Limitation of Liability Sample Clauses

Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.
Limitation of Liability. Except as otherwise provided in Subject to Section 6.03 hereof, the liability of any Service Provider with respect to this Section 5, neither Morgan Stanley nor its affiliates shall have Services Agreement to any responsibility Receiving Party or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of any Services provided to such Receiving Party or any act or failure to act in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; herewith (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government the performance or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disastersbreach hereof), or from the unscheduled closure sale, delivery, provision or use of an exchange any Service provided under or contract market covered by this Services Agreement, whether in contract, tort (including negligence and strict liability) or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilitiesotherwise, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused limited to actions or omissions resulting from performance intentional breach of its obligations hereunder for this Services Agreement or gross negligence, and, in any event, such period of time as is reasonably necessary after such occurrence to remedy liability shall not exceed the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating fees previously paid to such services; provided however, Morgan Stanley shall be liable to Service Provider by such Receiving Party during the extent such Loss is caused by term of the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsapplicable Service giving rise thereto.
Limitation of Liability. Except as otherwise You agree that our entire liability, and your exclusive remedy, with respect to any Services(s) provided under this Agreement and any breach of this Agreement is solely limited to the amount you paid for such Service(s). We and our contractors shall not be liable for any direct, indirect, incidental, special or consequential damages resulting from the use or inability to use any of the Services or for the cost of procurement of substitute services. Because some states do not allow the exclusion or limitation of liability for consequential or incidental damages, in this Section 5such states, neither Morgan Stanley nor its affiliates shall have our liability is limited to the extent permitted by law. We disclaim any responsibility and all loss or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includingresulting from, but not limited to, government : (1) loss or exchange suspensions liability resulting from access delays or restrictions on trading access interruptions; (2) loss or clearing, war, liability resulting from data non-delivery or data mis-delivery; (3) loss or liability resulting from acts of terrorism God; (4) loss or natural disastersliability resulting from the unauthorized use or misuse of your account identifier or password; (5) loss or liability gTLD Contract Page 21 Last Revised on 09/02/01 11:58 AM Rev. 3.0.0 resulting from errors, omissions, or the unscheduled closure of an exchange misstatements in any and all information or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefromservices(s) provided under this Agreement; (v6) as a result loss or liability resulting from the interruption of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)your Service. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) You agree that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall we will not be liable to the extent such Loss is caused by the negligencefor any loss of registration and use of your domain name, fraud or willful misconduct for interruption of Morgan Stanley. Neither party shall be liable to the other for consequentialbusiness, or any indirect, special, incidental, punitive or special consequential damages hereunderof any kind (including lost profits) regardless of the form of action whether in contract, includingtort (including negligence), without limitationor otherwise, damages alleged on even if we have been advised of the basis possibility of lost profits or lost assets, including income-producing assetssuch damages. In no event shall our maximum liability exceed five hundred ($500.00) dollars.
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party extent of its obligations to Morgan Stanley in respect of gross negligence, fraud or in connection with any Contract providedwillful misconduct, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall not be excused from performance of its obligations hereunder liable for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken loss, liability or expense incurred by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) Customer in connection with or arising out of this Agreement, transactions in or for Customers Account or any agreements relating to Electronic Trading Services provided to Customer actions taken by Morgan Stanley (at the terms request or direction of Customer, including, for the avoidance of doubt, any loss, liability or expense relating to the failure of any clearing house, executing broker, clearing broker, custodian or other intermediary to perform its obligations in connection with any transaction by Customer. Notwithstanding anything to the contrary contained in this Agreement or any document issued or delivered in connection with any Contracts and conditions or transactions entered into under this Agreement, any amounts owed or liabilities incurred by Customer, in respect of which any Contracts or transactions entered into under this Agreement, may be satisfied solely from the assets of Customer. Without limiting the generality of the foregoing, in their entirety are incorporated herein no event shall Morgan Stanley or any of its affiliates have recourse, whether by reference). Furtherset-off or otherwise, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation such amounts owed or warranty whatsoever liabilities incurred, to or against (a) with respect to accuracyany assets of any person or entity (including without limitation, completeness any person or timeliness entity whose account is under the management of such servicesthe investment manager of Customer) other than Customer, (b) that such services shall be uninterrupted or error free; and any assets of any affiliate of Customer, (c) including any implied warranties assets of titlethe general partner of Customer (to the extent applicable), non(d) any assets of the investment manager of Customer or any affiliate of such investment manager. Notwithstanding the foregoing (a-infringementd), merchantability nothing herein shall be construed as a waiver of any valid claim or fitness for cause of action Morgan Stanley may otherwise have against any of the parties set forth above, independent of the undersigneds obligations hereunder. Notwithstanding the foregoing, nothing herein shall be construed as a particular purpose relating representation by Morgan Stanley that, with respect to such services; provided howeverany transaction under this Agreement in respect of the Account, Morgan Stanley shall be liable will (A) guarantee the Customer against loss; (B) limit the loss of Customer in respect of the Account; or (C) not call for or attempt to collect from the extent such Loss is caused Customer initial and maintenance margin as established by the negligencerules of the applicable exchange, fraud or willful misconduct in accordance with the provisions of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsAgreement.
Limitation of Liability. Except as otherwise provided in this Section 5, neither Neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, performance by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organizationfirm, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, collectively Electronic Trading ServicesSystems), or by any other third party (including, without limitation, floor brokers and banks) to Morgan Stanley of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that or other property of Customer except to the extent such performance or non-performance is caused by the misconduct or negligence of Morgan Stanley has picked such party in a commercially reasonable mannerStanley; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, Stanley whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructioninstructions, notice or communication notices and communications that it reasonably believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading ServicesSystem), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; (vi) for any acts or omissions of those neither employed nor supervised by Morgan Stanley; or (vivii) in connection with or arising out of any agreements relating to services provided under any electronic trading agreement (Electronic Trading Services provided to Services) between Customer by and Morgan Stanley except to the extent of misconduct or negligence of Morgan Stanley, its employees or those it supervises (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, . Morgan Stanley shall not be liable responsible for any loss, liability, damage or expense except to the extent that such Loss is caused by the negligenceloss, fraud liability, damage or willful misconduct of expense arises from its negligence or misconduct. In no event will Morgan Stanley. Neither party shall Stanley or Customer be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.
Limitation of Liability. Except as otherwise provided in NEITHER OPERATOR (NOR ITS AFFILIATES) MAKES, HAS MADE OR SHALL BE DEEMED TO MAKE OR HAVE MADE ANY WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO ANY AIRCRAFT TO BE USED HEREUNDER OR ANY ENGINE OR COMPONENT THEREOF INCLUDING, WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS, QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE, USE OR OPERATION, AIRWORTHINESS, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT OR TITLE. IN NO EVENT SHALL OPERATOR OR ITS AFFILIATES BE LIABLE FOR OR HAVE ANY DUTY FOR INDEMNIFICATION OR CONTRIBUTION TO USER, HIS EMPLOYEES, AGENTS OR GUESTS FOR ANY CLAIMED INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER IT KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE, LOSS OR EXPENSE. The provisions of this Section 5, neither Morgan Stanley nor its affiliates 10 shall have any responsibility survive the termination or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party expiration of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsthis Agreement.
Limitation of Liability. Except as otherwise provided in With respect to any Custom Helicopter, part or service purchased under this Section 5Agreement and alleged to be the direct or indirect cause of any loss or damage to the Customer, neither Morgan Stanley nor the sum equal to the invoiced price of such Custom Helicopter, part or service shall be the ceiling limit on Sikorskys or any of its affiliates shall have any responsibility liability whether founded in contract or tort (including negligence, strict tort liability to Customer hereunder foror breach of warranty), any Losses however caused, incurred arising out of or suffered by Customer directly or indirectly resulting from (i) in connection with this Agreement or the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)breach thereof, or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result the design, manufacture, delivery, sale, repair, replacement, or any use of any predictionsuch Custom Helicopter, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result the furnishing of any delay in the performance such service. In no event shall Sikorsky or non-performance of any of Morgan Stanleys obligations hereunder directly its affiliates have any liability for any incidental or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsconsequential damages.
Appears in 3 contracts
Limitation of Liability. Except as otherwise provided in this Section 5PEGASUS, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly ITS SUBSIDIARIES AND AFFILIATES SHALL HAVE NO LIABILITY ARISING FROM OR RELATING TO (i) in connection with the performance or non-performanceTHE FAILURE OF THE SERVICES TO OPERATE OR FUNCTION DUE TO APPLICATIONS, for any reasonEQUIPMENT, by any designated contract marketSERVICES, swaps execution facilityCONTENT OR NETWORKS PROVIDED BY CUSTOMER, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable mannerAN AFFILIATE OR A THIRD PARTY NOT ACTING AS PEGASUS AGENT; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of CustomerINTERRUPTIONS OF CUSTOMERS OR ANY AFFILIATES ACCESS TO THE SERVICES OR LOST OR ALTERED TRANSMISSIONS NOT CAUSED BY PEGASUS; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructionUNAUTHORIZED ACCESS TO OR THEFT, notice or communication that it believes to be that of an individual authorized to act on behalf of CustomerALTERATION, LOSS OR DESTRUCTION BY ANY THIRD PARTY OF CUSTOMERS OR ANY AFFILIATES APPLICATIONS, CONTENT, DATA, INFORMATION, NETWORKS OR SYSTEMS NOT CAUSED BY PEGASUS; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includingDATA PROVIDED OR ENTERED BY CUSTOMER, but not limited toANY AFFILIATE OR ANY THIRD PARTY (OTHER THAN ANY ERROR OR OMISSION IN DATA CAUSED BY PEGASUS, government or exchange suspensions or restrictions on trading or clearingOR PEGASUS AGENTS OR SUBCONTRACTORS, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading ServicesENTRY OF THAT DATA), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; OR (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or ANY GOOD OR SERVICE SUPPLIED TO CUSTOMER OR AN AFFILIATE BY ANY THIRD PARTY THAT IS REFERRED BY PEGASUS OR THAT HAS A HYPERLINK, ADVERTISEMENT OR OTHER PRESENCE ON ANY PAGE OR SCREEN DISPLAYED BY PEGASUS. EXCEPT FOR EACH PARTYS INDEMNIFICATION AND CONFIDENTIALITY OBLIGATIONS, AND PAYMENT OBLIGATIONS, IN NO EVENT WILL EITHER PARTYS LIABILITY UNDER THIS AGREEMENT EXCEED THE TOTAL FEES AND COSTS PAID BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (vi12) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsMONTHS IMMEDIATELY PRECEDING THE DATE OF THE CAUSE OF ACTION OR OCCURRENCE WHICH IS THE BASIS OF EITHER PARTYS CLAIM AGAINST THE OTHER PARTY.
Limitation of Liability. Except as otherwise provided in this Section 5Neither the Consultant nor any of its affiliates, neither Morgan Stanley nor its affiliates shall have any responsibility of their respective past, current or liability to Customer hereunder forfuture members, managers, partners, directors, officers, employees, agents and/or controlling persons, nor any Losses however caused, incurred or suffered successor by Customer directly or indirectly operation of law (iincluding by merger) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (of any such systemperson, facility nor any entity that acquires all or servicesubstantially all of the assets of any such person in a single transaction or series of related transactions (all of the foregoing, collectively, Electronic Trading Services), the Consultant Indemnitees) shall be liable to the Company or by any other third party of the Subsidiaries or affiliates or any of the security holders or creditors of the Company or any of its obligations to Morgan Stanley affiliates for (a) any damage, loss, liability, deficiency, diminution in respect of or in connection with any Contract providedvalue, howeveraction, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any predictionsuit, recommendation or advice made or given by a representative of Morgan Stanleyclaim, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructionproceeding, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includinginvestigation, but not limited toaudit, government or exchange suspensions or restrictions on trading or clearingdemand, warassessment, acts of terrorism or natural disastersfine, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilitiesjudgment, execution, and/or trading facilities cost or other systems expense (including, without limitation, any Electronic Trading Services)legal fees and expenses) (collectively Liabilities) directly or indirectly (whether direct or indirect, it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (vin contract or tort or otherwise) as a result of any action reasonably taken by arising out of, related to, caused by, based upon or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out the performance of any agreements relating services contemplated by this Agreement unless such Liability shall be proven to Electronic Trading Services provided to Customer by Morgan Stanley (result directly and primarily from the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness willful misconduct of such services, person or (b) that such any Outside Activities (as defined in Section 17 below). The Consultant makes no representations or warranties, express or implied, in respect of the services shall be uninterrupted or error free; and (c) including provided by any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Consultant Indemnitee. In no event will any Consultant Indemnitee be liable to (i) the extent such Loss is caused by Company or any of the negligenceSubsidiaries or affiliates (x) for any special, fraud indirect, punitive, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis loss of lost profits or savings or lost assetsbusiness, including income-producing assetswhether or not such damages are foreseeable or such Consultant Indemnitee has been advised of the possibility of such damages or (y) in respect of any Liabilities relating to any third party claims (whether based in contract, tort or otherwise), except as set forth in Section 5 below or (ii) to any of the security holders or creditors of the Company for any Liability whatsoever. Under no circumstances will the aggregate of any and all Liabilities of the Consultant Indemnitees exceed the aggregate of the fees actually paid to the Consultant hereunder.
Limitation of Liability. Except as otherwise provided in In any event, the liability of New NGC with respect to this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility Transition Services Agreement or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) anything done in connection with herewith, including the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)breach hereof, or from the sale, delivery, provision or use of any Service or product provided under or covered by any other third party of its obligations this Transition Services Agreement, whether in contract, tort (including negligence or strict liability) or otherwise, shall not exceed the dollar amounts previously paid to Morgan Stanley New NGC by HII in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked the Service to which such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsliability relates.
Limitation of Liability. Except as otherwise provided in this Section 5IORG IS NOT LIABLE TO YOU OR ANYONE ELSE FOR ANY CONSEQUENTIAL, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forINCIDENTAL, any Losses however causedSPECIAL, incurred or suffered by Customer directly or indirectly DIRECT, OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSSES OR DAMAGES THAT RESULT FROM (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable mannerUSE OR LOSS OF USE OF THE SERVICES OR THE INFORMATION GENERATED THEREFROM; (ii) as a result of any predictionTHE COST OF PROCUREMENT OF SUBSTITUTE SERVICES RESULTING FROM ANY DATA, recommendation or advice made or given by a representative of Morgan StanleyRECORDS, whether or not made or given at the request of CustomerINFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of CustomerUNAUTHORIZED ACCESS TO OR ALTERATION OF THE PARTIES TRANSMISSIONS OR DATA; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefromSTATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or ANY OTHER MATTER RELATING TO THE SERVICE OTHER THAN IORG'S GROSS NEGLIGENCE. THIS IS TRUE EVEN IF THE PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IORG IS NOT LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS RESULTING FROM A CAUSE OVER WHICH IORG DOES NOT HAVE DIRECT CONTROL. THIS INCLUDES FAILURE OF ELECTRONIC OR MECHANICAL EQUIPMENT, UNAUTHORIZED ACCESS, VIRUSES, THEFT, OPERATOR ERRORS, SEVERE OR EXTRAORDINARY WEATHER (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by referenceINCLUDING FLOOD, EARTHQUAKE, OR OTHER ACT OF GOD), FIRE, WAR, INSURRECTION, TERRORIST ACT, RIOT, LABOR DISPUTE AND OTHER LABOR PROBLEMS, ACCIDENT, EMERGENCY OR ACTION OF GOVERNMENT. FurtherMOREOVER, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracyYOU EXPRESSLY UNDERSTAND AND AGREE THAT UNDER NO CIRCUMSTANCES SHALL IORG'S LIABILITY EXCEED THE VALUE OF THIS AGREEMENT AS DESCRIBED IN SCHEDULE B. IF YOU LIVE IN A STATE THAT DOES NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsSOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
Appears in 2 contracts
Limitation of Liability. Except as otherwise provided in this Section 5In no event will either Party (or any of its officers, neither Morgan Stanley nor its affiliates shall have any responsibility directors, employees, agents or liability Affiliates) be liable to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, other Party for any reasonspecial, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm incidental or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect consequential damages arising out of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; related to this Agreement (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government damages for lost profits or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by referenceincome). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever For purposes of this Agreement: (a) the term Affiliate means a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the party specified, with respect control or controlled meaning the possession, directly or indirectly, of the power to accuracydirect or cause the direction of the management and policies of a Person, completeness whether through the ownership of voting securities or timeliness of such servicesvoting interests, by contract or otherwise; and (b) that such services the term Person shall be uninterrupted mean any individual, general partnership, limited partnership, limited liability company, joint venture, trust, business trust, cooperative, association or error free; and (c) including any implied warranties other entity of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetswhatever nature.
