Common use of Exclusion of Sellers’ Liability Clause in Contracts

Exclusion of Sellers’ Liability. In no event shall the Seller be liable for any Breach, and the Purchaser shall not be entitled to bring any claim under or in connection with this Agreement, if and to the extent (for the avoidance of doubt, a partial exclusion is possible): (a) Either the Purchaser or the Purchaser's Representatives, or (following the Closing Date) the Group Entities, their respective representatives or any successor to all or part of their business have caused or participated in causing (verursacht oder mitverursacht) any Losses, except where these Losses were caused by legally mandatory actions, or have aggravated such Breach or any Losses resulting therefrom or failed to mitigate Losses pursuant to Section 254 German Civil Code (BGB); (b) The matter underlying the Breach has been taken into account in the Financial Statements, as a write-off (Abschreibung), value adjustment (Wertberichtigung), liability (Verbindlichkeit) or provision (Rückstellung), including general adjustments or provisions made for the relevant risk category (e.g., Pauschalwertberichtigungen, Pau­ schalriickstellungen), or otherwise; (c) The Purchaser or any of the Group Entities, or any successor to all or parts of their business has received or has a respective claim for repayment, reimbursement or indemnification against a third party (other than any of the Group Entities), including under any insurance policy in force until the Closing Date, or would have had such claim if the insurance coverage in force at the Closing Date had been maintained after the Closing Date; (d) The matter underlying the Breach was known by the Purchaser or any of the Purchaser's Representatives on the Signing Date, provided that the Purchaser shall in any event be deemed to have knowledge of all matters which were Fairly Disclosed in: (i) This Agreement, including its Exhibits and the Financial Statements (with Section l 2.l.5(b) above remaining unaffected); (ii) The Due Diligence Material. For the purposes of this Agreement, the “Due Diligence Material” means the documents and information of a commercial, financial, accounting, tax, legal, environmental and other nature concerning the Sold Shares, the Group Entities and the Business which were made available to the Purchaser and the Purchaser's Representatives during, or in connection with, the Due Diligence, including the statements made, and answers given, to the Purchaser and the Purchaser's Representatives during the question & answer process instituted with respect to the Due Diligence and during any other meetings, EU-DOCS\22159719 conference calls or correspondence with the Group Entities, the Entities' Representatives, the Seller and the Seller's Representatives, including in the course of the negotiation of this Agreement; in each case as far as uploaded to the electronic data room operated by Intralinks or an Affiliate thereof for the purposes of the Due Diligence; or

Exclusion of Sellers’ Liability. In no event Except in case of Title Claims, the Sellers shall the Seller not be liable for Losses resulting from a Breach of Sellers’ Representations and/or a breach of any Breachother obligation hereunder, if and to the extent that: (a) the Purchaser has failed to mitigate the Losses or damage (Schadensminderung), including by way of procuring that the Group Companies take every action commercially reasonably necessary or advisable to so mitigate any Losses or damages (including by taking every action commercially reasonably necessary or advisable to receive compensation or recovery by an insurance or by a third person and/or, as the case may be, to obtain any Tax or other benefit) and as a result thereof, such failure has caused the Losses having materialized and/or increased; EXECUTION VERSION SHARE PURCHASE AND TRANSFER AGREEMENT - 360KOMPANY AG PAGE 64 OF 93 (b) the matter underlying the breach is taken into account and has an effect on the Purchase Price in the Effective Date Accounts and the Purchase Price Determination Certificate; (c) any sum in respect of any matter to which a claim relates is recovered or could be reasonably expected to be recovered by the Purchaser or any of its Affiliates (including any Group Company) from third parties (other than Purchaser or any of its Affiliates), including under an insurance policy (provided that any increase in insurance premiums shall be deemed Losses that require compensation); (d) any claim under this Agreement results from or is increased by the passing of, or any change in, any Law, interpretation or practice not in force at the date hereof or the withdrawal or restriction thereof after the Closing Date as well as of any concession previously made by any relevant authority or as a result of any change made or introduced on or after Closing in any legislation, regulation, rule of law or practice of any relevant authority, whether or not such change or withdrawal purports to be effective retrospectively in whole or in part; (e) any matter or thing has been done or omitted to be done with respect to the subject matter of the claim prior to the Closing Date at the prior written request, or with the prior written approval or written (email being sufficient) consent of the Purchaser or any of its Affiliates; (f) the respective damages, costs, expenses or losses would also have been incurred without breach of the respective Sellers’ Representation or covenant or other obligation under this Agreement; (g) such liability is attributable to any act, omission, transaction or arrangement of the Purchaser or any of its Affiliates after Signing or arises due to any matter or circumstance required to be done or omitted to be done pursuant to and in compliance with this Agreement and/or the transactions contemplated hereunder; (h) any Tax or social security amount payable by the Purchaser or any of its Affiliates (including any Group Company post-Closing) is reduced as a result of a matter giving rise to a claim for breach of a Sellers’ Representation or covenant or other obligation under this Agreement; (i) any amount equal to the amount of any current or