Common use of Damage Limitations Clause in Contracts

Damage Limitations. (a) Notwithstanding anything to the contrary in the Transaction Documents, none of Seller, Seller's Affiliates nor Buyer will be permitted to recover any consequential, indirect, or punitive damages arising out of or related to the Transaction Documents, regardless of the form of the Claim, including without limitation Claims for indemnification, tort, breach of contract, warranty, representation or covenant. (b) Seller's and Seller's Affiliates' aggregate liability arising out of or related to the Transaction Documents, except for Excluded Liabilities (Seller's and Seller's Affiliates' liability for which will not be subject to any limitation pursuant to this Section 9.04(b)), regardless of the form of the Claim or Action, including, without limitation, Claims or Actions for indemnification, tort, breach of contract, warranty, representation or covenant, is limited to the amount by which all liabilities exceed US$ 100,000, and in no event will Seller's and Seller's Affiliates' aggregate liability exceed a total of US $ 800,000. (c) Buyer's aggregate liability arising out of or related to this Agreement the Transaction Documents, excluding any liability for the payment of any portion of the Purchase Price, any Tax matters, the purchase price of any Products of the Business purchased by Buyer pursuant to the Transition Supply Agreement and any Assumed Liabilities (Buyer's liability for which will not be subject to any limitation pursuant to this Section 9.04(b)), regardless of the form of the Claim or Action, including without limitation Claims or Actions for indemnification, tort, breach of contract, warranty, representation or covenant, is limited to the amount by which all liabilities exceed US$ 100,000, and in no event will Buyer's aggregate liability exceed a total of US$ 800,000.

Damage Limitations. (a) Notwithstanding anything contained in this Agreement to the contrary in contrary, the Transaction DocumentsFormer Activate Stockholder shall have no liability under this Article VII, none and Loudeye may not deduct any amounts for Damages from the Anniversary Payment, unless and until the aggregate amount of SellerLoudeye's Damages exceeds $75,000; provided, Sellerhowever, that once the aggregate amount of Loudeye's Affiliates nor Buyer will Damages exceeds $75,000, Loudeye shall be permitted entitled to recover any consequential, indirect, or punitive damages arising out deduct the full amount of or related to Damages from the Transaction Documents, regardless Anniversary Payment. The aggregate liability of the form Former Activate Stockholder for breaches of any representations and warranties contained in Article III (other than the representations and warranties set forth in Sections 3.1, 3.2 and 3.3(a)) shall not exceed the value of the Claim, including without limitation Claims for indemnification, tort, breach of contract, warranty, representation or covenantMerger Consideration actually received by the Former Activate Stockholder from Loudeye. (b) Seller's The sole and Seller's Affiliates' aggregate liability arising out of or related exclusive means for the Loudeye Indemnified Parties to collect any Damages to which they are entitled to indemnification under this Article VII shall be recourse to the Transaction DocumentsMerger Consideration. The Loudeye Indemnified Parties shall not attempt to collect any Damages from the Former Activate Stockholder, except unless the aggregate Damages to which they are entitled to indemnification exceed $3,000,000 (in which case, Loudeye shall first setoff against the entire Anniversary Payment and then seek to recover the remaining Damages (but not more than an additional $1,000,000) from the Former Activate Stockholder. On the Anniversary Date, in order to collect the aggregate Damages, if any, to which the Loudeye Indemnified Parties are entitled to indemnification, (i) first, Loudeye shall setoff the amount of such Damages against the Deferred Shares (the value of such Deferred Shares shall be the Average Price (as appropriately adjusted for Excluded Liabilities (Seller's and Seller's Affiliates' liability for which will not be subject to any limitation pursuant to this Section 9.04(bstock split, stock dividend, reverse stock split or similar event)), regardless and (ii) if the amount of such Damages exceeds the value of the form Deferred Shares, Loudeye shall then setoff the remaining amount of such Damages against the cash portion of the Claim or Action, including, without limitation, Claims or Actions for indemnification, tort, breach of contract, warranty, representation or covenant, is limited to the amount by which all liabilities exceed US$ 100,000, and in no event will Seller's and Seller's Affiliates' aggregate liability exceed a total of US $ 800,000Anniversary Payment. (c) Buyer's Notwithstanding any provision of this Agreement to the contrary, CMGI and Loudeye agree to the following provisions relating to matters as more fully described in item number 6 of Schedule 3.18 in the ActiveDisclosure Schedule (the "AboveNet Matter"): (i) From and after the Closing Date until ninety (90) days after the Closing Date, CMGI shall have the exclusive right, in its sole discretion, to conduct the defense of any Third Party Claim involving the AboveNet Matter, including without limitation, the exclusive right to direct the settlement of any Third Party Claim involving the AboveNet Matter. (ii) From and after the date that is ninety (90) days after the Closing Date, Loudeye shall conduct the defense of any Third Party Claim involving the AboveNet Matter; provided that the aggregate liability arising out of or related to this Agreement the Transaction Documents, excluding any liability for the payment of any portion of the Purchase PriceFormer Activate Stockholder for any Third Party Claim involving the AboveNet Matter shall not exceed $120,000, any Tax matters, the purchase price of any Products of the Business purchased by Buyer pursuant to the Transition Supply Agreement and any Assumed Liabilities (Buyer's liability for which will shall not be subject to any limitation pursuant to this the $75,000 hurdle set forth in Section 9.04(b)7.3(a), regardless of and, in accordance with Section 7.3(b), shall be satisfied solely by deduction from the form of the Claim or Action, including without limitation Claims or Actions for indemnification, tort, breach of contract, warranty, representation or covenant, is limited to the amount by which all liabilities exceed US$ 100,000, and in no event will Buyer's aggregate liability exceed a total of US$ 800,000Anniversary Payment.

