Limitations on Damages. (a) SUBJECT TO THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISE, FOR AMOUNTS IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION OR SUSPENSION. (b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES). (c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which (i) insurance coverages may be available or (ii) claims may be available against a third party in respect thereof, such Indemnified Party shall, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses. (d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 4 contracts
Sources: Transition Services Agreement, Transition Services Agreement (Halyard Health, Inc.), Transition Services Agreement (Halyard Health, Inc.)
Limitations on Damages. (a) SUBJECT TO THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISE, FOR AMOUNTS IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN EXCEPT TO THE EXTENT PROHIBITED BY LAW: (A) VERIFONE SHALL HAVE NO EVENT SHALL EITHER PARTYLIABILITY TO MERCHANT OR ANY THIRD PARTY FOR SPECIAL, THEIR RESPECTIVE AFFILIATES INCIDENTAL, INDIRECT, EXEMPLARY, OR THEIR RESPECTIVE DIRECTORSCONSEQUENTIAL DAMAGES (INCLUDING, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGESBUT NOT LIMITED TO, HOWEVER CAUSED AND ON ANY THEORY LOSS OF LIABILITY (INCLUDING NEGLIGENCEUSE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING RELATING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENTMANNER TO THE POINT SERVICE (WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, WHETHER CONTRACT, TORT OR NOT SUCH PARTY OTHERWISE), EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESCLAIM OR DAMAGE; PROVIDED(B) IN ANY CASE, HOWEVERVERIFONE'S ENTIRE LIABILITY RELATING IN ANY MANNER TO THE POINT SERVICE, THAT REGARDLESS OF THE FOREGOING LIMITATIONS FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY MERCHANT FOR THE POINT SERVICE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT LIMIT AN INDEMNIFYING PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER BE LIABLE FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO CLAIMS OF THIRD PARTIES RELATING TO THE POINT SERVICE. THE LIMITATIONS ON VERIFONE’S LIABILITY SET FORTH IN CLAUSES “(B)” AND “(C)” OF THIS SECTION 6 SHALL NOT APPLY TO VERIFONE’S OBLIGATIONS UNDER SECTION 5 ABOVE OR LIABILITY FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE’S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS CONTAINED IN SECTIONS 4 AND 5 ABOVE AND THIS SECTION 6 ARE A FUNDAMENTAL PART OF THE CLAIM THAT IS BASIS OF VERIFONE'S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE SUBJECT OF POINT SERVICE TO MERCHANT ABSENT SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES)LIMITATIONS.
(c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which (i) insurance coverages may be available or (ii) claims may be available against a third party in respect thereof, such Indemnified Party shall, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 2 contracts
Sources: Point Service Merchant Agreement, Point Service Merchant Agreement
Limitations on Damages. (a) SUBJECT TO THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, ANY AND 8.1(a)(ii)(B)ALL DAMAGES SUFFERED BY YOU, NOTWITHSTANDING ANYTHING IN ANY USER, AND ANYONE ELSE, FOR WHICH LASERFICHE OR ITS REPRESENTATIVES ARE LIABLE, WHETHER ARISING FROM OR RELATING TO THIS AGREEMENT ▇▇▇▇, THE LASERFICHE PRODUCT, ANY SERVICES, OR THE PERFORMANCE OR NON-PERFORMANCE OF THE LASERFICHE PRODUCT OR ANY SERVICES, WHETHER BASED ON A BREACH OF CONTRACT OR WARRANTY, OR NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, WILL BE STRICTLY LIMITED TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISE, DOLLAR AMOUNT THAT YOU ACTUALLY PAID FOR AMOUNTS IN THE AGGREGATE EXCEEDING DEFECTIVE SOFTWARE COMPONENT WITHIN THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-12 MONTH PERIOD PRIOR TO IMMEDIATELY PRECEDING THE OCCURRENCE GIVING DATE THAT LASERFICHE RECEIVES NOTICE OF AN EXISTING OR POTENTIAL CLAIM OR SUIT AGAINST IT. NO CLAIM OR SUIT MAY BE BROUGHT AGAINST LASERFICHE OR ITS REPRESENTATIVES BASED ON A BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, MISREPRESENTATION OR OTHER TORT, OR ON ANY OTHER LEGAL OR EQUITABLE THEORY, MORE THAN 1 YEAR AFTER YOU FIRST DISCOVERED OR SHOULD HAVE DISCOVERED ANY OF THE FACTS THAT GAVE RISE TO THE CLAIM OR SUIT. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT. THIS LIMITATION APPLIES EVEN IF THE DAMAGES (SUCH AMOUNT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP SHALL BE EQUAL AVAILABLE TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION YOU OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT ANY OTHER CLAIMANT DO NOT FULLY COMPENSATE THEM FOR ANY CONSEQUENTIAL DAMAGESOR ALL OF THEIR LOSSES OR LASERFICHE WAS ADVISED, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENTKNEW OR SHOULD HAVE KNOWN, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF ABOUT THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES)LOSSES.
