Limitations of Indemnification. The following limitations shall apply with regard to Seller's obligation to indemnify Buyer Indemnitees pursuant to this Section 8.2:
(i) Seller's liability under this Agreement shall not exceed 25% of the Purchase Price paid in accordance with Section 2.2. The limitations on Seller's indemnification obligations set forth in the prior sentence shall not apply to losses resulting from fraud or willful misconduct by Seller.
(ii) Seller and its Affiliates will have no liability for any Adverse Consequences, unless and until the aggregate Adverse Consequences for which Buyer Indemnitees are entitled to recover under this Agreement exceeds 1.0% of the Purchase Price paid in accordance with Section 2.2 (the "Threshold Amount"); provided, however, once such amount exceeds the Threshold Amount, Buyer Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above.
(iii) Seller and its Affiliates shall not be liable to Buyer Indemnitees for any Adverse Consequences associated with a claim that is based upon any fact, matter or circumstance within the actual knowledge of Buyer, Buyer Indemnitees and their Affiliates as of the date hereof, as well as such facts, matters or circumstances which before the Closing Date had been communicated to Buyer, Buyer Indemnitees or their Affiliates in writing.
(iv) Buyer acknowledges and agrees that the indemnification provisions in this Article VIII and the termination rights in Section 10.1 shall be the exclusive remedies of Buyer, Buyer Indemnitees and their Affiliates with respect to the transactions contemplated by this Agreement.
Limitations of Indemnification. The indemnification of Purchaser Indemnitees by Sellers under Section 9.1 hereof shall be limited as follows:
(i) Purchaser Indemnitees shall not be entitled to any payment under the indemnification provisions set forth in Section 9.1(a) or (b) unless and to the extent the total claims of Purchaser Indemnitees pursuant to such indemnification claim exceed an amount equal to Four Hundred Forty Thousand and No/100ths Dollars ($440,000) (the "Deductible") (at which time Purchaser Indemnitees shall be entitled to claim all damages incurred in excess of the Deductible, up to the maximum set forth in clause (a)(ii) below); provided that the Deductible shall not apply to, and Purchaser Indemnitees shall be fully compensated for, (x) any breach of Sections 3.2, 3.3, 3.4, 3.14 (with respect to Taxes), 3.16, 4.1 and 4.2 and (y) any failure of performance of any covenant of Sellers set forth in this Agreement that is to be performed on or after the Closing and provided, further, that in the event that either the First Earnout Amount or the Second Earnout Amount is not payable hereunder, the Deductible shall be reduced to $414,000, and in the event that no Earnout Payment is payable the Deductible shall be reduced to $388,000; and (ii) Sellers' aggregate liability to Purchaser Indemnitees under the indemnification provided under Section 9.1 hereof shall in no event exceed, collectively, an amount equal to Eight Million Eight Hundred Thousand and No/100ths Dollars ($8,800,000) (the "Cap"); provided, however, that the Cap shall not apply to performance of covenants hereunder that are to be performed from and after Closing, or to any breach of Sections 3.2, 3.3, 3.4, 3.14 (with respect to Taxes), 3.16, 4.1 and 4.2 hereunder; provided, further, that neither the Deductible nor the Cap shall apply to any Losses arising out of, relating to or resulting from actual fraud by Sellers; provided, further, that in the event that either the First Earnout Amount or the Second Earnout Amount is not payable hereunder, the Cap shall be reduced to $8,282,000, and in the event that no Earnout Payment is payable, the Cap shall be reduced to $7,765,000; and provided, finally, that to the extent that any Purchaser Indemnitee makes a claim pursuant to Section 9.1(a) for Losses that resulted or are alleged to have resulted from the breach of a representation or warranty of Sellers, Metal Resources or the Company, such representation, warranty or covenant shall be deemed to not be breached if ...
Limitations of Indemnification. The following limitations shall apply with regard to Seller’s obligations to indemnify Buyer Indemnitees pursuant to this Section 6.2:
(i) Seller’s and its Affiliates’ aggregate liability under Section 6.2(a)(i) of this Agreement shall not exceed $7,500,000 (the “Liability Cap”). The limitations on the indemnification obligations set forth in the prior sentence shall not apply to Adverse Consequences resulting from fraud or willful misconduct by Seller or its Affiliates.
