Liability Restrictions. (a) IN NO EVENT, WHETHER IN CONTRACT, IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), OR OTHERWISE, SHALL A PARTY BE LIABLE TO THE OTHER PARTY (OR ANYONE CLAIMING UNDER OR THROUGH THE OTHER PARTY) FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF, RESULTING FROM, ON IN ANY WAY CONNECTED WITH THE PERFORMANCE OR BREACH OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. The foregoing shall not apply to [* * * ].
(b) Subject to Sections 17.2(c) and 17.2(d), each party’s total liability to the other for any event giving rise to liability, whether in contract, in tort (including breach of warranty, negligence and strict liability in tort), or otherwise arising out of, resulting from, or in any way connected with, the performance or breach of this Agreement, shall be limited to an amount equal to:
(i) Prior to [* * * ] $[* * * ]
(ii) Beginning at the [* * * ] $[* * * ]
(iii) After the [* * * ] [* * * ]% [* * * ] do not count against and do not reduce the amounts available under the foregoing limitations.
(c) The limitations set forth in 17.2(b) shall not apply with respect to:
(i) Claims that are the subject of indemnification pursuant to Sections 16.1(a), 16.1(d), 16.1(e), 16.2(a) and the last sentence of Section 16.4(a); and
(ii) Damages occasioned by a party’s breach of its obligations with respect to Confidential Information;
(d) The limitations set forth in 17.2(b) shall not apply and each party’s total liability to the other, whether in contract, in tort (including breach of warranty, negligence and strict liability in tort), or otherwise for damages occasioned by a party’s breach of [* * * ] of this Agreement shall be limited to:
(i) Prior to the [* * * ] $[* * * ]
(ii) Beginning at the [* * * ] $[* * * ]
(iii) After the [* * * ] $[* * * ] [* * * ] do not count against and do not reduce the amounts available under the foregoing limitations.
(e) The following shall be [* * * ] the extent they result from a party’s failure to fulfill its obligations in accordance with this Agreement:
(i) [* * * ] necessitated by failure to comply with Applicable Laws and Capital One’s requirements, including the Production Specifications (as defined in Schedule A);
(ii) Capital One’s incremental expenses incurred in resolving [* * * ] (as defined in Schedule A) and other problems caused by First Data (e.g., [* * * ]); and
(iii) More than a reasonable amount ...
Liability Restrictions. (a) SUBJECT TO SUBSECTION (b) BELOW, IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(b) The limitations set forth in subsection (a) shall not apply with respect to: (i) damages occasioned by the willful misconduct or gross negligence of a Party, (ii) damages occasioned as a result of the indemnification obligations set forth in Section 15 to the extent any third party shall be awarded such damages explicitly excluded in Section 16.2(a), (iii) damages occasioned by improper or wrongful termination of this Agreement or (iv) damages occasioned by a violation of Section 12.1 of this Agreement.
(c) Each Party shall have a duty to mitigate damages for which the other Party is responsible.
(d) Each Party shall be liable to the other Party for any actual damages as set forth in Section 16.1 only if, and to the extent that the aggregate of all losses arising from or in connection with any such failure to perform obligations in the manner required by this Agreement exceeds one thousand dollars ($1,000).
Liability Restrictions. (a) Subject to Subsection (d) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten percent (10%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (b) and (d) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Dollars ($10,000,000); provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000).
(b) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor, then the Parties agree as follows:
(i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party;
(ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule;
(iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pu...
Liability Restrictions. (a) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(b) Subject to Subsection (c), below, each party's total liability to the other, whether in contract or in tort (including breach of warranty, negligence and strict liability in tort) shall be limited to two hundred million dollars ($200,000,000).
(c) The limitation set forth in Subsections (b), above, shall not apply with respect to: (i) third-party claims subject to indemnification pursuant to the Agreement; (ii) fees due and owing under this Agreement at the time of the claim; and (iii) amounts subject of Cover as provided in Section 4.2(b).
