Common use of Aggregate Cap Clause in Contracts

Aggregate Cap. WITHOUT LIMITATION OF SECTION 11.4 (OTHER THAN LIMITATION OF THE EXCEPTION SET FORTH IN THE FIRST SENTENCE THEREOF), AND NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, INCLUDING SECTION 2.2.7, OR ANY OTHER AGREEMENT, EACH PARTY ACKNOWLEDGES AND AGREES THAT IN NO EVENT SHALL THE TOTAL AGGREGATE LIABILITY OF THE OTHER PARTY OR ANY PERSON AFFILIATED WITH THE OTHER PARTY FOR ANY CLAIMS, LOSSES OR DAMAGES, FOR ANY CAUSE WHATSOEVER, ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, THIS AGREEMENT, THE LICENSE-BACK AGREEMENT BY AND BETWEEN INSTINET AND SUBSCRIBER DATED AS THE DATE HEREOF OR THE ASSET PURCHASE AGREEMENT, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), PURSUANT TO ANY INDEMNIFICATION PROVISIONS HEREOF OR THEREOF OR OTHERWISE, EXCEED IN THE AGGREGATE $7,750,000, EXCEPT AS PROVIDED IN THE LAST SENTENCE OF SECTION 8.4(b) OF THE LICENSE AGREEMENT AND THE LAST SENTENCE OF THIS SECTION 11.5. THE FOREGOING LIMITATION OF LIABILITY IS COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES OR DAMAGES, AND SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OR FAILURE OF ESSENTIAL PURPOSE OF ANY OTHER REMEDIES POSSESSED BY SUCH PARTY OR ANY OTHER PERSON. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 11.5 SHALL NOT APPLY WITH RESPECT TO (i) ANY AMOUNTS PAYABLE BY A PARTY INDEMNIFIED UNDER SECTION 8.1 TO A CO-LOCATION CUSTOMER OF INSTINET OR ITS AFFILIATES AS A RESULT OF A CLAIM BROUGHT BY SUCH CO-LOCATION CUSTOMER AGAINST SUCH INDEMNIFIED PARTY AND FOR WHICH SUBSCRIBER IS REQUIRED TO INDEMNIFY SUCH INDEMNIFIED PARTY UNDER SECTION 8.1, AND (ii) THE REASONABLE ATTORNEYS’ FEES INCURRED BY SUCH INDEMNIFIED PARTIES IN ACCORDANCE WITH SECTION 8.1 IN CONNECTION WITH SUCH CLAIM.