Survivability; Limitations. (a) The representations and warranties of the Parent and the Seller contained in this Agreement or in any Ancillary Agreement shall survive for a period of 18 months following the Closing Date (the "Expiration Date") following which date no Liability Claim may be brought thereon; provided, however, that (i) the Expiration Date for any Liability Claim relating to a breach or violation of the representations and warranties set forth in SECTION 6.6 (Taxes) shall be the expiration of the applicable statute of limitations; and (ii) any Liability Claim pending on any Expiration Date for which a Claims Notice has been given in accordance with SECTION 12.3(A) on or before such Expiration Date may continue to be asserted and indemnified against until finally resolved. (b) Notwithstanding anything to the contrary contained in this ARTICLE 12, neither the Parent nor the Seller shall have any liability under SECTION 12.2 in respect of (i) inaccuracies in or any breach of any representation or warranty contained in ARTICLE 6 or (ii) any Third Party Claims relating to the operation of the Business prior to the Closing Date made after the Closing Date, until the aggregate amount of all Losses sustained by the Purchaser exceeds $1,250,000 (the "Basket"), in which case the Parent and the Seller shall be jointly and severally liable only for any Losses exceeding the Basket, subject to the Cap set forth in SECTION 12.3(C) hereof; provided, however, that, this SECTION 12.4(B) shall not apply to, and the Parent and the Seller shall be jointly and severally liable (i) for any and all Losses of the Purchaser under SECTION 12.2(C) and SECTION 12.2(D); (ii) in respect of any inaccuracies in or breach of the representations and warranties contained in SECTIONS 6.7(D) and 6.7(G). (c) Notwithstanding anything to the contrary contained in this ARTICLE 12, the maximum amount of liability for which the Parent and the Seller shall be obligated to indemnify the Purchaser pursuant to SECTION 12.2 of this Agreement shall not exceed the sum of $70,000,000 in the aggregate (the "Cap") and no Liability Claim shall be made for any additional indemnification once the Cap has been reached; provided, however, that this SECTION 12.4(C) shall not apply to, and the Parent and the Seller shall be jointly and severally liable for, any and all Losses of the Purchaser under SECTION 12.2(C) and SECTION 12.2(D) and in respect of any inaccuracies in or breach of the representations and warranties contained in SECTIONS 6.7(D) and 6.7(G). (d) Any party seeking indemnification for any damages for which it is entitled to seek indemnification under this ARTICLE 12 shall use its commercially reasonable efforts to mitigate its damages in connection with such indemnity claim. (e) The Purchaser shall not be entitled to indemnification under SECTION 12.2 to the extent (i) any Loss is covered by insurance proceeds received by the Purchaser provided, however, that this clause (i) shall not apply if it conflicts with Purchaser's obligation to cooperate with its insurers and, provided further, that this clause (i) does not constitute any waiver of subrogation; (ii) the Purchaser receives indemnification payments from a third party for a Loss; or (iii) any Loss arises out of the termination of any employee of the Purchaser after the Closing Date, except where such termination is due to actions, omissions or facts existing prior to Closing. The amount of any recovery by the Purchaser pursuant to SECTION 12.2 shall be net of the present value (computed at the time that any such indemnification recovery is made using a discount rate of six percent (6%) per annum) of any income Tax benefits inuring to the Purchaser as the result of the state of facts which entitle the Purchaser to such recovery under SECTION 12.2 and of any income tax burdens to which the Purchaser will be subject as a result of such recovery (taking into account the timing differences in the realization of any such benefits), with such benefits calculated using the then-effective consolidated federal income tax rate of the Purchaser. The Purchaser hereby acknowledges and agrees that the payment of any indemnification amounts to the Purchaser pursuant to this ARTICLE 12 shall be deemed to be an equivalent reduction in the Purchase Price to be appropriately allocated among the Purchased Assets in accordance with SECTION 4.3.
