Common use of Further Limitations Clause in Contracts

Further Limitations. (a) For all purposes of this Section 7.5, “Losses” shall be net of any amounts paid or payable to an Indemnified Person under any insurance policy or Contract in connection with the facts giving rise to the right of indemnification hereunder, and each Indemnified Person shall use its reasonable commercial efforts to recover all amounts payable from an insurer or other third party under any such insurance policy or Contract prior to seeking indemnification hereunder; provided, however, that the amount deemed to be paid under such insurance policies shall be net of the deductible for such policies. (b) If the amount to be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such payment. (c) Notwithstanding the fact that any Indemnified Person may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover the amount of any Loss suffered by such Indemnified Person more than once, regardless of whether such Loss may be as a result of a breach of more than one representation, warranty, obligation or covenant or otherwise. In addition, any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability, or a breach of more than one representation, warranty, covenant or agreement, as applicable. (d) Each Indemnified Person shall use its reasonable commercial efforts to mitigate any indemnifiable Loss, and in the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts. (e) The covenants of a party contained in this Agreement may not be used to circumvent the negotiated limitations (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and the like) contained in the representations and warranties and procedures with respect to the recovery by Indemnified Persons on account of the breach of such representations or warranties. (f) For the purpose of clarity, even if a representation and warranty of CPE (with respect to the Crackle VOD Business) or CSSE (with respect to the CSSE VOD Business) is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will not be responsible for post-Closing liabilities arising from operating the JV Entity by using the same means, methods, practices, processes or other manner. (g) In lieu of making a cash indemnity payment to any CSSE Indemnified Person pursuant to Section 7.2, notwithstanding anything set forth in this ARTICLE 7, CPE shall have the right to elect, within two (2) Business Days of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE to cancel a number of shares of CSSE Preferred Shares held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees). (h) Notwithstanding any other provision of this Agreement to the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes to the extent such Taxes (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Date.

Further Limitations. (a) For all purposes The Purchaser Indemnified Parties shall not be entitled to make any claim for indemnification under this Agreement (including, but not limited to, any claim pursuant to a breach of the representations and warranties made by the Company or the Sellers in this Section 7.5, “Losses” shall be net of any amounts paid Agreement) to the extent that provision for the matter or payable to an Indemnified Person under any insurance policy or Contract in connection with the facts giving Damages that would otherwise give rise to the right of indemnification hereunderclaim in question has been provided in the Closing Accounts, and each Indemnified Person shall use its reasonable commercial efforts to recover all amounts payable from an insurer or other third party under any such insurance policy or Contract prior to seeking indemnification hereunder; provided, however, that unless the Damages are greater than the amount deemed to be paid under such insurance policies that has been provisioned, in which case the Purchaser shall be net entitled to make a claim for the excess of such Damages above the deductible amount provisioned for such policiesin the Closing Accounts. (b) If The amount of any Damages subject to indemnification under Section 9.02(a) shall be calculated net of any Tax benefits actually received in cash (or as a reduction in cash Taxes otherwise owing) in the amount Tax year the indemnity payment is received by the Indemnified Party and any insurance proceeds actually received by the Indemnified Party (including any proceeds received pursuant to be netted hereunder the RWI Policy) or any indemnity, contribution or other similar payment which has been recovered by the Indemnified Parties from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such paymentthird party with respect thereto. (c) Notwithstanding the fact that any The Purchaser Indemnified Person may Parties will not have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover the amount of any Loss suffered by such Indemnified Person more than once, regardless of whether such Loss may be as a result of a breach of more than one representation, warranty, obligation or covenant or otherwise. In addition, any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability, or a breach of more than one representation, warranty, covenant or agreement, as applicable. (d) Each Indemnified Person shall use its reasonable commercial efforts to mitigate any indemnifiable Loss, and in the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts. (e) The covenants of a party contained in this Agreement may not be used to circumvent the negotiated limitations (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and the like) contained in the representations and warranties and procedures with respect to the recovery by Indemnified Persons on account of the breach of such representations or warranties. (f) For the purpose of clarity, even if a representation and warranty of CPE (with respect to the Crackle VOD Business) or CSSE (with respect to the CSSE VOD Business) is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will not be responsible for post-Closing liabilities arising from operating the JV Entity by using the same means, methods, practices, processes or other manner. (g) In lieu of making a cash indemnity payment to any CSSE Indemnified Person pursuant to Section 7.2, notwithstanding anything set forth in this ARTICLE 7, CPE shall have the right to elect, within two (2) Business