Common use of Liability Restrictions Clause in Contracts

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, penalties, interest and similar financial obligations levied as a result of a Party's breach of Section 22.1 (a) of this Agreement; and (iv) Empire's failure to pay any charges due and payable to IBM under the Agreement (including amounts owing for Services rendered). (e) The following shall be considered direct damages and shall not be considered consequential damages to the extent they result from a Party's failure to fulfill its obligations in accordance with this Agreement: (i) costs of restoring, reloading, and (if necessary) recreating any of Empire's information lost or damaged (including journals and logs), in the event that IBM fails to make backups as required under the Agreement (including failure to accurately or completely make such backups) or fails to maintain and store such backups; (ii) costs of implementing a workaround in respect of a failure to provide the Services; (iii) costs of replacing lost or damaged equipment, software and materials; (iv) costs and expenses incurred to correct errors in software maintenance and enhancements provided as part of the Services, provided that this provision shall not be read to increase a Party's obligations under this Agreement; (v) costs and expenses incurred to procure the Services from an alternate source; and (vi) incremental compensation incurred by Empire or its Affiliates for full-time and temporary personnel, and any required travel expenses, telecommunication charges, and similar charges, reasonably incurred by Empire in mitigating the effects of the failure of IBM to provide the Services (including Termination/Expiration Assistance) or incurred in connection with (i) through (v) above, but excluding any costs associated with relationship management of Empire's customers due to any such failure (collectively "Overtime Damages"). The foregoing shall not preclude either Party from proving other direct damages. If and only if Overtime Damages exceed one hundred thousand dollars ($100,000) per event or series of related events causing such Overtime Damages, Empire may claim such Overtime Damages with respect to such event or series of related events, up to an amount equal to five hundred thousand dollars ($500,000), subject to the cumulative limits specified in Section 19.2(b). Notwithstanding the previous sentence, in the event of a failure by IBM to provide Termination/Expiration Assistance in accordance with this Agreement, the foregoing limits shall not apply to a claim by Empire for Overtime Damages, except that such Overtime Damages shall be subject to the limits specified in Section 19.2(b). In any event, the amount of Overtime Damages shall be reduced by the Service Level Credits applicable to the event or series of events which lead to the Overtime Damages. The foregoing states IBM's entire liability for Overtime Damages. (f) Each Party shall have a duty to mitigate damages for which the other Party is responsible.

Liability Restrictions. (a) SUBJECT TO SECTION 19.2(c11.2(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.. EMPIRE/IBM CONFIDENTIAL FINAL Version 13 (b) Subject to Section 19.2(d11.2(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 as follows: (i) Prior to the Acceptance Date, Section 3.8(c) states the complete liability of the Parties under this Agreement. For the avoidance of doubt, prior to the Acceptance Date, except as provided in Section 3.8(c), neither Party shall have any liability to the other Party; (ii) After the Acceptance Date through the expiration of the Warranty Period, each Party's liability shall be limited to the total Development and License Fees paid or payable by Empire to IBM under this Agreement; and (iii) After the expiration of the Warranty Period, each Party's liability will be limited to an amount equal to the total charges Maintenance Fees paid or payable to IBM by Empire pursuant to this Agreement for the [**] twelve (12) months 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 [**] first twelve (12) months after the Effective Date [**]expiration of the Warranty Period, 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 of the Services maintenance and support services during such [**] period [**]twelve (12) month period. Service Level Credits do not count against Notwithstanding the foregoing, the applicable amount set forth above shall be increased to two times (2x) the applicable amount, if and do not reduce to the amounts available under extent that either Party suffers damages occasioned by the foregoing limitationstortious willful misconduct or tortious gross negligence of the other Party. (c) The limitations set forth in Section 19.2(a11.2(a) shall not apply with respect to damages occasioned by by (i) 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: ; (iii) any and all Losses to be paid pursuant to Section 18.4, 12.5; (iiiii) fines, penalties, interest and similar financial obligations levied as a result of a Party's breach of Section 22.1 16.7 of this Agreement; or or (iiiiv) charges either party's obligation to pay amounts due and payable or IBM's obligation to IBM pay or provide credits (as applicable) Revenue Sharing to Empire under the Agreement (including amounts owing for Services rendered)this Agreement. (d) The limitations set forth in Section 19.2(bSections 11.2(b) shall not apply with respect to: (i) any and all Losses to be paid pursuant to Section 18.412.5; (ii) damages occasioned by a Party's breach of its obligations with respect to Confidential Information; (iii) fines, penalties, interest and similar financial obligations levied as a result of a Party's breach of Section 22.1 (a) 16.7 of this Agreement; and (iv) Empireeither party's failure obligation to pay any charges amounts due and payable or IBM's obligation to IBM pay or provide credits (as applicable) Revenue Sharing to Empire under the Agreement (including amounts owing for Services rendered)this Agreement. (e) The following shall be considered direct damages and shall not be considered consequential damages to the extent they result from a Party's failure to fulfill its obligations in accordance with this Agreement: (i) costs of restoring, reloading, and (if necessary) recreating any of Empire's information lost or damaged (including journals and logs), in the event that IBM fails to make backups as required under the Agreement (including failure to accurately or completely make such backups) or fails to maintain and store such backups; (ii) costs of implementing a workaround in respect of a failure to provide the Services; (iii) costs of replacing lost or damaged equipment, software and materials; (iv) costs and expenses incurred to correct errors in software maintenance and enhancements provided as part of the Services, provided that this provision shall not be read to increase a Party's obligations under this Agreement; (v) costs and expenses incurred to procure the Services from an alternate source; and (vi) incremental compensation incurred by Empire or its Affiliates for full-time and temporary personnel, and any required travel expenses, telecommunication charges, and similar charges, reasonably incurred by Empire in mitigating the effects of the failure of IBM to provide the Services (including Termination/Expiration Assistance) or incurred in connection with (i) through (v) above, but excluding any costs associated with relationship management of Empire's customers due to any such failure (collectively "Overtime Damages"). The foregoing shall not preclude either Party from proving other direct damages. If and only if Overtime Damages exceed one hundred thousand dollars ($100,000) per event or series of related events causing such Overtime Damages, Empire may claim such Overtime Damages with respect to such event or series of related events, up to an amount equal to five hundred thousand dollars ($500,000), subject to the cumulative limits specified in Section 19.2(b). Notwithstanding the previous sentence, in the event of a failure by IBM to provide Termination/Expiration Assistance in accordance with this Agreement, the foregoing limits shall not apply to a claim by Empire for Overtime Damages, except that such Overtime Damages shall be subject to the limits specified in Section 19.2(b). In any event, the amount of Overtime Damages shall be reduced by the Service Level Credits applicable to the event or series of events which lead to the Overtime Damages. The foregoing states IBM's entire liability for Overtime Damages. (f) Each Party shall have a duty to mitigate damages for which the other Party is responsible.. EMPIRE/IBM CONFIDENTIAL FINAL Version 13

