Common use of Limitations on Indemnification Obligations Clause in Contracts

Limitations on Indemnification Obligations. Any recovery by Buyer for indemnification shall be limited as follows: (a) Buyer shall not be entitled to any recovery unless a claim for indemnification is made in accordance with Section 7.2, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; (b) Buyer shall not be entitled to recover any amount for indemnification claims under Section 7.1(a)(i) unless and until the amounts that Buyer is entitled to recover in respect of such claims exceed, in the aggregate, $200,000 (the “Deductible”), in which event (subject to clause (c) below) the entire amount that Buyer is entitled to recover in respect of such claims less the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) ; provided, however, that such limitations in (b) and (c) shall not apply in respect of any indemnification obligations of Seller arising as a result of the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorization), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to Seller.

Limitations on Indemnification Obligations. Any recovery by Buyer for indemnification shall be limited as follows: (a) Seller shall have no obligation or liability to Buyer pursuant to Section 9.2(a) of this Agreement, except to the extent that the aggregate amount of Damages incurred or suffered by Buyer which Seller is otherwise responsible for under such Section exceeds [*] Dollars ($[*]) (the “Threshold”), at which time Buyer shall not be entitled to any recovery unless a claim assert claims against Seller for indemnification is made Damages in accordance with Section 7.2excess of, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; (b) Buyer shall not be entitled to recover any amount for indemnification claims under Section 7.1(a)(i) unless and until the amounts that Buyer is entitled to recover in respect of such claims exceed, in the aggregate, $200,000 but excluding [*] (the “Deductible”), in which event (subject to clause (c) below) the entire amount that Buyer is entitled to recover in respect of such claims less the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) ; provided, however, that such limitations the maximum liability of Seller for all claims by Buyer under Section 9.2(a) of this Agreement, together, shall not in any case exceed [*] Dollars ($[*]) in the aggregate (the “Cap”), provided, that, the foregoing Cap shall not apply to breaches of Section 5.1.7, for which the maximum liability of Seller for claims by Buyer under Sections 9.2(a) of this Agreement, together with any other claims made pursuant to Section 9.2(a), shall not in any case exceed the [*]. (b) and (cBuyer shall have no obligation or liability to Seller pursuant to Section 9.3(a) of this Agreement, except to the extent that the aggregate amount of Damages incurred or suffered by Seller which Buyer is otherwise responsible for under such Section exceeds the Threshold, at which xxxx Xxxxxx shall be entitled to assert claims against Buyer for Damages in excess of, but excluding, the Deductible; provided, however, that the maximum liability of Buyer for all claims by Seller under Section 9.3(a) of this Agreement, together, shall not apply in respect of any indemnification obligations of Seller arising as a result of case exceed the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorization), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to SellerCap.

Limitations on Indemnification Obligations. Any recovery by Buyer No Claim may be made against Seller on the one hand, or Buyer, on the other hand, for indemnification pursuant to this Article XI with respect to any individual Claim, unless the aggregate of (i) all Claims of the Buyer Indemnified Parties with respect to Section 11.2 or (ii) all Claims of the Seller Indemnified Parties with respect to Section 11.3, shall exceed $100,000 and, in such event Seller on the one hand, or Buyer, on the other hand shall be limited required to pay the aggregate amount of any such Claims, subject to the limitations described in the following sentence. Additionally, except as follows: otherwise provided herein, (a) the aggregate amount of all Claims payable by Seller to the Buyer Indemnified Parties shall not exceed $1,000,000, and (b) the aggregate amount of all Claims payable by Buyer to the Seller Indemnified Parties shall also not exceed $1,000,000. The foregoing notwithstanding, any and all Claims by a Buyer Indemnified Party against Seller for indemnification relating to any claim by a customer, in connection with his Transferring Client Account, for claims arising or accruing prior to the Closing Date shall not be entitled to any recovery unless a claim for indemnification is made in accordance with Section 7.2, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; (b) Buyer shall not be entitled to recover any amount for indemnification claims under Section 7.1(a)(i) unless and until the amounts that Buyer is entitled to recover in respect of such claims exceed, in the aggregate, $200,000 (the “Deductible”), in which event (subject to clause (c) below) the entire amount that Buyer is entitled to recover in respect of such claims less the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) ; provided, however, that such limitations in (b) and (c) shall not apply in respect of any indemnification obligations of Seller arising as a result of the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorization)to, or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses shall be included in determining whether calculating the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to Sellerlimitations contained in this Section 11.5.

