Exceptions to Limitations These limitations of liability do not apply to breaches of confidentiality obligations, violations of a party’s Intellectual Property Rights by the other party, indemnification obligations, or Customer's payment obligations.
Usage Limitations You shall use best efforts to ensure that only Authorized Customer Support Users are provided access to the Service Desk Infrastructure and Student Support Services, including not causing or permitting third parties to access such infrastructure or services.
Other Limitations Notwithstanding anything to the contrary set forth in this Agreement, the amount of any Loss subject to indemnification pursuant to this ARTICLE VIII shall be calculated net of (a) any insurance proceeds actually received in cash (net of any applicable deductibles, co-payments, “retro premium” adjustments and similar costs or payments) by the Indemnified Party or any of its Affiliates on account of such Loss, (b) any Tax Benefits inuring to the Indemnified Party on account of such Loss and (c) any indemnification, contribution or other payment actually received in cash (net of any applicable costs of recovery or collection thereof) from any third Person with respect to such Loss. The Indemnified Party shall use its reasonable best efforts to (A) seek full recovery from any third parties and under all insurance policies covering, and all right to indemnification and/or contribution from third Persons in respect of, any Loss and (B) mitigate any actual or potential Loss, in each case to the same extent as it would if such Loss were not subject to indemnification pursuant to this ARTICLE VIII (including, for example, Buyer’s judgment regarding the impact such actions might have on customers and other third parties having material continuing business relationships with the Sold Companies). In the event that an insurance, indemnification, contribution or other recovery is made or a Tax benefit described in this Section 8.7(b) is realized by the Indemnified Party with respect to any Loss for which it has been indemnified pursuant to this ARTICLE VIII, then a refund equal to the aggregate amount of the recovery or benefit shall be paid promptly in immediately available funds to the Indemnifying Party that provided such indemnification to the Indemnified Party. If the Indemnified Party receives a Tax Benefit after an indemnification payment is made to it pursuant to this ARTICLE VIII, the Indemnified Party shall promptly pay to the Indemnifying Party that made such indemnification payment the amount of such Tax Benefit at such time or times as and to the extent that such Tax Benefit is realized by the Indemnified Party. For purposes hereof, “Tax Benefit” shall mean, with respect to any applicable Loss, any cash Tax savings or refunds that are received and actually recognized by the Indemnified Party in the tax year of the respective Loss, and any amounts actually credited against cash Taxes payable of the Indemnified Party in the tax year of the respective Loss, in each case determined on a with and without basis (comparing the actual cash Tax liability of the Indemnified Party for the applicable year against the hypothetical cash Tax liability of the Indemnified Party had such Loss not been incurred); provided, that no Tax Benefit shall be taken into account with respect to a Loss to the extent such Loss (or the receipt of an indemnity payment in respect of such Loss) would result in a reduction of Tax basis in depreciable or amortizable property; provided, further, that in no event shall the Tax Benefit be deemed to exceed the amount of any indemnification payment paid to the Indemnified Party. The Seller Indemnified Persons or the Buyer Indemnified Persons, as the case may be, shall not be entitled to recover more than once for the same Loss. No Seller Indemnified Person shall be entitled to recover any Loss if and to the extent such Loss is reflected in the calculation of Closing Indebtedness, Unpaid Sold Company Transaction Expenses or Closing Net Working Capital.
DISCLAIMERS; EXCLUSIONS; LIMITATIONS Subject to §4, neither party makes any warranties (express, implied, or otherwise), including implied warranties of merchantability, non-infringement, fitness for a particular purpose, or title, related to its performance or anything else provided under this Agreement. Neither party will be liable for any special, incidental, punitive, or consequential damages of any kind for any reason whatsoever relating to this Agreement, even if such damages were reasonably foreseeable.
Specific Limitations No Member shall have the right or power to: (a) withdraw or reduce such Member’s Capital Contribution except as a result of the dissolution of the Company or as otherwise provided by law or in this Agreement; (b) make voluntary Capital Contributions or to contribute any property to the Company other than cash; (c) bring an action for partition against the Company or any Company assets; (d) cause the termination and dissolution of the Company, except as set forth in this Agreement; or (e) upon the Distribution of its Capital Contribution require that property other than cash be distributed in return for its Capital Contribution. Each Member hereby irrevocably waives any such rights.