future saving or financial benefit including any Tax benefit received (including Tax credits, Tax reductions or an increase of Tax loss carry forwards) or receivable (including timing differences) by the Purchaser or any of its Affiliates (including any Group Company post-Closing); or (j) the underlying facts or circumstances giving rise to the Breach have been Fairly Disclosed in the Data Room or this Agreement (including its schedules) (the “Disclosed Information”). Any facts or circumstances shall be deemed “Fairly Disclosed” if the disclosure was made in a manner that (i) the significance or relevance of the respective information disclosed could have reasonably been appreciated by a reasonable and experienced purchaser with comparable M&A experience as Moody’s making use of capable staff and experts in the relevant field of expertise including competent and experienced commercial, financial, tax and legal advisors, and (ii) the Purchaser respective information was not only disclosed in a document or area of the Data Room where such disclosure could not be reasonably expected. EXECUTION VERSION SHARE PURCHASE AND TRANSFER AGREEMENT PAGE 65 OF 93 Sec. 377 of the Austrian Commercial Code (Unternehmensgesetzbuch (UGB)) and sec. 442 and 924 second sentence of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch (ABGB)) and the inherent legal concepts shall not be entitled apply to bring any claim the Purchaser’s claims under or in connection with this Agreement, if and to the extent (for the avoidance of doubt, a partial exclusion is possible): (a) Either the Purchaser or the Purchaser's Representatives, or (following the Closing Date) the Group Entities, their respective representatives or any successor to all or part of their business have caused or participated in causing (verursacht oder mitverursacht) any Losses, except where these Losses were caused by legally mandatory actions, or have aggravated such Breach or any Losses resulting therefrom or failed to mitigate Losses pursuant to Section 254 German Civil Code (BGB); (b) The matter underlying the Breach has been taken into account in the Financial Statements, as a write-off (Abschreibung), value adjustment (Wertberichtigung), liability (Verbindlichkeit) or provision (Rückstellung), including general adjustments or provisions made for the relevant risk category (e.g., Pauschalwertberichtigungen, Pau­ schalriickstellungen), or otherwise; (c) The Purchaser or any of the Group Entities, or any successor to all or parts of their business has received or has a respective claim for repayment, reimbursement or indemnification against a third party (other than any of the Group Entities), including under any insurance policy in force until the Closing Date, or would have had such claim if the insurance coverage in force at the Closing Date had been maintained after the Closing Date; (d) The matter underlying the Breach was known by the Purchaser or any of the Purchaser's Representatives on the Signing Date, provided that the Purchaser shall in any event be deemed to have knowledge of all matters which were Fairly Disclosed in: (i) This Agreement, including its Exhibits and the Financial Statements (with Section l 2.l.5(b) above remaining unaffected); (ii) The Due Diligence Material. For the purposes of this Agreement, the “Due Diligence Material” means the documents and information of a commercial, financial, accounting, tax, legal, environmental and other nature concerning the Sold Shares, the Group Entities and the Business which were made available to the Purchaser and the Purchaser's Representatives during, or in connection with, the Due Diligence, including the statements made, and answers given, to the Purchaser and the Purchaser's Representatives during the question & answer process instituted with respect to the Due Diligence and during any other meetings, EU-DOCS\22159719 conference calls or correspondence with the Group Entities, the Entities' Representatives, the Seller and the Seller's Representatives, including in the course of the negotiation of this Agreement; in each case as far as uploaded to the electronic data room operated by Intralinks or an Affiliate thereof for the purposes of the Due Diligence; or.

Exclusion of Sellers’ Liability. In no event Seller shall the Seller not be liable for any Breach, and the Purchaser shall not be entitled to bring any claim under or in connection with this AgreementTax Payment Claim if and to the extent: 3.1 the relevant Tax could have been avoided by offsetting Tax losses, if and to the extent such losses have originated from any Tax assessment period or portion thereof ending prior to, or on, the Effective Date and such Tax losses (i) were actually utilized in any Tax assessment period or portion thereof beginning after the Effective Date, or (ii) could have actually been carried back to a Seller's Period under applicable Tax law by exercising an election right but have not been carried back due to the relevant Target Company's decision not to exercise such an election right, other than with respect to any such Tax losses that have been taken into account as Cash or in the calculation of Indebtedness or the Working Capital, irrespective of whether they are identified or described as Tax losses; ▇▇▇▇▇▇ | Tax ScheduleExhibit 14 to SPA 3.2 the amount of the relevant Tax has or, if reasonable efforts had been applied, could have been recovered from a third party or under an insurance policy. This Section 3.2 shall not apply if and to the extent (i) the amount of the relevant Tax has, despite reasonable efforts having been applied, not been recovered within six months after payment was requested from the relevant third party or insurer for the first time, and (ii) the relevant claim has been validly assigned to Seller. Further this Section 3.2 shall not apply to claims against employees of any Target Company if and to the extent it can be reasonably assumed that (y) on the basis of past practice, such claim would not have been raised and enforced prior to the Closing Date for sound business reasons or (z) such claim against the employee does not have a material face value; 3.3 the relevant Tax