Days of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE to cancel a number of shares of CSSE Preferred Shares held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees). (h) Notwithstanding any other provision of this Agreement to the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes for any Damages to the extent such Taxes Damages are based on Taxes: (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax taxable periods (or portions thereof) beginning after the Closing Date Date, (ii) resulting from transactions or actions taken by the Purchaser, the Group Companies or any of their respective Affiliates after the Closing that are outside the ordinary course of business, or (iii) that result from Purchaser’s breach of any net operating lossesof the covenants contained in ARTICLE VIII. (d) If any Purchaser Indemnified Party has a claim for indemnification under Section 9.02(a)(i) or Section 9.02(b), credits prior to seeking recovery from any Seller, Purchaser agrees to make, or other Tax attributes cause the appropriate Purchaser Indemnified Party to make, a claim for the full amount of such Damages under the RWI Policy; provided, however, that, so long as the Purchaser or the appropriate Purchaser Indemnified Party has first made such a claim under the RWI Policy, the Purchaser or such Purchaser Indemnified Party may also make a claim for indemnification under Section 9.02(a)(i) or Section 9.02(b), notwithstanding the fact that the Purchaser Indemnified Party’s claim under the RWI Policy is still pending. Purchaser also agrees to use its commercially reasonable efforts to pursue, and cause the appropriate Purchaser Indemnified Party to use its commercially reasonable efforts to pursue, such claim under the RWI Policy. Purchaser agrees not to, and shall cause the Company not to, cancel or otherwise consent to the termination of the RWI Policy. Notwithstanding the foregoing, (i) in no event shall any Purchaser Indemnified Party be entitled to recover any duplicate Damages pursuant to this ARTICLE IX (for the avoidance of doubt, in the event that a Purchaser Indemnified Party is entitled to recover Damages in respect of a claim under both this ARTICLE IX and the RWI Policy, recovery under this ARTICLE IX of any deductible in respect of such claim under the RWI Policy shall not constitute duplicate Damages); and (ii) if any Purchaser Indemnified Party shall recover any duplicate Damages pursuant to the RWI Policy subsequent to recovering any such corresponding Damages from a Tax period Seller pursuant to this ARTICLE IX, such Purchaser Indemnified Party shall promptly reimburse and deliver the amount of the duplicate Damages recovered pursuant to the RWI Policy to the Payments Administrator for further distribution to the Sellers. (e) If any Purchaser Indemnified Party has a claim for indemnification under Section 9.02(a) severally against each of the Sellers, except in the case of fraud or willful misconduct on the part of one or more of the Sellers, such Purchaser Indemnified Party shall make, to the extent applicable, a corresponding claim against each of the Sellers, and shall use commercially reasonable efforts to pursue such claim against each such Seller, unless the Purchaser Indemnified Party has determined in good faith that pursuing such claim against such Seller would not be commercially reasonable. (f) If any Purchaser Indemnified Party has a claim for indemnification under Section 9.02(a)(iv), prior to seeking recovery from any Seller, Purchaser agrees that it shall, and shall cause the appropriate Purchaser Indemnified Party, if applicable, to, prior to seeking indemnification from Sellers, first, pursue recovery in respect of such Purchaser Indemnified Party’s claim(s) for Damages under the FinAnalytica Agreement from any amounts (i) escrowed pursuant to Section 2.10 of the FinAnalytica Agreement (the “FinAnalytica Escrow Amount”); or (ii) recoverable by means of set-off, pursuant to Section 2.15 and Section 7.5 of the FinAnalytica Agreement, against any Earn-Out Amounts payable under the FinAnalytica Agreement. (g) If the InvestPic Claim has not been finally determined in accordance with Section 7.5(f) of the FinAnalytica Agreement (the “Final Determination”) on or prior to the date the Earn-Out Amount becomes payable pursuant to Section 2.15 of the FinAnalytica Agreement, the Sellers’ Representative, solely on behalf of the Sellers, will transfer to the Purchaser an amount equal to the Earn-Out Amount, if any (any such amount transferred to Purchaser, the “InvestPic Claim Reserve” and, the sum total of the FinAnalytica Escrow Amount and the InvestPic Claim Reserve, the “InvestPic Claim Indemnity Amount”). (h) Upon Final Determination of the InvestPic Claim, the InvestPic Claim Reserve shall be dealt with as follows: (i) In the event that the InvestPic Claim Damages are not greater than the FinAnalytica Escrow Amount, the Purchaser shall transfer the full amount of the InvestPic Claim Reserve to the Payments Administrator for further distribution to the Sellers in accordance with each Seller’s Pro Rata Share; (ii) In the event that the InvestPic Claim Damages are greater than the FinAnalytica Escrow Amount but less than the InvestPic Claim Indemnity Amount, the Purchaser shall transfer the amount equal to the difference between the InvestPic Claim Indemnity Amount and the InvestPic Claim Damages to the Payments Administrator for further distribution to the Sellers in accordance with each Seller’s Pro Rata Share, and the Purchaser shall retain the balance of the InvestPic Claim Reserve; or (iii) In the event that the InvestPic Claim Damages are greater than the InvestPic Claim Indemnity Amount, the Purchaser shall retain the entire InvestPic Claim Reserve. (i) For the avoidance of doubt, the aggregate amount of InvestPic Claim Damages for which Purchaser Indemnified Parties may make claims for indemnification under Section 9.02(a)(iv) hereunder shall be reduced on a dollar-for-dollar basis by any amounts related to the InvestPic Claim that are recovered pursuant to subsections (i) and (ii) of Section 9.07(f) (or portion thereof) ending on or before retained by Purchaser from the Closing DateInvestPic Claim Reserve pursuant to Section 9.07(h)), in each case by any Purchaser Indemnified Party.

