Common use of Limitations on Seller’s Obligations Clause in Contracts

Limitations on Seller’s Obligations. Notwithstanding anything to the contrary set forth in this Agreement (but subject in each case to the provisions of Section 6.13), Sellers’ obligations pursuant to the provisions of this Article VI are subject to the following limitations and conditions: (a) The Purchaser Indemnitees shall not be entitled to indemnification under Section 6.01(a) if, with respect to any individual item (or series of related items) of Damages, such item is less than $25,000 (“Minor Claim”); provided that the limitation set forth in this Section 6.02(a) shall not apply to any breach of the Fundamental Representations, the Tax Representations, or the Broker Representations. (b) The Purchaser Indemnitees shall not be entitled to indemnification under Section 6.01(a) until the aggregate amount of all Damages (excluding Minor Claims) for which the Purchaser Indemnitees are entitled to indemnification thereunder exceeds $395,000 (the “Deductible”), and then only for the excess over the Deductible; provided that the limitation set forth in this Section 6.02(b) shall not apply to any breach of a Fundamental Representation, the Tax Representations or the Broker Representations. (c) The Purchaser Indemnitees’ sole and exclusive source of recovery for Damages pursuant to Section 6.01(a) (other than with respect to a breach of the Fundamental Representations, the Tax Representations, the Broker Representations (all of which, for clarity's sake, are subject to Section 6.02(d)) or the Road-iQ Representations (which, for clarity’s sake, are subject to Section 6.02(f))) from any Common Stockholder or Optionholder shall be from the Indemnity Escrow Amount held pursuant to the Escrow Agreement, to the extent that the funds representing the Indemnity Escrow Amount have not been released to the Sellers in accordance with the terms of this Agreement (it being understood that Purchaser Indemnitees shall not be permitted to seek recovery with respect to such Damages directly from Sellers). (d) The maximum amount of Damages that the Purchaser Indemnitees are entitled to recover from any Common Stockholder or Optionholder pursuant to (i) Section 6.01(a) with respect to a breach of the Fundamental Representations, the Tax Representations or the Broker Representations, and (ii) pursuant to Section 6.01(b), shall not, in the aggregate, exceed such Common Stockholder’s or Optionholder’s Overall Common Cap Amount. (e) The maximum amount of Damages that the Purchaser Indemnitees are entitled to recover from any Preferred Stockholder with respect to a breach of any of the Fundamental Representations, the Tax Representations or the Broker Representations or pursuant to Section 6.01(b) shall not exceed such Preferred Stockholder’s Overall Preferred Cap Amount. (f) Purchaser’s sole and exclusive source of recovery for Damages for a breach of the Road-iQ Representations shall be from the Indemnity Escrow Amount, and Purchaser’s right of set-off against Milestone Payments as provided under Section 1.07(g) and Section 6.05(a)(iv). (g) No Purchaser Indemnitee shall be entitled to recover under this Article VI: (i) except in the case of fraud (as defined by statute or the common law) or fraudulent misrepresentation, with respect to consequential, indirect, special, punitive or exemplary damages, except to the extent such damages are actually awarded to a Governmental Authority or other third party; or (ii) to the extent the matter in question, (A) taken together with all similar matters, does not exceed the amount of any reserves with respect to such matters which are reflected in the Closing Statement or (B) is taken into account in the determination of the Aggregate Purchase Price. (h) The recovery by the Purchaser Indemnitees under this Agreement shall be net of any reimbursement actually received from any insurance carrier (other than proceeds from the R&W Insurance Policy) or other third person (net of increased premiums and costs reasonably incurred by the Purchaser Indemnitees in seeking or obtaining such reimbursement), in either case, in connection with the Damages that form the basis of the Purchaser Indemnitee’s claim for indemnification hereunder. (i) No Purchaser Indemnitee shall be entitled to recover under Section 6.01 unless a notice with respect to the Direct Claim or Third Party Claim shall have been delivered as provided in Section 6.06(a) or Section 6.07, as applicable, within the Applicable Limitation Period, if applicable to such Direct Claim or Third Party Claim; provided, however, that if such notice is so delivered in accordance with the foregoing, such Direct Claim or Third Party Claim for indemnification shall survive until it has been fully resolved. (j) Nothing in the foregoing provisions of Section 6.02 shall in any way limit any Purchaser Indemnitee from making, or require any Purchaser Indemnitee to make, a claim under the R&W Insurance Policy or to have received any proceeds thereunder.

