Common use of No Consequential Damages; Limitation of Liability Clause in Contracts

No Consequential Damages; Limitation of Liability. EXCEPT FOR THIRD PARTY CLAIMS FOR WHICH INDEMNIFICATION IS PROVIDED UNDER SECTIONS 6.1, 7.1 AND 7.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY AMOUNTS REPRESENTING LOST PROFITS, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM ANY BREACH OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ORCHID’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY LOSSES FOR WHICH ORCHID IS OBLIGATED TO INDEMNIFY HOSPIRA UNDER SECTION 7.2, ORCHID’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED *** FOR THE FIRST CONTRACT YEAR AND *** FOR EACH CONTRACT YEAR THEREAFTER (PROVIDED THAT, IF ORCHID’S PURCHASES UNDER THIS AGREEMENT ARE GREATER THAN *** IN ANY CONTRACT YEAR, ORCHID’S TOTAL LIABILITY SHALL NOT EXCEED *** FOR SUCH CONTRACT YEAR). EXCEPT FOR HOSPIRA’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY LOSSES FOR WHICH HOSPIRA IS OBLIGATED TO INDEMNIFY ORCHID UNDER SECTION 7.1, HOSPIRA’S TOTAL LIABILITY UNDER 146 CONFIDENTIAL TREATMENT [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the SEC. THIS AGREEMENT SHALL NOT EXCEED *** FOR THE FIRST CONTRACT YEAR AND *** FOR EACH CONTRACT YEAR THEREAFTER (PROVIDED THAT, IF ORCHID’S PURCHASES UNDER THIS AGREEMENT ARE GREATER THAN *** IN ANY CONTRACT YEAR, HOSPIRA’S TOTAL LIABILITY SHALL NOT EXCEED *** FOR SUCH CONTRACT YEAR ). THE PARTIES SHALL DETERMINE WHETHER THE THRESHOLD AMOUNT OF SALES WAS REACHED IN ORDER TO TRIGGER THE HIGHER LIABILITY CAP FOR THE THIRD AND SUBSEQUENT CONTRACT YEARS AT THE END OF EACH THIRD AND SUBSEQUENT CONTRACT YEAR. THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES. FURTHERMORE, THE REPRESENTATIONS AND WARRANTIES PROVIDED BY HOSPIRA HEREIN DO NOT APPLY TO ANY PRODUCTS TO THE EXTENT THAT SUCH PRODUCTS FAILS TO CONFORM TO APPLICABLE SPECIFICATIONS OR APPLICABLE LAW DUE TO (I) MANUFACUTRING PROCESSES, EQUIPMENT, DESIGN OR OTHER INTELLECTUAL PROPERTY TRANSFERRED TO HOSPIRA UNDER THE BUSINESS TRANSFER AGREEMENT; OR (II) ANY ACTION TAKEN BY ANY PERSON OR ENTITY (OTHER THAN HOSPIRA OR A PERSON OR ENTITY UNDER THE CONTROL OF HOSPIRA) WHICH ALTERS THE PRODUCT AFTER IT IS DELIVERED TO ORCHID OR ORCHID’S AGENT OR OTHERWISE FAILS TO HANDLE OR STORE THE PRODUCTS ACCORDING TO ITS SPECIFICATIONS OR APPLICABLE LAW.

No Consequential Damages; Limitation of Liability. EXCEPT FOR THIRD UNDER NO CIRCUMSTANCES WILL EITHER PARTY CLAIMS FOR WHICH INDEMNIFICATION IS PROVIDED UNDER SECTIONS 6.1, 7.1 AND 7.2 NEITHER PARTY SHALL OR ITS RELATED PERSONS BE LIABLE TO THE OTHER PARTY, THEIR RESPECTIVE LICENSORS AND VENDORS BE LIABLE FOR ANY AMOUNTS REPRESENTING LOST PROFITSDAMAGES OTHER THAN DIRECT DAMAGES, OR FOR ANY OTHER SUCH AS CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTALPUNITIVE OR INCIDENTAL DAMAGES OR LOST PROFITS (EXCEPT FOR PROFITS LOST DUE SOLELY TO ACTS BY CSG DIRECTLY RESULTING IN THE UNAUTHORIZED DISCLOSURE OF CUSTOMER’S CUSTOMER LISTS), PUNITIVEWHETHER FORESEEABLE OR UNFORESEEABLE, EXEMPLARY BASED ON THE OTHER PARTY’S CLAIMS OR CONSEQUENTIAL