Common use of Seller’s Limitation of Liability Clause in Contracts

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement), the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereof; provided, however, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”).

Seller’s Limitation of Liability. EXCEPT AS OTHERWISE PROVIDED BY LAW, IN NO EVENT SHALL SELLER’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY BUYER UNDER THIS AGREEMENT. SELLER SHALL HAVE NO LIABILITY FOR LOSS OF PROFIT, LOSS OF ANTICIPATED SAVINGS OR REVENUE, LOSS OF INCOME, LOSS OF BUSINESS, LOSS OF PRODUCTION, LOSS OF OPPORTUNITY, LOSS OF REPUTATION, LIQUIDATED, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES. THE FOREGOING LIMITATIONS OF LIABILITY SHALL BE EFFECTIVE WITHOUT REGARD TO SELLER’S ACTS OR OMISSIONS OR NEGLIGENCE OR STRICT LIABILITY IN PERFORMANCE OR NON-PERFORMANCE HEREUNDER. Notwithstanding any provision in this Agreement the above, certain legislation, including the Australian Consumer Law, may imply warranties or conditions or impose guarantees or obligations on the Seller which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to the contrary (except for Tax matters which shall a limited extent. This clause must be governed by Article XI of this Agreement)read subject to these statutory provisions. If these statutory provisions apply, the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereof; provided, however, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; provided, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of which the Seller Disclosure Letter with respect is entitled to such Losses and all such Losses do so, the Seller limits its liability in respect of any claim under those provisions to (a) in the case of goods, at the Seller’s option, the replacement of the goods or series the supply of related claims which total less than equivalent goods; the De Minimis Amount repair of the goods; the payment of the cost of replacing the goods or which have not exceeded any relevant reserve shall be excluded of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and (b) in their entirety from calculations with respect to the Basket case of services, at the Seller’s option, the supplying of the services again; or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision payment of this Agreement, in no event shall the aggregate amount cost of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (having the “Cap”)services supplied again.

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement to the contrary (except for Tax matters which shall be governed by Article XI of this Agreement), the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim SELLER’s liability with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating Product sold to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, BUYER shall be limited to claims as to which a Buyer Indemnified Party has given Seller written noticethe warranty provided herein. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, setting forth therein in reasonable detail WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR OTHER THEORIES OF LAW, WITH RESPECT TO PRODUCTS SOLD OR SERVICES RENDERED BY SELLER, OR ANY UNDERTAKING, ACTS OR OMISSIONS RELATING THERETO. Without limiting the basis for such claimforegoing, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereof; providedSELLER SPECIFICALLY DISCLAIMS ANY LIABILITY FOR PROPERTY OR PERSONAL INJURY DAMAGES, howeverPENALTIES, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”)SPECIAL OR PUNITIVE DAMAGES, and only to the extent of such excess; providedDAMAGES FOR LOST PROFITS OR REVENUES, furtherSERVICES, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims)DOWN TIME, unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses in respect of any claim or series of related claims which total less than the De Minimis Amount or which have not exceeded any relevant reserve shall be excluded in their entirety from calculations with respect to the Basket or CapSHUT DOWN OR SLOW DOWN COSTS, and the Buyer Indemnified Parties shall have no recourse for such LossesOR FOR ANY OTHER TYPES OF ECONOMIC LOSS, AND FOR CLAIMS OF BUYER’S CUSTOMERS OR ANY THIRD PARTY FOR ANY SUCH DAMAGES. Notwithstanding any other provision of this AgreementSELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”).INCIDENTAL AND CONTINGENT DAMAGES WHATSOEVER. XXXXXX NEITHER ASSUMES NOR AUTHORIZES ANY THIRD PARTY TO ASSUME FOR IT, ANY COMMITMENT OR ASSUMPTION OF LIABILITY OF ANY KIND IN CONNECTION WITH ITS PRODUCTS. 06/2019 3 /4

