Common use of Survival of Representations and Warranties; Limitations Clause in Contracts

Survival of Representations and Warranties; Limitations. (a) All representations and warranties in this Agreement shall survive the Closing for 18 months following the Closing Date, except that (i) the representations and warranties contained in Sections 4.1 through 4.5, the first sentence of Section 4.12 and Sections 5.1 through 5.5 shall survive the Closing, (ii) the representations and warranties contained in Sections 4.22 shall survive the Closing until the third annual anniversary of the Closing Date and (iii) the representations and warranties contained in Sections 4.11 and 4.21 shall survive the Closing until the sixth annual anniversary of the Closing Date (the “Survival Periods”). An Indemnifying Party shall not have any liability under this Article XIII with respect to the inaccuracy or breach of a representation or warranty unless a written claim for indemnification in accordance with Section 13.2 is given by the Indemnified Party to the Indemnifying Party with respect thereto within the applicable Survival Period. (b) No Indemnified Party shall be entitled to indemnification pursuant to this Article XIII in respect of the inaccuracy or breach of a representation or warranty unless the aggregate amount of Damages payable to Indemnified Parties hereunder in respect of all such inaccuracies or breaches exceeds $2,000,000 after which, subject to Section 13.4(c), the Indemnifying Party shall indemnify the Indemnified Parties for all Damages incurred in excess of $1,000,000. (c) An Indemnifying Party shall have no obligation to indemnify an Indemnified Party pursuant to this Article XIII with respect to the inaccuracy or breach of representations and warranties for an aggregate amount of Damages in excess of 15% of the Purchase Price, except that, (i) in the case of the inaccuracy or breach of the representations and warranties contained in Sections 4.11, 4.21 and 4.22, such cap shall, instead, be 75% of the Purchase Price and (ii) in the case of the inaccuracy or breach of the representations and warranties contained in Sections 4.1 through 4.5, the first sentence of Section 4.12 and Sections 5.1 through 5.5, such cap shall, instead, be the Purchase Price. (d) Regardless of the failure of Sellers to include any relevant information in the Sellers’ Disclosure Schedules or any supplement thereto, to the extent that Sellers can demonstrate that Buyer had Knowledge of any information that should have been disclosed in the Sellers’ Disclosure Schedules or any supplement thereto, such information shall not form the basis for a claim pursuant to Article XIII of this Agreement or otherwise give rise to any claim on the part of Buyer.

Survival of Representations and Warranties; Limitations. (a) All Unless otherwise indicated with specificity therein, the several warranties and representations of the parties contained in this Agreement or in any instrument delivered pursuant hereto will survive the Closing Date and will remain in full force and effect thereafter for a period of twelve months subsequent to the Closing Date; provided, that the representations and warranties in this Agreement Section 3.1, Section 3.2, Section 3.8, Section 3.15, Section 4.1 and Section 4.2 shall survive for the full period of all applicable statutes of limitations (giving effect to any waiver, mitigation, tolling or extension thereof). All covenants and agreements of the parties contained herein shall survive the Closing the earlier of indefinitely or for 18 months following the Closing Dateperiod explicitly specified therein. Notwithstanding the foregoing, except that any claims asserted in good faith with reasonable specificity (ito the extent known at such time) and in writing by notice from the representations and warranties contained in Sections 4.1 through 4.5, indemnified party to the first sentence of Section 4.12 and Sections 5.1 through 5.5 shall survive indemnifying party(ies) prior to the Closing, (ii) the representations and warranties contained in Sections 4.22 shall survive the Closing until the third annual anniversary expiration date of the Closing Date and (iii) applicable survival period shall not thereafter be barred by the representations and warranties contained in Sections 4.11 and 4.21 shall survive the Closing until the sixth annual anniversary expiration of the Closing Date (the “Survival Periods”). An Indemnifying Party shall not