(d) For the purposes of this Section 16.2, all amounts payable or paid to third parties in connection with claims that are eligible for indemnification pursuant to this Agreement shall be deemed direct damages.
Liability Restrictions. 28 16.3. Released Parties....................................................29
Liability Restrictions. The liability restrictions and limitation provisions for each Service provided hereunder are set forth in the associated Schedule for such Service.
Liability Restrictions. (a) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(b) Subject to Subsections (c) and (d) of this Section, each Party's total liability to the other, whether in contract or in tort (including breach of warranty, negligence and strict liability in tort) shall be limited to an amount equal to one hundred fifty million U.S. Dollars (U.S. $150,000,000).
(c) The limitation set forth in Subsection (b) of this Section shall not apply with respect to: (i) damages occasioned by willful misconduct or gross negligence; (ii) claims of breach of confidentiality, (iii) claims subject to indemnification pursuant to the Agreement, (iv) financing charges, fees or costs that are assessed on any unused financing amounts (including to the extent owed or paid by WinStar and included as part of any damages to which WinStar is or becomes entitled pursuant to law), (v) failure to comply with applicable laws and regulations, (vi) damages occasioned by the improper or wrongful termination or abandonment of work by Lucent; and (vii) any amounts paid by WinStar that are refundable (either by credit or payment) by Lucent pursuant to this Agreement..
(d) For the purposes of this Section 16.2, all amounts payable or paid to third parties in connection with claims that are eligible for indemnification pursuant to this Agreement shall be deemed direct damages. Supply Agreement Confidential - WinStar/Lucent 39 -
Liability Restrictions. (a) NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS OR ASSIGNS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR INDIRECT DAMAGES, INCLUDING, BY WAY OF EXAMPLE AND NOT LIMITATION, LOSS OF BUSINESS, PROFITS, USE, DATA, OR OTHER ECONOMIC ADVANTAGE, WHETHER SUCH CLAIM IS XXXXXX OR INCHOATE, WHETHER BY STATUTE, IN TORT, OR IN CONTRACT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(b) IN NO EVENT SHALL EBC, AND ITS AFFILIATES AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SHAREHOLDERS, AND ITS AND THEIR RESPECTIVE ASSIGNS, HEIRS, SUCCESSORS AND LEGAL REPRESENTATIVES (THE “EBC GROUP”) BE LIABLE FOR: (i) CONTENT THAT IS TRANSMITTED BY CUSTOMER OR THIRD PARTIES VIA THE SERVICE(S); OR (ii) FOR ANY OUTAGE OR SERVICE FAILURE ATTRIBUTABLE IN WHOLE OR IN PART TO ANY OF THE EXCEPTIONS SET FORTH SECTION 11(d) OR OTHER CAUSES BEYOND EBC’S CONTROL.
(c) EXCEPT AS SET FORTH IN SECTION 11(b) AND 11(c) OF THIS AGREEMENT, IN NO EVENT SHALL THE EBC GROUP BE LIABLE FOR ANY OUTAGE, SERVICE FAILURE, DEFECT, ERROR, INTERRUPTION, DELAY, OR ATTENUATION OF ANY OF THE SERVICES.
(d) AS A MATERIAL CONDITION OF ENTERING INTO THIS AGREEMENT AT THE PRICING SPECIFIED HEREIN, AND IN REGARD TO ANY AND ALL CAUSES ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER AGREES EBC’S AGGREGATE LIABILITY SHALL BE LIMITED TO THE LESSER OF: ***. IN THE EVENT OF EBC LIABILITY PURSUANT TO THIS AGREEMENT, EBC MAY ELECT, AT ITS DISCRETION AND SOLE OPTION, TO PAY SUCH REQUIRED AMOUNTS OR PROVIDE A CREDIT AGAINST SERVICES. THE PROVISIONS OF THIS ARTICLE SHALL SURVIVE EXPIRATION OR TERMINATION OF THIS AGREEMENT (FOR ANY REASON OR NO REASON WHATSOEVER) INDEFINITELY. THE LIABILITY LIMITATION IN THIS PARAGRAPH ***Certain confidential portions of this exhibit were omitted by means of redacting a portion of the text. Copies of the exhibit containing the redacted portions have been filed separately with the Securities and Exchange Commission subject to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act. SHALL NOT APPLY TO AMOUNTS PAYABLE UNDER THIS AGREEMENT (INCLUDING ANY OUTAGE CREDITS AND/OR SERVICE FAILURE CREDITS).
