Common use of Limitation of Liability Disclaimer Indemnification Clause in Contracts

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C). EXCEPT AS PROVIDED IN SECTION 9(C), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY. SUBJECT TO SECTION 6 ABOVE AND SUBSECTION 9(D) BELOW, UNDER NO CIRCUMSTANCES WILL SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH ANY ASPECT OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM RELATIONSHIP PROVIDED FOR HEREIN. NEITHER PARTY SHALL IN ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN EVENT BE LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C). EXCEPT AS PROVIDED IN SECTION 9(C), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL INSERTION ORDER FOR MORE THAN THE AMOUNT TO BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN PAID BY ADVERTISER DURING THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY ACCRUES. (B) AOL MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL NETWORK OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY OF NON-INFRINGEMENT, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE NUMBER OF PERSONS WHO WILL REMAIN LIABLE FOR ACCESS THE AGGREGATE AMOUNT ADVERTISER CONTENT OR “CLICK-THROUGH” THE ADVERTISEMENTS, (II) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM INCLUDING THE ADVERTISEMENTS WITHIN THE AOL NETWORK AND (III) THE FUNCTIONALITY, PERFORMANCE OR OPERATION OF ANY PAYMENT OBLIGATIONS OWED THE AOL NETWORK WITH RESPECT TO THE OTHER PARTY ADVERTISEMENTS. (C) ADVERTISER MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR PORTIONS DENOTED WITH [***] HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO THE AGREEMENTA REQUEST FOR CONFIDENTIAL TREATMENT.

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX XXX.XXX, THE AFFILIATED MP COMPUSERVE SERVICE OR THE MERCHANT SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED IN SECTION 9(C)TO PARAGRAPH (C) BELOW, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT AOL WILL NOT EXCEED BE LIABLE TO MERCHANT UNDER THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN FOR MORE THAN THE YEAR IN WHICH THE EVENT GIVING RISE AMOUNTS THEN PAID TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENTAOL BY MERCHANT HEREUNDER.

Limitation of Liability Disclaimer Indemnification. (Aa) LIABILITY. UNDER NO CIRCUMSTANCES WILL SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX XXX.XXX OR THE AFFILIATED MP SITE1-800-FLOWERS SITES, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C9(c). EXCEPT AS PROVIDED IN SECTION 9(C9(c), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED SHALL BE THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT PAYMENT OBLIGATIONS TO BE PAID TO AOL BY 1-800-FLOWERS HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE TO THE LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY. EXCEPT AS PROVIDED IN SECTION 7(C)(I)(A) AND SECTION 7(C)(II)(A) BELOW, UNDER NO CIRCUMSTANCES WILL SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH ANY ASPECT OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); ADVERTISING RELATIONSHIP PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)FOR HEREIN. EXCEPT AS PROVIDED IN SECTION 9(C), (I7(C) LIABILITY ARISING UNDER THIS INSERTION ORDER AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS INSERTION ORDER AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN TO BE PAID BY ADVERTISER DURING THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURSACCRUES. (B)(I)(A) AOL MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE AOL SERVICE OR ANY PORTION THEREOF, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE; PROVIDED THAT EACH PARTY WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (1) THE NUMBER OF PERSONS WHO WILL REMAIN LIABLE FOR ACCESS THE AGGREGATE AMOUNT ADVERTISER CONTENT OR "CLICK-THROUGH" THE ADVERTISEMENTS, (2) ANY BENEFIT ADVERTISER MIGHT OBTAIN FROM INCLUDING THE ADVERTISEMENT WITHIN THE AOL SERVICE AND (3) THE FUNCTIONALITY, PERFORMANCE OR OPERATION OF ANY PAYMENT OBLIGATIONS OWED THE AOL SERVICE WITH RESPECT TO THE ADVERTISEMENTS, AND (B) EXCEPT AS SPECIFICALLY PROVIDED IN CLAUSE II BELOW, ADVERTISER MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY OTHER PARTY PURSUANT TO THE AGREEMENT.WARRANTIES EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. (II) Advertiser warrants to AOL that the Advertiser Software will, under normal use, conform to the limited warranty contained in the Software License Agreement (as defined in Exhibit E) applicable to the Advertiser Software during the warranty period set forth in such Software License Agreement (the "Warranty Period"). The foregoing warranty will apply only to the version of the Advertiser Software distributed by AOL in accordance with Exhibit E. If a Customer (as defined in Exhibit E) contacts Advertiser during the Warranty Period claiming a breach of the warranty set forth in the Software License Agreement provided with the Advertiser Software distributed by AOL in accordance with Exhibit E, Advertiser will use reasonable efforts to resolve the claim directly with such Customer by correcting or replacing such Advertiser Software. If a Customer contacts AOL during the Warranty Period claiming any such breach of warranty, AOL will use reasonable efforts to promptly refer the matter to Advertiser. (C) (i) Advertiser hereby agrees to indemnify, defend and hold harmless AOL and the officers, directors, agents, affiliates,

