Common use of Limits on Indemnification Clause in Contracts

Limits on Indemnification. The Seller Indemnifying Parties and the Company Indemnifying Parties (each, an “Indemnifying Party”) shall not be liable for any claim for indemnification pursuant to Section 8.2(a) or 8.2(b), respectively, unless and until the aggregate amount of indemnifiable Losses which may be recovered from such Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled to indemnification for the full amount of such Losses. In no event shall the aggregate indemnification actually paid by an Indemnifying Party for a breach of the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 in respect of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified Party in respect of any such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policy.

Limits on Indemnification. The Seller Indemnifying Parties (i) In calculating amounts payable to an Indemnitee, the amount of the Losses shall (a) not be duplicative of any other Loss for which an indemnification claim has been made under this Agreement, (b) be computed net of any amounts actually recovered by such Indemnitee under any insurance policy with respect to such Loss, and (c) be reduced to take account of any net tax benefit realized by such Indemnitee arising from the Company Indemnifying Parties incurrence or payment of any indemnity payments hereunder. In computing the amount of any such tax benefit, the Indemnitee shall be deemed to recognize all other items of income, gain, loss, deduction or credit after the incurrence or payment of any indemnified Loss. (eachii) Each Indemnitee shall be obligated to use its commercially reasonable efforts to mitigate to the fullest extent practicable the amount of any Loss for which it is entitled to seek indemnification hereunder, an “Indemnifying Party”) and, notwithstanding anything to the contrary contained herein, the indemnifying party shall not be liable for required to make any claim for indemnification payment to an Indemnitee in respect of such Loss to the extent such Indemnitee has failed to comply with such obligation to mitigate. (iii) In any case where an Indemnitee recovers from third parties any amount in respect of a matter with respect to which an indemnifying party has indemnified it pursuant to Section 8.2(a) or 8.2(b)this Article 10, respectively, unless and until such Indemnitee shall promptly pay over to the aggregate indemnifying party the amount of indemnifiable Losses which may be so recovered from such Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled to indemnification for after deducting therefrom the full amount of the expenses incurred by it in procuring such Losses. In no event shall recovery), but not in excess of the aggregate indemnification actually sum of (a) any amount previously so paid by an Indemnifying Party for a breach the indemnifying party to or on behalf of the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 Indemnitee in respect of breaches of such matter and (b) any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 amount expended by the indemnifying party in respect of any Loss shall be limited to the amount of any liability pursuing or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified Party in respect of any such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file defending any claim under any insurance policyarising out of such matter.

Limits on Indemnification. The Seller Notwithstanding anything to the contrary contained in this Agreement: (a) An Indemnifying Parties and the Company Indemnifying Parties (each, an “Indemnifying Party”) Party shall not be liable for any claim for indemnification pursuant to Section 8.2(a) or 8.2(bSection 8.3(a), respectivelyas the case may be, unless and until the aggregate amount of indemnifiable Losses which may be recovered from such the Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon 2,500,000, in which case the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, Indemnifying Party shall be entitled to indemnification liable for the full entire amount of such Losses. In no event shall Losses (the “Basket Limitation”) and the aggregate indemnification actually paid by an obligations of either Indemnifying Party for a breach of under Section 8.2(a) or Section 8.3(a), as the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 in respect of breaches of any representationscase may be, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to $50,000,000; provided, however, that the limitations under this Section 8.6(a) shall not apply to any claim for indemnification in respect of a breach of Section 3.16 (Taxes) and the Basket Limitation shall not apply to the matter set forth in Schedule 8.6(a). (b) No Indemnified Party may make a claim for indemnification under Section 8.2(a) or Section 8.3(a), as the case may be, for breach by the Indemnifying Party of a particular representation or warranty after the date on which such representations and warranties terminate (if such representation or warranty is subject to a time limit) as set forth in Section 8.1. (c) Each Indemnifying Party acknowledges and agrees that for purposes hereof, Losses shall be calculated based on the amount of any liability or damage Loss that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be actually received by an Indemnified Party from any third party with respect thereto. (d) No Indemnifying Party shall be entitled to indemnification under this Article VIII for any punitive, indirect, consequential, special or exemplary damages, except to the extent payable in connection with, based on or arising out of a Third Party Claim. (e) Each Indemnified Party shall take all commercially reasonable measures to mitigate all Losses upon, and after becoming aware of, any event which could reasonably be expected to give rise to Losses. The parties agree that the limitations of Section 8.6(a) and the time limits of Section 8.6(b) shall not be applicable for any claims of indemnification pursuant to Section 8.2(b), 8.2(c), 8.3(b), 8.3(c), 8.3(d), 8.3(e), 8.3(f), or 8.3(g) it being understood that any such claims shall not be subject to any time limitations, baskets or maximum payment limitations. (f) The Acquiror Indemnified Parties shall not be entitled to indemnification hereunder regarding a breach of a representation, warranty or covenant in respect of which any such claimof the individuals set forth on Schedule 8.6(f) had actual knowledge prior to the date hereof, other than with respect to the matters set forth in Schedule 8.6(a). The HRB Indemnified Party Parties shall takenot be entitled to indemnification hereunder regarding a breach of a representation, and cause their respective Representatives to take, all commercially reasonable steps to mitigate warranty or covenant in respect of which any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only the individuals set forth on Schedule 1.1(a) had actual knowledge prior to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policydate hereof.