Transaction Limitations Once Your Account is established, You may not make additional deposits prior to the Maturity Date. Maturity Date. Your Account will mature after the term indicated on the accompanying Account Disclosure Rate Supplement.
No Limitations (a) Except for termination of a Guarantor’s obligations hereunder as expressly provided in Section 12.13, the obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Obligations or otherwise. Without limiting the generality of the foregoing, the obligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by (i) the failure of the Collateral Agent or any other Secured Party to assert any claim or demand or to enforce any right or remedy under the provisions of any Credit Document or otherwise; (ii) any rescission, waiver, amendment or modification of, or any release from any of the terms or provisions of, any Credit Document or any other agreement, including with respect to any other Guarantor under this Agreement; (iii) the release of any security held by the Collateral Agent or any other Secured Party for the Obligations; (iv) any default, failure or delay, wilful or otherwise, in the performance of the Obligations; or (v) any other act or omission that may or might in any manner or to any extent vary the risk of such Guarantor or otherwise operate as a discharge of such Guarantor as a matter of law or equity (other than the indefeasible payment in full in cash of all the Obligations). Each Guarantor expressly authorizes the Secured Parties to take and hold security for the payment and performance of the Obligations, to exchange, waive or release any or all such security (with or without consideration), to enforce or apply such security and direct the order and manner of any sale thereof in their sole discretion or to release or substitute any one or more other guarantors or obligors upon or in respect of the Obligations, all without affecting the obligations of such Guarantor hereunder.
(b) To the fullest extent permitted by applicable law, each Guarantor waives any defense based on or arising out of any defense of the Company or any other Credit Party or the unenforceability of the Obligations or any part thereof from any cause, or the cessation from any cause of the liability of the Company or any other Credit Party, other than the indefeasible payment in full in cash of all the Obligations. The Collateral Agent and the other Secured Parties may, at their election, foreclose on any security held by one or more of them by one or more judicial or nonjudicial sales, accept an assignment of any such security in lieu of foreclosure, compromise or adjust any part of the Obligations, make any other accommodation with the Company or any other Credit Party or exercise any other right or remedy available to them against the Company or any other Credit Party, in each case without affecting or impairing in any way the liability of any Guarantor hereunder except to the extent the Obligations have been fully and indefeasibly paid in full in cash. To the fullest extent permitted by applicable law, each Guarantor waives any defense arising out of any such election even though such election operates, pursuant to applicable law, to impair or to extinguish any right of reimbursement or subrogation or other right or remedy of such Guarantor against the Company or any other Credit Party, as the case may be, or any security.
Par Value Limitations Before taking any action that would cause an adjustment reducing the Purchase Price below one one-hundredth of the then par value, if any, of the Preferred Shares or other shares of capital stock issuable upon exercise of the Rights, the Company shall take any corporate action which may, in the opinion of its counsel, be necessary in order that the Company may validly and legally issue fully paid and nonassessable Preferred Shares or other such shares at such adjusted Purchase Price.
Liability Limitations This paragraph limits the liabilities arising under this Agreement or any SOW and is a bargained-for and material part of our business relationship with you. You acknowledge and agree that Verticomm would not enter into any SOW or this Agreement unless Verticomm could rely on the limitations described in this paragraph. In no event shall either party be liable for any indirect, special, exemplary, consequential, or punitive damages, such as lost revenue, loss of profits (except for fees due and owing to Verticomm), savings, or other indirect or contingent event-based economic loss arising out of or in connection with this Agreement, any SOW, or the Services, or for any loss or interruption of data, technology or services, or for any breach hereof or for any damages caused by any delay in furnishing Services under this Agreement or any SOW, even if a party has been advised of the possibility of such damages; however, reasonable attorneys’ fees awarded to a prevailing party (as described below), your indemnification obligations, and any amounts due and payable pursuant to the non-solicitation provision of this Agreement shall not be limited by the foregoing limitation. Except for the foregoing exceptions, a responsible party’s (“Responsible Party’s”) aggregate liability to the other party (“Aggrieved Party”) for damages from any and all claims or causes whatsoever, and regardless of the form of any such action(s), that arise from or relate to this Agreement (collectively, “Claims”), whether in contract, tort, indemnification, or negligence, shall be limited solely to the amount of the Aggrieved Party’s actual and direct damages, not to exceed the amount of fees paid by you (excluding hard costs for licenses, hardware, etc.) to Verticomm for the specific Service upon which the applicable claim(s) is/are based during the three (3) month period immediately prior to the date on which the cause of action accrued. The foregoing limitations shall not apply to the extent that the Claims are caused by a Responsible Party’s willful or intentional misconduct, or gross negligence. Similarly, a Responsible Party’s liability obligation shall be reduced to the extent that a Claim is caused by, or the result of, the Aggrieved Party’s willful or intentional misconduct, or gross negligence.
