees due and payable to BNY Mellon in accordance with the Agreement, or (b) of BNY Mellon to issue credits or other amounts due and payable to Voya in accordance with the Agreement.

Damages Cap. (1) Subject to Section 16.01, each Party shall be liable to the other for damages arising out of or relating to its performance or failure to perform its obligations under the Agreement; provided that subject to Section 16.02(2), the liability of a Party to the other, whether based on an action or claim in contract, equity, negligence, tort or otherwise, for any event, act or omission occurring during the Term, shall not exceed, in the aggregate, an amount equal to the greater of (1) $3,500,000 and (2) the Fees paid or payable by Voya for the 30-consecutive-month portion of the Term preceding the date of the occurrence of the applicable event, act or omission giving rise to such damages or, if fewer than 30 months have elapsed since the Effective Date, then 30 times the average monthly Fees paid or payable during the elapsed time since the Effective Date (the “Damages Cap”). (2) The limitations on liability set forth in Section 16.02(1) shall not apply to: (a) Losses suffered by Voya resulting from BNY Mellon’s Abandonment; (b) Xxxxxx Lxxxxx suffered by a Party resulting from the Gross Negligence, Willful Misconduct or fraud of the other Party; provided, however, that a Party’s recovery of Consequential Damages resulting from the Gross Negligence of the other Party shall be subject to the Damages Cap; (c) Xxxxxx Lxxxxx suffered by a Party resulting from the direct infringement of such Party’s IP by the other Party; (d) Losses suffered by Voya resulting from an intentional breach of Section 7.01 by BNY Mellon; provided, however, that Voya’s recovery of Consequential Damages resulting from an intentional breach of Section 7.01 by BNY Mellon shall be subject to the Damages Cap; or (e) the indemnification obligations of either Party; provided, however, that (a) the disclaimer of Consequential Damages set forth in Section 16.01(1) shall not be interpreted to relieve a Party from complying in full with its indemnity obligations under this Agreement, and (b) BNY Mellon’s indemnification obligations under Section 15.02(3), Section 15.02(5), and Section 15.02(8) shall be subject to the Damages Cap. (3) The limitation of liability set forth in Section 16.02(1) shall not apply in the case of the failure (a) of Voya to pay Fees due and payable to BNY Mellon in accordance with the Agreement, or (b) of BNY Mellon to issue credits or other amounts due and payable to Voya in accordance with the Agreement.