Damage Limitations. (a) Notwithstanding anything to the contrary in the Transaction Documents, none of Seller, Seller's Affiliates Sellers nor Buyer will be permitted to recover any consequential, indirect, or punitive damages arising out of or related to the Transaction Documents, regardless of the form of the Claim, including without limitation Claims for indemnification, tort, breach of contract, warranty, representation or covenant. (b) Seller's and Seller's Affiliates' Sellers’ aggregate liability arising out of or related to breaches of representations and warranties set forth in the Transaction Documents, except for Excluded Liabilities (Seller's and Seller's Affiliates' liability for which will not be subject to any limitation pursuant to this Section 9.04(b)), regardless of the form of the Claim or Action, including, without limitation, Claims or Actions for indemnification, tort, breach of contract, warranty, representation warranty or covenantrepresentation, is limited to the amount by which all such liabilities exceed US$ 100,000zero-point-five percent (0.5%) of the Purchase Price, and in no event will Seller's and Seller's Affiliates' Sellers’ aggregate liability exceed a total of US $ 800,000fifty percent (50%) of the Purchase Price. (c) Buyer's ’s aggregate liability arising out of or related to this Agreement breaches of representations and warranties set forth in the Transaction Documents, excluding any liability for the payment of any portion of the Purchase Price, any Tax matters, the purchase price of any Products of the Business purchased by Buyer pursuant to the Transition Supply Agreement and any Assumed Liabilities (Buyer's liability for which will not be subject to any limitation pursuant to this Section 9.04(b)), regardless of the form of the Claim or Action, including without limitation Claims or Actions for indemnification, tort, breach of contract, warranty, representation warranty or covenantrepresentation, is limited to the amount by which all such liabilities exceed US$ 100,000zero-point-five percent (0.5%) of the Purchase Price, and in no event will Buyer's ’s aggregate liability exceed a total of US$ 800,000fifty percent (50%) of the Purchase Price. (d) In the event any Claim or Action hereunder results in a Tax benefit or is an insured loss to the indemnified Person, the indemnifying Person will be entitled to a credit against any liability thereunder in the amount by which any Taxes of the indemnified Person will be reduced by reason of any deduction or adjustment allowed the indemnified Person for any payment, settlement or satisfaction of such claim, as well as in the amount of and to the extent of any insurance proceeds to which the indemnified Person is entitled. For the purposes hereof, it will be presumed that the maximum possible Tax benefit is derived in the shortest time period possible.

Damage Limitations. (a) Notwithstanding anything to the contrary in the Transaction Documents, none of Seller, Seller's Affiliates nor Buyer will be permitted to recover any consequential, indirect, or punitive damages arising out of or related to the Transaction Documents, regardless of the form of the ClaimClaim or Action, including without limitation Claims or Actions for indemnification, tort, breach of contract, warranty, representation or covenant. (b) Seller's and Seller's its Affiliates' aggregate liability arising out of or related to breaches of representations or warranties contained in the Transaction Documents, except for Excluded Liabilities (Seller's and Seller's Affiliates' liability for which will not be subject to any limitation pursuant to this Section 9.04(b)), regardless of the form of the Claim or Action, including, without limitation, Claims or Actions for indemnification, tort, breach of contract, warranty, representation or covenant, is limited to the amount by which all liabilities exceed US$ 100,000, and in no event will Seller's and Seller's Affiliates' aggregate liability exceed a total of US $ 800,000. (c) Buyer's aggregate liability arising out of or related to this Agreement the Transaction Documents, excluding any liability for the payment of any portion of the Purchase Price, any Tax matters, the purchase price of any Products of the Business purchased by Buyer pursuant to the Transition Supply Agreement and any Assumed Liabilities (Buyer's liability for which will not be subject to any limitation pursuant to this Section 9.04(b)), regardless of the form of the Claim or Action, including without limitation Claims or Actions for indemnification, tort, breach of contract, warranty, representation warranty or covenantrepresentation, is limited to the amount by which all liabilities exceed US$ 100,000five million United States dollars (US$5,000,000), and in no event will Seller's and its Affiliates' aggregate liability therefor exceed a total of 20% of the Purchase Price. (c) Buyer's aggregate liability arising out of or related to breaches of representations or warranties contained in the Transaction Documents, regardless of the form of the Claim or Action, including without limitation Claims or Actions for indemnification, tort, breach of contract, warranty or representation, is limited to the amount by which all liabilities exceed five million United States dollars (US$5,000,000), and in no event will Buyer's aggregate liability therefor exceed a total of US$ 800,00020% of the Purchase Price. (d) In the event any Buyer's Assertion, Seller's Assertion or Claim hereunder results in a Tax benefit or is an insured loss to the indemnified Party, the indemnifying Party will be entitled to a credit against any liability thereunder in the amount by which any Taxes of the indemnified Party will be reduced by reason of any deduction or adjustment allowed the indemnified Party for any payment, settlement or satisfaction of such claim, as well as in the amount of and to the extent of any insurance proceeds to which the indemnified Party is entitled. For the purposes hereof, it will be presumed that the maximum possible Tax benefit is derived in the shortest time period possible.