(c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which (i) insurance coverages may be available or (ii) claims may be available against a third party in respect thereof, such Indemnified Party shall, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 2 contracts
Sources: End User License Agreement, End User License Agreement
Limitations on Damages. (a) SUBJECT TO THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING IN ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARYCONTRARY NOTWITHSTANDING, THE AGGREGATE LIABILITY OF ALL EACH PARTY AND ITS SUCCESSORS OR ASSIGNS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, LICENSEES, LICENSORS, SUPPLIERS AND CUSTOMERS (THE “PROTECTED PARTIES”) FOR ANY LOSSES OR DAMAGE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE(S), INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO ACTUAL, DIRECT DAMAGES INCURRED BUT IN NO EVENT SHALL EXCEED THE FEES PAID BY CUSTOMER TO NETDEPOT DURING THE TWO (REGARDLESS OF CAUSE2) MONTHS PRECEDING THE MONTH IN WHICH LIABILITY AROSE FOR THE SERVICE(S) UNDER WHICH SUCH LIABILITY AROSE. NETDEPOT SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER NOT BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COVER, OR EXEMPLARY DAMAGES OR FOR ANY CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF NETDEPOT WAS ADVISED OF THE POSSIBILITY OF SAME. UNDER NO CIRCUMSTANCES SHALL NETDEPOT BE LIABLE HEREUNDER FOR SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, GENERAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, OR EXEMPLARY OR PUNITIVE DAMAGES. NO ACTION ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISEREGARDLESS OF FORM, FOR AMOUNTS MAY BE BROUGHT BY CUSTOMER AGAINST NETDEPOT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. WITHOUT LIMITING THE FOREGOING:
10.1. UNLESS OTHERWISE EXPLICITLY STATED IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNTCUSTOMER SUCCESS ORDER, CUSTOMER ACKNOWLEDGES THAT NETDEPOT IS NOT RESPONSIBLE FOR CONTROLLING OR MONITORING ANY CUSTOMER DATA OR ANY OTHER CUSTOMER CONTENT, INFORMATION, DATA OR OTHER MATERIALS STORED ON, TRANSMITTED VIA, OR ACCESSIBLE THROUGH USE OF, THE “CAP”SERVICE(S); PROVIDED, HOWEVERAND NETDEPOT WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH SUCH CONTENT, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIMEINFORMATION, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION DATA OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY OTHER MATERIALS (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENTWITHOUT LIMITATION THE ACCURACY OR SUITABILITY THEREOF OR UNAUTHORIZED ACCESS OR DAMAGE TO, WHETHER ALTERATION, THEFT, CORRUPTION DESTRUCTION OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDEDLOSS OF, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING PARTYCUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE DATA OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUESOTHER MATERIALS).
(c10.2. NETDEPOT WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH ANY HARM OR LOSS ARISING FROM OR IN CONNECTION WITH UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE(S) To OR ANY CUSTOMER DATA.
10.3. All Protected Parties are expressly made third party beneficiaries of this Section 10;
10.4. As an essential part of the extent that an Indemnified Party has incurred Damages that Agreement, the liquidated damages payable under the SLA(s) shall be the credits stated in any applicable SLA(s) which are subject Customer's sole and exclusive remedy for NETdepot's failure to indemnification under this Article VIII meet those guarantees for which (icredits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) insurance coverages may be available or (iifor failures to meet any applicable SLA(s) claims may be available against for any calendar month shall not exceed 100% of the then current monthly recurring Fee for the corresponding Services. Customer is not entitled to a third party credit if Customer is in respect thereof, such Indemnified Party shall, breach of the Agreement at the time of the occurrence of the event giving rise to the extent possiblecredit, undertake good faith efforts to recover against until such coverages and/or pursue such available third party claimtime as Customer has remedied the breach. To No credit shall be due if the extent that an Indemnified Party obtains insurance proceeds credit would not have accrued but for Customer's acts or third party recoveries in respect of such Damages, such Indemnified Party omissions; and
10.5. This Section 10 shall use the funds actually received in connection with such insurance recovery survive expiration or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions termination of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of Agreement for any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expensesreason whatsoever.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 2 contracts
Sources: Master Services Agreement, Master Services Agreement
Limitations on Damages. EXCEPT FOR DAMAGES CALCULATED UNDER SECTION 8, 8.1, 8.2, 8.3, 8.4, AND 8.5 OF THE AGREEMENT, THE AGGREGATE LIABILITY OF EACH PARTYAND ITS SUCCESSORS OR ASSIGNS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, LICENSEES, LICENSORS, SUPPLIERS AND CUSTOMERS (aTHE “PROTECTED PARTIES”) SUBJECT TO FOR ANY LOSSES OR DAMAGE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(BSERVICE(S), NOTWITHSTANDING ANYTHING INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN THIS AGREEMENT CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO THE CONTRARYACTUAL, DIRECT DAMAGES INCURRED BUT IN NO EVENT SHALL EXCEED THE FEES PAID BY CUSTOMER TO NETDEPOT DURING THE TWO (REGARDLESS OF CAUSE2) MONTHS PRECEDING THE MONTH IN WHICH LIABILITY AROSE FOR THE SERVICE(S) UNDER WHICH SUCH LIABILITY AROSE. NETDEPOT SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER NOT BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COVER, OR EXEMPLARY DAMAGES OR FOR ANY CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF NETDEPOT WAS ADVISED OF THE POSSIBILITY OF SAME. UNDER NO CIRCUMSTANCES SHALL NETDEPOT BE LIABLE HEREUNDER FOR SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, GENERAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, OR EXEMPLARY OR PUNITIVE DAMAGES. NO ACTION ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISEREGARDLESS OF FORM, FOR AMOUNTS MAY BE BROUGHT BY CUSTOMER AGAINST NETDEPOT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. WITHOUT LIMITING THE FOREGOING:
10.1. UNLESS OTHERWISE EXPLICITLY STATED IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNTCUSTOMER SUCCESS ORDER, CUSTOMER ACKNOWLEDGES THAT NETDEPOT IS NOT RESPONSIBLE FOR CONTROLLING OR MONITORING ANY CUSTOMER DATA OR ANY OTHER CUSTOMER CONTENT, INFORMATION, DATA OR OTHER MATERIALS STORED ON, TRANSMITTED VIA, OR ACCESSIBLE THROUGH USE OF, THE “CAP”SERVICE(S); PROVIDED, HOWEVERAND NETDEPOT WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH SUCH CONTENT, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIMEINFORMATION, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION DATA OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY OTHER MATERIALS (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENTWITHOUT LIMITATION THE ACCURACY OR SUITABILITY THEREOF OR UNAUTHORIZED ACCESS OR DAMAGE TO, WHETHER ALTERATION, THEFT, CORRUPTION DESTRUCTION OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDEDLOSS OF, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING PARTYCUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE DATA OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUESOTHER MATERIALS).
