Common use of Limitation on Damages and Liability Clause in Contracts

Limitation on Damages and Liability. 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 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 TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.0, TO WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT OF A PARTY, TO FRAUD OR FRAUDULENT MISREPRESENTATION OF A PARTY, OR TO ANY DAMAGES THAT THE LIABLE PARTY IS NOT PERMITTED TO DISCLAIM (OR, AS APPLICABLE, LIMIT) UNDER APPLICABLE LAW. COMPANY ACKNOWLEDGES THAT THIS SECTION 12.0 IS AN ESSENTIAL PART OF THIS AGREEMENT, ABSENT WHICH THE ECONOMIC TERMS AND OTHER PROVISIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. Customer acknowledges that any material breach by it of Sections 2.5, 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. 6.4.1 EXCEPT AS EXPRESSLY PROVIDED IN CIRCUMSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY OR ITS AFFILIATES, LICENSEES, SUBLICENSEES OR DISTRIBUTORS, OR THE KNOWING AND MATERIAL BREACH OR ABANDONMENT BY A PARTY OF THIS SECTION 12.0AGREEMENT, AND WITHOUT LIMITING SELLER’S RIGHTS UNDER SECTIONS 6.1 AND 6.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER PARTY NOR ANY OF ITS AFFILIATES SHALL HAVE ANY LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY INCIDENTAL OR PUNITIVE CONSEQUENTIAL DAMAGES, NOR ANY LIABILITY OR FOR LOST PROFITS, LOSS WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, ARISING OUT OF DATA, LOSS ANY BREACH OF BUSINESS OPPORTUNITY, OR BUSINESS INTERRUPTION, REGARDLESS FAILURE TO PERFORM ANY OF THE THEORY PROVISIONS OF LIABILITY (INCLUDING THEORIES THIS AGREEMENT. 6.4.2 EXCEPT IN CIRCUMSTANCES OF CONTRACTUAL LIABILITYGROSS NEGLIGENCE, TORT LIABILITY (INCLUDING NEGLIGENCE), WILLFUL MISCONDUCT OR STRICT LIABILITY), EVEN IF THE LIABLE PARTY KNEW KNOWING AND MATERIAL BREACH 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 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 TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.0, TO WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT OF A PARTY, TO FRAUD OR FRAUDULENT MISREPRESENTATION OF A PARTY, OR TO ANY DAMAGES THAT THE LIABLE PARTY IS NOT PERMITTED TO DISCLAIM (OR, AS APPLICABLE, LIMIT) UNDER APPLICABLE LAW. COMPANY ACKNOWLEDGES THAT THIS SECTION 12.0 IS AN ESSENTIAL PART ABANDONMENT OF THIS AGREEMENT, ABSENT WHICH SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY CLAIM FOR DAMAGES (WHETHER GROUNDED IN CONTRACT, TORT OR OTHERWISE) IN AN AGGREGATE AMOUNT GREATER THAN THE ECONOMIC TERMS AND OTHER PROVISIONS OF PRODUCT PRICE FOR THE PRODUCT RECEIVED BY SELLER UNDER THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. Customer acknowledges that any material breach by it of Sections 2.5(AND FOR CLARITY, 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 remediesEXCLUDING ANY AMOUNTS PAYABLE BY BUYER TO SELLER UNDER THE ASSET PURCHASE AGREEMENT).