Limitation of Liability. Except as otherwise provided in this Section 5THE LIMIT OF P&WC AND THE DACS LIABILITY (WHETHER IN CONTRACT, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forTORT, any Losses however causedNEGLIGENCE, incurred or suffered by Customer directly or indirectly (iSTRICT LIABILITY IN TORT OR BY STATUTE OR OTHERWISE) in connection with the performance or nonCONCERNING PERFORMANCE OR NON-performancePERFORMANCE BY P&WC OR THE DAC, for any reasonOR IN ANY MANNER RELATED TO THE DAC SERVICES, by any designated contract marketFOR ANY AND ALL CLAIMS, swaps execution facilityWILL NOT IN THE AGGREGATE EXCEED THE PAYMENTS MADE BY CUSTOMER TO P&WC HEREUNDER WITHIN THE 6 MONTHS PRIOR TO THE DATE THE CLAIM AROSE. CUSTOMER RELEASES P&WC AND THE DAC FROM AND AGAINST ALL LIABILITY BEYOND SUCH MAXIMUM LIABILITY. NEITHER P&WC NOR THE DAC WILL BE LIABLE FOR ANY LOSS OF DATA, trading facilityPROFITS, clearing houseSAVINGS, derivatives clearing organizationUSE OR BUSINESS; FOR DELAYS, executing brokerINCONVENIENCE OR BUSINESS INTERRUPTION; OR FRUSTRATION OF ECONOMIC OR BUSINESS EXPECTATIONS, clearing firm or custodian or by any electronic trading systemNOR FOR ANY SPECIAL, facility or service (any such systemINCIDENTAL, facility or serviceINDIRECT, collectivelyEXEMPLARY, Electronic Trading Services)CONTINGENT, or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract providedPUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DAC SERVICES WITHOUT REGARD TO WHETHER P&WC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER P&WC NOR THE DAC WILL BE LIABLE OR RESPONSIBLE FOR ANY ANALYSIS, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)INTERPRETATION OR APPLICATION OF ANY INFORMATION OR DATA PROVIDED VIA THE DAC SERVICES. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsTHESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND WILL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.
Limitation of Liability. Except as otherwise provided in this Section 5(a) Recipient agrees that none of the members of the Provider Group and their respective directors, neither Morgan Stanley nor its affiliates officers, agents, and employees (each, a Provider Indemnified Person) shall have any responsibility liability, whether direct or liability indirect, in contract or tort or otherwise, to Customer hereunder for, any Losses however caused, incurred Recipient Entity or suffered by Customer directly any other Person for or indirectly (i) in connection with the performance Services rendered or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken rendered by or on behalf of Morgan Stanley any Provider Indemnified Person pursuant to this Agreement, the transactions contemplated hereby or its floor brokers in compliance with Applicable Law; any actions or (vi) inactions by or on behalf of Provider Indemnified Person in connection with any such Services or arising out transactions, except to the extent any damages have been finally determined by a court of competent jurisdiction to have resulted from such Provider Indemnified Persons gross negligence or willful misconduct in connection with any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)such Services, actions or inactions. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services Notwithstanding the provisions of Section 5.02(a), none of the members of the Provider Group shall be uninterrupted liable for any special, indirect, incidental, consequential or error free; punitive damages of any kind whatsoever in any way due to, resulting from or arising in connection with any of the Services or the performance of or failure to perform Providers obligations under this Agreement. This disclaimer applies without limitation (i) to claims arising from the provision of the Services or any failure or delay in connection therewith, (ii) to claims for lost profits, (iii) regardless of the form of action, whether in contract, tort (including negligence), strict liability, or otherwise, and (iv) regardless of whether such damages are foreseeable or whether any member of the Provider Group has been advised of the possibility of such damages. (c) including None of the members of the Provider Group shall have any implied warranties of titleliability to any Recipient Entity or any other Person for failure to perform Providers obligations under this Agreement or otherwise, non-infringement, merchantability or fitness for a particular purpose relating where such failure to such services; provided however, Morgan Stanley shall be liable to the extent such Loss perform is not caused by the negligence, fraud gross negligence or willful misconduct of Morgan Stanleythe Provider Entity providing such Services and such failure to perform similarly affects the Provider Group receiving such Services and does not have a disproportionately adverse effect on the Recipient Group, taken as a whole. Neither party shall be liable (d) In addition to the foregoing, Recipient agrees that it shall, in all circumstances, use commercially reasonable efforts to mitigate and otherwise minimize its damages and those of the other for consequentialRecipient Entities, incidentalwhether direct or indirect, punitive due to, resulting from or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsarising in connection with any failure by Provider to comply fully with its obligations under this Agreement.
Limitation of Liability. Except as otherwise specifically provided in the next sentence and notwithstanding any provision of this Section 5Agreement other than the next sentence, neither Morgan Stanley Wells Fargo nor any of its affiliates shall agents or correspondents will have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, Applicant for any reasonaction, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm neglect or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of omission under or in connection with any Contract providedL/C Document, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation Loan Document or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderCredit, including, without limitation, damages alleged the issuance or any amendment of any Credit, the failure to issue or amend any Credit, or the honoring or dishonoring of any Demand under any Credit, and such action or neglect or omission will bind Applicant. Wells Fargos complete exculpation from liability in the preceding sentence will not apply tothe extent any action, neglect or omission referred to in the preceding sentence is caused directly by, or arises directly from, Wells Fargos lack of good faith, gross negligence, willful misconduct, or failure to comply with the Honor/Dishonor Standard; provided, however, that in such circumstances Wells Fargos liability to Applicant shall be limited to the aggregate amount reimbursed or paid by Applicant to Wells Fargo with respect to the Credit or Credits directly affected by such action, neglect or omission. Notwithstanding any other provision of this Agreement or any other L/C Document, in no event shall Wells Fargo or its directors be liable or responsible for any special, consequential, or indirect damages, including, without limitation, lost profits, arising out of or in connection with the issuance of any Credit or any action taken or not taken by Wells Fargo in connection with any L/C Document, any Loan Document, or any Document or Property referred to in or related to any Credit. Notwithstanding any other provision of this Agreement or any other L/C Document, in no event shall Wells Fargo or its directors be liable or responsible for any of the following, regardless of whether any claim relating to the following is based on contract or tort, except to the extent the actions, omissions, events or circumstances referenced in any of the following occur or arise as a direct result of Wells Fargos lack of good faith, gross negligence, willful misconduct, or failure to comply with the Honor/Dishonor Standard: (a) the honoring of any Demand in accordance with any order or directive of any court or government or regulatory body or entity requiring such honor despite any temporary restraining order, restraining order, preliminary injunction, permanent injunction or any type of pretrial or permanent injunctive relief or any similar relief, however named, restraining, prohibiting or enjoining such honor; (b) the dishonoring of any Demand in accordance with any legal or other restriction in force at the time and in the place of presentment or payment; (c) any action or inaction taken or suffered by Wells Fargo or its correspondents under or in connection with any Credit or any presentation under any Credit, if such action or inaction is required or permitted under any applicable domestic or foreign law or letter of credit practice or rules, including, without limitation, the laws or practices or rules that may be applicable, depending upon the terms of the Credit and where and when the Credit is issued, including, without limitation, the UCP, the ISP, the Uniform Rules For Demand Guarantees (the URDG), published rules of practice, applicable standard practices of banks that regularly issue letters of credit, and published statements or interpretations on matters of standard bank practice; (d) verifying the existence or reasonableness of any act or condition referenced, or any statement made, in connection with any drawing or presentment under any Credit; (e) the use which may be made of any Credit; (f) the validity of any purported transfer of any Credit or the identity of any purported transferee of any Beneficiary; (g) any acts or omissions of, or the insolvency of, any Beneficiary, any nominated person, any user of any Credit, or any other person; (h) the form, validity, sufficiency, correctness, genuineness or legal effect of any Demand or any Document, or of any signatures or endorsements on any Demand or Document, even if any Demand or any Document should in fact prove to be in any or all respects invalid, insufficient, fraudulent or forged; (i) the failure of any Demand or Document to bear any reference or adequate reference to the Credit to which it relates; (j) the failure of any Document to accompany any Demand; (k) the failure of any person or entity to note the amount of any Demand on the basis Credit to which it relates or on any Document; (l) the failure of lost profits any person or lost assetsentity to surrender or take up any Credit; (m) the failure of any Beneficiary to comply with the terms of any Credit or to meet the obligations of such Beneficiary to Applicant; (n) the failure of any person or entity to send or forward Documents if and as required by the terms of any Credit; (o) any errors, including income-producing assetsinaccuracies, omissions, interruptions or delays in transmission or delivery of any messages, directions or correspondence by mail, electronic means, or any other means, whether or not they are in cipher; (p) any notice of nonrenewal of a Credit sent by Wells Fargo not being received on time or at any time by the Beneficiary of such Credit; (q) any inaccuracies in the translation of any messages, directions or correspondence; (r) any Beneficiarys use of the proceeds of any Demand; (s) any Beneficiarys failure to repay to Wells Fargo or Applicant the proceeds of any Demand if the terms of any Credit require such repayment; or (t) any act, error, neglect, default, negligence, gross negligence, omission, willful misconduct, lack of good faith, insolvency or failure in business of any of Wells Fargos agents or correspondents or of any advising, confirming, negotiating, paying or other bank. Except to the extent caused by, or arising from, Wells Fargos lack of good faith, gross negligence, willful misconduct, or failure to comply with the Honor/Dishonor Standard, the occurrence of any one or more of the contingencies referred to in the preceding sentence shall not affect, impair or prevent the vesting of Wells Fargos rights or powers under this Agreement or any Loan Document. The provisions of this Section will survive the termination of this Agreement and any Loan Documents and the expiration or cancellation of any or all the Credits.
Limitation of Liability. Except as otherwise Consultant shall employ due care and attention in providing the services hereunder. However, the Company acknowledges that Consultant does not warrant or represent the accuracy or completeness of any public information or any information provided solely by the Company used in this Section 5any analysis and that inaccurate or incomplete data may affect the validity and reliability of Consultant's work product, neither Morgan Stanley nor its affiliates shall have including any responsibility draft patent Disclosures. Similarly, Consultant makes no representation or liability warranty with respect to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance infringement of any of Morgan Stanleys obligations hereunder directly the assets or indirectly caused by inventions described in the occurrence of any contingency beyond the control of Morgan Stanley includingDisclosure(s). Consultant makes no warranty, but not limited torepresentation, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasterspromise, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, undertaking with respect to any Electronic Trading Services Morgan Stanley expressly disclaims legal or financial consequences of, or any other consequences or benefits obtained from the use of any work product hereunder, including the Disclosure(s), including any representation that any patent(s) will be granted. The Company assumes all risks related to documentation or warranty whatsoever technical information and data which may be subject to U.S. export controls or export or import restrictions in other countries. Consultant SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CONSULTANT SHALL NOT BE LIABLE ON ACCOUNT OF ANY ERRORS, OMISSIONS, DELAYS, OR LOSSES UNLESS CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER CONSULTANT NOR ANY OF ITS CONTROLLING PERSONS, AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR CONSULTANTS WILL BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY (aINCLUDING WITHOUT LIMITATION LOST PROFITS, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES) with respect to accuracyALLEGED TO BE CAUSED BY USE OF THE DISCLOSURE(S) OR OTHER SERVICES PROVIDED HEREUNDER. CONSULTANT'S LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNTS PAID BY THE COMPANY TO CONSULTANT WITH REGARD TO THE PROVISION OF THE SPECIFIC SERVICES THAT GAVE RISE TO THE CLAIM OF LIABILITY, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsBUT IN NO EVENT WILL SUCH LIABILITY EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO CONSULTANT PURSUANT TO SECTION 2.
Appears in 2 contracts
Limitation of Liability. Except as otherwise provided in With respect to any Helicopter/Custom Helicopter, part or service purchased under this Section 5Agreement and alleged to be the direct or indirect cause of any loss or damage to the Customer, neither Morgan Stanley nor the sum equal to the invoiced price of such Helicopter/Custom Helicopter, part or service shall be the ceiling limit on Sikorskys or any of its affiliates shall have any responsibility liability whether founded in contract or tort (including negligence, strict tort liability to Customer hereunder foror breach of warranty), any Losses however caused, incurred arising out of or suffered by Customer directly or indirectly resulting from (i) in connection with this Agreement or the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)breach thereof, or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result the design, manufacture, delivery, sale, repair, replacement, or any use of any predictionsuch Custom Helicopter, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result the furnishing of any delay in the performance such service. In no event shall Sikorsky or non-performance of any of Morgan Stanleys obligations hereunder directly its affiliates have any liability for any incidental or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsconsequential damages.
Appears in 2 contracts
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have In no event will any responsibility Manager or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Indemnified Party be liable to the extent such Loss is caused by the negligenceCompany or any of its affiliates (i) for any indirect, fraud special, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis of lost profits or lost assetssavings, including incomewhether or not such damages are foreseeable, or for any third-producing assetsparty claims (whether based in contract, tort or otherwise), related to or arising out of or in connection with the Transactions, the Services or other services contemplated by this Agreement or the engagement of such Manager pursuant to, and the performance by such Manager of the Services or other services contemplated by, this Agreement that the Company may have suffered or incurred, or may claim to have suffered or incurred, on or after the date hereof, except with respect to any act or omission that constitutes willful misconduct, bad faith or fraud as determined by a final, non-appealable determination of a court of competent jurisdiction or (ii) for an amount in excess of the fees actually received by such Manager hereunder.
Appears in 2 contracts
Limitation of Liability. Except as otherwise provided Neither Advisors nor any of their respective affiliates, nor any of their respective members, managers, partners, directors, officers, employees, agents and/or controlling persons, nor any successor by operation of law (including by merger) of any such person, nor any entity that acquires all or substantially all of the assets of any such person in this Section 5a single transaction or series of related transactions (all of the foregoing, neither Morgan Stanley nor collectively, the Advisor Indemnitees) shall be liable to the Company or any of its Subsidiaries or affiliates or any of the security holders or creditors of the Company or any of its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly for (i) any damage, loss, liability, deficiency, diminution in connection with the performance or non-performancevalue, for any reasonaction, by any designated contract marketsuit, swaps execution facilityclaim, trading facilityproceeding, clearing houseinvestigation, derivatives clearing organizationaudit, executing brokerdemand, clearing firm or custodian or by any electronic trading systemassessment, facility or service (any such systemfine, facility or servicejudgment, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities cost or other systems expense (including, without limitation, any Electronic Trading Services)legal fees and expenses) (collectively Liabilities) directly or indirectly (whether direct or indirect, it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (vin contract or tort or otherwise) as a result of any action reasonably taken by arising out of, related to, caused by, based upon or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with the performance of the Services contemplated by this Agreement unless such Liability shall be proven to result directly and primarily from the willful misconduct of such person or arising out (ii) any Outside Activities (as defined below). Advisors make no representations or warranties, express or implied, in respect of any agreements relating to Electronic Trading the Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)any Advisor Indemnitee. Further, with respect to In no event will any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Advisor Indemnitee be liable to the extent such Loss is caused by the negligenceCompany (x) for any special, fraud indirect, punitive, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis loss of lost profits or savings or lost assetsbusiness, including income-producing assetswhether or not such damages are foreseeable or such Advisor Indemnitee has been advised of the possibility of such damages or (y) in respect of any Liabilities relating to any third party claims (whether based in contract, tort or otherwise), except as set forth in Section 6 below. Under no circumstances will the aggregate of any and all Liabilities of Advisor Indemnitees exceed, in the aggregate, the fees actually paid to Advisors hereunder.
Limitation of Liability. Except Customer and Secured Party understand and agree that for the purpose of accepting and processing the items that are received and/or deposited to the Collateral Accounts, Bank is acting as otherwise provided in this Section 5the agent of the Customer for the benefit of Secured Party. Customer agrees to and does hereby indemnify and hold the Bank harmless from and against any and all expenses, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forcosts, any Losses however causedclaims, incurred or suffered causes of action, and liabilities resulting from claims by Customer third parties which directly or indirectly arise from the handling of and credit given for remittance items processed and/or deposited under this Agreement. In acting or performing under this Agreement, the Bank shall be entitled to rely on any paper or document reasonably believed by Bank to be genuine, correct and signed or sent by an authorized representative of Customer or Secured Party, as appropriate. The parties agree that Bank shall not be liable to Customer or Secured Party for any loss directly or indirectly resulting from Banks improper processing of items except for loss resulting directly from the Banks own gross negligence or willful misconduct. The parties agree that substantial compliance by Bank with the terms of this Agreement and the Account Contract, as they may be amended from time to time, shall be deemed to constitute the exercise of ordinary and reasonable care. In the event that Bank is liable to Customer or Secured Party under this Agreement, Banks liability shall be limited to the actual direct and provable amount of money damages suffered by the claiming party. Notwithstanding the foregoing, in no event will the Bank be liable for (i) in connection with the performance any special, consequential or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)exemplary damages, or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract providedfor lost profits, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result any failure to perform the Banks responsibilities under this Agreement if such failure is due to strikes, lockouts or other labor disturbances, riots or civil commotions, fire or other casualty, earthquakes, floods, windstorms, lightning or other acts of God, epidemics, sabotage, insurrection, war, disorders, hostilities, expropriation or confiscation of properties, equipment malfunctions, power failures, failures of or delays by carriers or other third parties, interference by civil or military authorities, or any predictionother cause or condition beyond the Banks control, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice act or communication that it believes to be that of an individual authorized failure to act on behalf of Customer; by Customer or Secured Party and (iv) as acting pursuant to a result of any delay court order, subpoena, garnishment, tax levy or similar process in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect regard to any Electronic Trading Services Morgan Stanley expressly disclaims any representation account or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused Service covered by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsthis Agreement.