Limits on Indemnification. The Seller Indemnifying Parties and (a) Notwithstanding anything to the Company Indemnifying Parties (eachcontrary herein, an “Indemnifying Party”) the Sellers shall not be liable for any claim for indemnification to indemnify Buyer (or its respective directors, officers, employers, Affiliates, successors and assigns) pursuant to Section 8.2(a6.2(i) or 8.2(b), respectively, (iv) hereof with respect to any Losses specified therein unless and until the aggregate amount of indemnifiable Losses which may be recovered from such Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties Buyer and the Company shall have incurred aggregate Losses under such Sections in an amount in excess of $250,000 in which event Buyer shall be entitled to be indemnified for all Losses under such Sections in excess of $250,000. Except for claims based on fraud or intentional misrepresentation, Sellers' liability under Article VI or otherwise under this Agreement shall not exceed the Purchase Price in the aggregate. (b) In computing the amount of any Losses as to which any Indemnified Parties (each, an “Indemnified Party”), respectively, Party shall be entitled to indemnification for hereunder, the full amount of such Losses. In no event following shall apply: (i) the aggregate indemnification actually paid by an Indemnifying Party shall not be required to indemnify the Indemnitee for a breach of consequential or incidental damages suffered by the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant Indemnitee, but shall be obligated to Section 8.2 in respect of breaches indemnify to the extent provided herein the Indemnitee for consequential or incidental damages of any representationsthird party asserted against the Indemnitee; (ii) the Indemnitee shall cooperate, exceed one million at the Indemnifying Party's expense, in the investigation and eight hundred thousand dollars defense of any Claim and shall use reasonable efforts to mitigate Losses. ($1,800,000). Payments pursuant iii) If the Indemnitee shall be entitled to Section 8.2 seek payment in respect of any Loss shall be limited from any person in addition to the Indemnifying Party, the Indemnitee shall not be entitled to receive an aggregate amount in excess of any liability or damage that remains after deducting therefrom any insurance proceeds such Loss from all such persons and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified Party in respect of any such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policyIndemnifying Party.

Limits on Indemnification. (a) The Seller Indemnifying Parties and the Company Indemnifying Parties (each, an “Indemnifying Party”) Shareholder shall not be liable for with respect to any claim for indemnification pursuant to Section 8.2(a) or 8.2(b), respectively, 7.01 to any Indemnified Party unless and until the aggregate amount of indemnifiable Losses which may be recovered from such all claims against the Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled to indemnification for the full amount of such Losses. In no event shall the aggregate indemnification actually paid by an Indemnifying Party for a breach of the representations taken together with all other indemnification actually paid by such Indemnifying Party Shareholder pursuant to Section 8.2 in respect of breaches of any representations7.01 exceeds $46,000, exceed one million and eight hundred thousand dollars as to which the Indemnifying Shareholder shall thereafter be responsible for all such Damages relating to such claims. ($1,800,000). Payments b) The maximum aggregate amount recoverable from the Indemnifying Shareholder pursuant to Section 8.2 in respect of any Loss 7.01 shall be limited $460,000. (c) The Indemnifying Shareholder shall not be liable for any Damages to the extent that (a) such Indemnified Party receives proceeds from insurance policies for such Damages in connection with the circumstances related to the claim giving rise to the Damages but less the amount of any liability or damage that remains after deducting therefrom any increase in the premium for the insurance policy under which payment of insurance proceeds and any indemnitywas made attributable solely to the payment of such Damages, contribution or other similar payment received or reasonably expected (b) such Indemnified Party recovers from a third-party an amount directly related to be received by the claim giving rise to the Damages. (d) The Indemnifying Shareholder shall have no obligation to indemnify an Indemnified Party or otherwise have liability to an Indemnified Party under this Agreement for consequential damages, special damages, punitive damages, incidental damages, indirect damages, or similar items (and the Indemnified Party shall not recover for such amounts). (e) Indemnification payments under this Agreement shall constitute adjustments to the merger consideration. (f) If any Indemnifying Party is required to make an indemnification payment under this Agreement and the events giving rise to the Damages at issue actually result in a Tax benefit to the Indemnified Party, (i) any indemnification