Liability Restrictions. (aA) SUBJECT TO SECTION 19.2(c26.2(D) AND SECTION 26.2(E), 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. (bB) Subject to Section 19.2(d26.2(C), each Party's ’s total and aggregate liability to the other under this Agreementfor Direct Damages, whether in contract or in tort (including breach of warranty, negligence and strict liability in tort) shall be limited in the aggregate for all claims and causes of action to an amount equal to the total charges Charges payable to IBM by Empire Supplier pursuant to this Agreement for proper performance of the Services for the [**] prior to the month in which the first most recent event giving rise to the liability occurred; provided that if 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 first [**] after the Effective Date [**]Date, liability shall be the limited to an amount equal to the greater of (i) the total charges Charges that would be payable to IBM Supplier pursuant to this Agreement for proper performance for the Services during such [**] period [**]period, and (ii) the total Charges payable to Supplier pursuant to this Agreement for proper performance of the Services since the Effective Date. Service Level Credits The following do not count against and do not reduce the amounts available under the foregoing limitations: (i) Service Level Credits; (ii) payments of taxes; and (iii) [*]. (cC) 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(b26.2(B) shall not apply with respect to: (i1) 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, penalties, interest and similar financial obligations levied as a result of a Party's breach of Section 22.1 (a) of this Agreement; and (iv) Empire's failure to pay any charges due and payable to IBM under the Agreement (including amounts owing for Services rendered). (e) The following shall be considered direct damages and shall not be considered consequential damages to the extent they result from a Party's failure to fulfill its obligations in accordance with this Agreement: (i) costs of restoring, reloading, and (if necessary) recreating any of Empire's information lost or damaged (including journals and logs), in the event that IBM fails to make backups as required under the Agreement (including failure to accurately or completely make such backups) or fails to maintain and store such backups; (ii) costs of implementing a workaround in respect of a failure to provide the Services; (iii) costs of replacing lost or damaged equipment, software and materials; (iv) costs and expenses incurred to correct errors in software maintenance and enhancements provided as part of the Services, provided that this provision shall not be read to increase a Party's Company’s payment obligations under this Agreement; (v) costs and expenses incurred to procure the Services from an alternate source; and (vi) incremental compensation incurred by Empire or its Affiliates for full-time and temporary personnel, and any required travel expenses, telecommunication charges, and similar charges, reasonably incurred by Empire in mitigating the effects of the failure of IBM to provide the Services (including Termination/Expiration Assistance) or incurred in connection with (i) through (v) above, but excluding any costs associated with relationship management of Empire's customers due to any such failure (collectively "Overtime Damages"). The foregoing shall not preclude either Party from proving other direct damages. If and only if Overtime Damages exceed one hundred thousand dollars ($100,000) per event or series of related events causing such Overtime Damages, Empire may claim such Overtime Damages with respect to such event or series of related events, up to an amount equal to five hundred thousand dollars ($500,000), subject to the cumulative limits specified in Section 19.2(b). Notwithstanding the previous sentence, in the event of a failure by IBM to provide Termination/Expiration Assistance in accordance with this Agreement, the foregoing limits shall not apply to a claim by Empire for Overtime Damages, except that such Overtime Damages shall be subject to the limits specified in Section 19.2(b). In any event, the amount of Overtime Damages shall be reduced by the Service Level Credits applicable to the event or series of events which lead to the Overtime Damages. The foregoing states IBM's entire liability for Overtime Damages. (f) Each Party shall have a duty to mitigate damages for which the other Party is responsible.