Common use of Liability Limits Clause in Contracts

Liability Limits. Notwithstanding anything to the contrary set forth in this Agreement, the KHC Indemnified Parties shall not make a claim against the Company or the Company Shareholders for indemnification under this Article VI or for a breach of any representation, warranty or covenant under this Agreement, unless and until the aggregate costs and damages incurred by all KHC Indemnified Parties exceed one hundred fifty thousand dollars ($150,000) (the "Floor"), in which event the KHC Indemnified Parties may claim indemnification for any costs and damages in excess of the Floor. However, the Floor shall not apply to any losses arising out of any of the following: (a) any claim asserted against the KHC Indemnified Parties by or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or be liable to any KHC Indemnified Party for breach of any representation, warranty or covenant under this Agreement, for costs and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions in this Article 6, shall be the exclusive remedy of the KHC Indemnified Parties against the Company and Company Shareholders for contractual indemnity or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this Agreement.

Liability Limits. Notwithstanding anything to the contrary set forth in this Agreementherein, the KHC Purchaser Indemnified Parties shall not make a claim against the Company or the Company Shareholders for indemnification under this Article VI or X for a breach of any representation, warranty or covenant under this Agreement, Purchaser Losses unless and until the aggregate costs and damages incurred by all KHC Indemnified Parties exceed one hundred fifty thousand dollars amount of such Purchaser Losses exceeds Three Million Dollars ($150,0003,000,0000) (the "Floor"“Purchaser Basket”), in which event the KHC Purchaser Indemnified Parties may only claim indemnification for any costs and damages in excess of Purchaser Losses exceeding the Floor. HoweverPurchaser Basket; provided, however, the Floor Surviving Obligations and the Surviving Representations shall not apply be subject to any losses arising out the Purchaser Basket. The amount of any Purchaser Losses otherwise payable to the Purchaser Indemnified Parties pursuant to this Article X shall be net of the following: (a) any claim asserted against Tax Benefits actually realized by the KHC Indemnified Parties by Purchaser or on behalf the Company directly as a result of Angela Powers; such Purchaser Losses (any such Tax Benefit to be determined after taking into consideration any Tax effect of the indemnification payment made to the Purchaser with respect to such Purchaser Loss), (b) any fraud insurance proceeds actually received by the Purchaser Indemnified Parties under insurance policies maintained by the Company Shareholders; prior to the Closing Date directly resulting from such Purchaser Losses, and (c) any Comxxxx xxx xxxxgation other than insurance proceeds actually received by the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Purchaser Indemnified Parties may assert a claim against under any professional liability insurance policies (whether maintained prior to or on or after the Company or Company Shareholders and seek indemnification without regard Closing Date) directly resulting from such Purchaser Losses. No liability shall attach to the Floor. In no event will the Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or be liable to any KHC Indemnified Party for breach its Subsidiaries in respect of any representation, warranty claim if such claim would not have arisen but for a change in legislation or covenant under this Agreement, for costs and damages accounting policies made after the Closing Date or a change in excess interpretation of Seven Million Dollars ($7,000,000)the Law as determined by a court or pursuant to an administrative rule-making decision. The Parties acknowledge sole and agree that the foregoing indemnification provisions in this Article 6, exclusive source of funds for satisfaction of all Purchaser Losses shall be the exclusive remedy of the KHC Indemnified Parties against the Company and Company Shareholders for contractual indemnity or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this AgreementGeneral Escrow Fund.