Further Limitations. (a) For all purposes of this Section 7.55.5, “Losses” shall be net of any amounts paid or payable to an Indemnified Person under any insurance policy or Contract in connection with the facts giving rise to the right of indemnification hereunder, and each Indemnified Person shall use its reasonable commercial efforts to recover all amounts payable from an insurer or other third party under any such insurance policy or Contract prior to seeking indemnification hereunder; provided, however, that the amount deemed to be paid under such insurance policies shall be net of the deductible for such policies. (b) If the amount to be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such payment. (c) Notwithstanding the fact that any Indemnified Person may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover the amount of any Loss suffered by such Indemnified Person more than once, regardless of whether such Loss may be as a result of a breach of more than one representation, warranty, obligation or covenant or otherwise. In addition, any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability, or a breach of more than one representation, warranty, covenant or agreement, as applicable. (d) Each Indemnified Person shall use its reasonable commercial efforts to mitigate any indemnifiable Loss, and in the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts. (e) The covenants of a party contained in this Agreement may not be used to circumvent the negotiated limitations (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and the like) contained in the representations and warranties and procedures with respect to the recovery by Indemnified Persons on account of the breach of such representations or warranties. (f) For the purpose of clarity, even if a representation and warranty of CPE (with respect to the Crackle VOD Business) Vinco Ventures or CSSE (with respect to the CSSE VOD Business) ZASH is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will not be responsible for post-Closing liabilities arising from operating the JV Entity Company by using the same means, methods, practices, processes or other manner. (g) In lieu of making a cash indemnity payment to any CSSE Indemnified Person pursuant to Section 7.2, notwithstanding anything set forth in this ARTICLE 7, CPE shall have the right to elect, within two (2) Business Days of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE to cancel a number of shares of CSSE Preferred Shares held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees). (h) Notwithstanding any other provision of this Agreement to the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes to the extent such Taxes (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Date.

Further Limitations. 10.5.1 The Seller shall not be liable for breach of a Seller Guarantee if and to the extent that: (a) For all purposes the matter underlying the breach of this Section 7.5a Seller Guarantee has been specifically taken into account in the calculation of the Purchase Price pursuant to Clause 5.1; DB1/ 93370130.5 (b) the matter underlying the breach of a Seller Guarantee has been taken into account in the Financial Statements as a specific write-off (Abschreibung), “Losses” specific value adjustment (Wertberichtigung), specific liability (Verbindlichkeit) or specific provision (Rückstellung); (c) the amounts of such Guarantee Claims have been recovered by the Purchaser and/or the Company from a third party, including under an existing insurance policy (provided that nothing herein shall require the Purchaser to litigate or otherwise appeal any denial of third-party coverage with respect to such Guarantee Claim; provided further that the Purchaser shall, if requested in writing by the Seller and to the extent reasonably possible and without cost, liability or adverse effect to the Purchaser, assign to the Seller any third-party claims relating to the Guarantee Claim that the Purchaser elects not to pursue); (d) the Purchaser had actual knowledge (positive Kenntnis) (and, for the avoidance of doubt, negligent or grossly negligent absence of knowledge shall be net irrelevant) of any amounts paid or payable to an Indemnified Person under any insurance policy or Contract in connection with the relevant facts giving rise to the right of indemnification hereunder, and each Indemnified Person shall use its reasonable commercial efforts to recover all amounts payable from an insurer or other third party under any such insurance policy or Contract prior to seeking indemnification hereundercircumstances underlying said Guarantee Claim; provided, however, that such exclusion of claims shall not apply if the amount deemed Seller had actual knowledge (positive Kenntnis) (and, for the avoidance of doubt, negligent or grossly negligent absence of knowledge shall be irrelevant) that the facts and circumstances underlying such Guarantee Claim constituted a breach of a Guarantee; (e) the relevant facts and circumstances underlying said Guarantee Claim have been fairly disclosed (Fairly Disclosed) to the Purchaser in (i) this Agreement, (ii) the Company Disclosure Schedule, or (iii) in the documents contained in the Intralinks data room “Project Blossom” (the Data Room) as of August 31, 2017. The Data Room has been stored in its entirely on one (1) USB stick and handed over to the Purchaser’s counsel for verification, and the Purchaser’s counsel then handed over the verified copy to the acting notary for it to be paid under such insurance policies held by him in custody until six (6) years after the Signing Date and then handed over to the Company. For the purpose of this Agreement, unless otherwise noted, the term Fairly Disclosed requires that on the Signing Date the disclosure enabled or would have reasonably enabled