Common use of W&I Insurance Clause in Contracts

W&I Insurance. (a) The Purchaser acknowledges and agrees that the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling the Purchaser to take out a W&I Insurance. Against this background, the Purchaser acknowledges and agrees that (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that nothing herein shall be construed to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insurance. (b) It is hereby acknowledged and agreed by the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or not. (c) The Purchaser shall procure (steht dafür ein) that the Insurer shall not be entitled, under the W&I Insurance or otherwise, to subrogate against the Seller except if the payment under the W&I Insurance or any loss as defined in the W&I Insurance arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz). If the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except if such claim arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz).

W&I Insurance. 17.1 Notwithstanding any other provision of this Agreement: (a) The the Purchaser acknowledges and agrees that it will not be entitled to make, will not make, and irrevocably waives any right it may have to make any Warranty Claim or any Tax Indemnity Claim against the Seller’s Guarantees (except for , other than Warranty Claims in respect of the Fundamental GuaranteesWarranties, Tax Indemnity Claims for Seller Group Taxes and claims for Fraud by the Seller; (b) the Purchaser shall not be entitled to claim against the Seller in respect of any of the Fundamental Warranties, unless it has (subject to Clause 16.4(b)(ii)) first exercised and exhausted its right to claim for such matter under the W&I Insurance Policy; (c) the Purchaser's sole potential remedy and recourse in respect of all and any Warranty Claims (other than claims in respect of Fundamental Warranties, provided that paragraph (b) above has been complied with) and Tax Indemnity Claims (other than Tax Indemnity Claims for Seller Group Taxes) shall be under the W&I Insurance Policy, and the Seller shall bear no liability towards the Purchaser for any Warranty Claim or Tax Indemnification Undertakings are solely given Indemnity Claim (other than any Tax Indemnity Claim with respect to Seller Group Taxes or claims in respect of Fraud by the Seller with a view to enabling Seller); and (d) if the Purchaser is unable to take out a pursue or obtain any remedy in respect of any Warranty Claim or Tax Indemnity Claim under the W&I Insurance. Against this backgroundInsurance Policy, the Purchaser acknowledges and agrees that whether due to policy terms, limits, exceptions or exclusions (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuchexcluding, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For for the avoidance of doubt, exceptions or exclusions in the Parties acknowledge and agree that nothing herein W&I Policy in respect of information Fairly Disclosed against the Fundamental Warranties), validity (including, without limitation, if the W&I Insurance Policy is invalid due to the insolvency, breach or default of any person), creditworthiness or for any other reason, the liability of the Seller under this Agreement shall not be construed affected or in any way increased. 17.2 The Purchaser agrees that: (a) to require the extent not concluded prior to the Signing Protocol Date, the Purchaser will use reasonable best efforts to contract for, subscribe or otherwise take out a conclude the W&I Insurance.Insurance Policy as soon as possible after the Signing Protocol Date and in any event prior to Completion; (b) It the premium of the W&I Insurance Policy, and any costs, expenses and insurance Tax in connection therewith or in connection with making any recovery thereunder (including any deductible, retention or own risk threshold), will be for the sole account of the Purchaser and the Purchaser shall be responsible for payment thereof; (c) it shall procure that the W&I Insurance Policy includes a binding and irrevocable third-party stipulation for no consideration (onherroepelijk derdenbeding om niet) for the benefit of the Seller, each member of the Seller's Group, each of the Target Group Companies and each of their respective Representatives, that the W&I Insurer shall not claim from or against the Seller, any member of the Seller's Group, any of the Target Group Companies or any of their respective Representatives in connection with any Warranty Claim, Tax Indemnity Claim, the W&I Insurance Policy or any matter or claim under or in relation thereto, except in the event of Fraud ; (d) it shall comply, and shall cause each relevant member of the Purchaser's Group to comply, with all terms of the W&I Insurance Policy, including satisfying any requirements to submit "no claims declarations" on the Signing Protocol Date and the Completion Date; (e) it will not agree to any amendment, variation, assignment, waiver or novation of the W&I Insurance Policy, including any of the subrogation provisions or any other provisions of the W&I Insurance Policy restricting the W&I Insurer from making claims against any member of the Seller's Group or any of their respective Representatives (or do anything which has a similar effect), without the express prior written consent of the Seller; and (f) it will not do or permit any member of the Purchaser's Group (including as from Completion the Target Group) to do anything which causes any right under the W&I Insurance Policy not to have full force or effect. 