Limitation on Damages and Liability. 8.4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN THIS 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 12.08.1 OR 8.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER PARTY BUYER NOR SELLER SHALL HAVE ANY LIABILITY UNDER BE LIABLE TO THE OTHER, OR IN CONNECTION WITH THIS AGREEMENT THEIR AFFILIATES, FOR ANY INDIRECTCLAIMS, DEMANDS OR SUITS FOR CONSEQUENTIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY EXEMPLARY, PUNITIVE, INDIRECT OR PUNITIVE MULTIPLE DAMAGES, NOR ANY LIABILITY FOR LOST INCLUDING LOSS OF PROFITS, LOSS OF DATAREVENUE OR INCOME, DIMINUTION IN VALUE OR LOSS OF BUSINESS OPPORTUNITY, OPPORTUNITY (WHETHER OR BUSINESS INTERRUPTION, REGARDLESS OF NOT FORESEEABLE AT THE THEORY OF LIABILITY (INCLUDING THEORIES OF CONTRACTUAL LIABILITY, TORT LIABILITY (INCLUDING NEGLIGENCE), EFFECTIVE DATE) CONNECTED WITH 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 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 TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.0, TO WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT OF A PARTY, TO FRAUD OR FRAUDULENT MISREPRESENTATION OF A PARTY, OR TO RESULTING FROM ANY DAMAGES THAT THE LIABLE PARTY IS NOT PERMITTED TO DISCLAIM (OR, AS APPLICABLE, LIMIT) UNDER APPLICABLE LAW. COMPANY ACKNOWLEDGES THAT THIS SECTION 12.0 IS AN ESSENTIAL PART BREACH OF THIS AGREEMENT, ABSENT WHICH OR ANY ACTIONS UNDERTAKEN IN CONNECTION HEREWITH, OR RELATED HERETO (OR THE ECONOMIC TERMS 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 WOULD BE SUBSTANTIALLY DIFFERENT. Customer acknowledges that any material breach by it of Sections 2.5, 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 remediesAGREEMENT) IN AN AGGREGATE AMOUNT GREATER THAN [***].

Limitation on Damages and Liability. 4.4.1 EXCEPT AS EXPRESSLY PROVIDED IN CIRCUMSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY A PARTY OR ITS AFFILIATES, OR THE KNOWING AND MATERIAL BREACH OR ABANDONMENT BY A PARTY OF THIS AGREEMENT, AND WITHOUT LIMITING THE PARTIES’ RIGHTS UNDER SECTION 12.04.1 OR SECTION 4.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER PARTY BUYER NOR SELLER SHALL HAVE ANY LIABILITY UNDER BE LIABLE TO THE OTHER, OR IN CONNECTION WITH THIS AGREEMENT THEIR AFFILIATES, FOR ANY INDIRECTCLAIMS, DEMANDS OR SUITS FOR CONSEQUENTIAL, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY EXEMPLARY, PUNITIVE, INDIRECT OR PUNITIVE MULTIPLE DAMAGES, NOR ANY LIABILITY FOR LOST INCLUDING LOSS OF PROFITS, LOSS OF DATAREVENUE OR INCOME, DIMINUTION IN VALUE OR LOSS OF BUSINESS OPPORTUNITYOPPORTUNITY (WHETHER OR NOT FORESEEABLE AT THE EXECUTION DATE) CONNECTED WITH OR RESULTING FROM ANY BREACH OF THIS AGREEMENT, OR BUSINESS INTERRUPTION, REGARDLESS OF THE THEORY OF LIABILITY (INCLUDING THEORIES OF CONTRACTUAL LIABILITY, TORT LIABILITY (INCLUDING NEGLIGENCE)ANY ACTIONS UNDERTAKEN IN CONNECTION HEREWITH, OR STRICT LIABILITY)RELATED HERETO. 4.4.2 EXCEPT IN CIRCUMSTANCES OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY SELLER OR ITS AFFILIATES, EVEN IF OR THE LIABLE PARTY KNEW KNOWING AND MATERIAL BREACH OR SHOULD HAVE KNOWN THAT THOSE KINDS ABANDONMENT BY SELLER OF DAMAGES WERE POSSIBLE; THIS AGREEMENT, THE MAXIMUM AGGREGATE LIABILITY OF SELLER AND EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY UNDER OR ITS AFFILIATES TO BUYER AND ITS AFFILIATES IN CONNECTION WITH THIS AGREEMENT SHALL NEVER EXCEED BE THE INJURED PARTY’S ACTUAL DIRECT DAMAGES, CAPPED AT AN AGGREGATE AMOUNT EQUAL OF SERVICES FEES PAID BY BUYER TO THE 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 TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.0, TO WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT OF A PARTY, TO FRAUD OR FRAUDULENT MISREPRESENTATION OF A PARTY, OR TO ANY DAMAGES THAT THE LIABLE PARTY IS NOT PERMITTED TO DISCLAIM (OR, AS APPLICABLE, LIMIT) UNDER APPLICABLE LAW. COMPANY ACKNOWLEDGES THAT THIS SECTION 12.0 IS AN ESSENTIAL PART OF THIS AGREEMENT, ABSENT WHICH THE ECONOMIC TERMS AND OTHER PROVISIONS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. Customer acknowledges that any material breach by it of Sections 2.5, 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 remediesSELLER HEREUNDER.

