Indemnity Caps. The Buyer Indemnified Parties may not assert (a) a Rep and Warranty Claim against the Seller to the extent the aggregate amount of all Damages relating to all Rep and Warranty Claims is greater than the Indemnity Cap, or (b) any claim for indemnification arising under this Article VI against the Seller to the extent the aggregate amount of all losses relating to all claims for indemnification arising under this Article VI is greater than the Purchase Price.
Indemnity Caps. (a) In no event shall the Seller have any liability or obligation whatsoever to the Buyer Indemnified Parties for Losses pursuant to Section 9.01(a), Section 9.01(e) and Section 9.01(f) in excess of $3,000,000 (the “Cap”); provided, however, that the foregoing limitation shall not apply to Losses arising from the inaccuracy or breach of a Fundamental Representation or Warranty.
(b) Subject to Section 9.04(a), solely with respect to Losses for which the Buyer Indemnified Parties seek indemnification pursuant to Section 9.01(e), the Buyer Indemnified Parties shall only be entitled to recover fifty percent (50%) of such Losses until the aggregate amount of all Losses pursuant to Section 9.01(e) equal $3,000,000, and thereafter shall be entitled to recover one hundred percent (100%) of such Losses in excess of $3,000,000 in the aggregate. By way of example, if the aggregate amount of Losses pursuant to Section 9.01(e) equal $3,500,000, then the Buyer Indemnified Parties would be entitled to recover $2,000,000 (i.e., fifty percent (50%) of $3,000,000 plus one hundred percent (100%) of $500,000).
(c) In no event shall the Buyer Indemnitors have any liability or obligation whatsoever to the Seller Indemnified Parties for Losses pursuant to Section 9.02(a) and Section 9.02(d) in excess of the Cap; provided, however, that the foregoing limitation shall not apply to Losses arising from the inaccuracy or breach of (i) a Buyer Fundamental Representation or Warranty or (ii) any representation or warranty made in Section 6.06 (Capitalization); provided, further, that in the case of the inaccuracy or breach of Section 6.06 (Capitalization), in no event shall the Buyer Indemnitors have any liability or obligation whatsoever to the Seller Indemnified Parties for such Losses pursuant to Section 9.02(a) in excess of $18,000,000.
(d) Without limiting the foregoing, the Buyer Indemnified Parties may not assert any claim (including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim) against the Seller (or any of its Affiliates) pursuant to, and the Seller (and its Affiliates), as applicable, shall not be liable for any Losses under, this Article IX (or otherwise, including any claim for fraud, intentional misrepresentation, willful misconduct or other similar claim or Section 9.01(a) for the inaccuracy or breach of any Fundamental Representation or Warranty) to the extent the aggregate amount of all Losses claimed or arising pursuant t...
Indemnity Caps. Notwithstanding anything to the contrary set forth in this Agreement :
(a) The maximum aggregate amount of Claims and Losses for which Seller shall be responsible to Buyer pursuant to this Article 8 shall be $9,000,000; provided, however, that Buyer’s sole and exclusive remedy with respect to any Claim or Loss arising from any infringement or alleged infringement of the SmartPlate Intellectual Property on the intellectual property or other proprietary rights of any third party shall be a reduction in the earnout payments payable by Buyer to Seller pursuant to Schedule 2.4(b) hereof (whether or not any earnout payment would otherwise have been payable), in an amount equal to the amount of such Claim or Loss and provided that the aggregate amount of such Claims or Losses actually recovered by Buyer shall not exceed $7,000,000 in the aggregate.
(b) The maximum aggregate amount of Claims and Losses for which Buyer shall be responsible to Seller pursuant to this Article 8 shall be $9,000,000.
Indemnity Caps. (i) Seller and Parent shall have no Liability for any claim for indemnification pursuant to Section 8.02(a) with respect to a Non-fundamental Representation, in the aggregate, in excess of One Million Dollars (the “Cap”), provided that the Cap shall be reduced, dollar for dollar, by the amount of recoveries by the Buyer Indemnitees for any claim for indemnification pursuant to Section 7.02(a) with respect to the Fundamental Representations.
