Common use of Disclaimer Limitation on Liability Clause in Contracts

Disclaimer Limitation on Liability. EXCEPT AS EXPRESSLY SET FORTH IN AUDIENCE’S LIMITED WARRANTY APPLICABLE TO PRODUCTS, AUDIENCE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH REGARD PRODUCTS OR SERVICE TO DISTRIBUTOR OR TO ANY OTHER PARTY. AUDIENCE RESERVES THE RIGHT TO CHANGE THE WARRANTY AND SERVICE POLICY SET FORTH IN SUCH LIMITED WARRANTY, OR OTHERWISE, AT ANY TIME, WITHOUT FURTHER NOTICE AND WITHOUT LIABILITY TO DISTRIBUTOR OR TO ANY OTHER PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AUDIENCE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE. **** Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. AUDIENCE’S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO [****] GIVING RISE TO THE APPLICABLE CLAIM. IN NO EVENT SHALL AUDIENCE BE LIABLE FOR ANY COST OF SUBSTITUTE GOODS OR SERVICES OR FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, EVEN IF AUDIENCE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENT.

Disclaimer Limitation on Liability. EXCEPT AS EXPRESSLY SET FORTH IN AUDIENCE’S LIMITED WARRANTY APPLICABLE TO PRODUCTSTHE AVAILABILITY OF THE SITE AND THE SERVICES DEPENDS ON MANY FACTORS, AUDIENCE MAKES NO OTHER WARRANTIES OR REPRESENTATIONS WITH REGARD PRODUCTS OR SERVICE TO DISTRIBUTOR OR TO ANY OTHER PARTY. AUDIENCE RESERVES THE RIGHT TO CHANGE THE WARRANTY AND SERVICE POLICY SET FORTH IN SUCH LIMITED WARRANTY, OR OTHERWISE, AT ANY TIME, WITHOUT FURTHER NOTICE AND WITHOUT LIABILITY TO DISTRIBUTOR OR TO ANY OTHER PARTY. INCLUDING YOUR CONNECTION SPEED TO THE EXTENT PERMITTED INTERNET, THE AVAILABILITY OF THE INTERNET, AND THE INTERNET BACKBONE AND EQUIPMENT THAT, BY APPLICABLE LAWITS NATURE, AUDIENCE IS NOT FAULT TOLERANT. ALTHOUGH DISTRIBUTORCENTRAL WILL ATTEMPT TO MAINTAIN THE AVAILABILITY OF THE SITE AND THE SERVICES AT ALL TIMES (OTHER THAN DURING SCHEDULED OR EMERGENCY MAINTENANCE), THE SITE AND THE SERVICES ARE HEREBY DISCLAIMS ALL OTHER WARRANTIESEXPRESSLY PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR ANY A PARTICULAR PURPOSEPURPOSE OR NON- INFRINGEMENT. **** Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. AUDIENCE’S LIABILITY ARISING OUT OF NEITHER THIS AGREEMENT SHALL NOR ANY DOCUMENTATION FURNISHED UNDER IT IS INTENDED TO EXPRESS OR IMPLY ANY WARRANTY THAT THE SITE OR THE SERVICES WILL BE LIMITED TO [****] GIVING RISE TO UNINTERRUPTED, SECURE, TIMELY OR ERROR-FREE. ANY SECURITY MECHANISMS INCORPORATED IN THE APPLICABLE CLAIMSITE AND THE SERVICES HAVE INHERENT LIMITATIONS AND YOU MUST DETERMINE THAT THE SITE AND THE SOFTWARE ADEQUATELY MEET YOUR REQUIREMENTS. IN NO EVENT SHALL AUDIENCE YOU ACKNOWLEDGE AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR THE SERVICES, IS DONE AT YOUR OWN DISCRETION AND RISK. YOU WILL BE LIABLE SOLELY RESPONSIBLE FOR ANY COST DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF SUBSTITUTE GOODS DATA THAT RESULTS FROM THE DOWNLOADING OF ANY SUCH MATERIAL AND/OR SERVICES DATA OR OTHER USE OF THE SERVICES. DISTRIBUTORCENTRAL, AND ITS MEMBERS, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES OR LEGAL THEORIES WHATSOEVER, FOR ANY LOSS OF BUSINESS, PROFITS OR GOODWILL, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR CONSEQUENTIALANY INDIRECT, SPECIAL, INCIDENTAL, INCIDENTAL OR INDIRECT DAMAGES, HOWEVER CAUSED AND BASED ON CONSEQUENTIAL DAMAGES OF ANY THEORY OF LIABILITY, WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITSCHARACTER, EVEN IF AUDIENCE HAS BEEN ADVISED DISTRIBUTORCENTRAL IS AWARE OF THE POSSIBILITY RISK OF SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING , THAT RESULT IN ANY WAY FROM YOUR USE OR INABILITY TO USE THE SITE OR THE SERVICES, OR THAT RESULT FROM ERRORS, DEFECTS, OMISSIONS, DELAYS IN OPERATION OR TRANSMISSION, OR ANY OTHER FAILURE OF ESSENTIAL PURPOSE PERFORMANCE OF THE SITE OR THE SERVICES. DISTRIBUTORCENTRAL’S LIABILITY TO YOU SHALL NOT, FOR ANY LIMITED REMEDIES. REASON, EXCEED THE PARTIES AGGREGATE PAYMENTS ACTUALLY MADE BY YOU TO DISTRIBUTORCENTRAL OVER THE PREVIOUS SIX CALENDAR MONTHS, WHICH YOU AGREE THAT THE FOREGOING LIMITATIONS REPRESENT TO BE A REASONABLE ALLOCATION LIMITATION AND A BASIS OF RISK UNDER THIS AGREEMENTTHE BARGAIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR LIABILITIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