Liability Limits. Notwithstanding anything (a) Subject to the contrary set forth in this AgreementSection 10.9, the KHC Indemnified Parties Seller Parties, in the aggregate shall not make a claim against the Company or the Company Shareholders for indemnification be liable under this Article VI or X for a breach of any representation, warranty or covenant under this Agreement, Purchaser Losses unless and until the aggregate costs and damages incurred by all KHC Indemnified Parties exceed one hundred fifty thousand dollars (amount of such Purchaser Losses exceeds $150,000) 100,000 (the "Floor"“Basket”), in which event the KHC Indemnified Seller Parties may claim indemnification shall be liable for any costs and damages all Purchaser Losses in excess of the Floor. Howeveramount of the Basket, up to an amount not to exceed $1,000,000 (the “Cap”); provided, however, the Floor Surviving Obligations and the Seller Parties’ obligations under Sections 10.1(b)-(e) shall not be subject to, or apply toward satisfaction of, the Basket or the Cap. Subject to any losses arising out Section 10.9, the Seller Parties shall be liable for all Purchaser Losses with respect to a breach or inaccuracy of any of Surviving Obligation up to an amount not to exceed $3,000,000 (the following: (a“Surviving Obligations Cap”); provided, however, the Seller Parties’ obligations under Sections 10.1(b)-(e) any claim asserted against shall not be subject to, or apply toward satisfaction of, the KHC Indemnified Parties by or on behalf of Angela Powers; (bSurviving Obligations Cap. The Xxxxxxxxx Family Trust and Xxxxxxxxx shall not be liable under this Article X for Purchaser Losses under Section 10.1(a) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less of more than $3,650,000 (the "Excepted Claims"). With respect to portion of the Excepted ClaimsTotal Consideration actually received by the Xxxxxxxxx Family Trust as a stockholder of the Seller in the aggregate, and the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders Xxxxxxxxx Family Trust and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders Xxxxxxxxx shall not be required to indemnify KHC Indemnified Parties liable under this Article VI X for Purchaser Losses under Section 10.1(a) in an amount of more than the portion of the Total Consideration actually received by the Xxxxxxxxx Family Trust as a stockholder of the Seller in the aggregate. For any Purchaser Losses for which the Purchaser Indemnified Parties seek to recover from the Xxxxxxxxx Family Trust or Xxxxxxxxx the Purchase Indemnified Parties shall use commercially reasonable efforts to obtain settlement or recovery from the Xxxxxxxxx Family Trust prior to seeking recovery directly from Xxxxxxxxx, and for any Purchaser Losses for which the Purchaser Indemnified Parties seek to recover from the Xxxxxxxxx Family Trust or Xxxxxxxxx the Purchase Indemnified Parties shall use commercially reasonable efforts to obtain settlement or recovery from the Xxxxxx Family Trust prior to seeking recovery directly from Xxxxxxxxx; provided, however, that the recovery priority established by this sentence shall not be liable to construed as requiring that any KHC Purchaser Indemnified Party for breach of any representation, warranty Parties exhaust remedies or covenant otherwise incur material additional costs or delays in seeking recovery under this Agreement, for costs and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions in this Article 6, shall be the exclusive remedy of the KHC Indemnified Parties X before proceeding directly against the Company and Company Shareholders for contractual indemnity Xxxxxxxxx or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this AgreementXxxxxxxxx.

Liability Limits. (a) Notwithstanding anything to the contrary set forth in this Agreement, except with respect to the KHC Extended Representations and Fundamental Representations (to which subclauses (i) and (ii) of this Section 9.5(a) shall not apply), (i) the Parent Indemnified Parties shall not make a claim against the Company Stockholders or the Company Shareholders Optionholders for indemnification under this Article VI or Section 9.1(a) hereof for a breach of any representation, warranty or covenant under this Agreement, Parent Losses unless and until the aggregate costs amount of Parent Losses under Section 9.1(a) hereof exceeds $815,500 (the “Parent Threshold”), and damages incurred by all KHC if such Parent Losses exceed the Parent Threshold, the Parent Indemnified Parties shall be entitled to the entire amount of all such Parent Losses, subject to the other provisions of this Agreement; and (ii) the right of the Parent Indemnified Parties to recover for any Parent Losses pursuant to Section 9.1(a) hereof shall not exceed one hundred fifty thousand dollars ($150,000) 24,375,000.00 (the "Floor"“Cap”). Notwithstanding the foregoing, in which event the KHC Parent Indemnified Parties may claim indemnification for any costs shall be entitled to recover for, and damages in excess of the Floor. However, Parent Threshold and the Floor Cap shall not apply to any losses arising out Parent Losses with respect to any breach of or inaccuracy in any of the following: (a) Extended Representations or Fundamental Representations or any claim asserted against the KHC Indemnified Parties by or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company Stockholders or Company Shareholders Optionholders for indemnification under any of the provisions of Section 9.1 other than Section 9.1(a); provided, however, that (x) the aggregate liability of the Stockholders and seek indemnification without regard to Optionholders under this Agreement (including for the Floor. In avoidance of doubt Section 10.6), any Ancillary Agreement or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby, shall not exceed the Aggregate Merger Consideration, and in no event will shall any Stockholder or Optionholder be liable for any amount in respect of Parent Losses in excess of the Company and Company Shareholders Aggregate Merger Consideration proceeds actually received by such Stockholder or Optionholder, (y) no individual Stockholder or Optionholder shall be required to indemnify KHC Indemnified Parties liable for any amount in excess of such Stockholder’s or Optionholder’s Allocation Percentage of any particular Parent Loss under this Article VI Agreement (including for the avoidance of doubt Section 10.6), any