Common use of Limitation of Liability For Consequential Damages Clause in Contracts

Limitation of Liability For Consequential Damages. Except as expressly provided in this Section 9.05, neither Party (including their Subsidiaries, Affiliates, shareholders, officers, contractors, directors, employees and agents) shall be liable for any special, indirect, incidental or consequential damages of any kind, including without limitation, damages arising from lost business, lost savings, lost data or lost profits, regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if such party has been advised of the possibility of such damages. The foregoing exclusion of liability shall not apply where such damages arise out of or in connection with (i) an allegation that any NETGEAR Product or Improvement thereto infringes or violates any Intellectual Property Right of a third party, to the extent that such damages are payable to a third party, or (ii) disclosure of any Confidential Information, provided that: (a) the Indemnitee permits the Indemnitor to have complete carriage and control of the defense of the claim; (b) the Indemnitee cooperates fully with the Indemnitor in all aspects of the defense against the claim; (c) such damages are either actual damages finally awarded by a court of competent jurisdiction, or constitute a settlement approved in writing by the Indemnitor; (d) the Indemnitor shall not be liable for any portion of such damages arising from willful infringement by any party or constituting treble damages (except that an Indemnitor shall be liable for damages resulting from its own willful infringement); (e) the Indemnitee promptly pays all damages other than those for which the Indemnitor is responsible in accordance with the provisions of this Article IX; and (f) where the claim relates to a NETGEAR Product or Improvement as described at (i) above, provided additionally that: 14 15 (1) the Indemnitee modifies the NETGEAR Product or Improvement thereto within a reasonable time so as to avoid the allegation of infringement or violation of Intellectual Property Rights, if requested to do so by the Indemnitor; and

Limitation of Liability For Consequential Damages. Except as expressly provided in this Section 9.059.06, neither Party (including their Subsidiaries, Affiliates, shareholders, officers, contractors, directors, employees and agents) shall be liable for any special, indirect, incidental or consequential damages of any kind, including without limitation, damages arising from lost business, lost savings, lost data or lost profits, regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if such party has been advised of the possibility of such damages. The foregoing exclusion of liability shall not apply where such damages arise out of or in connection with (i) an allegation that any NETGEAR Licensed Product or Improvement thereto infringes or violates any Intellectual Property Right of a third party, to the extent that such damages are payable to a third party, or (ii) disclosure of any an Confidential Information, provided that: (a) the Indemnitee permits the Indemnitor to have complete carriage and control of the defense of the claim; (b) the Indemnitee cooperates fully with the Indemnitor in all aspects of the defense against the claim;: (c) such damages are either actual damages finally awarded by a court of competent jurisdiction, or constitute a settlement approved in writing by the Indemnitor; (d) the Indemnitor shall not be liable for any portion of such damages arising from willful infringement by any party or constituting treble damages (except that an Indemnitor shall be liable for damages resulting from its own willful infringement); (e) the Indemnitee promptly pays all damages other than those for which the Indemnitor is responsible in accordance with the provisions of this Article IX; and (f) where the claim relates to a NETGEAR Licensed Product or Improvement as described at (i) above, provided additionally that: 14 15 (1) the Indemnitee modifies the NETGEAR Licensed Product or Improvement thereto within a reasonable time so as to avoid the allegation of infringement or violation of Intellectual Property Rights, if requested to do so by the Indemnitor; and (2) the Licensed Product or Improvement thereto has not been modified by any party after the Effective Date (A) so as to be a combination of a Licensed Product or Improvement thereto, with other hardware or software not constituting a Licensed Product or Improvement thereto, where such infringement or violation would not have arisen from the use of such Licensed Product or Improvement thereto or portion thereof standing alone; (B) in such a manner that the claim of infringement or violation of Intellectual Property Rights would not have occurred but for such modification, or (C) to be used in a manner or for a purpose not contemplated as of the Effective Date.