Seller’s Limitation of Liability. Notwithstanding any provision All representations and warranties made in this Agreement by Seller shall survive Closing for a period of nine (9) months (the “Survival Period”), and upon expiration thereof shall be of no further force or effect except to the extent that with respect to any particular alleged breach, Purchaser gives Seller written notice on or before the expiration of the Survival Period of such alleged breach with reasonable detail as to the nature of such breach and files an action against Seller with respect thereto within thirty (30) days after the giving of such notice. Notwithstanding anything to the contrary (except contained in this Section 6.17, Seller shall have no liability to Purchaser for Tax matters which shall be governed by Article XI of this Agreement), the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a any representation or warranty (other than Losses (i) arising out of, relating to or made in this Agreement unless the loss resulting from breaches or inaccuracies Seller’s breach of any Fundamental Representation or its representations and warranties exceeds, in the aggregate, Thirty Thousand and No/100 Dollars (ii$30,000.00) arising out the “Threshold Amount”), in which event Seller shall be liable for each dollar of or damages in excess of the Threshold Amount resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller or breaches of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereofits representations and warranties; provided, however, that in no event shall Seller’s total liability for any such breach or breaches exceed, in the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars aggregate, Three Hundred Thousand and No/100 Dollars ($11,500,000300,000.00) (the “BasketDamage Cap”). In no event shall any claim for a breach of any representation or warranty of either party be actionable or payable if the breach in question results from, and only or is based on, a condition, state of facts or other matter which was known to the extent non-breaching party prior to Closing or which was contained in the Due Diligence Items or in any other of such excess; providedSeller’s files, further, that books or records made available to Purchaser for inspection or could have been discovered by Purchaser with the application of reasonable efforts to inspect the Property prior to Closing. Seller shall will not be liable to or responsible in any Buyer Indemnified Party circumstances for any particular claim under Section 9.2(a) (other than consequential or punitive damages or lost profits, and Purchaser hereby releases and waives all claims for Losses constituting Seller Uncapped Claims)such damages and lost profits. If, unless prior to the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) expiration of the Seller Disclosure Letter with respect to such Losses and all such Losses Survival Period, Purchaser has not notified Seller, in respect writing, of any claim or series Purchaser has against Seller for breach of related claims which total less than any of Seller's representations and warranties and commenced an action against Seller within thirty (30) days of giving such notice, Purchaser will be forever barred and precluded from making a claim based upon any breach of the De Minimis Amount or which have not exceeded any relevant reserve shall Seller's representations and warranties, and Seller will be excluded in their entirety deemed released from calculations all liabilities and obligations with respect to the Basket or Cap, and the Buyer Indemnified Parties shall have no recourse for such Losses. Notwithstanding any other provision of this Agreement, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”)thereto.

Seller’s Limitation of Liability. Notwithstanding any provision in this Agreement Certain legislation, including the Australian Consumer Law, may imply warranties or conditions or impose guarantees or obligations on Company which cannot be excluded, restricted or modified or cannot be excluded, restricted or modified except to the contrary (except for Tax matters which shall a limited extent. This clause must be governed by Article XI of this Agreement)read subject to these statutory provisions. If these statutory provisions apply, the obligation of Seller to indemnify Buyer Indemnified Parties pursuant to (A) Section 9.2(a) against any Losses sustained by reason of any claim with respect to the breach of a representation or warranty (other than Losses (i) arising out of, relating to or resulting from breaches or inaccuracies of any Fundamental Representation or (ii) arising out of or resulting from fraud or willful material breach by Seller (such Losses in (i) and (ii), collectively, the “Seller Uncapped Claims”)) or (B) Section 9.2 (b) against any Losses sustained by reason of any claim with respect to the breach by Seller of a covenant, shall be limited to claims as to which a Buyer Indemnified Party has given Seller written notice, setting forth therein in reasonable detail the basis for such claim, on or prior to the termination of such representation or warranty or covenant pursuant to Section 9.1 hereof; provided, however, that the provisions for indemnification contained in Section 9.2 (a) (other than for Losses constituting Seller Uncapped Claims) shall be effective only after the aggregate amount of all such claims which are so indemnifiable exceeds an amount equal to eleven million five hundred thousand dollars ($11,500,000) (the “Basket”), and only to the extent of such excess; providedto which Company is entitled to do so, further, that Seller shall not be liable to any Buyer Indemnified Party for any particular claim under Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims), unless the amount of such claim exceeds ten thousand dollars ($10,000) (the “De Minimis Amount”) and is in excess of any reserves reflected on the 2009 Financial Statements set forth on Section 4.6(a) of the Seller Disclosure Letter with respect to such Losses and all such Losses Company limits its liability in respect of any claim under those provisions to (a) in the case of goods, at Company's option, the replacement of the goods or series the supply of related claims which total less than equivalent goods; the De Minimis Amount repair of the goods; the payment of the cost of replacing the goods or which have not exceeded any relevant reserve shall be excluded of acquiring equivalent goods; or the payment of the cost of having the goods repaired; and (b) in their entirety from calculations with respect to the Basket case of services, at Company's option, the supplying of the services again; or Capthe payment of the cost of having the services supplied again. SUBJECT TO THE ABOVE, and the Buyer Indemnified Parties shall have no recourse for such LossesIN NO EVENT SHALL SELLER’S LIABILITY UNDER THIS AGREEMENT EXCEED THE AMOUNT PAID BY BUYER UNDER THIS AGREEMENT. Notwithstanding any other provision of this AgreementSELLER SHALL HAVE NO LIABILITY FOR LOSS OF PROFIT, in no event shall the aggregate amount of all indemnification payments for which Seller is liable pursuant to Section 9.2(a) (other than for Losses constituting Seller Uncapped Claims) exceed an amount equal to twenty-eight million dollars ($28,000,000) (the “Cap”)LOSS OF ANTICIPATED SAVINGS OR REVENUE, LOSS OF INCOME, LOSS OF BUSINESS, LOSS OF PRODUCTION, LOSS OF OPPORTUNITY, LOSS OF REPUTATION, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES.