Common use of Exclusion of Damages; Limitation of Liability Clause in Contracts

Exclusion of Damages; Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR OTHER LEGAL THEORY: (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE MAXIMUM AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, UNDER THE DEFENCE OBLIGATIONS SET FORTH IN SECTION 13 HEREOF, SHALL BE EQUAL TO [***] PAID BY COMPANY TO MICROSOFT HEREUNDER; PROVIDED THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

Exclusion of Damages; Limitation of Liability. (a) IN NO EVENT SHALL LICENSOR BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS USE, OPERATION OR PERFORMANCE OF ANY OF THE LICENSED TECHNOLOGY, WHETHER SUCH LIABILITY IS ARISES FROM ANY CLAIM BASED ON BREACH OF UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITYPRODUCT LIABILITY BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF WARRANTIESMISREPRESENTATION OR OTHERWISE, AND WHETHER OR OTHER LEGAL THEORY: (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INFORMATION, EVEN IF SUCH PARTY HAS NOT LICENSORHAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; ANDLOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE LICENSED TECHNOLOGY, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OR OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY OR CONDITION, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE UNDER NO CIRCUMSTANCE SHALL LICENSOR BE LIABLE FOR ANY ACTIONS, CLAIMS OR THE LIKE BY LICENSEE OR ANY THIRD PARTY THAT THE USE OF THE LICENSED TECHNOLOGY HAS RESULTED, RESULTS OR MAY RESULT IN ANY INFRINGEMENT, DEPRIVATION OR VIOLATION OF THE INTELLECTUAL PROPERTY, CONSTITUTIONAL, STATUTORY, CONTRACTUAL, COMMON LAW OR OTHER RIGHTS OF ANY PERSON (Bb) THE MAXIMUM IN NO EVENT SHALL LICENSOR'S AGGREGATE CUMULATIVE TOTAL LIABILITY OF ONE PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, UNDER EXCEED ONE HALF OF THE DEFENCE OBLIGATIONS SET FORTH IN SECTION 13 HEREOF, SHALL BE EQUAL TO [***] AMOUNT PAID BY COMPANY THE LICENSEE TO MICROSOFT Licensor HEREUNDER; PROVIDED THAT THE FOREGOING EXCLUSIONS . (c) THIS SECTION IS A MATERIAL INDUCEMENT TO AND LIMITATIONS SHALL NOT APPLY TO ANY DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTSCONDITION FOR LICENSOR ENTERING INTO THIS AGREEMENT.

Exclusion of Damages; Limitation of Liability. IN NO EVENT SHALL ESL OR ITS LICENSORS BE LIABLE TO LICENSEE OR TO ANY THIRD PARTY FOR ANY DAMAGES ARISING IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION, ESL MATERIALS, OR SERVICES RELATED THERETO. THIS DISCLAIMER OF LIABILITY SHALL APPLY REGARDLESS OF THE FORM OF ACTION THAT MAY BE BROUGHT AGAINST ESL OR ITS LICENSORS, WHETHER IN CONTRACT OR TORT, INCLUDING WITHOUT LIMITATION ANY ACTION FOR NEGLIGENCE.LICENSEE'S SOLE REMEDY IN THE EVENT OF BREACH SHALL BE CESSATION OF USE AND/OR ACCESS TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW SOFTWARE, DOCUMENTATION AND ESL MATERIALS VIA THE SERVICE. ANYTHING TO THE CONTRARY HEREIN NOT WITHSTANDING, UNDER NO CIRCUMSTANCES AND REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH THE NATURE OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, ANY CLAIM SHALL ESL OR OTHER LEGAL THEORY: (A) NEITHER PARTY SHALL ITS LICENSORS BE LIABLE TO THE LICENSEE OR ANY OTHER PARTY PERSON OR ENTITY IN ANY AMOUNT FOR ANY INDIRECTSPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT INCLUDINGINDIRECT DAMAGES, WITHOUT LIMITATION, SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS AND/GOODWILL OR BUSINESS INFORMATIONPROFITS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ATTORNEYS' FEES, COURT COSTS, INTEREST OR EXEMPLARY OR PUNITIVE DAMAGES; AND (B) THE MAXIMUM AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, UNDER THE DEFENCE OBLIGATIONS SET FORTH IN SECTION 13 HEREOF, SHALL BE EQUAL TO [***] PAID BY COMPANY TO MICROSOFT HEREUNDER; PROVIDED THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS. The provisions of this Agreement allocate the risks between ESL and Licensee. The license fees reflect this allocation of risk and the limitations of liability herein.