an objective third party having industry knowledge with support by professional advisors to make an informed assessment of the nature of the matter and its significance, with the Seller acknowledging that it has restricted the Purchaser’s access to certain contents of the Data Room by way of restrictions and/or limitations placed on accessing, viewing, printing, downloading and copying documents. Regardless of the Purchaser’s Knowledge, nothing shall be net considered Fairly Disclosed to the extent that it contradicts or is otherwise inconsistent with any affirmative statement or omission contained in (x) Clause 9.2, or (y) any Seller Guarantees (other than in Clause 9.2) with respect to any Guarantee Claims exceeding, in the aggregate inclusive of all such Guarantee Claims, USD 1,000,000 (it being understood and agreed that the deductible Sellers would not be liable for such policies. the first USD 1,000,000 of said Guarantee Claims even if additional Guarantee Claims of that DB1/ 93370130.5 sort occurred). In addition to the foregoing limitations, (a) documents listed on Schedule 10.5.1(d) shall not be considered Fairly Disclosed regardless of being contained in the Data Room, (b) If documents referenced in documents contained in the amount to Data Room shall not be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant heretoconsidered Fairly Disclosed unless said referenced documents are also contained in the Data Room, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such payment. (c) Notwithstanding documents contained in the fact that any Indemnified Person may have Data Room but not listed on the right to assert claims for indemnification under Intralinks index shall not be considered Fairly Disclosed, (d) documents in the Data Room named, titled or labeled inaccurately or misleadingly shall not be considered Fairly Disclosed, (e) information contained by passing reference or in documents in which an objective third party would not expect to look for said information shall not be considered Fairly Disclosed, and (f) documents located in an area, folder or subfolder in the Data Room (based on the headings of such area, folder or subfolder in the Data Room) other than where an objective third party would reasonably expect it to be located shall not be considered Fairly Disclosed, it being understood, in each case with respect to each of more than one provision the forgoing subsections (a) through (f), that the relevant matter underlying the Guarantee Claim which is not disclosed to a sufficient extent so as to allow the Purchaser an informed assessment of this Agreement the matter in respect a document shall not be considered Fairly Disclosed; (f) the Guarantee Claims result from or are increased by the passing of, or any change in, any law statute, ordinance, rule or regulation after the Closing Date; or (g) the Guarantee Claims result from a failure of the Purchaser or, after the Closing Date, any fact, event, condition or circumstance, no Indemnified Person Lovoo Company to mitigate damages pursuant to section 254 of the German Civil Code (Bürgerliches Gesetzbuch – BGB). 10.5.2 Section 377 of the German Commercial Code (Handelsgesetzbuch - HGB) and section 442 of the German Civil Code (Bürgerliches Gesetzbuch – BGB) shall be entitled to recover the amount of any Loss not apply. 10.5.3 No loss suffered by such Indemnified Person more than once, regardless of whether such Loss may be the Purchaser or the Company as a result of a breach of this Agreement shall be counted more than once (e.g. if a breach has resulted in losses of the Company and in losses of the Purchaser in the form of a corresponding reduction of the value of the Shares held by the Purchaser). The Purchaser shall not be entitled to recover from the Seller more than once in respect of the same damage suffered. In particular, without limitation, the foregoing shall apply where one and the same set of facts (Sachverhalt) qualifies under more than one representation, warranty, obligation provision entitling the Purchaser to a claim or covenant remedy under or otherwise. In addition, any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability, or a breach of more than one representation, warranty, covenant or agreement, as applicablein connection with this Agreement. (d) Each Indemnified Person shall use its reasonable commercial efforts to mitigate any indemnifiable Loss, and in the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts. (e) The covenants of a party contained in this Agreement may not be used to circumvent the negotiated limitations (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and the like) contained in the representations and warranties and procedures with respect to the recovery by Indemnified Persons on account of the breach of such representations or warranties. (f) For the purpose of clarity, even if a representation and warranty of CPE (with respect to the Crackle VOD Business) or CSSE (with respect to the CSSE VOD Business) is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will not be responsible for post-Closing liabilities arising from operating the JV Entity by using the same means, methods, practices, processes or other manner. (g) In lieu of making a cash indemnity payment to any CSSE Indemnified Person pursuant to Section 7.2, notwithstanding anything set forth in this ARTICLE 7, CPE shall have the right to elect, within two (2) Business Days of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE to cancel a number of shares of CSSE Preferred Shares held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees). (h) Notwithstanding any other provision of this Agreement to the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes to the extent such Taxes (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Date.