payment to be paid with respect to such Damages shall be reduced by the amount of any such claim. The Tax benefit actually realized by the Indemnified Party prior to the indemnification payment, and (ii) to the extent such Tax benefit is actually realized after the indemnification payment is paid to the Indemnified Party, the Indemnified Party shall takepay the Indemnifying Party the amount of such Tax benefit within ten days of filing the Tax Return realizing the benefit (or if the Tax benefit is in the form of an increased Tax refund, and cause their respective Representatives within ten days of receiving such refund). (g) In the event the Indemnifying Shareholder becomes obligated to takeindemnify for Damages hereunder, all commercially reasonable steps the Indemnifying Shareholder may choose to mitigate any Loss upon becoming aware satisfy such obligation by delivery to the Indemnified Party of any event or circumstance that would be reasonably expected tocash, Merger Shares, or doesany other shares of Parent Common Stock. For this purpose, give rise theretosuch Merger Shares or other shares of Parent Common Stock shall be valued at the greater of (i) the average of the closing bid and ask price per share reported on a nationally recognized quotation system on the Closing Date, including incurring costs only or (ii) (A) the average of the previous five (5) Business Days’ closing price per share of Parent Common Stock reported on a securities exchange or (B) the average of the closing bid and ask price per share reported on a nationally recognized quotation system immediately preceding the date of the payment of such Damages to the minimum extent necessary to remedy Indemnified Party. If any change is made in the breach that gives rise to Parent Common Stock without the receipt of consideration by the Company (through merger, consolidation, reorganization, recapitalization, reincorporation, stock dividend, dividend in property other than cash, stock split, liquidating dividend, combination of shares, exchange of shares, change in corporate structure or other transaction), the calculation of such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policyprice per share of Parent Common Stock provided for above will be appropriately adjusted.

Limits on Indemnification. A claim will be deemed covered by this Section 13 if it arises within the period set forth in Section 12 above that is applicable to such claim and notice is given to the party against whom it is made no later than sixty (60) days after expiration of said period. The Seller Indemnifying Parties and party seeking indemnification (the Company Indemnifying Parties “Indemnified Party”) agrees to give to the party against whom indemnification is sought (each, an the “Indemnifying Party”) reasonable notice of any claim for which any of them would be liable for indemnification hereunder. Notwithstanding the foregoing, the Indemnifying Party shall not be liable for any claim for indemnification pursuant or with respect to Section 8.2(athe first Twenty Thousand Dollars ($20,000) or 8.2(b), respectively, unless and until of the aggregate amount of indemnifiable Losses all such damages and liabilities (including related costs and expenses) for which may Indemnifying Party, but for this sentence, would be recovered from liable under this Agreement or any certificate or instrument furnished to Indemnified Party pursuant hereto (hereinafter the “Basket”); provided, however, in the event the aggregate amount of all such damages and liabilities exceed the Basket, the Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled liable for all such damages and liabilities (including related costs and expenses) from the first dollar notwithstanding the Basket; provided, further, that the Basket shall not apply to indemnification (i) any claim of Indemnified Party relating to any intentional misrepresentation by or on behalf of the Indemnifying Party, (ii) any claim relating to any liability of Indemnified Party for the full amount of such Losses. In no event shall the aggregate indemnification actually any liability to be retained or paid by an Indemnifying Party for a breach one or more of the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 in respect the terms of breaches this Agreement or any Schedule or Exhibit hereto, (iii) a breach of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect obligation or covenant of Indemnifying Party hereunder or any Loss shall be limited to the amount of Schedule or Exhibit hereto or under any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution certificate or other similar payment received document or reasonably expected to be received agreement executed by an Indemnified Party any of them in respect of any such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event connection herewith or circumstance that would be reasonably expected tothe Closing hereunder, or does(iv) any inaccuracy or incorrectness in any representation or warranty contained in Section 3.02, give rise thereto3.03, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policyor 3.30 hereof.

