Common use of Indemnification Limitations on Liability Clause in Contracts

Indemnification Limitations on Liability. (a) Seller hereby agrees to indemnify, defend and hold Purchaser, its officers, directors, employees, affiliates, managers, members, representatives and agents (and their respective officers, directors, employees, affiliates, managers, members, stockholders and agents) harmless from and in respect of any and all losses, damages, claims, liabilities, obligations, suits, actions, fees, taxes, penalties, costs and expenses of any nature whatsoever (including, without limitation, costs of investigation, travel expenses, value of time expended by personnel and fees and expenses of attorneys, accountants, consultants, expert witnesses and other witnesses) (collectively, “Losses”), that any of them may incur arising out of, in connection with, relating to or caused by any breach of, (i) any representation or warranty made by or with respect to Seller contained in Section 4 of this Agreement, and (ii) any covenant, undertaking or other agreement of Seller contained in this Agreement. (b) Purchaser hereby agrees to indemnify, defend and hold Seller, its officers, directors, employees, affiliates, managers, members, representatives and agents (and their respective officers, directors, employees, affiliates, managers, members, stockholders and agents) harmless from and in respect of any and all Losses that any of them may incur arising out of, in connection with, relating to or caused by any breach of, (i) any representation or warranty made by or with respect to Purchaser contained in Section 5 of this Agreement, and (ii) any covenant, undertaking or other agreement of Purchaser contained in this Agreement. (c) NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT, SELLER AND PURCHASER AGREE THAT THE RECOVERY BY A PARTY OF ANY LOSS SUFFERED OR INCURRED BY IT AS A RESULT OF ANY BREACH OR NONFULFILLMENT BY A PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS OR OTHER OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT IN THE CASE OF FRAUD, SHALL NOT INCLUDE OR APPLY TO, NOR SHALL ANY PARTY BE ENTITLED TO RECOVER FROM ANY OTHER PARTY, ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, REMOTE, SPECULATIVE OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ON ACCOUNT OF LOST PROFITS OR OPPORTUNITIES OF BUSINESS INTERRUPTION); PROVIDED THAT ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, REMOTE, SPECULATIVE OR PUNITIVE DAMAGES RECOVERED BY A THIRD PARTY FROM A PARTY ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 7 SHALL BE INCLUDED IN THE LOSSES RECOVERABLE BY SUCH INDEMNIFIED PARTY HEREUNDER.

Indemnification Limitations on Liability. (a) Seller hereby agrees to FUSA shall not be responsible in any way for any misrepresentation, negligent act or omission or willful misconduct of Company, its affiliates, officers, directors, agents, or employees in connection with the entry into or performance of any obligation of Company under this Agreement. Further, Company shall indemnify, defend and hold Purchaser, its officers, directors, employees, affiliates, managers, members, representatives and agents (and their respective officers, directors, employees, affiliates, managers, members, stockholders and agents) FUSA harmless from and in respect of against all third-party claims, actions, suits or other proceedings, and any and all losses, judgments, damages, claims, liabilities, obligations, suits, actions, fees, taxes, penalties, expenses or other costs and expenses of any nature whatsoever (including, without limitation, costs of investigation, travel expenses, value of time expended by personnel and including reasonable counsel fees and expenses of attorneys, accountants, consultants, expert witnesses and other witnesses) (collectively, “Losses”disbursements), that arising from or in any of them may incur arising out of, in connection with, way relating to or caused by any breach of, to: (i) any actual or alleged violation or inaccuracy of any representation or warranty made by or with respect to Seller of Company contained in Section 4 of this Agreement, and 8 above; (ii) any covenantactual or alleged infringement of any trademark, undertaking copyright, trade name relating to the use by FUSA of the Company Marks as contemplated by this Agreement; and/or (iii) any negligent act or other agreement omission or willful misconduct of Seller contained Company or its directors, officers, employees, agents or assigns in connection