Exclusion of Damages; Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW [*] AND REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR OTHER LEGAL THEORY: (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INFORMATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) THE MAXIMUM AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, UNDER THE DEFENCE OBLIGATIONS SET FORTH IN SECTION 13 HEREOF, SHALL BE EQUAL TO [***] PAID BY COMPANY TO MICROSOFT HEREUNDER; PROVIDED THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.

Exclusion of Damages; Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED ALLOWED BY APPLICABLE LAW LAW, NEITHER RIEDEL NOR ITS VENDORS AND REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR OTHER LEGAL THEORY: (A) NEITHER PARTY LICENSORS SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECTSPECIAL, INCIDENTAL, CONSEQUENTIALPUNITIVE, PUNITIVE INDIRECT OR SPECIAL CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO FROM THIS AGREEMENT INCLUDINGOR THE RIEDEL APPLICATION, WITHOUT LIMITATIONINCLUDING BUT NOT LIMITED TO LOST PROFITS, SUCH LOST SAVINGS, OR DAMAGES FOR ARISING FROM LOSS OF BUSINESS PROFITS AND/DATA OR BUSINESS INFORMATIONLOSS OF USE, EVEN IF SUCH PARTY HAS RIEDEL OR ITS VENDORS OR LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESDAMAGES RIEDEL RESERVES THE RIGHT TO REPLACE OR REPAIR THE APPLICATION AT ITS DISCRETION; AND (B) SUCH REPAIR OR REPLACEMENT IN NO WAY REFLECTS AN ADMISSION OF ANY LIABILITY IN WHOLE OR IN PART. THE MAXIMUM AGGREGATE LIABILITY OF ONE PARTY TO THE OTHER PARTY UNDER RIEDEL AND ITS VENDORS AND LICENSORS ARISING OUT OF THIS AGREEMENT FOR ANY REASONOR THE SALE OR LICENCE OF THE RIEDEL APPLICATION OR THE USE THEREOF, INCLUDINGWHETHER BASED UPON WARRANTY, WITHOUT LIMITATIONCONTRACT, UNDER THE DEFENCE OBLIGATIONS SET FORTH IN SECTION 13 HEREOFTORT OR OTHERWISE, SHALL BE EQUAL NOT EXCEED THE ACTUAL PAYMENT MADE BY LICENSEE TO [***] PAID BY COMPANY TO MICROSOFT HEREUNDER; PROVIDED THAT RIEDEL DURING THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.LAST 12 MONTHS FOR THE

Exclusion of Damages; Limitation of Liability. TO 14.1 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN THE MAXIMUM EXTENT PERMITTED MASTER AGREEMENT, IN NO EVENT WILL PARTNER OR THE BY APPLICABLE LAW AND REGARDLESS OF WHETHER LIABILITY IS BASED ON COMPANIES UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITYLIABILITY AND OTHERWISE, BREACH OF WARRANTIES, OR OTHER LEGAL THEORY: FOR ANY: (A) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECTLOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR (B) CONSEQUENTIAL, INCIDENTAL, CONSEQUENTIALINDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE OR SPECIAL DAMAGES ARISING OUT DAMAGES, REGARDLESS OF OR RELATED IN ANY WAY TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, WHETHER SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INFORMATION, EVEN IF SUCH PARTY HAS BEEN PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; ANDLOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. (B) 14.2 EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN OR IN THE MAXIMUM MASTER AGREEMENT, AND SUBJECT TO SECTION 14.1, IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF ONE PARTY PARTNER OR THE BY COMPANIES UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF (I) THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO THE OTHER PARTY BY UNDER THIS AGREEMENT FOR ANY REASONIN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, INCLUDING(II) THE TOTAL AMOUNT OF ALL FEES PAID OR PAYABLE TO PARTNER UNDER THIS AGREEMENT IN THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM, WITHOUT LIMITATIONOR (III) $200,000. 14.3 The exclusions and limitations set forth in Sections 14.1 and 14.2 do not apply to: (a) Losses arising out of or relating to Partner’s breach of its obligations under Sections 5, UNDER THE DEFENCE OBLIGATIONS SET FORTH IN SECTION 13 HEREOF6, SHALL BE EQUAL TO [***] PAID BY COMPANY TO MICROSOFT HEREUNDER; PROVIDED THAT THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY TO ANY DAMAGES ARISING FROM EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OR INFRINGEMENT OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.or 16;

