Common use of Exclusivity of Remedies Clause in Contracts

Exclusivity of Remedies. (i) Notwithstanding anything in this Agreement to the contrary, but subject to the last sentence of Section 8.3(c) and to this Section 8.3(d), in the event of any valid termination of this Agreement pursuant to Section 8.1 where the Company Termination Fee, the Change of Recommendation Termination Fee or the Acquisition Termination Fee is payable pursuant to Section 8.3(b) and such fee is actually paid to Purchaser or its designee, such fee (together with any Expense Reimbursement previously paid to Purchaser and any other fee that may be payable pursuant to Section 8.3(b)) shall constitute the sole and exclusive remedy of Purchaser against the Company Related Parties for any loss suffered as a result of the failure of the transactions contemplated by this Agreement and the Transaction Documents to be consummated, and on payment of the Company Termination Fee, the Change of Recommendation Termination Fee or Acquisition Termination Fee, as applicable (together with any Expense Reimbursement payable hereunder and any other fee that may be payable pursuant to Section 8.3(b)), none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement and the Transaction Documents (except that Purchaser may be entitled to remedies with respect to the Confidentiality Agreement, Section 8.3(a) and the last sentence of Section 8.3(c), as applicable); provided, that this Section 8.3(d)(i) shall not apply in the case of intentional fraud in respect of the statements made in this Agreement or any Willful Breach prior to its termination. The Parties acknowledge and agree that, subject to the last sentence of Section 8.3(c), in no event shall the Company be required to pay the Expense Reimbursement on more than one occasion, the Company Termination Fee on more than one occasion, the Change of Recommendation Termination Fee on more than one occasion or the Acquisition Termination Fee on more than one occasion. (ii) Subject to Section 8.1 and Section 8.3(d)(iii), if Purchaser breaches this Agreement, the Company’s right to (A) seek an injunction, specific performance or other equitable relief in accordance with the terms and limitations of Section 9.8(b) or (B) terminate this Agreement and seek money damages from Purchaser in the event of intentional fraud in respect of the statements made in this Agreement or Willful Breach by Purchaser prior to termination shall be the sole and exclusive remedies (whether such remedies are sought in equity or at law, in contract, in tort or otherwise) of any of the Company Related Parties against any of the Purchaser Related Parties for any losses, damages, costs, expenses, obligations or liabilities arising out of or related to this Agreement (or any breach of any representation, warranty, covenant, agreement or obligation contained herein), the transactions contemplated by this Agreement (or any failure of such transactions to be consummated) or in respect of any oral representations made or alleged to be made in connection with this Agreement, the transactions contemplated herein or therein or otherwise (except that the Parties (or their Affiliates) shall remain obligated with respect to, and the Company and its Subsidiaries may be entitled to remedies with respect to, the Confidentiality Agreement and Section 8.3(a)). (iii) While each of the Company and Purchaser may pursue a grant of specific performance in accordance with Section 9.8(b), under no circumstances shall the Company or Purchaser be permitted or entitled to receive both (A) a grant of specific performance that results in the Closing occurring and (B) any money damages (including the Company Termination Fee, the Change of Recommendation Termination Fee and the Acquisition Termination Fee but, for the avoidance of doubt, excluding the Expense Reimbursement).

