Common use of Remedies and Limitation of Liability Clause in Contracts

Remedies and Limitation of Liability. A. THE EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF THE PARTIES FOR ANY CLAIM, LOSS, DAMAGE, OR EXPENSE OF EITHER PARTY OR ANY OTHER ENTITY ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY, OR STRICT LIABILITY SHALL BE AS FOLLOWS: (1) FOR INFRINGEMENT--THE REMEDY SET FORTH IN THE "PATENTS, TRADEMARKS, AND COPYRIGHTS" CLAUSE; (2) FOR THE PERFORMANCE OR NON-PERFORMANCE OF HARDWARE, SOFTWARE, APPLICATIONS AND SERVICES OR CLAIMS THAT THEY DO NOT CONFORM TO A WARRANTY--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY" CLAUSE; (3) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT OF THE DIRECT DAMAGES NOT TO **** Confidential materials submitted and filed separately with the Securities and Exchange Commission. Four asterisks are used to denote omissions. 15 EXCEED $100,000 INCLUDING AWARDED COUNSEL FEES AND COSTS. B. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE INDEMNITY, OR STRICT LIABILITY. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. C. EACH PARTY SHALL GIVE THE OTHER PROMPT NOTICE OF ANY CLAIM. ANY ACTION OR PROCEEDING MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.

Remedies and Limitation of Liability. A. Limitation of Liability and Indemnification: SELLER HAS NO LIABILITY FOR PROSPECTIVE PROFITS, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENT, THE EXCLUSIVE REMEDIES PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND THE ENTIRE LIABILITY OF THE PARTIES FOR ANY CLAIM, LOSS, DAMAGE, DAMAGE OR EXPENSE INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF EITHER PARTY BUYER OR ANY OTHER ENTITY OTHERS ARISING OUT OF USE OR POSSESSION OF ANY PRODUCTS SOLD HEREUNDER. BUYER (AS "INDEMNIFYING PARTY") SHALL INDEMNIFY, HOLD HARMLESS, AND DEFEND SELLER AND ITS MANAGERS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS, AND PERMITTED ASSIGNS (COLLECTIVELY, "INDEMNIFIED PARTY") AGAINST ANY AND ALL LOSSES, DAMAGES, LIABILITIES, DEFICIENCIES, CLAIMS, ACTIONS, JUDGMENTS, SETTLEMENTS, INTEREST, AWARDS, PENALTIES, FINES, COSTS, OR EXPENSES OF WHATEVER KIND, INCLUDING PROFESSIONAL FEES AND ATTORNEYS' FEES, THAT ARE INCURRED BY INDEMNIFIED PARTY (COLLECTIVELY, "LOSSES"), ARISING OUT OF ANY THIRD-PARTY CLAIM ALLEGING: (a) BREACH OR NON- FULFILLMENT OF ANY REPRESENTATION, WARRANTY, OR COVENANT UNDER THIS AGREEMENT BY INDEMNIFYING PARTY OR ITS PERSONNEL; (b) ANY NEGLIGENT OR MORE CULPABLE ACT OR OMISSION OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT) IN CONNECTION WITH THE PERFORMANCE OF ITS OBLIGATIONS UNDER THIS AGREEMENT; (c) ANY BODILY INJURY, DEATH OF ANY PERSON, OR DAMAGE TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE USE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS OF INDEMNIFYING PARTY OR ITS PERSONNEL (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERAL, STATE, OR LOCAL LAWS, REGULATIONS, OR CODES IN THE PERFORMANCE OF ANY SOFTWAREITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, APPLICATIONS SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER IN AN ACTION EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED BY ABUSE, MISUSE OR ARISING OUT LACK OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE, INDEMNITY, OR STRICT LIABILITY SHALL BE AS FOLLOWS: (1) MAINTENANCE FOR INFRINGEMENT--THE REMEDY SET FORTH IN THE "PATENTS, TRADEMARKS, AND COPYRIGHTS" CLAUSE; (2) FOR THE PERFORMANCE OR NON-PERFORMANCE OF HARDWARE, SOFTWARE, APPLICATIONS PRODUCTS AND SERVICES OR CLAIMS THAT THEY DO NOT CONFORM TO A WARRANTY--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY" CLAUSE; (3) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT OF THE DIRECT DAMAGES NOT TO **** Confidential materials submitted and filed separately with the Securities and Exchange Commission. Four asterisks are used to denote omissions. 