Further Limitations. (a) For all purposes of this Section 7.5, “Losses” shall be net of Notwithstanding any amounts paid or payable to an Indemnified Person under any insurance policy or Contract in connection with the facts giving rise to the right of indemnification hereunder, and each Indemnified Person shall use its reasonable commercial efforts to recover all amounts payable from an insurer or other third party under any such insurance policy or Contract prior to seeking indemnification hereunder; provided, however, that the amount deemed to be paid under such insurance policies shall be net of the deductible for such policies. (b) If the amount to be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such payment. (c) Notwithstanding the fact that any Indemnified Person may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover the amount of any Loss suffered by such Indemnified Person more than once, regardless of whether such Loss may be as a result of a breach of more than one representation, warranty, obligation or covenant or otherwise. In addition, §9: (i) No party will have any liability for indemnification hereunder shall be determined without duplication of recovery by reason of under this § 9 with respect to the state of facts giving rise to such liability, or a breach of more than one representationany representation or warranty contained herein unless on or before the date that such representation and warranty expires in accordance with § 9(a), warranty, covenant the party seeking indemnification notifies such party of a claim specifying the factual basis of that claim in reasonable detail in accordance with § 9(e) or agreement§ 9(f), as applicable. (dii) Each Indemnified Person The maximum aggregate amount for which the Target Stockholders shall use its reasonable commercial efforts be liable for Adverse Consequences relating to mitigate any indemnifiable Loss, and in Parent Indemnity Claims pursuant to § 9(b)(ii) hereof shall be an amount no greater than fifteen percent (15%) of the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such effortsTotal Merger Consideration. (eiii) The covenants Parent shall not seek, or be entitled to, indemnification from the Target Preferred Stockholders pursuant to § 9(b)(ii) hereof until the aggregate amount of a party contained Adverse Consequences relating to Parent Indemnity Claims incurred or suffered by Parent Indemnitees exceeds One Hundred Twenty Five Thousand Dollars ($125,000) (the “Deductible”), and once Parent Indemnitees have incurred or suffered aggregate Adverse Consequences relating to Parent Indemnity Claims exceeding the Deductible, Parent shall be entitled to indemnification only for the amount of all Adverse Consequences relating to Parent Indemnity Claims in this Agreement may not be used to circumvent excess of the negotiated limitations amount of the Deductible (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and the like) contained in the representations and warranties and procedures with respect subject to the recovery by Indemnified Persons on account of the breach of such representations or warranties. (f) For the purpose of clarity, even if a representation and warranty of CPE (with respect to the Crackle VOD Business) or CSSE (with respect to the CSSE VOD Business) is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will not be responsible for post-Closing liabilities arising from operating the JV Entity by using the same means, methods, practices, processes or other manner. (g) In lieu of making a cash indemnity payment to any CSSE Indemnified Person pursuant to Section 7.2, notwithstanding anything limitations set forth in this ARTICLE 7, CPE shall have the right to elect, within two (2) Business Days of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement§ 9(h), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE to cancel a number of shares of CSSE Preferred Shares held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees). (hiv) Notwithstanding In no event will the Target Stockholders or Parent be liable for any other provision of claims alleging consequential damages incurred or suffered by an Indemnified Party, as applicable, with respect to this Agreement to or the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes to the extent such Taxes (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Datetransactions contemplated hereby.

