Common use of Damages Limitations Clause in Contracts

Damages Limitations. Notwithstanding anything contained to the contrary in this Asset Purchase Agreement, a Party’s right to recover any amounts under the indemnification provisions of this Article 10 shall be determined or limited as provided in this Section 10.6. (a) Notwithstanding anything herein to the contrary, neither party shall be obligated to indemnify the other under this Article 10 in excess of the amount of the Aggregate Consideration. (b) All representations, warranties and indemnities made by the parties shall survive the Closing and shall thereafter terminate and expire twenty-four (24) months after the Closing Date, except that representations, warranties (Section 4.1(j)) and associated indemnities with respect to tax matters, and representations, warranties and associated indemnities with respect to environmental matters (Section 4.1(m)), shall survive for a period equal to the statute of limitations applicable to any claim arising from or attributable to such matters; provided, however, that notwithstanding the foregoing, the rights and obligations with respect to indemnification as provided in this Article 10 shall continue with respect to any matter for which indemnification has been properly sought pursuant to the terms and conditions of this Asset Purchase Agreement prior to the expiration of any such survival period. (c) Notwithstanding anything herein to the contrary, the Physician Parties shall not be obligated to indemnify the Purchaser Indemnified Persons under this Article 10: (i) unless the aggregate of all Indemnity Losses of the Purchaser Indemnified Persons exceeds Ten Thousand Dollars ($10,000) (the “Seller’s Basket”), in which case the Purchaser Indemnified Persons shall be entitled to recover all Indemnity Losses, including the amount equal to the Seller’s Basket. Nothing contained in this Section 10.6(c) shall be deemed to limit or impair the Purchaser’s or Purchaser’s permitted assignee’s right to seek injunction or other equitable relief for a Physician Party’s breach of any provision set forth in the Non-Competition Agreement. (d) Notwithstanding anything herein to the contrary, the Purchaser or its permitted assignee shall not be obligated to indemnify Physician Parties under this Article 10: (i) unless the aggregate of all Indemnity Losses of the Physician Parties exceeds Ten Thousand Dollars ($10,000) (the “Buyer’s Basket”), in which case the Physician Parties shall be entitled to recover all damages to the Physician Parties, including the amount equal to the Buyer’s Basket.

Damages Limitations. (a) In no event will a Party be liable to another Party for (i) any speculative or remote damages that would not otherwise be recoverable for breach of a contract under Law or (ii) punitive or exemplary damages, except to the extent actually required to be paid in relation to a Third Party Claim or in respect of Seller’s obligations under Section 6.12. 70 US 167664346 HB: 4845-7978-5147.2 (b) Notwithstanding anything contained to the contrary in this Asset contained herein, Seller shall not have any liability for indemnification under Section 9.2(a)(i) (excluding Seller Fundamental Representation and Warranties) unless the aggregate of all Losses under such Section exceed One Half of One Percent (0.5%) of the Final Adjusted Base Purchase Agreement, a Party’s right to recover any amounts under Price (the indemnification provisions of this Article 10 shall be determined or limited as provided in this Section 10.6. (a“Deductible”) Notwithstanding anything herein to the contrary, neither party shall be obligated to indemnify the other under this Article 10 and then only for Losses in excess of the amount Deductible up to a maximum indemnification obligation for such Losses equal to Seven and One Half Percent (7.5%) of the Aggregate Consideration. Final Adjusted Base Purchase Price (bthe “Cap”). For the avoidance of doubt, the limitations set forth in this Section 9.4(b) All representations, warranties and indemnities made by the parties shall survive the Closing and shall thereafter terminate and expire twenty-four (24) months after the Closing Date, except that representations, warranties (Section 4.1(j)) and associated indemnities with respect to tax matters, and representations, warranties and associated indemnities with respect to environmental matters (Section 4.1(m)), shall survive for a period equal to the statute of limitations applicable not apply to any claim indemnification obligations arising from or attributable to such matters; provided, however, that notwithstanding the foregoing, the rights in connection with Seller Fundamental Representations and