Liability Restrictions. (a) SUBJECT TO SECTION 19.2(c), IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(b) Subject to Section 19.2(d), each Party's total and aggregate liability to the other under this Agreement, whether in contract or in tort (including breach of warranty, negligence and strict liability in tort) shall be limited to an amount equal to the total charges payable to IBM by Empire pursuant to this Agreement for the [**] prior to the month in which the first event giving rise to the liability occurred; provided that such amount shall be increased to the total charges payable to IBM by Empire pursuant to this Agreement for the [**] prior to the month in which the first event giving rise to the liability occurred, if and to the extent that either Party suffers damages occasioned by (i) the tortious willful misconduct or tortious gross negligence of the other Party; or (ii) in the case of IBM, the failure to provide Termination/Expiration Assistance to Empire, in accordance with this Agreement. If the first event giving rise to liability occurs during the [**] after the Effective Date [**], liability shall be limited to an amount equal to the total charges that would be payable to IBM pursuant to this Agreement for proper performance for the Services during such [**] period [**]. Service Level Credits do not count against and do not reduce the amounts available under the foregoing limitations.
(c) The limitations set forth in Section 19.2(a) shall not apply with respect to damages occasioned by a Party's breach of its obligations with respect to Confidential Information. For clarification, the limitations set forth in Section 19.2(a) shall not apply with respect to: (i) any and all Losses to be paid pursuant to Section 18.4, (ii) fines, penalties, interest and similar financial obligations levied as a result of a Party's breach of Section 22.1 of this Agreement; or (iii) charges due and payable to IBM under the Agreement (including amounts owing for Services rendered).
(d) The limitations set forth in Section 19.2(b) shall not apply with respect to:
(i) any and all Losses to be paid pursuant to Section 18.4;
(ii) damages occasioned by a Party's breach of its obligations with respect to Confidential Information;
(iii) fines, pen...
Liability Restrictions. 13.6.1 In respect of the Services, events giving rise to liability arising during the Term, the Parties are agreed that their respective liability to one another shall be limited in aggregate to a sum not exceeding three times the Charges paid or AUD $100,000 – whichever is the higher – whether the liability arises in contract, tort (including breach of warranty, negligence and strict liability in tort) or pursuant to statute or otherwise arising out of or in any way related to this Agreement, (“Default”) and whether or not there are multiple incidents of liability. To avoid doubt the figure represents the maximum exposure of the Parties to one another for liability arising out of or connected to this Agreement during the Term. General legal rules and construction concerning damages and liability will apply in determining whether or not the aggregate limit is reached.
13.6.2 Without limiting clause 13.6.1, in no event will Mach’s liability include any amount for consequential loss or damage including loss of profits, loss of revenue, loss of data or any special, speculative, indirect or contingent losses.
13.6.3 The parties expressly agree that the limitation of liability set out in clause 13.6 is reasonable in view of the nature of the Services and/or materials to be supplied pursuant to this Agreement.
13.6.4 Each Party will have a general duty to mitigate any loss suffered by that Party.
13.6.5 To the extent of any contributory fault, Mach will not be liable for any damages to the extent caused by Customer’s failure to perform its responsibilities, nor will Customer be liable for any damages to the extent caused by Mach’s failure to perform its responsibilities as set forth in this Agreement.
13.6.6 The parties expressly agree that the limitation regime set out in clause 13.6 is reasonable in view of the nature of the Services and/or materials to be supplied pursuant to this Agreement