Limits on Indemnification. The Seller Indemnifying Parties and (a) Except for Damages based on fraud or willful breach, Xxxxxxx’ aggregate liability for Damages from indemnification claims under this Section 7 shall not exceed the Company Indemnifying Parties Purchase Price. (eachb) In calculating the amount of indemnification payable to an Indemnified Party, an “Indemnifying Party”the amount of the Damages claimed by the Indemnified Party (i) shall not be liable duplicative of any other Damage for which an indemnification claim has been made, and (ii) shall be computed net of any claim amounts actually recovered by such Indemnified Party under any insurance policy with respect to such Damage. (c) Each Indemnified Party shall be obligated to use its commercially reasonable efforts to mitigate to the fullest extent practicable the amount of any Damage for which it is entitled to seek indemnification hereunder. (d) In any case where an Indemnified Party recovers from a Third Party any amount in respect of any Damages with respect to which an Indemnifying Party has indemnified it pursuant to this Section 8.2(a) or 8.2(b)7, respectively, unless and until such Indemnified Party shall promptly pay over to the aggregate amount of indemnifiable Losses which may be recovered from such Indemnifying Party equals or exceeds Five Thousand dollars the amount so recovered ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled to indemnification for after deducting therefrom the full amount of the expenses incurred by it in procuring such Losses. In no event shall recovery), but not in excess of the aggregate indemnification actually sum of (i) any amount previously so paid by an the Indemnifying Party for a breach to or on behalf of the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 in respect of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified Party in respect of such Damages and (ii) any reasonable out-of-pocket costs and expenses incurred by the Indemnifying Party in pursuing or defending any claim arising out of such claim. The Indemnified Damages. (e) Notwithstanding anything to the contrary contained in this Agreement, to the extent that any Knowledge Party shall takeof a Party has, and cause their respective Representatives to takeas of the Closing Date, all commercially reasonable steps to mitigate any Loss upon becoming aware actual knowledge (without any duty of inquiry) of any fact, event or circumstance that would which constitutes a breach by the other Party of any of such other Party’s representations, warranties or covenants in this Agreement, then such fact, event or circumstance cannot be reasonably expected toasserted by the Party whose Knowledge Party has such knowledge as a basis for any indemnification claim against the other Party under this Section 7. (f) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, or doesSPECIAL, give rise theretoEXEMPLARY, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such LossPUNITIVE OR CONSEQUENTIAL LOSSES, LOSSES BASED UPON LOST REVENUES OR PROFITS, DIMINUTION OF VALUE, MULTIPLE OF EARNINGS, PROFITS OR CASH FLOW OR SIMILAR MEASURES, HOWEVER CAUSED OR ON ANY THEORY OF LIABILITY, THAT ARISE OUT OF OR RELATE TO THIS AGREEMENT OR THE PERFORMANCE OR BREACH HEREOF OR THEREOF OR ANY OTHER TRANSACTION CONTEMPLATED HEREBY, ALL OF WHICH ARE HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES REGARDLESS OF WHETHER OR NOT ANY PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES; providedPROVIDED THAT NOTHING IN THIS SECTION 7.5 SHALL LIMIT OR RESTRICT (A) THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER THIS SECTION 7 WITH RESPECT TO THIRD-PARTY CLAIMS, that nothing herein shall require any Indemnified Party to file any claim under any insurance policy(B) EITHER PARTY’S LIABILITY FOR BREACHES OF THE CONFIDENTIALITY OBLIGATIONS IN SECTION 8, OR (C) XXXXXXX’ LIABILITY FOR BREACH OF SECTION 5.11.

Limits on Indemnification. The Seller Indemnifying Parties and 6.10.1 In calculating amounts payable to an Indemnified Party, the Company Indemnifying Parties amount of the Losses (each, an “Indemnifying Party”i) shall not be liable duplicative of any other Loss for which an indemnification claim has been made under this Agreement or any claim for indemnification pursuant to Section 8.2(aAncillary Agreement, (ii) or 8.2(b), respectively, unless and until the aggregate amount of indemnifiable Losses which may be recovered from such Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled computed net of any amounts actually recovered by such Indemnified Party under any insurance policy with respect to indemnification for such Loss, and (iii) shall be reduced to take account of any net tax benefit realized by such Indemnified Party arising from the full amount incurrence or payment of such Lossesany indemnity payments hereunder. In no event shall the aggregate indemnification actually paid by an Indemnifying Party for a breach of the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 in respect of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to computing the amount of any liability such tax benefit, the Indemnified Party shall be deemed to recognize all other items of income, gain, loss, deduction or damage that remains credit after deducting therefrom the incurrence or payment of any insurance proceeds and indemnified Loss. 6.10.2 Each Indemnified Party shall be obligated to use its commercially reasonable efforts to mitigate to the fullest extent practicable the amount of any indemnityLoss for which it is entitled to seek indemnification hereunder, contribution or other similar and, notwithstanding anything to the contrary contained herein, the Indemnifying Party shall not be required to make any payment received or reasonably expected to be received by an Indemnified Party in respect of such Loss to the extent such Indemnified Party has failed to comply with such obligation to mitigate. 6.10.3 In any case where an Indemnified Party recovers from third parties any amount in respect of a matter with respect to which an Indemnifying Party has indemnified it pursuant to this Section 6, such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only promptly pay over to the minimum extent necessary Indemnifying Party the amount so recovered (after deducting therefrom the full amount of the expenses incurred by it in procuring such recovery), but not in excess of the sum of (i) any amount previously so paid by the Indemnifying Party to remedy or on behalf of the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file in respect of such matter and (ii) any amount expended by the Indemnifying Party in pursuing or defending any claim under any insurance policyarising out of such matter.

