Common use of Remedies and Limitation of Liability Clause in Contracts

Remedies and Limitation of Liability. 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 PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR 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 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 ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, 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 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 LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The following items are specifically excluded from this warranty: (i) loss or damage resulting from or caused by normal wear and tear, weathering or use with incompatible equipment; (ii) loss or damage resulting from or caused by improper maintenance, improper handling or storage, improper use, abuse, neglect or operation beyond rated capacity; and (iii) any Product that has been altered or modified in any way not approved by Seller in writing.

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER IN THE 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 LIABILITY 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 PRECEDING PARAGRAPH SHALL CONSTITUTE THE SOLE AND EXCLUSIVE RECOURSE OF THE BUYER AGAINST THE COMPANY FOR PROSPECTIVE PROFITSBREACH 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 SPECIAL, PUNATIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES DAMAGES, LOSS OR INJURY OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENT, THE PRODUCTS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR 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 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 ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION ANY WARRANTY ECONOMIC LOSS, LOSS OF MERCHANTABILITYANTICIPATED SAVINGS, WARRANTY WASTED OPPORTUNITY, LOSS OF FITNESS FOR A PARTICULAR PURPOSEREVENUE, WARRANTY OR LOSS OF TITLE OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTYPROFITS, WHETHER EXPRESS BASED UPON BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT, OR IMPLIED BY LAWANY OTHER LEGAL THEORY, COURSE EVEN IF THE COMPANY IS AWARE OF DEALINGOR NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES, COURSE LOSS OR INJURY. IN ALL CASES, THE COMPANY’S MAXIMUM AGGREGATE LIABILITY ARISING OUT OF PERFORMANCEOR RELATING TO THE SALES CONTRACT (INCLUDING WITHOUT LIMITATION THE PERFORMANCE THEREUNDER OR ANY CLAIM OR CLAIMS RELATING TO THE PRODUCTS) WHETHER BASED UPON BREACH OF CONTRACT, USAGE OF TRADE NEGLIGENCE, STRICT LIABILITY, TORT, OR OTHERWISE. SELLER ANY OTHER LEGAL THEORY, SHALL NOT BE RESPONSIBLE FOR ANY DEFECT CAUSED EXCEED THE CONTRACT PRICE ACTUALLY PAID BY ABUSE, MISUSE OR LACK THE BUYER IN RESPECT OF MAINTENANCE FOR THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The following items are specifically excluded from this warranty: (i) loss or damage resulting from or caused by normal wear and tear, weathering or use with incompatible equipment; (ii) loss or damage resulting from or caused by improper maintenance, improper handling or storage, improper use, abuse, neglect or operation beyond rated capacity; and (iii) any Product that has been altered or modified in any way not approved by Seller in writingTO WHICH SUCH LIABILITY RELATES.

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS 9.1. IN NO LIABILITY EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR PROSPECTIVE PROFITS, ANY SPECIAL, INDIRECT INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENTUSE, THE PRODUCTS DATA, BUSINESS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR 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"PROFITS), 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 SERVICES, WHETHER BASED ON BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT; CONTRACT, BREACH OF WARRANTY, TORT (c) ANY BODILY INJURY, DEATH OF ANY PERSONINCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. EATE DIGITAL’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS PROVISION OF INDEMNIFYING PARTY OR ITS PERSONNEL SERVICES, NOTWITHSTANDING THE FORM (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERALE.G., STATECONTRACT, TORT, OR LOCAL LAWSOTHERWISE) IN WHICH ANY ACTION IS BROUGHT, REGULATIONS, OR CODES SHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY EATE DIGITAL FROM CLIENT FOR THE APPLICABLE SERVICES IN THE PERFORMANCE SIX (6) 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, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT VIEW OF THE FAVORABLE FEES BEING CHARGED BY EATE DIGITAL RELATIVE TO THE PRODUCTS OR SERVICESSERVICES DESCRIBED HEREIN, 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 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 LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The following items are specifically excluded from this warranty: (i) loss or damage resulting from or caused by normal wear and tear, weathering or use with incompatible equipment; (ii) loss or damage resulting from or caused by improper maintenance, improper handling or storage, improper use, abuse, neglect or operation beyond rated capacity; and (iii) any Product that has been altered or modified in any way not approved by Seller in writingARE MATERIAL TERMS HEREOF.

Remedies and Limitation of Liability. Limitation of Liability and Indemnification: SELLER HAS 9.1 IN NO LIABILITY EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER, OR TO ANY THIRD PARTY, FOR PROSPECTIVE PROFITS, ANY SPECIAL, INDIRECT INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF ANY KIND. UNDER NO CIRCUMSTANCES SHALL SELLER’S LIABILITY RELATING TO THIS AGREEMENTUSE, THE PRODUCTS DATA, BUSINESS OR SERVICES BE GREATER THAN THE PRICE PAID BY BUYER FOR THOSE PRODUCTS. BUYER ASSUMES ALL RISK AND LIABILITY FOR LOSS, DAMAGE OR INJURY TO PERSONS Terms and Conditions of Sale OR PROPERTY OF BUYER OR 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"PROFITS), 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 SERVICES, WHETHER BASED ON BREACH OF ITS OBLIGATIONS UNDER THIS AGREEMENT; CONTRACT, BREACH OF WARRANTY, TORT (c) ANY BODILY INJURY, DEATH OF ANY PERSONINCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE OR WHETHER THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. FLEX’S AGGREGATE LIABILITY HEREUNDER FOR ALL DAMAGES ARISING UNDER OR RELATING TO REAL OR TANGIBLE PERSONAL PROPERTY CAUSED BY THE NEGLIGENT OR MORE CULPABLE ACTS OR OMISSIONS PROVISION OF INDEMNIFYING PARTY OR ITS PERSONNEL SERVICES, NOTWITHSTANDING THE FORM (INCLUDING ANY RECKLESS OR WILLFUL MISCONDUCT); OR (d) ANY FAILURE BY INDEMNIFYING PARTY TO COMPLY WITH ANY APPLICABLE FEDERALE.G., STATECONTRACT, TORT, OR LOCAL LAWSOTHERWISE) IN WHICH ANY ACTION IS BROUGHT, REGULATIONS, OR CODES SHALL BE LIMITED TO THE TOTAL AMOUNT OF REGULAR MONTHLY FEES ACTUALLY RECEIVED BY FLEX FROM RESELLER FOR THE APPLICABLE SERVICES IN THE PERFORMANCE 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, TO DETERMINE IF THE LIMIT HAS BEEN REACHED. THE ABOVE LIMITATIONS OF ITS OBLIGATIONS UNDER THIS AGREEMENT. Limited Warranty: EXCEPT AS EXPRESSLY STATED LIABILITY REFLECT AN ALLOCATION OF RISK BETWEEN THE PARTIES IN SELLER’S WRITTEN PRODUCT WARRANTY, SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT VIEW OF THE FAVORABLE FEES BEING CHARGED BY FLEX RELATIVE TO THE PRODUCTS OR SERVICESSERVICES DESCRIBED HEREIN, 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 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 LACK OF MAINTENANCE FOR PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT. The following items are specifically excluded from this warranty: (i) loss or damage resulting from or caused by normal wear and tear, weathering or use with incompatible equipment; (ii) loss or damage resulting from or caused by improper maintenance, improper handling or storage, improper use, abuse, neglect or operation beyond rated capacity; and (iii) any Product that has been altered or modified in any way not approved by Seller in writingARE MATERIAL TERMS HEREOF.