Common use of Limitations of Liability Indemnification Clause in Contracts

Limitations of Liability Indemnification. (a) NANOLUMENS’ EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS AS TO THE DISPLAY PRODUCT OR SERVICES DELIVERED OR FOR DELAYED DELIVERY OR NON- DELIVERY THEREOF, WHETHER ARISING OUT OF CONTRACT, WARRANTY, NEGLIGENCE, NANOLUMENS’S FAILURE TO COMPLY WITH LAWS AND REGULATIONS, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE PRICE OF THE DISPLAY PRODUCT OR SERVICE IN RELATION TO WHICH THE CLAIM IS MADE OR, AT NANOLUMENS’S OPTION, THE REPLACEMENT THEREOF. (b) IN NO EVENT SHALL NANOLUMENS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), WHETHEROR NOT CAUSED OR RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF NANOLUMENS, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDYOF ITS ESSENTIAL PURPOSE. (c) THE REMEDIES SPECIFIED IN THE NANOLUMENS WARRANTY SHALL CONSTITUTE BUYER'S SOLE AND EXCLUSIVE REMEDY AND NANOLUMENS’ SOLE AND EXCLUSIVE LIABILITY FOR NANOLUMENS’ BREACH OF THE NANOLUMENS WARRANTY. (d) EXCEPT FOR THE NANOLUMENS WARRANTY, NANOLUMENS MAKES NOR INTENDS TO MAKE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND IT EXPRESSLY EXCLUDES AND DISCLAIMS ANY AND ALL WARRANTIES WHICH MAY BE IMPLIED OR OTHERWISE CREATED BY OPERATION OF LAW INCLUDING ALL IMPLIED WARRANTIES OF UNINTERRUPTED OR ERROR-FREE USE OR OPERATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. (e) ▇▇▇▇▇▇▇▇▇▇ will defend, indemnify, and hold Buyer harmless from and against third party claims, liabilities, obligations, judgments, and causes of actions (“Third Party Claims”) and associated costs and expenses (including reasonable attorneys' fees) to the extent arising out of an allegation that the Display Products infringe a third party’s U.S. patent, trademark, or copyright. Nanolumens' indemnification obligation will not apply to the extent that the Third-Party Claim is based upon: (i) the use of any item of Display Products in combination with any product, service or activity (or any part thereof) not furnished, performed or recommended in writing by Nanolumens; or (ii) the use of Display Products in violation of this Agreement; or (iii) any content used or displayed through the Display Products.

Limitations of Liability Indemnification. (a) NANOLUMENS’ EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY AND ALL CLAIMS AS TO THE DISPLAY PRODUCT OR SERVICES DELIVERED OR FOR DELAYED DELIVERY OR NON- DELIVERY THEREOFSome jurisdictions do not allow the disclaimer of implied terms in contracts with consumers, WHETHER ARISING OUT OF CONTRACTand, WARRANTYas a result, NEGLIGENCE, NANOLUMENS’S FAILURE TO COMPLY WITH LAWS AND REGULATIONS, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE PRICE OF THE DISPLAY PRODUCT OR SERVICE IN RELATION TO WHICH THE CLAIM IS MADE OR, AT NANOLUMENS’S OPTION, THE REPLACEMENT THEREOF. (b) the contents of this section may not apply to you. IN NO EVENT SHALL NANOLUMENS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), WHETHEROR NOT CAUSED OR RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF NANOLUMENS, AND WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDYOF ITS ESSENTIAL PURPOSE. (c) THE REMEDIES SPECIFIED IN THE NANOLUMENS WARRANTY SHALL CONSTITUTE BUYER'S SOLE AND EXCLUSIVE REMEDY AND NANOLUMENS’ SOLE AND EXCLUSIVE LIABILITY FOR NANOLUMENS’ BREACH OF THE NANOLUMENS WARRANTY. (d) EXCEPT FOR THE NANOLUMENS WARRANTY, NANOLUMENS MAKES NOR INTENDS TO MAKE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND IT EXPRESSLY EXCLUDES AND DISCLAIMS ANY AND ALL WARRANTIES WHICH MAY BE IMPLIED OR OTHERWISE CREATED BY OPERATION OF LAW INCLUDING ALL IMPLIED WARRANTIES OF UNINTERRUPTED OR ERROR-FREE USE OR OPERATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. (e) ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ will PARTIES OR THEIR RESPECTIVE SUPPLIERS, LICENSORS, OR DISTRIBUTORS IN HOSTING, OPERATING, OR DELIVERING THE SITE OR SERVICES BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST PROFITS, ARISING (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) OUT OF OR IN CONNECTION WITH THE SITE (INCLUDING ITS MODIFICATION OR TERMINATION), YOUR MEMBERSHIP (INCLUDING ITS TERMINATION OR SUSPENSION) OR THIS AGREEMENT, WHETHER OR NOT ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ MAY HAVE BEEN ADVISED THAT ANY SUCH DAMAGES MIGHT OR COULD OCCUR AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. IN ADDITION, YOU AGREE THAT IN NO EVENT WILL ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ CUMULATIVE LIABILITY TO YOU FOR DIRECT DAMAGES OF ANY KIND OR NATURE EXCEED FIVE TIMES THE MOST RECENT MONTHLY FEE THAT YOU PAID FOR A PAID SERVICE, IF ANY, OR U.S. ONE HUNDRED DOLLARS (U.S. $100.00), WHICHEVER IS GREATER. You agree to defend, indemnifyindemnify and hold harmless the ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇.▇▇▇ Parties for all damages, losses, liabilities, claims, and hold Buyer harmless from costs (including, but not limited to, reasonable attorneys' fees and against costs) related to all third party claims, liabilities, obligations, judgmentscharges, and causes of actions (“Third Party Claims”) and associated costs and expenses (including reasonable attorneys' fees) to the extent investigations, arising out of an allegation that the Display Products infringe a third party’s U.S. patentfrom, trademarkrelating to, or copyright. Nanolumens' indemnification obligation will not apply to the extent that the Third-Party Claim is based upon: caused by (ia) the your use of any item of Display Products in combination the Site and Services, (b) your failure to comply with any product, service or activity (or any part thereof) not furnished, performed or recommended in writing by Nanolumens; or (ii) the use of Display Products in violation of this Agreement; or , including, without limitation, your submission of Content that violates third party rights or applicable laws, and (iiic) any content used or displayed through the Display Productsyour Membership.

Limitations of Liability Indemnification. (a) NANOLUMENS’ EXCLUSIVE LIABILITY AND BUYER’S EXCLUSIVE REMEDY A. BANK shall have no liability for any negligent design or manufacture of any Equipment used in connection with the Service. IN NO EVENT WILL BANK OR ITS AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES BE LIABLE FOR LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY AND ALL CLAIMS AS PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES TO MERCHANT OR TO ANY THIRD PARTY IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR ANY OF THE DISPLAY PRODUCT OR SERVICES DELIVERED OR FOR DELAYED DELIVERY OR NON- DELIVERY THEREOFTO BE PERFORMED BY BANK PURSUANT TO THIS AGREEMENT, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTYTORT, NEGLIGENCE, NANOLUMENS’S FAILURE TO COMPLY WITH LAWS AND REGULATIONS, STRICT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO THE PRICE REGARDLESS OF THE DISPLAY PRODUCT OR SERVICE IN RELATION TO WHICH THE CLAIM IS MADE OR, AT NANOLUMENS’S OPTION, THE REPLACEMENT THEREOF. (b) IN NO EVENT SHALL NANOLUMENS BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED SAVINGS), WHETHEROR NOT CAUSED OR RESULTING FROM THE NEGLIGENCE OR WILLFUL MISCONDUCT OF NANOLUMENS, WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT BANK OR ITS AGENTS, OFFICERS, DIRECTORS OR EMPLOYEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASEDDAMAGES, AND NOT WITHSTANDING NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDYOF REMEDY OF ITS ESSENTIAL PURPOSE. THE LIABILITY, IF ANY, OF BANK UNDER THIS AGREEMENT FOR ANY CLAIMS, COSTS, DAMAGES, LOSSES AND EXPENSES FOR WHICH IT IS OR MAY BE LEGALLY LIABLE, WHETHER ARISING IN NEGLIGENCE OR OTHER TORT, CONTRACT, OR OTHERWISE, WILL NOT EXCEED IN THE AGGREGATE THE AMOUNT OF FEES PAID BY MERCHANT, LESS INTERCHANGE AND ASSESSMENTS, OVER THE PREVIOUS TWELVE (12) MONTH PERIOD, CALCULATED FROM THE DATE THE LIABILITY ACCRUED. B. MERCHANT hereby expressly waives all claims against BANK for any loss, claim, demand, penalty, action, delay, cost or expense (including reasonable attorneys’ fees) of any kind unless MERCHANT provides written notice to BANK of the occurrence that gave rise to the alleged liability within fifteen (15) days after ▇▇▇▇▇▇▇▇ knew or should have known of the occurrence. In addition, BANK shall not be liable to MERCHANT or MERCHANT’S customers or any other person for any of the following: (a) any loss or liability resulting from the denial of credit to any person or MERCHANT’S retention of any Card