Limits on Indemnification. The Seller Notwithstanding anything to the contrary contained in this Agreement: (a) An Indemnifying Parties and the Company Indemnifying Parties (each, an “Indemnifying Party”) Party shall not be liable for any claim for indemnification pursuant to Section 8.2(a) or 8.2(b)(b) or Section 8.3, respectivelyas the case may be, unless and until the aggregate amount of indemnifiable Losses which may be recovered from such Indemnifying Party equals under Section 8.2(a) and (b) or Section 8.3, as applicable, exceeds Five Thousand dollars ($5,000) whereupon 500,000.00, in which case the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, Indemnifying Party shall be entitled to indemnification liable for the full entire amount of such Losses. In no event , subject to the other limits and terms of this Article VIII; provided, however, that for the avoidance of doubt, this Section 8.6(a) shall not limit or apply to any payments owed by Acquiror under Sections 2.9 or 6.4 hereof or any indemnifiable Losses under Section 8.2(c) – (g). (b) No Indemnified Party may make a claim for indemnification under Section 8.2(a) or Section 8.3(a), as the aggregate indemnification actually paid case may be, for breach by the Indemnifying Party of a particular representation or warranty that occurs or is identified after the expiration of the survival period thereof specified in Section 8.1. (c) For purposes of calculating the amount of Losses incurred by an Indemnifying Indemnified Party for a breach purposes of the representations taken together with all other indemnification actually paid this Agreement, such amount shall be: (i) reduced by such Indemnifying Party pursuant to Section 8.2 in respect of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to the amount of any liability insurance benefits and proceeds actually paid to such Indemnified Party, or damage that remains after deducting therefrom any insurance proceeds and Affiliate of any indemnitysuch party, in respect of such Losses net of any deductible amounts; (ii) reduced by the amount of any indemnification, contribution or other similar payment received or reasonably expected to be received actually recovered by an the Indemnified Party in from any third party with respect of to such Losses; (iii) reduced by any such claim. The net Tax Benefit realized by the applicable Indemnified Party shall takewhere the “Tax Benefit” equals the reduction in the actual amount of Taxes which such Indemnified Party would otherwise have had to pay in any taxable year (or portion thereof) ending on or prior to the Fundamental Representations and Tax Matters Expiration Date absent the payment or accrual of the loss, and cause their respective Representatives to takeexpense, all commercially reasonable steps to mitigate any Loss upon becoming aware of any deduction or Taxes resulting from the event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives giving rise to such Loss; providedLosses, that nothing herein shall require any calculated on a combined, consolidated or unitary basis for federal, state, local and foreign Tax purposes, where applicable, by computing the amount of Taxes of such Indemnified Party before and after inclusion of any Tax deductions attributable to file such Losses, and (iv) increased to take into account any claim under net Tax Cost incurred by the Indemnified Party arising from (x) the receipt of indemnity payments hereunder or (y) the indemnification, contribution or other similar payments actually recovered by the Indemnified Party from any insurance policythird party with respect to such Losses (in the case of either (x) or (y) grossed up for any income Tax incurred based on such increase), where the “Tax Cost” equals the increase in Taxes realized by such Indemnified Party as a result of the receipt or accrual of such indemnity payments or indemnification, contribution or other similar payments from a third party.

Limits on Indemnification. The Seller Indemnifying Parties No Party shall have any right to seek indemnification under this Agreement (i) until Losses which would otherwise be indemnifiable hereunder and have been incurred by such Party and other indemnitees associated with or related to such Party exceed $500,000 in the Company Indemnifying Parties aggregate (eachprovided that after such $500,000 amount has been satisfied, the Party entitled to indemnification shall only be entitled to recover all Losses in excess of $300,000); or (ii) for an “Indemnifying Party”aggregate amount in excess of $5,000,000; provided, however, that for purposes of calculating the dollar amount of indemnification to which any Party is entitled, all materiality or similar qualifications in the representations, warranties (other than the representations and warranties set forth in Section 3.29 and Section 4.6) and covenants in this Agreement shall be disregarded. Notwithstanding the foregoing, the limitations of Section 7.3(i) shall not be liable apply to any claims for (A) indemnification made by an Indemnified Seller Party for Losses related to any Product warranty claim for indemnification pursuant to Section 8.2(a) or 8.2(b(including any Product warranty Proceeding), respectively(B) indemnification made by an Indemnified Seller Party for damages payable to a plaintiff under the HDD Lawsuit solely to the extent that they are related to Products (including Products included in Inventory) sold or put into the stream of commerce by Buyer or Fabrik on or after the Closing Date, unless and until or (C) indemnification made by an Indemnified Buyer Party for damages payable to a plaintiff under the aggregate amount HDD Lawsuit solely to the extent that they are related to Products (including Products included in Inventory) sold or put into the stream of indemnifiable Losses which commerce by Seller prior to the Closing Date. An Indemnified Party may be recovered not claim from such Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled to indemnification for the full amount of such Losses. In no event shall the aggregate indemnification actually paid by an Indemnifying Party any Losses for a breach punitive or consequential damages (in tort, contract or otherwise) under or in respect of Article VII of this Agreement (including, without limitation, damages for any lost or prospective profits); provided that an Indemnified Party may claim from an Indemnifying Party, to the representations taken together with all other indemnification extent actually assessed, such damages paid by such Indemnifying Indemnified Party pursuant to Section 8.2 in respect as a result of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000)a Third Party Claim. Payments pursuant to Section 8.2 in respect of any Loss shall be limited to the The amount of any liability or damage that remains after deducting therefrom Losses under this Agreement shall be reduced by any net insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be actually received by an Indemnified Party in with respect of any such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such LossLoss (after taking into account deductibles and changes to insurance premiums); provided, however, that nothing herein insurance shall require any Indemnified Party to file any claim under any insurance policynot be taken into account if policy renewal will be adversely affected.