have any liability under this Article XIII with respect to the inaccuracy or breach of a relevant representation or warranty unless a written claim for indemnification in accordance with Section 13.2 is given by the Indemnified Party and such claims shall survive until finally resolved. Anything to the Indemnifying Party with respect thereto within contrary contained herein notwithstanding, neither the applicable Survival Period. Holders, nor the Buyer Indemnified Parties (b) No the Buyer Indemnified Party Parties being considered as one party for purposes of this Section 9), shall be entitled to indemnification recover from the other pursuant to this Article XIII Section with respect to indemnification under Section 9.1(a) or Section 9.2(a), as applicable, unless and until the total of all claims from the other for indemnity pursuant to this Section exceeds $20,000 and then only in respect the amount by which such claims for indemnity exceed $20,000. Further, anything to the contrary contained herein notwithstanding, but subject to the exceptions below, neither the Holders, nor the Buyer and the Acquisition Company (the Buyer and the Acquisition Company being considered as one party for purposes of this Section 9), shall be entitled to recover from the inaccuracy or breach of a representation or warranty unless the other pursuant to this Section an aggregate amount of Damages payable to Indemnified Parties hereunder in respect of all such inaccuracies or breaches exceeds $2,000,000 after which, subject to Section 13.4(c), the Indemnifying Party shall indemnify the Indemnified Parties for all Damages incurred in excess of $1,000,000. 240,000 (cthe “General Cap”), except that the Buyer and the Acquisition Company (the Buyer and the Acquisition Company being considered as one party for purposes of this Section 9) An Indemnifying Party shall have no obligation be entitled to indemnify an Indemnified Party recover from the Holders pursuant to this Article XIII Section an additional aggregate amount of up to $240,000 above the General Cap with respect to the Losses based upon, arising out of, with respect to or by reason of any inaccuracy in or breach of representations any representation or warranty in Section 3.10 or Section 3.21 (such additional amount plus the General Cap, the “Special Cap”), and warranties except further that the Holders, the Buyer and the Acquisition Company (the Buyer and the Acquisition Company being considered as one party for purposes of this Section 9) shall be entitled to recover from the other an aggregate amount of Damages in excess of 15% of up to the Purchase PricePrice with respect to Losses based upon, except thatarising out of, (i) with respect to or by reason of any inaccuracy in the case of the inaccuracy or breach of any representation or warranty in Section 3.1, Section 3.2, Section 3.11, Section 3.13(a), Section 3.15, Section 4.1 and Section 4.2, however the representations and warranties contained indemnification amount for breaches of these Sections shall be limited to the actual proceeds received by a Holder, with the Indemnification Escrow Amount being the indemnification source of first resort. Notwithstanding the foregoing, the basket limitations set forth in Sections 4.11this Section 9.3 shall not apply to Losses based upon, 4.21 and 4.22arising out of, such cap shall, instead, be 75% with respect to or by reason of the Purchase Price and (ii) any inaccuracy in the case of the inaccuracy or breach of the representations any representation or warranty in Section 3.1, Section 3.2, Section 4.1 and warranties Section 4.2. For purposes of this Section 9, any inaccuracy in or breach of any representation or warranty shall be determined without regard to any materiality, Material Adverse Effect or other similar qualification contained in Sections 4.1 through 4.5, the first sentence of Section 4.12 and Sections 5.1 through 5.5, such cap shall, instead, be the Purchase Price. (d) Regardless of the failure of Sellers to include any relevant information in the Sellers’ Disclosure Schedules or any supplement thereto, to the extent that Sellers can demonstrate that Buyer had Knowledge of any information that should have been disclosed in the Sellers’ Disclosure Schedules or any supplement thereto, such information shall not form the basis for a claim pursuant to Article XIII of this Agreement or otherwise give rise applicable to any claim on the part of Buyersuch representation or warranty.