(ii) Seller and Parent shall have no Liability for any claim for indemnification pursuant to Section 8.02(a) with respect to a Fundamental Representation, in excess of fifty percent (50%) of the Purchase Price (less any amounts paid to Buyer Indemnitees under the R&W Policy) (the “Overall Cap”).
(iii) Notwithstanding anything to the contrary in this Agreement, the maximum Liability of Seller and Parent under this Agreement (other than in the case of Fraud, as to which Liability shall not be limited) including, without limitation, any indemnification pursuant to Section 8.02(c), shall not exceed the Overall Cap.
Indemnity Caps. NOVARTIS’ MAXIMUM AGGREGATE LIABILITY UNDER SECTION 8.1(a) AND THE PARALLEL INDEMNIFICATION PROVISION TO BE INCLUDED IN THE SUPPLY AGREEMENT AND FLUIDIGM’S MAXIMUM AGGREGATE LIABILITY UNDER SECTION 8.2(a)(i) AND THE PARALLEL INDEMNIFICATION PROVISION TO BE INCLUDED IN THE SUPPLY AGREEMENT, RESPECTIVELY, SHALL EQUAL [***] (THE “CAP”); PROVIDED, HOWEVER, THAT NO LOSSES RESULTING FROM SUCH PARTY’S RECKLESSNESS OR INTENTIONAL MISCONDUCT SHALL BE COVERED BY OR COUNTED TOWARDS SUCH PARTY’S CAP. IN THE CASE OF MULTIPLE APPLICABLE THIRD PARTY CLAIMS, THE CAP SHALL BE FIRST SET BASED ON THE FIRST SUCH THIRD PARTY CLAIM FILED (“TRIGGERING CLAIM”) AND SUCH CAP SHALL COVER, IN THE AGGREGATE, ALL APPLICABLE THIRD PARTY CLAIMS FILED DURING THE [***] PERIOD FOLLOWING THE FILING OF SUCH TRIGGERING CLAIM. IF AFTER THE CONCLUSION OF SUCH [***] PERIOD, A NEW APPLICABLE THIRD PARTY CLAIM IS FILED, THE CAP SHALL RESET PURSUANT TO THE PRECEDING SENTENCE BASED ON SUCH NEW APPLICABLE THIRD PARTY CLAIM, WHICH SHALL BE TREATED AS A TRIGGERING CLAIM AND THE RESET CAP SHALL APPLY TO ANY OTHER APPLICABLE THIRD PARTY CLAIMS FILED DURING THE [***] PERIOD FOLLOWING THE NEW TRIGGERING CLAIM (AND SUCH RESETTING SHALL APPLY AGAIN, IF NEEDED, AT THE CONCLUSION OF ANY SUCH NEW [***] PERIOD). These limitations, however, shall not apply to liability for personal injury, death, or physical damage to tangible property and for clarity do not apply to any Third Party Infringement Losses. [***] Information has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the omitted portions.
Indemnity Caps. (i) Notwithstanding anything to the contrary set forth in this Agreement, if the Merger is consummated, (A) any Earn-Out Shares that have not been issued shall be the Indemnified Parties sole and exclusive security and source of recovery under this Agreement for any claim for indemnification under or pursuant to clauses (i) through (vi), inclusive, and (viii) of Section 8.2(a), other than claims for indemnification arising out of fraud or intentional or willful breach or inaccuracy of a representation or warranty or willful or intentional breach of a covenant set forth herein and (B) the Indemnified Parties shall not be entitled to recover under this Agreement any Losses in respect of any claim for indemnification under or pursuant to clauses (i) through (vi), inclusive, and (viii) of Section 8.2(a), inclusive, in the aggregate, in excess of the Earn-Out Shares other than claims for indemnification arising out of fraud or intentional or willful breach or inaccuracy of a representation or warranty or willful breach of a covenant set forth herein.