(c10.2. NETDEPOT WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH ANY HARM OR LOSS ARISING FROM OR IN CONNECTION WITH UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE(S) To OR ANY CUSTOMER DATA.
10.3. All Protected Parties are expressly made third party beneficiaries of this Section 10;
10.4. As an essential part of the extent that an Indemnified Party has incurred Damages that are Agreement, and subject to indemnification the limitations contained in section 10, the liquidated damages payable under this Article VIII the SLA(s) shall be the credits stated in any applicable SLA(s) which are Customer's sole and exclusive remedy for NETdepot's failure to meet those guarantees for which (icredits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) insurance coverages may be available or (iifor failures to meet any applicable SLA(s) claims may be available against for any calendar month shall not exceed 100% of the then current monthly recurring Fee for the corresponding Services. Customer is not entitled to a third party credit if Customer is in respect thereof, such Indemnified Party shall, breach of the Agreement at the time of the occurrence of the event giving rise to the extent possiblecredit, undertake good faith efforts to recover against until such coverages and/or pursue such available third party claimtime as Customer has remedied the breach. To No credit shall be due if the extent that an Indemnified Party obtains insurance proceeds credit would not have accrued but for Customer's acts or third party recoveries in respect of such Damages, such Indemnified Party omissions; and
10.5. This Section 10 shall use the funds actually received in connection with such insurance recovery survive expiration or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions termination of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of Agreement for any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expensesreason whatsoever.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 2 contracts
Sources: Master Services Agreement, Master Services Agreement
Limitations on Damages. (a) SUBJECT TO EXCEPT FOR THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) LIQUIDATED DAMAGES, AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT CONTRACT TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) NEITHER PARTY NOR ITS AFFILIATES OR SUBCONTRACTORS SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER BE LIABLE TO A THE OTHER, AND EACH PARTY IN ITS CAPACITY AS SERVICE RECEIVER HEREBY WAIVES AND RELEASES THE OTHER PARTY AND ITS SUBCONTRACTORS AND AFFILIATES WITH RESPECT TO CLAIMS FROM AND AGAINST ALL CLAIMS, FOR ANY INDIRECT, PUNITIVE, CONSEQUENTIAL OR SPECIAL DAMAGES, WHETHER FORESEEN OR NOT, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENTCONTRACT, WHETHER UNDER THIS ARTICLE VIII SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTORY OR OTHERWISE. SUCH DAMAGES INCLUDE, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUE, OPPORTUNITY, INTEREST, USE OF PROPERTY OR CAPITAL, OR DIMINUTION OF VALUE, BUSINESS OR REPUTATION, LOSSES ON OTHER PROJECTS, LOSSES OF FINANCING OR FINANCING COSTS. THIS CLAUSE SURVIVES TERMINATION OR EXPIRATION OF THIS CONTRACT. FOR AMOUNTS IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID AVOIDANCE OF DOUBT, TO THE APPLICABLE EXTENT ONE PARTY IS ENTITLED TO INDEMNIFICATION FROM THE OTHER FOR THIRD PARTY CLAIMS IN ITS CAPACITY AS A SERVICE PROVIDER UNDER ARTICLE 25, ARTICLE 26, OR ANY OTHER PROVISION IN THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR CONTRACT IMPOSING INDEMNIFICATION OBLIGATIONS, ANY DAMAGES AWARDED TO THE OCCURRENCE GIVING RISE TO THE DAMAGES SUCH THIRD PARTY (SUCH AMOUNTDIRECT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP CONSEQUENTIAL OR OTHERWISE) SHALL BE EQUAL FOR THE PURPOSES OF SECTION 31.1 DEEMED TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED DIRECT DAMAGES OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF WHICH THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES).
(c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which (i) insurance coverages may be available or (ii) claims may be available against a third party in respect thereof, such Indemnified Party shall, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.INDEMNIFYING PARTY SHALL BE LIABLE.
