Common use of Liability Caps Clause in Contracts

Liability Caps. Except as provided in Section 13.2 below, the liability of the Service Provider (which shall, for purposes of this Article, include the Service Provider’s Affiliates and its and their subcontractors) to the Customer (which shall, for purposes of this Article, include the members of the Customer Group and the Authorized Users) and the liability of the Customer to the Service Provider arising under or relating to this Agreement, regardless of the form of action, whether based on contract, warranty, tort (including negligence), statute or otherwise, including liability arising out of, relating to, or resulting from the performance or non-performance of their respective obligations pursuant to this Agreement shall be limited in the aggregate for all claims: (a) to, in the case of the Service Provider and the Customer, Direct Damages in an amount not to exceed the amounts paid by the Customer to the Service Provider under this Agreement during the twelve (12) months immediately preceding the occurrence of the first event giving rise to liability (the “Cap”) and, in the case of the Service Provider, to an additional, separate amount solely for any Losses required to be paid by the Service Provider pursuant to Section 14.1(h), not to exceed the amounts paid by the Customer to the Service Provider under this Agreement during the four (4) months immediately preceding the occurrence of the first event giving rise to liability under Section 14.1(h) (the “Fines Cap”); provided, however, that for the first twelve (12) months immediately following the Effective Date, the Cap shall be the Initial Year Cap and the Fines Cap shall be the Initial Year Fines Cap. The Fines Cap is a single separate cap covering all Losses required to be paid by the Service Provider pursuant to Section 14.1(h) hereof. The Service Provider and the Customer agree that any Losses paid or required to be paid by the Service Provider pursuant to Section 14.1(h) hereof shall not be subject to the Cap or included in calculating the Cap and shall instead be subject only to the single Fines Cap, and that amounts that are subject to the Cap are not subject to or included in calculating the Fines Cap. (b) Neither Party shall have any liability to the other Party or its Affiliates or any third party beneficiary claiming under this Agreement regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute or otherwise for special, indirect, incidental, consequential or exemplary damages, including lost profits, loss of interest or other damages.

Liability Caps. Except as provided in Section 13.2 below, the The liability of the Service Provider (which shall, for purposes of this Article, include the Service Provider’s Affiliates and its and their subcontractors) ISSC to the Customer (which shall, for purposes of this Article, include the members of the Customer Group and the Authorized Users) and the liability of the Customer to the Service Provider arising under or relating to this Agreement, regardless of the form of action, whether based on contract, warranty, tort (including negligence), statute or otherwise, including liability Flagstar arising out of, relating to, of or resulting from the performance or non-performance of their respective ISSC and its subcontractors of the Services and its obligations pursuant to under this Agreement shall be limited (a) to "Direct Damages" incurred by Flagstar for each event which is the subject matter of a claim or cause of action with a liability cap for each such event which is not declared by Flagstar as the basis for its termination of this Agreement pursuant to Section 10.3(a) Cause or (e) Bankruptcy, equal to the actual charges to Flagstar for the Services during the three (3) calendar months immediately following each such event, which damages in the aggregate shall not exceed the charges to Flagstar for all claims: (a) to, the Services set forth in the case Supplement during the twenty-four (24) months immediately following the first such event or if there are not twenty-four (24) months left in the Term after the first such event, the charges to Flagstar for the Services set forth in the Supplement during the last twenty-four (24) months of the Service Provider Term; and the Customer, Direct Damages in an amount not to exceed the amounts paid by the Customer (b) to the Service Provider under "Direct Damages" incurred by Flagstar for the event(s) which are the subject matter of claim(s) or cause(s) of action which are declared by Flagstar as the basis for its termination of this Agreement pursuant to Section 10.3(a) Cause or (e) Bankruptcy, with a liability cap for such event(s) and termination equal to the actual charges to Flagstar for the Services during the twelve (12) months month period immediately preceding the occurrence such event(s) or if twelve (12) months of the first event giving rise Term have not elapsed, the charges to liability (Flagstar for the “Cap”) and, Services set forth in the case of the Service Provider, to an additional, separate amount solely for any Losses required to be paid by the Service Provider pursuant to Section 14.1(h), not to exceed the amounts paid by the Customer to the Service Provider under this Agreement during the four (4) months immediately preceding the occurrence of the first event giving rise to liability under Section 14.1(h) (the “Fines Cap”); provided, however, that Supplement for the first twelve (12) months immediately following of the Effective Date, Term (the Cap "ISSC Direct Damages Cap"). The liability of Flagstar to ISSC arising out of or resulting