Ancillary Agreement or any other agreements, certificates or other instruments executed and delivered in connection with this Agreement or the transactions contemplated hereby, and (z) no Stockholder or Optionholder shall be liable to any KHC Parent Indemnified Party Party: (A) for the breach by any other Stockholder or Optionholder of any representationthe representations, warranty warranties, covenants and agreements of such other Stockholder or covenant under Optionholder set forth in this Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby), including, for costs the avoidance of doubt, any failure by any such other Stockholder or Optionholder to comply with its obligations under Section 6.15 hereof, (B) if any representations, warranties, covenants and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions agreements made by any other Stockholder or Optionholder in this Article 6Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the transactions contemplated hereby) are ultimately determined to be unenforceable against such other Stockholder or Optionholder, or if any such agreements, certificates or other instruments (including any Letter of Transmittal) are ultimately determined not to comply with any applicable Laws, or (C) fraud by any other Person (in which case a claim for actual fraud may be asserted solely against the Person who committed such actual fraud and no other Stockholder or Optionholder shall be liable for the exclusive remedy actual fraud committed by such other Person), and notwithstanding anything to contrary in this Agreement (including Section 9.5(b)), any claim for indemnification with respect to breaches of any representations, warranties, covenants and agreements made by a particular Stockholder or Optionholder in this Agreement, any Ancillary Agreement (or any other agreements, certificates or other instruments executed and delivered connection with this Agreement or the KHC transactions contemplated hereby), or with respect to any alleged actual fraud committed by a particular Stockholder or Optionholder, must be asserted by the Parent Indemnified Parties directly against such particular Stockholder or Optionholder directly, and not against the Company and Company Shareholders for contractual indemnity or breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this AgreementEscrow Fund.

Liability Limits. Notwithstanding anything (a) The Seller shall not have any indemnification obligations for Purchaser Losses with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b) in respect to each individual item, or group of items arising out of the same event unless the aggregate amount of all such Purchaser Losses exceed Fifty Thousand Dollars ($50,000), and once such amount is exceeded Purchaser may recover all Purchaser Losses, including the initial Fifty Thousand Dollars ($50,000) of Purchaser Losses, and the total aggregate liability of the Seller for Purchaser Losses with respect to any claims made pursuant to Section 7.1(a) or Section 7.1(b) shall be limited to the contrary Cap Amount. Notwithstanding the foregoing, the limitations set forth in this Agreement, the KHC Indemnified Parties shall not make a claim against the Company or the Company Shareholders for indemnification under this Article VI or for a breach of any representation, warranty or covenant under this Agreement, unless and until the aggregate costs and damages incurred by all KHC Indemnified Parties exceed one hundred fifty thousand dollars ($150,000Section 7.5(a) (the "Floor"), in which event the KHC Indemnified Parties may claim indemnification for any costs and damages in excess of the Floor. However, the Floor shall not apply to any losses Purchaser Losses arising out of any of the following: or related to (ai) any claim asserted against the KHC Indemnified Parties by fraud, intentional misrepresentation or on behalf of Angela Powers; intentional breach, (bii) any fraud by the Company Shareholders; (cclaims made pursuant to Section 7.1(c), Section 7.1(d) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or Section 7.1(e), or (dii) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or be liable to any KHC Indemnified Party for breach of any representationFundamental Representation, warranty and the Seller shall be liable for all Purchaser Losses with respect thereto; provided, however, the total aggregate liability of the Seller for such Purchaser Losses shall be limited to the Aggregate Cap Amount. All payments made by the Seller for Purchaser Losses with respect to claims made pursuant to Section 7.1(a) or covenant Section 7.1(b) under this AgreementAgreement shall be made exclusively by reduction, forfeiture or return, as the case may be, of the Closing Shares and/or any shares of Parent Common Stock paid or payable to the Seller in connection with any Earnout Payment and by reduction of the amount payable to the Seller under any Note, in each case in proportion to the amounts payable pursuant to the Closing Shares and/or any shares of Parent Common Stock actually paid to the Seller in connection with any Earnout Payment, on the one hand, and the amount payable to the Seller under any Note, on the other hand. The set-off against the Closing Shares and/or shares of Parent Common Stock and against the amounts payable to the Seller under any Note as provided for costs in the immediately preceding sentence shall constitute the Purchaser’s sole and damages in excess of Seven Million Dollars ($7,000,000exclusive remedy against the Seller under this Agreement and pursuant to this Section 7 with respect to claims made pursuant to Section 7.1(a) or Section 7.1(b). The Parties acknowledge and agree that If any such set-off is made, the foregoing indemnification provisions in this Article 6value assigned to the Closing Shares or other shares of Parent Common Stock, as the case may be, shall be the exclusive remedy average per share closing price of Parent Common Stock as reported in The Wall Street Journal for each of the KHC Indemnified Parties against thirty (30) consecutive trading days ending with the Company and Company Shareholders for contractual indemnity third trading day immediately preceding the date such Closing Shares and/or shares of Parent Common Stock are used to set-off any amount or breach of right it may be entitled to pursuant to this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders in entering into this AgreementSection 7.