(ii) Seller and its Affiliates will have no liability under Section 6.2(a)(i) of this Agreement unless and until the aggregate Adverse Consequences for which Buyer Indemnitees are entitled to recover under Section 6.2(a)(i) of this Agreement exceed $500,000 (the “Threshold Amount”); provided, however, once such amount exceeds the Threshold Amount, Buyer Indemnitees will be entitled to recover all amounts to which they are entitled in excess of the Threshold Amount, subject to the limitations set forth in (i) above.
(iii) Buyer acknowledges and agrees that the indemnification provisions in this Article 6 shall be the exclusive remedies of Buyer Indemnitees with respect to the transactions contemplated by this Agreement.
(iv) Any claim that may be brought under Section 6.2(a)(ii), Section 6.2(a)(iii) or Section 6.2(a)(iv), regardless of whether it may also be brought under Section 6.2(a)(i), shall not be subject to any limitation specified in Section 6.2(b)(i) or Section 6.2(b)(ii).
Limitations of Indemnification. The indemnity and other provisions herein shall not apply to the extent that a court of competent jurisdiction in a final judgment that has become non-appealable shall determine that such losses, expenses, claims, actions, damages or liabilities to which the Indemnified Party may be subject directly resulted from the breach of the Agreement by or the gross negligence, fraud or willful misconduct of the Indemnified Party and such Indemnified Party shall reimburse any funds advanced by the Indemnifying Party to the Indemnified Party pursuant to this indemnity in respect of such claim.
Limitations of Indemnification. (a) Notwithstanding the foregoing, the indemnification obligations set forth in Sections 7.2 and 7.3: (i) cover only those costs and expenses paid or incurred by the applicable Indemnitee; (ii) do not cover lost profits, consequential damages, punitive damages or special damages incurred by an Indemnitee; (iii) do not cover any amounts paid or incurred by an Indemnitee to the extent attributable to such Indemnitee’s fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or material breach of this Agreement or the Holdco LLC Agreement, as determined by a final non-appealable order of a court of competent jurisdiction; and (iv) are subject to the right of the Company to seek a final and non-appealable order of a court of competent jurisdiction (an “Indemnity Determination Proceeding”) to determine whether all or any portion of the amount for which an Indemnitee is being (or was) indemnified was attributable to fraud, willful misconduct, gross negligence, misappropriation of funds, breach of the implied contractual covenant of good faith and fair dealing or a material breach of this Agreement or the Holdco LLC Agreement or was otherwise ineligible for reimbursement by the Company pursuant to this Article VII.
(b) Notwithstanding anything to the contrary provided in this Agreement: (i) the decision on the part of the Company to undertake an Indemnity Determination Proceeding may be made by any non-indemnified Partner entitled to vote on Major Decisions, acting alone (without the requirement of an Approved Major Decision); (ii) any such non-indemnified Partner entitled to vote on Major Decisions, acting alone, is fully and completely authorized and empowered to take any and all actions it deems necessary or appropriate (in the name of and on behalf of the Company) in connection with the commencement, prosecution, enforcement and/or settlement of an Indemnity Determination Proceeding, including causing the Company to expend funds in connection with the foregoing (without the requirement of an Approved Major Decision); and (iii) the Company (acting through such non-indemnified Partner entitled to vote on Major Decisions) and the Indemnitee shall have the right to control their respective claim(s) and/or defense(s) and to appoint separate counsel, at the cost and expense of the Company, in connection with an Indemnity Determination Proceeding.
(c) If the Company prevails in ...