obligations with respect to indemnification as provided in this Article 10 shall continue with respect to any matter for which indemnification has been properly sought pursuant to the terms and conditions of this Asset Purchase Agreement prior to the expiration of any such survival periodWarranties. (c) Notwithstanding anything herein to the contrarycontrary contained herein, the Physician Parties Buyer shall not be obligated to indemnify the Purchaser Indemnified Persons have any liability for indemnification under this Article 10: Section 9.2(b)(i) (iexcluding Buyer Fundamental Representation and Warranties) unless the aggregate of all Indemnity Losses under such Section exceed the Deductible then only for Losses in excess of the Purchaser Indemnified Persons exceeds Ten Thousand Dollars ($10,000) (the “Seller’s Basket”), in which case the Purchaser Indemnified Persons shall be entitled Deductible up to recover all Indemnity Losses, including the amount a maximum indemnification obligation for such Losses equal to the SellerCap. For the avoidance of doubt, the limitations set forth in this Section 9.4(c) shall not apply to any indemnification obligations arising in connection with Buyer Fundamental Representations and Warranties. (d) The maximum liability of either Party for indemnification of Losses for breaches of such Party’s Basketrepresentations and warranties, including but not limited to breaches of such Party’s Fundamental Representations and Warranties, shall not exceed 50% of the Final Adjusted Base Purchase Price. For the avoidance of doubt, this Section 9.4(d) shall not be interpreted to increase the amount of the Cap for any Losses to which the Cap relates. (e) For purposes of determining whether there has been a breach of any representation or warranty and the amount of any Losses that are the subject matter of a claim for indemnification hereunder for breach of any representation or warranty, each representation and warranty shall be read without regard and without giving effect to any materiality or Material Adverse Effect standard or qualification contained in such representation or warranty (as if such standard or qualification were deleted from such representation and warranty); provided, that (i) any qualification relating to materiality or Material Adverse Effect to the extent it qualifies an affirmative requirement to list specified items on a section of the Schedule shall not be disregarded and (ii) the qualification relating to Material Adverse Effect in Section 3.7(b) (Absence of Certain Changes) shall not be disregarded. (f) In addition to the limitation set forth above, payments by an Indemnifying Party pursuant to this Article IX in respect of any Losses shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds actually received in respect of any such claim, net of any costs incurred in connection with obtaining such insurance proceeds (including any increased premiums resulting therefrom). In the event that the Indemnified Party maintains insurance that would cover any Loss for which it has sought indemnification under this Article IX, such Indemnified Party agrees to make a claim under the applicable insurance police(ies) in a timely manner to the extent reasonably possible under the circumstances, and to provide the applicable carrier with such additional information as it may request with respect to such claim. Nothing contained in this Section 10.6(c) Article IX or otherwise shall be deemed require the Indemnified Party to limit assert or impair the Purchaser’s or Purchaser’s permitted assignee’s right threaten to seek injunction or other equitable relief for a Physician Party’s breach assert any Action against any insurance carrier in connection with seeking insurance recovery in respect of any provision set forth in Loss for which it has sought indemnification from the Non-Competition AgreementIndemnifying Party hereunder. (dg) Notwithstanding anything herein Each of the Parties acknowledges and agrees that the right to indemnification or any other remedy based on the contraryrepresentations, the Purchaser or its permitted assignee shall warranties, covenants and agreements contained in this Agreement will not be obligated to indemnify Physician Parties under affected by any investigation conducted with respect to, or any knowledge 71 US 167664346 HB: 4845-7978-5147.2 (h) None of the limitations contained in this Article 10: (i) unless the aggregate of all Indemnity Losses of the Physician Parties exceeds Ten Thousand Dollars ($10,000) (the “Buyer’s Basket”), in which case the Physician Parties IX shall be entitled apply to recover all damages to the Physician Parties, including the amount equal to the Buyer’s Basketfraud.

