Common use of Survivability; Limitations Clause in Contracts

Survivability; Limitations. (a) The representations and warranties of Seller and Purchaser or their respective Affiliates contained in this Agreement and the Other Agreements shall survive the Closing, and except as set forth in the next two sentences, shall terminate at the close of business on the eighteen-month anniversary of the Closing Date (the "Expiration Date"), after which date the representations and warranties shall be extinguished in all respects; provided, however, that any claim pending on the Expiration Date for which notice has been given in accordance with Section 7.03(a) or Section 7.03(b), as the case may be, on or before such Expiration Date may continue to be asserted and indemnified against until finally resolved. Notwithstanding the foregoing, the representations and warranties of Seller or Purchaser, as the case may be, set forth in: (i) Sections 3.01(a), 3.01(b), 3.01(c), 3.01(d); the first sentence of Section 3.02(b); the second sentence of Section 3.02(e); and Sections 3.03(a), 3.03(b), 3.03(c) and 3.03(d) (collectively, the "Excluded Representations") shall survive indefinitely; (ii) Sections 3.02(k), 3.02(p) and 3.03(v) the date that is thirty (30) days after the expiration of the applicable statute of limitations. Notwithstanding the foregoing, Seller's representations and warranties set forth (y) in Section 3.02(s) shall survive the Closing Date through the life of the patents set forth on Schedule 3.02(s), including any extensions, and (z) in Section 3.02(w) shall survive the Closing Date through expiration of any applicable statute of limitations. (b) Notwithstanding anything to the contrary contained in this Agreement, neither Seller nor Purchaser shall have any liability under Section7.01 or Section 7.02 for any Losses until such Losses exceed Five Thousand Dollars ($5,000)(an "Eligible Loss"); provided, however, that this Eligible Loss threshold shall not apply to Losses arising out of or resulting from the Excluded Liabilities, Excluded Assets or the Assumed Liabilities. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller shall have any liability under Section 7.01(a) or Section 7.02(a), excluding Losses arising out of Excluded Liabilities, Excluded Assets and Assumed Liabilities, and excluding Losses arising out of matters covered by the third sentence of Section 3.02(r), as the case may be, for Eligible Losses, (i) until the aggregate amount of all Eligible Losses sustained by Seller or Purchaser, as the case may be, exceeds One Hundred Thousand Dollars ($100,000), in which case Seller or Purchaser, as the case may be, shall be liable for all such Eligible Losses in excess of such amount, or (ii) in excess of the aggregate cash consideration received by the Seller on the Closing Date; provided, however, that this limitation shall not apply to any liability arising out of the Excluded Representations. Except for claims (y) for equitable relief after the Closing, or (z) based on fraud or intentional misconduct, the exclusive remedy of each of Purchaser and Seller for any and all Losses shall be limited to indemnification as set forth in this ARTICLE VII. For purposes of Sections 7.01(a) and 7.02(a) and this Section 7.05(c), any breach, inaccuracy or falsehood of a representation or warranty of Purchaser, Seller or any of their respective Affiliates (whether in this Agreement or the Other Agreements) shall be determined without regard to any qualification related to materiality contained in this Agreement or the Other Agreements.

Survivability; Limitations. (a) The representations and warranties of Seller and Purchaser or their respective Affiliates contained in this Agreement and the Other Agreements shall survive the Closing, and except as set forth in the next two sentencessentence, shall terminate at the close of business on the eighteen-month anniversary of the Closing Date (the "“Expiration Date"”), after which date the representations and warranties shall be extinguished in all respects; provided, however, that any claim pending on the Expiration Date for which notice has been given in accordance with Section 7.03(a9.03(a) or Section 7.03(b9.03(b), as the case may be, on or before such Expiration Date may continue to be asserted and indemnified against until finally resolved. Notwithstanding the foregoing, the representations and warranties of Seller or Purchaser, as the case may be, set forth in: (i) Sections 3.01(a), 3.01(b), 3.01(c), 3.01(d); the first sentence of Section 3.02(b); the second sentence of Section 3.02(e); and Sections 3.03(a), 3.03(b), and 3.03(c); and Sections 3.04(a), 3.04(b), 3.04(c) and 3.03(d3.04(d) (collectively, the "“Excluded Representations"”) shall survive indefinitely; (ii) Sections 3.02(k), 3.02(p), 3.02(v) and 3.03(vSections 3.03(h) and 3.03(i) shall survive until the date that is thirty (30) days after the expiration of the applicable statute of limitations. Notwithstanding the foregoing, Seller's representations and warranties set forth (y) in Section 3.02(s) shall survive the Closing Date through the life of the patents set forth on Schedule 3.02(s), including any extensions, and (z) in Section 3.02(w) shall survive the Closing Date through expiration of any applicable statute of limitations. (b) Notwithstanding anything to the contrary contained in this Agreement, neither Seller nor Purchaser shall have any liability under Section7.01 Section 9.01 or Section 7.02 9.02 for any Losses unless and until such Losses exceed Five Ten Thousand Dollars ($5,000)(an "10,000) (an “Eligible Loss"”); provided, however, that this Eligible Loss threshold shall not apply to Losses arising out of or resulting from the Excluded Liabilities, Excluded Assets Liabilities or the Assumed Liabilities. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller shall have any liability under Section 7.01(a9.01(a) or Section 7.02(a), excluding Losses arising out of Excluded Liabilities, Excluded Assets and Assumed Liabilities, and excluding Losses arising out of matters covered by the third sentence of Section 3.02(r9.02(a), as the case may be, for Eligible Losses, (i) until the aggregate amount of all Eligible Losses sustained by Seller or Purchaser, as the case may be, exceeds One Hundred Thousand Million Dollars ($100,0001,000,000), in which case Seller or Purchaser, as the case may be, shall be liable for all such Eligible Losses in excess of such amount, or (ii) in excess of the an aggregate cash consideration received by the Seller on the Closing Dateof Twenty-Five Million Dollars ($25,000,000); provided, however, that this limitation these limitations shall not apply to any liability arising out of the Excluded Representations. Except for claims (y) for equitable relief after the Closing, or (z) based on fraud or intentional misconductfraud, the exclusive remedy of each of Purchaser and Seller for any and all Losses (including but not limited to claims made in accordance with Section 9.01(a) or 9.02(a), as the case may be, after termination of this Agreement in accordance with Section 5.03) shall be limited to indemnification as set forth in this ARTICLE VIIIX. For purposes of Sections 7.01(a9.01(a) and 7.02(a9.02(a) and this Section 7.05(c9.05(c), any breach, inaccuracy or falsehood of a representation or warranty of Purchaser, Seller or any of their respective Affiliates (whether in this Agreement or the Other Agreements) shall be determined without regard to any qualification related to materiality contained in this Agreement or the Other Agreements.