Limitations on Indemnification Obligations. Any recovery by The rights of the Buyer for Indemnitees to indemnification shall be limited as followspursuant to the provisions of Section 8.2(a) are subject to the following limitations: (a) the amount of any and all Losses will be determined net of any amounts recovered or reasonably expected to be recovered by the Buyer shall not be entitled Indemnitees under insurance policies with respect to such Losses and net of any recovery unless a claim for indemnification is made in accordance Tax benefits realized with Section 7.2, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; respect thereto; (b) except with respect to Section 3.6(d), the Buyer Indemnitees shall not be entitled to recover for any amount for indemnification claims under particular Loss pursuant to Section 7.1(a)(i8.2(a)(i) or 8.2(a)(iii) unless such Loss equals or exceeds $25,000 and until then, in each such case, to the amounts that full extent of such Loss; (c) except with respect to Section 3.6(d), the Buyer is Indemnitees will not be entitled to recover in respect Losses pursuant to clauses (i), (iii), (vi) and (viii) of such claims exceedSection 8.2(a) until the total amount which the Buyer Indemnitees would recover under clauses (i), (iii), (vi) and (viii) of Section 8.2(a) (as limited by the provisions of Section 8.4(a)), but for this Section 8.4(c), exceeds $750,000 in the aggregate, $200,000 aggregate (the “Deductible”), in which event ) and then only for the excess over the Deductible; and (subject to clause d) at any time the Buyer Indemnitees (cx) below) the entire amount that Buyer is will be entitled to recover no more than the amount of cash then in respect of such claims less the Deductible shall be payable; Escrow Account and (cy) will not be entitled to recover Losses from any source other than the maximum Escrow Account. Notwithstanding anything contained herein to the contrary, after the Closing, on the date that the amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall of cash in the aggregate be equal Escrow Account is reduced to 50% of all amounts paid at zero, the time of each claim or thereafter by Buyer Indemnitees shall have no further rights to Seller indemnification under this Agreement (the “Cap”) ; provided, however, that such limitations in (b) and (c) shall not apply in respect of any indemnification obligations of Seller arising as a result of the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorization), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to SellerArticle VIII.

Limitations on Indemnification Obligations. Any recovery by The obligation of the Sellers to indemnify and hold harmless the Buyer for indemnification shall be limited as follows: (a) Buyer shall not be entitled to any recovery unless a claim for indemnification is made in accordance with Section 7.2Indemnified Parties, so as to constitute a Valid Claim Noticeon the one hand, and within the time period of survival set forth in Section 7.3; Buyer to indemnify and hold harmless the Sellers Indemnitees for their Damages pursuant to an indemnification claim (b) Buyer shall not be entitled to recover any amount for indemnification claims under than under Section 7.1(a)(i10.2.3), shall only apply after such Losses exceed One Hundred Fifty Thousand Dollars ($150,000) unless and until the amounts that Buyer is entitled to recover in respect of such claims exceed, in the aggregate, $200,000 aggregate (the “Deductible”), in which event (subject to clause (c) below) after which, the entire amount that Buyer is Indemnitees shall be entitled to recover the full amount of any and all such Damages in respect excess of such claims less the Deductible Deductible. In no event shall be payable; and (c) the maximum amount recoverable by Buyer for Seller’s indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller obligations under this Agreement Article X exceed One Million Dollars ($1,000,000) (the “Cap”) ); provided, however, that such limitations Damages that are based on the fraud of Seller or on breaches of the representations of Seller in Sections 4.1 and 4.2 hereof (b) and (cthe “Excluded Claims”) shall not apply in be subject to the Cap; provided, further, that the Seller’s aggregate obligation for all Damages, including any Damages from Excluded Claims, shall not exceed the Purchase Price. The Buyer acknowledges that it has had the opportunity to conduct due diligence and investigation with respect to this transaction. The Buyer further acknowledges that, to the extent the Buyer, or any of the Buyer’s advisors, agents, consultants or representatives, by reason of such due diligence and investigation or otherwise, knew that any representation and warranty made herein by the Seller is inaccurate or untrue, this constitutes a release and waiver of any indemnification obligations and all actions, claims, suits, damages or rights to indemnity, at law or in equity, against the Seller by the Buyer arising out of Seller arising as a result breach of the untruth or inaccuracy of any that specific representation and warranty (but not with respect to every representation or warranty set forth in Sections 4.2 (Authorization), made within the same section or 4.6 (Title to Purchased Assets) or 4.11 (No Finderparagraph). No Claims and Losses Nothing herein shall be included in determining whether deemed to limit or waive the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims Buyer’s rights against the Seller arising out of any other representation and Losses has been given warranty made herein by Buyer to the Seller.