17.3 The Purchaser hereby indemnifies and holds harmless each member of the Seller's Group and each of their respective Representatives by way of an irrevocable third-party stipulation for no consideration (onherroepelijk derdenbeding om niet) against any loss, liabilities or damages suffered or incurred by any of them as a result of: (a) any breach of Clause 17.1 or 17.2; or (b) the W&I Insurer (or any person claiming though the W&I Insurer in relation to the W&I Insurance Policy) bringing any claim against any member of the Seller's Group or any of their respective Representatives by way of subrogation, claim for contribution or otherwise, other than any such claim to the extent that the relevant losses, liabilities or damages arose out of fraud and then only to the extent relating to the Fraud and only against the person committing the Fraud. 17.4 If and to the extent there is hereby acknowledged any conflict or other inconsistency between this Clause 17 and agreed by any other provision of this Agreement, this Clause 17 shall prevail. 17.5 Any conflict or inconsistency between the Parties that W&I Insurance Policy and this Agreement (if any) shall in no event create or increase any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings , which shall be excluded and be EUR 0 (in words: zero Euros) (solely governed by the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk provisions of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or notthis Agreement. (c) The Purchaser shall procure (steht dafür ein) that the Insurer shall not be entitled, under the W&I Insurance or otherwise, to subrogate against the Seller except if the payment under the W&I Insurance or any loss as defined in the W&I Insurance arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz). If the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except if such claim arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz).

W&I Insurance. (a) The Parties acknowledge that the Purchaser has taken out a warranty and indemnity insurance under an insurance policy that has been executed on or about the Put Option Date (the "W&I Insurance") and the relevant insurance provider(s) providing the W&I Insurance, "W&I Insurer") in respect of the representations and warranties set forth in the Warranty Agreement (the "Business Representations") and as the case may be, in this Agreement. (b) The Purchaser acknowledges and agrees that the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling the Purchaser to take out a W&I Insurance. Against this background, the Purchaser acknowledges and agrees that that: (i) the combination maximum total aggregate liability of the Seller’s Guarantees Sellers in connection with the Liability Cap a breach of any Business Representation shall not constitute a case of section 138 para 1 German Civil Code in no event exceed one euro (Bürgerliches Gesetzbuch, BGBEUR 1) ("Business Representation Cap"), ; (ii) it the Purchaser will duly consider direct all claims for breach of a Business Representation to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “extent they exceed the Business Representation Cap solely against the W&I Insurer under the W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and ; and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that nothing herein shall be construed to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insurance. (b) It is hereby acknowledged and agreed by the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk of non-implementation of the W&I Insurance as well as the validity and collectability risk risks in respect of the W&I Insurance and henceInsurance, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakingsif any, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out ; and (iv) the W&I Insurance policy contains a provision according to which the W&I Insurer will not be entitled to make and will not make any recourse claim against the Sellers in respect of any breach of a Business Representation, except in cases of fraud or notdol. The Purchaser shall not amend the wording of the W&I Policy on subrogation without the prior written consent of the Sellers. (c) The Following expiry of the fourth (4th) month as of the Put Option Date and up to the end of the fifth (5th) month following the Put Option Date, upon request of the Purchaser, the Sellers shall allow the Purchaser shall procure (steht dafür ein) and its advisors to update its due diligence and provide the Purchaser and its advisors with such information on the Group Companies relevant for and strictly limited to the Business Representations that the Insurer shall not would have to be entitled, under the W&I Insurance or otherwise, to subrogate against the Seller except if the payment under the W&I Insurance or any loss as defined disclosed in the W&I Insurance arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz). If the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except Closing Bring Down Disclosure if such claim arises out of Seller’s fraud bring down had to be made during the fifth (Arglist5th) or willful misconduct (Vorsatz)month following the Put Option Date.