15 EXCEED $100,000 INCLUDING AWARDED COUNSEL FEES AND COSTS. B. NOTWITHSTANDING ANY OTHER PROVISION OF PROVIDED UNDER THIS AGREEMENT, NEITHER PARTY AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE INDEMNITY, OR STRICT LIABILITY. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. C. EACH PARTY SHALL GIVE THE OTHER PROMPT NOTICE OF ANY CLAIM. ANY ACTION OR PROCEEDING MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.The

Remedies and Limitation of Liability. A. IN THE EXCLUSIVE EVENT THE BUYER CLAIMS THE COMPANY HAS BREACHED ANY OF ITS OBLIGATIONS UNDER THE SALES CONTRACT, WHETHER OF ANY WARRANTY OR OTHERWISE, THE COMPANY MAY BUT HAS NO OBLIGATION TO, REQUEST THE RETURN OF THE PRODUCTS AND TENDER TO THE BUYER THE PURCHASE PRICE THERETOFORE PAID BY THE BUYER, AND IN SUCH EVENT, THE COMPANY SHALL HAVE NO FURTHER OBLIGATION UNDER THE SALES CONTRACT OF ANY TYPE WHATSOEVER EXCEPT TO REFUND SUCH PURCHASE PRICE UPON REDELIVERY OF THE PRODUCTS. IF THE COMPANY SO REQUESTS THE RETURN OF THE PRODUCTS, THE PRODUCTS WILL BE REDELIVERED TO THE COMPANY IN ACCORDANCE WITH THE COMPANY’S INSTRUCTIONS AND AT THE COMPANY’S EXPENSE. THE REMEDIES CONTAINED IN THIS AND THE ENTIRE LIABILITY PRECEDING PARAGRAPH SHALL CONSTITUTE THE SOLE AND EXCLUSIVE RECOURSE OF THE PARTIES BUYER AGAINST THE COMPANY FOR BREACH OF ANY OF THE COMPANY’S OBLIGATIONS UNDER THE SALES CONTRACT, WHETHER OF ANY WARRANTY OR OTHERWISE. IN NO CASE SHALL THE COMPANY BE LIABLE FOR ANY CLAIMSPECIAL, PUNATIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, LOSS OR INJURY OF ANY KIND, INCLUDING WITHOUT LIMITATION ECONOMIC LOSS, DAMAGELOSS OF ANTICIPATED SAVINGS, WASTED OPPORTUNITY, LOSS OF REVENUE, OR EXPENSE LOSS OF EITHER PARTY OR ANY OTHER ENTITY ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICESPROFITS, WHETHER IN AN ACTION FOR OR ARISING OUT OF BASED UPON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, INCLUDING NEGLIGENCEOR ANY OTHER LEGAL THEORY, INDEMNITY, EVEN IF THE COMPANY IS AWARE OF OR STRICT LIABILITY SHALL BE AS FOLLOWS: (1) FOR INFRINGEMENT--THE REMEDY SET FORTH IN THE "PATENTS, TRADEMARKS, AND COPYRIGHTS" CLAUSE; (2) FOR THE PERFORMANCE OR NON-PERFORMANCE OF HARDWARE, SOFTWARE, APPLICATIONS AND SERVICES OR CLAIMS THAT THEY DO NOT CONFORM TO A WARRANTY--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY" CLAUSE; (3) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT NOTIFIED OF THE DIRECT DAMAGES NOT TO **** Confidential materials submitted and filed separately with the Securities and Exchange CommissionPOSSIBILITY OF SUCH DAMAGES, LOSS OR INJURY. Four asterisks are used to denote omissions. 15 EXCEED $100,000 INCLUDING AWARDED COUNSEL FEES AND COSTS. B. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENTIN ALL CASES, NEITHER PARTY AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS THE COMPANY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT, OR RELATING TO THE USE SALES CONTRACT (INCLUDING WITHOUT LIMITATION THE PERFORMANCE THEREUNDER OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS CLAIM OR SERVICES, CLAIMS RELATING TO THE PRODUCTS) WHETHER IN AN ACTION FOR OR ARISING OUT OF BASED UPON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, INCLUDING NEGLIGENCE INDEMNITYOR ANY OTHER LEGAL THEORY, OR STRICT LIABILITY. THIS CLAUSE SHALL SURVIVE FAILURE NOT EXCEED THE CONTRACT PRICE ACTUALLY PAID BY THE BUYER IN RESPECT OF AN EXCLUSIVE OR LIMITED REMEDYTHE PRODUCTS TO WHICH SUCH LIABILITY RELATES. C. EACH PARTY SHALL GIVE THE OTHER PROMPT NOTICE OF ANY CLAIM. ANY ACTION OR PROCEEDING MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.

