Common use of Indemnification Threshold and Cap Clause in Contracts

Indemnification Threshold and Cap. Notwithstanding anything to the contrary in this Agreement, (A) Seller shall not be required to provide indemnification to the Purchaser Indemnitees pursuant to Section 15.2 except to the extent the aggregate amount of all Indemnification Losses incurred by the Purchaser Indemnitees for which Purchaser otherwise would be entitled to indemnification under Section 15.2 exceeds Two Hundred Thousand and 00/100 Dollars ($200,000.00) (the “Threshold”), and (B) Seller’s liability for any and all indemnification claims shall not exceed three percent (3%) of the Purchase Price (the “Cap”); (x) provided, however, that in the event the Purchaser Indemnitees suffer Indemnification Losses in excess of the Cap and Seller actually receives insurance proceeds in excess of the Cap on account of the Indemnification Losses paid over to the Purchaser Indemnitees, Seller shall pay the amount of such excess insurance proceeds to the applicable Purchaser Indemnitees, less any applicable deductibles and Seller’s costs and expenses of collection, and (y) provided, further, however, the Threshold and Cap shall not apply to (i) any Indemnification Losses arising from Seller’s fraud, (ii) any amounts for any brokerage commission or fees, (iii) prorations or post-closing adjustments pursuant to Section 11.2, (iv) any amounts under an Indemnification Cure Right pursuant to Section 13.2, and (v) any reasonable out-of-pocket costs and expenses incurred by the Purchaser Indemnitees in making any Indemnification Claim and enforcing the provisions of this Article XV.

Indemnification Threshold and Cap. Notwithstanding anything (a) In respect of ▇▇▇▇▇’s assertion of an Indemnification Claim under Section 13(a), Buyer shall not be entitled to indemnification until the aggregate amount for which indemnification is sought exceeds $5,000.00. If this threshold is reached, Buyer may assert an Indemnification Claim for the full amount of the claim (going back to the contrary in first dollar) and may assert any subsequent Indemnification Claim under Section 13(a) without regard to any threshold. The maximum aggregate amount for which Buyer may assert Indemnification Claims, including any Loss caused by, arising out of or relating to any fraud or intentional misrepresentation, shall be Two Million, Two Hundred and Fifty Thousand and 00/100 US Dollars ($2,250,000) (“Indemnification Cap” with respect to this AgreementSection 15(a) and Section 15(b)). (b) In respect of Seller’s assertion of an Indemnification Claim under Section 14(a), (A) Seller shall not be required entitled to provide indemnification to the Purchaser Indemnitees pursuant to Section 15.2 except to the extent until the aggregate amount of all Indemnification Losses incurred by the Purchaser Indemnitees for which Purchaser otherwise would be entitled indemnification is sought collectively exceeds $5,000.00. If this threshold is reached, Seller may assert an Indemnification Claim for the full amount of the claim (going back to indemnification the first dollar) and may assert any subsequent Indemnification Claim under Section 15.2 exceeds Two Hundred Thousand and 00/100 Dollars ($200,000.0014(a) (the “Threshold”), and (B) Seller’s liability without regard to any threshold. The maximum aggregate amount for any and all indemnification claims which Seller may assert Indemnification Claims shall not exceed three percent the Indemnification Cap, except that any Loss caused by, arising out of or relating to any fraud or intentional misrepresentation, shall not be subject to the Indemnification Cap. (3%c) In no event shall any indemnifying party hereunder be liable to any indemnified party hereunder for any punitive, incidental, consequential, special or indirect damages, including loss of future revenue or income, loss of business reputation or opportunity relating to the Purchase Price breach or alleged breach of this Agreement, or diminution of value or any damages based on any type of multiple. (d) Payments by an indemnifying party hereunder in respect of any Loss shall be limited to the “Cap”); amount of any liability or damage that remains after deducting therefrom any insurance proceeds and any indemnity, contribution or other similar payment received or reasonably expected to be received by the indemnified party hereunder in respect of any such claim. The indemnified party hereunder shall use its commercially reasonable efforts to recover under insurance policies or indemnity, contribution or other similar agreements for any Losses prior to seeking indemnification under this Agreement. (xe) providedNotwithstanding the foregoing, howeverthe Indemnification Cap shall not be implicated, that in the event the Purchaser Indemnitees suffer Indemnification Losses in excess of the Cap and Seller actually receives waived or reduced if a party’s applicable insurance coverage provides coverage and/or insurance proceeds in excess of relation to, or in the Cap on account of the Indemnification Losses paid over to the Purchaser Indemniteesdefense or settlement of, Seller shall pay the amount of such excess insurance proceeds to the applicable Purchaser Indemnitees, less any applicable deductibles and Seller’s costs and expenses of collection, and (y) provided, further, however, the Threshold and Cap shall not apply to (i) any Indemnification Losses arising from Seller’s fraud, (ii) any amounts for any brokerage commission or fees, (iii) prorations or post-closing adjustments pursuant to Section 11.2, (iv) any amounts under an Indemnification Cure Right pursuant to Section 13.2, and (v) any reasonable out-of-pocket costs and expenses incurred by the Purchaser Indemnitees in making any Indemnification Claim and enforcing the provisions of this Article XVClaim.

