Common use of Acknowledgement of the Parties Clause in Contracts

Acknowledgement of the Parties. The Parties acknowledge (A) that a breach of an obligation by Itau giving rise to a Marketing Payment would cause AOLA and AOLB damage, including without limitation denying AOLB the benefits afforded AOLB by virtue of Itau's access to Itau Customers by means of Distributing CD-ROMs in Itau's branches and direct mailing CD-ROMs to Itau Customers as provided herein, which as a group may be accessed directly only by Itau (and not by any other entity, including AOLA and AOLB), and consequently is not available to AOLB without Itau's participation in the marketing activities, (B) it would be difficult or impossible to determine actual damages in the event of such a breach, (C) the amount of Marketing Payments specified in this Section 5 are a reasonable estimate of the actual damages that AOLA and AOLB would suffer if the marketing commitments are not conducted as required by this MOA, and (D) such amount of Marketing Payments is not a penalty. The Parties further acknowledge that the totality of their rights and obligations under this MOA, the SMA and the Related Agreements, including the number of Shares issued to Itau on the Effective Date (as such term is defined in the SMA), have been determined based on the performance of the marketing obligations under the SMA, as amended herein, and the failure to perform the marketing obligations hereunder, unless rectified, will result in AOLA and AOLB receiving less value from the MOA, the SMA and the Related Agreements than contemplated by the Parties. Accordingly, AOLB shall be entitled to receive the Marketing Payments as provided in this Section 5 as the sole and exclusive remedy for AOLA and AOLB for any failure by Itau to perform any obligation that results in a Marketing Payment under Section 5(a) or 5(b), except for any remedy provided in the SMA that provides for the payment of any Termination Fee, Acceleration Payment or Pro-Rata Reference Payment required by the terms of the SMA. For the avoidance of doubt, it is understood by the Parties that this exclusive remedy, and Itau's obligation to make Marketing Payments, shall not affect Itau's obligation to make other payments described herein, or relieve Itau from its obligation to reimburse AOLB for any actually incurred costs and expenses subject to reimbursement hereunder, including, without limitation, the CD-ROM Costs, the costs associated with in-branch promotion, the costs associated with AOLB's or an agency's employment of Promoters and Supervisors and the amounts due for AOLB/Itau Subscribers as set forth in Section 1(e).

Acknowledgement of the Parties. The Parties acknowledge (A) that a breach of an obligation by Itau Itaú giving rise to a Marketing Payment would cause AOLA and AOLB damage, including without limitation denying AOLB the benefits afforded AOLB by virtue of Itau's Itaú’s access to Itau Itaú Customers by means of Distributing CD-ROMs in Itau's Itaú’s branches and direct mailing CD-ROMs to Itau Itaú Customers as provided herein, which as a group may be accessed directly only by Itau Itaú (and not by any other entity, including AOLA and AOLB), and consequently is not available to AOLB without Itau's Itaú’s participation in the marketing activities, (B) it would be difficult or impossible to determine actual damages in the event of such a breach, (C) the amount of Marketing Payments specified in this Section 5 are a reasonable estimate of the actual damages that AOLA and AOLB would suffer if the marketing commitments are not conducted as required by this MOA, and (D) such amount of Marketing Payments is not a penalty. The Parties further acknowledge that the totality of their rights and obligations under this MOA, the SMA and the Related Agreements, including the number of Shares issued to Itau Itaú on the Effective Date (as such term is defined in the SMA), have been determined based on the performance of the marketing obligations under the SMA, as amended herein, and the failure to perform the marketing obligations hereunder, unless rectified, will result in AOLA and AOLB receiving less value from the MOA, the SMA and the Related Agreements than contemplated by the Parties. Accordingly, AOLB shall be entitled to receive the Marketing Payments as provided in this Section 5 as the sole and exclusive remedy for AOLA and AOLB for any failure by Itau Itaú to perform any obligation that results in a Marketing Payment under Section 5(a) or 5(b), except for any remedy provided in the SMA that provides for the payment of any Termination Fee, Acceleration Payment or Pro-Rata Reference Payment required by the terms of the SMA. For the avoidance of doubt, it is understood by the Parties that this exclusive remedy, and Itau's Itaú’s obligation to make Marketing Payments, shall not affect Itau's Itaú’s obligation to make other payments described herein, or relieve Itau Itaú from its obligation to reimburse AOLB for any actually incurred costs and expenses subject to reimbursement hereunder, including, without limitation, the CD-ROM Costs, the costs associated with in-branch promotion, the costs associated with AOLB's ’s or an agency's ’s employment of Promoters and Supervisors and the amounts due for AOLB/Itau Itaú Subscribers as set forth in Section 1(e).