Further Limitations. No liability shall attach to the Shareholder and/or the Company in respect of any Warranty Claim to the extent that: (a) For all purposes Provision or reserve is made for the matter or thing in the Closing Balance Sheet or the Working Capital Statement or such matter or thing has been reflected therein; (b) Such Warranty Claim results from any omission or voluntary act or transaction on the part of this Section 7.5the Buyer after the Closing Date other than an omission, “Losses” shall be net of act or transaction carried out pursuant to a legally binding obligation entered into by the Company on or before Closing; (c) Such Warranty Claim relates to any amounts paid loss for which the Buyer is indemnified by insurance or payable to an Indemnified Person under which the Buyer otherwise receives from a third party, provided that in such circumstances any costs or expenses incurred by the Buyer in claiming any amount from the relevant insurance policy or Contract in connection with the facts giving rise to the right of indemnification hereunder, and each Indemnified Person shall use its reasonable commercial efforts to recover all amounts payable from an insurer company or other third party under and which are not reimbursed by any such third party (including without limitation any subsequent increase in insurance policy or Contract prior to seeking indemnification hereunder; provided, however, that the amount deemed to be paid under such insurance policies premiums) shall be net included as part of the deductible for such policies. (b) If the amount to be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such payment. (c) Notwithstanding the fact that any Indemnified Person may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover the amount of any Loss suffered by such Indemnified Person more than once, regardless of whether such Loss may be as a result of a breach of more than one representation, warranty, obligation or covenant or otherwise. In addition, any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability, or a breach of more than one representation, warranty, covenant or agreement, as applicable.Warranty Claim; (d) Each Indemnified Person shall use Such Warranty Claim would not have arisen but for some act, omission, transaction or arrangement whatsoever carried out at the written request or with the written approval of the Buyer or its reasonable commercial efforts to mitigate any indemnifiable Loss, and in the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts.respective authorised representatives or which was expressly authorised by this Agreement; (e) The covenants Such Warranty Claim would not have arisen but for a cessation of trading or a party contained in this Agreement may not be used to circumvent the negotiated limitations (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and the like) contained change in the representations and warranties and procedures with respect to the recovery by Indemnified Persons on account nature or conduct of the breach of such representations or warranties.Business by the Buyer after the Closing Date; (f) For Such Warranty Claim would not have arisen but for a breach by the purpose Buyer or of clarity, even if a representation and warranty of CPE (with respect to the Crackle VOD Business) or CSSE (with respect to the CSSE VOD Business) is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will not be responsible for post-Closing liabilities arising from operating the JV Entity by using the same means, methods, practices, processes or other manner.it’s obligations under this Agreement; or (g) In lieu of making Such Warranty Claim relates to a cash indemnity payment matter which (i) would have entitled the Buyer to any CSSE Indemnified Person terminate this Agreement pursuant to Section 7.2, notwithstanding anything set forth in this ARTICLE 7, CPE shall have the right to elect, within two (29.01(c) Business Days of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end Buyer had actual knowledge of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE right to cancel a number of shares of CSSE Preferred Shares held by Crackle equal so terminate this Agreement pursuant to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees9.01(c). (h) Notwithstanding any other provision of this Agreement to the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes to the extent such Taxes (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Date.

Further Limitations. 10.5.1 The Seller shall not be liable for breach of a Seller Guarantee if and to the extent that: (a) For all purposes the matter underlying the breach of this Section 7.5a Seller Guarantee has been specifically taken into account in the calculation of the Purchase Price pursuant to Clause 5.1; DB1/ 93370130.5 38 (b) the matter underlying the breach of a Seller Guarantee has been taken into account in the Financial Statements as a specific write-off (Abschreibung), “Losses” specific value adjustment (Wertberichtigung), specific liability (Verbindlichkeit) or specific provision (Rückstellung); (c) the amounts of such Guarantee Claims have been recovered by the Purchaser and/or the Company from a third party, including under an existing insurance policy (provided that nothing herein shall require the Purchaser to litigate or otherwise appeal any denial of third-party coverage with respect to such Guarantee Claim; provided further that the Purchaser shall, if requested in writing by the Seller and to the extent reasonably possible and without cost, liability or adverse effect to the Purchaser, assign to the Seller any third-party claims relating to the Guarantee Claim that the Purchaser elects not to pursue); (d) the Purchaser had actual knowledge (positive Kenntnis) (and, for the avoidance of doubt, negligent