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF MP PRODUCTS, THE FRAUDULENT PURCHASE OF MP PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX XXX.XXX OR THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS ("COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)9.2. EXCEPT AS PROVIDED IN SECTION 9(C)9.2, (I) LIABILITY ARISING UNDER THIS AGREEMENT NEITHER PARTY WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY LIABLE TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED MORE THAN THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN PAYMENT OBLIGATIONS OWED TO OR PAID BY THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURSOTHER PARTY HEREUNDER, AS APPLICABLE; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENTSECTION 4.

Limitation of Liability Disclaimer Indemnification. 5.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR DATA, INTERRUPTION OF BUSINESS, OR FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, MULTIPLE PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, WHETHER BASED ON CONTRACT, TORT (A) LIABILITYINCLUDING WITHOUT LIMITATION, NEGLIGENCE), WARRANTY, GUARANTEE OR ANY OTHER LEGAL OR EQUITABLE GROUNDS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NEITHER PARTY SHALL MAKE REPRESENTATIONS OR WARRANTIES TO ANY END USER OR THIRD PARTY ON BEHALF OF THE OTHER PARTY AND IN NO CIRCUMSTANCES EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL ANY REPRESENTATION OR EXEMPLARY DAMAGES (EVEN IF THAT WARRANTY MADE TO ANY END USER OR THIRD PARTY HAS BEEN ADVISED BY THE OTHER PARTY. THESE LIMITATIONS SHALL SURVIVE AND APPLY NOTWITHSTANDING THE VALIDITY OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM LIMITED REMEDIES PROVIDED FOR IN THE AGREEMENT. THE LIMITATIONS SET FORTH IN THIS SECTION 5.1 SHALL NOT APPLY TO EITHER PARTY'S BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE SECTION 4 OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO PARTIES' INDEMNIFICATION PURSUANT TO SECTION 9(C). EXCEPT AS PROVIDED OBLIGATIONS SET FORTH IN SECTION 9(C), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT5.3 BELOW.

Limitation of Liability Disclaimer Indemnification. (Aa) LIABILITYLiability. UNDER NO CIRCUMSTANCES CIRCUMSTANCES, WILL EITHER PARTY BE LIABLE TO THE OTHER --------- PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX XXX.XXX, THE AFFILIATED MP COMPUSERVE SERVICE OR THE MERCHANT SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED IN SECTION 9(C)TO PARAGRAPH (C) BELOW, (Ii) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT ii), AOL WILL NOT EXCEED BE LIABLE TO MERCHANT UNDER THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN FOR MORE THAN THE YEAR IN WHICH THE EVENT GIVING RISE AMOUNTS THEN PAID TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENTAOL BY MERCHANT HEREUNDER.

Limitation of Liability Disclaimer Indemnification. (Aa) LIABILITYLiability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX XXX.XX and CompuServe for Canadians, OR THE AFFILIATED MP MERCHANT SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED IN SECTION 9(C)TO PARAGRAPH (C) BELOW, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II), AOL WILL NOT BE LIABLE TO MERCHANT UNDER THE AGREEMENT FOR MORE THAN THE AMOUNTS THEN PAID TO AOL BY MERCHANT HEREUNDER. b) No Additional Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, NEITHER PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING XXX.XX, THE AOL SERVICE OR NETWORK, OR THE MERCHANT SITE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) THE MAXIMUM LIABILITY PROFITABILITY OF ONE PARTY THE MERCHANT SITE, (II) THE NUMBER OF PERSONS WHO WILL ACCESS OR "CLICK-THROUGH" THE PROMOTION, (III) ANY BENEFIT MERCHANT MIGHT OBTAIN FROM INCLUDING THE PROMOTION WITHIN THE AOL SERVICE, XXX.XX and CompuServe for Canadians OR (IV) THE FUNCTIONALITY, PERFORMANCE OR OPERATION OF AOL WITH RESPECT TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.PROMOTION. c)