Appears in 1 contract
Sources: Epc Agreement
Limitations on Damages. EXCEPT FOR DAMAGES CALCULATED UNDER SECTION 8, 8.1, 8.2, 8.3, 8.4, AND 8.5 OF THE AGREEMENT, THE AGGREGATE LIABILITY OF EACH PARTYAND ITS SUCCESSORS OR ASSIGNS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, LICENSEES, LICENSORS, SUPPLIERS AND CUSTOMERS (aTHE “PROTECTED PARTIES”) SUBJECT TO FOR ANY LOSSES OR DAMAGE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(BSERVICE(S), NOTWITHSTANDING ANYTHING INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN THIS AGREEMENT CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO THE CONTRARYACTUAL, DIRECT DAMAGES INCURRED BUT IN NO EVENT SHALL EXCEED THE FEES PAID BY CUSTOMER TO Ionstream DURING THE TWO (REGARDLESS OF CAUSE2) MONTHS PRECEDING THE MONTH IN WHICH LIABILITY AROSE FOR THE SERVICE(S) UNDER WHICH SUCH LIABILITY AROSE. Ionstream SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER NOT BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COVER, OR EXEMPLARY DAMAGES OR FOR ANY CLAIMS AGAINST CUSTOMER BY ANY THIRD PARTY, EVEN IF Ionstream WAS ADVISED OF THE POSSIBILITY OF SAME. UNDER NO CIRCUMSTANCES SHALL Ionstream BE LIABLE HEREUNDER FOR SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, GENERAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, OR EXEMPLARY OR PUNITIVE DAMAGES. NO ACTION ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISEREGARDLESS OF FORM, FOR AMOUNTS MAY BE BROUGHT BY CUSTOMER AGAINST Ionstream MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. WITHOUT LIMITING THE FOREGOING:
10.1. UNLESS OTHERWISE EXPLICITLY STATED IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNTCUSTOMER SUCCESS ORDER, CUSTOMER ACKNOWLEDGES THAT Ionstream IS NOT RESPONSIBLE FOR CONTROLLING OR MONITORING ANY CUSTOMER DATA OR ANY OTHER CUSTOMER CONTENT, INFORMATION, DATA OR OTHER MATERIALS STORED ON, TRANSMITTED VIA, OR ACCESSIBLE THROUGH USE OF, THE “CAP”SERVICE(S); PROVIDED, HOWEVERAND Ionstream WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH SUCH CONTENT, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIMEINFORMATION, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION DATA OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY OTHER MATERIALS (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENTWITHOUT LIMITATION THE ACCURACY OR SUITABILITY THEREOF OR UNAUTHORIZED ACCESS OR DAMAGE TO, WHETHER ALTERATION, THEFT, CORRUPTION DESTRUCTION OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDEDLOSS OF, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING PARTYCUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE DATA OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUESOTHER MATERIALS).
(c10.2. Ionstream WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH ANY HARM OR LOSS ARISING FROM OR IN CONNECTION WITH UNAUTHORIZED ACCESS TO OR USE OF THE SERVICE(S) To OR ANY CUSTOMER DATA.
10.3. All Protected Parties are expressly made third party beneficiaries of this Section 10;
10.4. As an essential part of the extent that an Indemnified Party has incurred Damages that are Agreement, and subject to indemnification the limitations contained in section 10, the liquidated damages payable under this Article VIII the SLA(s) shall be the credits stated in any applicable SLA(s) which are Customer's sole and exclusive remedy for Ionstream's failure to meet those guarantees for which (icredits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) insurance coverages may be available or (iifor failures to meet any applicable SLA(s) claims may be available against for any calendar month shall not exceed 100% of the then current monthly recurring Fee for the corresponding Services. Customer is not entitled to a third party credit if Customer is in respect thereof, such Indemnified Party shall, breach of the Agreement at the time of the occurrence of the event giving rise to the extent possiblecredit, undertake good faith efforts to recover against until such coverages and/or pursue such available third party claimtime as Customer has remedied the breach. To No credit shall be due if the extent that an Indemnified Party obtains insurance proceeds credit would not have accrued but for Customer's acts or third party recoveries in respect of such Damages, such Indemnified Party omissions; and
10.5. This Section 10 shall use the funds actually received in connection with such insurance recovery survive expiration or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions termination of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of Agreement for any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expensesreason whatsoever.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 1 contract
Sources: Master Services Agreement