Damages Limitations. Notwithstanding anything contained to the contrary in this Asset Purchase Master Transaction Agreement, a Party’s right to recover any amounts under the indemnification provisions of this Article 10 shall be determined or limited as provided in this Section 10.6. (a) Notwithstanding anything herein to the contrary, neither party shall be obligated to indemnify the other under this Article 10 in excess of the amount of the Aggregate Consideration.[intentionally deleted] (b) All representations, warranties and indemnities made by the parties shall survive the Closing and shall thereafter terminate and expire twenty-four (24) months after the Closing Date, except that representations, warranties (Section 4.1(j3.1(j)) and associated indemnities with respect to tax matters, and representations, warranties and associated indemnities with respect to environmental matters (Section 4.1(m3.1(m)), shall survive for a period equal to the statute of limitations applicable to any claim arising from or attributable to such matters; provided, however, that notwithstanding the foregoing, the rights and obligations with respect to indemnification as provided in this Article 10 shall continue with respect to any matter for which indemnification has been properly sought pursuant to the terms and conditions of this Asset Purchase Master Transaction Agreement prior to the expiration of any such survival period. (c) Notwithstanding anything herein to the contrary, the Physician Parties shall not be obligated to indemnify the Purchaser Indemnified Persons Company under this Article 10: (i) unless the aggregate of all Indemnity Losses of the Purchaser Indemnified Persons Company exceeds Ten Thousand Dollars ($10,000) (the “Seller’s Basket”), in which case the Purchaser Indemnified Persons Company shall be entitled to recover all Indemnity Losses, including the amount equal to the Seller’s Basket. Nothing contained in this Section 10.6(c) shall be deemed to limit or impair the Purchaser’s or Purchaser’s permitted assigneeCompany’s right to seek injunction or other equitable relief for a Physician Party’s breach of any provision set forth in the Non-Competition AgreementCovenant. (d) Notwithstanding anything herein to the contrary, the Purchaser or its permitted assignee Company shall not be obligated to indemnify Physician Parties under this Article 10: (i) unless the aggregate of all Indemnity Losses of the Physician Parties exceeds Ten Thousand Dollars ($10,000) (the “Buyer’s Basket”), in which case the Physician Parties shall be entitled to recover all damages to the Physician Parties, including the amount equal to the Buyer’s Basket.

Damages Limitations. Notwithstanding anything contained (a) Subject to the contrary in this Asset Purchase Agreement, a Party’s right to recover any amounts under the indemnification other provisions of this Article 10 VIII, Sellers shall not be determined liable for any individual claim or limited as provided group of related claims (based on the same facts or circumstances) by any Buyer Indemnified Party pursuant to Section 8.2(a)(i) (other than with respect to any breach of any Fundamental Representation of Seller Parent or Sellers or any breach of any Tax Representation), unless and until the Buyer Indemnified Parties have suffered, incurred or sustained Damages thereunder in this Section 10.6. excess of an amount equal to two hundred thousand (a$200,000) Notwithstanding anything herein (the “Minimum Threshold”). Subject to the contrary, neither party shall be obligated to indemnify the other under provisions of this Article 10 VIII, Sellers shall not be liable for any claims by any Buyer Indemnified Party pursuant to Section 8.2(a)(i) (other than with respect to any breach of any Fundamental Representation of Seller Parent or Sellers, any breach of any Tax Representation or any breach of the representation in Section 4.7(d) (the “Sufficiency Representation”)) until the aggregate amount of all Damages with respect to such claims in excess of the Minimum Threshold exceeds one-half percent (0.5)% of the Base Purchase Price (the “Deductible”), in which case, such Buyer Indemnified Parties shall only be entitled to the amount of such Damages that exceeds the Aggregate ConsiderationDeductible. Subject to the other provisions of this Article VIII, Sellers shall not be liable for any claims by any Buyer Indemnified Party pursuant to Section 8.2(a)(i) with respect to the Sufficiency Representation until the aggregate amount of all Damages with respect to such claims in excess of the Minimum Threshold exceeds $500,000, in which case, such Buyer Indemnified Parties shall be entitled to dollar one of Damages with respect thereto. (b) All representations, warranties and indemnities made by the parties shall survive the Closing and shall thereafter terminate and expire twenty-four Sellers’ maximum aggregate Liability for Damages for (24i) months after the Closing Date, except that representations, warranties claims pursuant to Section 8.2(a)(i) (Section 4.1(j)) and associated indemnities with respect to tax matters, and representations, warranties and associated indemnities with respect to environmental matters (Section 4.1(m)), shall survive for a period equal to the statute of limitations applicable to any claim arising from or attributable to such matters; provided, however, that notwithstanding the foregoing, the rights and obligations with respect to indemnification as provided in this Article 10 shall continue other than with respect to any matter breach of any Fundamental Representation of Seller Parent or any of the Sellers or the Tax Representation or