Limits on Indemnification. The Seller Indemnifying Parties and (a) Notwithstanding the provisions of Section 8.01, the Company Indemnifying Parties (each, an “Indemnifying Party”) shall not be liable for any claim for indemnification made pursuant to Section 8.2(a8.01(a) (other than any claim for indemnification based on misrepresentations or 8.2(bbreaches of warranties as set forth in Sections 3.01 and 3.02), respectively, unless and until the aggregate amount of indemnifiable Losses which may be recovered exceeds US$5,000,000 (the “Basket Amount”), whereupon the Indemnified Party shall only be entitled to indemnification for the amount of such Losses in excess of the Basket Amount, and the maximum amount of indemnifiable Losses which may be recovered from such the Indemnifying Party equals arising out of or exceeds Five Thousand dollars resulting from the causes set forth in Section 8.01(a) shall not exceed US$100,000,000. ($5,000i) whereupon If the Seller Indemnified Parties indemnification has been provided in any circumstance set forth below or the benefits have been disclosed pursuant to clause (D) below, then no claim for indemnification shall be made and the Company is not liable for any indemnification in accordance with Section 8.01: (A) The Indemnified Parties Party has actually received the insurance indemnity to the extent related to such request; (eachB) The Indemnified Party has actually received the payment from a third party directly related to such indemnifiable Losses; (C) The Indemnified Party has actually realized any tax benefits to the extent related to such indemnifiable Losses; (D) Such facts, an events, and related matters have been disclosed in this Agreement and exhibits hereof, other Transaction Documents or other documents in connection therewith and in the due diligence as set forth in Section 3.09. For purposes of calculating any tax benefits as referred to in clause (C) above or Section 8.03(b)(ii) below, if any taxes payable shall have been reduced accordingly by reason of such unpaid Loss, the Indemnified Party shall be deemed have “actually realized” the net tax benefits. The indemnifiable amount under this Section shall be adjusted accordingly to reflect any final decision in connection with tax matters of the Indemnified Party”. The payments between the Parties shall be made accordingly to reflect such adjustment, if applicable. (ii) If a claim for indemnification arises or increases merely by virtue of any action taken by the Company in the period between the date of this Agreement and the Closing under the written request from the Subscriber, such claim shall not be made and neither the Parentco nor the Company shall have any liability under Section 8.01. (iii) If a claim for indemnification arises or increases merely by virtue of any action taken by the Subscriber in the period between the date of this Agreement and the Closing under the written request from the Company, such claim shall not be made and the Company shall have no liability under Section 8.01. (b) Notwithstanding the provisions of Section 8.02, the Subscriber shall not be liable for any claim for indemnification made pursuant to Section 8.02(a) (other than a claim for indemnification based on misrepresentations or breaches of warranties as set forth in Section 4.01), respectivelyunless and until the aggregate amount of indemnifiable Losses which may be recovered exceeds the Basket Amount, whereupon the Indemnified Party shall be entitled to indemnification for the full amount of such Losses. In no event shall Losses in excess of the aggregate indemnification actually paid by an Basket Amount, and the maximum amount of indemnifiable Losses which may be recovered from the Indemnifying Party arising out of or resulting from the causes set forth in Section 8.03(a) shall not exceed US$100,000,000, provided that, any claim for a breach of indemnification under this Section shall be further subject to: (i) insurance indemnity and (ii) any tax benefits actually realized by the representations taken together with all other indemnification actually paid by such Company in relation to the indemnifiable Losses. (c) Notwithstanding anything to the contrary contained in this Agreement, the Indemnifying Party pursuant shall not be liable for any indirect or incidental damages, other than such damages arising out of or relating to Section 8.2 in respect of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified a Third Party in respect of any such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policyClaim.