Limitation of Liability. Except as otherwise provided in this Section 5, neither JP Morgan Stanley nor its affiliates shall have no liability with respect to any responsibility breach of its Clearing Obligations which does not arise from its willful misfeasance, bad faith or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly gross negligence. Except for the following costs for which you shall be liable: (i) Default Costs as set forth in connection with the performance or non-performanceSection 7, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any predictionregulatory fines resulting from our following your instructions, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) all losses and expenses incurred by JP Morgan resulting from claims by your investors, shareholders, members, partners, limited partners, or other equity holders, as a result the case may be, involving or related to your accounts or Obligations, in each case, irrespective of Morgan Stanleys commercially reasonable reliance on any instructionwhether of the foregoing are deemed consequential, notice incidental, special or communication that it believes to be that of an individual authorized to act on behalf of Customer; indirect, or (iv) as a result of any delay otherwise expressly provided in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includingthis Agreement, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither neither party shall be liable to the other have any liability for any consequential, incidental, punitive or special any similar damages hereunderand each party hereby irrevocably and unconditionally waives any right it may have to claim or recover any such damages (even if it has informed the other party of the possibility or likelihood of such damages). The waiver in this Section 14 is an inducement to each party to enter into Activities with the other party. [JP Morgan shall automatically debit your account for Costs incurred by JP Morgan in the ordinary course of its business with customers generally. With respect to Costs incurred by JP Morgan which are of the type that are outside the ordinary course of its business with Customers, including, without limitation, damages alleged on JP Morgan will not debit your accounts for such Costs until 3 days after demand has been made to you for the basis payment of lost profits or lost assets, including income-producing assetssuch Costs.]
Limitation of Liability. Except as otherwise provided in this Section 5Neither Wells Fargo nor any of its officers, neither Morgan Stanley directors, control persons, employees or agents (Wells Fargo Representatives) shall be responsible for any loss, liability, damage or expense except to the extent that such loss, liability, damage or expense arises from its gross negligence or willful misconduct. Neither Wells Fargo nor its affiliates any Wells Fargo Representatives shall have any responsibility or liability to Customer hereunder for, or any Losses however caused, incurred or suffered by Customer directly or indirectly other person under this Agreement (ia) in connection with the performance or non-performance, for any reason, performance by any designated contract marketthird-party (including, swaps execution facilitybut not limited to, trading facilityClearing Organizations, clearing houseExchanges, derivatives clearing organizationbrokers, executing brokerdealers, clearing firm custodians and banks) with respect to any Derivatives or custodian or by any electronic trading systemother property of Customer, facility or service (including without limitation if any such systemthird-party makes an error in executing, facility filling or servicesettling orders or fails to execute, collectively, Electronic Trading Services), fill or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable mannersettle an order for Customer; (iib) as a result of any prediction, recommendation or advice made or given by a representative of Morgan StanleyWells Fargo, whether or not made or given at the request of Customer; (iiic) as a result of Morgan Stanleys commercially reasonable Wells Fargos reliance on any instruction, notice or communication that it believes to be that of an individual or entity authorized to act on behalf of Customer; or (ivd) as otherwise provided under this Agreement. In addition, neither Wells Fargo nor any Wells Fargo Representative shall have any liability as a result of any action, failure to act or delay in the performance or non-performance acting as a result of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency or event beyond the control of Morgan Stanley Wells Fargo including, but not limited towithout limitation, government or exchange suspensions or restrictions on trading or clearingany (i) labor disputes, riots, sabotage, insurrection, fires, floods, storms, explosions, earthquakes, electrical power failures, acts of God, war, both declared and undeclared, or acts of terrorism terrorism; (ii) suspension or natural disasters, or the termination of trading; (iii) unscheduled closure of an exchange Exchange; or contract market (iv) failure or delays delay in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities, other systems, or any other electronic trading systems, facilities or other systems (includingservices. Customer agrees that, without limitationupon the occurrence of such an event, any Electronic Trading Services), it being understood that Morgan Stanley Wells Fargo shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall In no event will Wells Fargo be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other Customer for consequential, incidental, special or punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsdamages.
Limitation of Liability. Except as otherwise provided in this Section 5EXCEPT WITH RESPECT TO INDEMNIFIED CLAIMS UNDER SECTION 9, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forBREACH OF SECTION 7 (CONFIDENTIAL INFORMATION) AND INFRINGEMENT OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS, any Losses however causedNEITHER PARTY OR ITS OFFICERS, incurred or suffered by Customer directly or indirectly AFFILIATES, REPRESENTATIVES, SUPPLIERS, CONTRACTORS OR EMPLOYEES SHALL BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (iA) in connection with the performance or non-performanceFOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable mannerSERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (iiB) as a result of any predictionFOR ANY INDIRECT, recommendation or advice made or given by a representative of Morgan StanleyINCIDENTAL, whether or not made or given at the request of CustomerSPECIAL OR CONSEQUENTIAL DAMAGES; (iiiC) as a result of Morgan Stanleys commercially reasonable reliance on any instructionFOR ANY MATTER BEYOND THAT PARTY'S REASONABLE CONTROL, notice or communication that it believes to be that of an individual authorized to act on behalf of CustomerEVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; OR (ivD) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includingFOR ANY AMOUNTS THAT, but not limited toTOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems EXCEED THE FEES PAID BY CUSTOMER TO MEDRIO FOR THE SERVICES UNDER THE APPLICABLE ORDER FORM IN THE TWELVE (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v12) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsIN NO EVENT SHALL EITHER PARTY BE DIRECTLY LIABLE TO THE OTHER PARTY FOR ANY PUNITIVE OR EXEMPLARY DAMAGES.
Limitation of Liability. Except as otherwise provided in this Section 5UNDER NO CIRCUMSTANCES SHALL COMPANY BE LIABLE TO CLIENT OR ANY CLIENT STORE USERS FOR ANY INDIRECT, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forINCIDENTAL, any Losses however causedCONSEQUENTIAL, incurred or suffered by Customer directly or indirectly SPECIAL OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, THE CLIENT STORE, THE CONTENT OR THE INTERNET GENERALLY, INCLUDING, WITHOUT LIMITATION, A USER'S USE OR INABILITY TO ACCESS AND USE THE CLIENT STORE OR ANY CONTENT, ANY CHANGES TO OR INACCESSIBILITY OF THE CLIENT STORE OR ANY CONTENT, DELAY, FAILURE, UNAUTHORIZED ACCESS TO OR ALTERATION OF ANY TRANSMISSION OR DATA, ANY MATERIAL OR DATA SENT OR RECEIVED OR NOT SENT OR RECEIVED, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE AND EVEN IF COMPANY WAS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL COMPANY'S TOTAL LIABILITY FOR DIRECT DAMAGES EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES GENERATED IN ACCORDANCE WITH SECTIONS 4.1 AND 4.2 ABOVE DURING THE PREVIOUS TWELVE (i12) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsMONTHS.
Limitation of Liability. Except as otherwise provided in this Section 5NEITHER PARTY SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO THE OTHER, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forTO THEIR, any Losses however causedOFFICERS, incurred or suffered by Customer directly or indirectly DIRECTORS, EMPLOYEES, CONTRACTORS OR SUBCONTRACTORS AT ANY THEIR (iINCLUDING SUPPLIERS OF ANY KIND) in connection with the performance or non-performanceAGENTS OR CUSTOMERS, for any reasonTO ITS PERMITTED ASSIGNEES OR SUCCESSOR OR TO ANY OTHER PERSON CLAIMING BY OR THROUGH THE OTHER PARTY, by any designated contract marketFOR ANY AMOUNTS REPRESENTING LOSS OF PROFITS, swaps execution facilityLOSS OF BUSINESS, trading facilityOR INDIRECT, clearing houseSPECIAL, derivatives clearing organizationINCIDENTAL, executing brokerEXEMPLARY, clearing firm or custodian or by any electronic trading systemCONSEQUENTIAL OR PUNITIVE DAMAGES, facility or service INCLUDING WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES OR COSTS OF RECOVERING A SATELLITE, OR FOR ANY LOSS OR DAMAGE TO GLLC'S SATELLITES RESULTING FROM GLLC'S APPLICATION OR IMPLEMENTATION OF CONTRACTOR'S SERVICES INCLUDING RECOMMENDATIONS, DATA ANALYSES REPORTS RELATING TO SATELLITE ANOMALY INVESTIGATION AND CORRECTION ACTIVITIES OR ARISING FROM OR RELATING TO THE PERFORMANCE OR NONPERFORMANCE OF THIS CONTRACT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH OR RELATED TO THE USE OF ANY ITEMS DELIVERED OR SERVICES FURNISHED HEREUNDER, WHETHER THE BASIS OF SUCH LIABILITY IS BREACH OF CONTRACT, TORT (any such system, facility or service, collectively, Electronic Trading ServicesINCLUDING NEGLIGENCE OF ANY TYPE AND STRICT LIABILITY), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; STATUTE OR OTHER LEGAL OR EQUITABLE THEORY. EACH PARTY SHALL INDEMNIFY THE OTHER AND HOLD SUCH OTHER HARMLESS FOR AND AGAINST ANY CLAIM ASSERTED DIRECTLY OR INDIRECTLY AGAINST SUCH PARTY THAT IS WITHIN THE SCOPE OF THE FOREGOING LIMITATION OF LIABILITY AND DISCLAIMER. IN NO EVENT SHALL CONTRACTOR'S TOTAL LIABILITY UNDER OR IN CONNECTION WITH THIS CONTRACT EXCEED AMOUNTS PAID TO CONTRACTOR HEREUNDER UNDER THE APPLICABLE TASK ORDER(S) AND IN NO EVENT SHALL GLLC'S TOTAL LIABILITY UNDER OR IN CONNECTION WITH THIS CONTRACT EXCEED THE PRICE OF THE APPLICABLE TASK ORDER (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading ServicesS), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.
Limitation of Liability. Except as otherwise provided in this Section 5Consultant's liability, neither Morgan Stanley nor its affiliates shall have any responsibility or liability including but not limited to Customer hereunder forClient's claims of contributions and indemnification related to third party claims arising out of services rendered by Consultant, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, and for any reasonlosses, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm injury or custodian damages to persons or by any electronic trading system, facility properties or service (any such system, facility capitals or service, collectively, Electronic Trading Services), belongings or by any other third party of its obligations to Morgan Stanley in respect goods or assets or work performed arising out of or in connection with this Agreement and for any Contract providedother claim, however, that Morgan Stanley has picked such party in a commercially reasonable manner; shall be limited to the lesser of (i) Twenty Five Thousand Dollars (US$25,000) or (ii) as a result of payment received by Consultant from Client for the particular service provided giving rise to the claim. Notwithstanding anything to the contrary in this Agreement, Consultant shall not be liable for any predictionspecial, recommendation or advice made or given by a representative of Morgan Stanleyindirect, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructionconsequential, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasterslost profits, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsdamages.
Limitation of Liability. Except as otherwise provided in this Section 5IN NO EVENT SHALL IDMI BE LIABLE FOR ANY LOSS OF PROFITS, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forLOSS OF BUSINESS, any Losses however causedLOSS OF USE OR DATA, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performanceINTERRUPTION OF BUSINESS, for any reasonOR FOR INDIRECT, by any designated contract marketSPECIAL, swaps execution facilityINCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND INCURRED BY CUSTOMER, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever IN NO EVENT WILL IDMI BE LIABLE FOR (a) with respect to accuracy, completeness or timeliness of such services, ANY REPRESENTATION OR WARRANTY MADE TO ANY THIRD PARTY BY CUSTOMER OR ANY AGENT OF CUSTOMER'S; OR (b) that such services shall be uninterrupted or error free; and FAILURE OF CUSTOMER'S WWW SITE OR ANY OTHER SOFTWARE OR SERVICES PROVIDED BY IDMI PURSUANT TO THIS AGREEMENT. IDMI'S ENTIRE LIABILITY TO CUSTOMER FOR DAMAGES CONCERNING PERFORMANCE OR NONPERFORMANCE BY IDMI OR IN ANY WAY RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT, SHALL NOT EXCEED THE AMOUNT RECEIVED BY IDMI FROM CUSTOMER DURING THE TWENTY-FOUR (c24) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsMONTHS PRIOR TO SUCH CLAIM.
Limitation of Liability. Except as otherwise provided in to the extent of its negligence, gross negligence, fraud or willful misconduct or breach of this Section 5Agreement, neither Morgan Stanley nor its affiliates [ ] shall have any responsibility or liability to Customer hereunder for, not be liable for any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of this Agreement, transactions in or for Customers Account or any agreements actions taken or omitted to be taken by [ ] at the request or direction of Customer, including, for the avoidance of doubt, any Losses relating to Electronic Trading Services provided the failure of any clearing house, executing broker, clearing broker, custodian or other intermediary to perform its obligations in connection with any transaction by Customer. Customer by Morgan Stanley agrees and acknowledges that [ ] may, in its reasonable discretion, retain independent vendors to perform certain services and functions (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsservices and functions relating to [ ]s obligations as a registered futures commission merchant under Applicable Law) relating to Customers transactions under this Agreement.
Appears in 1 contract
Limitation of Liability. Except as otherwise provided in this Section 5SEARS SHALL NOT BE LIABLE TO OUTLET STORES OR ITS AFFILIATES, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forDIRECTORS, any Losses however causedOFFICERS, incurred or suffered by Customer directly or indirectly CUSTOMERS OR EMPLOYEES (iCOLLECTIVELY, OUTLET STORES PARTIES) in connection with the performance or non-performanceFOR ANY INDIRECT, for any reasonSPECIAL, by any designated contract marketINCONSEQUENTIAL, swaps execution facilityEXEMPLARY OR INCIDENTAL DAMAGES (INCLUDING, trading facilityWITHOUT LIMITATION, clearing houseLOST OR ANTICIPATED REVENUES OR PROFITS RELATING TO THE SAME) ARISING FROM ANY CLAIM RELATING DIRECTLY OR INDIRECTLY TO THIS LICENSE AGREEMENT, derivatives clearing organizationWHETHER A CLAIM FOR SUCH DAMAGES IS BASED ON WARRANTY, executing brokerCONTRACT, clearing firm or custodian or by any electronic trading systemTORT (INCLUDING, facility or service (any such systemWITHOUT LIMITATION, facility or service, collectively, Electronic Trading ServicesNEGLIGENCE OR STRICT LIABILITY), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsEVEN IF AN AUTHORIZED REPRESENTATIVE OF SEARS HAS BEEN ADVISED OF THE LIKELIHOOD OR POSSIBILITY OF SAME.
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates You shall have no claim against us or any responsibility of our affiliates for any loss, damage, liability, cost, charge, expense, penalty, fine or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer tax caused directly or indirectly by: (ia) any law, regulation, rule or order; (b) suspension, or termination of trading; (c) war, civil or labor disturbance; (d) any delays or inaccuracies in connection with the performance transmission or non-performance, reporting of orders or other information due to a breakdown or failure of any transmission or communication facilities for any reason; (e) failure or delay for any reason of any broker, bank, depository or custodian to fulfill its obligations or to pay in full any amounts owed to us; (f) failure or delay by any designated contract marketentity which, swaps execution facilityconsistent with applicable regulations, trading facilityis holding customer segregated funds, clearing housesecurities or other property, derivatives clearing organizationto pay or deliver same to us; or (g) any other causes beyond our control. We will execute your transactions solely as your agent. In executing transactions on an exchange, executing broker, clearing firm we may use floor brokers (who may be our employees or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Servicesother agents of ours), but we will not be responsible to you for negligence or misconduct of an independent floor broker if, at the time the floor broker was selected, the floor broker was authorized to act as such under the rules of the relevant exchange and the appropriate regulatory agency. We will not be responsible to you in the event of error, failure, negligence or misconduct on the part of any intermediary, commodity trading advisor or other person acting on your behalf and, without limitation, we have no obligation to investigate the facts surrounding any transaction in your Account(s) which is introduced by such intermediary, commodity trading advisor or other person. You will indemnify us and hold us harmless from and against any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract providedand all liabilities, howeverpenalties, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) losses and expenses, including legal expenses and attorneys fees, incurred by us as a result of any predictionerror, recommendation failure, negligence or advice made misconduct on the part of any such intermediary, commodity trading advisor or given other person acting on your behalf. We shall only be liable for actions or inactions by us which amount to negligence, willful misconduct or fraud. You also agree that we shall not be liable to you for any losses, costs, expenses or other damages sustained by you in the event of any failure or delay by any exchange, market, clearing house, bank or other depository institution where any of your funds or other assets are maintained, or a representative failure or delay by any member, bank or agent of Morgan Stanleyany of the foregoing, whether or not made a failure or given at delay by any of the request foregoing to enforce its rules, to fulfill its obligations or to make any payment, for any reason whatsoever. You waive any claim, cause of Customer; (iii) action or right as against us, our employees or agents that may arise or occur as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsthereof.