W&I Insurance. 17.1 Notwithstanding any other provision of this Agreement: (a) The the Purchaser acknowledges and agrees that it will not be entitled to make, will not make, and irrevocably waives any right it may have to make any Warranty Claim or any Tax Indemnity Claim against the Seller’s Guarantees (except for , other than Warranty Claims in respect of the Fundamental GuaranteesWarranties, Tax Indemnity Claims for Seller Group Taxes and claims for Fraud by the Seller; 10231132943-v2 - 53 - 55-41021628 (b) the Purchaser shall not be entitled to claim against the Seller in respect of any of the Fundamental Warranties, unless it has (subject to Clause 16.4(b)(ii)) first exercised and exhausted its right to claim for such matter under the W&I Insurance Policy; (c) the Purchaser's sole potential remedy and recourse in respect of all and any Warranty Claims (other than claims in respect of Fundamental Warranties, provided that paragraph (b) above has been complied with) and Tax Indemnity Claims (other than Tax Indemnity Claims for Seller Group Taxes) shall be under the W&I Insurance Policy, and the Seller shall bear no liability towards the Purchaser for any Warranty Claim or Tax Indemnification Undertakings are solely given Indemnity Claim (other than any Tax Indemnity Claim with respect to Seller Group Taxes or claims in respect of Fraud by the Seller with a view to enabling Seller); and (d) if the Purchaser is unable to take out a pursue or obtain any remedy in respect of any Warranty Claim or Tax Indemnity Claim under the W&I Insurance. Against this backgroundInsurance Policy, the Purchaser acknowledges and agrees that whether due to policy terms, limits, exceptions or exclusions (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuchexcluding, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For for the avoidance of doubt, exceptions or exclusions in the Parties acknowledge and agree that nothing herein W&I Policy in respect of information Fairly Disclosed against the Fundamental Warranties), validity (including, without limitation, if the W&I Insurance Policy is invalid due to the insolvency, breach or default of any person), creditworthiness or for any other reason, the liability of the Seller under this Agreement shall not be construed affected or in any way increased. 17.2 The Purchaser agrees that: (a) to require the extent not concluded prior to the Signing Protocol Date, the Purchaser will use reasonable best efforts to contract for, subscribe or otherwise take out a conclude the W&I Insurance.Insurance Policy as soon as possible after the Signing Protocol Date and in any event prior to Completion; (b) It the premium of the W&I Insurance Policy, and any costs, expenses and insurance Tax in connection therewith or in connection with making any recovery thereunder (including any deductible, retention or own risk threshold), will be for the sole account of the Purchaser and the Purchaser shall be responsible for payment thereof; (c) it shall procure that the W&I Insurance Policy includes a binding and irrevocable third-party stipulation for no consideration (onherroepelijk derdenbeding om niet) for the benefit of the Seller, each member of the Seller's Group, each of the Target Group Companies and each of their respective Representatives, that the W&I Insurer shall not claim from or against the Seller, any member of the Seller's Group, any of the Target Group Companies or any of their respective Representatives in connection with any Warranty Claim, Tax Indemnity Claim, the W&I Insurance Policy or any matter or claim under or in relation thereto, except in the event of Fraud ; (d) it shall comply, and shall cause each relevant member of the Purchaser's Group to comply, with all terms of the W&I Insurance Policy, including satisfying any requirements to submit "no claims declarations" on the Signing Protocol Date and the Completion Date; 10231132943-v2 - 54 - 55-41021628 (e) it will not agree to any amendment, variation, assignment, waiver or novation of the W&I Insurance Policy, including any of the subrogation provisions or any other provisions of the W&I Insurance Policy restricting the W&I Insurer from making claims against any member of the Seller's Group or any of their respective Representatives (or do anything which has a similar effect), without the express prior written consent of the Seller; and (f) it will not do or permit any member of the Purchaser's Group (including as from Completion the Target Group) to do anything which causes any right under the W&I Insurance Policy not to have full force or effect. 17.3 The Purchaser hereby indemnifies and holds harmless each member of the Seller's Group and each of their respective Representatives by way of an irrevocable third-party stipulation for no consideration (onherroepelijk derdenbeding om niet) against any loss, liabilities or damages suffered or incurred by any of them as a result of: (a) any breach of Clause 17.1 or 17.2; or (b) the W&I Insurer (or any person claiming though the W&I Insurer in relation to the W&I Insurance Policy) bringing any claim against any member of the Seller's Group or any of their respective Representatives by way of subrogation, claim for contribution or otherwise, other than any such claim to the extent that the relevant losses, liabilities or damages arose out of fraud and then only to the extent relating to the Fraud and only against the person committing the Fraud. 17.4 If and to the extent there is hereby acknowledged any conflict or other inconsistency between this Clause 17 and agreed by any other provision of this Agreement, this Clause 17 shall prevail. 17.5 Any conflict or inconsistency between the Parties that W&I Insurance Policy and this Agreement (if any) shall in no event create or increase any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings , which shall be excluded and be EUR 0 (in words: zero Euros) (solely governed by the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk provisions of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or notthis Agreement. (c) The Purchaser shall procure (steht dafür ein) that the Insurer shall not be entitled, under the W&I Insurance or otherwise, to subrogate against the Seller except if the payment under the W&I Insurance or any loss as defined in the W&I Insurance arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz). If the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except if such claim arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz).