Survival of Representations and Warranties; Limitations. (a) All The representations and warranties of the Parties contained in this Agreement shall will survive the Closing for 18 months following the Closing Date, except that (i) the representations and warranties contained in Sections 4.1 through 4.5, the first sentence of Section 4.12 and Sections 5.1 through 5.5 shall survive the Closing, (ii) the representations and warranties contained in Sections 4.22 shall survive the Closing until the third annual anniversary of the Closing Effective Date and will remain in full force and effect thereafter for a period of *** (iii***) the representations months and warranties contained in Sections 4.11 and 4.21 shall survive the Closing until the sixth annual anniversary of the Closing Date (the “Survival Periods”). An Indemnifying Party shall not have any liability under this Article XIII will be effective with respect to the inaccuracy or breach of a representation or warranty unless a written claim for indemnification in accordance with Section 13.2 is given by the Indemnified Party to the Indemnifying Party with respect thereto within the applicable Survival Period. (b) No Indemnified Party shall be entitled to indemnification pursuant to this Article XIII in respect of the inaccuracy or breach of a representation or warranty unless the aggregate amount of Damages payable to Indemnified Parties hereunder in respect of all such inaccuracies or breaches exceeds $2,000,000 after which, subject to Section 13.4(c), the Indemnifying Party shall indemnify the Indemnified Parties for all Damages incurred in excess of $1,000,000. (c) An Indemnifying Party shall have no obligation to indemnify an Indemnified Party pursuant to this Article XIII with respect to the inaccuracy or breach of representations and warranties for an aggregate amount of Damages in excess of 15% of the Purchase Price, except that, (i) in the case of the inaccuracy or any claimed breach of the representations and warranties timely made pursuant to Section 7.4, after which period the representations and warranties of the Parties contained in Sections 4.11this Agreement will terminate and be of no further force or effect. Notwithstanding the foregoing, 4.21 the representations and 4.22warranties set forth in Section 4.1 (Organization and Corporate Power), such cap shallSection 4.2 (Due Authorization), insteadSection 4.3(a)(iii) (No Violation; Consents), be 75% Section 4.17 (Broker’s Fees), Section 5.1 (Organization and Corporate Power), Section 5.2 (Due Authorization), Section 5.3(a)(iii) (No Violation; Consents), Section 5.6 (Solvency) and Section 5.8 (Broker’s Fees) will survive indefinitely, and the representations and warranties set forth in Section 4.10 (Tax Matters) will survive only until the *** (***) anniversary of the Purchase Price and Effective Date (ii) in the case of the inaccuracy or breach all of the representations and warranties contained referenced in Sections 4.1 through 4.5this sentence, collectively, the first “Fundamental Representations”). (b) Notwithstanding anything to the contrary in this Agreement, no Indemnified Person will be entitled to any recovery from an Indemnifying Party with respect to any breach of such representations and warranties unless and until the amount of such Losses suffered, sustained or incurred by the asserting Party, or to which such Party becomes subject, by reason of such breach, will exceed twenty five thousand Australian dollars (AUD$25,000) calculated on a cumulative basis and not a per item basis (the “Basket Amount”) and, in such event, the indemnifying party will be required to pay the full amount of such Losses. In no event will either Party be liable to the other Party under this Agreement in an aggregate amount in excess of five hundred thousand Australian dollars (AUD$500,000) (in each case, the “Cap”), except that the Basket Amount and the Cap will not be applicable to (i) any breach of any Fundamental Representations, (ii) any claims described in the last sentence of Section 4.12 7.1 or the last sentence of Section 7.2 or (iii) Losses based on fraud of the Indemnifying Party; provided that in no event will either Party be liable to the other Party under this Agreement in an aggregate amount in excess of two million Australian dollars (AUD$2,000,000). For purposes of determining the amount of any Losses under this Section 7, each representation and Sections 5.1 through 5.5warranty will be read without reference to any materiality or Material Adverse Effect qualification contained therein (but for the avoidance of doubt, a materiality or a Material Adverse Effect qualification will be used for determining whether a breach occurred and for determining whether a material item was explicitly required to be listed or disclosed in a Schedule). Notwithstanding anything to the contrary in this Agreement, Buyer and Seller will be entitled to assert a claim for indemnification under the last sentence of Section 7.1 or the last sentence of 7.2, respectively, at any time and from time to time, but only prior to the one (1) year anniversary of the completion of the restoration and decommissioning activities described in Section 6.8 (for illustrative purposes, Seller will be entitled to assert such cap shalla claim for any savings in Decommissioning Costs determined immediately following the completion of those activities, insteadand Buyer will still be entitled to assert a subsequent claim for any additional Decommissioning Costs incurred subsequently but prior to the completion of those activities). (c) Seller will not be required to indemnify any Buyer’s Indemnified Persons, and Buyer will not be required to indemnify any Seller’s Indemnified Persons, to the Purchase Priceextent of any Losses that any court of competent jurisdiction will have determined by final judgment to have resulted from the breach of this Agreement, bad faith, fraud, gross negligence or willful misconduct of any of the Buyer’s Indemnified Persons or Seller’s Indemnified Persons, respectively. (d) Regardless of the failure of Sellers to include any relevant information in the Sellers’ Disclosure Schedules or any supplement thereto, Notwithstanding anything to the extent that Sellers can demonstrate that Buyer had Knowledge contrary in this Agreement, no breach of any information that should have been disclosed representation, warranty, covenant or agreement contained in the Sellers’ Disclosure Schedules or any supplement thereto, such information shall not form the basis for a claim pursuant to Article XIII of this Agreement or otherwise will give rise to any claim right on the part of BuyerParty or any Indemnified Person, after the consummation of the Transactions, to rescind this Agreement or any of the Transactions. (e) Any liability for indemnification under this Section 7 will be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (f) Notwithstanding any other provision in this Agreement, neither Seller nor Buyer will in any event be liable to the other Party or any of the other Party’s Indemnified Persons on account of any indemnity obligation set forth in this Section 7 for (i) any Losses that are not direct, actual damages or (ii) any special, treble or punitive damages, in each case, unless such Losses are paid pursuant to a third party in respect of which payment is sought under Section 7.1 or 7.2.