Exclusivity of Remedies. (i) Notwithstanding anything in this Agreement Resort to the contrary, but subject provisions of this Article VII and Section 1.7 providing for the delivery of Exchangeable Shares to the last sentence of Section 8.3(cSurviving Corporation for cancellation from the Escrow Fund shall be BackWeb Parent's (and its affiliates') and to this Section 8.3(d), in the event of any valid termination of this Agreement pursuant to Section 8.1 where the Company Termination Fee, the Change of Recommendation Termination Fee or the Acquisition Termination Fee is payable pursuant to Section 8.3(b) and such fee is actually paid to Purchaser or its designee, such fee (together with any Expense Reimbursement previously paid to Purchaser and any other fee that may be payable pursuant to Section 8.3(b)) shall constitute the sole and exclusive remedy of Purchaser against the Company Related Parties for any loss suffered as a result Losses, except for Losses resulting from breaches of the failure of the transactions contemplated by this Agreement representations and the Transaction Documents to be consummatedwarranties contained in Sections 2.2, 2.7 and on payment of the Company Termination Fee, the Change of Recommendation Termination Fee or Acquisition Termination Fee, as applicable (together with any Expense Reimbursement payable hereunder and any other fee that may be payable pursuant to Section 8.3(b)), none of the Company Related Parties shall have any further liability or obligation relating to or arising out 2.17 of this Agreement and Losses resulting from fraud (collectively, the Transaction Documents (except "Special Losses"). The parties agree that Purchaser may BackWeb Parent shall be entitled able to remedies recover from Founder Holdco for all Special Losses, including any Losses above the Escrow Amount, during the applicable survival period set forth in Section 7.1 hereof; provided however, that Founder Holdco's aggregate liability with respect to all Special Losses (including Founder Holdco's proportionate share of any amounts paid to BackWeb Parent out of the Confidentiality Agreement, Section 8.3(a) and the last sentence of Section 8.3(c), as applicable); provided, that this Section 8.3(d)(iEscrow Fund) shall not apply exceed the total Amalgamation Consideration received by Founder Holdco (including Exchangeable Shares placed in Escrow pursuant to the case provisions of intentional fraud in respect of the statements made in this Agreement or any Willful Breach prior to its terminationSection 1.9 and Article VII). The Parties acknowledge and agree that, subject to Founder agrees that until such time as the last sentence of Section 8.3(c), in no event Escrow Fund shall the Company be required to pay the Expense Reimbursement on more than one occasion, the Company Termination Fee on more than one occasion, the Change of Recommendation Termination Fee on more than one occasion or the Acquisition Termination Fee on more than one occasion. (ii) Subject to Section 8.1 and Section 8.3(d)(iii), if Purchaser breaches this Agreement, the Company’s right to (A) seek an injunction, specific performance or other equitable relief in accordance with the terms and limitations of Section 9.8(b) or (B) terminate this Agreement and seek money damages from Purchaser in the event of intentional fraud in respect of the statements made in this Agreement or Willful Breach by Purchaser prior to termination shall be the sole and exclusive remedies (whether such remedies are sought in equity or at law, in contract, in tort or otherwise) of any of the Company Related Parties against any of the Purchaser Related Parties for any losses, damages, costs, expenses, obligations or liabilities arising out of or related to this Agreement (or any breach of any representation, warranty, covenant, agreement or obligation contained herein), the transactions contemplated by this Agreement (or any failure of such transactions to be consummated) or in respect of any oral representations made or alleged to be made in connection with this Agreement, the transactions contemplated herein or therein or otherwise (except that the Parties (or their Affiliates) shall remain obligated with respect to, and the Company and its Subsidiaries may be entitled to remedies with respect to, the Confidentiality Agreement and Section 8.3(a)). (iii) While each of the Company and Purchaser may pursue a grant of specific performance have been terminated in accordance with Section 9.8(b7.2(b), the Founder will remain the owner of all right, title and interest in and to all of the outstanding shares of Founder Holdco, that Founder Holdco will remain the owner of all right, title and interest in and to all of the Exchangeable Shares delivered to it under no circumstances this Agreement, that Founder Holdco shall not effect any borrowings or incur any liabilities other than potential liabilities to BackWeb Parent or BackWeb Canada under this Agreement and that Founder Holdco will not be used for any purpose other than as contemplated by this Agreement. The parties hereto agree that the Company Founder shall not be personally liable for any breach of this Agreement (except for a breach of the preceding sentence which actually reduces the ability of the Surviving Corporation or Purchaser be permitted or BackWeb Parent to recover Exchangeable Shares for cancellation which it would have otherwise been entitled to receive both recover under this Agreement, and in such circumstances only to the extent of such actual reduction) and that (Aexcept for any breach of the preceding sentence) a grant of specific performance that results recourse to the Escrow Fund or to Founder Holdco in the Closing occurring accordance with this Section 7.2(i) shall be BackWeb Parent's (and (Bits affiliates') any money damages (including the Company Termination Fee, the Change of Recommendation Termination Fee and the Acquisition Termination Fee but, for the avoidance of doubt, excluding the Expense Reimbursement)exclusive remedy hereunder.