with the entry into or performance of this Agreement. (b) Purchaser hereby agrees to Company shall not be responsible in any way for any misrepresentation, negligent act or omission or willful misconduct of FUSA, its affiliates, officers, directors, agents, or employees in connection with the entry into or performance of any obligation of FUSA under this Agreement. Further, FUSA shall indemnify, defend and hold Seller, its officers, directors, employees, affiliates, managers, members, representatives and agents (and their respective officers, directors, employees, affiliates, managers, members, stockholders and agents) Company harmless from and in respect of against all third-party claims, actions, suits or other proceedings, and any and all Losses that losses, judgments, damages, expenses or other costs (including reasonable counsel fees and disbursements), arising from or in any of them may incur arising out of, in connection with, way relating to or caused by any breach of, to: (i) any actual or alleged violation or inaccuracy of any representation or warranty made by or with respect to Purchaser of FUSA contained in Section 5 of this Agreement, and 8 above; (ii) any covenantactual or alleged infringement of any trademark, undertaking copyright, trade name or other agreement proprietary ownership interest resulting from the use by FUSA of Purchaser contained any rights held or purported to be held by FUSA for the purpose of fulfilling its obligations pursuant to this Agreement; (iii) any act or omission of FUSA in connection with the issuance of Product(s) and/or the administration of Accounts (iv) the content of any FUSA Material that was provided to the Company by FUSA for display through any Impressions delivered on behalf of FUSA under this Agreement; and (v) any negligent act or omission or willful misconduct of FUSA or its directors, officers, employees, agents or assigns in connection with the entry into or performance of this Agreement. (c) NOTWITHSTANDING ANYTHING CONTAINED Each Party's obligations to provide indemnification under this Agreement shall be contingent upon the Party seeking indemnity: (i) providing the indemnifying Party with prompt written notice of any claim for which indemnification is sought (provided, however, that the indemnifying party shall be relieved from its indemnification obligations, as a result of failure to render notice, only to the extent that it is prejudiced by the failure to receive prompt notice), and (ii) cooperating fully with the indemnifying Party (at the indemnifying Party's expense). Each Party's obligations under this Section 9 shall survive expiration or termination of this Agreement. (d) If any claim, action, suit or other proceeding covered under Section 9(a) or 9(b) of this Agreement ("Claim") is asserted against a Party entitled to indemnification under such Section 9(a) or 9(b) ("Indemnified Party"), then: (i) the Party obligated to indemnify ("Indemnifying Party") shall assume, at its cost and expense, the sole defense of such Claim, provided that an Indemnified Party may at its option and expense select and be represented by separate counsel; (ii) the Indemnifying Party shall maintain control of such defense, provided that the Indemnifying Party may settle a claim as to the Indemnified Party only with the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld; and (iii) the Indemnified Party may, at its option and expense, participate in such defense. (e) EXCEPT WITH RESPECT TO EACH PARTY'S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 9 HEREIN, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE CONTRARY OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE LIABILITY OF THE PARTIES FOR DAMAGES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER PROVISION LEGAL THEORY, IS LIMITED TO, AND WILL NOT EXCEED, THE FOLLOWING APPLICABLE AMOUNTS: FUSA'S LIABILITY SHALL NOT EXCEED THE GREATER OF (A) TOTAL AMOUNTS DUE AND UNPAID BY FUSA TO COMPANY HEREUNDER; OR (B) TOTAL AMOUNTS TO BE PAID BY FUSA TO COMPANY DURING THE CONTRACT YEAR IN WHICH THE EVENT GIVING RISE TO THE DAMAGE OCCURS (OR IF PRIOR TO THE COMMENCEMENT DATE, THE FIRST CONTRACT YEAR); AND COMPANY'S LIABILITY SHALL NOT EXCEED THE LESSER OF: (A) AMOUNTS RECEIVED BY COMPANY FROM FUSA DURING THE CONTRACT YEAR IN WHICH THE EVENT GIVING RISE TO THE DAMAGE OCCURS (OR IF PRIOR TO THE COMMENCEMENT DATE, THE FIRST CONTRACT YEAR); OR (B) TOTAL AMOUNTS TO BE PAID BY FUSA TO COMPANY DURING THE CONTRACT YEAR IN WHICH THE EVENT GIVING