Remedies and Limitation of Liability. A. 9.1. In the event of a breach of the Performance Warranty under Section 8.1, Smarsh shall use commercially reasonable efforts to provide Client with an error correction or work-around that corrects the reported non-conformity. The foregoing represents Client’s sole remedy for any breach of the Performance Warranty. 9.2. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF THE PARTIES OTHER, OR TO ANY THIRD PARTY, FOR ANY CLAIMSPECIAL, LOSSINDIRECT, DAMAGEINCIDENTAL, PUNITIVE, EXEMPLARY OR EXPENSE CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF EITHER PARTY USE, DATA, BUSINESS OR ANY OTHER ENTITY PROFITS), ARISING OUT OF THIS AGREEMENT, OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. XXXXXX’X AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO THE PROVISION OF SERVICES, NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, INCLUDING NEGLIGENCEOR OTHERWISE) IN WHICH ANY ACTION IS BROUGHT, INDEMNITYSHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY SMARSH FROM CLIENT FOR THE APPLICABLE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, OR STRICT TO DETERMINE IF THE LIMIT HAS BEEN REACHED. 9.3. THE ABOVE LIMITATIONS OF LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY SMARSH RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF. THE FOREGOING EXCLUSIONS/LIMITATIONS OF LIABILITY SHALL BE AS FOLLOWS: NOT APPLY (1) FOR INFRINGEMENT--THE REMEDY SET FORTH IN THE "PATENTS, TRADEMARKS, AND COPYRIGHTS" CLAUSE; TO PERSONAL INJURY OR DEATH CAUSED BY XXXXXX’X XXXXX NEGLIGENCE; (2) FOR THE PERFORMANCE OR NON-PERFORMANCE OF HARDWARE, SOFTWARE, APPLICATIONS AND SERVICES OR CLAIMS THAT THEY DO NOT CONFORM TO A WARRANTY--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY" CLAUSE; FRAUD; (3) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT OF THE DIRECT DAMAGES NOT TO **** Confidential materials submitted and filed separately with the Securities and Exchange Commission. Four asterisks are used to denote omissions. 15 EXCEED $100,000 INCLUDING AWARDED COUNSEL FEES AND COSTS. B. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL MATTER FOR WHICH LIABILITY CANNOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF CONTRACT, TORT, INCLUDING NEGLIGENCE INDEMNITY, OR STRICT LIABILITY. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDYEXCLUDED BY LAW. C. EACH PARTY SHALL GIVE THE OTHER PROMPT NOTICE OF ANY CLAIM. ANY ACTION OR PROCEEDING MUST BE BROUGHT WITHIN TWENTY-FOUR (24) MONTHS AFTER THE CAUSE OF ACTION ACCRUES.

Remedies and Limitation of Liability. A. 9.1 IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF THE PARTIES OTHER, OR TO ANY THIRD PARTY, FOR ANY CLAIMSPECIAL, LOSSINDIRECT, DAMAGEINCIDENTAL, PUNITIVE, EXEMPLARY OR EXPENSE CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF EITHER PARTY USE, DATA, BUSINESS OR ANY OTHER ENTITY PROFITS), ARISING OUT OF THIS AGREEMENT, OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BASED ON BREACH OF CONTRACT, TORTBREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, INDEMNITY), OR STRICT LIABILITY SHALL BE AS FOLLOWS: (1) FOR INFRINGEMENT--OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE REMEDY SET FORTH IN THE "PATENTS, TRADEMARKS, AND COPYRIGHTS" CLAUSE; (2) FOR THE PERFORMANCE OR NON-PERFORMANCE OF HARDWARE, SOFTWARE, APPLICATIONS AND SERVICES OR CLAIMS THAT THEY DO NOT CONFORM TO A WARRANTY--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY" CLAUSE; (3) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT PARTY HAD BEEN ADVISED OF THE DIRECT POSSIBILITY OF SUCH DAMAGE. FLEX’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES NOT ARISING UNDER OR RELATING TO **** Confidential materials submitted and filed separately with the Securities and Exchange Commission. Four asterisks are used to denote omissions. 15 EXCEED $100,000 INCLUDING AWARDED COUNSEL FEES AND COSTS. B. NOTWITHSTANDING ANY OTHER THE PROVISION OF THIS AGREEMENT, NEITHER PARTY AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, INCLUDING NEGLIGENCE INDEMNITY, OR STRICT LIABILITY. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. C. EACH PARTY SHALL GIVE THE OTHER PROMPT NOTICE OF ANY CLAIM. OTHERWISE) IN WHICH ANY ACTION OR PROCEEDING MUST IS BROUGHT, SHALL BE BROUGHT WITHIN TWENTY-FOUR LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY FLEX FROM RESELLER FOR THE APPLICABLE SERVICES IN THE TWELVE (2412) MONTHS AFTER MONTH PERIOD PRECEDING THE CAUSE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF ACTION ACCRUESLIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY FLEX RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF.