Limitation on Damages and Liability. 8.4.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY PROVIDED IN THIS CIRCUMSTANCES OF ACTUAL FRAUD BY A PARTY OR ITS AFFILIATES, LICENSEES, SUBLICENSEES OR DISTRIBUTORS, AND WITHOUT LIMITING THE PARTIES’ OBLIGATIONS UNDER SECTION 12.08.1 OR SECTION 8.2 WITH RESPECT TO THIRD PARTY CLAIMS, NEITHER PARTY PURCHASER NOR SELLER SHALL HAVE ANY LIABILITY UNDER BE LIABLE TO THE OTHER, OR IN CONNECTION WITH THIS AGREEMENT THE OTHER’S AFFILIATES, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIALEXEMPLARY, SPECIAL, EXEMPLARY PUNITIVE OR PUNITIVE CONSEQUENTIAL DAMAGES, NOR ANY LIABILITY FOR LOST OR ANTICIPATED PROFITS, LOSS REVENUES OR OPPORTUNITIES OR FOR ANY DAMAGES CALCULATED BY REFERENCE TO A MULTIPLIER OF DATAREVENUE, LOSS PROFITS, EBITDA OR SIMILAR METHODOLOGY, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE ACTIONS OF BUSINESS OPPORTUNITYSUCH PARTY OR THE BREACH OF ITS COVENANTS, AGREEMENTS, REPRESENTATIONS OR BUSINESS INTERRUPTIONWARRANTIES HEREUNDER AND WHETHER OR NOT BASED ON OR IN WARRANTY, REGARDLESS OF THE THEORY OF LIABILITY CONTRACT, TORT (INCLUDING THEORIES OF CONTRACTUAL LIABILITY, TORT LIABILITY (INCLUDING NEGLIGENCE), NEGLIGENCE OR STRICT LIABILITY)) OR OTHERWISE. 8.4.2 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EVEN IF EXCEPT IN CIRCUMSTANCES OF ACTUAL FRAUD, THE LIABLE MAXIMUM AGGREGATE LIABILITY OF EACH 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 RESPECT TO THIS AGREEMENT SHALL NEVER NOT, IN THE AGGREGATE, EXCEED THE INJURED PARTY’S ACTUAL DIRECT DAMAGES, CAPPED AT AN AGGREGATE AMOUNT EQUAL ACTUALLY PAID BY PURCHASER TO SELLER HEREUNDER DURING THE EIGHTEEN (18) MONTHS PRIOR TO THE TOTAL AMOUNT PAID OR PAYABLE DATE ON WHICH SUCH CLAIM FOR LOSSES FIRST AROSE; PROVIDED, HOWEVER, THAT, IF SUCH CLAIM FOR LOSSES FIRST AROSE PRIOR TO THE DATE THAT IS EIGHTEEN (18) MONTHS AFTER THE FIRST PAYMENT BY PURCHASER UNDER THIS AGREEMENT BY COMPANY TO PRIVO FOR MEMBERSHIP IN THE PROGRAM. THE FOREGOING LIMITATIONS OF LIABILITY SHALL NOT BE APPLICABLE TO A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 11.0, TO WILLFUL OR GROSSLY NEGLIGENT MISCONDUCT OF A PARTY, TO FRAUD OR FRAUDULENT MISREPRESENTATION OF A PARTY, OR TO ANY DAMAGES THAT THE LIABLE PARTY IS NOT PERMITTED TO DISCLAIM (OR, AS APPLICABLE, LIMIT) UNDER APPLICABLE LAW. COMPANY ACKNOWLEDGES THAT THIS SECTION 12.0 IS AN ESSENTIAL PART OF THIS AGREEMENT, ABSENT WHICH THE ECONOMIC TERMS AND OTHER PROVISIONS FACT THAT THE LIABILITY OF A PARTY WITH RESPECT TO THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT. Customer acknowledges that any material breach by it of Sections 2.5, 9.0 or 10.0 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 Agreement, exhibit have been omitted 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 filed separately with the other Party Securities and that the other Party may move in such a circumstance for any Exchange Commission. Confidential treatment requested under 17 C.F.R. Sections 200.80(b)(4) and all appropriate equitable relief including preliminary and permanent injunctions in any court of competent jurisdiction to prevent such breach230.406. 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 remediesTO 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.