RISE TO THE DAMAGE OCCURS (OR IF PRIOR TO THE COMMENCEMENT DATE, THE FIRST CONTRACT YEAR). HOWEVER, THE FOREGOING LIMITATION OF LIABILITY SHALL NOT PRECLUDE EITHER PARTY FROM SEEKING EQUITABLE RELIEF IN THE EVENT OF DEFAULT BY THE OTHER PARTY HEREUNDER UNDER THE TERMS OF THIS AGREEMENT. (f) The Parties agrees that any obligation or liability arising under or relating to this Agreement shall be without recourse to any partner of either Party, SELLER AND PURCHASER AGREE THAT THE RECOVERY BY A PARTY OF ANY LOSS SUFFERED OR INCURRED BY IT AS A RESULT OF ANY BREACH OR NONFULFILLMENT BY A PARTY OF ANY OF ITS REPRESENTATIONSany controlling person thereof and any successor to any such partner or person, WARRANTIESand no such partner, COVENANTS, AGREEMENTS OR OTHER OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT IN THE CASE OF FRAUD, SHALL NOT INCLUDE OR APPLY TO, NOR SHALL ANY PARTY BE ENTITLED TO RECOVER FROM ANY OTHER PARTY, ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, REMOTE, SPECULATIVE OR PUNITIVE DAMAGES (INCLUDING ANY DAMAGES ON ACCOUNT OF LOST PROFITS OR OPPORTUNITIES OF BUSINESS INTERRUPTION); PROVIDED THAT ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, REMOTE, SPECULATIVE OR PUNITIVE DAMAGES RECOVERED BY A THIRD PARTY FROM A PARTY ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 7 SHALL BE INCLUDED IN THE LOSSES RECOVERABLE BY SUCH INDEMNIFIED PARTY HEREUNDERcontrolling person or successor shall have any liability in such capacity for the obligations of a Party to this Agreement.

Indemnification Limitations on Liability. (a) Seller hereby agrees to indemnifyTo the fullest extent permitted by law, defend a party (an "Indemnifying Party") shall indemnify the other party, and hold Purchaser, its such party's officers, directors, employees, affiliatesagents and controlling Persons (each, managersan AIndemnified Person@), memberson request by the Indemnified Person, representatives and agents (and their respective officers, directors, employees, affiliates, managers, members, stockholders and agents) hold each of them harmless from and in respect of any and against all losses, damages, claimscosts, liabilities, obligations, suits, actions, damages and expenses (including reasonable costs of suit and attorney's fees, taxes, penalties, costs and expenses of any nature whatsoever (including, without limitation, costs of investigation, travel expenses, value of time expended by personnel and fees and expenses of attorneys, accountants, consultants, expert witnesses and other witnessesbut subject to Section 1312(c)) (collectively, “Losses”), that any of them may incur arising out of, in connection with, relating to or caused by any breach of, as a result of (i) the Indemnifying Party's failure to perform any of its obligations hereunder; (ii) a breach of any representation or warranty made by or of the Indemnifying Party; (iii) with respect to Seller contained Enron as Indemnifying Party, a failure of Enron the Indemnifying Party to perform any obligation arising under any Executed Transaction; (iv) with respect to Sponsor as Indemnifying Party, any Participant Disputes (as such term is defined in Section 4 10(a)(5)) and any Claim against Enron in connection with a Proposed Transaction that is not an Executed Transaction pursuant to the terms of this Agreement, and (iiv) any covenantParticipant Disputes that are caused by faulty or incorrect data or information transmitted to the Indemnified Person and upon which the Indemnified Person relied; and (vi) any Participant Dispute resulting from a default by Sponsor of any provision of this Agreementfailure or malfunction of the Indemnifying Person's Platform that was not caused by a failure or malfunction of the Indemnifying Person's Platform; INCLUDING ANY MATTER ARISING OUT OF OR RESULTING FROM THE INDEMNIFIED PERSON'S OWN SIMPLE, undertaking PARTIAL, OR CONCURRENT NEGLIGENCE, except for any such loss, cost, liability, damage or other agreement expense primarily attributable to the Indemnified Person's breach of Seller contained in this Agreement, reckless disregard, gross negligence, willful misconduct or fraud. If an Indemnified Person becomes involved in any action, proceeding or investigation with respect to which indemnity may be available under this Section 1312, the Indemnifying Party may reimburse the Indemnified Person for its reasonable legal and other expenses (including the cost of investigation and preparation) as they are incurred; provided, that the Indemnified Person