Indemnity Caps. (i) In no event shall the Purchaser Indemnitees be entitled to recover under Sections 7.2(a)(i), 7.2(a)(iii), 7.2(a)(viii) or 7.2(b)(i) for any claims for Damages in excess of $8,500,000 plus the amount of any interest earned under the Note plus the amount of any income and interest earned on the Indemnity Escrow Amount (together, the “Cap Amount”); provided, however, that such limitation shall not apply (though the limitations set forth in Section 7.4(e) shall continue to apply) to any Damages: (1) arising from breaches of the Core Representations and Warranties and breaches of representations and warranties contained in Section 4.12, or (2) suffered or incurred by a Purchaser Indemnitee as a result of, or arising out of, the actual fraud or willful misrepresentation of the Company or Sellers. For purposes of clarity, only recoveries of claims subject to the limitation of the Cap Amount shall be aggregated in calculating whether the Cap Amount has been exceeded, and nothing in this Section 7.4(c)(i) shall apply to any indemnification to which any Purchaser Indemnitee is entitled under Sections 7.2(a)(ii), Sections 7.2(a)(iv) through 7.2(a)(vii) or Section 7.2(b)(ii), in each case subject to the limitations set forth in Section 7.4(e).
(ii) In no event shall the Seller Indemnitees be entitled to recover under Section 7.3(a) for any claims for Damages in excess of the Cap Amount; provided, however, that such limitation shall not apply to any Damages: (1) arising from breaches of Purchaser Core Representations and Warranties, or (2) suffered or incurred by a Seller Indemnitee as a result of, or arising out of, the actual fraud or willful misrepresentation of Purchaser, in each case without limit upon such Damages. For purposes of clarity, nothing in this Section 7.4(c)(ii) shall apply to any indemnification to which any Seller Indemnitee is entitled under Section 7.3(b).
Indemnity Caps. (i) Except as provided in Sections 10.4(a) and 10.4(c) above: (A) the aggregate Losses payable by Seller and the Owner Parties pursuant to Section 10.1 shall not exceed fifteen million dollars ($15,000,000) (“Seller Indemnity Cap”); and (B) the aggregate Losses payable by any Owner Party pursuant to Section 10.1 shall not exceed an amount equal to (1) the Seller Indemnity Cap, multiplied by (2) the ratio (expressed as a percentage) of such Owner Party’s percentage of ownership interest in Seller as identified in the Side Letter to the total percentage of ownership interests in Seller as identified in the Side Letter held (directly or indirectly) by all Owner Parties executing and delivering this Agreement (each an “Owner Party Indemnity Cap”), which ratio/percentage and Owner Party Indemnity Cap for each Owner Party is identified in the Side Letter to this Agreement.
Indemnity Caps. Notwithstanding anything contained in this Article 10:
(i) the aggregate liability of the Selling Parties under Section 10.1(a) and Section 10.1(A)(a) shall not exceed $10 million less any amounts previously paid by the Selling Parties under this Section 10 (the "Basic Indemnity Cap"); provided, however, that, subject to Section 10.1(b)(ii), the Basic Indemnity Cap shall not apply to any Indemnified Loss arising out of (i) any breach of a representation or warranty made in Section 4.2 or the first sentence of Section 4.7, (ii) any Excluded Liabilities, (iii) liabilities for Taxes as described in Section 10.1(d), or (iv) any Selling Party's fraud, bad faith or willful misconduct;
(ii) notwithstanding the proviso in Section 10.3(b)(i), the aggregate liability of the Selling Parties under Section 10.1 and Section 10.1(A) with respect to any Indemnified Loss arising out of any Excluded Liabilities described in clauses (a), (h) and (s) of Section 1.31 shall not exceed $21 million less any amounts previously paid by the Selling Parties under this Section 10 (the "Excluded Liabilities Indemnity Cap");
(iii) the Basic Indemnity Cap and the Excluded Liabilities Indemnity Cap are collectively referred to herein as the "Indemnity Caps";
(iv) notwithstanding anything to the contrary contained herein, the representations and warranties contained in Article 3 and the covenants set forth in Article 11 are made severally and not jointly by each Selling Party as to himself or itself only and no other Selling Party shall be liable therefor and no Selling Party shall be liable hereunder for any other Selling Party's fraud, bad faith or willful misconduct.
Indemnity Caps