DAMAGES THOSE OF ITS CUSTOMERS (INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR LOSS OF DATA, GOODWILL, USE OF MONEY OR USE OF THE PRODUCTS, DELIVERABLES, OR SERVICES, THIRD PARTY SOFTWARE, RESULTING FROM ANY REPORTS, THEIR ACCURACY OR THEIR INTERPRETATION, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS), ARISING OUT OF BREACH OR FAILURE OF EXPRESS OR IMPLIED WARRANTY, BREACH OF THIS AGREEMENTCONTRACT, EVEN IF MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE. IN NO EVENT WILL THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR ORCHID’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY LOSSES FOR AGGREGATE LIABILITY WHICH ORCHID IS OBLIGATED TO INDEMNIFY HOSPIRA UNDER SECTION 7.2EITHER PARTY, ORCHID’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED *** FOR THE FIRST CONTRACT YEAR AND *** FOR EACH CONTRACT YEAR THEREAFTER (PROVIDED THAT, IF ORCHID’S PURCHASES UNDER THIS AGREEMENT ARE GREATER THAN *** ITS LICENSORS OR ITS VENDORS MAY INCUR IN ANY CONTRACT YEAR, ORCHID’S TOTAL LIABILITY SHALL NOT ACTION OR PROCEEDING EXCEED *** FOR SUCH CONTRACT YEAR)THE AMOUNT ACTUALLY PAID BY CUSTOMER ALLOCABLE TO THE SPECIFIC PRODUCT OR SERVICE INVOLVED THAT DIRECTLY CAUSED THE DAMAGE. EXCEPT FOR HOSPIRA’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY LOSSES FOR WHICH HOSPIRA IS OBLIGATED TO INDEMNIFY ORCHID UNDER SECTION 7.1, HOSPIRA’S TOTAL LIABILITY UNDER 146 CONFIDENTIAL TREATMENT [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the SEC. THIS AGREEMENT SHALL NOT EXCEED *** FOR DESPITE THE FIRST CONTRACT YEAR FOREGOING EXCLUSION AND *** FOR EACH CONTRACT YEAR THEREAFTER (PROVIDED THAT, IF ORCHID’S PURCHASES UNDER THIS AGREEMENT ARE GREATER THAN *** IN ANY CONTRACT YEAR, HOSPIRA’S TOTAL LIABILITY SHALL NOT EXCEED *** FOR SUCH CONTRACT YEAR ). THE PARTIES SHALL DETERMINE WHETHER THE THRESHOLD AMOUNT OF SALES WAS REACHED IN ORDER TO TRIGGER THE HIGHER LIABILITY CAP FOR THE THIRD AND SUBSEQUENT CONTRACT YEARS AT THE END OF EACH THIRD AND SUBSEQUENT CONTRACT YEAR. THE EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES. FURTHERMORE, THE REPRESENTATIONS AND WARRANTIES PROVIDED BY HOSPIRA HEREIN DO THIS SECTION WILL NOT APPLY TO ANY PRODUCTS TO THE EXTENT THAT SUCH PRODUCTS FAILS TO CONFORM TO APPLICABLE SPECIFICATIONS OR APPLICABLE LAW DUE SPECIFICALLY REQUIRES LIABILITY. NOR WILL THIS SECTION BE CONSTRUED OR APPLIED SO AS TO (I) MANUFACUTRING PROCESSES, EQUIPMENT, DESIGN LIMIT OR OTHER INTELLECTUAL PROPERTY TRANSFERRED TO HOSPIRA UNDER THE BUSINESS TRANSFER AGREEMENTREDUCE CUSTOMER’S FINANCIAL OBLIGATIONS HEREUNDER; OR (II) ANY ACTION TAKEN BY ANY PERSON AS TO LIMIT OR ENTITY (OTHER THAN HOSPIRA REDUCE CUSTOMER’S LIABILITY IN CONNECTION WITH INTENTIONAL OR A PERSON GROSSLY NEGLIGENT ACTS WITH RESPECT TO THE PRODUCTS, SERVICES, DELIVERABLES OR ENTITY THIRD PARTY SOFTWARE; OR TO LIMIT OR REDUCE CSG’S INDEMNIFICATION OBLIGATIONS UNDER THE CONTROL OF HOSPIRA) WHICH ALTERS THE PRODUCT AFTER IT IS DELIVERED TO ORCHID OR ORCHID’S AGENT OR OTHERWISE FAILS TO HANDLE OR STORE THE PRODUCTS ACCORDING TO ITS SPECIFICATIONS OR APPLICABLE LAWSECTION 13.