shall promptly repay to the Indemnifying Party the amount of any such expense paid if it is ultimately determined that the Indemnified Person was not entitled to indemnification hereunder. Any amounts payable in respect of indemnification hereunder shall be recoverable only from the assets of the Indemnifying Party. (b) Purchaser hereby agrees to indemnify, defend and hold Seller, its officers, directors, employees, affiliates, managers, members, representatives and agents (and their respective officers, directors, employees, affiliates, managers, members, stockholders and agents) harmless from and in respect Promptly after re­ceipt by an Indemnified Person of notice of any and all Losses that claim or the commencement of any of them may incur arising out of, in connection with, relating to or caused by any breach of, (i) any representation or warranty made by or ac­tion with respect to Purchaser contained which indemnity may be available under this Section 1312, the Indemnified Person shall, if a claim in respect thereof is to be made against the Indemnifying Party under this Section 5 1312, notify the Indemnifying Party in writing of the claim or the commencement of the action; provided, that the failure to notify the Indemnifying Party shall not relieve it from any liability which it may have to an Indemni­fied Person under this AgreementSection 1312 except to the extent that the Indemnifying Party is prejudiced thereby. If any such claim or action shall be brought against an Indemnified Person, and (ii) it shall notify the Indemnifying Party thereof, the Indemnifying Party shall be entitled to participate therein, and, to the extent that it wishes, to assume the defense thereof with counsel reasonably satisfactory to the Indemnified Person. After notice from the Indemnifying Party to the Indemnified Person of its election to assume the defense of such claim or action, the Indemnifying Party shall not be liable to the Indemnified Person under this Section for any covenant, undertaking legal or other agreement expenses subsequently incurred by the Indemnified Person in connection with the defense thereof; provided, that all of Purchaser contained the Indemnified Persons shall have the right to employ one counsel to represent them if, in this Agreementthe opinion of counsel to the Indemnified Persons (which, in the case of Investor, may be its internal counsel), there are available to them defenses not available to the Indemnifying Party and in that event the fees and expenses of such sepa­rate counsel shall be paid by the Indemnifying Party. In no event shall the Indemnifying Party be required to indemnify an Indemnified Person with respect to amounts paid in settlement of a claim unless such claim was settled with the consent of the Indemnifying Party. (c) NOTWITHSTANDING ANYTHING CONTAINED Except as expressly provided in this Agreement, neither party makes any representation or warranty hereunder, express or implied. (d) IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES BE LIABLE TO THE CONTRARY IN OTHER PARTY OR ITS AFFILIATES FOR ANY OTHER PROVISION OF THIS AGREEMENTSPECIAL, SELLER AND PURCHASER AGREE THAT THE RECOVERY BY A PARTY OF ANY LOSS SUFFERED OR INCURRED BY IT AS A RESULT OF ANY BREACH OR NONFULFILLMENT BY A PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS, AGREEMENTS OR OTHER OBLIGATIONS UNDER THIS AGREEMENT, EXCEPT IN THE CASE OF FRAUD, SHALL NOT INCLUDE OR APPLY TO, NOR SHALL ANY PARTY BE ENTITLED TO RECOVER FROM ANY OTHER PARTY, ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, REMOTE, SPECULATIVE PUNITIVE OR PUNITIVE CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST REVENUES, PROFITS, BUSINESS OR OTHER BENEFITS) INCURRED IN CONNECTION WITH THE SERVICES TO BE PROVIDED HEREUNDER, THE OBLIGATIONS INCURRED HEREUNDER, IN RESPECT OF ANY CLAIM FOR BREACH OF CONTRACT, INDEMNITY OR ANY OTHER THEORY OF LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, OR IN RESPECT OF ANY ACT, OMISSION OR EVENT OCCURRING IN CONNECTION HEREWITH, AND EACH PARTY WHO IS PRECLUDED FROM MAKING ANY SUCH CLAIM FOR SUCH DAMAGES ON ACCOUNT OF LOST PROFITS OR OPPORTUNITIES OF BUSINESS INTERRUPTION); PROVIDED THAT HEREBY WAIVES, RELEASES AND AGREES NOT TO ▇▇▇ UPON ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, REMOTE, SPECULATIVE OR PUNITIVE CLAIM FOR SUCH DAMAGES RECOVERED BY A THIRD PARTY FROM A PARTY ENTITLED TO INDEMNIFICATION UNDER THIS SECTION 7 SHALL BE INCLUDED IN THE LOSSES RECOVERABLE BY SUCH INDEMNIFIED PARTY HEREUNDER.