Appears in 1 contract Customer Agreement (Frontier Fund),
Limitation of Liability. Except as otherwise provided Neither Advisor nor any of its affiliates, nor any of their respective members, managers, partners, directors, officers, employees, agents and/or controlling persons, nor any successor by operation of law (including by merger) of any such person, nor any entity that acquires all or substantially all of the assets of any such person in this Section 5a single transaction or series of related transactions (all of the foregoing, neither Morgan Stanley nor collectively, the Advisor Indemnitees) shall be liable to the Company or any of its Subsidiaries or affiliates or any of the security holders or creditors of the Company or any of its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly for (i) any damage, loss, liability, deficiency, diminution in connection with the performance or non-performancevalue, for any reasonaction, by any designated contract marketsuit, swaps execution facilityclaim, trading facilityproceeding, clearing houseinvestigation, derivatives clearing organizationaudit, executing brokerdemand, clearing firm or custodian or by any electronic trading systemassessment, facility or service (any such systemfine, facility or servicejudgment, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities cost or other systems expense (including, without limitation, any Electronic Trading Services)legal fees and expenses) (collectively Liabilities) directly or indirectly (whether direct or indirect, it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (vin contract or tort or otherwise) as a result of any action reasonably taken by arising out of, related to, caused by, based upon or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with the performance of the Services contemplated by this Agreement unless such Liability shall be proven to result directly and primarily from the willful misconduct of such person or arising out (ii) any Outside Activities (as defined below). Advisor makes no representations or warranties, express or implied, in respect of any agreements relating to Electronic Trading the Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)any Advisor Indemnitee. Further, with respect to In no event will any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Advisor Indemnitee be liable to the extent such Loss is caused by the negligenceCompany (x) for any special, fraud indirect, punitive, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis loss of lost profits or savings or lost assetsbusiness, including income-producing assetswhether or not such damages are foreseeable or such Advisor Indemnitee has been advised of the possibility of such damages or (y) in respect of any Liabilities relating to any third party claims (whether based in contract, tort or otherwise), except as set forth in Section 6 below. Under no circumstances will the aggregate of any and all Liabilities of Advisor Indemnitees exceed, in the aggregate, the fees actually paid to Advisor hereunder.
Limitation of Liability. Except as otherwise provided in this Section 5ANGELL UNDERSTANDS AND AGREES THAT THE APOLLO PARTIES SHALL HAVE NO LIABILITY FOR ANY INDIRECT, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forINCIDENTAL, any Losses however causedPUNITIVE, incurred or suffered by Customer directly or indirectly SPECIAL OR CONSEQUENTIAL DAMAGES (iINCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOST DATA, LOSS OF USE OF THE PLATFORM OR ACCESS METHOD, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL, COSTS OF SUBSTITUTE SERVICES, OR DOWNTIME COSTS) in connection with the performance or non-performanceSUFFERED BY ANGELL, for any reasonANGELL AFFILIATES AND ANY OTHER PERSON, by any designated contract marketEVEN IF ONE OR MORE APOLLO PARTY HAS OR HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APOLLO SHALL NOT HAVE ANY LIABILITY FOR OR IN RELATION TO ANY TRANSACTIONS, swaps execution facilityINCLUDING WITHOUT LIMITATION ANY TRADES, trading facilityTHAT ARE PERFORMED THROUGH OR IN CONJUNCTION WITH THE PLATFORM OR USING THE DATA. TO THE MAXIMUM AMOUNT ALLOWED BY APPLICABLE LAW, clearing houseTHE AGGREGATE LIABILITY OF THE APOLLO PARTIES FOR ANY DAMAGE WHATSOEVER RELATING TO OR ARISING OUT OF THE SUBJECT MATTER OF AGREEMENT, derivatives clearing organizationTHE PLATFORM, executing brokerDATA, clearing firm or custodian or by any electronic trading systemACCESS METHOD, facility or service (any such systemcustom modifications, facility or servicework product, collectively, Electronic Trading Services)deliverables, or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken materials created by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or Apollo under any SOW, AND THE PRODUCTS AND SERVICES OFFERED HEREUNDER, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE AMOUNT ANGELL PAID TO APOLLO UNDER THIS AGREEMENT DURING THE SIX (vi6) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsCALENDAR MONTHS PRIOR TO WHEN THE DAMAGE AROSE.
Appears in 1 contract
Limitation of Liability. Except as otherwise provided in this Section 5In no event will either Contracting Party (or any of its officers, neither Morgan Stanley nor its affiliates shall have any responsibility directors, employees, agents or liability Affiliates) be liable to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, other Party for any reasonspecial, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm incidental or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect consequential damages arising out of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; related to this Agreement (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government damages for lost profits or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by referenceincome). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever For purposes of this Agreement: (a) the term Affiliate means a Person that directly, or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, the party specified, with respect control or controlled meaning the possession, directly or indirectly, of the power to accuracydirect or cause the direction of the management and policies of a Person, completeness whether through the ownership of voting securities or timeliness of such servicesvoting interests, by contract or otherwise; and (b) that such services the term Person shall be uninterrupted mean any individual, general partnership, limited partnership, limited liability company, joint venture, trust, business trust, cooperative, association or error free; and (c) including any implied warranties other entity of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetswhatever nature.
Limitation of Liability. Except as otherwise provided EBI acknowledges that Y-Tel has no control over how a foreign administration or third party carrier establishes its own rules and conditions pertaining to international VOWLAN services. EBI agrees that Y-Tel, its directors, officers, employees and agents shall not be liable for any loss or damage sustained by EBI, its interconnecting carriers, its customers or its end users due to any failure in this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection breakdown of the communication facilities associated with providing the performance or non-performanceServices, for any reasondelay, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm interruption or custodian degradation of the Services whatsoever shall be the cause or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)duration thereof, or by for any other cause or claim whatsoever arising under this Agreement. In no event shall either Party be liable to the other Party for consequential, special or indirect losses or damages sustained by Y-Tel or EBI or any third party of its obligations to Morgan Stanley parties in respect of using the Service howsoever arising and whether under contract, tort or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems otherwise (including, without limitation, any Electronic Trading Servicesthird party claims, loss of profits, loss of customers or damage to reputation or goodwill), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.
Limitation of Liability. Except as otherwise provided in this Section 5Neither the Consultant nor any of its affiliates, neither Morgan Stanley nor its affiliates shall have any responsibility of their respective past, current or liability to Customer hereunder forfuture members, managers, partners, directors, officers, employees, agents and/or controlling persons, nor any Losses however caused, incurred or suffered successor by Customer directly or indirectly operation of law (iincluding by merger) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (of any such systemperson, facility nor any entity that acquires all or servicesubstantially all of the assets of any such person in a single transaction or series of related transactions (all of the foregoing, collectively, Electronic Trading Services), the Consultant Indemnitees) shall be liable to the Company or by any other third party of the Subsidiaries or affiliates or any of the security holders or creditors of the Company or any of its obligations to Morgan Stanley affiliates for (a) any damage, loss, liability, deficiency, diminution in respect of or in connection with any Contract providedvalue, howeveraction, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any predictionsuit, recommendation or advice made or given by a representative of Morgan Stanleyclaim, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructionproceeding, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includinginvestigation, but not limited toaudit, government or exchange suspensions or restrictions on trading or clearingdemand, warassessment, acts of terrorism or natural disastersfine, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilitiesjudgment, execution, and/or trading facilities cost or other systems expense (including, without limitation, any Electronic Trading Services)legal fees and expenses) (collectively Liabilities) directly or indirectly (whether direct or indirect, it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (vin contract or tort or otherwise) as a result of any action reasonably taken by arising out of, related to, caused by, based upon or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out the performance of any agreements relating services contemplated by this Agreement unless such Liability shall be proven to Electronic Trading Services provided to Customer by Morgan Stanley (result directly and primarily from the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness willful misconduct of such services, person or (b) that such any Outside Activities (as defined in Section 17 below). The Consultant makes no representations or warranties, express or implied, in respect of the services shall be uninterrupted or error free; and (c) including provided by any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Consultant Indemnitee. In no event will any Consultant Indemnitee be liable to the extent such Loss is caused by Company or any of the negligenceSubsidiaries or affiliates or any of the security holders or creditors of the Company or any of its affiliates (i) for any special, fraud indirect, punitive, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis loss of lost profits or savings or lost assetsbusiness, including income-producing assetswhether or not such damages are foreseeable or such Consultant Indemnitee has been advised of the possibility of such damages or (ii) in respect of any Liabilities relating to any third party claims (whether based in contract, tort or otherwise), except as set forth in Section 6 below. Under no circumstances will the aggregate of any and all Liabilities of the Consultant Indemnitees exceed the aggregate of the fees actually paid to the Consultant hereunder.
Limitation of Liability. Except as otherwise provided in this Section 5Client accepts final responsibility for the selection and use of all creative, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder foraudiovisual, any Losses however causedand personal works and images, incurred or suffered by Customer directly or indirectly including graphics, text, formats, characters, icons, information, data, sound recordings , and logos (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Servicesthe Images), which are included in any work or services delivered by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract providedBCS hereunder .. THE MAXIMUM LIABILITY OF BCS TO CLIENT FOR DAMAGES FOR ANY AND ALL OTHER CAUSES WHATSOEVER, howeverAND CLIENTS MAXIMUM REMEDY , that Morgan Stanley has picked such party in a commercially reasonable manner; REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE , SHALL BE LIMITED TO REIMBURSEMENT OF THE TOTAL FEES PAID BY CLIENT TO BCS PURSUANT TO THIS AGREEMENT. IN NO EVENT SHALL BCS BE LIABLE FOR (iiX) as a result of any predictionANY CONTENT, recommendation or advice made or given by a representative of Morgan StanleyLOST PROFITS, whether or not made or given at the request of Customer; BUSINESS INTERRUPTION OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE SERVICES PROVIDED HEREUNDER, EVEN IF BCS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR OTHERWISE FOR ANY SUCH CLAIM, OR (iiiY) as a result of Morgan Stanleys commercially reasonable reliance on any instructionFOR ANY DAMAGES OR COSTS ARISING FROM ANY THIRD PARTY S ACTIONS, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includingFAILURE TO ACT, but not limited toOR DELAY IN PERFORMING ANY OBLIGATION WHATSOEVER .. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsBCS SHALL NOT BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE.
Appears in 1 contract
Limitation of Liability. Except as otherwise provided in this Section 5ANY SERVICES OR OTHER DELIVERABLES PROVIDED BY PPM HEREUNDER ARE PROVIDED AS IS. PPM DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND WITH RESPECT TO THE SERVICES OR OTHER DELIVERABLES PROVIDED BY PPM HEREUNDER, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forAND EXPRESSLY DISCLAIMS ALL WARRANTIES, any Losses however causedEXPRESS OR IMPLIED, incurred or suffered by Customer directly or indirectly INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE FOREGOING. IT IS AGREED BY GTC THAT PPM SHALL IN NO EVENT BE LIABLE TO GTC FOR ANY SPECIAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR INCIDENTAL DAMAGES (iINCLUDING LOST OR ANTICIPATED REVENUES OR PROFITS RELATING TO THE SAME) in connection with the performance or non-performanceARISING FROM ANY CLAIM RELATING TO THIS AGREEMENT, for any reasonWHETHER SUCH CLAIM IS BASED ON CONTRACT, by any designated contract marketTORT (INCLUDING NEGLIGENCE) OR OTHERWISE, swaps execution facilityEVEN IF AN AUTHORIZED REPRESENTATIVE OF PPM IS ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SAME. IN NO EVENT SHALL PPMS TOTAL LIABILITY RELATING TO THIS AGREEMENT OR THE SERVICES EXCEED THE PAYMENT RECEIVED BY THEM HEREUNDER. NOTWITHSTANDING ANY CONTRARY PROVISION CONTAINED IN THIS AGREEMENT, trading facilityPPM SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR FAILURE OR INTERRUPTION OF ANY UTILITY OR SERVICE PROVIDED TO GTC, clearing houseOR FOR ANY INTERRUPTION IN UTILITY OR SERVICE TO THE GTC LEASED PREMISES, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsEXCEPT FOR WILLFUL MISCONDUCT.
Limitation of Liability. Except as otherwise provided in this Section 5NEITHER PARTY NOR TARGET SOFTWARE, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forINC. (TARGET SOFTWARE) SHALL BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS EXHIBIT F UNDER ANY CONTRACT, any Losses however causedTORT, incurred or suffered by Customer directly or indirectly NEGLIGENCE, STRICT LIABILITY, BREACH OF WARRANTY (iEXPRESS OR IMPLIED) in connection with the performance or non-performanceOR OTHER THEORY FOR ANY INDIRECT, for any reasonINCIDENTAL, by any designated contract marketSPECIAL, swaps execution facilityEXEMPLARY, trading facilityPUNITIVE, clearing houseEXEMPLARY OR CONSEQUENTIAL DAMAGES, derivatives clearing organizationINCLUDING WITHOUT LIMITATION, executing brokerANY LOSS OF REVENUES, clearing firm or custodian or by any electronic trading systemPROFITS OR DATA OR THE COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS BY CLIENT, facility or service EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, THE COLLECTIVE LIABILITY OF VENTIV AND TARGET SOFTWARE FOR DIRECT DAMAGES RESULTING FROM THE PERFORMANCE OF THE SERVICES SET FORTH IN THIS EXHIBIT F SHALL BE LIMITED TO THE FEES ACTUALLY PAID BY CLIENT TO VENTIV FOR THE SIX (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii6) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsMONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have In no event will Blackstone or any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Indemnified Party be liable to the extent such Loss is caused by the negligenceCompanies or any of their affiliates (i) for any indirect, fraud special, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis of lost profits or lost assetssavings, including incomewhether or not such damages are foreseeable, or for any third-producing assetsparty claims (whether based in contract, tort or otherwise), related to, arising out of or in connection with the Transactions, the Services or other services contemplated by this Agreement or the engagement of Blackstone pursuant to, and the performance by Blackstone of the Services or other services contemplated by, this Agreement, or otherwise as a result of engaging in Competing Activities, that the Companies may have, or may claim to have, on or after the date hereof, except with respect to any act or omission that constitutes gross negligence or willful misconduct as determined by a final, non-appealable determination of a court of competent jurisdiction or (ii) for an amount in excess of the fees actually received by Blackstone hereunder. SECTION 10. Miscellaneous. (a) No amendment or waiver of any provision of this Agreement, or consent to any departure by any party hereto from any such provision, will be effective unless it is in writing and signed by each of the parties hereto. Any amendment, waiver or consent will be effective only in the specific instance and for the specific purpose for which given. The waiver by any party of any breach of this Agreement will not operate as or be construed to be a waiver by such party of any subsequent breach. (b) Any notices or other communications required or permitted hereunder shall be made in writing and will be sufficiently given if delivered personally or sent by facsimile with confirmed receipt, or by overnight courier, addressed as follows or to such other address of which the parties may have given written notice: if to Blackstone: c/o The Blackstone Group L.P. 345 Park Avenue New York, New York 10154 Attention: Peter Wallace Facsimile: (212) 583-5710 if to the Companies: c/o SeaWorld Parks & Entertainment, Inc. 9205 S. Park Center Loop, Ste 400 Orlando, FL 32819 Attention: Chief Legal Officer Unless otherwise specified herein, such notices or other communications will be deemed received (i) on the date delivered, if delivered personally or sent by facsimile with confirmed receipt, and (ii) one business day after being sent by overnight courier. (c) This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof, and supersedes all previous oral and written (and all contemporaneous oral) negotiations, commitments, agreements and understandings relating hereto. (d) This Agreement will be governed by, and construed in accordance with, the laws of the State of Delaware.
Limitation of Liability. Except as otherwise provided in this Section 5(a) In no event shall the Collateral Agent be responsible or liable for special, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)indirect, or by any other third party of its obligations to Morgan Stanley in respect of consequential loss or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result damage of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; kind whatsoever (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government loss of profit) irrespective of whether the Collateral Agent has been advised of the likelihood of such loss or exchange suspensions damage and regardless of the form of action. (b) In no event shall the Collateral Agent be responsible or restrictions on trading liable for any failure or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays delay in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Furtheror caused by, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation directly or warranty whatsoever (a) with respect to accuracyindirectly, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderforces beyond its control, including, without limitationlimitation strikes, damages alleged on work stoppages, accidents, acts of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of God, and interruptions, loss or malfunctions of utilities, communications or computer (software and hardware) services; it being understood that the basis of lost profits or lost assets, including income-producing assetsCollateral Agent shall use reasonable efforts which are consistent with accepted practices in the banking industry to resume performance as soon as practicable under the circumstances.