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Survivability; Limitations. (a) The representations and warranties of the Parent Seller and the Buyer contained in this Agreement or in any Ancillary Agreement, and any liability claim related thereto, will only survive for a period ending on the first anniversary of the Closing Date (the “Expiration Date”). All of the covenants and agreements of the Seller and the Buyer contained in this Agreement that are to be performed prior to or at the Closing will only survive for a period ending on the first anniversary of the Closing Date. All of the covenants and agreements of the Seller and the Buyer contained in this Agreement or in any Ancillary Agreement shall survive for a period of 18 months following that are to be performed after the Closing Date (the "Expiration Date") following which date no Liability Claim may be brought thereon; provided, however, that (i) the Expiration Date for any Liability Claim relating to a breach or violation of the representations and warranties set forth in SECTION 6.6 (Taxes) shall be the expiration of the applicable statute of limitations; and (ii) any Liability Claim pending on any Expiration Date for which a Claims Notice has been given will only survive in accordance with SECTION 12.3(A) on or before such their terms. For the avoidance of doubt, no Indemnifying Party shall be liable for a claim asserted against it after the applicable Expiration Date may continue to be asserted and indemnified against until finally resolvedDate.
(b) All indemnity payments shall be treated as adjustments to the Purchase Price for all income Tax purposes except to the extent required by Law.
(c) Seller’s aggregate liability pursuant to Section 9.1(a) of this Agreement shall not exceed $250,000 (the “Cap”).
(d) The Seller shall not have any liability under Section 9.1(a)(i) hereof unless the aggregate amount of Losses incurred by the Seller Indemnitees and indemnifiable hereunder exceeds $25,000 (the “Deductible”) and, in such event, the Seller shall only be required to pay the amount of Losses in excess of such Deductible (subject to the other limitations in this Article 9).
(e) If any Losses sustained by a Buyer Indemnitee are covered by an insurance policy or an indemnification, contribution or similar obligation of another Person (other than an Affiliate of such Buyer Indemnitee), the Buyer Indemnitee shall use commercially reasonable efforts to collect such insurance proceeds or indemnity, contribution or similar payments. The amount of any Losses subject to indemnification under Section 9.1(a) shall be reduced by the amounts actually recovered (net of any costs of recovery) by any Buyer Indemnitee under applicable insurance policies or an indemnification, contribution or similar obligation of another Person (other than an Affiliate of such Buyer Indemnitee) with respect to claims related to such Losses and if any Buyer Indemnitee receives such insurance proceeds or indemnity, contribution or similar payments after the settlement of any indemnification claim under Section 9.1(a), such Buyer Indemnitee shall refund to the Seller the amount of such insurance proceeds or indemnity, contribution or similar payments, up to the amount received in connection with such indemnification claim (net of any costs of recovery). It is the intention of the parties that no insurer or third party shall be entitled to any benefit or right it would not be entitled to receive in the absence of this paragraph. An Indemnified Party hereunder shall be subrogated to the Indemnified Party’s rights of recovery to the extent of any Losses satisfied by such Indemnified Party. Such Indemnified Party shall execute and deliver such instruments and papers as are necessary to assign such rights and assist in the exercise thereof.
(f) The amount of any Losses subject to indemnification under Section 9.1 shall be calculated net of any Tax benefit actually received by the Buyer Indemnitee or Seller Indemnitee (as applicable) on account of such Losses within the four-year period after the Closing Date. No Buyer Indemnitees shall be entitled to recover damages or obtain payment, reimbursement, restitution or indemnity more than once in respect of any one Loss or related group of Losses.
(g) Notwithstanding anything to the contrary contained in this ARTICLE 12Agreement or provided for under any applicable Law, neither no party hereto shall be liable to any other Person, either in contract or in tort, for, and Losses shall exclude, any loss of profits or any consequential, incidental, exemplary, indirect, special or punitive damages of such other Person, including loss of future revenue, income or profits, or any diminution of value or multiples of earnings damages relating to the Parent nor breach or alleged breach hereof, whether or not the possibility of such damages has been disclosed to the other party in advance or could have been reasonably foreseen by such other party, except to the extent such damages are paid to an unaffiliated third party pursuant to a non-appealable court order in connection with a Third Party Claim that is subject to indemnification hereunder.
(h) The Seller shall have any no liability under SECTION 12.2 in respect any provision of (i) inaccuracies in or any breach of any representation or warranty contained in ARTICLE 6 or (ii) any Third Party Claims relating to the operation of the Business prior to the Closing Date made after the Closing Date, until the aggregate amount of all Losses sustained by the Purchaser exceeds $1,250,000 (the "Basket"), in which case the Parent and the Seller shall be jointly and severally liable only this Agreement for any Losses exceeding the Basket, subject to the Cap set forth in SECTION 12.3(C) hereof; provided, however, that, this SECTION 12.4(B) shall not apply to, and the Parent and the Seller shall be jointly and severally liable (i) for any and all Losses of the Purchaser under SECTION 12.2(C) and SECTION 12.2(D); (ii) in respect caused by actions of any inaccuracies in Buyer Indemnitee taken after the Closing. The Buyer Indemnitees shall use commercially reasonable efforts to mitigate or breach of otherwise reduce the representations and warranties contained in SECTIONS 6.7(D) and 6.7(G).