Limitations on Seller’s Obligations. Notwithstanding anything Seller shall not be subject to any liability under this Article 9 until all Damages of the contrary set forth in this Agreement Buyer Indemnified Persons exceed a Six Hundred Fifty Thousand Dollars (but subject in each case to $650,000) aggregate threshold (the provisions of Section 6.13“Basket Amount”), Sellers’ obligations pursuant at which point Seller will be obligated to indemnify the Buyer Indemnified Persons from and against all Damages in excess of the Basket Amount for an amount up to but not to exceed Fifteen Million Dollars ($15,000,000); provided, however, any liability of Seller under Article 9 related in any way to (i) Taxes or (ii) the covenants of Sections 5.01 and 5.03 through 5.14 inclusive shall not be subject to the provisions of this Article VI are subject to the following limitations and conditions: (a) Section 9.03. The Purchaser Indemnitees amount for which Seller shall not be entitled to indemnification under Section 6.01(a) if, liable with respect to any individual item (or series of related items) of Damages, such item is less than $25,000 (“Minor Claim”); provided that the limitation set forth in this Section 6.02(a) shall not apply to any breach of the Fundamental Representations, the Tax Representations, or the Broker Representations. (b) The Purchaser Indemnitees shall not be entitled to indemnification under Section 6.01(a) until the aggregate amount of all Damages (excluding Minor Claims) for which the Purchaser Indemnitees are entitled to indemnification thereunder exceeds $395,000 (the “Deductible”), and then only for the excess over the Deductible; provided that the limitation set forth in this Section 6.02(b) shall not apply to any breach of a Fundamental Representation, the Tax Representations or the Broker Representations. (c) The Purchaser Indemnitees’ sole and exclusive source of recovery for Damages pursuant to Section 6.01(a) (other than with respect to a breach of the Fundamental Representations, the Tax Representations, the Broker Representations (all of which, for clarity's sake, are subject to Section 6.02(d)) or the Road-iQ Representations (which, for clarity’s sake, are subject to Section 6.02(f))) from any Common Stockholder or Optionholder 9.02 shall be from the Indemnity Escrow Amount held pursuant to the Escrow Agreement, reduced to the extent that the funds representing Buyer Indemnified Persons shall theretofore have realized any Net Proceeds recovered from third parties with respect to such Damages. If the Indemnity Escrow Amount Buyer Indemnified Persons shall have not been released to the Sellers in accordance with the terms of this Agreement (it being understood that Purchaser Indemnitees received or shall not be permitted to seek recovery have had paid on their behalf an indemnity payment with respect to such Damages and shall subsequently receive, directly from Sellers). (d) The maximum amount of Damages that or indirectly, such proceeds, then Buyer shall promptly pay to Seller the Purchaser Indemnitees are entitled to recover from any Common Stockholder or Optionholder pursuant to (i) Section 6.01(a) with respect to a breach of the Fundamental RepresentationsNet Proceeds or, the Tax Representations or the Broker Representationsif less, and (ii) pursuant to Section 6.01(b), shall not, in the aggregate, exceed such Common Stockholder’s or Optionholder’s Overall Common Cap Amount. (e) The maximum amount of Damages that the Purchaser Indemnitees are entitled to recover from any Preferred Stockholder with respect to a breach of any of the Fundamental Representations, the Tax Representations or the Broker Representations or pursuant to Section 6.01(b) shall not exceed such Preferred Stockholder’s Overall Preferred Cap Amount. (f) Purchaser’s sole and exclusive source of recovery for Damages for a breach of the Road-iQ Representations shall be from the Indemnity Escrow Amount, and Purchaser’s right of set-off against Milestone Payments as provided under Section 1.07(g) and Section 6.05(a)(iv). (g) No Purchaser Indemnitee shall be entitled to recover under this Article VI: (i) except in the case of fraud (as defined by statute or the common law) or fraudulent misrepresentation, with respect to consequential, indirect, special, punitive or exemplary damages, except to the extent such damages are actually awarded to a Governmental Authority or other third party; or (ii) to the extent the matter in question, (A) taken together with all similar matters, does not exceed the amount of such indemnity payment. Buyer shall have an affirmative obligation to file claims under applicable policies to recover insurance proceeds that may be due to Buyer or any reserves with respect other Person in order to such matters which are reflected in the Closing Statement or (B) is taken into account in the determination of the Aggregate Purchase Price. (h) The recovery by the Purchaser Indemnitees under this Agreement shall be net of any reimbursement actually received from any insurance carrier (other than proceeds from the R&W Insurance Policy) or other third person (net of increased premiums and costs reasonably incurred by the Purchaser Indemnitees in seeking or obtaining such reimbursement), in either case, in connection with the Damages that form the basis of the Purchaser Indemniteemitigate Seller’s claim for indemnification obligations hereunder. (i) No Purchaser Indemnitee shall be entitled to recover under Section 6.01 unless a notice with respect to the Direct Claim or Third Party Claim shall have been delivered as provided in Section 6.06(a) or Section 6.07, as applicable, within the Applicable Limitation Period, if applicable to such Direct Claim or Third Party Claim; provided, however, that if such notice is so delivered in accordance with the foregoing, such Direct Claim or Third Party Claim for indemnification shall survive until it has been fully resolved. (j) Nothing in the foregoing provisions of Section 6.02 shall in any way limit any Purchaser Indemnitee from making, or require any Purchaser Indemnitee to make, a claim under the R&W Insurance Policy or to have received any proceeds thereunder.

