Common use of LIMITATION OF LIABILITY; FORCE MAJEURE Clause in Contracts

LIMITATION OF LIABILITY; FORCE MAJEURE. Seller’s liability to Customer arising from the purchase or use of any Goods or the performance of any services is limited to the price paid to Seller of the Goods giving rise to the claim. IN NO EVENT SHALL SELLER [OR ITS VENDORS] BE LIABLE FOR ANY INCIDENTIAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, CONTINGENT OR OTHER SIMILAR DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY, CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR REVENUE, BACK-CHARGES, LABOR COSTS, COSTS OF REMOVAL AND/OR REPLACEMENT, TESTING OR INSTALLATION, LOSS OF EFFICIENCY, DOWNTIME, LOSS OF USE OF GOODS OR ANY ASSOCIATED MATERIALS OR GOODS OR DAMAGE TO ASSOCIATED MATERIALS OR GOODS OR EQUIPMENT, UNAVAILABILITY OF GOODS, COST OF CAPITAL, OR COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, WHETHER OR NOT SELLER HAS ACTUAL KNOWLEDGE OR REASON TO BELIEVE THAT ANY SUCH LOSSES OR DAMAGES ARE FORESEEABLE, AND SELLER’S LIABILITY SHALL NOT EXTEND TO ANY DAMAGES OR LOSSES CUSTOMER MAY SUFFER OR INCUR AS A RESULT OF CLAIMS, SUITS OR OTHER PROCEEDINGS AGAINST CUSTOMER BY THIRD PARTIES. Neither Seller nor Customer shall be liable to the other for failure or delay in the performance of a required obligation of such party (except for payment obligations) if such failure or delay is caused by or results from acts beyond such party’s control, including but not limited to, terrorist threats or acts, riot or other civil unrest, war, strikes, labor stoppages or slowdowns or other industrial disturbances, shortages or delays in receiving raw materials, fire, flood, earthquake or other natural disaster.

LIMITATION OF LIABILITY; FORCE MAJEURE. Seller’s liability to Customer arising from the purchase or use of any Goods or the performance of any services is limited to the price paid to Seller of the Goods giving rise to the claim. a. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER [OR ITS VENDORS] WILL APEX BE LIABLE TO CUSTOMER FOR ANY INCIDENTIAL, (i) CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT, CONTINGENT OR OTHER SIMILAR DAMAGES OF ANY DESCRIPTION, WHETHER ARISING OUT OF WARRANTY, CONTRACT, NEGLIGENCE OR OTHER TORTINCIDENTAL, OR OTHERWISEINDIRECT DAMAGES OR COSTS, INCLUDING INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUE, BACK-CHARGES, LABOR COSTS, COSTS OF REMOVAL AND/OR REPLACEMENT, TESTING OR INSTALLATIONREVENUES, LOSS OF EFFICIENCY, DOWNTIME, LOSS OF USE OF GOODS DATA OR PROPERTY ARISING FROM ANY ASSOCIATED MATERIALS CLAIMS WHETHER BASED IN CONTRACT OR GOODS OR DAMAGE TO ASSOCIATED MATERIALS OR GOODS OR EQUIPMENT, UNAVAILABILITY OF GOODS, COST OF CAPITALTORT (INCLUDING NEGLIGENCE AND STRICT TORT), OR COST OTHERWISE IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT, EVEN IF APEX, ITS AFFILIATES OR SUPPLIERS HAVE BEEN ADVISED OF SUBSTITUTE GOODSTHE POSSIBILITY OF SUCH DAMAGES OR COSTS; OR (ii) DIRECT DAMAGES IN EXCESS OF (x) THE FEES PAID BY CUSTOMER TO APEX UNDER THE APPLICABLE ORDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY OR (y) THE INITIAL FEES PAID BY CUSTOMER WITH RESPECT TO THE SERVICES AT ISSUE, FACILITIES OR SERVICES, WHETHER OR NOT SELLER WHICHEVER IS LESS. b. THE PARTIES ACKNOWLEDGE THAT APEX HAS ACTUAL KNOWLEDGE OR REASON TO BELIEVE THAT ANY SUCH LOSSES OR SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES ARE FORESEEABLESET FORTH HEREIN, AND SELLER’S LIABILITY SHALL NOT EXTEND TO ANY DAMAGES OR LOSSES CUSTOMER MAY SUFFER OR INCUR AS A RESULT THAT THE SAME FORM AN ESSENTIAL BASIS OF CLAIMS, SUITS OR OTHER PROCEEDINGS AGAINST CUSTOMER BY THIRD THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. c. Neither Seller nor Customer shall party will be liable for and will not be responsible to the other for any delay or failure or delay in the performance of a required obligation of such party (except for payment obligations) to perform under this Agreement if such delay or failure or delay is caused by or results from acts any act or cause beyond such the reasonable control of the affected party’s control. If either party is unable to perform under this Agreement because of the occurrence of an event of force majeure lasting more than thirty (30) days, including but not limited to, terrorist threats or acts, riot or then the other civil unrest, war, strikes, labor stoppages or slowdowns or party may terminate the affected Service(s) and applicable Order(s) upon written notice to the other industrial disturbances, shortages or delays in receiving raw materials, fire, flood, earthquake or other natural disasterparty.