from the performance and non-performance of its obligations under this Agreement shall be limited in all cases to Direct Damages which in the Initial Year aggregate shall not exceed the amounts payable by Flagstar upon a termination for Convenience under Section 10.5(b) (the "Flagstar Direct Damages Cap"). The ISSC Direct Damages Cap and the Fines Cap shall be the Initial Year Fines Cap. The Fines Cap is a single separate cap covering all Losses required to be paid by the Service Provider pursuant to Section 14.1(h) hereof. The Service Provider and the Customer agree that any Losses paid or required to be paid by the Service Provider pursuant to Section 14.1(h) hereof shall not be subject to the Cap or included in calculating the Cap and shall instead be subject only to the single Fines Cap, and that amounts that are subject to the Flagstar Direct Damages Cap are not subject to or included in calculating herein collectively called the Fines Cap"Direct Damages Caps". (b) Neither Party shall have any liability to the other Party or its Affiliates or any third party beneficiary claiming under this Agreement regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute or otherwise for special, indirect, incidental, consequential or exemplary damages, including lost profits, loss of interest or other damages.

Liability Caps. a) Except as provided in Section 13.2 below13.2, the liability of the Service Provider (which shall, for purposes of this Article, include the Service Provider’s Affiliates IBM and its Affiliates to Certegy and their subcontractors) to the Customer (which shall, for purposes of this Article, include the members of the Customer Group and the Authorized Users) and the liability of the Customer to the Service Provider arising its Affiliates under or relating to this Agreement, regardless of the form of action, whether based on contract, warranty, tort (including negligence), statute or otherwise, including liability each Transaction Document arising out of, relating to, of or resulting from the performance or non-performance of their respective IBM and/or its Affiliates and/or subcontractors of the Services and its obligations pursuant to this Agreement under such Transaction Document shall be limited in the aggregate for all claims, causes of action or occurrences: (a1) to, to Direct Damages incurred by Certegy and its Affiliates equal to the charges paid by Certegy for the Services set forth in the case of the Service Provider and the Customer, Direct Damages in an amount not supplement to exceed the amounts paid by the Customer to the Service Provider under this Agreement such Transaction Document during the twelve (12) calendar months immediately preceding prior to the occurrence first event which is the subject of the first event giving rise to liability claim or if twelve (the “Cap”12) and, months have not elapsed in the case term of such Transaction Document at the Service Provider, to an additional, separate amount solely for any Losses required to be paid by the Service Provider pursuant to Section 14.1(h), not to exceed the amounts paid by the Customer to the Service Provider under this Agreement during the four (4) months immediately preceding the occurrence time of the first event giving rise such event, the charges to liability under Section 14.1(h) (Certegy for the “Fines Cap”); provided, however, that for Services set forth in such Supplement during the first twelve (12) months immediately following of the Effective Dateterm of such Transaction Document (“IBM Direct Damages Cap”); and 2) in the event Certegy claims Direct Damages for event(s) which are the subject matter of claim(s) or cause(s) of action which are the basis for and result in Certegy’s termination of the Agreement or any Transaction Document pursuant to Section 12.1 (a) for cause or (e) for Bankruptcy, and the IBM Direct Damages Cap operates to preclude Certegy’s recovery of its full amount of Transition Cover Costs, then Certegy shall be entitled to recover an additional amount from IBM, not to exceed fifty percent (50%) of the Direct Damages Cap, which amount shall be applied only toward such unrecovered Transition Cover Costs. b) Except as provided in Section 13.2, the Cap liability of Certegy to IBM arising out of or resulting from the performance and non-performance of its obligations under each Transaction Document shall be limited in all cases to Direct Damages which in the Initial Year aggregate shall not exceed the amounts payable by Certegy upon a termination of such Transaction Document for convenience under Section 12.3(a) (the “Certegy Direct Damages Cap”). The IBM Direct Damages Cap and the Fines Cap shall be the Initial Year Fines Cap. The Fines Cap is a single separate cap covering all Losses required to be paid by the Service Provider pursuant to Section 14.1(h) hereof. The Service Provider and the Customer agree that any Losses paid or required to be paid by the Service Provider pursuant to Section 14.1(h) hereof shall not be subject to the Cap or included in calculating the Cap and shall instead be subject only to the single Fines Cap, and that amounts that are subject to the Certegy Direct Damages Cap are not subject to or included in calculating herein collectively called the Fines Cap“Direct Damages Caps”. (b) Neither Party shall have any liability to the other Party or its Affiliates or any third party beneficiary claiming under this Agreement regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute or otherwise for special, indirect, incidental, consequential or exemplary damages, including lost profits, loss of interest or other damages.