Limitations on Damages. (a) SUBJECT TO THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING IN ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARYCONTRARY NOTWITHSTANDING, THE AGGREGATE LIABILITY OF ALL EACH PARTY AND ITS SUCCESSORS OR ASSIGNS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, INDEPENDENT CONTRACTORS, LICENSEES, LICENSORS, SUPPLIERS AND CUSTOMERS (THE “PROTECTED PARTIES”) FOR ANY LOSSES OR DAMAGE, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR IN CONNECTION WITH THE SERVICE(S), INCLUDING WITHOUT LIMITATION ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT OR STRICT LIABILITY, SHALL BE LIMITED TO ACTUAL, DIRECT DAMAGES INCURRED BUT IN NO EVENT SHALL EXCEED THE FEES PAID BY CUSTOMER TO NETDEPOT DURING THE TWO (REGARDLESS OF CAUSE2) MONTHS PRECEDING THE MONTH IN WHICH LIABILITY AROSE FOR THE SERVICE(S) UNDER WHICH SUCH LIABILITY AROSE. NETDEPOT SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER NOT BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO FOR LOST PROFITS OR OTHER CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COVER, OR EXEMPLARY DAMAGES OR FOR ANY CLAIMS AGAINST CUSTOMER BY ANY NON-NETDEPOT, EVEN IF NETDEPOT WAS ADVISED OF THE POSSIBILITY OF SAME. UNDER NO CIRCUMSTANCES SHALL NETDEPOT BE LIABLE HEREUNDER FOR SPECIAL DAMAGES, CONSEQUENTIAL DAMAGES, GENERAL DAMAGES, INCIDENTAL DAMAGES, INDIRECT DAMAGES, OR EXEMPLARY OR PUNITIVE DAMAGES. NO ACTION ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISEREGARDLESS OF FORM, FOR AMOUNTS MAY BE BROUGHT BY CUSTOMER AGAINST NETDEPOT MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION AROSE. WITHOUT LIMITING THE FOREGOING:
10.1. UNLESS OTHERWISE EXPLICITLY STATED IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNTCUSTOMER SUCCESS ORDER, CUSTOMER ACKNOWLEDGES THAT NETDEPOT IS NOT RESPONSIBLE FOR CONTROLLING OR MONITORING ANY CUSTOMER DATA OR ANY OTHER CUSTOMER CONTENT, INFORMATION, DATA OR OTHER MATERIALS STORED ON, TRANSMITTED VIA, OR ACCESSIBLE THROUGH USE OF, THE “CAP”SERVICE(S); PROVIDED, HOWEVERAND NETDEPOT WILL HAVE NO LIABILITY TO CUSTOMER WHATSOEVER IN CONNECTION WITH SUCH CONTENT, THAT DURING INFORMATION, DATA OR OTHER MATERIALS (INCLUDING WITHOUT LIMITATION THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIMEACCURACY OR SUITABILITY THEREOF OR UNAUTHORIZED ACCESS OR DAMAGE TO, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIODALTERATION, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION THEFT, CORRUPTION DESTRUCTION OR SUSPENSIONLOSS OF, CUSTOMER’S DATA OR OTHER MATERIALS).
(b) NOTWITHSTANDING ANYTHING 10.2. NETDEPOT WILL HAVE NO LIABILITY TO THE CONTRARY CUSTOMER WHATSOEVER IN THIS AGREEMENT, CONNECTION WITH ANY HARM OR LOSS ARISING FROM OR IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES CONNECTION WITH UNAUTHORIZED ACCESS TO OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENT, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED USE OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT SERVICE(S) OR ANY CUSTOMER DATA.
10.3. THE FOREGOING LIMITATIONS OF NETDEPOT’S LIABILITY SHALL NOT LIMIT AN INDEMNIFYING PARTYAPPLY TO THE FOLLOWING: (i) DAMAGES CAUSED BY NETDEPOT’ WILLFUL ACTS OR OMISSIONS; (ii) NETDEPOT’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL UNDER SECTION 11.1; (iii) OR (iv) DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. CLAIMS BY A NON-NETDEPOT FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES PERSONAL INJURY (INCLUDING IN RESPECT OF LOST PROFITS DEATH) OR REVENUES)PROPERTY DAMAGE, TO THE EXTENT CAUSED BY NETDEPOT’S GROSS NEGLIGENCE OR WILLFUL ACTS OR OMISSIONS.
(c10.4. All Protected Parties are expressly made non-NETdepot beneficiaries of this Section 10;
10.5. As an essential part of the Agreement, the liquidated damages payable under the SLA(s) To shall be the extent that an Indemnified Party has incurred Damages that credits stated in any applicable SLA(s) which are subject Customer's sole and exclusive remedy for NETdepot's failure to indemnification under this Article VIII meet those guarantees for which (icredits are provided; and the parties agree that the credits are not a penalty, are fair and reasonable and represent a reasonable estimate of loss that may reasonably be anticipated from any breach. The maximum credit(s) insurance coverages may be available or (iifor failures to meet any applicable S LA(s) claims may be available against for any calendar month shall not exceed 100% of the then current monthly recurring Fee for the corresponding Services. Customer is not entitled to a third party credit if Customer is in respect thereof, such Indemnified Party shall, breach of the Agreement at the time of the occurrence of the event giving rise to the extent possiblecredit, undertake good faith efforts to recover against until such coverages and/or pursue such available third party claimtime as Customer has remedied the breach. To No credit shall be due if the extent that an Indemnified Party obtains insurance proceeds credit would not have accrued but for Customer's acts or third party recoveries in respect of such Damages, such Indemnified Party omissions; and
10.6. This Section 10 shall use the funds actually received in connection with such insurance recovery survive expiration or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions termination of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of Agreement for any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expensesreason whatsoever.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 1 contract
Sources: Master Services Agreement