W&I Insurance. (a) 5.1. The Purchaser acknowledges Parties acknowledge and agrees agree that the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling the Purchaser to take has taken out a W&I Insurance. Against this background, the Purchaser acknowledges and agrees that (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insuranceinsurance in relation to the Representations included in the Agreement, including excess pursuant to the insurance coverage policies and a synthetic tax insurance coverage policy attached as Schedule 5.1 (the “W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement). 5.2. For the avoidance of doubt, the The Parties acknowledge and agree that nothing herein shall be construed any and all costs and expenses in relation to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insurance. (b) It is hereby acknowledged and agreed by the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes taking out the W&I Insurance or not. (c) The Purchaser shall procure (steht dafür ein) that by the Insurer shall not be entitledPurchaser, under the W&I Insurance or otherwise, to subrogate against the Seller except if the including payment of any premiums under the W&I Insurance or any loss Tax due in connection with the W&I Insurance, will be borne in full by the Purchaser. On the Closing Date, such premiums and any other relevant (Tax) costs and expenses in relation to taking out the W&I Insurance, being an amount of two hundred and nine thousand one hundred fifty eight euro (EUR 209,158) (the “W&I Amount”), shall be paid by the Purchaser in accordance with Clause 6.3.4. 5.3. The Parties hereby expressly acknowledge and agree that any risk as to the validity or the enforceability of the W&I Insurance shall exclusively be borne by the Purchaser. Any risk as to the insolvency or bankruptcy of the Insurer shall exclusively be borne by the Sellers. 5.4. The Parties acknowledge and agree that if a matter which has given rise to a Claim is covered (in whole) by the W&I Insurance and the Insurer has determined its position within thirty (30) business days (as defined in the W&I Insurance) after having received all required information, by acknowledging cover for the loss claimed for or that the retention has been eroded in accordance with clause 5.4. of the W&I Insurance, the Purchaser shall not exercise any recourse against the Sellers with respect to such Claim. 5.5. The Parties acknowledge and agree that the Sellers will indemnify the Purchaser in accordance with the Agreement (and subject to any limitations set out herein) for any Loss suffered by the Purchaser or the Company or any of the Subsidiaries resulting from a Breach of any of the Representations (i) which would not be covered by the W&I Insurance, or (ii) which would not be recoverable thereunder, it being understood that if the W&I Insurance arises out would be partially excluding the Breach, the Sellers shall indemnify the Purchaser or the Company or any of Sellerthe Subsidiaries for the Loss which has been excluded from the coverage of the W&I Insurance, or (iii) for which the Insurer has either denied cover for the Loss claimed or not determined its position within thirty (30) business days (as defined in the W&I Insurance) after having received all required information in accordance with clause 5.4. of the W&I Insurance; in each case subject to the terms and conditions (in particular, the limitations) set forth in the Agreement. 5.6. If the Purchaser does not have any recourse against the Sellers with respect to a liability of the Sellers for a Claim in accordance with Clause 5.3, the provisions of Clause 14 shall not be applicable with respect to such Claim it being understood that in such case the Purchaser must keep the Sellers promptly informed of the progress of the Purchaser’s claim under the W&I Insurance and provide the Sellers with copies of all relevant documents and such other information in the Purchaser’s possession or in the possession of the Company or any of the Subsidiaries as may be requested by the Sellers. 5.7. The Parties acknowledge and agree that the maximum aggregate liability of the Sellers in respect of all Claims – as set forth in Clause 13.4 – shall be decreased with the amount actually recovered by the Purchaser under the W&I Insurance in relation to any such Claims. 5.8. The W&I Insurance shall provide for – and shall at no time be amended to omit or otherwise prevent – the express waiver and release of all of the Insurer’s rights of subrogation (as well as any similar or equivalent rights) against the Sellers, or any of their Affiliated Companies or Related Individuals (who are hereby irrevocably considered to be third party beneficiaries pursuant to article 1121 of the Civil Code (“beding ten behoeve van een derde” / “stipulation pour autrui”) for the purposes of this Clause 5.8), with the exception in case of fraud (Arglist) or willful misconduct (Vorsatz). If the Insurer makes any claims against the Seller under or “bedrog” / “dol”) (as defined in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except if such claim arises out of Seller’s fraud (Arglist) or willful misconduct (VorsatzInsurance).