Limitation of Liability. Except as otherwise NEITHER COMPANY SHALL BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR CONTINGENT DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE JOINT OPERATING MANUAL, THE GROUND LEASE OR THE EASEMENT, OR THE PERFORMANCE OR BREACH OF ANY SUCH CONTRACT, REGARDLESS OF WHETHER IT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES; provided that the foregoing limitation shall not limit, restrict or affect either Company's obligation to pay for its share of the costs, liabilities to third Persons, and damages incurred in the design, engineering, procurement, licensing, permitting, pre-certification activities, interconnection, construction, administrative and general, modification, repair, transportation, fueling, operation, maintenance, shutdown, decommissioning, demolition and disposal of Weston 4 and the Common Facilities pursuant to the cost-sharing, allocation and payment provisions set forth in this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with Agreement and the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract providedJoint Operating Manual; it is understood and agreed, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result the foregoing limitation shall apply to the portion of any predictionsuch costs, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication liabilities to third Persons and damages that it believes is determined to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly have been caused by the occurrence intentional misconduct of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disastersWPSC, or by the unscheduled closure reckless misconduct of an exchange WPSC's Weston 4 personnel at the superintendent (or contract market equivalent) level or delays higher, or by the reckless misconduct of WPSC corporate officers or corporate management personnel at the superintendent level or higher who are responsible for setting policy at Weston 4. Without limiting the generality of the foregoing, and without limiting the terms of the EI Agreement, except as provided in the transmission cost-sharing, allocation and payment provisions of orders due to breakdowns or failures of transmission or communication facilitiesthis Agreement and the Joint Operating Manual as provided immediately above, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party neither Company shall be liable to the other Company for consequentialerrors or delays in the design, incidentalengineering, punitive procurement, licensing, permitting, pre-certification activities, interconnection, construction, administrative and general, modification, repair, transportation, fueling, operation or special damages hereundermaintenance of Weston 4 or the facilities utilized by Weston 4 (either exclusively or in common with other generating unit(s) at the Weston Generating Station), includingloss of generation capacity, without limitationreduced generation capacity, damages alleged on reduced output, cost of replacement energy or capacity, or down-time, shut-down or slow-down costs. Notwithstanding anything to the basis of contrary herein, neither Company shall be liable for claims by the other Company for lost profits or lost assetsrevenues, including incomeor for claims of the other Company's customers for cost of replacement energy or capacity, down-producing assetstime, shut-down or slow-down costs, or lost profits or lost revenues.
Limitation of Liability. Except as otherwise provided in In the event of any breach of this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, Agreement by any designated contract marketparty, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian the amount of any claim of loss by any other party or by any electronic trading systemof their Affiliates shall be limited to actual and direct damages, facility other than as set forth in the following sentence. EXCEPT FOR BREACHES ARISING FROM WILFULL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL ANY PARTY OR ANY OF THEIR AFFILIATES BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF THIS AGREEMENT, INCLUDING LOST PROFITS. Neither occasional short-term interruptions of service which are not unreasonable under comparable industry standards nor interruptions of service resulting from events or service circumstances beyond Styleclick's or ECS's reasonable control (which, in any case, have caused comparable interruptions to Styleclick's other businesses or to ECS's other businesses (as the case may be)) shall be cause for any liability or claim hereunder, nor shall any such systemoccasion render Styleclick or ECS in default under this Agreement. IN WITNESS WHEREOF, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley ECS and Styleclick each has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes caused this Agreement to be that of an individual executed and delivered by its duly authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused officer. ECS SPORTS FULFILLMENT LLC by the occurrence of any contingency beyond the control of Morgan Stanley including/s/ ROBERT HALPER Name: Robert Halper Title: STYLECLICK, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken INC. by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets./s/ BRENT HILL Name: Brent Hill Title: EVP
Appears in 1 contract Services Agreement (Styleclick Inc),
Limitation of Liability. Except as otherwise provided in this Section 5UNDER NO CIRCUMSTANCES WILL WINTERGREEN OR ITS SUBCONTRACTORS BE LIABLE FOR ANY OF THE FOLLOWING; 1) THIRD PARTY CLAIMS FOR DAMAGES; 2) SPECIAL, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forPUNITIVE, any Losses however causedINDIRECT, incurred or suffered by Customer directly or indirectly INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY TYPE, INCLUDING BUT NOT LIMITED TO PRODUCTS OR SYSTEMS BEING UNAVAILABLE FOR USE, LOST PROFITS OR SAVINGS OR LOST OR CORRUPTED DATA OR SOFTWARE, OR FOR ANY DAMAGES FOR PERSONAL INJURY, OR DEATH, WHETHER DIRECT, INDIRECT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, OR ARISING OUT OF THE RESULTS OR OPERATION OF ANY SYSTEM RESULTING FROM IMPLEMENTATION OF ANY RECOMMENDED PLAN OR DESIGN, EVEN IF WINTERGREEN OR ITS SUBCONTRACTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGE, AND EVEN IF PCPI OR THE END-USER ASSERTS OR ESTABLISHES A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL WINTERGREEN BE LIABLE TO PCPI OR ITS CUSTOMERS FOR ANY AMOUNT IN EXCESS OF THE FEES ACTUALLY RECEIVED BY WINTERGREEN FOR THE APPLICABLE COMPUTER SYSTEM. THIS LIMITATION OF LIABILITY APPLIES TO ALL TYPES OF LEGAL THEORIES, INCLUDING CONTRACT, TORT (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading ServicesINCLUDING NEGLIGENCE), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract providedPROFESSIONAL LIABILITY, howeverPRODUCT LIABILITY, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any predictionWARRANTY, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)OR ANYTHING ELSE. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan StanleyTHIS LIMIT ALSO APPLIES TO ANY WINTERGREEN SUBCONTRACTOR. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsIT IS THE MAXIMUM AMOUNT FOR WHICH WINTERGREEN AND ITS SUBCONTRACTORS ARE RESPONSIBLE.
Limitation of Liability. Except as otherwise provided in this Section 5IN NO EVENT WILL EN POINTE, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forEN POINTE SALES OR ANY OF THEIR SUPPLIERS BE LIABLE TO CUSTOMERS OR END USERS OR TO ANYONE WITH WHOM THE FOREGOING COMMUNICATE, any Losses however causedFOR ANY LOST PROFITS, incurred or suffered by Customer directly or indirectly LOST DATA, OR EQUIPMENT DOWN-TIME, OR FOR ANY SPECIAL, INCIDENTIAL, EXEMPLARY, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE SERVICES DESCRIBED IN THE EXHIBITS "TELEPHONY AND CIRCUITRY" AND/OR "INFORMATION TECHNOLOGY INFRASTRUCTURE SERVICES", OR EITHER PARTY'S USE OF ANY THIRD-PARTY SOFTWARE OR SERVICE PROVIDER, ANY EN POINTE SERVICE OR COMMUNICATIONS PROVIDER SUPPLIER WEB CONTENT, ANY OTHER MATERIALS PROVIDED PURSUANT TO THE STATEMENTS OF WORK DESCRIBED HEREIN OR ANY DELIVERABLE ASSOCIATED THEREWITH, WHETHER FROM BREACH OF CONTRACT OR WARRANTY, FROM NEGLIGENCE, STRICT LIABILITY OR OTHER CAUSE OF ACTION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EN POINTE'S AND EN POINTE SALES' AGGREGATE LIABILITY RELATED TO THIS STATEMENT OF WORK EXCEED THE FEES ACTUALLY PAID BY EPGS FORTHE SIX (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)6)MONTHS PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan StanleyTHE FOREGOING LIMITATION IS CUMULATIVE WITH ALL PAYMENTS BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsEXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THE LIMIT.
Limitation of Liability. Except as otherwise provided Vitacost does not warrant or guarantee that the Employee(s) placed pursuant to this Agreement will produce any particular result or any solution to Nutra-Pharma's particular needs, or perform services in this Section 5any particular manner. Accordingly, neither Morgan Stanley nor its affiliates shall have Nutra-Pharma acknowledges and agrees that Vitacost is not responsible for any responsibility aspects of the Employees work or liability to Customer hereunder forthe Nutra-Pharma's project, including, without limitation, any Losses however causeddeadlines or work product. Because Nutra-Pharma is directing and supervising the Employee, incurred or suffered by Customer directly or indirectly Vitacost shall not be liable (i) for any claims, costs, expenses, damages, obligations or losses arising from or in connection with the performance acts or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result omission of any predictionEmployee, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government work on engineering or exchange suspensions design concepts or restrictions on trading calculations or clearingrelated drawings, warsoftware programs, acts of terrorism designs or natural disastersdocumentation, or the unscheduled closure of an exchange (ii) for any indirect, special or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (consequential damages including, without limitationbut not limited to, loss of profits, interest, earnings or use) whether arising in contract, tort or otherwise. Nutra-Pharma shall indemnify Vitacost and hold it harmless against and from any Electronic Trading Services)such claims made or brought by third parties arising from or related to services provided by Employees hereunder, it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of including any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) and all costs incurred in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsclaims.
Limitation of Liability. Except a) It is expressly agreed that this Contract sets forth the sole and exclusive remedies available to Buyer and that FLS' liabilities are limited as otherwise provided in set forth herein. For the purposes of this Section 5article, neither Morgan Stanley nor "FLS" and "Buyer" shall include such party's parent companies, affiliates, subsidiaries, and related companies, its affiliates shall have other contractors, sub-vendors and subcontractors, and their respective directors, officers, agents, employees, and assigns. Neither party has granted or assumed any responsibility or liability to Customer hereunder forother warranties, any Losses however causedguarantees, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performanceduties, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)liabilities, or obligations, either express, implied, statutory, at law or in equity. It is further expressly agreed that no breach of warranty or of contract or failure by a party to fulfill any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)this contract shall constitute a failure of the essential purpose of the exclusive limited remedies. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services Neither FLS nor Buyer shall be uninterrupted or error free; and (c) including under any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall circumstances be liable to the other party for consequentialloss of profits, anticipated revenue, interest, loss of use, loss by reason of plant shutdown or non-operation, cost of substitute power, equipment, facilities or services, additional usage of fuel or utilities, cost of removal of defective equipment and installation of conforming or non-defective equipment, delays in installation of the work or completion of the project or plant and/or alleged "impact" of any such delay (including, for example, interferences, congestion, disruption, lack or restriction of access, compression, coordination problems, loss of productivity or efficiency, acceleration, escalation, out of sequence work, etc.), or other such claims arising from any cause whatsoever, or for any special, incidental, punitive indirect, exemplary, punitive, or special damages consequential damages, whether or not such loss or damage is based in contract, warranty, tort (including negligence or strict liability), indemnity or otherwise, and each party hereby releases the other party and the respective agents and employees of each from all such liability. (c) FLS' maximum aggregate liability for loss or damage arising under, resulting from or in connection with the supply or use of the Work provided under this Contract, or from the performance or breach of any obligation(s) imposed hereunder, includingwhether such liability arises from any one or more claims or actions for breach of contract, without limitationtort (including negligence or strict liability), damages alleged on delayed completion, warranty, indemnity or otherwise, unless otherwise more restrictively limited by the basis terms hereof, shall be limited to twenty-five percent (25%) of lost profits or lost assetsthe total amount paid by Buyer to FLS hereunder. Buyer hereby releases FLS, including income-producing assetsits agents and employees from any further liability therefor. (d) FLS EXPRESSLY DISCLAIMS ALL WARRANTIES OTHER THAN THOSE STATED IN THIS CONTRACT, WHETHER EXPRESS, IMPLIED, STATUTORY, AT LAW OR IN EQUITY. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS OF PURPOSE, OR OTHERWISE.
Appears in 1 contract
Limitation of Liability. Except as otherwise MDB shall employ due care and attention in preparing the Disclosure(s) hereunder. However, the Company acknowledges that MDB does not warrant or represent the accuracy or completeness of any public information or any information provided solely by the Company used in this Section 5any analysis and that inaccurate or incomplete data may affect the validity and reliability of the Disclosure(s). Similarly, neither Morgan Stanley nor its affiliates shall have any responsibility MDB makes no representation or liability warranty with respect to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance infringement of any of Morgan Stanleys obligations hereunder directly the Assets or indirectly caused by Inventions described in the occurrence of any contingency beyond the control of Morgan Stanley includingDisclosure(s). MDB makes no warranty, but not limited torepresentation, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasterspromise, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, undertaking with respect to any Electronic Trading Services Morgan Stanley expressly disclaims legal or financial consequences of, or any other consequences or benefits obtained from the use of any Disclosure(s), including any representation that any patent(s) will be granted. The Company assumes all risks related to documentation or warranty whatsoever technical information and data which may be subject to U.S. export controls or export or import restrictions in other countries. MDB SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MDB SHALL NOT BE LIABLE ON ACCOUNT OF ANY ERRORS, OMISSIONS, DELAYS, OR LOSSES UNLESS CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE FULLEST EXTENT PERMITTED BY LAW, MDB WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY (aINCLUDING WITHOUT LIMITATION LOST PROFITS, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES) with respect to accuracyALLEGED TO BE CAUSED BY USE OF THE DISCLOSURE(S). MDB IP Engagement Letter June 14, completeness or timeliness of such services2012 IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MDB FOR ANY CLAIMS, (bLOSSES, OR DAMAGES ARISING UNDER THIS AGREEMENT AND SERVICES PERFORMED HEREUNDER, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EXCEED THE TOTAL AMOUNT PAID BY THE COMPANY TO MDB FOR THE DISCLOSURE(S) that such services shall be uninterrupted or error free; and (c) including any implied warranties of titlePROXIMATELY CAUSING SUCH CLAIM, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsLOSS OR DAMAGE.
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have In no event will Blackstone or any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Indemnified Party be liable to the extent such Loss is caused by the negligenceCompanies or any of their affiliates (i) for any indirect, fraud special, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis of lost profits or lost assetssavings, including incomewhether or not such damages are foreseeable, or for any third-producing assetsparty claims (whether based in contract, tort or otherwise), related to, arising out of or in connection with the Transactions, the Services or other services contemplated by this Agreement or the engagement of Blackstone pursuant to, and the performance by Blackstone of the Services or other services contemplated by, this Agreement, or otherwise as a result of engaging in Competing Activities, that the Companies may have, or may claim to have, on or after the date hereof, except with respect to any act or omission that constitutes gross negligence or willful misconduct as determined by a final, non-appealable determination of a court of competent jurisdiction or (ii) for an amount in excess of the fees actually received by Blackstone hereunder.
Appears in 1 contract
Limitation of Liability. Except as otherwise provided in this Section 5IN NO EVENT SHALL TEGO OR ITS OFFICERS, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forDIRECTORS, any Losses however causedEMPLOYEES, incurred or suffered by Customer directly or indirectly TRUSTEES OR AFFILIATES BE LIABLE TO LUNA, ITS OFFICERS, DIRECTORS OR ITS RESPECTIVE SUCCESSORS OR PERMITTED ASSIGNS, OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM MADE AFTER THE CLOSING DATE (iI) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such servicesARISING FROM LUNAS USE OF THE ACQUIRED ASSETS, (bII) that such services shall be uninterrupted or error free; and ARISING FROM LUNAS MANUFACTURE, USE, IMPORT, OR SALE OR OFFER FOR SALE, LEASE OR OTHER TRANSFER OF PRODUCTS ARISING FROM THE ACQUIRED ASSETS, OR (cIII) including any implied warranties of titleFOR LUNAS LOSS OF PROFITS, non-infringementLOSS OR INTERRUPTION OF BUSINESS. IN NO EVENT SHALL LUNA OR ITS OFFICERS, merchantability or fitness for a particular purpose relating to such services; provided howeverDIRECTORS, Morgan Stanley shall be liable to the extent such Loss is caused by the negligenceEMPLOYEES, fraud or willful misconduct of Morgan StanleyTRUSTEES OR AFFILIATES BE LIABLE TO TEGO, ITS OFFICERS, DIRECTORS OR ITS RESPECTIVE SUCCESSORS OR PERMITTED ASSIGNS, OR ANY THIRD PARTY WITH RESPECT TO ANY CLAIM (I) ARISING FROM TEGOS USE OF THE ACQUIRED ASSETS, (II) ARISING FROM TEGOS MANUFACTURE, USE, IMPORT, OR SALE OR OFFER FOR SALE, LEASE OR OTHER TRANSFER OF PRODUCTS ARISING FROM THE ACQUIRED ASSETS, OR (III) FOR TEGOS LOSS OF PROFITS, LOSS OR INTERRUPTION OF BUSINESS. Neither party shall be liable to the other for consequentialIN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOST PROFITS, incidentalINDIRECT, punitive or special damages hereunderINCIDENTAL, includingCONSEQUENTIAL, without limitationSPECIAL, damages alleged on the basis of lost profits or lost assets, including income-producing assetsEXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND.
Limitation of Liability. Except as otherwise provided in For purposes of this Section 5Amendment, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection section 8 of the Master Services Agreement is replaced with the performance or non-performancefollowing: BOTH PARTIES EXPRESSLY AGREE THAT IN NO EVENT SHALL EITHER PARTY BE LIABLE OR RESPONSIBLE TO THE OTHER PARTY FOR ANY INCIDENTAL, for any reasonINDIRECT, by any designated contract marketSPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, swaps execution facilityINCLUDING, trading facilityBUT NOT LIMITED TO, clearing houseLOST PROFITS AND DAMAGES RESULTING FROM LOSS OF USE OR LOSS OF CORRUPTED DATA OR SOFTWARE, derivatives clearing organizationEVEN IF SUCH PARTY HAS BEEN ADVISED, executing brokerKNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY THEREOF. THE PARTIES EXPRESSLY WAIVE ANY CLAIMS DESCRIBED IN THIS SECTION. VAR FURTHER AGREES THAT IT SHALL INCLUDE IN ALL AMENDMENTS SELLING, clearing firm or custodian or by any electronic trading systemLEASING, facility or service (any such systemOR TRANSFERRING OWNERSHIP OF THE APOS SERVICES, facility or serviceA PROVISION SIMILAR TO THE ABOVE DISCLAIMING AS TO DELL LIABILITY FOR INCIDENTAL, collectivelyINDIRECT, Electronic Trading Services)SPECIAL, or by any other third party of its obligations to Morgan Stanley in respect of or in connection OR CONSEQUENTIAL DAMAGES. DELL WILL NOT HAVE ANY LIABILITY FOR ANY DAMAGES ARISING FROM THE USE OF THE APOS SERVICES IN ANY HIGH RISK ACTIVITY, INCLUDING, BUT NOT LIMITED TO, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, MEDICAL SYSTEMS, LIFE SUPPORT, OR WEAPONS SYSTEMS. ****** Certain information on this page has been omitted and filed separately with any Contract provided, however, that Morgan Stanley the Securities and Exchange Commission. Confidential treatment has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, been requested with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsomitted portions.