No Consequential Damages; Limitation of Liability. EXCEPT FOR THIRD Direct Damages Only. IN NO EVENT WILL EITHER PARTY CLAIMS FOR WHICH INDEMNIFICATION IS PROVIDED UNDER SECTIONS 6.1, 7.1 AND 7.2 NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY (OR ANY INDIVIDUAL OR ENTITY CLAIMING THROUGH SUCH PARTY) FOR ANY AMOUNTS REPRESENTING LOST PROFITS, OR FOR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES RESULTING FROM OF ANY BREACH KIND OR NATURE WHATSOEVER, WHETHER FORESEEABLE OR NOT, INCLUDING BUT NOT LIMITED TO ANY LOST BUSINESS OR PROFITS, INTERRUPTIONS OF SERVICE, LOST REVENUES, LOST SAVINGS, HARM TO BUSINESS, ERROR OR LOSS OF DATA OR INFORMATION, ARISING IN ANY MANNER OUT OF THIS AGREEMENT AND A PARTY’S PERFORMANCE OR NONPERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED REGARDLESS OF THE POSSIBILITY FORM OF SUCH DAMAGES. EXCEPT FOR ORCHID’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY LOSSES ACTION, WHETHER IN CONTRACT OR TORT (INCLUDING STRICT LIABILITY), ALL CLAIMS FOR WHICH ORCHID IS OBLIGATED ARE HEREBY SPECIFICALLY WAIVED. SERVICE PROVIDER’S LIABILITY TO INDEMNIFY HOSPIRA UNDER SECTION 7.2, ORCHIDNETWORK OWNER SHALL BE LIMITED TO THE AMOUNTS COLLECTED FROM SERVICE PROVIDER’S TOTAL LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED *** SUBSCRIBERS FOR THE FIRST CONTRACT YEAR AND *** FOR EACH CONTRACT YEAR THEREAFTER SIX (PROVIDED THAT, IF ORCHID’S PURCHASES UNDER THIS AGREEMENT ARE GREATER THAN *** IN ANY CONTRACT YEAR, ORCHID’S TOTAL LIABILITY SHALL NOT EXCEED *** FOR SUCH CONTRACT YEAR)6) MONTHS IMMEDIATELY PRECEDING THE DATE OF THE ALLEGED DAMAGE OR CLAIM. EXCEPT FOR HOSPIRA’S INDEMNIFICATION OBLIGATIONS FOR THIRD PARTY LOSSES FOR WHICH HOSPIRA IS OBLIGATED TO INDEMNIFY ORCHID UNDER SECTION 7.1, HOSPIRA’S TOTAL LIABILITY UNDER 146 CONFIDENTIAL TREATMENT [***] Indicates that text has been omitted which is the subject of a confidential treatment request. This text has been separately filed with the SEC. THIS AGREEMENT SHALL NOT EXCEED *** FOR THE FIRST CONTRACT YEAR AND *** FOR EACH CONTRACT YEAR THEREAFTER (PROVIDED THAT, IF ORCHID’S PURCHASES UNDER THIS AGREEMENT ARE GREATER THAN *** IN ANY CONTRACT YEAR, HOSPIRA’S TOTAL LIABILITY SHALL NOT EXCEED *** FOR SUCH CONTRACT YEAR ). THE PARTIES SHALL DETERMINE WHETHER THE THRESHOLD AMOUNT OF SALES WAS REACHED IN ORDER TO TRIGGER THE HIGHER LIABILITY CAP FOR THE THIRD AND SUBSEQUENT CONTRACT YEARS AT THE END OF EACH THIRD AND SUBSEQUENT CONTRACT YEAR. THE EXPRESS WARRANTIES NOTHING CONTAINED IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS SECTION 9.b SHALL LIMIT NETWORK OWNER’S OR IMPLIED, AND EXCEPT AS SET FORTH HEREIN, EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES. FURTHERMORE, THE REPRESENTATIONS AND WARRANTIES PROVIDED BY HOSPIRA HEREIN DO NOT APPLY TO ANY PRODUCTS SERVICE PROVIDER’S LIABILITY TO THE EXTENT THAT SUCH PRODUCTS FAILS TO CONFORM TO APPLICABLE SPECIFICATIONS OTHER FOR (i) GROSS NEGLIGENCE, WILLFUL, OR APPLICABLE LAW DUE TO (I) MANUFACUTRING PROCESSES, EQUIPMENT, DESIGN OR OTHER INTELLECTUAL PROPERTY TRANSFERRED TO HOSPIRA UNDER THE BUSINESS TRANSFER AGREEMENT; OR (II) ANY ACTION TAKEN BY ANY PERSON OR ENTITY (OTHER THAN HOSPIRA OR A PERSON OR ENTITY UNDER THE CONTROL OF HOSPIRA) WHICH ALTERS THE PRODUCT AFTER IT IS DELIVERED TO ORCHID OR ORCHID’S AGENT OR OTHERWISE FAILS TO HANDLE OR STORE THE PRODUCTS ACCORDING TO ITS SPECIFICATIONS OR APPLICABLE LAW.INTENTIONAL MISCONDUCT OR