Exclusivity of Remedies. (i) Notwithstanding anything in this Agreement to the contrary, but subject to the last sentence of Section 8.3(c9.3(c) and to this Section 8.3(d9.3(d), in the event of any valid termination of this Agreement pursuant to Section 8.1 where the Company Termination Fee, Fee and Expense Reimbursement to the Change of Recommendation Termination Fee or the Acquisition Termination Fee extent owed described in Section 9.3(b) is payable pursuant to Section 8.3(b) and such fee is actually paid to the Purchaser or its designeerespective designees, such fee (together with any Company Termination Fee and Expense Reimbursement previously paid to Purchaser and any other fee that may be payable pursuant to Section 8.3(b)) the extent owed shall constitute the sole and exclusive remedy of the Purchaser against (A) the Company, its Subsidiaries and each of their respective Affiliates; and (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (collectively, the “Company Related Parties Parties”) for any loss suffered as a result of the failure of the transactions contemplated by this Agreement and the Transaction Documents or any agreement executed in connection herewith to be consummated, and on upon payment of the Company Termination Fee, the Change of Recommendation Termination Fee or Acquisition Termination Fee, as applicable (together with any and Expense Reimbursement payable hereunder and any other fee that may be payable pursuant to Section 8.3(b)), the extent owed none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement Agreement, any agreement executed in connection herewith or the transactions contemplated hereby and the Transaction Documents thereby (except that the Parties (or their Affiliates) will remain obligated with respect to, and the Purchaser may be entitled to remedies with respect to to, the Confidentiality Agreement, Section 8.3(a9.3(a) and the last sentence of Section 8.3(c9.3(d), as applicable); provided, that this Section 8.3(d)(i) shall not apply in the case of intentional fraud in respect of the statements made in this Agreement or any Willful Breach prior to its terminationother than for Fraud. The Parties hereto acknowledge and agree that, subject to the last sentence of Section 8.3(c9.3(c), in no event shall the Company be required to pay the Company Termination Fee and Expense Reimbursement to the extent owed on more than one occasion, whether or not the Company Termination Fee on and Expense Reimbursement to the extent owed may be payable under more than one occasionprovision of this Agreement at the same or at different times or for the occurrence of different events. Notwithstanding anything herein to the contrary, the Change Parties acknowledge and agree that, other than in the case of Recommendation Fraud, in no event will the Company or any of its Subsidiaries have liability for monetary damages (including monetary damages in lieu of specific performance) in the aggregate in excess of the amount of the sum of the Company Termination Fee on more than one occasion or Fee, Expense Reimbursement, and Recovery Costs to the Acquisition Termination Fee on more than one occasionextent owed (less any portion thereof that has been paid). (ii) Subject Notwithstanding anything to the contrary in this Agreement but subject to Section 8.1 and Section 8.3(d)(iii9.3(e)(iii), if the Purchaser breaches this AgreementAgreement (whether such breach is intentional and material, unintentional, willful or otherwise) or fails to perform hereunder (whether such failure is intentional and material, unintentional, willful or otherwise), the Company’s right to to: (A) seek an injunction, specific performance or other equitable relief in accordance with the terms and limitations of Section 9.8(b) 10.8(b); or (B) terminate this Agreement and seek money damages from the Purchaser in the event of intentional fraud in respect willful and material breach of the statements made in this Agreement or Willful Breach by the Purchaser prior to termination termination, shall be the sole and exclusive remedies (whether such remedies are sought in equity or at law, in contract, in tort or otherwise) of any of the Company and the Company Related Parties against (1) the Purchaser, its Subsidiaries and each of their respective Affiliates; and (2) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of the Purchaser, its Subsidiaries and their respective Affiliates (collectively, the “Purchaser Related Parties Parties”) for any losses, damages, costs, expenses, obligations or liabilities arising out of or related to this Agreement (or any breach of any representation, warranty, covenant, agreement or obligation contained herein), the transactions contemplated by this Agreement (or any failure of such transactions to be consummated) or in respect of any oral representations made or alleged to be made in connection with this Agreement, the transactions contemplated herein or therein or otherwise (except that the Parties (or their Affiliates) shall will remain obligated with respect to, and the Company and its Subsidiaries may be entitled to remedies with respect to, the Confidentiality Agreement Agreement, Section 9.3(a) and Section 8.3(a9.3(d)). (iii) While each of the Company and the Purchaser may pursue a grant of specific performance in accordance with Section 9.8(b10.8(b), under no circumstances shall the Company or the Purchaser be permitted or entitled to receive both (A) a grant of specific performance that results in the Closing occurring and (B) any money damages (including the Company Termination Fee, the Change of Recommendation Termination Fee and the Acquisition Termination Fee but, for the avoidance of doubt, excluding the Expense Reimbursement, as applicable).