Limitations on Indemnification Obligations. Any recovery by Buyer for The rights of the Purchaser Indemnitees and Seller Indemnities to indemnification shall be limited pursuant to the provision of Section 8.2(a) or Section 8.2(b), as followsapplicable, are subject to the following limitations: (a) Buyer the amount of any and all Losses shall not be entitled determined net of any amounts recovered by the Purchaser Indemnitees under insurance policies or other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses, in each case, net of costs of collection and any recovery unless a increase to premiums resulting from making any claim for indemnification is made in accordance with Section 7.2, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; thereunder; (b) Buyer the Purchaser Indemnitees and Seller Indemnitees shall not be entitled to recover for any particular Loss pursuant to Section 8.2(a) or Section 8.2(b), as applicable, unless such Loss equals or exceeds $100,000; provided, that for all purposes of this Article 8, other than with respect to the representations and warranties set forth in Section 3.4(c)(ii) and Section 3.4(d), any qualification of any representations and warranties by reference to the materiality of or Company Material Adverse Effect relating to the matters stated therein, or words of similar effect, shall be disregarded in determining any breach thereof or the amount for indemnification claims under Section 7.1(a)(iof any Loss arising therefrom; (c) unless the Purchaser Indemnitees and until the amounts that Buyer is Seller Indemnitees shall not be entitled to recover in respect Losses pursuant to Section 8.2(a) or Section 8.2(b), as applicable, until the total amount which the Purchaser Indemnitees or Seller Indemnitees, as applicable, would recover under Section 8.2(a) (as limited by the provisions of such claims exceedSections 8.4(a), in the aggregate(b) and 10.13), but for this Section 8.4(c), exceeds $200,000 3,000,000 (the “DeductibleThreshold”), in which event (subject to clause (c) below) case the entire amount that Buyer is Purchaser Indemnitees or Seller Indemnitees, as applicable, shall only be entitled to recover Losses in excess of such amount, subject to the other limitations herein (provided that recoveries made with respect to any breach that constitutes actual fraud (which for purposes of clarity, shall be intentional and knowing) shall neither be limited by, nor applied toward, the Threshold); (d) at any given time the remaining portion of the Indemnity Escrow Amount shall be the sole source of recovery with respect to Losses indemnifiable pursuant to Section 8.2(a), and in no event shall the Purchaser Indemnitees be entitled to recover more than Indemnity Escrow Amount pursuant to Section 8.2(a) in the aggregate (provided that recoveries made with respect to any breach of a representation that constitutes actual fraud (which for purposes of clarity, shall be intentional and knowing) shall not be so limited; (e) the Purchaser Indemnitees shall not be entitled to indemnification pursuant to Section 8.2(a) for any Loss to the extent that (i) prior to the date hereof the Group Companies recorded a reserve in their consolidated books and records with respect to such Loss, (ii) such Loss was taken into account in the Purchase Price as finally determined pursuant to Section 2.9(b), (iii) the Purchaser Indemnitees could have, with commercially reasonable efforts, mitigated or prevented such Loss and (iv) to the extent such Loss was actually taken into account in calculation of Consolidated EBITDA as set forth on the Consolidated EBITDA Certificate; and (f) in no event shall Sellers’ aggregate liability for Losses hereunder exceed the Purchase Price (including, for purposes of clarity, with respect to any breach that constitutes actual fraud). For avoidance of doubt, any recoveries by the Purchaser Indemnitees from the Escrow Funds shall be included in calculating whether the aggregate Sellers’ aggregate liability for Losses hereunder exceeds the Purchase Price. Notwithstanding anything contained herein to the contrary, after the Closing, on the date that the Escrow Funds are reduced to zero, the Purchaser Indemnitees shall have no further rights to indemnification under Section 8.2 (other than with respect to any breach of a representation that constitutes actual fraud (which for purposes of clarity, shall be intentional and knowing)) or payment under Section 2.9(c). In any case where a Purchaser Indemnitee recovers, under insurance policies or from other collateral sources, any amount in respect of a matter for which such Purchaser Indemnitee was indemnified pursuant to Section 8.2, such Purchaser Indemnitee shall promptly return to the Escrow Account or, if the Escrow Agreement has expired, promptly pay over to the Representative (on behalf of Sellers) the amount so recovered (after deducting therefrom the amount of the expenses incurred by such Purchaser Indemnitee in procuring such recovery), but not in excess of any amount previously so paid to or on behalf of such Purchaser Indemnitee in respect of such claims less the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) ; provided, however, that such limitations in (b) and (c) shall not apply in respect of any indemnification obligations of Seller arising as a result of the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorization), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to Sellermatter.

