Common use of Limitation on Damages and Liability Clause in Contracts

Limitation on Damages and Liability. 8.4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CIRCUMSTANCES OF (I) FRAUD OR FRAUDULENT MISREPRESENTATION, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) BREACH OF THE PROVISIONS OF ARTICLE 7, AND WITHOUT LIMITING THE PARTIES’ OBLIGATIONS UNDER SECTION 8.1 OR 8.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER BUYER NOR SELLER SHALL BE LIABLE TO THE OTHER, OR THEIR AFFILIATES, FOR ANY CLAIMS, DEMANDS OR SUITS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR MULTIPLE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE OR INCOME, DIMINUTION IN VALUE OR LOSS OF BUSINESS OPPORTUNITY (WHETHER OR NOT FORESEEABLE AT THE EFFECTIVE DATE) CONNECTED WITH OR RESULTING FROM ANY BREACH OF THIS AGREEMENT, OR ANY ACTIONS UNDERTAKEN IN CONNECTION HEREWITH, OR RELATED HERETO (OR THE ASSET PURCHASE AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF A PARTY’S ACTIVITIES UNDER THIS AGREEMENT), INCLUDING ANY SUCH DAMAGES THAT ARE BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND MISREPRESENTATION), BREACH OF WARRANTY, STRICT LIABILITY, STATUTE, OPERATION OF LAW OR ANY OTHER THEORY OF RECOVERY. 8.4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CIRCUMSTANCES OF (I) FRAUD OR FRAUDULENT MISREPRESENTATION, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) BREACH OF THE PROVISIONS OF ARTICLE 7, SELLER SHALL NOT BE LIABLE FOR LOSSES HEREUNDER (OR UNDER THE ASSET PURCHASE AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF SELLER’S ACTIVITIES UNDER THIS AGREEMENT) IN AN AGGREGATE AMOUNT GREATER THAN [***].

Limitation on Damages and Liability. 8.4.1 EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12.0, NEITHER PARTY SHALL HAVE ANY LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, NOR ANY LIABILITY FOR LOST PROFITS, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING THEORIES OF CONTRACTUAL LIABILITY, TORT LIABILITY (INCLUDING NEGLIGENCE), OR STRICT LIABILITY), EVEN IF THE LIABLE PARTY KNEW OR SHOULD HAVE KNOWN THAT THOSE KINDS OF DAMAGES WERE POSSIBLE; AND EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT SHALL NEVER EXCEED THE INJURED PARTY’S ACTUAL DIRECT DAMAGES, CAPPED AT AN AMOUNT EQUAL TO THE MAXIMUM EXTENT PERMITTED TOTAL AMOUNT PAID OR PAYABLE UNDER THIS AGREEMENT BY COMPANY TO PRIVO FOR MEMBERSHIP IN THE PROGRAM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT BE APPLICABLE LAWTO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.0, EXCEPT IN CIRCUMSTANCES TO WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT OF (I) A PARTY, TO FRAUD OR FRAUDULENT MISREPRESENTATION, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCTMISREPRESENTATION OF A PARTY, OR TO ANY DAMAGES THAT THE LIABLE PARTY IS NOT PERMITTED TO DISCLAIM (IIIOR, AS APPLICABLE, LIMIT) BREACH OF THE PROVISIONS OF ARTICLE 7, AND WITHOUT LIMITING THE PARTIES’ OBLIGATIONS UNDER APPLICABLE LAW. COMPANY ACKNOWLEDGES THAT THIS SECTION 8.1 OR 8.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER BUYER NOR SELLER SHALL BE LIABLE TO THE OTHER, OR THEIR AFFILIATES, FOR ANY CLAIMS, DEMANDS OR SUITS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR MULTIPLE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE OR INCOME, DIMINUTION IN VALUE OR LOSS OF BUSINESS OPPORTUNITY (WHETHER OR NOT FORESEEABLE AT THE EFFECTIVE DATE) CONNECTED WITH OR RESULTING FROM ANY BREACH 12.0 IS AN ESSENTIAL PART OF THIS AGREEMENT, OR ANY ACTIONS UNDERTAKEN IN CONNECTION HEREWITH, OR RELATED HERETO (OR ABSENT WHICH THE ASSET PURCHASE AGREEMENT OR ANY ECONOMIC TERMS AND OTHER ANCILLARY AGREEMENT TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF A PARTY’S ACTIVITIES UNDER THIS AGREEMENT), INCLUDING ANY SUCH DAMAGES THAT ARE BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND MISREPRESENTATION), BREACH OF WARRANTY, STRICT LIABILITY, STATUTE, OPERATION OF LAW OR ANY OTHER THEORY OF RECOVERY. 