Liability Caps. a) Except as provided in Section 13.2 below13.2, the liability of the Service Provider (which shall, for purposes of this Article, include the Service Provider’s Affiliates IBM and its Affiliates to Certegy and their subcontractors) to the Customer (which shall, for purposes of this Article, include the members of the Customer Group and the Authorized Users) and the liability of the Customer to the Service Provider arising its Affiliates under or relating to this Agreement, regardless of the form of action, whether based on contract, warranty, tort (including negligence), statute or otherwise, including liability each Transaction Document arising out of, relating to, of or resulting from the performance or non-performance of their respective IBM and/or its Affiliates and/or subcontractors of the Services and its obligations pursuant to this Agreement under such Transaction Document shall be limited in the aggregate for all claims, causes of action or occurrences: (a1) to, to Direct Damages incurred by Certegy and its Affiliates equal to the charges paid by Certegy for the Services set forth in the case of the Service Provider and the Customer, Direct Damages in an amount not supplement to exceed the amounts paid by the Customer to the Service Provider under this Agreement such Transaction Document during the twelve (12) calendar months immediately preceding prior to the occurrence first event which is the subject of the first event giving rise to liability claim or if twelve (the “Cap”12) and, months have not elapsed in the case term of such Transaction Document at the Service Provider, to an additional, separate amount solely for any Losses required to be paid by the Service Provider pursuant to Section 14.1(h), not to exceed the amounts paid by the Customer to the Service Provider under this Agreement during the four (4) months immediately preceding the occurrence time of the first event giving rise such event, the charges to liability under Section 14.1(h) (Certegy for the “Fines Cap”); provided, however, that for Services set forth in such Supplement during the first twelve (12) months immediately following of the Effective Dateterm of such Transaction Document ("IBM Direct Damages Cap"); and 2) in the event Certegy claims Direct Damages for event(s) which are the subject matter of claim(s) or cause(s) of action which are the basis for and result in Certegy's termination of the Agreement or any Transaction Document pursuant to Section 12.1 (a) for cause or (e) for Bankruptcy, and the IBM Direct Damages Cap operates to preclude Certegy's recovery of its full amount of Transition Cover Costs, then Certegy shall be entitled to recover an additional amount from IBM, not to exceed fifty percent (50%) of the Direct Damages Cap, which amount shall be applied only toward such unrecovered Transition Cover Costs. b) Except as provided in Section 13.2, the Cap liability of Certegy to IBM arising out of or resulting from the performance and non-performance of its obligations under each Transaction Document shall be limited in all cases to Direct Damages which in the Initial Year aggregate shall not exceed the amounts payable by Certegy upon a termination of such Transaction Document for convenience under Section 12.3(a) (the "Certegy Direct Damages Cap"). The IBM Direct Damages Cap and the Fines Cap shall be the Initial Year Fines Cap. The Fines Cap is a single separate cap covering all Losses required to be paid by the Service Provider pursuant to Section 14.1(h) hereof. The Service Provider and the Customer agree that any Losses paid or required to be paid by the Service Provider pursuant to Section 14.1(h) hereof shall not be subject to the Cap or included in calculating the Cap and shall instead be subject only to the single Fines Cap, and that amounts that are subject to the Certegy Direct Damages Cap are not subject to or included in calculating herein collectively called the Fines Cap"Direct Damages Caps". (b) Neither Party shall have any liability to the other Party or its Affiliates or any third party beneficiary claiming under this Agreement regardless of the form of action, whether based on warranty, contract, tort (including negligence), statute or otherwise for special, indirect, incidental, consequential or exemplary damages, including lost profits, loss of interest or other damages.