Indemnification Threshold and Cap. (a) Notwithstanding anything any other provision hereof, no Indemnitor will have any indemnification obligations under Section 8.01(a) (exclusive of a Company Warranty Breach or a Seller Warranty Breach involving any of Sellers’ Fundamental Warranties, willful misrepresentation or fraud) or Section 8.02(a) (exclusive of a Buyer Warranty Breach involving any of Buyer’s Fundamental Warranties, willful misrepresentation or fraud) unless and until the Losses with respect to claims asserted against such Indemnitor exceed Five Hundred Thousand U.S. Dollars ($500,000) in the contrary aggregate (the “Threshold Amount”); thereafter, such Indemnitor will be liable for the Losses for which indemnification claims properly asserted against it, in this Agreement, excess of the Threshold Amount plus Two Hundred Fifty Thousand U.S. Dollars (A$250,000) Seller shall not be required to provide indemnification to of the Purchaser Indemnitees pursuant to Section 15.2 except to the extent the Threshold Amount. (b) The aggregate amount of all Indemnification Losses incurred by the Purchaser Indemnitees for which Purchaser otherwise would the Sellers shall be entitled to indemnification liable under Section 15.2 exceeds Two Hundred Thousand 8.01(a) and 00/100 Section 8.01(d) shall not exceed Ten Million U.S. Dollars ($200,000.0010,000,000) (the “Threshold”), and (B) Seller’s liability for any and all indemnification claims shall not exceed three percent (3%) of the Purchase Price (the “Cap”); (x) providedor, however, that in the event case of Company Warranty Breaches or Seller Warranty Breaches involving any of Sellers’ Fundamental Warranties, willful misrepresentation or fraud, the Purchaser Indemnitees suffer Indemnification Losses Purchase Price. (c) The parties acknowledge and agree that no Seller shall be obligated to indemnify the Buyer Indemnified Parties with respect to any matter or item to the extent that such matter or item was included in excess the final determination of the Cap and Seller actually receives insurance proceeds in excess of the Cap on account of the Indemnification Losses paid over to the Purchaser Indemnitees, Seller shall pay the amount of such excess insurance proceeds to the applicable Purchaser Indemnitees, less any applicable deductibles and Seller’s costs and expenses of collection, and (y) provided, further, however, the Threshold and Cap shall not apply to (i) any Indemnification Losses arising from Seller’s fraud, (ii) any amounts for any brokerage commission or fees, (iii) prorations or post-closing adjustments pursuant to Section 11.2, (iv) any amounts under an Indemnification Cure Right pursuant to Section 13.2, and (v) any reasonable out-of-pocket costs and expenses incurred by the Purchaser Indemnitees in making any Indemnification Claim and enforcing the provisions of this Article XVWorking Capital.