Limits on Indemnification. The Seller (a) In case any event occurs which would otherwise entitle either party to assert a claim for indemnification hereunder, no Damages will be deemed to have been sustained by such party to the extent of (i) any Tax savings realizable by such party with respect thereto, or (ii) any proceeds received or to be received by such party from any insurance policies with respect thereto. (b) An Indemnifying Parties and the Company Indemnifying Parties (each, an “Indemnifying Party”) shall Party will not be liable under this Article VIII for (i) any Damage which represents the cost of repairs, replacements or improvements insofar as they enhance the value of the repaired, replaced or improved asset above its value on the Closing Date, or which represents the cost of repair or replacement in excess of the lowest reasonable cost of such repair or replacement, or (ii) consequential damages, special damages, incidental damages, indirect damages, punitive damages, lost profits or similar items. (c) The parties acknowledge and agree that if Purchaser or Seller has knowledge of a failure of any condition set forth in Article VII, respectively, or of any breach by the other party of any representation, warranty or covenant contained in this Agreement, and such party proceeds with the Closing, such party will be deemed to have waived such condition or breach and such party and its successors, assigns and Affiliates will not be entitled to sue for damages or to assert any other rights or remedy for any losxxx arising from any matters relating to such condition or breach, notwithstanding anything to the contrary contained herein or in any certificate delivered pursuant hereto. Purchaser shall be deemed to have knowledge of any information contained in any document delivered to Purchaser in connection with this Agreement. (d) Each Indemnified Party will be obligated in connection with any claim for indemnification pursuant to Section 8.2(a) or 8.2(b), respectively, unless and until the aggregate amount of indemnifiable Losses which may be recovered from such Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall be entitled to indemnification for the full amount of such Losses. In no event shall the aggregate indemnification actually paid by an Indemnifying Party for a breach of the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to under Section 8.2 in respect of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant or Section 8.3 to Section 8.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified Party in respect of any such claim. The Indemnified Party shall take, and cause their respective Representatives to take, all use commercially reasonable steps efforts to mitigate any Loss Damages upon and after becoming aware of any event or circumstance that would which could reasonably be reasonably expected to, or does, to give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policyDamages.

Limits on Indemnification. The Seller Indemnifying Parties party making a claim under this Article VII is referred to as the “Indemnified Party”, and the Company Indemnifying Parties (each, an party against whom such claims are asserted under this Article VII is referred to as the “Indemnifying Party”. The rights of the Indemnified Parties to indemnification pursuant to the provisions of Section 7.2 and Section 7.3 shall be subject to the following limitations: (a) The amount of any and all Losses shall be determined net of any amounts actually recovered by the Indemnified Party under insurance policies or other collateral sources (such as contractual indemnities of any Person which are contained outside of this Agreement or the other Transaction-Related Documents) with respect to such Losses, in each case, net of costs of collection resulting from making any claim thereunder and net of any deductibles or self-insurance retention amounts and net of any premium adjustments. In the event that an insurance or other recovery is made by any Indemnified Party (as defined herein) with respect to any Loss for which any such Indemnified Party has already been indemnified and paid hereunder or paid pursuant to a suit, action or proceeding pursuant to Section 7.5 hereof, then a payment equal to the aggregate amount of the recovery (net of all direct collection expenses, the Deductible and related insurance premiums) shall not be liable for made promptly to the Indemnifying Party; provided, however, that the parties acknowledge that neither party has any obligation to obtain insurance (or assign any insurance policy that is already in existence). (b) No claim for indemnification pursuant to shall be brought under Section 8.2(a7.2(a) or 8.2(b), respectively, Section 7.3(a) unless and until the aggregate total amount which the Indemnified Party would recover under Section 7.2(a) or Section 7.3(a) (as limited by the provisions of indemnifiable Losses which may be recovered from such Indemnifying Party equals or exceeds Five Section 7.4(a)) is greater than Two Hundred Fifty Thousand dollars Dollars ($5,000250,000) whereupon (the Seller “Deductible”) in which case the Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, Party shall be entitled to indemnification for recover only the full amount of such Losses. In Losses in excess of the Deductible, subject to the other limitations herein; provided, that Losses relating to (x) breaches or inaccuracies of the Fundamental Representations, Special Representations or of Section 4.12 (Taxes and Tax Returns), in each case, indemnifiable pursuant to Section 7.2(a) or Section 7.3(a), or (y) fraud or intentional misrepresentation shall neither be applied toward, nor limited by, the Deductible. (c) (i) The maximum amount of the indemnification obligations of Seller pursuant to Section 7.2(a), on one hand, and of the Buyer pursuant to Section 7.3(a) on the other hand, for Losses resulting from breaches or inaccuracies therefrom (except for Losses resulting from a breach or inaccuracy of a Fundamental Representation, which shall be governed by clause (ii) below) shall be an amount equal to 15% of the Transaction Consideration (the “General Representations Indemnity Cap”) and (ii) the maximum amount of the indemnification obligations of the Seller, on one hand, and of the Buyer, on the other hand, for Losses resulting from breaches of any covenants to be performed prior to Closing or breaches or inaccuracies of any Fundamental Representation, shall be an amount equal to the Transaction Consideration (the “Transaction Consideration Indemnity Cap” and, together with the General Representations Indemnity Cap, the “Indemnity Cap”); provided, that the Indemnity Cap limitations set forth in this Section 7.4(c) shall not apply to Losses relating to any claim based on fraud or intentional misrepresentation. (d) Except for Losses recovered by a third party under this Article VII, no event party shall be liable to any other party for any special, punitive or exemplary damages. (e) Any Loss for which any Indemnified Party is entitled to indemnification under this Article VII shall be determined without duplication of recovery by reason of the aggregate indemnification actually paid by an Indemnifying Party for state of facts giving rise to such Loss constituting a breach of more than one representation, warranty, covenant or agreement. (f) Notwithstanding anything to the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 contrary in respect this Agreement, solely for purposes of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to determining the amount of any liability Losses based upon, arising out of or damage that remains after deducting therefrom relating to any insurance proceeds breach or inaccuracy of any representation or warranty in this Agreement (and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified Party in respect not for purposes of determining whether a breach of any such claim. The Indemnified Party representation or warranty has occurred), such representation or warranty shall takebe considered without regard to any qualification by or reference to “materiality”, and cause their respective Representatives to take“all material respects”, all commercially reasonable steps to mitigate any Loss upon becoming aware of any event or circumstance that would be reasonably expected to“Material Adverse Effect”, or does, give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policysimilar qualifications therein.