8.4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CIRCUMSTANCES OF (I) FRAUD OR FRAUDULENT MISREPRESENTATION, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) BREACH OF THE PROVISIONS OF ARTICLE 7THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. Customer acknowledges that any material breach by it of Sections 2.5, SELLER SHALL NOT BE LIABLE FOR LOSSES HEREUNDER (OR UNDER THE ASSET PURCHASE AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF SELLER’S ACTIVITIES UNDER THIS AGREEMENT) IN AN AGGREGATE AMOUNT GREATER THAN [***]9.0 or 10.0 of this Agreement, and PRIVO acknowledges that any material breach by it of Section 9.0 of this Agreement, may result in “irreparable harm,” an injury for which there is no adequate remedy at law, to the other Party and that the other Party may move in such a circumstance for any and all appropriate equitable relief including preliminary and permanent injunctions in any court of competent jurisdiction to prevent such breach. Each Party agrees that, in such a circumstance, no bond shall be required or, if required by operation of law, a nominal bond shall be sufficient to support the moving Party’s request for injunctive relief. Each Party agrees that any such right to injunctive relief by the moving Party in such a circumstance is in addition to all other remedies available to it and does not preclude it from seeking other available remedies.

Limitation on Damages and Liability. 8.4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 4.4.1 EXCEPT IN CIRCUMSTANCES OF (I) FRAUD OR FRAUDULENT MISREPRESENTATION, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCTMISCONDUCT BY A PARTY OR ITS AFFILIATES, OR (III) THE KNOWING AND MATERIAL BREACH OR ABANDONMENT BY A PARTY OF THE PROVISIONS OF ARTICLE 7THIS AGREEMENT, AND WITHOUT LIMITING THE PARTIES’ OBLIGATIONS RIGHTS UNDER SECTION 8.1 4.1 OR 8.2 SECTION 4.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER BUYER NOR SELLER SHALL BE LIABLE TO THE OTHER, OR THEIR AFFILIATES, FOR ANY CLAIMS, DEMANDS OR SUITS FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT OR MULTIPLE DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE OR INCOME, DIMINUTION IN VALUE OR LOSS OF BUSINESS OPPORTUNITY (WHETHER OR NOT FORESEEABLE AT THE EFFECTIVE EXECUTION DATE) CONNECTED WITH OR RESULTING FROM ANY BREACH OF THIS AGREEMENT, OR ANY ACTIONS UNDERTAKEN IN CONNECTION HEREWITH, OR RELATED HERETO (OR THE ASSET PURCHASE AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF A PARTY’S ACTIVITIES UNDER THIS AGREEMENT), INCLUDING ANY SUCH DAMAGES THAT ARE BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND MISREPRESENTATION), BREACH OF WARRANTY, STRICT LIABILITY, STATUTE, OPERATION OF LAW OR ANY OTHER THEORY OF RECOVERYHERETO. 8.4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 4.4.2 EXCEPT IN CIRCUMSTANCES OF (I) FRAUD OR FRAUDULENT MISREPRESENTATION, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCTMISCONDUCT BY SELLER OR ITS AFFILIATES, OR (III) THE KNOWING AND MATERIAL BREACH OR ABANDONMENT BY SELLER OF THE PROVISIONS OF ARTICLE 7, SELLER SHALL NOT BE LIABLE FOR LOSSES HEREUNDER (OR UNDER THE ASSET PURCHASE AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF SELLER’S ACTIVITIES UNDER THIS AGREEMENT) , THE MAXIMUM AGGREGATE LIABILITY OF SELLER AND ITS AFFILIATES TO BUYER AND ITS AFFILIATES IN AN CONNECTION WITH THIS AGREEMENT SHALL BE THE AGGREGATE AMOUNT GREATER THAN [***]OF SERVICES FEES PAID BY BUYER TO SELLER HEREUNDER.