Limitations on Seller’s Obligations. Notwithstanding anything to Following the contrary set forth Closing, the maximum liability of Seller under this Agreement as a result of any breach or inaccuracy of a representation, warranty or covenant of Seller contained in this Agreement (but subject or a breach or inaccuracy of a representation, warranty or covenant in each case to the provisions of Section 6.13)any certificate, Sellers’ obligations instrument, or other document delivered pursuant to this Agreement shall not exceed fifteen percent (15%) of Purchase Price, except in the provisions case of (i) intentional, knowing or willful breach of this Article VI are subject to the following limitations and conditions: Agreement, fraud, or similar circumstances, (aii) The Purchaser Indemnitees shall not be entitled to Losses incurred as a result of Excluded Liabilities, (iii) Seller’s indemnification obligations under Section 6.01(a8.2(b) if, with respect to any individual item or (or series of related itemsiv) of Damages, such item is less than $25,000 (“Minor Claim”); provided that the limitation set forth in this Section 6.02(a) shall not apply Losses relating to any breach of the Fundamental Representationsrepresentations or warranties contained in Section 4.5. Notwithstanding anything in Section 8.2(a) to the contrary, the Tax Representations, or the Broker Representations. (b) The Purchaser Indemnitees no Buyer Indemnified Party shall not be entitled to indemnification under be indemnified for any Loss described in Section 6.01(a8.2(a)(i) or (ii) unless and until the Buyer Indemnified Parties, or any of them, have notified Seller pursuant to Section 8.5 and/or 8.6 of Losses reasonably incurred, accrued or sustained in excess of $75,000 in the aggregate amount of all Damages (excluding Minor Claims) for which the Purchaser Indemnitees are entitled to indemnification thereunder exceeds $395,000 (the “DeductibleBasket Amount”), and then only for the excess over the Deductible; provided that the limitation set forth in this Section 6.02(b) shall not apply to any breach of a Fundamental Representationwhich case, the Tax Representations or the Broker Representations. (c) The Purchaser Indemnitees’ sole and exclusive source of recovery for Damages pursuant to Section 6.01(a) (other than with respect to a breach of the Fundamental Representations, the Tax Representations, the Broker Representations (all of which, for clarity's sake, are subject to Section 6.02(d)) or the Road-iQ Representations (which, for clarity’s sake, are subject to Section 6.02(f))) from any Common Stockholder or Optionholder shall be from the Indemnity Escrow Amount held pursuant to the Escrow Agreement, to the extent that the funds representing the Indemnity Escrow Amount have not been released to the Sellers in accordance with the terms of this Agreement (it being understood that Purchaser Indemnitees shall not be permitted to seek recovery with respect to such Damages directly from Sellers). (d) The maximum amount of Damages that the Purchaser Indemnitees are entitled to recover from any Common Stockholder or Optionholder pursuant to (i) Section 6.01(a) with respect to a breach of the Fundamental Representations, the Tax Representations or the Broker Representations, and (ii) pursuant to Section 6.01(b), shall not, in the aggregate, exceed such Common Stockholder’s or Optionholder’s Overall Common Cap Amount. (e) The maximum amount of Damages that the Purchaser Indemnitees are entitled to recover from any Preferred Stockholder with respect to a breach of any of the Fundamental Representations, the Tax Representations or the Broker Representations or pursuant to Section 6.01(b) shall not exceed such Preferred Stockholder’s Overall Preferred Cap Amount. (f) Purchaser’s sole and exclusive source of recovery for Damages for a breach of the Road-iQ Representations shall be from the Indemnity Escrow Amount, and Purchaser’s right of set-off against Milestone Payments as provided under Section 1.07(g) and Section 6.05(a)(iv). (g) No Purchaser Indemnitee Buyer Indemnified Parties shall be entitled to recover under this Article VI: (i) except in all Losses so identified. Notwithstanding the case of fraud (as defined by statute or foregoing, the common law) or fraudulent misrepresentation, with respect to consequential, indirect, special, punitive or exemplary damages, except to the extent such damages are actually awarded to a Governmental Authority or other third party; or (ii) to the extent the matter in question, (A) taken together with all similar matters, does not exceed the amount of any reserves with respect to such matters which are reflected in the