results from or is increased by (i) any change in the accounting and taxation principles or practices of the Target Companies (including methods of submitting Tax Returns) introduced after the Closing, except where such change is (x) made in order to comply with mandatory legal requirements or (y) made with Seller's explicit written consent, or (ii) any transaction or action (including the change in the exercise of any Tax election right, the termination of any Tax consolidation scheme, the approval or implementation of any reorganization measure or the sale of any asset) taken by Purchaser, any of its Affiliates or any of the Target Companies after the Closing, except where such transaction or action is (x) required to comply with mandatory law or (y) made with Seller's explicit written consent; provided that this Section 3.3 (i) shall only apply to the extent that such change, transaction or action has, by operation of applicable Tax laws (which will not include a decision by a Tax authority to audit a Seller Period because of a position taken on or the filing of a Tax Return of any Target Company with respect to a Tax assessment period (or portion thereof) beginning after the Effective Date), an effect on a Seller's Period, Seller's Period Event or the relevant Tax and (ii) for the avoidance of doubt, a partial exclusion is possible): shall not apply to any action taken with respect to any transfer pricing documentation, policies or procedures of any Target Company which by operation of law take effect solely for any periods after the Effective Date (a) Either the Purchaser or the Purchaser's Representatives, or (following the Closing Date) the Group Entities, their respective representatives or excluding such actions that relate to any successor to all or part of their business have caused or participated in causing (verursacht oder mitverursacht) any Losses, except where these Losses were caused by legally mandatory actions, or have aggravated such Breach or any Losses resulting therefrom or failed to mitigate Losses pursuant to Section 254 German Civil Code (BGBCarve-Out Measure); (b) The matter underlying the Breach has been taken into account in the Financial Statements, as a write-off (Abschreibung), value adjustment (Wertberichtigung), liability (Verbindlichkeit) or provision (Rückstellung), including general adjustments or provisions made for 3.4 the relevant risk category (e.g., Pauschalwertberichtigungen, Pau­ schalriickstellungen), Tax results from or otherwise; (c) The Purchaser or any of the Group Entities, or any successor to all or parts of their business has received or has a respective claim for repayment, reimbursement or indemnification against a third party (other than any of the Group Entities), including under any insurance policy in force until the Closing Date, or would have had such claim if the insurance coverage in force at the Closing Date had been maintained after the Closing Date; (d) The matter underlying the Breach was known is increased by the Purchaser Tax accounting treatment of any asset or any of the Purchaser's Representatives on the Signing Date, provided that the Purchaser shall in any event be deemed to have knowledge of all matters liability which were Fairly Disclosed in: (i) This Agreement, including its Exhibits and the Financial Statements (with Section l 2.l.5(b) above remaining unaffected); (ii) The Due Diligence Material. For the purposes of this Agreement, the “Due Diligence Material” means the documents and information of a commercial, financial, accounting, tax, legal, environmental and other nature concerning the Sold Shares, the Group Entities and the Business which were made available to the Purchaser and the Purchaser's Representatives during, or in connection with, the Due Diligence, including the statements made, and answers given, to the Purchaser and the Purchaser's Representatives during the question & answer process instituted with respect to the Due Diligence and during any other meetings, EU-DOCS\22159719 conference calls or correspondence with the Group Entities, the Entities' Representatives, the Seller and the Seller's Representatives, including is transferred in the course of the negotiation Carve-Out Measures to any Target Company, including the receipt of a negative purchase price or a funding of any liability, a step-down of assets or a step-down of liabilities, e.g., pursuant to Section 5 (7) German Income Tax Act (EStG); 3.5 the relevant Tax results from or is increased by the passing of, or any change in, any law, statute, ordinance, rule, regulation or in the published practice of any Tax Authority, taking effect or occurring after the Signing Date or, with respect to Taxes ▇▇▇▇▇▇ | Tax ScheduleExhibit 14 to SPA that directly result of any of the Carve-Out Measures, the relevant point in time at which the Carve-Out Measure is effected; 3.6 the relevant Tax results from or is increased by the cessation of or any major change in, in each case, after the Closing Date, the trade or business carried on by any Target Company as at the Closing Date; provided that this Section 3.6 shall only apply to the extent that such cessation or major change has, by operation of applicable Tax laws (which will not include a decision by a Tax authority to audit a Seller Period because of a position taken on or the filing of a Tax Return of any Target Company with respect to a Tax assessment period (or portion thereof) beginning after the Effective Date, an effect on a Seller's Period, Seller's Period Event or the relevant Tax; 3.7 Purchaser has failed to comply with any of its obligations pursuant to this Tax Schedule, unless and to the extent Seller's ability to avoid or mitigate the relevant Tax was not materially prejudiced by such non-compliance; or 3.8 the relevant Tax is to be borne by Purchaser pursuant to Section 6.6 of this Agreement; Agreement (VAT Clause), Section 18.11 of this Agreement (Minority Interest in each case as far as uploaded to the electronic data room operated by Intralinks Real Estate Partnerships) or an Affiliate thereof for the purposes Section 33.1 of the Due Diligence; orthis Agreement (Fees and Transfer Taxes).