Survivability; Limitations. (a) The representations and warranties of Seller and Purchaser or their respective Affiliates contained in this Agreement and the Other Agreements shall survive the Closing, and except as set forth in the next two sentencessentence, shall terminate at the close of business on the eighteen-month anniversary of the Closing Date (the "Expiration Date"), after which date the representations and warranties shall be extinguished in all respects; provided, however, that any claim pending on the Expiration Date for which notice has been given in accordance with Section 7.03(a9.03(a) or Section 7.03(b9.03(b), as the case may be, on or before such Expiration Date may continue to be asserted and indemnified against until finally resolved. Notwithstanding the foregoing, the representations and warranties of Seller or Purchaser, as the case may be, set forth in: (i) Sections 3.01(a), 3.01(b), 3.01(c), 3.01(d); the first sentence of Section 3.02(b); the second sentence of Section 3.02(e); and Sections 3.03(a), 3.03(b), and 3.03(c); and Sections 3.04(a), 3.04(b), 3.04(c) and 3.03(d3.04(d) (collectively, the "Excluded Representations") shall survive indefinitely; (ii) Sections 3.02(k), 3.02(p), 3.02(v) and 3.03(vSections 3.03(h) and 3.03(I) shall survive until the date that is thirty (30) days after the expiration of the applicable statute of limitations. Notwithstanding the foregoing, Seller's representations and warranties set forth (y) in Section 3.02(s) shall survive the Closing Date through the life of the patents set forth on Schedule 3.02(s), including any extensions, and (z) in Section 3.02(w) shall survive the Closing Date through expiration of any applicable statute of limitations. (b) Notwithstanding anything to the contrary contained in this Agreement, neither Seller nor Purchaser shall have any liability under Section7.01 Section 9.01 or Section 7.02 9.02 for any Losses unless and until such Losses exceed Five Ten Thousand Dollars ($5,000)(an 10,000) (an "Eligible Loss"); provided, however, that this Eligible Loss threshold shall not apply to Losses arising out of or resulting from the Excluded Liabilities, Excluded Assets Liabilities or the Assumed Liabilities. (c) Notwithstanding anything to the contrary contained in this Agreement, neither Purchaser nor Seller shall have any liability under Section 7.01(a9.01(a) or Section 7.02(a), excluding Losses arising out of Excluded Liabilities, Excluded Assets and Assumed Liabilities, and excluding Losses arising out of matters covered by the third sentence of Section 3.02(r), Section (a) as the case may be, for Eligible Losses, (i) until the aggregate amount of all Eligible Losses sustained by Seller or Purchaser, as the case may be, exceeds One Hundred Thousand Million Dollars ($100,0001,000,000), in which case Seller or Purchaser, as the case may be, shall be liable for all such Eligible Losses in excess of such amount, or (ii) in excess of the an aggregate cash consideration received by the Seller on the Closing Dateof Twenty-Five Million Dollars ($25,000,000); provided, however, that this limitation these limitations shall not apply to any liability arising out of the Excluded Representations. Except for claims (y) for equitable relief after the Closing, or (z) based on fraud or intentional misconductfraud, the exclusive remedy of each of Purchaser and Seller for any and all Losses (including but not limited to claims made in accordance with Section 9.01(a) or 9.02(a) as the case may be, after termination of this Agreement in accordance with Section 5.03) shall be limited to indemnification as set forth in this ARTICLE VIIIX. For purposes of Sections 7.01(a9.01(a) and 7.02(a9.02(a) and this Section 7.05(c9.05(c), any breach, inaccuracy or falsehood of a representation or warranty of Purchaser, Seller or any of their respective Affiliates (whether in this Agreement or the Other Agreements) shall be determined without regard to any qualification related to materiality contained in this Agreement or the Other Agreements.