W&I Insurance. (a) The Purchaser acknowledges and agrees Parties acknowledge that Buyer has obtained the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling the Purchaser to take out a W&I Insurance. Against this background, the Purchaser acknowledges and agrees that (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess Insurance providing insurance coverage policies and a synthetic tax insurance coverage (with respect to the “W&I Insurance” and Warranties as set out in the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that nothing herein shall be construed to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insurance. (b) It No Seller is hereby acknowledged and agreed by a party to the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledgesW&I Insurance, and the other Parties agreeinsurer is not a party to this Agreement. (c) Notwithstanding anything to the contrary in this Agreement, that but subject to the risk provisions of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hencethis Section 8.3, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively only remedy available to Buyer for a breach of the Warranties is an insurance claim against the Insurer under the W&I Insurance. Irrespective of whether the Purchaser takes out W&I Insurance is in force or not and irrespective of whether any claim of Buyer is covered by the W&I Insurance or not., Sellers have no liability to Buyer under any of the Warranties, and this Agreement does not constitute any right for Buyer to make any claims against Sellers (or their Affiliates, directors, officers, employees, agents or advisors) for any breach of any Warranty, regardless of whether or not Buyer is entitled to actually receive compensation under the W&I Insurance, save for the following situations: (ci) The Purchaser shall procure (steht dafür ein) that In case of a breach of the Insurer shall Fundamental Warranties, and Buyer not be entitled, having received full compensation for the Loss caused by such breach under the W&I Insurance or otherwiseafter having reasonably exhausted its rights thereunder (to the extent such rights exist), then, subject to subrogate against the Seller except if limitations set forth in Section 8.2, Buyer may claim compensation for such unrecovered Loss directly from Sellers, provided, however, that Sellers’ aggregate liability with respect to all Claims under this Section 8.3(c)(i) shall be limited to the payment under amount of the W&I Insurance or any loss Purchase Price; and (ii) Buyer's right to receive compensation for Loss caused as defined in the W&I Insurance arises out a result of Seller’s fraud (Arglist) or fraud, willful misconduct or gross negligence by any Seller in relation to the Warranties shall not be limited in any way by this Agreement, and Buyer may claim compensation for such unrecovered Loss directly from such Seller (Vorsatz). If or Sellers) who has given the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except if Warranty subject to such claim arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz)breach.

W&I Insurance. (a) The Purchaser acknowledges and agrees that the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling the Purchaser to shall take out a W&I Insurance. Against this background, the Purchaser acknowledges and agrees that (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” and the relevant insurance provider(s) as therein identifiedprovider thereof, the “Insurer”) to obtain warranty and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility indemnity insurance coverage for the Sellers’ Guarantees and without having any effect on the limitations on the Seller’s liability Tax Warranties set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that nothing herein shall be construed to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insuranceherein. (b) It is hereby acknowledged and agreed by the Parties that any liability of any of the Seller Sellers for any claims of the Purchaser against for Breaches of any of the Seller under or in connection with Seller’s Sellers’ Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings Warranties (other than in respect of Exempted Claims) in excess of the Liability Cap shall be excluded and be EUR 0 (in words: zero EurosEuro) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s for Breaches of any of the Sellers’ Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall Warranties (other than in respect of Exempted Claims), beyond the Liability Cap shall, to the extent applicable, be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or not. (c) If and to the extent that any Purchaser Claim in connection with a Breach of a Fundamental Guarantee is subject of a valid and collectible claim of the Purchaser against the Insurer under the W&I Insurance, any liability of any Seller for such claim shall also be excluded, provided that the Purchaser shall not be under any obligation to recover any amount in respect of any Purchaser Claim for Breach of a Fundamental Guarantee from the Insurer first or at all. (d) The Purchaser shall procure (steht dafür ein) that the W&I Insurance will contain a provision that the Insurer shall will not be entitled, under the W&I Insurance or otherwise, entitled to subrogate against any of the Seller Sellers except if the payment under the W&I Insurance or any loss as defined in the W&I Insurance arises out of a Seller’s fraud malicious deception (Arglist) or willful intentional misconduct (Vorsatz). If and to the extent the Insurer makes any claims against the any Seller under or in connection with the W&I Insurance or otherwiseotherwise in connection with this Agreement or the Transaction, the Purchaser shall indemnify and hold harmless the respective Seller from any damages, losses and liabilities Losses resulting therefrom, including all reasonable out-of-pocket costs and expenses, legal fees and expenses and disbursements and Taxes resulting from or arising in connection therewith, except if such claim arises out of such Seller’s fraud malicious deception (Arglist) or willful intentional misconduct (Vorsatz). Section 8.1(c) shall remain unaffected.