or grossly negligent absence of knowledge shall be net irrelevant) of any amounts paid or payable to an Indemnified Person under any insurance policy or Contract in connection with the relevant facts giving rise to the right of indemnification hereunder, and each Indemnified Person shall use its reasonable commercial efforts to recover all amounts payable from an insurer or other third party under any such insurance policy or Contract prior to seeking indemnification hereundercircumstances underlying said Guarantee Claim; provided, however, that such exclusion of claims shall not apply if the amount deemed to be paid under such insurance policies Seller had actual knowledge (positive Kenntnis) (and, for the avoidance of doubt, negligent or grossly negligent absence of knowledge shall be net of the deductible for such policies. (birrelevant) If the amount to be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had facts and circumstances underlying such determination been made at the time of such payment. (c) Notwithstanding the fact that any Indemnified Person may have the right to assert claims for indemnification under or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover the amount of any Loss suffered by such Indemnified Person more than once, regardless of whether such Loss may be as a result of Guarantee Claim constituted a breach of more than one representation, warranty, obligation or covenant or otherwise. In addition, any liability for indemnification hereunder shall be determined without duplication of recovery by reason of the state of facts giving rise to such liability, or a breach of more than one representation, warranty, covenant or agreement, as applicable. (d) Each Indemnified Person shall use its reasonable commercial efforts to mitigate any indemnifiable Loss, and in the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such efforts.Guarantee; (e) The covenants of a party contained the relevant facts and circumstances underlying said Guarantee Claim have been fairly disclosed (Fairly Disclosed) to the Purchaser in (i) this Agreement may not be used to circumvent Agreement, (ii) the negotiated limitations Company Disclosure Schedule, or (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and iii) in the like) documents contained in the representations Intralinks data room “Project Blossom” (the Data Room) as of August 31, 2017. The Data Room has been stored in its entirely on one (1) USB stick and warranties and procedures with respect handed over to the recovery Purchaser’s counsel for verification, and the Purchaser’s counsel then handed over the verified copy to the acting notary for it to be held by Indemnified Persons on account of him in custody until six (6) years after the breach of such representations or warranties. (f) Signing Date and then handed over to the Company. For the purpose of claritythis Agreement, even if a representation unless otherwise noted, the term Fairly Disclosed requires that on the Signing Date the disclosure enabled or would have reasonably enabled an objective third party having industry knowledge with support by professional advisors to make an informed assessment of the nature of the matter and warranty its significance, with the Seller acknowledging that it has restricted the Purchaser’s access to certain contents of CPE the Data Room by way of restrictions and/or limitations placed on accessing, viewing, printing, downloading and copying documents. Regardless of the Purchaser’s Knowledge, nothing shall be considered Fairly Disclosed to the extent that it contradicts or is otherwise inconsistent with any affirmative statement or omission contained in (x) Clause 9.2, or (y) any Seller Guarantees (other than in Clause 9.2) with respect to any Guarantee Claims exceeding, in the Crackle VOD Business) or CSSE aggregate inclusive of all such Guarantee Claims, USD 1,000,000 (with respect to it being understood and agreed that the CSSE VOD Business) is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will Sellers would not be responsible liable for post-Closing liabilities arising from operating the JV Entity by using the same means, methods, practices, processes or other manner. (g) In lieu first USD 1,000,000 of making a cash indemnity payment to any CSSE Indemnified Person pursuant to Section 7.2, notwithstanding anything set forth in this ARTICLE 7, CPE shall have the right to elect, within two (2) Business Days said Guarantee Claims even if additional Guarantee Claims of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE to cancel a number of shares of CSSE Preferred Shares held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees). (h) Notwithstanding any other provision of this Agreement to the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes to the extent such Taxes (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Date.that

Further Limitations. (a) For all purposes IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR THE INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF THE OTHER PARTY, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THE PERFORMANCE OF, OR THE FAILURE TO PERFORM, ANY OBLIGATION(S) SET FORTH HEREIN, EXCEPT FOR SUCH DAMAGES ARISING FROM THIRD PARTY CLAIMS. (b) So long as Buyer has indemnification obligations under this Agreement, Buyer shall maintain at its own expense insurance coverage adequate to satisfy Buyer's indemnification obligations hereunder, which in any event shall include at least the insurance coverage for Buyer and its Affiliates with the policy limits that are currently in place for Buyer and its Affiliates, as set forth on the attached Schedule 10.8(b). Maintenance of this Section 7.5, “Losses” such insurance coverage shall be net not relieve Buyer of any amounts paid responsibility under this Agreement for