or any attempt to do so; (b) any loss caused by a Transaction downgrade resulting from defective or faulty equipment (regardless if owned by BANK or MERCHANT); (c) THE REMEDIES SPECIFIED IN THE NANOLUMENS WARRANTY SHALL CONSTITUTE BUYER'S SOLE AND EXCLUSIVE REMEDY AND NANOLUMENS’ SOLE AND EXCLUSIVE LIABILITY FOR NANOLUMENS’ BREACH OF THE NANOLUMENS WARRANTY. the unavailability of Services caused by the termination of contracts with computer hardware vendors, processors or installers, whether terminated by BANK or any other person for any reason; or (d) EXCEPT FOR THE NANOLUMENS WARRANTY, NANOLUMENS MAKES NOR INTENDS TO MAKE NO OTHER WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, AND IT EXPRESSLY EXCLUDES AND DISCLAIMS ANY AND ALL WARRANTIES WHICH MAY BE IMPLIED OR OTHERWISE CREATED BY OPERATION OF LAW INCLUDING ALL IMPLIED WARRANTIES OF UNINTERRUPTED OR ERROR-FREE USE OR OPERATION, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSEinterruption or termination of any Services caused by any reason. C. MERCHANT will defend, indemnify and hold BANK and its officers, directors, members, shareholders, partners, employees,agents, subcontractors and representatives, as well as Payment Networks, harmless from and against any and all fines, penalties, claims, damages, expenses, liabilities or fees of any nature whatsoever, including attorneys’ fees (whether an attorney is an employee of BANK or BANK’s parent, subsidiary or affiliate or not) and costs (the “Damages”), asserted against or incurred by BANK, either directly or indirectly, arising out of, relating to or resulting from: (a) MERCHANT’S failure to comply with this Agreement; (b) any Cardholder sale paid for by BANK as may be made by anyone by way of defense, dispute, offset, counterclaim or affirmative action, or for any damages of or losses that BANK may incur as a result of MERCHANT’S breach of this Agreement; (c) a breach of the security of the system safeguarding Cardholder Information resulting in unauthorized access to Cardholder Information; (d) a breach of any representation, warranty or term of this Agreement, including, but not limited to, the data security provisions by MERCHANT, or any service provider, subcontractor or agent of MERCHANT; (e) ▇▇the inaction or omission of MERCHANT; (f) the negligence, gross negligence or willful misconduct of MERCHANT in the performance of its obligations under this Agreement, including, but not limited to, the data security provisions; (g) any dispute concerning the quality, condition or delivery of any merchandise or the quality of performance of any service provided by MERCHANT; (h) the fraud or dishonesty of MERCHANT or MERCHANT’S owners, principals, employees, agents, successors, or assigns; (i) any violation of Applicable Law and the Operating Rules; (j) the theft of or damage or destruction to any Equipment or the failure to comply with the Equipment’s user guide or manual; and (k) all third party claims arising from the foregoing, or any services provided hereunder. Notwithstanding the preceding, MERCHANT is not liable to BANK if Damages are caused by, by BANK’S gross negligence or willful misconduct. ▇▇▇▇▇▇▇▇ will defendpromptly reimburse BANK for any assessments, indemnifyfines, fees or penalties imposed by the Payment Networks in connection with this Agreement, including, without limitation, the data security provisions, and hold Buyer harmless MERCHANT authorizes BANK to deductany such sums directly from the Account or from amounts to be cleared and against third party claims, liabilities, obligations, judgments, and causes of actions (“Third Party Claims”) and associated costs and expenses (including reasonable attorneys' fees) to the extent arising out of an allegation that the Display Products infringe a third party’s U.S. patent, trademark, or copyright. Nanolumens' indemnification obligation will not apply to the extent that the Third-Party Claim is based upon: (i) the use of any item of Display Products in combination settled with any product, service or activity (or any part thereof) not furnished, performed or recommended in writing by Nanolumens; or (ii) the use of Display Products in violation of this Agreement; or (iii) any content used or displayed through the Display ProductsMERCHANT.