Limitations on Damages. (a) SUBJECT TO EXCEPT IN THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(B)CASE OF A PARTY’S FRAUD OR WILLFUL MISCONDUCT, NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) PARTY SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER BE LIABLE TO A ANY OTHER PARTY IN OR ANY OF ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO CLAIMS ARISING OUT OF THIS AGREEMENTCONTRACTORS, SUBCONTRACTORS, AGENTS OR AFFILIATES, FOR ANY DAMAGES, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISEIN CONTRACT, FOR AMOUNTS IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY TORT (INCLUDING NEGLIGENCE) ), WARRANTY, STRICT LIABILITY OR ANY OTHER LEGAL THEORY, ARISING IN FROM THIS AGREEMENT OR ANY WAY OUT OF THE ACTIONS OR TRANSACTIONS PROVIDED FOR HEREIN, OTHER THAN DAMAGES THAT ARE THE NATURAL AND PROBABLE CONSEQUENCE OF ANY PROVISION OF THIS AGREEMENTBREACH AND FLOW DIRECTLY FROM SUCH BREACH. PURPORTED DAMAGES NOT FLOWING DIRECTLY FROM THE BREACH, WHETHER OR INCLUDING BUT NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIMITED TO PUNITIVE DAMAGES; PROVIDED, HOWEVER, EXEMPLARY DAMAGES AND DAMAGES THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIALARE SPECULATIVE, INDIRECT, CONSEQUENTIALUNFORESEEN OR IMPROBABLE, REMOTE OR SPECULATIVE ARE NOT RECOVERABLE (IT BEING UNDERSTOOD THAT LOST PROFITS THAT ARE THE NATURAL AND PROBABLE CONSEQUENCE OF ANY BREACH AND THAT FLOW DIRECTLY FROM SUCH BREACH ARE NOT WAIVED HEREBY). EACH PARTY HEREBY RELEASES THE OTHER PARTIES AND THEIR CONTRACTORS, SUBCONTRACTORS, AGENTS AND AFFILIATES FROM ANY SUCH DAMAGES (INCLUDING EXCEPT TO THE EXTENT PAID TO A THIRD PARTY IN RESPECT OF LOST PROFITS OR REVENUESA THIRD PARTY CLAIM).
(c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which (i) insurance coverages may be available or (ii) claims may be available against a third party in respect thereof, such Indemnified Party shall, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Tucson Electric Power Co)
Limitations on Damages. (a) SUBJECT TO NEITHER PARTY SHALL BE LIABLE FOR, AND EACH PARTY RELEASES THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(BOTHER PARTY AND ITS RESPECTIVE INDEMNIFIED PERSONS FROM, ANY PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES ASSOCIATED WITH LOST PROFITS) AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) SHALL A PARTY IN ITS CAPACITY ARISING AS A SERVICE PROVIDER BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO CLAIMS ARISING OUT RESULT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISE, FOR AMOUNTS IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, (I) NO AMOUNTS SHALL BE PAYABLE BY SELLER UNDER SECTION 7.2 UNLESS AND UNTIL THE AGGREGATE AMOUNT OTHERWISE PAYABLE BY SELLER IN NO THE ABSENCE OF SUCH CLAUSE EXCEEDS $1,000,000 (THE "BASKET"), IN WHICH EVENT ALL LOSSES, AND NOT ONLY THE AMOUNT IN EXCESS OF THE BASKET, SHALL EITHER PARTYBE DUE, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES BE LIABLE (II) SELLER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT IN RESPECT OF BREACHES OF ANY REPRESENTATION, WARRANTY, COVENANT OR AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE $25,000,000 (THE "SELLER CAP AMOUNT"), PROVIDED, THAT, THE BASKET AND THE SELLER CAP AMOUNT SHALL NOT APPLY TO ANY CLAIMS MADE BY THE PURCHASING ENTITY FOR ANY CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (INCLUDING NEGLIGENCE) PURCHASER LOSSES ARISING IN ANY WAY OUT OF ANY PROVISION OF FRAUD AND SUCH FRAUD CLAIMS AS DESCRIBED IN THIS AGREEMENTPROVISO SHALL NOT COUNT TOWARD WHETHER THE BASKET OR THE SELLER CAP AMOUNT IS REACHED, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVERFURTHER, THAT THE FOREGOING LIMITATIONS BASKET SHALL NOT LIMIT AN INDEMNIFYING PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES APPLY TO ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES CLAIMS ARISING OUT OF A BREACH OF REPRESENTATION CONTAINED IN SECTION 3.7 AND THE CLAIM THAT IS SELLER CAP AMOUNT WITH RESPECT TO SUCH CLAIMS SHALL BE THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES)PURCHASE PRICE.
(c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THIS AGREEMENT, (iI) insurance coverages may be available or NO AMOUNTS SHALL BE PAYABLE BY PURCHASER UNDER SECTION 7.1 UNLESS AND UNTIL THE AGGREGATE AMOUNT OTHERWISE PAYABLE BY PURCHASER IN THE ABSENCE OF SUCH CLAUSE EXCEEDS THE BASKET, IN WHICH EVENT ALL LOSSES, AND NOT ONLY THE AMOUNT IN EXCESS OF THE BASKET, SHALL BE DUE, AND (iiII) claims may be available against a third party in respect thereofPURCHASER’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT IN RESPECT OF BREACHES OF ANY REPRESENTATION, such Indemnified Party shallWARRANTY, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim COVENANT OR AGREEMENT SHALL NOT EXCEED IN THE AGGREGATE $25,000,000 (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the ServicesTHE "PURCHASER CAP AMOUNT"), Service Provider shallPROVIDED, to the extent possibleTHAT, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2THE BASKET AND THE PURCHASER CAP AMOUNT SHALL NOT APPLY TO ANY CLAIMS MADE BY SELLER FOR SELLER LOSSES ARISING OUT OF FRAUD AND SUCH FRAUD CLAIMS AS DESCRIBED IN THIS PROVISO SHALL NOT COUNT TOWARD WHETHER THE BASKET OR THE PURCHASER CAP AMOUNT IS REACHED.