Survival of Representations and Warranties; Limitations. (a) All The representations and warranties of the Parties contained in this Agreement shall survive the Closing Date and shall remain in full force and effect thereafter for 18 a period of eighteen (18) months following and shall be effective with respect to any claimed breach of the Closing Daterepresentations and warranties timely made pursuant to Section 8.4, except that after which period the representations and warranties of the Parties contained in this Agreement shall terminate and be of no further force or effect. Notwithstanding the foregoing, (i) the representations and warranties contained set forth in Sections 4.1 through 4.5, the first sentence Section 4.3 (No Violation; Consents) and Section 4.9 (Sufficiency of Section 4.12 Assets and Sections 5.1 through 5.5 Rights) shall survive the Closing, for six (6) years and (ii) the representations and warranties contained set forth in Sections 4.22 Section 4.2 (Due Authorization), Section 4.6 (Good and Valid Title), Section 4.12 (Broker’s Fees), Section 5.2 (Due Authorization) and Section 5.7 (Broker’s Fees) shall survive the Closing until the third annual anniversary of the Closing Date and indefinitely (iii) the representations and warranties contained referenced in Sections 4.11 clauses (i) and 4.21 shall survive the Closing until the sixth annual anniversary of the Closing Date (ii) are referred to herein collectively as the “Survival PeriodsFundamental Representations”). An Indemnifying Party shall not have any liability under this Article XIII with respect to the inaccuracy or breach of a representation or warranty unless a written claim for indemnification in accordance with Section 13.2 is given by the Indemnified Party to the Indemnifying Party with respect thereto within the applicable Survival Period. (b) No Indemnified Anything to the contrary contained herein notwithstanding, neither Party shall be entitled to indemnification pursuant any recovery from the other Party with respect to this Article XIII in respect of the inaccuracy or any breach of such representations and warranties unless and until the amount of such Losses suffered, sustained or incurred by the asserting Party, or to which such Party becomes subject, by reason of such breach, shall exceed One Hundred Forty Thousand Dollars ($140,000) calculated on a representation or warranty unless cumulative basis and not a per item basis (the “Basket Amount”), and in such event, the indemnifying party shall be required to pay the amount of such Losses exceeding the Basket Amount. In no event shall either Party be liable to the other Party under this Agreement in an aggregate amount of Damages payable to Indemnified Parties hereunder in respect of all such inaccuracies or breaches exceeds $2,000,000 after which, subject to Section 13.4(c), the Indemnifying Party shall indemnify the Indemnified Parties for all Damages incurred in excess of Five Million Six Hundred Dollars ($1,000,0005,600,000) (the “Cap”). The Basket Amount and the Cap shall not be applicable to (i) any breach of any Fundamental Representations, (ii) Losses indemnifiable under Section 8.1(b), 8.1 (c), 8.2(b) or 8.2(c) or (iii) Losses based on fraud. (c) An Indemnifying Party shall have no obligation For purposes of determining the failure of any representations or warranties to indemnify an Indemnified Party pursuant to this Article XIII with respect to be true and correct, the inaccuracy or breach of representations any covenants or agreements and warranties for an aggregate amount of Damages in excess of 15% of the Purchase Pricecalculating Losses hereunder, except that, (i) any materiality or Material Adverse Effect qualifications in the case of the inaccuracy or breach of the representations representations, warranties, covenants and warranties contained in Sections 4.11, 4.21 and 4.22, such cap shall, instead, agreements shall be 75% of the Purchase Price and (ii) in the case of the inaccuracy or breach of the representations and warranties contained in Sections 4.1 through 4.5, the first sentence of Section 4.12 and Sections 5.1 through 5.5, such cap shall, instead, be the Purchase Pricedisregarded. (d) Regardless of the failure of Sellers The right to include indemnification or any relevant information other remedy based on representations, warranties, covenants and agreements in the Sellers’ Disclosure Schedules Transaction Documents shall not be affected by any investigation conducted at any time, or any supplement theretoknowledge acquired (or capable of being acquired) at any time, whether before or after the execution and delivery of this Agreement or the Closing Date, with respect to the accuracy or inaccuracy of, or compliance with, any such representation, warranty, covenant or agreement. (e) Seller shall not be required to indemnify any Buyer’s Indemnified Persons, and Buyer shall not be required