Common use of Limitations on Indemnification of the Purchaser Clause in Contracts

Limitations on Indemnification of the Purchaser. (a) The covenants of each Vendor contained in this Agreement, the Vendors’ Fundamental Representations and the corresponding indemnification obligations in Section 6.1.1 are assumed and given separately by such Vendor with respect to itself only, in each case up to each such Vendor’s Designated Percentage of such Losses and subject to the other limitations set forth in this Article 6. (b) The Vendors shall not have any liability to the Purchaser or the Purchaser’s Representatives for any Losses under Section 6.1.1(a), Section 6.1.2(a) or Section 6.1.2(b), and the Purchaser or the Purchaser’s Representative will not be entitled to recovery for same unless and until the aggregate amount of all Claims for all such Losses exceeds [**] dollars ($[**]) (the “Deductible”), in which event the Vendors, as applicable, shall, subject to this Section 6.3.1, be liable for the amount of all such Claims in excess of the Deductible. The limitations on indemnification set forth in this Section 6.3.1(b) shall not apply to Claims based on Fraud or in respect of the Specific Tax Indemnity. (c) Other than in respect of Claims for Losses for breaches of Fundamental Representations and for Claims based on Fraud, the maximum aggregate liability of the Vendors collectively under Section 6.1.2(b) or Section 6.1.2(g) shall not exceed the Indemnity Holdback. In respect of Claims for Losses for breaches of Fundamental Representations and for Claims based on Fraud, the maximum aggregate liability of the Vendors shall in no event exceed each Vendor’s Designated Percentage of the Purchase Price actually received. In respect of Claims based on the Specific Tax Indemnity, the maximum aggregate liability of the Vendors shall in no event exceed the Tax Liability Limit and upon such time as Claims based on the Specific Tax Indemnity reach the Tax Liability Limit, the Vendors shall in no event be liable for any further Losses relating to the Specific Tax Indemnity. For certainty, the foregoing shall not limit the Purchaser’s rights under the R&W Policy. (d) Notwithstanding any other provision of this Agreement: (i) no Person will be entitled to make any Claim pursuant to this Article 6 following the expiry of: (I) with respect to Claims made pursuant to Section 6.1.1(a), 6.1.2(a), 6.1.2(b) or 6.1.2(g), the time period set forth in Section 3.4.1, (II) with respect to Claims made pursuant to Section 6.1.1(b), 6.1.2(c) or 6.2.1(b), the time period set forth in Section 3.4.3, (III) with respect to Claims made pursuant to Section 6.1.2(e) or Section 6.1.2(f); the time period set forth in Section 3.4.1(b), (IV) with respect to Claims made pursuant to Section 6.1.2(d), [**] from the Closing Date, and (V) with respect to Claims made pursuant to Section 6.2.1(a), the time period set forth in Section 3.4.2, provided that, the foregoing limitations will not apply to prohibit or limit Claims for any Losses suffered or incurred as a result of, in respect of or arising out of any Fraud, or in respect of Claims for Losses made prior to such time period which are finally determined or settled after such dates; and (ii) no Vendor shall be liable for any amounts in excess of its Designated Percentage of the Purchase Price. (e) Notwithstanding anything to the contrary herein and subject to this Section 6.3.1(e), where the Purchaser or the Purchaser’s Representatives are entitled to recovery for Losses pursuant to Sections 6.1.1 or 6.1.2, those Losses will be solely satisfied from the following sources, in the following order: (i) in respect of Losses pursuant to Section 6.1.2(b), the Tax Indemnity, the Specific Tax Indemnity or pursuant to any Claims made in respect of the Exclusions: (I) first, from the Indemnity Holdback, up to an amount of $[**] (solely to the extent that the R&W Policy provides coverage in respect of such Claim); (II) second, from the coverage provided under the R&W Policy, up to the R&W Policy’s coverage limit (solely to the extent that the R&W Policy provides coverage in respect of such Claim); and (III) third, from the Indemnity Holdback until the Indemnity Holdback has been reduced to nil or all funds therein have been released in accordance with the Escrow Agreement, provided that, in all instances, and without exception, the Vendors shall not be liable for any amount exceeding each Vendor’s respective Designated Percentage of the Purchase Price, and the recovery for any and all Losses of the Purchaser and/or the Purchaser’s Representative’s, in the aggregate, shall in no event exceed (a) the Indemnity Holdback in the case of Claims made pursuant to Section 6.1.2(b), the Tax Indemnity or pursuant to any Claims made in respect of the Exclusions, or (b) the Tax Liability Limit in the case of Claims made pursuant to the Specific Tax Indemnity. (ii) in respect of Claims made pursuant to Sections 6.1.1(a), 6.1.1(b), 6.1.2(a), 6.1.2(c), 6.1.2(d), or any Claims based on Fraud by any of the Vendors: (I) first, from the Indemnity Holdback, up to an amount up to $[**] (solely to the extent that the R&W Policy provides coverage in respect of such Claim); (II) second, from the coverage provided under the R&W Policy, up to the R&W Policy’s coverage limit (solely to the extent that the R&W Policy provides coverage in respect of such Claim); (III) third, from the Indemnity Holdback until the Indemnity Holdback has been reduced to nil, or all funds therein have been released in accordance with the Escrow Agreement; and (IV) fourth, as a reduction to the Earn-Out Payments and Royalties payable by the Purchaser to the Vendors pursuant to this Agreement; provided that the Vendors’ Delegate shall have the ability to object to the amount of any such reduction in accordance with procedures set forth in Sections 2.8.3 and 2.8.4 of this Agreement, provided that, in all instances, and without exception, the Vendors shall not be liable for any amount exceeding each Vendor’s respective Designated Percentage of the Purchase Price and the recovery for any and all Losses of the Purchaser and/or the Purchaser’s Representative’s, in the aggregate, shall in no event exceed the Purchase Price under any circumstance specified in Section 6.3.1(e)(ii).