Appears in 1 contract Amendment (Rainmaker Systems Inc),
Limitation of Liability. Except as otherwise provided in this Section 5, neither a) MSCI agrees that none of the members of the Morgan Stanley nor its affiliates Group and their respective directors, officers, agents and employees (each, a Morgan Stanley Indemnified Person) shall have any responsibility liability, whether direct or liability indirect, in contract or tort or otherwise, to Customer hereunder for, any Losses however caused, incurred MSCI Entity or suffered by Customer directly any other Person for or indirectly (i) in connection with the performance Services rendered or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act rendered by or on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includingIndemnified Person pursuant to this Agreement, but not limited to, government the transactions contemplated hereby or exchange suspensions any actions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken inactions by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) Indemnified Person in connection with any such Services or arising out transactions, except to the extent any damages have been finally determined by a court of any agreements relating competent jurisdiction to Electronic Trading Services provided to Customer by have resulted from such Morgan Stanley (the terms and conditions of which Indemnified Persons gross negligence or willful misconduct in their entirety are incorporated herein by reference)connection with any such Services, actions or inactions. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services Notwithstanding the provisions of Section 5.02(a), none of the members of the Morgan Stanley Group shall be uninterrupted liable for any special, indirect, incidental, consequential or error freepunitive damages of any kind whatsoever in any way due to, resulting from or arising in connection with any of the Services or the performance of or failure to perform Morgan Stanleys obligations under this Agreement. This disclaimer applies without limitation (i) to claims arising from the provision of the Services or any failure or delay in connection therewith; (ii) to claims for lost profits; (iii) regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise; and (iv) regardless of whether such damages are foreseeable or whether any member of the Morgan Stanley Group has been advised of the possibility of such damages. (c) including any implied warranties None of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley the members of the MSCI Group shall be liable for any special, indirect, incidental, consequential or punitive damages of any kind whatsoever in any way due to, resulting from or arising in connection with any of the Services or the performance of or failure to perform MSCIs obligations under this Agreement. This disclaimer applies without limitation (i) to claims arising from the extent provision of Services of any failure or delay in connection therewith; (ii) to claims for lost profits; (iii) regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise; and (iv) regardless of whether such Loss damages are foreseeable or whether any member of the MSCI Group has been advised of the possibility of such damages. (d) None of the members of the Morgan Stanley Group shall have any liability to any MSCI Entity or any other Person for failure to perform Morgan Stanleys obligations under this Agreement or otherwise, where such failure to perform is not caused by the negligence, fraud gross negligence or willful misconduct of the Morgan StanleyStanley Entity providing such Services and such failure to perform similarly affects the Morgan Stanley Group receiving such Services and does not have a disproportionately adverse effect on the MSCI Group, taken as a whole. Neither party shall be liable (e) In addition to the foregoing, MSCI agrees that it shall, in all circumstances, use commercially reasonable efforts to mitigate and otherwise minimize its damages and those of the other for consequentialMSCI Entities, incidentalwhether direct or indirect, punitive due to, resulting from or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsarising in connection with any failure by Morgan Stanley to comply fully with its obligations under this Agreement.
Appears in 1 contract Services Agreement (MSCI Inc.),
Limitation of Liability. Except as otherwise provided in this Section 5TO THE FULLEST EXTENT PERMITTED BY LAW, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forIN NO EVENT SHALL MORGAN STANLEY, any Losses however causedTHE VENDORS, incurred or suffered by Customer directly or indirectly CONTRACTORS OR TECHNOLOGY OR CONTENT PROVIDERS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS, AGENTS AND EMPLOYEES (iTHE MORGAN STANLEY PARTIES) in connection with the performance or non-performanceHAVE ANY LIABILITY TO YOU OR ANY OTHER PERSON FOR ANY COSTS, for any reasonLIABILITIES OR DAMAGES OF ANY KIND, by any designated contract marketWHETHER DIRECT, swaps execution facilityINDIRECT, trading facilityCONSEQUENTIAL OR PUNITIVE (TOGETHER, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading ServicesCOSTS), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract providedARISING OUT OF, howeverOR IN CONNECTION WITH, that Morgan Stanley has picked such party in a commercially reasonable manner; THIS AGREEMENT OR THE PERFORMANCE OR BREACH OF THIS AGREEMENT, OR YOUR OR ANY OTHER PERSONS USE OF, OR INABILITY TO USE, THE SERVICES. THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER BASED ON STATUTE OR ARISING IN CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR TORT (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading ServicesINCLUDING NEGLIGENCE), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; AND REGARDLESS OF WHETHER ANY MORGAN STANLEY PARTY KNOWS OR HAS REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT AND WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF THE MORGAN STANLEY PARTIES UNDER THIS AGREEMENT AND WITH RESPECT TO THE SERVICES SHALL NOT EXCEED THE AMOUNT EARNED (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by referenceINCLUDING ANY MARK-UP), IF ANY, BY MORGAN STANLEY FROM YOU IN CONNECTION WITH THE SPECIFIC EVENT GIVING RISE TO YOUR LOSS OR DAMAGES, UNLESS CAUSED DIRECTLY BY THE MORGAN STANLEY PARTIES GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsTHIS LIMITATION OF LIABILITY IS IN ADDITION TO ANY OTHER LIMITATION PROVIDED IN ANY APPLICABLE ACCOUNT AGREEMENT OR RULES.
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have In no event will any responsibility Manager or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Related Parties be liable to the extent such Loss is caused by the negligenceCompany or any of its Affiliates (i) for any indirect, fraud special, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis of lost profits or lost assetssavings, including incomewhether or not such damages are foreseeable, or for any third-producing assetsparty claims (whether based in contract, tort or otherwise), related to or arising out of or in connection with the Transactions or the Services or the engagement of such Manager pursuant to, and the performance by such Manager of the Services, that the Company may have suffered or incurred, or may claim to have suffered or incurred, on or after the date hereof, except with respect to any act or omission that constitutes willful misconduct, bad faith or fraud of such Manager or Related Party as determined by a final, non-appealable determination of a court of competent jurisdiction or (ii) for an amount in excess of the fees actually received by such Manager hereunder except, in each case, to the extent such liability arises under the Purchase Agreement or the LLC Agreement and subject to any limitations on such liability set forth in the Purchase Agreement, the LLC Agreement or in any other agreement among such Manager or its Related Party, as applicable, and the Company or any of its Affiliates, as applicable.
Appears in 1 contract
Limitation of Liability. Except as otherwise provided Under no circumstances shall SIRRUS, its contracted providers, officers, agents, or anyone else involved in this Section 5creating, neither Morgan Stanley nor its affiliates shall have any responsibility producing, or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, distributing RELIFY's Product be liable for any reasondirect, by any designated contract marketindirect, swaps execution facilityincidental, trading facilityspecial or consequential damages that result from the use of or inability to use the Product; or that results from mistakes, clearing houseomissions, derivatives clearing organizationinterruptions, executing brokerdeletion of files, clearing firm or custodian or by any electronic trading systemerrors, facility or service (any such systemdefects, facility or service, collectively, Electronic Trading Services)delays in operation, or by transmission or any other third party failure of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanleyperformance, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes limited to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism God, communication failure, theft, destruction or natural disastersunauthorized access to RELIFY's records, programs or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due services. RELIFY hereby acknowledges that this paragraph shall apply to breakdowns or failures of transmission or communication facilitiesall content on said Hosting Service. THE TOTAL LIABILITY FOR ALL DAMAGES, executionLOSSES, and/or trading facilities or other systems AND CAUSES OF ACTION (includingWHETHER IN CONTRACT, without limitation, any Electronic Trading ServicesTORT (INCLUDING NEGLIGENCE), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; OR OTHERWISE) TO THE OTHER SHALL NOT EXCEED THE DEVELOPMENT PRICE (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by referenceAS DEFINED IN SECTION 0). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsTHIS LIMITATION OF LIABILITY SHALL APPLY EVEN IF THE EXPRESS WARRANTIES SET FORTH ABOVE FAIL IN THEIR ESSENTIAL PURPOSE.
Limitation of Liability. Except as otherwise provided in THE SUPPLIERS MAXIMUM LIABILITY UNDER THIS AGREEMENT ARISING OUT OF THE MANUFACTURE, SALE, SUPPLY, SERVICE OR * Certain information on this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection page has been omitted and filed separately with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley Securities and Exchange Commission. Confidential Treatment has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, been requested with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever the omitted portions. Asterisks within brackets denote omission. SUPPORT OF DELIVERABLES OR THEIR USE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (aINCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, SHALL BE LIMITED TO 500,000 EUROS PER INCIDENT OR SERIES OF CONNECTED INCIDENTS AND A MAXIMUM OF [*]. IN NO EVENT SHALL SUPPLIER BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY PUNITIVE DAMAGES OR LOST PROFITS, WHETHER FORESEEABLE OR UNFORESEEABLE, OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF GOODWILL, LOST OR DAMAGED DATA OR SOFTWARE, LOSS OF USE OF THE DELIVERABLES, DOWNTIME OR COSTS OF SUBSTITUTE PRODUCTS OR EQUIPMENT) with respect to accuracyARISING FROM SUPPLIERS SALE AND DELIVERY OF THE DELIVERABLES OR ANY OTHER ACT OF SUPPLIER IN CONNECTION WITH THIS AGREEMENT, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan StanleyEVEN IF SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsNO LIMITATION AS TO DAMAGES FOR PERSONAL INJURY IS HEREBY INTENDED.
Appears in 1 contract Agreement (Sycamore Networks Inc),
Limitation of Liability. Except as otherwise provided in this Section 5for personal injury, property damage and Suppliers indemnification obligation hereunder with respect to which there shall be no limitation of liability, neither Morgan Stanley nor its affiliates party shall have any responsibility or liability be liable to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, other party for any reasonincidental, by any designated contract marketspecial, swaps execution facilityindirect, trading facilityconsequential damages, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government lost profits, data or exchange suspensions revenue, however caused or restrictions on trading any theory of liability, by reason of any act, occurrence or clearingnon-occurrence arising out of the business contemplated by this Agreement; provided, warhowever, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (includingSupplier agrees that, without limitationlimiting the general meaning of the term direct damages, the following shall be considered direct damages or losses of Purchaser for which Supplier shall be liable and Supplier shall not assert that such damages are indirect, special, incidental or consequential losses or damages: A) a complete refund of all moneys paid by Purchaser for defective PRODUCTS and SERVICES; B) any Electronic Trading Services)costs, charges and expenses associated with the installation, de-installation and removal of rejected defective PRODUCTS; C) any incremental costs, charges and expenses incurred by Purchaser to obtain, provide and implement a workaround incident to a failure to provide the PRODUCT or SERVICES in accordance with SPECIFICATIONS; D) any costs, charges and expenses of replacing lost or damaged property, equipment, SOFTWARE and HARDWARE caused by Supplier or Suppliers PRODUCTS and SERVICES; E) any costs, charges and expenses incurred to correct defects, deficiencies or defaults related to the failure or malfunction of PRODUCTS or SERVICES; F) any excess costs, charges and expenses to reprocure similar commercially available PRODUCTS and SERVICES from a third party on an expedited basis, it being understood that Morgan Stanley shall any such costs associated with such PRODUCTS and SERVICES will be excused from performance net of its obligations hereunder for such period the refund of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.purchase price;
Appears in 1 contract
Limitation of Liability. Except EACH PARTYS LIABILITY TO THE OTHER HEREUNDER SHALL IN NO EVENT EXCEED THE ACTUAL PROXIMATE LOSSES OR DAMAGES CAUSED BY BREACH OF THIS AGREEMENT, AND ARGUS AGGREGATE CUMULATIVE LIABILITY TO ALL OF THE CUSTOMER ENTITIES SHALL IN NO EVENT EXCEED THE AMOUNT SET FORTH IN EXHIBIT B. NOTWITHSTANDING ANY TERM OF THIS MSA, IN NO EVENT WILL EITHER PARTY TO THIS MSA BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS) OR PUNITIVE DAMAGES ARISING FROM THE RELATIONSHIP OF THE PARTIES OR THE CONDUCT OF BUSINESS UNDER THIS MSA (EVEN IF THE RESPONSIBLE PARTY HAS BEEN ADVISED OF OR HAS FORESEEN THE POSSIBILITY OF SUCH DAMAGES). Argus services are intended as otherwise provided an aid to, and not a substitute for, the knowledge, expertise, skill and judgment of Prescribers, Pharmacies or other healthcare professionals. Pharmacies, Prescribers, other healthcare professionals, and Customer are individually responsible for acting or not acting upon information generated and transmitted by Argus, and Argus does not control or intervene in the healthcare or Program decisions made or actions taken by Pharmacies, Prescribers, other healthcare professionals, Customer or Members, and Argus is not responsible therefore. Notwithstanding any other provision of this Section 5MSA, neither Morgan Stanley nor its affiliates shall in no event will Argus have any responsibility or liability to Customer hereunder forif Argus has not directly caused such liability by breaching this MSA or for damages and expenses of any kind arising from any of the following: (a) Customers negligence or failure to perform its obligations in this MSA or abide by laws and regulations applicable to Customers business, any Losses however caused(b) Customer made or directed changes or instructions, incurred or suffered use of data, (c) the provision of data or information to Argus by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)third parties, or the lack by any other third party Customer or others of its obligations a right to Morgan Stanley in respect of forward data or in connection with any Contract providedinformation to Argus, however(d) medical, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) scientific, business, or Program judgments made as a result of any prediction, recommendation services provided by Argus or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance or after consultation with Argus staff, (e) the stopping of payment on any instructionstale checks, notice complying with the instructions of Customer or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, Pharmacy with respect to the issuance and handling of checks, and any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness banks issuance and handling of such serviceschecks, (bf) that the unauthorized Copyright 2009 by Argus Health Systems, Inc. All Rights Reserved. All of the information on this page constitutes a trade secret, privileged or confidential information, as such services shall be uninterrupted or error free; terms are interpreted under the Freedom of Information Act and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsapplicable case law.
Limitation of Liability. Except as otherwise provided in this Section 5, neither (a) MSCI agrees that none of the members of the Morgan Stanley nor its affiliates Group and their respective directors, officers, agents and employees (each, a Morgan Stanley Indemnified Person) shall have any responsibility liability, whether direct or liability indirect, in contract or tort or otherwise, to Customer hereunder for, any Losses however caused, incurred MSCI Entity or suffered by Customer directly any other Person for or indirectly (i) in connection with the performance Services rendered or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act rendered by or on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includingIndemnified Person pursuant to this Agreement, but not limited to, government the transactions contemplated hereby or exchange suspensions any actions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken inactions by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) Indemnified Person in connection with any such Services or arising out transactions, except to the extent any damages have been finally determined by a court of any agreements relating competent jurisdiction to Electronic Trading Services provided to Customer by have resulted from such Morgan Stanley (the terms and conditions of which Indemnified Persons gross negligence or willful misconduct in their entirety are incorporated herein by reference)connection with any such Services, actions or inactions. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services Notwithstanding the provisions of Section 5.02(a), none of the members of the Morgan Stanley Group shall be uninterrupted liable for any special, indirect, incidental, consequential or error freepunitive damages of any kind whatsoever in any way due to, resulting from or arising in connection with any of the Services or the performance of or failure to perform Morgan Stanleys obligations under this Agreement. This disclaimer applies without limitation (i) to claims arising from the provision of the Services or any failure or delay in connection therewith; (ii) to claims for lost profits; (iii) regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise; and (iv) regardless of whether such damages are foreseeable or whether any member of the Morgan Stanley Group has been advised of the possibility of such damages. (c) including any implied warranties None of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley the members of the MSCI Group shall be liable for any special, indirect, incidental, consequential or punitive damages of any kind whatsoever in any way due to, resulting from or arising in connection with any of the Services or the performance of or failure to perform MSCIs obligations under this Agreement. This disclaimer applies without limitation (i) to claims arising from the extent provision of Services of any failure or delay in connection therewith; (ii) to claims for lost profits; (iii) regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise; and (iv) regardless of whether such Loss damages are foreseeable or whether any member of the MSCI Group has been advised of the possibility of such damages. (d) None of the members of the Morgan Stanley Group shall have any liability to any MSCI Entity or any other Person for failure to perform Morgan Stanleys obligations under this Agreement or otherwise, where such failure to perform is not caused by the negligence, fraud gross negligence or willful misconduct of the Morgan StanleyStanley Entity providing such Services and such failure to perform similarly affects the Morgan Stanley Group receiving such Services and does not have a disproportionately adverse effect on the MSCI Group, taken as a whole. Neither party shall be liable (e) In addition to the foregoing, MSCI agrees that it shall, in all circumstances, use commercially reasonable efforts to mitigate and otherwise minimize its damages and those of the other for consequentialMSCI Entities, incidentalwhether direct or indirect, punitive due to, resulting from or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsarising in connection with any failure by Morgan Stanley to comply fully with its obligations under this Agreement.