W&I Insurance. 7.1 The Purchaser shall: (a) at the date of this Deed, execute and deliver to the W&I Insurer the W&I Policy; (b) at the date of this Deed, execute and deliver to the W&I Insurer an electronic PDF copy of the No Claims Declaration; (c) within 20 Business Days of Completion, deliver to the W&I Insurer a CD Rom incorporating a full, indexed copy of the Data Room; and (d) within 20 Business Days of Completion, pay the Premium (as defined in the W&I Policy) to the W&I Insurer in cleared funds. 7.2 The Purchaser acknowledges irrevocably and agrees unconditionally undertakes and covenants to the Warrantors that it shall, and shall procure that each member of the SellerPurchaser’s Guarantees Group shall, comply with all the provisions of the W&I Policy which affect the validity of the W&I Policy including, but not limited to, its obligations to: (except a) notify the W&I Insurer of any Warranty Claim or potential Warranty Claim; (b) mitigate its loss; and (c) maintain adequate records, in each case in accordance with the terms of the W&I Policy. 7.3 The Purchaser irrevocably and unconditionally undertakes and covenants with the Warrantors that it shall, and shall procure that each member of the Purchaser’s Group shall: (a) not take or omit to take any action which has the effect of invalidating the W&I Policy (or any Warranty Claim to which the W&I Policy relates); or (b) not amend, vary or terminate the W&I Policy without the prior written approval of the Warrantor’s Representative. 7.4 The Purchaser shall procure that, in respect of any liability which the Warrantors may have in respect of any Warranty Claims, it shall pursue or procure the pursuit of recovery of such Warranty Claim in good faith under the W&I Policy and shall exhaust each and every right of action and remedy reasonably available to it under the W&I Policy relating to such right of recovery. 7.5 The Warrantors shall not be required to make any payment whatsoever in respect of any Warranty Claim during any period when any member of the Purchaser’s Group has a right of recovery under the W&I Policy unless and until the Purchaser has complied with its obligations under clause 7.4 and, for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling avoidance of doubt, in so far as the Purchaser recovers any amount in respect of a Warranty Claim under or pursuant to take out a the W&I Insurance. Against this backgroundPolicy, the Warrantor shall have no liability under this Deed to pay any amount to the Purchaser acknowledges and agrees that (i) the combination or any other member of the SellerPurchaser’s Guarantees with Group in respect of the Liability Cap shall deductible which the Purchaser has not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider been able to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreementso recover. For the avoidance of doubt, nothing in the Parties acknowledge and agree that nothing herein preceding sentence of this clause 7.5 shall be construed to require the Purchaser to contract for, subscribe limit or otherwise take out a W&I Insurance. (b) It is hereby acknowledged and agreed by the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, prejudice the Purchaser’s sole recourse for any claims under ability to give a notice of Claim in accordance with the provisions of paragraph 2 of Schedule 2. 7.6 If the W&I Policy should lapse or in connection with Seller’s Guarantees cease to provide (except for or the Fundamental GuaranteesWarrantors reasonably believe that it shall cease to provide) and by reason of the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledgeslikely, and the other Parties agree, that the risk of non-implementation pending or actual insolvency of the W&I Insurance Insurer, the relevant insurance coverage at any time the Purchaser shall provide the Warrantors with all assistance (at the cost of the Warrantors) as well as they may reasonably require to source and place a substitute policy (at the validity and collectability risk cost of the Warrantors) in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or notsuch required coverage. (c) 7.7 The Purchaser shall procure that, during the policy term of the W&I Policy, any person that acquires more than 50% of the assets (steht dafür einbased on fair market value) that of the Insurer shall not be entitled, Group to whom the Purchaser assigns its rights or interest or transfers its obligations under the W&I Insurance or otherwise, Policy shall adhere to subrogate against the Seller except if the payment under the W&I Insurance or any loss as defined in the W&I Insurance arises out terms of Seller’s fraud (Arglist) or willful misconduct (Vorsatz). If the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except if such claim arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz)this Deed.