Limits on Indemnification. (a) The Seller Sellers will not be required to indemnify any Purchaser Indemnified Party pursuant to Section 7.2(a), (x) for any individual item where Losses relating thereto for which the Sellers would otherwise be required to indemnify the Purchaser Indemnified Parties hereunder are less than $100,000 and (y) unless the aggregate amount of Losses for which the Sellers would otherwise be required to indemnify the Purchaser Indemnified Parties hereunder exceeds one percent (1%) of the Purchase Price, and in such case the Sellers will only be required to indemnify the Purchaser Indemnified Parties for aggregate Losses in excess of the first one percent (1%) of the Purchase Price. Notwithstanding anything to the contrary contained in this Agreement, the maximum aggregate amount of Losses for which the Sellers will be obligated to indemnify the Purchaser Indemnified Parties under Section 7.2(a) will be an amount equal to ten percent (10%) of the Purchase Price. (b) In case any event occurs which would otherwise entitle either Party to assert a claim for indemnification under this Article VII, no Losses will be deemed to have been sustained by such Party to the extent of (i) any net Tax benefit actually realized by such Party arising from the incurrence or payment of any such Loss (such benefit to be determined as having been actually realized to the extent there is a savings in Tax liability after taking into account all of the other Tax attributes of such party and its Affiliates), or (ii) any proceeds received or to be received by such Party from any insurance policies with respect thereto. (c) An Indemnifying Parties and the Company Indemnifying Parties (each, an “Indemnifying Party”) shall Party will not be liable under this Article VII for (i) any Losses which represent the cost of repairs, replacements or improvements to the extent they clearly enhance the value of the repaired, replaced or improved asset above its value on the Closing Date, or which represent the cost of repair or replacement in excess of the lowest reasonable cost of such repair or replacement, or (ii) consequential damages, special damages, incidental damages, indirect damages, punitive damages, lost profits relating to the same or losses based on a multiple of earnings, or similar items or (iii) any Losses that have been recovered or are approved for recovery by either Company under its approved rates. (d) To the extent that an Indemnifying Party discharges any claim for indemnification pursuant to Section 8.2(a) or 8.2(b)under this Article VII, respectively, unless and until the aggregate amount of indemnifiable Losses which may be recovered from such Indemnifying Party equals or exceeds Five Thousand dollars ($5,000) whereupon the Seller Indemnified Parties and the Company Indemnified Parties (each, an “Indemnified Party”), respectively, shall will be entitled subrogated to indemnification for the full amount of such Losses. In no event shall the aggregate indemnification actually paid by an Indemnifying Party for a breach all related rights of the representations taken together with all other indemnification actually paid by such Indemnifying Party pursuant to Section 8.2 in respect of breaches of any representations, exceed one million and eight hundred thousand dollars ($1,800,000). Payments pursuant to Section 8.2 in respect of any Loss shall be limited to the amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by an Indemnified Party in respect of any such claim. The against third parties. (e) Each Indemnified Party shall take, and cause their respective Representatives will be obligated in connection with any claim for indemnification under Section 7.2 to take, all use commercially reasonable steps efforts to mitigate any Loss Losses upon and after becoming aware of any event or circumstance that would could reasonably be reasonably expected to, or does, to give rise thereto, including incurring costs only to the minimum extent necessary to remedy the breach that gives rise to such Loss; provided, that nothing herein shall require any Indemnified Party to file any claim under any insurance policyLosses.