Appears in 1 contract Services Agreement (MSCI Inc.),
Limitation of Liability. Except as otherwise provided in this Section 5PENN WILL NOT BE LIABLE TO COMPANY, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forITS AFFILIATES, any Losses however causedSUBLICENSEES, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performanceSUCCESSORS OR ASSIGNS WITH RESPECT TO ANY CLAIM: ARISING FROM COMPANYS USE OF THE PENN PATENT RIGHTS, for any reasonLICENSED PRODUCTS OR ANY OTHER TECHNOLOGY LICENSED UNDER THIS AGREEMENT; ARISING FROM THE DEVELOPMENT, by any designated contract marketTESTING, swaps execution facilityMANUFACTURE, trading facilityUSE OR SALE OF LICENSED PRODUCTS; OR FOR LOST PROFITS, clearing houseBUSINESS INTERRUPTION, derivatives clearing organizationOR INDIRECT, executing brokerSPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND. IN ADDITON, clearing firm or custodian or by any electronic trading systemIN NO EVENT SHALL COMPANY BE LIABLE TO PENN FOR INDIRECT, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley** CERTAIN INFORMATION IN THIS EXHIBIT HAS BEEN OMITTED AND WILL BE FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT REQUEST. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.Confidential
Limitation of Liability. Except as otherwise provided Neither Advisor nor any of its affiliates, nor any of their respective members, managers, partners, directors, officers, employees, agents and/or controlling persons, nor any successor by operation of law (including by merger) of any such person, nor any entity that acquires all or substantially all of the assets of any such person in this Section 5a single transaction or series of related transactions (all of the foregoing, neither Morgan Stanley nor collectively, the Advisor Indemnitees) shall be liable to the Company or any of its Subsidiaries or affiliates or any of the security holders or creditors of the Company or any of its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly for (i) any damage, loss, liability, deficiency, diminution in connection with the performance or non-performancevalue, for any reasonaction, by any designated contract marketsuit, swaps execution facilityclaim, trading facilityproceeding, clearing houseinvestigation, derivatives clearing organizationaudit, executing brokerdemand, clearing firm or custodian or by any electronic trading systemassessment, facility or service (any such systemfine, facility or servicejudgment, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities cost or other systems expense (including, without limitation, any Electronic Trading Services)legal fees and expenses) (collectively Liabilities) directly or indirectly (whether direct or indirect, it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (vin contract or tort or otherwise) as a result of any action reasonably taken by arising out of, related to, caused by, based upon or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with the performance of the Services contemplated by this Agreement, unless such Liability shall have been determined by a court of competent jurisdiction to have been caused by the fraud, bad faith, gross negligence or arising out willful misconduct of such person, or (ii) any agreements relating to Electronic Trading Outside Activities (as defined herein). Advisor makes no representations or warranties, express or implied, in respect of the Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)any Advisor Indemnitee. Further, with respect to In no event will any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Advisor Indemnitee be liable to the extent such Loss is caused by the negligenceCompany (x) for any special, fraud indirect, punitive, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis loss of lost profits or savings or lost assetsbusiness, including income-producing assetswhether or not such damages are foreseeable or such Advisor Indemnitee has been advised of the possibility of such damages or (y) in respect of any Liabilities relating to any third party claims (whether based in contract, tort or otherwise), except as set forth in Section 6 below. Under no circumstances will the aggregate of any and all Liabilities of Advisor Indemnitees exceed, in the aggregate, the fees actually paid to Advisor hereunder.
Limitation of Liability. Except as otherwise provided Under no circumstances shall Internap be liable, either in this Section 5contract, neither Morgan Stanley nor its affiliates shall have tort, warranty, strict liability, negligence or under any responsibility statute, regulation or liability to Customer hereunder any other theory for: (a) unauthorized access, any Losses however causedalteration, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performancetheft, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services)corruption, or by any other third party of its obligations to Morgan Stanley in respect destruction of or in connection with any Contract providedto Customers or its customers, howeverand users or business partners computer files, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any predictiondatabases, recommendation or advice made or given by a representative of Morgan Stanleynetwork, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Lawequipment; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted the content accuracy or error free; and quality of the data transmitted through the Services. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY UNDER THIS AGREEMENT OR ANY SALES ORDER FORM SHALL BE LIMITED TO SIX MONTHS OF FEES PAID BY CUSTOMER TO INTERNAP UNDER THE SALES ORDER FORM UNDER WHICH THE LIABILITY ARISES, EXCEPT THAT IN THE CASE OF CUSTOMERS INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 NO SUCH LIMIT WILL APPLY. EXCEPT IN THE CASE OF CUSTOMERS INDEMNIFICATION OBLIGATIONS UNDER SECTION 11 HEREIN, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY THIRD PARTY CLAIM OR FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY BREACH THEREOF, OF ANY NATURE WHATSOEVER (c) including any implied warranties of titleINCLUDING WITHOUT LIMITATION LOSS OF PROFITS, non-infringementDATA, merchantability or fitness for a particular purpose relating to such services; provided howeverBUSINESS OR GOODWILL), Morgan Stanley shall be liable to the extent such Loss is caused by the negligenceREGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequentialTORT (INCLUDING NEGLIGENCE), incidentalSTRICT LIABILITY, punitive or special damages hereunderBREACH OF WARRANTIES, includingFAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.AND EVEN IF ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES,
Limitation of Liability. Except as otherwise provided in this Section 5UNDER NO CIRCUMSTANCES SHALL FLAGSHIP/HBS BE LIABLE TO LICENSEE ON ACCOUNT OF ANY CLAIM (REGARDLESS OF THEORY OF LIABILITY WHETHER BASED UPON PRINCIPLES OF CONTRACT, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forWARRANTY, any Losses however causedNEGLIGENCE OR OTHER TORT, incurred or suffered by Customer directly or indirectly BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY, THE FAILURE OF ANY LIMITED REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE) FOR ANY SPECIAL, CONSEQUENTIAL, RELIANCE, INDIRECT, INCIDENTAL, PUNITIVE-OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR NOT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, OR GOODWILL OR COST OF REPLACEMENT SERVICES OCCASIONED BY ANY DEFECT IN THE GAME OR SERVER, THE INABILITY TO USE, LOCALIZE OR INTEGRATE THE GAME OR SERVER WITH LICENCEES HARDWARE, SOFTWARE OR OTHER EQUIPMENT, GAMECARDS, OR ANY OTHER CAUSE WHATSOEVER WITH RESPECT TO THE GAME OR SERVER OR THIS AGREEMENT, DAMAGE OR LOSS OF PROPERTY, EQUIPMENT, INFORMATION OR DATA, OR FOR ANY DAMAGES OR SUMS PAID BY LICENSEE TO THIRD PARTIES, EVEN IF FLAGSHIP/HBS HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. LICENSEE ACKNOWLEDGES AND AGREES THAT (i1) in connection with the performance or non-performanceLICENSEE HAS NO EXPECTATION AND HAS RECEIVED NO ASSURANCES THAT ITS BUSINESS RELATIONSHIP WITH FLAGSHIP/HBS WILL CONTINUE BEYOND THE STATED TERM OF THIS AGREEMENT OR ITS EARLIER TERMINATION, for any reasonAND THAT FLAGSHIP/HBS HAS NOT MADE ANY PROMISES WITH RESPECT TO LICENSEES ABILITY TO RECOUP ANY INVESTMENT OR COSTS BY LICENSEE IN CONNECTION WITH THE PROMOTION OF LOCALIZED GAME BY VIRTUE OF THIS AGREEMENT; AND (2) LICENSEE SHALL NOT HAVE OR ACQUIRE BY VIRTUE OF THIS AGREEMENT OR OTHERWISE ANY VESTED, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference)PROPRIETARY OR OTHER RIGHT IN THE PROMOTION OF LOCALIZED GAME OR IN ANY GOODWILL CREATED BY ITS EFFORTS HEREUNDER. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsLICENSEE AGREES THAT FLAGSHIP/HBS WILL NOT BE LIABLE FOR ANY DAMAGES THAT LICENSEE OR ITS CUSTOMERS OR END USERS MAY INCUR ARISING OUT OF THE USE OR INABILITY TO USE THE LOCALIZED GAME OR GAME CARD.
Limitation of Liability. Except Each party understands, acknowledges and agrees that neither party or any of its Affiliate, nor any partner, member, officer, director, manager, employee or agent of either party (collectively, the TAL Persons or the Archipelago Persons, as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates the case may be) shall have any responsibility liability arising out of or related to the provision of software, technology or Services pursuant to this Support Agreement, Archipelagos use of the software, technology or Services provided under this Support Agreement or the results achieved by Archipelagos use of such software, technology or Services, nor shall any TAL Person or Archipelago Person have any liability to Customer hereunder forfor any loss of profit, any Losses however caused, incurred loss of business or suffered by Customer other damage whatsoever arising or directly or indirectly (i) in connection with from the performance provision of software, technology or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm Services pursuant to this Support agreement or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance by TAL or Archipelago (as the case may be) of any of Morgan Stanleys obligations hereunder its duties under this Support Agreement, or resulting directly or indirectly from any failure of or inadequacy or error made by TAL or Archipelago (as the case may be), except to the extent caused by or resulting from the gross negligence, willful misconduct or unlawful acts of the other party or its members, managers, officers, employees or agents and to the extent provided for in Section 9.4(b). In no event shall TAL have liability to Archipelago for any loss or damage whatsoever resulting from any action taken by TAL at the express direction of any manager, member, director, officer, employee or agent of the Company (it being understood that any such manager, member, director or officer, employee or agent that is also a TAL Person or a manager of Archipelago designated by Virago Enterprises, L.L.C., TAL or TAL Persons shall not be deemed to be providing any direction as a manager, member, director, officer, employee or agent of Archipelago). Archipelago agrees that TALs liability for damages, if any, shall not in any event exceed the charges paid to TAL by the Company under this Support Agreement. No action, regardless of form, arising out of any software, technology or Services provided, or any transaction under, this Support Agreement may be brought by either party more than one year after the party bringing such action has knowledge or should reasonably have had knowledge of the occurrence or omission that would give rise to the cause of such action. Notwithstanding any other provision of this Support Agreement, in no event shall either party or any of its Affiliates, or any TAL Person or Archipelago Person, be liable for any special, incidental, indirect, consequential or punitive damages of any contingency beyond the control kind, whether in tort (including negligence), contract or otherwise, whether or not that party or any of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disastersits Affiliates, or any TAL Person or any Archipelago Person, shall have been advised of or otherwise might have anticipated the unscheduled closure possibility of an exchange such damages, and each party agrees not to seek such damages. In any threatened, pending or contract market completed action, suit or delays in the transmission proceeding, TAL and each TAL Person shall be fully protected and indemnified and held harmless by Archipelago, and Archipelago and each Archipelago Person shall be fully protected and indemnified and held harmless by TAL, against all liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and disbursements of orders due to breakdowns any kind or failures of transmission or communication facilities, execution, and/or trading facilities or other systems nature whatsoever (including, without limitation, reasonable attorneys fees, costs of investigation, fines, judgments and amounts paid in settlement, actually incurred by TAL or a TAL Person, or any Electronic Trading ServicesArchipelago or an Archipelago Person (as the case may be), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with such action, suit or proceeding) arising out of any agreements relating or related to Electronic Trading the provision of the software, technology or Services provided to Customer for under this Support Agreement, Archipelagos use of the software, technology or Services provided under this Support Agreement, or the results achieved by Morgan Stanley (the terms and conditions Archipelagos use of which in their entirety are incorporated herein by reference). Furthersuch software, technology or Services or with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation action or warranty whatsoever (a) with respect to accuracyomission taken or suffered in good faith, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by liabilities and losses result from the gross negligence, fraud or willful misconduct or unlawful acts of Morgan StanleyTAL or a TAL Person or of Archipelago or any Archipelago Person (as the case may be). Neither party The provisions of this Section 11.1 shall be liable not apply with respect to any claims under the other for consequentialLicense Agreement, incidentalthe License and Distribution Agreement, punitive dated as of the Effective Date, between Archipelago and TAL, or special damages hereunderthe Townsend Analytics Assistance Agreement, includingdated as of the Effective Date, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsbetween Archipelago and TAL.
Limitation of Liability. Except as otherwise provided in this Section 5NONE OF THE PARTIES WILL BE LIABLE FOR CONSEQUENTIAL, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forINCIDENTAL, any Losses however causedPUNITIVE, incurred or suffered by Customer directly or indirectly EXEMPLARY OR INDIRECT DAMAGES, WHETHER ARISING IN TORT, CONTRACT OR OTHERWISE. THE PARTIES INTEND THAT THE LIMITATIONS UNDER THIS SECTION IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING, WITHOUT LIMITATION, THE NEGLIGENCE OR STRICT LIABILITY OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. PARTICIPANT AND ALLIANCEBERNSTEIN ACKNOWLEDGE THAT OWNERS, OPERATOR, ROI AND MRC HAVE NOT MADE, AND OWNERS, OPERATOR, ROI AND MRC HEREBY EXPRESSLY DISCLAIM AND NEGATE, ANY REPRESENTATION OR WARRANTY, EXPRESS, IMPLIED, AT COMMON LAW, BY STATUTE OR OTHERWISE RELATING TO (i) in connection with the performance or non-performanceTHE PRESENCE OF, for any reasonOR THE QUALITY, by any designated contract marketQUANTITY OR VOLUME OF, swaps execution facilityTHE RESERVES OF HYDROCARBONS, trading facilityIF ANY, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such servicesATTRIBUTABLE TO THE LEASES AND THE LANDS COVERED THEREBY, (b) that such services shall be uninterrupted or error free; and THE ACCURACY, COMPLETENESS OR MATERIALITY OF ANY INFORMATION, DATA OR OTHER MATERIALS (WRITTEN OR ORAL) NOW, HERETOFORE OR HEREAFTER FURNISHED TO PARTICIPANT OR ALLIANCEBERNSTEIN BY OR ON BEHALF OF OWNERS, OPERATOR, ROI OR MRC, OR (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsTHE ENVIRONMENTAL CONDITION OF THE LANDS COVERED BY THE LEASES.
Limitation of Liability. Except as otherwise provided in this Section 5To the maximum extent permitted by applicable law, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder foreach of First Clearing, any Losses however causedof its agents, incurred affiliates, third party providers or suffered by Customer directly anyone else involved in creating, producing, delivering or indirectly (i) in connection with managing the performance delivery of the services provided to Broker through the First Clearing platform, including, without limitation, the First Clearing Platform Systems and Software shall not be liable to Broker or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations for any decision made, action taken or omission to Morgan Stanley act by First Clearing in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructionMarket Information or for any direct, notice indirect, incidental, special, consequential, punitive or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems damages whatsoever (including, without limitation, any Electronic Trading Services)damages for lost profits, it being understood that Morgan Stanley shall be excused trading losses, damages resulting from performance inconvenience or loss of its obligations hereunder for such period use of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderFirst Clearing Platform, including, without limitation, damages alleged on the basis First Clearing Platform Systems and Software), even if Broker or such other third-party has been advised of lost profits the possibility of such damages, arising out of the use of or lost assetsinability to use the First Clearing Platform, including income-producing assetsincluding, without limitation, the First Clearing Platform Systems and Software, or for any breach of any representation or warranty made herein.
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates CSSU shall have any no responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, performance by any designated contract exchange or market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party except if selected by CSSU without reasonable care (including floor brokers and banks) to CSSU of its obligations to Morgan Stanley in respect of or in connection with any Contract providedor other property of the Customer, however, that Morgan Stanley has picked in particular CSSU shall not be liable to Customer if any such third party makes an error in a commercially reasonable mannerfilling orders or fails to fill an order for Customer; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, CSSU whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable CSSUs reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys CSSUs obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley CSSU including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities, other systems, or any other electronic trading systems, facilities or other systems (including, without limitation, any Electronic Trading Servicesservices), it being understood that Morgan Stanley CSSU shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley CSSU or its floor brokers in compliance to comply with Applicable Law; or (vi) as a result of any actions taken by CSSU in connection with the exercise of the available remedies pursuant to Section 4; or arising out (vii) for any acts or omissions of those neither employed nor supervised by CSSU or its affiliates, except if selected by CSSU without reasonable care. CSSU shall not be responsible for any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Furtherloss, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation liability, damage or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable expense except to the extent that such Loss is caused by the negligenceloss, fraud liability, damage or willful misconduct of Morgan Stanleyexpense arises from its negligence or misconduct. Neither party shall In no event will CSSU or Customer be liable to the other for consequential, incidental, punitive incidental or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsdamages.