Liabilities in excess of insurance limits or payable to an Indemnified Person under otherwise. If any insurance policy or Contract in connection with the facts giving rise to the right of indemnification hereunderLiabilities are covered by insurance, and each Indemnified Person Buyer shall use its reasonable commercial efforts to recover all amounts payable from an insurer or other third party under any such insurance policy or Contract prior to seeking indemnification hereunder; provided, however, that the amount deemed to be paid under such insurance policies shall be net of the deductible for exhaust claims against such policies. (b) If the amount to be netted hereunder from any indemnification payment required hereunder is determined after payment by an Indemnifying Person to an Indemnified Person of any amount otherwise required to be paid as indemnification pursuant hereto, the Indemnified Person shall repay, promptly after such determination, any amount that the Indemnifying Person would not have had to pay pursuant hereto had such determination been made at the time of such payment. (c) Notwithstanding the fact that any Each Indemnified Person may Party's rights under Article 10 shall not be deemed to have the right to assert claims for indemnification under been waived or in respect of more than one provision of this Agreement in respect of any fact, event, condition or circumstance, no Indemnified Person shall be entitled to recover the amount of any Loss suffered otherwise affected by such Indemnified Person more than once, regardless Party's waiver of whether such Loss may be as a result of a the breach of more than one any representation, warranty, obligation agreement or covenant contained in or otherwise. In additionmade pursuant to this Agreement, unless such waiver expressly and in writing also waives any liability for indemnification hereunder shall be determined without duplication of recovery by reason or all of the state of facts giving rise to such liability, or a breach of more than one representation, warranty, covenant or agreement, as applicableIndemnified Party's right under Article 10. (d) Each Indemnified Person shall party agrees to use its reasonable commercial efforts to mitigate any indemnifiable Loss, and in Damages which form the event that it fails to so mitigate an indemnifiable Loss, the Indemnifying Person shall have no liability basis for any portion of such Loss that reasonably could have been avoided had the Indemnified Person made such effortsclaim for indemnification hereunder. (e) The covenants of a party contained in this Agreement may not be used to circumvent the negotiated limitations (e.g., knowledge qualifiers, materiality standards, dollar thresholds, survival periods and the like) contained in the representations and warranties and procedures with respect to the recovery by Indemnified Persons on account of the breach of such representations or warranties. (f) For the purpose of clarity, even if a representation and warranty of CPE (with respect to the Crackle VOD Business) or CSSE (with respect to the CSSE VOD Business) is not accurate by reason of any means, methods, practices, processes or other manner by which such party operated its business prior to the Closing, such party (as applicable) will not be responsible for post-Closing liabilities arising from operating the JV Entity by using the same means, methods, practices, processes or other manner. (g) In lieu of making a cash indemnity payment to any CSSE Indemnified Person pursuant to Section 7.2, notwithstanding anything set forth in this ARTICLE 7, CPE shall have the right to elect, within two (2) Business Days of the date that such payment obligation first becomes established, in its sole and absolute discretion, to: (i) during the period commencing on the Closing Date and ending on the date on which Crackle exercises its Put Option or Conversion Right (as each such term is defined in the JV Operating Agreement), cause the JV Entity to cancel a number of Preferred Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Preferred Unit of One Thousand Dollars ($1,000); (ii) following the end of the Exercise Period, if Crackle has exercised its Put Option (as such term is defined in the JV Operating Agreement) and received CSSE Preferred Shares, or Crackle has received CSSE Preferred Shares in the Crackle Refund, cause CSSE to cancel a number of shares of CSSE Preferred Shares held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per share of Twenty Five Dollars ($25); and (iii) following the end of the Exercise Period, if Crackle has exercised its Conversion Option, and received Common Units, cause the JV Entity to cancel a number of Common Units held by Crackle equal to the amount of the indemnification payment owed by CPE to such CSSE Indemnified Person, divided by a price per Conversion Unit equal to such Conversion Unit’s Fair Market Value (as defined in the JV Operating Agreement). Notwithstanding anything to the contrary, the rights afforded CPE under this clause (g) shall not apply to indemnity payments obligations arising from or related to breaches of Section 2.1 (Authority and Enforceability), Section 3.1 (Organization), Section 3.2 (Authority and Enforceability), or Section 3.23 (Brokers’ Fees). (h) Notwithstanding any other provision of this Agreement to the contrary, the Indemnified Persons shall have no right to indemnification under this Agreement with respect to, or based on, Taxes to the extent such Taxes (i) are attributable to any Tax period other than a Pre-Closing Tax Period, or (ii) are due to the unavailability in any Tax periods (or portions thereof) beginning after the Closing Date of any net operating losses, credits or other Tax attributes from a Tax period (or portion thereof) ending on or before the Closing Date.