Limitations on Indemnification Obligations. Any recovery The rights of Purchaser Indemnitees to indemnification pursuant to the provisions of Section 7.2.1 are subject to the following limitations: Section 7.4.1 the amount of any and all Losses will be determined net of (i) any amounts recovered by Buyer for indemnification Purchaser Indemnitees under insurance policies or other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement) with respect to such Losses, net of any reasonable out-of-pocket expenses incurred in collecting such proceeds or payment and increases in premiums attributable to such recovery, and (ii) any Tax benefit actually realized with respect to such Losses within twelve (12) months following the date on which the Claim is made by Purchaser Indemnitee hereunder (it being understood that any such Tax benefit that actually is realized after the payment pursuant to this section (and within the period specified above) shall not be netted from such payment, but shall be limited as follows:paid by the applicable Purchaser Indemnitee within twenty (20) days after such Tax benefit actually is realized) (for the avoidance of doubt, this Section 7.4 shall in no way be construed to require any Purchaser Indemnitee to make available its Tax Returns (or any other information it deems confidential) to Seller or any other Person); (a) Buyer shall Section 7.4.2 [Intentionally omitted]; Section 7.4.3 Purchaser Indemnitees will not be entitled to recover Losses pursuant to Section 7.2.1(a) until the total amount which Purchaser Indemnitees would recover under Section 7.2.1(a) (as limited by the provisions of Sections 7.4.1), exceeds $110,000 (the “Deductible”) and then only for the excess over the Deductible; provided, however, the Deductible will not apply in the case of fraud on the part of the party making such representation or warranty; provided, further, any amounts recovered by Purchaser Indemnitees under Sections 7.2.1(b), (c), or (d) or in the case of fraud shall count when determining whether the Deductible has been exceeded for purposes of claims under Section 7.2.1(a). Section 7.4.4 the Indemnity Escrow Funds, at any given time, shall be the sole source of recovery unless a claim with respect to any Losses that the Purchaser Indemnities are entitled to recover from Seller or any of its Affiliates for indemnification is made in accordance with Section 7.2, so as Losses pursuant to constitute a Valid Claim NoticeSections 7.2.1(a), and within (d) (except in the time period case of survival set forth fraud on the part of Seller or the Company) and in no event shall the Purchaser Indemnitees be entitled to recover from Seller or any of its Affiliates more than the amount of the Indemnity Escrow Funds in respect of Losses pursuant to Sections 7.2.1(a), and (d) (except in the case of fraud on the part of the party making such representation or warranty) (for the avoidance of doubt, notwithstanding anything contained herein to the contrary after the Closing, on the date that the amount of cash in the Indemnity Escrow Account is reduced to zero, Purchaser Indemnitees shall have no further rights to indemnification from Seller under Sections 7.2.1(a), and (d) (except in the case of fraud on the part of the party making such representation or warranty)); Section 7.3; (b) Buyer 7.4.5 In no event shall Seller or any of its Affiliates have any liability pursuant to this Agreement, the Documents or any other certificate or instrument delivered pursuant hereto, or the transactions related hereto or thereto in the aggregate in excess of the proceeds received by such Person directly or indirectly as a result of the payment of proceeds to Seller pursuant to Article II of this Agreement, as adjusted. Section 7.4.6 Purchaser Indemnitees shall not be entitled to recover Losses to the extent such Losses were included in any item taken into account in the determination of Purchase Price (for which the sole remedy shall be pursuant to Section 2.3); Section 7.4.7 Purchaser Indemnitees and Seller Indemnitees, as applicable, shall use commercially reasonable efforts to mitigate any of their respective Losses; provided that the costs of any such commercially reasonable mitigation efforts, subject to the limitations set forth in this Agreement, shall constitute indemnifiable Losses hereunder; Section 7.4.8 in any case where a Purchaser Indemnitee recovers under insurance policies or from other collateral sources any amount in respect of a matter for indemnification claims under which such Purchaser Indemnitee was indemnified pursuant to Section 7.1(a)(i7.2.1 of this Agreement, such Purchaser Indemnitee shall promptly pay over to Seller the amount so recovered (after deducting therefrom all reasonable and out-of-pocket expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) unless and until the amounts that Buyer is entitled to recover any amount previously so paid by or on behalf of Seller in respect of such claims exceed, in the aggregate, $200,000 matter (the “Deductible”taking into account any reduction pursuant to Section 7.4.1), and (ii) any reasonable out-of-pocket expenses incurred by Seller in which event (subject to clause (c) below) the entire amount that Buyer is entitled to recover in respect pursuing or defending any claim arising out of such claims less matter; and Section 7.4.9 notwithstanding the Deductible foregoing, for the purposes of determining whether there has been a breach of a representation or warranty or covenant and for calculating the amount of any Losses related thereto, the representations and warranties and covenants shall be payableread without regard to any Material Adverse Effect or other materiality qualifiers contained therein; and (c) provided that the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) ; provided, however, that such limitations in (b) and (c) foregoing shall not apply in respect of any indemnification obligations of Seller arising as a result of to the untruth or inaccuracy of any representation or warranty representations and warranties set forth in Sections 4.2 (Authorization), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to SellerSection 3.6.2.

Limitations on Indemnification Obligations. Any recovery by Buyer for indemnification shall be limited as follows:Notwithstanding anything to the contrary herein or otherwise, (a) none of the Buyer Indemnified Persons or Seller Indemnified Persons shall not be entitled to recover or assert any recovery unless claim under Section 7.1 or Section 7.2, respectively, until the total amount of Losses in respect of such claim or series of related claims thereunder exceed on a claim cumulative basis an amount equal to Ten Thousand Dollars ($10,000) (the “De Minimis Threshold Amount”) after which all such Losses shall be recoverable from dollar-one; (b) the maximum aggregate liability of Seller for indemnification is made any and all Indemnified Losses pursuant to Section 7.1 shall not exceed an amount equal to the total aggregate value of the Deferred Total Payment actually received, or to be actually received prior to any set-off in accordance with Section 7.2, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; (b) Buyer shall not be entitled to recover any amount for indemnification claims under Section 7.1(a)(i) unless and until the amounts that Buyer is entitled to recover in respect of such claims exceed, in the aggregate, $200,000 (the “Deductible”7.1(c), in which event (subject to clause by Seller; and (c) below) Buyer’s sole recourse hereunder to Seller for any and all Indemnified Losses pursuant to Section 7.1 shall be to set off any such Indemnified Losses to the entire amount extent actually incurred or actually suffered, against any payments due to Seller hereunder of any Deferred Cash Payment, any Deferred Stock Payment and/or any Deferred Sublicensing Consideration (for the avoidance of doubt, Buyer acknowledges and agrees that Buyer is entitled to recover in respect shall have no right of such claims less the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer direct recourse to Seller under this Agreement (or its Affiliates for any such Indemnified Losses other than such right of set-off in accordance with the “Cap”) ; provided, however, that such limitations in (b) and (c) shall not apply in respect of any indemnification obligations of Seller arising as a result of the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorizationforegoing), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to Seller.

Limitations on Indemnification Obligations. Any recovery by Buyer for indemnification shall be limited as follows: (a) Buyer No indemnity shall not be entitled payable to any recovery unless a Indemnitee with respect to any claim for indemnification is made in accordance with Section 7.2, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; (b) Buyer shall not be entitled to recover any amount for indemnification claims under Section 7.1(a)(i8.2 or Section 8.3 or Section 9.1(a) unless and until the amounts that Buyer is entitled aggregate of all Losses for which all claims are made under Section 8.2 and Section 9.1(a) as to recover in respect of such claims exceedthe Buyer, and Section 8.3 as to Seller, in the aggregate, each case exceeds $200,000 500,000 (the “DeductibleDeductible Amount”), in at which event (subject to clause (c) below) the entire amount that Buyer is time such Indemnitee shall be entitled to recover in respect indemnification only for the amount of such claims less Losses that exceeds the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) Amount; provided, however, that such limitations the foregoing shall not be applicable to Losses arising out of or resulting from (i) a breach by the Seller of the representations in Sections 3.2 (Authorization, etc.), 3.4 (Title to Shares and Capitalization) and 4.2 (Capitalization), or (ii) fraud by the Parent, the Seller or the Buyer. Notwithstanding the foregoing, or anything in this Agreement to the contrary, and excluding Losses arising out of or resulting from fraud by the Seller or the Parent, or any breach of the representations and warranties contained in Sections 3.2, 3.4 or 4.2, for which there shall be no limitation, the aggregate amount payable to the Buyer with respect to claims (i) under Section 8.2(a) shall not exceed an amount equal to the Seller Indemnity Cap, and (ii) under Section 9.1(a) shall not exceed an amount equal to the Initial Purchase Price. Excluding Losses arising out of or resulting from fraud by the Buyer, the aggregate amount payable to the Seller with respect to the claims under Section 8.3(a) shall not exceed an amount equal to $10,000,000. (b) An Indemnitee shall not be entitled to indemnification under Section 8.2 or Section 8.3 or Section 9.1(a) for any Losses with respect to any individual breach of a representation or warranty or series of related breaches of representations or warranties arising out of the same facts and circumstances if the amount of such Losses does not exceed $25,000. (c) If any Loss under Sections 8.2 and 8.3 can be reduced by any recovery, settlement or otherwise under or pursuant to insurance coverage, the Indemnitee shall not apply in respect take all appropriate steps to enforce such recovery to the extent it is commercially reasonable to do so and the amount of Losses for which any Person is entitled to indemnification obligations of Seller arising as a result of the untruth or inaccuracy of any representation or warranty set forth in Sections 4.2 (Authorization), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims and Losses hereunder shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification reduced by any portion of such Losses for which such Claims and Losses has been given by Buyer Person actually recovers against an insurance policy or against any third party other than pursuant to Sellerthis Agreement.

Limitations on Indemnification Obligations. Any recovery by Buyer for indemnification shall be limited as followsNotwithstanding anything to the contrary contained herein: (a) Buyer Seller shall not be entitled obligated to any recovery indemnify the Purchaser Indemnified Parties under Section 8.1(a)(i), (x) unless the aggregate of all Losses for which Seller would, but for this clause (x), be liable under Section 8.1(a)(i) exceeds on a claim for indemnification is made in accordance with Section 7.2cumulative basis $350,000, so as to constitute a Valid Claim Notice, and within at which point the time period of survival set forth in Section 7.3; (b) Buyer Purchaser Indemnified Parties shall not be entitled to recover any amount for all indemnification claims amounts from Seller under Section 7.1(a)(i8.1(a)(i) unless and until in excess of the amounts first $350,000 of Losses, provided, however that Buyer is entitled to recover in respect of such claims exceed, in the aggregate, $200,000 (the “Deductible”), in which event (subject to clause (c) below) the entire amount that Buyer is entitled to recover in respect of such claims less the Deductible Seller shall be payable; required to indemnify the Purchaser Indemnified Parties with respect to a breach of a representation or warranty only if the losses arising therefrom exceed $1,000 and such Losses shall be applied against the cumulative $350,000 amount only if such Losses exceed $1,000, or (cy) the maximum for any Losses in excess of an amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) $7,800,000; provided, however, that such the limitations in (b) and (cthis Section 8.4(a) shall not apply in respect of to any indemnification obligations arising from the representations and warranties set forth in the first sentence of Section 4.1, Section 4.3 and the first sentence of Section 4.12; and (b) Purchaser shall not be obligated to indemnify the Seller arising as Indemnified Parties under Section 8.2(a)(i), (x) unless the aggregate of all Losses for which Purchaser would, but for this clause (x), be liable under Section 8.2(a) exceeds on a result cumulative basis $350,000, at which point Seller shall be entitled to all indemnification amounts under Section 8.2(a) in excess of the untruth or inaccuracy first $350,000 of any Losses, provided, however that Purchaser shall be required to indemnify the Seller Indemnified Parties with respect to a breach of a representation or warranty only if the losses arising therefrom exceed $1,000 and such Losses shall be applied against the cumulative $350,000 amount only if such Losses exceed $1,000, or (y) for any Losses in excess of an amount equal to $7,800,000; provided, however, that the limitations in this Section 8.4(b) shall not apply to any indemnification obligations arising from the representations and warranties set forth in Sections 4.2 (Authorization), or 4.6 (Title to Purchased Assets) or 4.11 (No Finder). No Claims 5.1 and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to Seller5.2.