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Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates shall have In no event will any responsibility Manager or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Indemnified Party be liable to the extent such Loss is caused by the negligenceCompany or any of its affiliates (i) for any indirect, fraud special, incidental or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunderconsequential damages, including, without limitation, damages alleged on the basis of lost profits or lost assetssavings, including incomewhether or not such damages are foreseeable, or for any third-producing assetsparty claims (whether based in contract, tort or otherwise), related to or arising out of or in connection with the Transactions, the Services or other services contemplated by this Agreement or the engagement of such Manager pursuant to, and the performance by such Manager of the Services or other services contemplated by, this Agreement that the Company may have suffered or incurred, or may claim to have suffered or incurred, on or after the Original Agreement Date, except with respect to any act or omission that constitutes willful misconduct, bad faith or fraud as determined by a final, non-appealable determination of a court of competent jurisdiction or (ii) for an amount in the aggregate for any reason whatsoever in excess of the fees actually received by such Manager hereunder.
Appears in 1 contract
Limitation of Liability. Except as otherwise provided in this Section 5Neither the Consultant nor any of its affiliates, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forof their respective members, any Losses however causedmanagers, incurred or suffered by Customer directly or indirectly (i) partners, directors, officers, employees, agents retained in connection with the performance or non-performanceservices contemplated by this Agreement and/or controlling persons, for nor any reason, successor by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or operation of law (including by any electronic trading system, facility or service (merger) of any such systemperson, facility nor any entity that acquires all or servicesubstantially all of the assets of any such person in a single transaction or series of related transactions (all of the foregoing, collectively, Electronic Trading Services), the Consultant Indemnitees) shall be liable to the Company or by any other third party of the Subsidiaries or affiliates or any of the security holders or creditors of the Company or any of its obligations to Morgan Stanley affiliates for (a) any damage, loss, liability, deficiency, diminution in respect of or in connection with any Contract providedvalue, howeveraction, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any predictionsuit, recommendation or advice made or given by a representative of Morgan Stanleyclaim, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructionproceeding, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley includinginvestigation, but not limited toaudit, government or exchange suspensions or restrictions on trading or clearingdemand, warassessment, acts of terrorism or natural disastersfine, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilitiesjudgment, execution, and/or trading facilities cost or other systems expense (including, without limitation, any Electronic Trading Services)legal fees and expenses) (collectively Liabilities) directly or indirectly (whether direct or indirect, it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (vin contract or tort or otherwise) as a result of any action reasonably taken by arising out of, related to, caused by, based upon or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out the performance of any agreements relating services contemplated by this Agreement unless such Liability shall be judicially determined in a final non-appealable order to Electronic Trading Services provided to Customer by Morgan Stanley (result directly and primarily from the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness willful misconduct of such services, person or (b) that such any Outside Activities (as defined in Section 19 below). The Consultant makes no representations or warranties, express or implied, in respect of the services shall be uninterrupted or error free; and (c) including provided by any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall Consultant Indemnitee. In no event will any Consultant Indemnitee be liable to the extent such Loss is caused by Company or any of the negligenceSubsidiaries or affiliates or any of the security holders or creditors of the Company or any of its affiliates (i) for any special, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequentialindirect, incidentalpunitive, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.incidental or
Appears in 1 contract Consulting Agreement (Accuride Corp),
Limitation of Liability. Except (a) Servicer agrees that except as otherwise expressly provided herein, none of Buyer or any of its Affiliates (as defined in this Section 5, neither Morgan Stanley nor its affiliates the Real Estate Securities Purchase Agreement) shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly Liability (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay defined in the performance Real Estate Securities Purchase Agreement) to Servicer or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence Affiliates of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due Servicer relating to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of (i) actions, inactions, errors or omissions of any agreements employee providing Services, (ii) any work-related injury sustained by any employee providing Services, or (iii) any other event, condition, or matter relating to Electronic Trading this Transition Services provided to Customer by Morgan Stanley (Agreement or the terms subject matter hereof, other than liabilities and conditions obligations arising directly out of which in their entirety are incorporated herein by reference)Buyers intentional misconduct. Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that Buyer agrees that, after the end of the Services Period and for so long as any employee of Buyer or any of its Affiliates shall continue to occupy space at Servicers premises, neither Servicer nor any of its Affiliates shall have any Liability to Buyer or any of its Affiliates for (i) any work-related injury sustained by any such services shall be uninterrupted employee or error free; and (ii) any actions or inactions of any such employee, other than Liabilities arising directly out of Servicers intentional misconduct. (c) including In no event shall any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall party hereto be liable to any other party for any punitive, special, indirect, consequential or other damages other than direct damages (except to the extent such Loss is caused damages are imposed on a party to this Agreement by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsa third party).
Limitation of Liability. Except as otherwise provided in this Section 5In no event will SMI or an affiliate thereof be liable to AMIC or any current, neither Morgan Stanley nor its affiliates shall former or future affiliate thereof for: (1) costs of substitute goods, (2) any special, consequential, incidental or indirect damages, or (3) loss of use, opportunity, market potential, goodwill and/or profit on any theory (contract, tort, from third Person claims or otherwise). Under no circumstances will any shareholder, partner, member, manager, director, officer, representative, affiliate, employee or agent of SMI have any financial or other responsibility for any liability or liability to Customer hereunder forobligation of SMI (whether on a theory of alter ego, any Losses however causedpiercing the corporate veil, incurred or suffered by Customer directly or indirectly (i) in connection with otherwise). No Person is guaranteeing the performance by SMI hereunder or non-performance, is liable for the performance of SMI hereunder. If any third Person fails for any reasonreason whatsoever to comply with its representations, by any designated contract marketwarranties, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its covenants and/or obligations to Morgan Stanley in respect of or in connection with any Contract providedAMIC, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) SMI shall not be liable as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley thereof. In no event shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall SMI be liable to AMIC for an amount in excess of the extent such Loss is caused compensation paid to SMI by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages AMIC hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.
Limitation of Liability. Except as otherwise provided in this Section 5(a) General. IN NO EVENT SHALL FISERV BE LIABLE FOR LOSS OF GOODWILL, neither Morgan Stanley nor its affiliates shall have any responsibility OR FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES ARISING FROM CLIENTS USE OF FISERV SERVICES, OR FISERVS SUPPLY OF EQUIPMENT OR SOFTWARE, REGARDLESS OF WHETHER SUCH CLAIM ARISES IN TORT OR IN CONTRACT. CLIENT MAY NOT ASSERT ANY CLAIM AGAINST FISERV MORE THAN 2 YEARS AFTER SUCH CLAIM ACCRUED. FISERVS AGGREGATE LIABILITY FOR ANY AND ALL CAUSES OF ACTION RELATING TO THIS AGREEMENT SHALL BE LIMITED TO * PRECEDING THE DATE THE CLAIM ACCRUED. * (b) Lost Records. If Clients records or liability to Customer hereunder for, any Losses however caused, incurred other data submitted for processing are lost or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) damaged as a result of any predictionfailure by Fiserv, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disastersits employees, or the unscheduled closure of an exchange agents to exercise reasonable care to prevent such loss or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilitiesdamage, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or Fiservs liability on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness account of such services, (b) that loss or damages shall not exceed the reasonable cost of reproducing such services shall be uninterrupted records or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsdata from exact duplicates thereof in Clients possession.
Appears in 1 contract Agreement (United Bankshares Inc/Wv),
Limitation of Liability. Except as otherwise provided in this Section 5, neither Morgan Stanley nor its affiliates In no event shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third either party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; agents or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall suppliers be liable to the other party for consequential, incidental, punitive more than the amount of any actual direct damages up to the greater of U.S. $100,000 (or special damages equivalent in local currency) or the charges for the Product or Services paid or payable hereunder, includingincluding any associated interest that may accrue pursuant to this Agreement, without limitationthat are the subject of the claim, regardless of the cause and whether arising in contract, tort (including negligence) or otherwise. This limitation will not apply to (i) claims for damages alleged on for bodily injury (including death) and damage to real property and tangible personal property for which a party is legally liable, (ii) breaches by either party of the basis confidentiality provisions of lost profits or lost assetsthis Agreement, including income-producing assets(iii) breach by Customer of the software licensing provisions of this Agreement, and (iv) payments as set forth in Section 12 Patents and Copyrights. IN NO EVENT SHALL NORTEL NETWORKS OR ITS AGENTS OR SUPPLIERS BE LIABLE FOR ANY OF THE FOLLOWING: a) DAMAGES BASED ON ANY THIRD PARTY CLAIM EXCEPT AS EXPRESSLY PROVIDED HEREIN AND IN SECTION 12; b) LOSS OF, OR DAMAGE TO, CUSTOMER'S RECORDS, FILES OR DATA; OR c) INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EXCEPT FOR A BREACH BY NORTEL NETWORKS OF THE CONFIDENTIALITY PROVISIONS OF THIS AGREEMENT, EVEN IF NORTEL NETWORKS IS INFORMED OF THEIR POSSIBILITY. EXCEPT FOR BREACHES OF THE CONFIDENTIALITY OR SOFTWARE LICENSING PROVISIONS OF THIS AGREEMENT, CUSTOMER SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF CUSTOMER IS INFORMED OF THEIR POSSIBILITY.
Limitation of Liability. Except as otherwise provided in this Section 5You acknowledge that due to the imperfect nature of verbal, written and electronic communications, neither Morgan Stanley the Center, the Building landlord nor its their respective officers, directors, employees, agents or affiliates shall have be responsible for damages, direct indirect or consequential, resulting in whole or in part from the failure to furnish any responsibility or liability service, including conveying telephone messages, faxes and other communications. Your sole remedy and our sole obligation for any failure to Customer hereunder forrender any service, any Losses however causederror or omission, incurred delay or suffered by Customer directly interruption of any service, is an adjustment to your account for the charges for such service for the period during which the failure, error, delay or indirectly (i) interruption continues. No adjustment will be made if the failure, error, delay or interruption of service occurs while you are in connection default under this Agreement. With the sole exception of the remedy set forth in the immediately preceding paragraph, Client expressly and specifically waives and agrees not to make any claim for damages, direct, indirect or consequential, including but not limited to damages for lost business or profits, arising out of any failure to furnish any service, any error or omission with the performance respect to any service, or non-performanceany delay, interruption or suspension of services for any reason. To the fullest extent permissible under applicable law, by Center disclaims any designated contract marketand all warranties with respect to the services provided or to be provided to Client, swaps execution facilitywith respect to the Facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by the Building and any electronic trading system, facility property or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanleyrelated thereto, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instructionspecifically mentioned herein, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties warranty of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetspurpose.
Limitation of Liability. Except as otherwise MDB shall employ due care and attention in preparing the Disclosure(s) hereunder. However, the Company acknowledges that MDB does not warrant or represent the accuracy or completeness of any public information or any information provided solely by the Company used in this Section 5any analysis and that inaccurate or incomplete data may affect the validity and reliability of the Disclosure(s). Similarly, neither Morgan Stanley nor its affiliates shall have any responsibility MDB makes no representation or liability warranty with respect to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service (any such system, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance infringement of any of Morgan Stanleys obligations hereunder directly the Assets or indirectly caused by Inventions described in the occurrence of any contingency beyond the control of Morgan Stanley includingDisclosure(s). MDB makes no warranty, but not limited torepresentation, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasterspromise, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, undertaking with respect to any Electronic Trading Services Morgan Stanley expressly disclaims legal or financial consequences of, or any other consequences or benefits obtained from, the use of any Disclosure(s), including any representation that any patent(s) will be granted. The Company assumes all risks related to documentation or warranty whatsoever technical information and data which may be subject to U.S. export controls or export or import restrictions in other countries. MDB SPECIFICALLY DISCLAIMS ANY OTHER WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. MDB SHALL NOT BE LIABLE ON ACCOUNT OF ANY ERRORS, OMISSIONS, DELAYS, OR LOSSES UNLESS CAUSED BY ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. TO THE FULLEST EXTENT PERMITTED BY LAW, MDB WILL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY (aINCLUDING WITHOUT LIMITATION LOST PROFITS, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES) with respect to accuracyALLEGED TO BE CAUSED BY USE OF THE DISCLOSURE(S). IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MDB FOR ANY CLAIMS, completeness or timeliness of such servicesLOSSES, (bOR DAMAGES ARISING UNDER THIS AGREEMENT AND SERVICES PERFORMED HEREUNDER, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE, EXCEED THE TOTAL AMOUNT PAID BY THE COMPANY TO MDB FOR THE DISCLOSURE(S) that such services shall be uninterrupted or error free; and (c) including any implied warranties of titlePROXIMATELY CAUSING SUCH CLAIM, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assetsLOSS OR DAMAGE.
Limitation of Liability. Except as otherwise provided in this Section 5TO THE MAXIMUM EXTENT PERMITTED BY LAW, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder forNEITHER NOA, any Losses however causedNINTENDO CO., incurred or suffered by Customer directly or indirectly LTD., [ * ] (iNOR ANY OF THEIR AFFILIATES, LICENSORS, SUPPLIERS OR SUBCONTRACTORS) in connection SHALL BE LIABLE FOR LOSS OF PROFITS, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES [ * ] ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH LOST PROFITS OR DAMAGES THAT RESULT FROM THE BREACH OF THIS AGREEMENT [ * ]. NOA AND NINTENDO CO. LTD. (OR THEIR RESPECTIVE AFFILIATES, LICENSORS OR SUPPLIERS) SHALL NOT BE LIABLE FOR LOSS OF PROFITS, OR FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF LICENSEE OR ITS CUSTOMERS INCLUDING, WITHOUT LIMITATION, ANY SUCH LOST PROFITS OR DAMAGES THAT RESULT FROM THE MANUFACTURE OF THE BULK GOODS OR THE USE OF * Information has been omitted and filed separately with the performance or non-performanceSecurities and Exchange Commission pursuant to a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934, for any reason, by any designated contract market, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian or by any electronic trading system, facility or service as amended. CONFIDENTIAL LICENSE AGREEMENT FOR THE Wii CONSOLE (any such system, facility or service, collectively, Electronic Trading ServicesWESTERN HEMISPHERE), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes to be that of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused by the occurrence of any contingency beyond the control of Morgan Stanley including, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets.
Limitation of Liability. Except as otherwise provided in In the event of any breach of this Section 5, neither Morgan Stanley nor its affiliates shall have any responsibility or liability to Customer hereunder for, any Losses however caused, incurred or suffered by Customer directly or indirectly (i) in connection with the performance or non-performance, for any reason, Agreement by any designated contract marketparty, swaps execution facility, trading facility, clearing house, derivatives clearing organization, executing broker, clearing firm or custodian the amount of any claim of loss by any other party or by any electronic trading systemof their Affiliates shall be limited to actual and direct damages, facility other than as set forth in the following sentence. EXCEPT FOR BREACHES ARISING FROM WILFULL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT SHALL ANY PARTY OR ANY OF THEIR AFFILIATES BE LIABLE FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF THIS AGREEMENT, INCLUDING LOST PROFITS. Neither occasional short-term interruptions of service which are not unreasonable under comparable industry standards nor interruptions of service resulting from events or service circumstances beyond Styleclick's or ECS's reasonable control (which, in any case, have caused comparable interruptions to Styleclick's other businesses or to ECS's other businesses (as the case may be)) shall be cause for any liability or claim hereunder, nor shall any such systemoccasion render Styleclick or ECS in default under this Agreement. IN WITNESS WHEREOF, facility or service, collectively, Electronic Trading Services), or by any other third party of its obligations to Morgan Stanley in respect of or in connection with any Contract provided, however, that Morgan Stanley ECS and Styleclick each has picked such party in a commercially reasonable manner; (ii) as a result of any prediction, recommendation or advice made or given by a representative of Morgan Stanley, whether or not made or given at the request of Customer; (iii) as a result of Morgan Stanleys commercially reasonable reliance on any instruction, notice or communication that it believes caused this Agreement to be that executed and delivered by its duly authorized officer as of an individual authorized to act on behalf of Customer; (iv) as a result of any delay in the performance or non-performance of any of Morgan Stanleys obligations hereunder directly or indirectly caused date first set forth above. ECS SPORTS FULFILLMENT, LLC by the occurrence of any contingency beyond the control of Morgan Stanley including/s/ ROBERT HALPER Name: Robert Halper Title: STYLECLICK, but not limited to, government or exchange suspensions or restrictions on trading or clearing, war, acts of terrorism or natural disasters, or the unscheduled closure of an exchange or contract market or delays in the transmission of orders due to breakdowns or failures of transmission or communication facilities, execution, and/or trading facilities or other systems (including, without limitation, any Electronic Trading Services), it being understood that Morgan Stanley shall be excused from performance of its obligations hereunder for such period of time as is reasonably necessary after such occurrence to remedy the effects therefrom; (v) as a result of any action reasonably taken INC. by or on behalf of Morgan Stanley or its floor brokers in compliance with Applicable Law; or (vi) in connection with or arising out of any agreements relating to Electronic Trading Services provided to Customer by Morgan Stanley (the terms and conditions of which in their entirety are incorporated herein by reference). Further, with respect to any Electronic Trading Services Morgan Stanley expressly disclaims any representation or warranty whatsoever (a) with respect to accuracy, completeness or timeliness of such services, (b) that such services shall be uninterrupted or error free; and (c) including any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose relating to such services; provided however, Morgan Stanley shall be liable to the extent such Loss is caused by the negligence, fraud or willful misconduct of Morgan Stanley. Neither party shall be liable to the other for consequential, incidental, punitive or special damages hereunder, including, without limitation, damages alleged on the basis of lost profits or lost assets, including income-producing assets./s/ BRENT HILL Name: Brent Hill Title: EVP