Common use of Damages Cap Clause in Contracts

Damages Cap. (1) Subject to Section 16.01, each Party shall be liable to the other for damages arising out of or relating to its performance or failure to perform its obligations under the Agreement; provided that subject to Section 16.02(2), the liability of a Party to the other, whether based on an action or claim in contract, equity, negligence, tort or otherwise, for any event, act or omission occurring during the Term, shall not exceed, in the aggregate, an amount equal to the greater of (1) $3,500,000 and (2) the Fees paid or payable by Voya for the 30-consecutive-month portion of the Term preceding the date of the occurrence of the applicable event, act or omission giving rise to such damages or, if fewer than 30 months have elapsed since the Effective Date, then 30 times the average monthly Fees paid or payable during the elapsed time since the Effective Date (the “Damages Cap”).