Common use of Additional Limitations on Liability Clause in Contracts

Additional Limitations on Liability. (i) The Seller’s aggregate Liability under Section 2.06(b) shall not exceed the Purchase Price. For the avoidance of doubt, the Seller’s aggregate Liability under Section 2.06(b)(i) (except for breaches of Fundamental Representations) shall not exceed the Escrow Amount. (ii) The limitations contained in this Section 2.06(f) shall in no way limit the amounts the Purchaser Indemnified Parties may recover directly under the R&W Policy from the underwriter(s) of the R&W Policy. (iii) After the aggregate amount of all Losses in respect of which an indemnification claim is properly made thereunder exceeds an amount equal to the Basket plus the Escrow Amount, the Purchaser shall have no further claim for indemnification against the Seller under Section 2.06(b)(i) other than in respect of a breach or inaccuracy of a Fundamental Representation by the Seller. (iv) After the aggregate amount of all Losses in respect of which an indemnification claim is properly made thereunder exceeds an amount equal to the Escrow Amount, prior to a Purchaser Indemnified Party making a claim for indemnification from the Seller under Section 2.06(b)(ii) – (b)(viii), the Purchaser shall, and shall cause the Purchaser Indemnified Parties to use Commercially Reasonable Efforts to seek recovery, at its or their own expense, under all applicable insurance policies, including the R&W Policy, to the extent coverage for such matters exists on the face of the applicable insurance policy, and indemnification or reimbursement rights covering any such claim; provided, however, that the Purchaser shall not be required to, and it shall not be required to cause any Transferred Entity to, initiate or pursue any legal action to make any such recovery; provided, further, that in no event shall the Purchaser’s obligations under this sentence act as a bar to bringing an indemnification claim against the Seller. To the extent that the Purchaser or any Transferred Entity receives any amount under insurance coverage or other recovery with respect to a matter for which a Purchaser Indemnified Party has previously obtained payment in indemnification, the Purchaser shall, as soon as reasonably practicable after receipt of such insurance proceeds or other recovery, pay and reimburse the Seller, for any prior indemnification payment up to the amount of the insurance proceeds or other recovery, but less (A) the cost and expense of pursuing such recovery, (B) any deductible associated therewith and (C) the amount of any retro-premium obligations and reasonably anticipated premium increases resulting from such recovery (other than premiums under the R&W Policy). For purposes of this Section 2.06(f), the term insurance proceeds shall in all respects include the proceeds received under or pursuant to the R&W Policy. (v) The indemnification rights provided in this Section 2.06 constitute the sole and exclusive remedy of the Parties following the Closing and shall be the sole and exclusive remedy for any action (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) that may be based on, arise out of or relate to this Agreement, the negotiation, execution, performance or subject matter of this Agreement, the transactions contemplated by this Agreement or any Losses alleged to be suffered by any Party as a result of the actions or failure to act by any Party in connection with this Agreement or the transactions contemplated by this Agreement, other than (A) claims based on Fraud, (B) the remedy of specific performance or other equitable remedies provided by Section 9.10 with respect to any covenant or agreement that survives the Closing in accordance with Section 2.06(a) or (C) as provided by Section 1.10 or Section 7.10. The Seller has specifically relied upon the limited remedies provided in this Section 2.06 in agreeing to the terms and conditions of this Agreement and in agreeing to provide the specific representations and warranties set forth herein. (vi) Notwithstanding any other provision of this Agreement to the contrary, none of the Parties shall be liable to any Indemnified Party (whether in contract or in tort or otherwise, or whether at law (including at common law or by statute) or in equity) for any punitive or exemplary damages that may be based on, arise out of or relate to this Agreement, the negotiation, execution, performance or subject matter of this Agreement, the transactions contemplated by this Agreement or the actions or failure to act by any Party in connection with this Agreement or the transactions contemplated by this Agreement. (vii) No Indemnified Party shall be entitled to indemnification with respect to any Losses to the extent such Losses are accrued or otherwise reflected in the calculation of the Post-Closing Adjustment in accordance with Section 1.10. (viii) Any Losses indemnifiable under Section 2.06(b) or Section 2.06(c) shall be determined without duplication of recovery by reason of the state of facts giving rise to such Losses constituting a breach of more than one representation, warranty, covenant or agreement in this Agreement.