W&I Insurance. 3.1 The Purchaser agrees that, notwithstanding any other provision of this Deed: (a) it will not be entitled to make, and will not make, any Claim against the Management Warrantors except to the extent of EUR one (€1) in aggregate; (b) its sole recourse in respect of all Claims shall, except to the extent of EUR one (€1), be to make a claim under the W&I Policy; and (c) the absence of a recourse of the Purchaser under the W&I Policy in respect of any Claim (including, without limitation, as the result of any limitation, exclusion, deduction or derogation under, or any invalidity or illegality of, the W&I Policy) and/or any inability of the Purchaser to obtain any remedy in respect of a Claim under the W&I Policy for any reason whatsoever (including, without limitation, any winding up, bankruptcy or other insolvency proceedings affecting the W&I Insurer, any failure of the W&I Insurer to perform its obligations under the W&I Policy or any deductible, threshold or other financial limitation applying to the W&I Policy) shall not affect or increase the liability of the Management Warrantors under this Deed. 3.2 Save as provided for under the W&I Policy, the Purchaser shall not novate or otherwise assign its rights under the W&I Policy or do anything or omit to do anything that causes or could be reasonably likely to cause any right under the W&I Policy to lapse or otherwise not have full force or effect, in each case which would have the effect of increasing the liability of the Management Warrantors. 3.3 The Purchaser covenants and warrants to the Management Warrantors that: (a) the W&I Policy includes terms pursuant to which the W&I Insurer agrees to not exercise any rights of subrogation it may have against any Management Warrantor except where any loss that is insured under the W&I Policy arises as a result of any fraud by that Management Warrantor in giving the Warranties (provided always that the fraud of any such Management Warrantor shall not in any way increase or otherwise affect the liability of, or the ability for the W&I Insurer to exercise any rights of subrogation against, any other Management Warrantor); (b) a true and accurate copy of the subrogation provisions and the third party rights provisions under the W&I Policy have been provided to the Management Warrantors by the Purchaser prior to the date of this Deed; and (c) no amendments to, or waivers of, the provisions of the W&I Policy which would have the effect of increasing the liability of the Management Warrantors will be made without the prior written consent of the Management Warrantors. 3.4 The Purchaser acknowledges and agrees that the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings are solely given by the Seller with a view to enabling the Purchaser to take out a W&I Insurance. Against this background, the Purchaser acknowledges and agrees that (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that nothing herein shall be construed to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insurance. (b) It is hereby acknowledged and agreed by the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk of non-implementation of the W&I Insurance as well as the validity and collectability risk in respect of the W&I Insurance and hence, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or not. (c) The Purchaser shall procure (steht dafür ein) that the Insurer Management Warrantors shall not be entitled, under liable to pay any excess or any of the costs relating to the W&I Insurance or otherwise, to subrogate against the Seller except if the payment under the W&I Insurance or any loss as defined in the W&I Insurance arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz). If the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes resulting from or arising in connection therewith, except if such claim arises out of Seller’s fraud (Arglist) or willful misconduct (Vorsatz)Policy.