Closing Statement or (B) is taken into account in the determination of the Aggregate Purchase Price. (h) The recovery by the Purchaser Indemnitees under this Agreement shall be net of any reimbursement actually received from any insurance carrier (other than proceeds from the R&W Insurance Policy) or other third person (net of increased premiums and costs reasonably incurred by the Purchaser Indemnitees in seeking or obtaining such reimbursement), in either case, in connection with the Damages that form the basis of the Purchaser Indemnitee’s claim for indemnification hereunder. (i) No Purchaser Indemnitee Buyer Indemnified Parties shall be entitled to recover under Section 6.01 unless for, and the Basket Amount shall not apply as a notice threshold to, any and all claims or payments made with respect to (w) all Losses reasonably incurred pursuant to any matter referenced in any clause of Section 8.2(a) other than clause (i) or (ii), (x) Losses incurrent pursuant to any breach of the Direct Claim representations or Third Party Claim shall have been delivered as provided warranties contained in Section 6.06(a4.5 or any matter referenced in Section 8.2(b), (y) intentional, knowing or Section 6.07willful breach of this Agreement, as applicable, within the Applicable Limitation Period, if applicable to such Direct Claim or Third Party Claim; provided, however, that if such notice is so delivered in accordance with the foregoing, such Direct Claim or Third Party Claim for indemnification shall survive until it has been fully resolved. (j) Nothing in the foregoing provisions of Section 6.02 shall in any way limit any Purchaser Indemnitee from makingfraud, or require similar circumstances, or (z) Losses incurred as a result of Excluded Liabilities. For the avoidance of doubt, there shall be no limitation on the amount of Seller’s liability for Excluded Liabilities, for intentional, knowing or willful breach of this Agreement, fraud, or similar circumstances, for any Purchaser Indemnitee to makebreach of the representations or warranties contained in Section 4.5, a claim or for Seller’s indemnification obligations under the R&W Insurance Policy or to have received any proceeds thereunderSection 8.2(b).

Limitations on Seller’s Obligations. Notwithstanding anything (a) Seller shall not be obligated to indemnify any Buyer Indemnified Persons under Sections 9.02(a) or 9.02(d) above until all Damages of Buyer Indemnified Persons, individually or in the contrary aggregate, exceed the Basket Amount, at which point Seller will be obligated to indemnify such Buyer Indemnified Persons for Damages in excess thereof for an amount up to but not to exceed the Cap, provided that the foregoing shall not apply to (i) any breach of Seller’s Fundamental Representations and Warranties, (ii) any breach of Section 3.05(b) or (iii) any Known Environmental Issues. (b) No Damages may be claimed for any breach of Section 3.05(b) by any Buyer Indemnified Persons, and Seller shall not be obligated to indemnify Buyer Indemnified Persons for any such Damages, unless such Damages exceed €200,000 resulting from any single Claim or aggregated Claims arising out of the same facts, events or circumstances, at which point Seller will be obligated to indemnify such Buyer Indemnified Persons for Damages in excess thereof in respect of each such Claim or aggregated Claims arising out of the same facts, events or circumstances for an amount up to but not to exceed the Cap, provided that if a particular Claim would constitute a breach of the representation set forth in this Agreement (but subject Section 3.05(b) and a breach of any other representation or representations set forth in each case Article III or in the certificate delivered pursuant to Section 8.02(h) relating to Section 7.01(a), the provisions Buyer Indemnified Persons may only bring a Claim for the breach of such other applicable representation or representations set forth in Article III or in the certificate delivered pursuant to Section 8.02(h) relating to Section 7.01(a), and shall have no right to bring a Claim for a breach of Section 6.13), Sellers’ obligations pursuant to the provisions of this Article VI are subject to the following limitations and conditions: (a3.05(b) The Purchaser Indemnitees shall not be entitled to indemnification under Section 6.01(a) if, with respect to any individual item the same set of facts, events or circumstances. (or series of related itemsc) of DamagesSeller’s maximum aggregate liability to indemnify Buyer Indemnified Persons for all Claims under this Article IX shall not exceed the Cap; provided, such item is less than $25,000 (“Minor Claim”); provided that