(c) Notwithstanding anything to the contrary contained in this ARTICLE 12, the maximum amount of liability for which the Parent and the Seller shall be obligated any Losses that it incurs in connection with any matter with respect to indemnify the Purchaser pursuant to SECTION 12.2 of this Agreement shall not exceed the sum of $70,000,000 in the aggregate (the "Cap") and no Liability Claim shall be made for any additional indemnification once the Cap has been reached; provided, however, that this SECTION 12.4(C) shall not apply to, and the Parent and the Seller shall be jointly and severally liable for, any and all Losses of the Purchaser under SECTION 12.2(C) and SECTION 12.2(D) and in respect of any inaccuracies in or breach of the representations and warranties contained in SECTIONS 6.7(D) and 6.7(G).
(d) Any party seeking indemnification for any damages for which it is entitled to seek indemnification be held harmless, indemnified, compensated or reimbursed pursuant to this Article 9. Each party hereby waives, to the extent permitted under this ARTICLE 12 shall use its commercially reasonable efforts applicable insurance policies, any subrogation rights that its insurer may have with respect to mitigate its damages in connection with such indemnity claimany indemnifiable Losses.
(ei) The Purchaser Each party acknowledges and agrees that, excluding knowing and willful fraud, its sole and exclusive remedy with respect to any and all claims relating to the subject matter of this Agreement and transactions contemplated hereby (other than those arising from a claim under Section 8.1, Section 8.2, or Section 8.4 or under the Escrow Agreement, with respect to which each party shall be entitled to specific performance and other equitable remedies) shall be pursuant to the indemnification set forth in this Article 9 and the remedies contemplated by Section 10.16. In furtherance of the foregoing, but without limiting the rights of indemnification expressly provided for under Section 9.1 (and subject to the other provisions of this Article 9), excluding knowing and willful fraud and except for actions seeking specific performance or similar injunctive relief pursuant to Section 10.16, each Buyer Indemnitee and Seller Indemnitee hereby waives, to the fullest extent permitted under applicable Law, any and all rights, claims and causes of action (including any right, whether arising at Law or in equity, to seek indemnification, contribution, cost recovery, damages or any other recourse or remedy, including the remedy of rescission and remedies that may arise under common law) it may have against any Indemnifying Party whether arising under or based upon any federal, state, local or foreign Law (including any Environmental Law) or otherwise.
(j) Notwithstanding anything set forth herein to the contrary, ▇▇▇▇▇ and Seller agree that Seller’s liability for any claims arising out of a breach of the representations set forth in Section 5.1 (Existence and Good Standing), Section 5.2 (Validity and Enforceability), and any claims arising from knowing and willful fraud, shall not be entitled to indemnification under SECTION 12.2 subject to the extent (i) any Loss is covered by insurance proceeds received by the Purchaser provided, however, that this clause (i) shall not apply if it conflicts with Purchaser's obligation to cooperate with its insurers and, provided further, that this clause (i) does not constitute any waiver of subrogation; (ii) the Purchaser receives indemnification payments from a third party for a Loss; or (iii) any Loss arises out of the termination of any employee of the Purchaser after the Closing Expiration Date, except where such termination is due to actions, omissions or facts existing prior to Closing. The amount of any recovery by the Purchaser pursuant to SECTION 12.2 shall be net of the present value (computed at the time that any such indemnification recovery is made using a discount rate of six percent (6%) per annum) of any income Tax benefits inuring to the Purchaser as the result of the state of facts which entitle the Purchaser to such recovery under SECTION 12.2 Cap and of any income tax burdens to which the Purchaser will be subject as a result of such recovery (taking into account the timing differences in the realization of any such benefits), with such benefits calculated using the then-effective consolidated federal income tax rate of the Purchaser. The Purchaser hereby acknowledges and agrees that the payment of any indemnification amounts to the Purchaser pursuant to this ARTICLE 12 shall be deemed to be an equivalent reduction in the Purchase Price to be appropriately allocated among the Purchased Assets in accordance with SECTION 4.3Deductible.
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Sources: Asset Purchase Agreement (Aquabounty Technologies Inc)