W&I Insurance. 19.2.1 Purchaser envisages taking out warranty and indemnity insurance in connection with the transaction contemplated by this Agreement (athe "W&I Insurance"). Purchaser shall procure, and warrants (steht dafür ein), that under the terms of the W&I Insurance, no claims of Purchaser (or any director, employee, affiliate, adviser or other representative of Purchaser) The Purchaser acknowledges and agrees that against Seller shall be subrogated (whether by operation of law, contract or otherwise) to the Seller’s Guarantees (insurer, except for the Fundamental Guaranteesany claims of Purchaser arising from fraudulent behaviour (Betrug) and the Tax Indemnification Undertakings are solely given by the or malicious misrepresentation (arglistige Täuschung) of Seller with a view or any Seller's representatives (Vertreter, Wissensvertreter) whose knowledge, relevant action or omission is attributed to enabling the Seller pursuant to mandatory law. 19.2.2 Nothing in this Section 19.2 or in this Agreement shall require Purchaser to take out a the W&I Insurance. Against this background, the Purchaser acknowledges and agrees that (i) the combination of the Seller’s Guarantees with the Liability Cap shall not constitute a case of section 138 para 1 German Civil Code (Bürgerliches Gesetzbuch, BGB), (ii) it will duly consider to take out a customary warranty and indemnity insurance, including excess insurance coverage policies and a synthetic tax insurance coverage (the “W&I Insurance” Insurance and the relevant insurance provider(s) as therein identified, the “Insurer”) and (iii) if it refrains from taking out a W&I Insurance, this will be at its own responsibility and without having any effect on the limitations on the Seller’s liability set forth in this Agreement. For the avoidance of doubt, the Parties acknowledge and agree that nothing herein shall be construed to require the Purchaser to contract for, subscribe or otherwise take out a W&I Insurance. (b) It is hereby acknowledged and agreed by the Parties that any liability of the Seller for any claims of the Purchaser against the Seller under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be excluded and be EUR 0 (in words: zero Euros) (the “Liability Exclusion”). Consequently, the Purchaser’s sole recourse for any claims under or in connection with Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings shall be only against the Insurer. The Purchaser expressly acknowledges, and the other Parties agree, that the risk of non-implementation terms of the W&I Insurance shall, in all other respects, be at Purchaser's discretion, except as well as expressly otherwise provided in this Agreement. 19.2.3 If requested by Purchaser, Seller shall, at the validity risk and collectability risk cost of Purchaser, use reasonable efforts to support Purchaser in taking out the W&I Insurance, including upon the reasonable request of Purchaser, during the period between the Signing Date and the Closing Date, providing Purchaser and its representatives access to information regarding the Target Companies reasonably necessary in order to expand Purchaser's W&I Insurance coverage and other insurance coverage with respect to the Target Companies, provided that Seller shall not be responsible for the obtaining of the W&I Insurance and hencenot be required to expose itself or the Target Companies or any of their respective personnel to any liability other than pursuant to Section 19.2.1. The Remaining Seller's Group and, prior to Closing, the risk to successfully claim and/or recover from the Insurer any Losses of the Purchaser under or in connection with the Seller’s Guarantees (except for the Fundamental Guarantees) and the Tax Indemnification Undertakings, shall solely and irrevocably rest with the Purchaser. The Parties agree that the Liability Exclusion shall apply irrespectively whether the Purchaser takes out the W&I Insurance or not. (c) The Purchaser shall procure (steht dafür ein) that the Insurer Target Companies shall not be entitledliable to Purchaser, under the W&I Insurance or otherwiseParent, to subrogate against the Seller except if the payment under the W&I Insurance any of their Affiliates or any loss as defined in the W&I Insurance arises out third party for any of Seller’s fraud (Arglist) or willful misconduct (Vorsatz)'s support under this Section 19.2.3. If the Insurer makes any claims against the Seller under or in connection with the W&I Insurance or otherwise, the Purchaser shall indemnify and hold harmless the Seller Remaining SPAExecution Version Seller's Group and, prior to Closing, the Target Companies from any damages, losses and liabilities resulting therefrom, including all out-of-pocket costs and expenses, legal fees and disbursements and Taxes Loss resulting from such support. In particular, the Bring-Down Certificate shall be delivered for information purposes only and exclusively on the basis of Seller's actual knowledge (positive Kenntnis) after due inquiry with the Agreed Standard Persons. In no event shall the Bring-Down Certificate create or arising in connection therewithincrease the liability of Seller under this Agreement and the Seller shall not be liable for any incorrect Bring-Down Certificate, except if such claim arises out in case of Seller’s fraud 's fraudulent behaviour (ArglistBetrug) or willful misconduct malicious misrepresentation (Vorsatzarglistige Täuschung).