however, the limitation set forth in this Section 6.02(a) Cap shall not apply to any breach of the Fundamental Representations, the Tax Representations, or the Broker Representations. (b) The Purchaser Indemnitees shall not be entitled to indemnification under Section 6.01(a) until the aggregate amount of all Damages (excluding Minor Claims) for which the Purchaser Indemnitees are entitled to indemnification thereunder exceeds $395,000 (the “Deductible”), and then only for the excess over the Deductible; provided that the limitation set forth in this Section 6.02(b) shall not apply to any breach of a Fundamental Representation, the Tax Representations or the Broker Representations. (c) The Purchaser Indemnitees’ sole and exclusive source of recovery for Damages pursuant to Section 6.01(a) (other than with respect to a breach of the Fundamental Representations, the Tax Representations, the Broker Representations (all of which, for clarity's sake, are subject to Section 6.02(d)) or the Road-iQ Representations (which, for clarity’s sake, are subject to Section 6.02(f))) from any Common Stockholder or Optionholder shall be from the Indemnity Escrow Amount held pursuant to the Escrow Agreement, to the extent that the funds representing the Indemnity Escrow Amount have not been released to the Sellers in accordance with the terms of this Agreement (it being understood that Purchaser Indemnitees shall not be permitted to seek recovery with respect to such Damages directly from Sellers). (d) The maximum amount of Damages that the Purchaser Indemnitees are entitled to recover from any Common Stockholder or Optionholder pursuant Claims related to (i) Section 6.01(aTaxes or to (ii) a breach of Seller’s Fundamental Representations and Warranties. Notwithstanding the foregoing, in no event shall the aggregate liability of Seller hereunder, including with respect to a breach any breaches of the Seller’s Fundamental Representations, the Tax Representations or the Broker Representations, and (ii) pursuant to Section 6.01(b), shall not, in the aggregateWarranties, exceed such Common Stockholder’s or Optionholder’s Overall Common Cap Amount. (e) The maximum amount of Damages that the Purchaser Indemnitees are entitled to recover from any Preferred Stockholder with respect to a breach of any of the Fundamental Representations, the Tax Representations or the Broker Representations or pursuant to Section 6.01(b) shall not exceed such Preferred Stockholder’s Overall Preferred Cap Amount. (f) Purchaser’s sole and exclusive source of recovery for Damages for a breach of the Road-iQ Representations shall be from the Indemnity Escrow Amount, and Purchaser’s right of set-off against Milestone Payments as provided under Section 1.07(g) and Section 6.05(a)(iv). (g) No Purchaser Indemnitee shall be entitled to recover under this Article VI: (i) except in the case of fraud (as defined by statute or the common law) or fraudulent misrepresentation, with respect to consequential, indirect, special, punitive or exemplary damages, except to the extent such damages are actually awarded to a Governmental Authority or other third party; or (ii) to the extent the matter in question, (A) taken together with all similar matters, does not exceed the amount of any reserves with respect to such matters which are reflected in the Closing Statement or (B) is taken into account in the determination of the Aggregate Purchase Price. (h) The recovery by the Purchaser Indemnitees under this Agreement shall be net of any reimbursement actually received from any insurance carrier (other than proceeds from the R&W Insurance Policy) or other third person (net of increased premiums and costs reasonably incurred by the Purchaser Indemnitees in seeking or obtaining such reimbursement), in either case, in connection with the Damages that form the basis of the Purchaser Indemnitee’s claim for indemnification hereunder. (i) No Purchaser Indemnitee shall be entitled to recover under Section 6.01 unless a notice with respect to the Direct Claim or Third Party Claim shall have been delivered as provided in Section 6.06(a) or Section 6.07, as applicable, within the Applicable Limitation Period, if applicable to such Direct Claim or Third Party Claim; provided, however, that if such notice is so delivered in accordance with the foregoing, such Direct Claim or Third Party Claim for indemnification shall survive until it has been fully resolved. (j) Nothing in the foregoing provisions of Section 6.02 shall in any way limit any Purchaser Indemnitee from making, or require any Purchaser Indemnitee to make, a claim under the R&W Insurance Policy or to have received any proceeds thereunder.