Common use of Indemnification Limitations Clause in Contracts

Indemnification Limitations. (a) Subject to the other provisions of this Article VII, each Indemnified Person shall act in good faith, and will make the same decisions in the use of personnel and the incurring of expenses as it would make if it were engaged and acting entirely at its own cost and for its own account regarding the conduct of any proceedings or the taking of any action for which indemnification may be sought. (b) Each Indemnified Person shall use its commercially reasonable efforts to mitigate any Loss that is subject to indemnification pursuant to the provisions of Section 7.1. In the event an Indemnified Person fails to so mitigate a Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts. (c) Upon making any indemnification payment in respect of a Third-Party Claim, the Indemnifying Person will, to the extent of such payment, be subrogated to all rights of the Indemnified Person against the relevant third party in respect of the Loss to which the payment relates; provided, however, that until the Indemnified Person recovers full payment for such Loss, any and all claims of the Indemnifying Person against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the Indemnified Person’s rights against such third party. Without limiting the generality of any other provision of this Agreement, each such Indemnified Person and Indemnifying Person will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.

Indemnification Limitations. (a) Subject to the other provisions of this Article VIIV, each Indemnified Person shall act in good faith, and will make the same decisions in the use of personnel and the incurring of expenses as it would make if it were engaged and acting entirely at its own cost and for its own account regarding the conduct of any proceedings or the taking of any action for which indemnification may be sought. (b) Each Indemnified Person shall use its commercially reasonable efforts to mitigate any Loss that is subject to indemnification pursuant to the provisions of Section 7.15.1 or Section 5.2. In the event an Indemnified Person fails to so mitigate a Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts. (c) Upon making any indemnification payment in respect of a Third-Party Claim, the Indemnifying Person will, to the extent of such payment, be subrogated to all rights of the Indemnified Person against the relevant third party in respect of the Loss to which the payment relates; provided, however, that until the Indemnified Person recovers full payment for such Loss, any and all claims of the Indemnifying Person against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the Indemnified Person’s rights against such third party. Without limiting the generality of any other provision of this Agreement, each such Indemnified Person and Indemnifying Person will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rights.

Indemnification Limitations. (ai) Subject Neither party hereto will be liable to the other provisions hereunder or with respect to this Agreement for any punitive or consequential or incidental damages (including loss of revenue or income, business interruption, cost of capital or loss of business reputation or opportunity) relating to any claim for which either such party may be entitled to recover under this Agreement (other than indemnification, whether pursuant to this Article VII12 or otherwise at law or equity, each Indemnified Person shall act of amounts paid or payable to third parties or any Governmental Body in good faith, and will make the same decisions in the use of personnel and the incurring of expenses as it would make if it were engaged and acting entirely at its own cost and for its own account regarding the conduct respect of any proceedings third party or Governmental Body claim). No claim for the recovery of losses based upon breach of any representation, warranty, covenant or agreement may be asserted by Seller Indemnified Parties or Buyer Indemnified Parties against the Buyer or the taking Seller, as the case may be, if any of any action for which indemnification the Seller Indemnified Parties or the Buyer Indemnified Parties, as the case may be soughtbe, had Knowledge of such breach on or before the Closing Date. (bii) Each Indemnified Person Buyer acknowledges and agrees that, (i) other than the representations and warranties of Seller specifically contained in Article 3 of this Agreement, none of Seller, any of its Affiliates or any other person has made any representation or warranty either expressed or implied (A) with respect to the Businesses, the Purchased Assets, the Assumed Liabilities or the transactions contemplated hereby or (B) as to the accuracy or completeness of any information regarding the Business, the Purchased Assets, the Assumed Liabilities or the transactions contemplated hereby furnished or made available to Buyer and its representatives and (ii) Buyer shall use its commercially reasonable efforts to mitigate any Loss that is subject have no claim or right to indemnification pursuant to the provisions this Article 12 and none of Section 7.1. In the event an Indemnified Person fails to so mitigate a LossSeller, the Indemnifying Person any of its Affiliates or any other person shall have no or be subject to any liability for to Buyer or any portion other person with respect to any information, documents or materials furnished by Seller, any of such Loss that reasonably could have been avoided had the Indemnified Person its Affiliates or any of their respective officers, directors, employees, agents or advisors to Seller, any information, documents or material made such efforts. (c) Upon making available to Seller and its representatives in certain “data rooms”, management presentations or any indemnification payment other form in respect of a Third-Party Claim, the Indemnifying Person will, to the extent of such payment, be subrogated to all rights expectation of the Indemnified Person against the relevant third party in respect of the Loss to which the payment relates; provided, however, that until the Indemnified Person recovers full payment for such Loss, any and all claims of the Indemnifying Person against any such third party on account of said payment are hereby made expressly subordinated and subjected in right of payment to the Indemnified Person’s rights against such third partytransactions contemplated hereby. Without limiting the generality of any the foregoing, Buyer acknowledges and agrees that, except for the representations and warranties contained in Article 3 and the express representations and warranties made by Seller in the other provision of this AgreementAcquisition Agreements, each such Indemnified Person and Indemnifying Person will duly execute upon request all instruments reasonably necessary to evidence and perfect the above-described subrogation and subordination rightsSELLER DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES RELATING TO THE MAINTENANCE, REPAIR, CONDITION, DESIGN, PERFORMANCE OR MARKETABILITY OF ANY ASSET, INCLUDING MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SELLER ACKNOWLEDGES AND AGREES THAT IT SHALL OBTAIN RIGHTS IN THE TRANSFERRED ASSETS IN THEIR PRESENT CONDITION AND STATE OF REPAIR, “AS IS” AND “WHERE IS”.