Exclusivity of Remedies. (i) Notwithstanding anything in this Agreement to the contrary, but subject to the last sentence of Section 8.3(c9.3(c) and to this Section 8.3(d9.3(d), in the event of any valid termination of this Agreement pursuant to Section 8.1 where the Company Termination Fee, Fee and Expense Reimbursement to the Change of Recommendation Termination Fee or the Acquisition Termination Fee extent owed described in Section 9.3(b) is payable pursuant to Section 8.3(b) and such fee is actually paid to the Purchaser or its designeerespective designees, such fee (together with any Company Termination Fee and Expense Reimbursement previously paid to Purchaser and any other fee that may be payable pursuant to Section 8.3(b)) the extent owed shall constitute the sole and exclusive remedy of the Purchaser against (A) the Company, its Subsidiaries and each of their respective Affiliates; and (B) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of each of the Company, its Subsidiaries and each of their respective Affiliates (collectively, the “Company Related Parties Parties”) for any loss suffered as a result of the failure of the transactions contemplated by this Agreement and the Transaction Documents or any agreement executed in connection herewith to be consummated, and on upon payment of the Company Termination Fee, the Change of Recommendation Termination Fee or Acquisition Termination Fee, as applicable (together with any and Expense Reimbursement payable hereunder and any other fee that may be payable pursuant to Section 8.3(b)), the extent owed none of the Company Related Parties shall have any further liability or obligation relating to or arising out of this Agreement Agreement, any agreement executed in connection herewith (including the Equity Commitment Letter) or the transactions contemplated hereby and the Transaction Documents thereby (except that the Parties (or their Affiliates) will remain obligated with respect to, and the Purchaser may be entitled to remedies with respect to to, the Confidentiality Agreement, Section 8.3(a9.3(a) and the last sentence of Section 8.3(c9.3(d), as applicable); provided, that this Section 8.3(d)(i) shall not apply in the case of intentional fraud in respect of the statements made in this Agreement or any Willful Breach prior to its terminationother than for Fraud. The Parties hereto acknowledge and agree that, subject to the last sentence of Section 8.3(c9.3(c), in no event shall the Company be required to pay the Company Termination Fee and Expense Reimbursement to the extent owed on more than one occasion, whether or not the Company Termination Fee on and Expense Reimbursement to the extent owed may be payable under more than one occasionprovision of this Agreement at the same or at different times or for the occurrence of different events. Notwithstanding anything herein to the contrary, the Change Parties acknowledge and agree that, other than in the case of Recommendation Fraud, in no event will the Company or any of its Subsidiaries have liability for monetary damages (including monetary damages in lieu of specific performance) in the aggregate in excess of the amount of the sum of the Company Termination Fee on more than one occasion or Fee, Expense Reimbursement, and Recovery Costs to the Acquisition Termination Fee on more than one occasionextent owed (less any portion thereof that has been paid). (ii) Subject Notwithstanding anything to the contrary in this Agreement but subject to Section 8.1 and Section 8.3(d)(iii9.3(e)(iii), if the Purchaser breaches this AgreementAgreement (whether such breach is intentional and material, unintentional, willful or otherwise) or fails to perform hereunder (whether such failure is intentional and material, unintentional, willful or otherwise), the Company’s right to to: (A) seek an injunction, specific performance or other equitable relief in accordance with the terms and limitations of Section 9.8(b) 10.8(b); or (B) terminate this Agreement and seek money damages from the Purchaser in the event of intentional fraud in respect willful and material breach of the statements made in this Agreement or Willful Breach by the Purchaser prior to termination termination, shall be the sole and exclusive remedies (whether such remedies are sought in equity or at law, in contract, in tort or otherwise) of any of the Company and the Company Related Parties against (1) the Purchaser, its Subsidiaries and each of their respective Affiliates; and (2) the former, current and future holders of any equity, controlling persons, directors, officers, employees, agents, attorneys, Affiliates, members, managers, general or limited partners, stockholders and assignees of the Purchaser, its Subsidiaries and their respective Affiliates (collectively, the “Purchaser Related Parties Parties”) for any losses, damages, costs, expenses, obligations or liabilities arising out of or related to this Agreement (or any breach of any representation, warranty, covenant, agreement or obligation contained herein), the transactions contemplated by this Agreement (or any failure of such transactions to be consummated) ), the Equity Commitment Letter, the financing contemplated therein (or any failure of such financing to be consummated), or in respect of any oral representations made or alleged to be made in connection with this Agreement, the transactions contemplated herein or therein or otherwise (except that the Parties (or their Affiliates) shall will remain obligated with respect to, and the Company and its Subsidiaries may be entitled to remedies with respect to, the Confidentiality Agreement Agreement, Section 9.3(a) and Section 8.3(a9.3(d)). (iii) While each of the Company and the Purchaser may pursue a grant of specific performance in accordance with Section 9.8(b10.8(b), under no circumstances shall the Company or the Purchaser be permitted or entitled to receive both (A) a grant of specific performance that results in the Closing occurring and (B) any money damages (including the Company Termination Fee, the Change of Recommendation Termination Fee and the Acquisition Termination Fee but, for the avoidance of doubt, excluding the Expense Reimbursement, as applicable).