Appears in 1 contract
Limitations on Damages. (a) SUBJECT TO CUSTOMER ACKNOWLEDGES AND AGREES THAT THE REPERFORMANCE CONSIDERATION WHICH CG2 IS CHARGING HEREUNDER DOES NOT INCLUDE CONSIDERATION FOR ASSUMPTION BY CG2 OF THE RISK OF CUSTOMER'S INCIDENTAL OR CONSEQUENTIAL DAMAGES. EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISE, FOR AMOUNTS IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, THEIR RESPECTIVE AFFILIATES OR THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF CUSTOMER DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING FROM BREACH OF WARRANTY OR BREACH OF CONTRACT, NEGLIGENCE, TORT, STATUTORY DUTY OR ANY OTHER LEGAL CAUSE OF ACTION ARISING FROM OR IN CONNECTION WITH THIS PSA AND SOW/ACCEPTANCE FORM, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE SOW/ACCEPTANCE FORM, EXCEPT FOR ANY INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, THE MAXIMUM LIABILITY OF CG2 TO ANY PERSON, FIRM OR CORPORATION WHATSOEVER ARISING OUT OF OR IN THE CONNECTION WITH ANY SERVICES OR DELIVERABLES SHALL BE THE AMOUNT PAID BY CUSTOMER FOR THE SERVICES. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF THE PARTIES ARISING FROM THIS AGREEMENT AND ANY STATEMENT OF WORK. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED IN CONNECTION WITH THE SERVICES AS THE BASIS OF THE BARGAIN BETWEEN THE PARTIES AND THAT, WERE CG2 TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN, SUCH CONSIDERATION WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER. CERTAIN STATES AND/OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS OF LIABILITY FOR ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED AND ON ANY THEORY SO THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER IN THAT JURISDICTION. NOTHING IN THIS AGREEMENT EXCLUDES OR RESTRICTS THE LIABILITY OF EITHER PARTY FOR DEATH OR PERSONAL INJURY RESULTING FROM ITS NEGLIGENCE OR LIABILITY (INCLUDING NEGLIGENCE) ARISING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENT, WHETHER INCURRED BY ONE PARTY FOR FRAUD OR NOT SUCH PARTY HAS BEEN ADVISED OF FRAUDULENT MISREPRESENTATION BY THE POSSIBILITY OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATIONS SHALL NOT LIMIT AN INDEMNIFYING OTHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO THIRD PARTIES FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF THE CLAIM THAT IS THE SUBJECT OF SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES).
(c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which (i) insurance coverages may be available or (ii) claims may be available against a third party in respect thereof, such Indemnified Party shall, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 1 contract
Sources: Professional Services Agreement
Limitations on Damages. (a) SUBJECT TO THE REPERFORMANCE OBLIGATIONS IN SECTION 8.1(a)(i)(B) AND 8.1(a)(ii)(B), NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT (REGARDLESS OF CAUSE) SHALL A PARTY IN ITS CAPACITY AS A SERVICE PROVIDER BE LIABLE TO A PARTY IN ITS CAPACITY AS SERVICE RECEIVER AND ITS AFFILIATES WITH RESPECT TO CLAIMS ARISING OUT OF THIS AGREEMENT, WHETHER UNDER THIS ARTICLE VIII OR OTHERWISE, FOR AMOUNTS IN THE AGGREGATE EXCEEDING THE AGGREGATE SERVICE CHARGES PAID TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE-MONTH PERIOD PRIOR TO THE OCCURRENCE GIVING RISE TO THE DAMAGES (SUCH AMOUNT, THE “CAP”); PROVIDED, HOWEVER, THAT DURING THE SIX MONTH PERIOD IMMEDIATELY FOLLOWING THE EFFECTIVE TIME, THE CAP SHALL BE EQUAL TO THE TOTAL SERVICE CHARGES PAYABLE TO THE APPLICABLE PARTY IN ITS CAPACITY AS A SERVICE PROVIDER UNDER THIS AGREEMENT OVER SUCH SIX MONTH PERIOD, CALCULATED AS THOUGH THE FULL SCOPE OF SUCH SERVICES WILL BE DELIVERED WITHOUT EARLY TERMINATION OR SUSPENSION.