Exclusion of Damages; Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND REGARDLESS OF WHETHER LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, OR OTHER LEGAL THEORY: (A) NEITHER IN NO EVENT SHALL A PARTY SHALL BE LIABLE TO THE OTHER ANOTHER PARTY FOR ANY INCIDENTAL, INDIRECT, INCIDENTALSPECIAL, CONSEQUENTIALCONSEQUENTIAL OR PUNITIVE DAMAGES, PUNITIVE REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING WITHOUT LIMITATION LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, COSTS OF LOST OR SPECIAL DAMAGES DAMAGED DATA OR DOCUMENTATION OR LIABILITIES TO THIRD PARTIES ARISING OUT OF OR RELATED IN FROM ANY WAY TO THIS AGREEMENT INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES FOR LOSS OF BUSINESS PROFITS AND/OR BUSINESS INFORMATIONSOURCE, EVEN IF THE PARTY FROM WHICH SUCH PARTY DAMAGES ARE SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) . EXCEPT FOR THE MAXIMUM AGGREGATE LIABILITY OBLIGATIONS OF ONE PARTY TO THE OTHER PARTY UNDER THIS AGREEMENT FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, UNDER THE DEFENCE OBLIGATIONS INDEMNITY SET FORTH IN SECTION 13 HEREOFPARAGRAPH 5.06(a) HEREOF AND A BREACH OF THE WARRANTIES SET FORTH IN PARAGRAPHS 5.02(a) AND 5.03, IN NO EVENT SHALL A PARTY BE LIABLE TO ANOTHER PARTY (INCLUDING BY WAY OF INDEMNIFICATION FOR CLAIMS AGAINST SUCH OTHER PARTY BY ITS DISTRIBUTORS, CUSTOMERS OR END USERS) FOR DAMAGES IN EXCESS OF TWO HUNDRED FIFTY THOUSAND DOLLARS ($250,000), REGARDLESS OF THE NATURE OF THE CLAIM. THE MAXIMUM LIABILITY OF AUTOTOTE AND ASI COLLECTIVELY FOR A KNOWING BREACH OF A WARRANTY SET FORTH IN PARAGRAPHS 5.02 OR 5.03 OR FOR INDEMNIFICATION THEREFOR UNDER PARAGRAPH 5.06(a) HEREOF SHALL BE EQUAL TO [***] PAID BY COMPANY TO MICROSOFT HEREUNDER; PROVIDED THAT THREE MILLION DOLLARS (U.S.) ($3,000,000). THE FOREGOING EXCLUSIONS MAXIMUM LIABILITY OF AUTOTOTE AND LIMITATIONS ASI COLLECTIVELY FOR AN UNKNOWING BREACH OF A WARRANTY SET FORTH IN PARAGRAPHS 5.02 OR 5.03 OR FOR INDEMNIFICATION THEREFOR UNDER PARAGRAPH 5.06(a) SHALL NOT APPLY TO ANY DAMAGES BE ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000). NOTWITHSTANDING THE FOREGOING, THE MAXIMUM LIABILITY OF AUTOTOTE AND ASI COLLECTIVELY ARISING FROM EITHER PARTY’S BREACH A CLAIM BY LVDC (INCLUDING A CLAIM OF ITS CONFIDENTIALITY OBLIGATIONS CONTAINED IN SECTION 11 HEREOF OWNERSHIP OF OR INFRINGEMENT OF ALL OR PART OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTSAUTOTOTE LICENSED MATERIALS) SHALL BE ONE MILLION FIVE HUNDRED THOUSAND DOLLARS ($1,500,000).