Limitations on Indemnification Obligations. Any recovery by Buyer for The rights of the Parent Indemnitees to indemnification shall be limited as followspursuant to the provisions of Section 8.2(a) other than with respect to fraud or intentional misrepresentation are subject to the following limitations: (a) Buyer shall not the amount of any and all Losses will be entitled determined net of (i) any amounts recovered or reasonably expected to be recovered by the Parent Indemnitees under insurance policies or other collateral sources (such as contractual indemnities of any recovery unless a claim for indemnification is made Person which are contained outside of this Agreement) with respect to such Losses and (ii) any Tax benefits realized with respect to such Losses in accordance with the principles of Section 7.2, so as to constitute a Valid Claim Notice, and within the time period of survival set forth in Section 7.3; 5.10(g); (b) Buyer in valuing a Loss, no adjustment shall be made as a result of any multiple, increase factor, or any other premium over fair market value, book or historical value which may have been paid by Parent and/or Newco in connection with the valuation of the Company Securities for purposes of the Merger whether or not such multiple, increase factor or other premium had been used by Parent and/or Newco at the time of, or in connection with, calculating or preparing their bid or in calculating the Enterprise Value or the final Purchase Price; (c) in no event shall Loss include any consequential, indirect, lost profits, punitive and exemplary damages (other than to the extent consequential, indirect, punitive or exemplary damages are paid in a Third Party Claim); (d) the Parent Indemnitees will not be entitled to recover any amount for indemnification claims under Losses pursuant to Section 7.1(a)(i8.2(a) unless and until the amounts that Buyer is entitled to total amount which the Parent Indemnitees would recover in respect under clause (i) of such claims exceedSection 8.2(a) (as limited by the provisions of Sections 8.4(a) and 8.4(e)), in the aggregatebut for this Section 8.4(d), exceeds One Million Two Hundred Fifty Thousand and No/100 Dollars ($200,000 1,250,000.00) (the “Deductible”), in which event (subject to clause (c) below) and then only for the entire amount that Buyer is entitled to recover in respect of such claims less excess over the Deductible shall be payable; and (c) the maximum amount recoverable by Buyer for indemnification claims under Section 7.1(a)(i) shall in the aggregate be equal to 50% of all amounts paid at the time of each claim or thereafter by Buyer to Seller under this Agreement (the “Cap”) Deductible; provided, however, that such limitations that, notwithstanding anything herein to the contrary, the foregoing limitation in (b) and (cthis Section 8.4(d) shall not apply in respect of Losses arising out of Section 8.2(a)(iv) or any breach by the Company of Sections 3.2 or 5.10(a); (e) Parent Indemnitees shall not be entitled to indemnification obligations of Seller arising as a result of pursuant to Section 8.2 if (i) Parent could have mitigated or prevented such Loss (including seeking indemnification or other redress pursuant to the untruth or inaccuracy terms of any representation or warranty set forth in Sections 4.2 (Authorizationcontract to which the Company is a party and by which the Company has the right to seek indemnification from any third party), or 4.6 (Title ii) such Loss is due to Purchased AssetsParent or the Surviving Corporation filing a Tax return, or taking a position for Tax purposes, that is inconsistent with a position taken on a Tax return that was filed on or before the Closing Date; and (f) at any time the Parent Indemnitees (x) will be entitled to recover no more than the amount of cash then in the Escrow Account and (y) pursuant to this Agreement, will not be entitled to recover Losses from any source other than the Escrow Account. Notwithstanding anything contained herein to the contrary, after the Closing, on the date that the amount of cash in the Escrow Account is reduced to zero, the Parent Indemnitees shall have no further rights to indemnification under this Article VIII, other than for claims of fraud or 4.11 (No Finder). No Claims and Losses shall be included in determining whether the Deductible has been reached unless a Valid Claim Notice seeking indemnification for such Claims and Losses has been given by Buyer to Sellerintentional misrepresentation.