to indemnify any Seller’s Indemnified Persons, to the extent that Sellers can demonstrate that Buyer had Knowledge of any information Losses that should any court of competent jurisdiction shall have been disclosed in determined by final judgment to have resulted from the Sellers’ Disclosure Schedules bad faith, gross negligence or willful misconduct of the party seeking indemnification. (f) Anything herein to the contrary notwithstanding, no breach of any supplement theretorepresentation, such information warranty, covenant or agreement contained herein shall not form the basis for a claim pursuant to Article XIII of this Agreement or otherwise give rise to any claim right on the part of BuyerParty or any Indemnified Person, after the consummation of the Transactions, to rescind this Agreement or any of the Transactions; provided that nothing in this clause (f) shall restrict any remedies for fraud. (g) Any liability for indemnification under this Article VIII shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (h) Notwithstanding any other provision in this Agreement, neither Seller nor Buyer shall in any event be liable to the other Party or any of the other Party’s Indemnified Persons on account of any indemnity obligation set forth in Section 8.1 or Section 8.2 for (i) any Losses that are not direct, actual damages or (ii) any special, incidental or punitive damages, in each case, unless such Losses are paid pursuant to a third party claim.

Survival of Representations and Warranties; Limitations. (a) All The representations and warranties of the Parties contained in this Agreement shall will survive the Closing for 18 months following the Closing Date, except that (i) the representations and warranties contained in Sections 4.1 through 4.5, the first sentence of Section 4.12 and Sections 5.1 through 5.5 shall survive the Closing, (ii) the representations and warranties contained in Sections 4.22 shall survive the Closing until the third annual anniversary of the Closing Date and will remain in full force and effect thereafter for a period of *** (iii***) the representations months and warranties contained in Sections 4.11 and 4.21 shall survive the Closing until the sixth annual anniversary of the Closing Date (the “Survival Periods”). An Indemnifying Party shall not have any liability under this Article XIII will be effective with respect to the inaccuracy or breach of a representation or warranty unless a written claim for indemnification in accordance with Section 13.2 is given by the Indemnified Party to the Indemnifying Party with respect thereto within the applicable Survival Period. (b) No Indemnified Party shall be entitled to indemnification pursuant to this Article XIII in respect of the inaccuracy or breach of a representation or warranty unless the aggregate amount of Damages payable to Indemnified Parties hereunder in respect of all such inaccuracies or breaches exceeds $2,000,000 after which, subject to Section 13.4(c), the Indemnifying Party shall indemnify the Indemnified Parties for all Damages incurred in excess of $1,000,000. (c) An Indemnifying Party shall have no obligation to indemnify an Indemnified Party pursuant to this Article XIII with respect to the inaccuracy or breach of representations and warranties for an aggregate amount of Damages in excess of 15% of the Purchase Price, except that, (i) in the case of the inaccuracy or any claimed breach of the representations and warranties timely made pursuant to Section 7.4, after which period the representations and warranties of the Parties contained in Sections 4.11this Agreement will terminate and be of no further force or effect. Notwithstanding the foregoing, 4.21 the representations and 4.22warranties set forth in Section 4.1 (Organization and Corporate Power), Section 4.2 (Due Authorization), Section 4.3(a)(iii) (No Violation; Consents), Section 4.9 (Good and Valid Title), Section 4.16 (Tax Matters), Section 4.17 (Broker’s Fees), Section 5.1 (Organization and Corporate Power), Section 5.2 (Due Authorization), 5.3(a)(iii) (No Violation; Consents) and Section 5.8 (Broker’s Fees) will survive indefinitely (collectively, the “Fundamental Representations”); provided that Section 4.16 (Tax Matters) will survive only until the applicable statute of limitations has run. (b) Notwithstanding anything to the contrary in this Agreement, no Indemnified Person will be entitled to any recovery from an Indemnifying Party with respect to any breach of such cap shallrepresentations and warranties unless and until the amount of such Losses suffered, insteadsustained or incurred by the asserting Party, or to which such Party becomes subject, by reason of such breach, will exceed *** U.S. Dollars (US$***) calculated on a cumulative basis and not a per item basis (the “Basket Amount”) and, in such event, the indemnifying party will be 75% required to pay the full amount of such Losses including