Limitation on Damages and Liability. 8.4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CIRCUMSTANCES OF (I) ACTUAL FRAUD BY A PARTY OR FRAUDULENT MISREPRESENTATIONITS AFFILIATES, (II) GROSS NEGLIGENCE LICENSEES, SUBLICENSEES OR WILLFUL MISCONDUCT, OR (III) BREACH OF THE PROVISIONS OF ARTICLE 7DISTRIBUTORS, AND WITHOUT LIMITING THE PARTIES’ OBLIGATIONS UNDER SECTION 8.1 OR SECTION 8.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER BUYER PURCHASER NOR SELLER SHALL BE LIABLE TO THE OTHER, OR THEIR THE OTHER’S AFFILIATES, FOR ANY CLAIMSSPECIAL, DEMANDS OR SUITS FOR CONSEQUENTIALINDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT PUNITIVE OR MULTIPLE CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF FOR LOST OR ANTICIPATED PROFITS, REVENUE REVENUES OR INCOMEOPPORTUNITIES OR FOR ANY DAMAGES CALCULATED BY REFERENCE TO A MULTIPLIER OF REVENUE, DIMINUTION IN VALUE PROFITS, EBITDA OR LOSS OF BUSINESS OPPORTUNITY (SIMILAR METHODOLOGY, WHETHER OR NOT FORESEEABLE AT THE EFFECTIVE DATE) CONNECTED WITH CAUSED BY OR RESULTING FROM ANY THE ACTIONS OF SUCH PARTY OR THE BREACH OF THIS AGREEMENTITS COVENANTS, AGREEMENTS, REPRESENTATIONS OR ANY ACTIONS UNDERTAKEN WARRANTIES HEREUNDER AND WHETHER OR NOT BASED ON OR IN CONNECTION HEREWITHWARRANTY, OR RELATED HERETO (OR THE ASSET PURCHASE AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF A PARTY’S ACTIVITIES UNDER THIS AGREEMENT), INCLUDING ANY SUCH DAMAGES THAT ARE BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE AND MISREPRESENTATION), BREACH OF WARRANTY, OR STRICT LIABILITY, STATUTE, OPERATION OF LAW ) OR ANY OTHER THEORY OF RECOVERYOTHERWISE. 8.4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT IN CIRCUMSTANCES OF ACTUAL FRAUD, THE MAXIMUM AGGREGATE LIABILITY OF EACH PARTY WITH RESPECT TO THIS AGREEMENT SHALL NOT, IN THE AGGREGATE, EXCEED THE AGGREGATE AMOUNT ACTUALLY PAID BY PURCHASER TO SELLER HEREUNDER DURING THE EIGHTEEN (I18) FRAUD OR FRAUDULENT MISREPRESENTATION, (II) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR (III) BREACH OF MONTHS PRIOR TO THE PROVISIONS OF ARTICLE 7, SELLER SHALL NOT BE LIABLE DATE ON WHICH SUCH CLAIM FOR LOSSES HEREUNDER (OR UNDER THE ASSET PURCHASE AGREEMENT OR ANY OTHER ANCILLARY AGREEMENT FIRST AROSE; PROVIDED, HOWEVER, THAT, IF SUCH CLAIM FOR LOSSES FIRST AROSE PRIOR TO THE EXTENT SUCH LIABILITY ARISES AS A RESULT OF SELLER’S ACTIVITIES DATE THAT IS EIGHTEEN (18) MONTHS AFTER THE FIRST PAYMENT BY PURCHASER UNDER THIS AGREEMENT) IN AN AGGREGATE AMOUNT GREATER THAN , THE FACT THAT THE LIABILITY OF A PARTY WITH RESPECT TO THIS AGREEMENT EXCEEDS THE AMOUNTS PAID BY THE PURCHASER TO SELLER PRIOR TO THE DATE SUCH CLAIM AROSE SHALL NOT PRECLUDE THE OTHER PARTY FROM RECOVERING AGAINST SUCH PARTY [***]] = Portions of this exhibit have been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and 230.406. TO THE EXTENT OF ADDITIONAL AMOUNTS PAID BY PURCHASER HEREUNDER AFTER SUCH DATE UNTIL THE DATE THAT IS EIGHTEEN (18) MONTHS AFTER THE FIRST PAYMENT BY PURCHASER UNDER THIS AGREEMENT.