(b) NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, IN EXCEPT TO THE EXTENT PROHIBITED BY LAW:
(A) VERIFONE SHALL HAVE NO EVENT SHALL EITHER PARTYLIABILITY TO MERCHANT OR ANY THIRD PARTY FOR SPECIAL, THEIR RESPECTIVE AFFILIATES INCIDENTAL, INDIRECT, EXEMPLARY, OR THEIR RESPECTIVE DIRECTORSCONSEQUENTIAL DAMAGES (INCLUDING, OFFICERS AND EMPLOYEES BE LIABLE UNDER THIS AGREEMENT FOR ANY CONSEQUENTIAL DAMAGESBUT NOT LIMITED TO, HOWEVER CAUSED AND ON ANY THEORY LOSS OF LIABILITY (INCLUDING NEGLIGENCEUSE, LOSS OF BUSINESS, LOSS OF PROFITS OR REVENUE, GOODWILL OR SAVINGS, DOWNTIME, OR DAMAGE TO, LOSS OF OR REPLACEMENT OF DATA OR TRANSACTIONS, COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING RELATING IN ANY WAY OUT OF ANY PROVISION OF THIS AGREEMENTMANNER TO THE POINT SERVICE (WHETHER ARISING FROM CLAIMS BASED IN WARRANTY, WHETHER CONTRACT, TORT OR NOT SUCH PARTY OTHERWISE), EVEN IF VERIFONE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGESCLAIM OR DAMAGE; PROVIDED(B) IN ANY CASE, HOWEVERVERIFONE'S ENTIRE LIABILITY RELATING IN ANY MANNER TO THE POINT SERVICE, THAT REGARDLESS OF THE FOREGOING LIMITATIONS FORM OR NATURE OF THE CLAIM, SHALL BE LIMITED IN THE AGGREGATE TO THE FEES ACTUALLY PAID BY MERCHANT FOR THE POINT SERVICE UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE CLAIM ARISING; AND (C) VERIFONE SHALL NOT LIMIT AN INDEMNIFYING PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER BE LIABLE FOR LIABILITIES ANY INDEMNIFIED PARTY MAY HAVE TO CLAIMS OF THIRD PARTIES RELATING TO THE POINT SERVICE. THE LIMITATIONS ON VERIFONE’S LIABILITY SET FORTH IN CLAUSES “(B)” AND “(C)” OF THIS SECTION 6 SHALL NOT APPLY TO VERIFONE’S OBLIGATIONS UNDER SECTION 5 ABOVE OR LIABILITY FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT DEATH, PERSONAL INJURY OF A PHYSICAL NATURE OR DAMAGE TO TANGIBLE PROPERTY CAUSED BY VERIFONE’S NEGLIGENCE OR INTENTIONAL MISCONDUCT. THE LIMITATIONS CONTAINED IN SECTIONS 4 AND 5 ABOVE AND THIS SECTION 6 ARE A FUNDAMENTAL PART OF THE CLAIM THAT IS BASIS OF VERIFONE'S BARGAIN HEREUNDER, AND VERIFONE WOULD NOT PROVIDE THE SUBJECT OF POINT SERVICE TO MERCHANT ABSENT SUCH INDEMNIFICATION. FOR PURPOSES OF THIS ARTICLE VIII, “CONSEQUENTIAL DAMAGES” MEAN ANY EXEMPLARY, PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, REMOTE OR SPECULATIVE DAMAGES (INCLUDING IN RESPECT OF LOST PROFITS OR REVENUES)LIMITATIONS.
(c) To the extent that an Indemnified Party has incurred Damages that are subject to indemnification under this Article VIII for which (i) insurance coverages may be available or (ii) claims may be available against a third party in respect thereof, such Indemnified Party shall, to the extent possible, undertake good faith efforts to recover against such coverages and/or pursue such available third party claim. To the extent that an Indemnified Party obtains insurance proceeds or third party recoveries in respect of such Damages, such Indemnified Party shall use the funds actually received in connection with such insurance recovery or third party claim (in lieu of funds provided by the Indemnifying Party pursuant to the indemnification provisions of this Article VIII) to pay or otherwise satisfy such Damages, and the amount of any Damages for which indemnification is available under this Article VIII shall be reduced by the amount of such insurance or third party claim proceeds paid in cash to the Indemnified Party net of all out-of-pocket costs and expenses. If, after the making of any payment to an Indemnified Party of Damages under this Article VIII, the amount of Damages to which such payment relates is reduced by actual recovery, settlement or otherwise by the Indemnified Party under any insurance coverage or against any third parties, the amount of such reduction will promptly be repaid by the Indemnified Party to the Indemnifying Party, net of all out-of-pocket costs and expenses.
(d) In the event that a Service Recipient incurs any Damages relating to, arising out of, or resulting from the Service Provider’s provision of the applicable Services (including, for the avoidance of doubt, such Damages that arise out of the Service Provider’s or its Affiliates’ negligence or breach of this Agreement) for which (i) insurance coverages may be available to Service Provider or (ii) claims may be available to Service Provider against a third party in respect thereof (including any agents used by Service Provider in providing the Services), Service Provider shall, to the extent possible, at the Service Recipient’s expense, either (x) undertake good faith efforts to recover against such coverages and/or pursue such available third party claim or (y) take such action as shall be necessary for the Service Recipient to be subrogated, to the extent possible, to the rights of the Service Provider with respect thereto. To the extent that the Service Provider obtains insurance proceeds or third party recoveries in respect of such Damages, the Service Provider shall pay the funds actually received in connection with such insurance recovery or third party claim to the Service Recipient, net of all out-of-pocket costs and expenses incurred by Service Provider in connection therewith, notwithstanding any of the limitations in this Section 8.2.
Appears in 1 contract
Sources: Point Service Merchant Agreement