Sufficiency Representation of any of the Sellers) shall be limited to an amount equal to one-half percent (0.5%) of the Base Purchase Price (the “Cap”), (ii) all claims pursuant to Section 8.2(a)(i) (with respect to any breach of any Fundamental Representation of Seller Parent or any of the Sellers or the Tax Representation or Sufficiency Representation of any of the Sellers), (ii), (iv), (v), (vi) and (vii) shall be limited to an amount equal to the Purchase Price. For the avoidance of doubt, Sellers’ Liability for Damages for claims pursuant to Section 8.2(a)(iii) shall not be subject to any of the foregoing limitations. For the avoidance of doubt, none of the limitations on Liability for Damages for indemnification claims set forth in this Section 8.3 which solely and expressly limit or solely and expressly apply to indemnification claims pursuant to Section 8.2(a)(i) shall limit or otherwise apply to any indemnification claims pursuant to Sections 8.2(a)(ii)–(vii), regardless and irrespective of the fact that any Buyer Indemnified Party could or would be entitled to seek Damages against Sellers pursuant Section 8.2(a)(i) for the same facts, circumstances or matters pursuant to Sections 8.2(a)(ii)–(vii). (c) The amount which an Indemnifying Party is or may be required to pay to an Indemnified Party in respect of Damages for which indemnification is provided under this Agreement shall be reduced by (i) any amounts actually received (including amounts received under insurance policies, including any R&W Insurance policy obtained by Buyer or its Affiliates) by or on behalf of any Indemnified Party or its Affiliates from third parties, net of any costs and expenses (including Taxes, increased premiums or deductibles paid) of obtaining any such amounts and (ii) the amount by which the cash Tax liability of the Indemnified Party or any of its Affiliates, with respect to the taxable year of such Damages or the immediately succeeding taxable year, is actually reduced as a result of such Damages (determined by comparing the actual Tax liability of such Person with the Tax liability that would have existed but for the Damages) net of any costs and expenses (including Taxes) of obtaining any such reduction (such amounts are collectively referred to herein as “Indemnity Reduction Amounts”). If any Indemnified Party or its Affiliates receives any Indemnity Reduction Amounts in respect of a claim for which indemnification has been properly sought pursuant made under this Agreement after (1) the full amount of Damages for such claim has been paid by any Indemnifying Party or (2) any portion of Damages for such claim has been paid by any Indemnifying Party and such Indemnity Reduction Amounts exceed the remaining unpaid balance of such claim, then the Indemnified Party shall promptly remit to the terms and conditions Indemnifying Party the amount (if any) by which (A) the amount previously paid by the Indemnifying Party in respect of this Asset Purchase Agreement prior such claim exceeds (B) the amount that would have been payable by the Indemnifying Party if such Indemnity Reduction Amounts had been received before the amount in clause (A) was paid. Other than in the case of Intentional Fraud, an insurer or other third party that would otherwise be obligated to the expiration of pay any such survival period. (c) Notwithstanding anything herein to the contrary, the Physician Parties claim shall not be obligated to indemnify the Purchaser Indemnified Persons under this Article 10: (i) unless the aggregate of all Indemnity Losses relieved of the Purchaser Indemnified Persons exceeds Ten Thousand Dollars ($10,000) (responsibility with respect thereto or, solely by virtue of the “Seller’s Basket”)indemnification provisions hereof, in which case the Purchaser Indemnified Persons have any subrogation rights with respect thereto, it being expressly understood and agreed that no insurer or any other third party shall be entitled to recover all Indemnity Lossesany benefit by virtue of the indemnification provisions herein to which it would not be entitled receive in the absence of such indemnification provisions. Buyer shall not, including and, after the amount equal Closing, shall cause the Company Entities not to, amend or modify the R&W Insurance in any manner that seeks to provide for subrogation of rights against Sellers or any of their Affiliates with respect to any claim made by an insured party thereunder as a result of any alleged breach or any representation or warranty of Seller Parent or Seller hereunder or in any Seller Closing Certificate (except in the case of fraud), without the prior written consent of Sellers. Each of Sellers and Buyer, shall, to the Seller’s Basket. Nothing contained in this Section 10.6(c) extent required by applicable Law, take all commercially reasonable actions to mitigate Damages; provided that, the foregoing shall be deemed to limit or impair the Purchaser’s or Purchaser’s permitted assignee’s right not require Buyer to seek injunction or other equitable relief recovery first under the R&W Insurance with respect to any claim for a Physician Party’s breach of any provision set forth in the Non-Competition AgreementDamages. (d) Notwithstanding anything herein to the contrary, the Purchaser or its permitted assignee shall not be obligated to indemnify Physician Parties under this Article 10: (i) unless the aggregate of all Indemnity Losses of the Physician Parties exceeds Ten Thousand Dollars ($10,000) (the “Buyer’s Basket”), in which case the Physician Parties shall be entitled to recover all damages to the Physician Parties, including the amount equal to the Buyer’s Basket.