Limitation of Liability Disclaimer Indemnification. (Aa) LIABILITYLiability. UNDER NO CIRCUMSTANCES WILL SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTSSERVICES, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX AOL.COM, THE AOL JUMP PAGES, OR THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY FXXX XXX OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C9.3(c). EXCEPT AS PROVIDED IN SECTION 9(C9.3(c), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL SHALL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT PAYMENT OBLIGATIONS OWED BY EITHER PARTY TO THE OTHER PARTY HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY13.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF IN CONNECTION WITH THIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS DAMAGES (COLLECTIVELY, "“DISCLAIMED DAMAGES"”); PROVIDED THAT EACH PARTY WILL YOU SHALL REMAIN LIABLE TO THE OTHER PARTY ROSETTA STONE TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)10.3. EXCEPT AS PROVIDED ROSETTA STONE SHALL NOT BE HELD LIABLE IN SECTION 9(C), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED ANY PART FOR FAILURE OF COMMISION JUNCTION TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) MAINTAIN SERVICE. IN NO EVENT SHALL THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING ROSETTA STONE IN CONNECTION WITH THIS AGREEMENT WILL FOR DAMAGES NOT EXCLUDED IN THE IMMEDIATELY PRECEDING SENTENCE EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE PAID OR PAYABLE BY XXXXXXX XXXXX TO YOU UNDER THIS AGREEMENT IN WITHIN THE YEAR IN WHICH THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT ACCRUAL OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENTSUCH CLAIM.

Limitation of Liability Disclaimer Indemnification. (Aa) LIABILITYLiability. UNDER NO CIRCUMSTANCES WILL SHALL EITHER PARTY BE LIABLE TO THE --------- OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTSSERVICES, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX XXX.XXX, THE AOL JUMP PAGES, OR THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL SHALL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C9.3(c). EXCEPT AS PROVIDED IN SECTION 9(C9.3(c), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL SHALL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT PAYMENT OBLIGATIONS OWED BY EITHER PARTY TO THE OTHER PARTY HEREUNDER IN THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL SHALL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENT.

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY13.1 Liability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF IN CONNECTION WITH THIS AGREEMENT, EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS DAMAGES (COLLECTIVELY, "“DISCLAIMED DAMAGES"”); PROVIDED THAT EACH PARTY WILL YOU SHALL REMAIN LIABLE TO THE OTHER PARTY ROSETTA STONE TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)10.3. EXCEPT AS PROVIDED ROSETTA STONE SHALL NOT BE HELD LIABLE IN SECTION 9(C), (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED ANY PART FOR FAILURE OF COMMISION JUNCTION TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) MAINTAIN SERVICE. IN NO EVENT SHALL THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING ROSETTA STONE IN CONNECTION WITH THIS AGREEMENT WILL FOR DAMAGES NOT EXCLUDED IN THE IMMEDIATELY PRECEDING SENTENCE EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE PAID OR PAYABLE BY ROSETTA STONE TO YOU UNDER THIS AGREEMENT IN WITHIN THE YEAR IN WHICH THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT ACCRUAL OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENTSUCH CLAIM.