the Purchase Price and Basket Amount. In no event will either Party be liable to the other Party under this Agreement in an aggregate amount in excess of *** Dollars (ii) $***), or in the case of the inaccuracy or a breach of Section 6.8 by the representations and warranties contained Seller or its Affiliates, ***Dollars ($***) (in Sections 4.1 through 4.5each case, the first sentence “Cap”), except that the Basket Amount and the Cap will not be applicable to (i) any breach of Section 4.12 any Fundamental Representations, (ii) Losses indemnifiable under any of Sections 7.1(b)-(f) or 7.2(b)-(f) or (iii) Losses based on fraud of the Indemnifying Party; provided that, except in the case of Losses based on fraud of the Indemnifying Party, in no event will either Party be liable to the other Party under this Agreement in an aggregate amount in excess of *** Dollars ($***). For purposes of determining the amount of any Losses under this Article 7, each representation and Sections 5.1 through 5.5warranty will be read without reference to any materiality or Material Adverse Effect qualification contained therein (but for the avoidance of doubt, such cap shalla materiality or a Material Adverse Effect qualification will be used for determining whether a breach occurred and for determining whether a material item was explicitly required to be listed or disclosed in a Schedule). (c) Seller will not be required to indemnify any Buyer’s Indemnified Persons, insteadand Buyer will not be required to indemnify any Seller’s Indemnified Persons, be to the Purchase Priceextent of any Losses that any court of competent jurisdiction will have determined by final judgment to have resulted from the bad faith, fraud, gross negligence or willful misconduct of any of the Buyer’s Indemnified Persons or Seller’s Indemnified Persons, respectively. (d) Regardless of the failure of Sellers to include any relevant information in the Sellers’ Disclosure Schedules or any supplement thereto, Notwithstanding anything to the extent that Sellers can demonstrate that Buyer had Knowledge contrary in this Agreement, no breach of any information that should have been disclosed representation, warranty, covenant or agreement contained in the Sellers’ Disclosure Schedules or any supplement thereto, such information shall not form the basis for a claim pursuant to Article XIII of this Agreement or otherwise will give rise to any claim right on the part of BuyerParty or any Indemnified Person, after the consummation of the Transactions, to rescind this Agreement or any of the Transactions. (e) Any liability for indemnification under this Article 7 will be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (f) Notwithstanding any other provision in this Agreement, neither Seller nor Buyer will in any event be liable to the other Party or any of the other Party’s Indemnified Persons on account of any indemnity obligation set forth in this Article 7 for any special, incidental, treble or punitive damages, in each case, unless such Losses are paid pursuant to a third party claim.

Survival of Representations and Warranties; Limitations. (a) All The representations and warranties of the Parties contained in this Agreement shall will survive the Closing for 18 months following the Closing Date, except that (i) the representations and warranties contained in Sections 4.1 through 4.5, the first sentence of Section 4.12 and Sections 5.1 through 5.5 shall survive the Closing, (ii) the representations and warranties contained in Sections 4.22 shall survive the Closing until the third annual anniversary of the Closing Date and will remain in full force and effect thereafter for a period of *** (iii***) the representations months and warranties contained in Sections 4.11 and 4.21 shall survive the Closing until the sixth annual anniversary of the Closing Date (the “Survival Periods”). An Indemnifying Party shall not have any liability under this Article XIII will be effective with respect to the inaccuracy or breach of a representation or warranty unless a written claim for indemnification in accordance with Section 13.2 is given by the Indemnified Party to the Indemnifying Party with respect thereto within the applicable Survival Period. (b) No Indemnified Party shall be entitled to indemnification pursuant to this Article XIII in respect of the inaccuracy or breach of a representation or warranty unless the aggregate amount of Damages payable to Indemnified Parties hereunder in respect of all such inaccuracies or breaches exceeds $2,000,000 after which, subject to Section 13.4(c), the Indemnifying Party shall indemnify the Indemnified Parties for all Damages incurred in excess of $1,000,000. (c) An Indemnifying Party shall have no obligation to indemnify an Indemnified Party pursuant to this Article XIII with respect to the inaccuracy or breach of representations and warranties for an aggregate amount of