Survival; Limitations (a) The representations and warranties of the parties contained in or made pursuant to this Agreement shall be deemed to have been made on the date hereof and on the Closing Date, shall survive the Closing Date and shall remain operative and in full force and effect for the period ending 18 months thereafter (the “Survival Period”); provided that if on or prior to the expiration of the Survival Period, a notice of claim for indemnification shall have been given in accordance with Section 9.4 hereof, the indemnified party shall continue to have the right to be indemnified with respect to such indemnification claim until such claim for indemnification has been satisfied or otherwise resolved as provided in this Article IX; and provided further that the representations and warranties contained in, Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) shall survive until the expiration of the applicable statute of limitations period plus 90 days and the representations and warranties contained in Sections 3.2 (‘Authority Relative to the Agreement’), 3.21 (‘Brokers’), 4.2 (‘Authority Relative to the Agreement’) and 4.8 (‘Brokers’) and all covenants and agreements made by any party hereunder which are to be performed after the Closing Date shall survive without time limit, with the exception of Sections 9.2(a) and 9.3(a), which shall only remain operative and in full force and effect as long as indemnification with respect to the underlying representation and warranty remains available in accordance with the foregoing provisions of this Section 9.1(a) (including as extended pursuant to the first proviso hereof).
(b) Except for any Loss and Expense (as defined in Section 9.2) suffered by Buyer based on the breach of any representation or warranty contained in Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) and Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or Mxxxxx Communications, Buyer and/or GateHouse Media shall not be entitled to indemnification under this Agreement for any indemnification claim under Section 9.2(a) until the aggregate Loss and Expense suffered by Buyer and/or GateHouse Media subject to indemnification under Section 9.2(a) of this Agreement exceeds $1,000,000 (the “Threshold”). Once the Threshold has been reached, Buyer and/or GateHouse Media shall be entitled to full indemnification from Sellers pursuant to Section 9.2(a) below for the aggregate amount of Loss and Expense suffered by Buyer and/or GateHouse Media, in excess of the Threshold. Notwithstanding the foregoing, the Threshold shall not apply to any adjustments under Section 1.6, any Loss and Expense suffered by Buyer and GateHouse Media based on any breach of any representation or warranty contained in , Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or Mxxxxx Communications or to any indemnification claim related to covenants and agreements made by any party hereto which are to be performed after the Closing Date.
(c) Sellers’ and Mxxxxx Communication’s maximum aggregate liability to Buyer and GateHouse Media for indemnification claims under Section 9.2(a) of this Agreement with respect to any Loss and Expense shall be $11.5 million (the “Cap”); provided that the Cap shall not apply to any Loss and Expense suffered by Buyer and GateHouse Media based on any breach of any representation or warranty contained in Section 3.16 (‘Environmental Matters’), Section 3.19 (‘Taxes’) or Section 3.20 (‘Investment Representations’) or resulting from fraud or willful misconduct by Sellers or Mxxxxx Communications or any covenants and agreements made by any party hereto which are to be performed after the Closing Date. Except with regard to compensation for claims paid to third parties, no indemnifying party shall have any liability to an indemnified party for any punitive, indirect, incidental or consequential damages or loss including, without limitation, loss of revenue or loss of profits.
(d) Except for enforcement of the Note or equitable remedies (including, without limitation, injunctive relief) and in the absence of fraud, the parties hereto acknowledge and agree that the sole and exclusive remedy of the parties, as the case may be, from and after the Closing Date with respect to any Loss and Expense whatsoever and any and all claims for breach or liability under this Agreement or any of the transactions contemplated hereby shall be solely in accordance with, and limited by, the indemnification provisions set forth in this Agreement.