Remedies and Limitation of Liability. A. 9.1. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE EXCLUSIVE REMEDIES AND THE ENTIRE LIABILITY OF THE PARTIES OTHER, OR TO ANY THIRD PARTY, FOR ANY CLAIMSPECIAL, LOSSINDIRECT, DAMAGEINCIDENTAL, PUNITIVE, EXEMPLARY OR EXPENSE CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF EITHER PARTY USE, DATA, BUSINESS OR ANY OTHER ENTITY PROFITS), ARISING OUT OF THIS AGREEMENT, OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BASED ON BREACH OF CONTRACT, TORTBREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE, INDEMNITY), OR STRICT LIABILITY SHALL BE AS FOLLOWS: (1) FOR INFRINGEMENT--OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE REMEDY SET FORTH IN THE "PATENTS, TRADEMARKS, AND COPYRIGHTS" CLAUSE; (2) FOR THE PERFORMANCE OR NON-PERFORMANCE OF HARDWARE, SOFTWARE, APPLICATIONS AND SERVICES OR CLAIMS THAT THEY DO NOT CONFORM TO A WARRANTY--THE REMEDY SET FORTH IN THE APPLICABLE "WARRANTY" CLAUSE; (3) FOR EVERYTHING OTHER THAN AS SET FORTH ABOVE--THE AMOUNT PARTY HAD BEEN ADVISED OF THE DIRECT POSSIBILITY OF SUCH DAMAGE. EATE DIGITAL’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES NOT ARISING UNDER OR RELATING TO **** Confidential materials submitted and filed separately with the Securities and Exchange Commission. Four asterisks are used to denote omissions. 15 EXCEED $100,000 INCLUDING AWARDED COUNSEL FEES AND COSTS. B. NOTWITHSTANDING ANY OTHER THE PROVISION OF THIS AGREEMENT, NEITHER PARTY AND ITS AFFILIATES AND THEIR EMPLOYEES AND AGENTS SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGE OR LOST PROFITS, REVENUES OR SAVINGS ARISING OUT OF THIS AGREEMENT, OR THE USE OR PERFORMANCE OF ANY SOFTWARE, APPLICATIONS OR SERVICES, WHETHER IN AN ACTION FOR OR ARISING OUT OF BREACH OF NOTWITHSTANDING THE FORM (E.G., CONTRACT, TORT, INCLUDING NEGLIGENCE INDEMNITY, OR STRICT LIABILITY. THIS CLAUSE SHALL SURVIVE FAILURE OF AN EXCLUSIVE OR LIMITED REMEDY. C. EACH PARTY SHALL GIVE THE OTHER PROMPT NOTICE OF ANY CLAIM. OTHERWISE) IN WHICH ANY ACTION OR PROCEEDING MUST IS BROUGHT, SHALL BE BROUGHT WITHIN TWENTY-FOUR LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY EATE DIGITAL FROM CLIENT FOR THE APPLICABLE SERVICES IN THE SIX (246) MONTHS AFTER MONTH PERIOD PRECEDING THE CAUSE MONTH IN WHICH THE INCIDENT CAUSING THE DAMAGES AROSE. THE LIMITATION ON LIABILITY SET FORTH ABOVE IS CUMULATIVE; ALL PAYMENTS MADE FOR ALL CLAIMS AND DAMAGES SHALL BE AGGREGATED, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF ACTION ACCRUESLIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN VIEW OF THE FAVORABLE FEES BEING CHARGED BY EATE DIGITAL RELATIVE TO THE SERVICES DESCRIBED HEREIN, AND ARE MATERIAL TERMS HEREOF.