Liability Limits. Notwithstanding anything (a) Except with respect to Purchaser Losses arising under Sections 9.1(i) and 9.1(j), which shall be recoverable to the contrary set forth extent such Losses in this Agreementthe aggregate exceed $10,000, none of the KHC Purchaser Indemnified Parties shall not make a claim against be entitled to recover from the Company or Seller Indemnifying Parties and none of the Company Shareholders for indemnification under this Article VI or for a breach of any representation, warranty or covenant under this Agreement, Seller Indemnified Parties shall be entitled to recover from the Purchaser Indemnifying Parties unless and until the aggregate costs and damages incurred by total of all KHC Indemnified Parties exceed one hundred fifty thousand dollars (Seller Losses or Purchaser Losses, as the case may be, with respect to any inaccuracy or breach of any such representations or warranties or breach of or default in the performance of any covenants, undertakings or other agreements, whether such claims are brought under this Section 9 or otherwise, exceed, in the aggregate, $150,000) 250,000 (the "FloorDeductible Amount") and then only to the extent of such excess. In no event shall the aggregate liability of the Seller Indemnified Parties with respect to Purchaser Losses or the Purchaser Indemnified Parties with respect to Seller Losses exceed $10,000,000 (the "Cap Amount"). Notwithstanding the foregoing, in which event the KHC Indemnified Parties may claim indemnification for any costs and damages in excess provisions of the Floor. However, the Floor immediately preceding sentence shall not apply to: (i) Purchaser Losses arising under or pursuant to any losses Seller Surviving Representations and/or Seller Surviving Obligations, Sellers Losses arising under or pursuant to any Purchaser Surviving Representations and/or Purchaser Surviving Obligations, or as a result of fraud or (ii) the Assumed Liabilities, the Excluded Assets and the Excluded Liabilities, (iii) any Purchaser Losses or Seller Losses arising out of any of the following: (a) any claim asserted against the KHC Indemnified Parties by or on behalf of Angela Powers; (b) any fraud by the Company Shareholders; (c) any Comxxxx xxx xxxxgation other than the obligation to pay state sales taxes; or (d) any failure to retain, as of Closing, Net Working Capital in an amount less than $3,650,000 (the "Excepted Claims"). With respect to the Excepted Claims, the KHC Indemnified Parties may assert a claim against the Company or Company Shareholders and seek indemnification without regard to the Floor. In no event will the Company and Company Shareholders be required to indemnify KHC Indemnified Parties under this Article VI or be liable to any KHC Indemnified Party for intentional breach of any representation, warranty or covenant under this Agreement, for costs and damages in excess of Seven Million Dollars ($7,000,000). The Parties acknowledge and agree that the foregoing indemnification provisions contained in this Article 6Agreement or any Purchaser Ancillary Document or Seller Ancillary Document, shall be (iv) the exclusive remedy payment of the KHC Indemnified Parties against the Company and Company Shareholders for contractual indemnity Adjustment, or (v) any Purchaser Losses arising out of breach of this Agreement. The KHC Indemnified Parties further acknowledge that this agreement establishing an exclusive contractual remedy was a material inducement to Company Shareholders the representations and warranties set forth in entering into this AgreementSections 3.13, 3.15 and 3.16.