Disclaimer Limitation on Liability. EXCEPT 5.1 THE SERVICE IS PROVIDED TO LICENSEE ON AN “AS IS” BASIS AND LICENSEE’S USE IS AT LICENSEE’S RISK. NEITHER STATPRO NOR THE INFORMATION PROVIDERS WARRANT THAT THE SERVICE OR THE DATA WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE OR THE DATA ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. NEITHER STATPRO NOR ANY OTHER PERSON OR ENTITY MAKES ANY REPRESENTATIONS OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICE OR THE DATA (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF), AND STATPRO EXPRESSLY SET FORTH DISCLAIMS ANY AND ALL IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. LICENSEE ASSUMES THE ENTIRE RISK OF ANY USE LICENSEE MAY MAKE OF THE SERVICE AND THE DATA, AND ACKNOWLEDGES THAT DATA FIELDS MAY NOT BE CONSISTENT THROUGHOUT THE DATA. IN AUDIENCE’S LIMITED WARRANTY APPLICABLE TO PRODUCTS, AUDIENCE MAKES NO OTHER WARRANTIES EVENT SHALL STATPRO OR REPRESENTATIONS WITH REGARD PRODUCTS OR SERVICE TO DISTRIBUTOR OR TO ANY OTHER PARTY. AUDIENCE RESERVES THE RIGHT , BE LIABLE TO CHANGE THE WARRANTY AND SERVICE POLICY SET FORTH IN SUCH LIMITED WARRANTYLICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT OR INDIRECT DAMAGES, OR OTHERWISE, AT ANY TIMEINCLUDING, WITHOUT FURTHER NOTICE AND WITHOUT LIABILITY LIMITATION, ANY LOST PROFITS, LOST SAVINGS, LOSS OF DATA, LOSS OF USE OR OTHER SPECIAL, PUNITIVE, INDIRECT, INCIDENTIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE INABILITY OF LICENSEE TO DISTRIBUTOR USE THE SERVICE, REGARDLESS OF THE FORM OF ACTION, EVEN IF STATPRO HAS BEEN ADVISED OF OR TO OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES. NO INFORMATION PROVIDER MAKES ANY OTHER PARTY. TO THE EXTENT PERMITTED BY APPLICABLE LAW, AUDIENCE HEREBY DISCLAIMS ALL OTHER WARRANTIESWARRANTY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ON THE SERVICE OR ANY OF THE DATA TRANSMITTED VIA THE SERVICE AND THE INFORMATION PROVIDERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT AND MERCHANTABILITY OR FITNESS FOR ANY A PARTICULAR PURPOSE. **** Certain information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions. AUDIENCE’S LIABILITY ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO [****] GIVING RISE TO THE APPLICABLE CLAIM. IN NO EVENT SHALL AUDIENCE BE LIABLE STATPRO OR THE INFORMATION PROVIDERS HAVE ANY LIABILITY TO LICENSEE OR ANY OTHER PERSON FOR ANY COST OF SUBSTITUTE GOODS MATTER ARISING FROM OR SERVICES OR FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITYRELATED TO THIS AGREEMENT, WHETHER FOR BREACH OF BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISEOTHERWISE IN EXCESS OF THE FEES ACTUALLY PAID BY LICENSEE TO STATPRO FOR THE AFFECTED PORTION OF THE SERVICE OR DATA FOR THE PERIOD OF TIME AFFECTED, ARISING OUT OF WHICH SHALL NOT EXCEED TWELVE (12) MONTHS. WITHOUT LIMITING THE FOREGOING, WHERE STATPRO’S INDEMNITY OBLIGATION ARISES FROM DATA OR RELATED INFORMATION OBTAINED FROM A DATA PROVIDER, STATPRO’S MONETARY LIABILITY TO THIS AGREEMENT, INCLUDING BUT NOT LICENSEE WILL BE LIMITED TO LOST PROFITSTHE AMOUNT STATPRO RECOVERS FROM THE RELEVANT DATA PROVIDER, EVEN IF AUDIENCE HAS BEEN ADVISED DIVIDED BY THE NUMBER OF THE POSSIBILITY OF SUCH DAMAGESOTHER ACTUAL OR POTENTIAL CLAIMS BY STATPRO CUSTOMERS (INCLUDING LICENSEE) AGAINST STATPRO ARISING FROM THAT DATA OR INFORMATION. 5.2 In particular and without limiting the generality of the foregoing, no Information Provider warrants the truth or accuracy, timeliness or completeness of any information or Data provider via the Service. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIESIn no event shall any Information Provider, or any of their respective affiliates, employees, directors, officers, agents and representatives, be liable in any way for any loss or damage, direct or indirect, including, without limitation, loss of use, revenues, profits or savings even if such person knew or should have known of the possibility of such damages. THE PARTIES AGREE THAT THE FOREGOING LIMITATIONS REPRESENT A REASONABLE ALLOCATION OF RISK UNDER THIS AGREEMENTNotwithstanding anything herein to the contrary, nothing herein shall limit StatPro’s liability for death or personal injury caused by its negligence, or where to do so would be contrary to any applicable law. 5.3 StatPro shall have no liability to Licensee for claims that are made by Licensee more than two (2) years after the date of expiration or other termination of this Agreement. 5.4 Licensee acknowledges that StatPro has set its prices and entered into this Agreement in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. To the extent permitted by applicable law, StatPro’s maximum aggregate liability in respect of all claims made against StatPro arising out of or in connection with this Agreement shall not exceed the amount set forth in the last sentence of Section 5.1 above.