Limitation of Liability Disclaimer Indemnification. (A) LIABILITY. (1) EXCEPT FOR SECTION [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] ABOVE, SUBSECTION [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], A PARTY'S [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] HEREUNDER AND/OR UNDER THE AOLTW PROMOTIONAL AGREEMENT AND/OR BREACHES OF [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] HEREIN AND/OR UNDER THE AOLTW PROMOTIONAL AGREEMENT BY AND BETWEEN THE PARTIES, UNDER NO CIRCUMSTANCES WILL SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR AN APPLICATION FOR CONFIDENTIAL TREATMENT] ARISING FROM ANY OTHER PROVISION ASPECT OF THIS AGREEMENTTHE RELATIONSHIP PROVIDED FOR HEREIN. (2) EXCEPT FOR SECTION [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] ABOVE, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE SUBSECTION [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] AND A PARTY'S [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] HEREUNDER AND/OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH UNDER THE AOLTW PROMOTIONAL AGREEMENT NEITHER PARTY WILL REMAIN SHALL IN ANY EVENT BE LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY UNDER THIS INSERTION ORDER FOR [*MATERIAL OMITTED AND ARE SUBJECT TO INDEMNIFICATION SEPARATELY FILED PURSUANT TO SECTION 9(C)AN APPLICATION FOR CONFIDENTIAL TREATMENT] (OR ON THE CASE OF BREACHES OF [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], FOR [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] OR [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] FOR [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] (B) AOL MAKES NO AND HEREBY SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. EXCEPT AS PROVIDED IN SECTION 9(C)WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AOL SPECIFICALLY DISCLAIMS ANY WARRANTY REGARDING (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO DIRECTAN APPLICATION FOR CONFIDENTIAL TREATMENT] WHO [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] OR [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT], OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] MIGHT OBTAIN FROM [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] AND (III) THE AGREEMENT[*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] OR [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] OF THE [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] WITH RESPECT TO [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]. (C) Advertiser hereby agrees to indemnify, defend and hold harmless AOL and the officers, directors, agents, affiliates, distributors, franchises and employees of AOL from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys' fees) that may at any time be incurred by any of them by reason of any claims, suits or proceedings: (a) for [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] under this Insertion Order. AOL hereby agrees to indemnify, defend and hold harmless Advertiser and the officers, directors, agents, affiliates, distributors, franchises and employees of Advertiser from and against all claims, actions, liabilities, losses, expenses, damages and costs (including, without limitation, reasonable attorneys' fees) that may at any time be 27 incurred by any of them by reason of any claims, suits or proceedings: (a) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT]; or (b) [*MATERIAL OMITTED AND SEPARATELY FILED PURSUANT TO AN APPLICATION FOR CONFIDENTIAL TREATMENT] under this Insertion Order. The indemnified party shall notify the indemnifying party of any claim, action or demand (an "Action") for which indemnity is claimed. The indemnifying party's counsel defending such Action shall be subject to the indemnified party's prior written approval. The indemnified party reserves the right to participate fully in and assume joint control of the defense of any Action. Settlement of any Action shall be subject to the indemnified party 's prior written approval. This section shall survive the completion, expiration, termination or cancellation of this Insertion Order.

Limitation of Liability Disclaimer Indemnification. (Aa) LIABILITY. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX AOL.XXX, XXE COMPUSERVE SERVICE, THE AFFILIATED MP NETSCAPE NETCENTER OR THE MERCHANT SITE, THE DECISION GUIDES, THE DECISION GUIDE AFFILIATED SITE OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED IN SECTION 9(C)TO PARAGRAPH (C) BELOW, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT ), AOL WILL NOT EXCEED BE LIABLE TO MERCHANT UNDER THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT IN FOR MORE THAN THE YEAR IN WHICH THE EVENT GIVING RISE AMOUNTS THEN PAID TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY WILL REMAIN LIABLE FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO THE AGREEMENTAOL BY MERCHANT HEREUNDER.

Limitation of Liability Disclaimer Indemnification. (Aa) LIABILITYLiability. UNDER NO CIRCUMSTANCES WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM BREACH OF THE AGREEMENT, THE SALE OF PRODUCTS, THE USE OR INABILITY TO USE THE AOL NETWORK, THE AOL SERVICE, AOL.XXX XX THE AFFILIATED MP SITEAOL.COM, THE DECISION GUIDESCOMPUSERVE SERVICE, THE DECISION GUIDE AFFILIATED SITE NETSCAPE NETCENTER OR THE MERCHAXX XXXX, OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS (COLLECTIVELY, "DISCLAIMED DAMAGES"); ' PROVIDED THAT EACH PARTY WILL REMAIN LIABLE TO THE OTHER PARTY TO THE EXTENT ANY DISCLAIMED DAMAGES ARE CLAIMED BY A THIRD PARTY AND ARE SUBJECT TO INDEMNIFICATION PURSUANT TO SECTION 9(C)PARAGRAPH (C) BELOW. EXCEPT AS PROVIDED IN SECTION 9(C)PARAGRAPH (C) BELOW, (I) LIABILITY ARISING UNDER THIS AGREEMENT WILL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES, AND (II) ), THE MAXIMUM LIABILITY OF ONE PARTY TO THE OTHER PARTY FOR ANY CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF ALL PAYMENTS MADE UNDER THIS AGREEMENT PAYMENT OBLIGATIONS OWED TO AOL BY MERCHANT IN THE YEAR IN WHICH THE EVENT GIVING RISE TO LIABILITY OCCURS; PROVIDED THAT EACH PARTY MERCHANT WILL REMAIN LIABLE TO AOL FOR THE AGGREGATE AMOUNT OF ANY PAYMENT OBLIGATIONS OWED TO THE OTHER PARTY PURSUANT TO OT THE AGREEMENT.