Limitations of Indemnification. (a) The Indemnitor shall not be liable under this Agreement in respect of any Event of Indemnification unless an Indemnitee gives written notice to the Indemnitor providing a good faith description of the circumstances relating to such Event of Indemnification (to the extent such circumstances are then known), on or before the Survival Date with respect thereto. The Seller and the Purchaser shall forward a copy of each such notice received by it to each Indemnitor. Notwithstanding anything herein to the contrary, if written notice of an Event of Indemnification has been given by the Indemnitee to the Indemnitor in accordance with Article VIII of this Agreement on or before the applicable Survival Date, then the Indemnitee's right to indemnification with respect to such Event of Indemnification shall survive until any resulting Claims shall have been finally resolved.
(b) The notice given to the Indemnitor pursuant to Section 8.2(a) and the Indemnity Notice given pursuant to Section 8.3 shall contain the Indemnitee's reasonable good faith estimate of the maximum amount of indemnification claimed based on the facts and circumstances then known to the Indemnitee. From time to time, at the written request of the Indemnitor, the Indemnitee shall update its reasonable good faith estimate of the maximum amount of indemnification claimed based on the facts and circumstances then known to the Indemnitee.
(c) No indemnification shall be required to be made under Section 8.1 hereof until the aggregate amount of all claims under such Section exceeds $250,000 (the "BASKET"), in which case the Indemnitors shall be liable for the full amount of such claims but then, in the case of indemnification by the Seller, only, (A) with respect to Losses specifically relating to High Rise, for all such Losses up to an aggregate amount equal to $10,000,000 and (B) with respect to Losses specifically relating to Centrifugal, Mechanical or CMA, up to an aggregate amount equal to $1,000,000. The foregoing limitations on indemnification shall not apply in case of (x) fraud or (y) indemnification sought for breaches of Sections 3.2, 3.3 and 4.2, 4.6 and 4.15 in which case the Seller shall be liable for the full amount of such claims but then only for all such Losses up to an aggregate amount equal to the Purchase Price; provided, however, in the case of indemnification pursuant to Section 8.1(a)(ii) or 8.1(b)(ii), the Basket shall not apply.
Limitations of Indemnification. Elsevier will have no obligation under Section 6.2 to the extent that: (a) any alleged infringement relates to use of the Subscribed Products in combination with other data products, processes or materials not provided by Elsevier or any modification of the Subscribed Products not made or authorized by Elsevier; (b) the Subscriber continues allegedly infringing activity after being notified thereof or after being informed of available modifications that would have avoided the infringement; (c) the Subscriber’s use of the Subscribed Products is not strictly in accordance with the terms of this Agreement; or (d) any alleged infringement is related to the Subscriber’s failure to implement, without the prior written consent of Elsevier, any available improvements or corrections to the Subscribed Products provided by Elsevier that could have remedied such claim.
Limitations of Indemnification. SUBJECT TO AND WITHOUT LIMITING THE INDEMNIFICATION OBLIGATIONS OF EACH PARTY WITH RESPECT TO THIRD PARTY CLAIMS UNDER SECTION 7.1, NEITHER PARTY NOR ANY OF ITS AFFILIATES WILL BE LIABLE TO THE OTHER UNDER ANY CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR FOR LOST PROFITS, MILESTONES OR ROYALTIES, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER.
Limitations of Indemnification. No Indemnifying Party shall be required to indemnify an Indemnified Party hereunder unless and until the aggregate amount of Losses and/or Expenses for which the applicable Indemnitor is otherwise obligated to make payment pursuant to this SECTION 11 exceeds $50,000, whereupon such Indemnitor shall be obligated to pay the entire aggregate amount of all such Losses and Expenses. The amount of any Losses or Expenses recoverable by an Indemnified Party under this SECTION 11.5 shall be calculated net of any insurance proceeds or other third party recoveries received by such Indemnified Party with respect thereto.
Limitations of Indemnification. Notwithstanding anything in this Article 8 to the contrary, any Damages to QIAGEN or its Affiliates resulting from fraud or intentional misrepresentation by any executive officer or director of the Company or more than 10% beneficial owner of outstanding Company Shares with respect to a representation or warranty contained herein at the time such representation or warranty was made or at the time of the Closing (i) shall not be subject to the Deductible Amount or the Expiration Date and (ii) QIAGEN's recovery shall not be limited to the Escrow Fund.