Damages in excess of 15% of the Purchase Price, except that, (i) in the case of the inaccuracy or any claimed breach of the representations and warranties timely made pursuant to Section 7.4, after which period the representations and warranties of the Parties contained in Sections 4.11this Agreement will terminate and be of no further force or effect. Notwithstanding the foregoing, 4.21 the representations and 4.22warranties set forth in Section 4.1 (Organization and Corporate Power), Section 4.2 (Due Authorization), Section 4.3(a)(iii) (No Violation; Consents), Section 4.9 (Good and Valid Title), Section 4.16 (Tax Matters), Section 4.17 (Broker’s Fees), Section 5.1 (Organization and Corporate Power), Section 5.2 (Due Authorization), 5.3(a)(iii) (No Violation; Consents) and Section 5.8 (Broker’s Fees) will survive indefinitely (collectively, the “Fundamental Representations”); provided that Section 4.16 (Tax Matters) will survive only until the applicable statute of limitations has run. (b) Notwithstanding anything to the contrary in this Agreement, no Indemnified Person will be entitled to any recovery from an Indemnifying Party with respect to any breach of such cap shallrepresentations and warranties unless and until the amount of such Losses suffered, insteadsustained or incurred by the asserting Party, or to which such Party becomes subject, by reason of such breach, will exceed One Hundred and Ten Thousand U.S. Dollars (US$110,000) calculated on a cumulative basis and not a per item basis (the “Basket Amount”) and, in such event, the indemnifying party will be 75% required to pay the full amount of such Losses including the Purchase Price and Basket Amount. In no event will either Party be liable to the other Party under this Agreement in an aggregate amount in excess of Three Million Dollars (ii) $3,000,000), or in the case of the inaccuracy or a breach of Section 6.8 by the representations and warranties contained Seller or its Affiliates, Four Million Five Hundred Thousand Dollars ($4,500,000) (in Sections 4.1 through 4.5each case, the first sentence “Cap”), except that the Basket Amount and the Cap will not be applicable to (i) any breach of Section 4.12 any Fundamental Representations, (ii) Losses indemnifiable under any of Sections 7.1(b)-(f) or 7.2(b)-(f) or (iii) Losses based on fraud of the Indemnifying Party; provided that, except in the case of Losses based on fraud of the Indemnifying Party, in no event will either Party be liable to the other Party under this Agreement in an aggregate amount in excess of Nine Million Dollars ($9,000,000). For purposes of determining the amount of any Losses under this Article 7, each representation and Sections 5.1 through 5.5warranty will be read without reference to any materiality or Material Adverse Effect qualification contained therein (but for the avoidance of doubt, such cap shalla materiality or a Material Adverse Effect qualification will be used for determining whether a breach occurred and for determining whether a material item was explicitly required to be listed or disclosed in a Schedule). (c) Seller will not be required to indemnify any Buyer’s Indemnified Persons, insteadand Buyer will not be required to indemnify any Seller’s Indemnified Persons, be to the Purchase Priceextent of any Losses that any court of competent jurisdiction will have determined by final judgment to have resulted from the bad faith, fraud, gross negligence or willful misconduct of any of the Buyer’s Indemnified Persons or Seller’s Indemnified Persons, respectively. (d) Regardless of the failure of Sellers to include any relevant information in the Sellers’ Disclosure Schedules or any supplement thereto, Notwithstanding anything to the extent that Sellers can demonstrate that Buyer had Knowledge contrary in this Agreement, no breach of any information that should have been disclosed representation, warranty, covenant or agreement contained in the Sellers’ Disclosure Schedules or any supplement thereto, such information shall not form the basis for a claim pursuant to Article XIII of this Agreement or otherwise will give rise to any claim right on the part of BuyerParty or any Indemnified Person, after the consummation of the Transactions, to rescind this Agreement or any of the Transactions. (e) Any liability for indemnification under this Article 7 will be determined without duplication of recovery by reason of the state of facts giving rise to such liability constituting a breach of more than one representation, warranty, covenant or agreement. (f) Notwithstanding any other provision in this Agreement, neither Seller nor Buyer will in any event be liable to the other Party or any of the other Party’s Indemnified Persons on account of any indemnity obligation set forth in this Article 7 for any special, incidental, treble or punitive damages, in each case, unless such Losses are paid pursuant to a third party claim.