Common use of Limitation on Claims Clause in Contracts

Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closing.

Limitation on Claims. Notwithstanding any provision None of this Agreement the Buyer Indemnified Parties shall be entitled to the contrary, no Seller shall have any liability to Buyer seek recovery of Losses under clause (i) or any clause (iv) of its affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, Section 8.2(a) unless and until (Buyer has paid or incurred Losses in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total excess of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) 500,000 in the aggregate (the “DeductibleBasket Amount”), in which case Buyer shall be entitled to recover all Losses so identified including the Basket Amount up to a maximum of Six Million Two Hundred Thousand Dollars ($6,200,000) (the “Rep Indemnity Cap”); provided, however, if such Claims that neither the Basket Amount nor the Rep Indemnity Cap shall apply to any claims for Losses made by Buyer under clause (i) of Section 8.2(a) with respect to any breaches or inaccuracies of an Unlimited Representation and liabilities exceed the Deductible, then Sellers Buyer shall be liable entitled to indemnity for all such Claims and liabilities, including the amount of the Deductible, but subject its Losses resulting from any breach or inaccuracy of an Unlimited Representation without regard to the Seller Liability Cap (defined below)Basket Amount or the Rep Indemnity Cap. Known Matters For purposes of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoingclarity, in no event shall the Basket Amount or Rep Indemnity Cap limit any party’s rights or obligations under any of the Collateral Agreements. All Losses shall be determined net of any insurance proceeds actually recovered (aso long as recovered within three years after the applicable Losses are incurred) by the Deductible Indemnified Party with respect to the matter for which the Losses relate, and each Indemnified Party shall be obligated to use its commercially reasonable efforts to collect the maximum amount of any such available insurance proceeds. If any insurance recoveries are received by the Indemnified Party that are related to a matter for which Losses have been paid to the Indemnified Party by the Indemnifying Party (or from the Seller Liability Cap apply escrow account referred to any post-Closing adjustments pursuant to Section 5.5(k); and (bArticle VII) the Deductibleunder this Agreement, the Seller Liability Cap Indemnified Party will pay such proceeds to the Indemnifying Party (or back into the Survival Period limit escrow account) to the extent such proceeds reduce the amount of Losses sustained by the Indemnified Party with respect to such matter and for which the Indemnified Party has been indemnified by the Indemnifying Party together with all remaining aggregate Losses of the Indemnified Party if, after taking into consideration of the insurance recovery, the Indemnified Party’s aggregate Losses for which it has been indemnified hereunder plus any Losses for which it has asserted a claim for indemnity hereunder but which have not been paid because such claim is in dispute (a “Disputed Indemnity Claims”) are less than the Basket Amount; provided, however, if such aggregate amount is above the Basket Amount but if the amount of the Disputed Indemnity Claims or liabilities arising out were disregarded then the aggregate amount would be below the Basket Amount, the amount of any fraud the aggregate Losses without the Disputed Indemnity Claims shall be paid by any Seller. The provisions Buyer into the escrow account established under the Escrow Agreement and such funds shall be considered part of this Section 9.4 shall survive Closingthe escrowed funds thereunder.

Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no neither the Operator nor any Seller shall have any liability to Buyer or EAGL, as applicable, or any of its affiliatestheir Affiliates, with respect to any Claims based on Known Matters of which Buyer has actual or EAGL, as applicable, have knowledge or written notice prior to the Effective Date. If Buyer and/or EAGL, as applicable, first obtains actual information providing notice or knowledge or written notice of Known Matters after the Effective Date but prior to the Closing, and with knowledge or notice of same, nevertheless proceeds to Closing despite consummates the ability to terminate this Agreement pursuant to the terms of transaction contemplated by this Agreement, Buyer agrees and EAGL agree that Sellers (or Operator, as applicable) shall have no liability to Buyer or EAGL or any of its affiliates their Affiliates with respect to any Claims relating to such Known MattersMatters unless, prior to consummation of the Closing, such party delivers written notice to Sellers (i) setting forth in reasonable detail the Known Matters upon which the Claim is based, (ii) containing a statement of the representations or warranties which Buyer or EAGL, as applicable, claims to have been inaccurate, and (iii) containing a statement of the amount of damages for which Buyer or EAGL, as applicable, believes Sellers are liable because of such Known Matters (which estimate shall not be binding on Sellers or the Operator). If In any event, if, Buyer or EAGL discovers a breach of any representationssuch representations or warranties of the Operator or Sellers, warranties whether prior to or covenants of Sellersfollowing the Closing, the Sellers and the Operator shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 10.3 or in the foregoing provisions of this Section 9.410.4) the total of all Claims for indemnity or damages with respect to any such breach breach, combined with any liability under Section 13.18, is reasonably estimated to exceed Two Six Hundred Thousand and NO/100 Dollars ($200,000.00600,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually or EAGL are aware or of which it has received written notice prior to the Effective Date, and Known Matters of which Buyer or EAGL first become aware after the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) but on or prior to or as of before the Closing Date (and that are not identified in writing by Buyer or EAGL to Sellers prior to consummation of the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) Closing, shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. If the Deductible is reached, and except to the extent that Operator or Sellers have cured any matter that might otherwise form the basis of a Claim, then Operator and the applicable Sellers shall be liable for all Claims that are otherwise permitted by this Section 10.4 and properly asserted under Section 10.3 and that are based on actual uncured breaches of representations and warranties by Sellers or Operator, and not just all Claims in excess of the Deductible. In no event shall Operator or any party Seller be liable to any other party Buyer, EAGL or any of its their affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closing.

Limitation on Claims. Notwithstanding any provision of No claims shall be payable under this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, SECTION 9 with respect to any Claims based on Known Matters Damages unless and until the aggregate Damages owing under this SECTION 9 in respect of any Indemnitee (as defined below) exceed $100,000, in which Buyer has actual knowledge case the Indemnitee shall be entitled to indemnification from the indemnifying party for all Damages without regard to such threshold. As used herein, an "INDEMNITEE" means one or written notice prior more of the AIC Indemnified Parties or the Xtrana Indemnified Parties to the Effective Dateextent that such parties seek indemnification from the other pursuant to this SECTION 9. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, The Xtrana Indemnified Parties' sole and nevertheless proceeds to Closing despite the ability to terminate exclusive remedy for indemnification claims against AIC under this Agreement shall consist of its right to set off any Damages against the Holdback Shares and the AIC Indemnified Parties' sole and exclusive remedy for indemnification claims against Xtrana under this Agreement shall consist of their right to receive additional shares of Xtrana Common Stock out of the AIC Indemnification Shares, in either case pursuant to the procedure described in SECTION 9.5 hereof. No claims shall be payable with respect to any representation or warranty unless such claim is asserted in writing on or before 5:00 p.m. Pacific Standard Time on March 31, 2006 (the "INDEMNIFICATION TERMINATION PERIOD"). All Holdback Shares not then subject to indemnification claims under SECTION 9.3.2 hereof shall be released to the AIC's pre-Merger shareholders pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability the Escrow Agreement upon the expiration of the Indemnification Termination Period. All AIC Indemnification Shares not then subject to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers indemnification claims under SECTION 9.3.1 hereof shall be liable for all such Claims released from escrow and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement permanently cancelled pursuant to the terms Escrow Agreement upon the expiration of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive ClosingIndemnification Termination Period."

Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no Seller (a) Purchaser shall have any liability no right to Buyer or any of its affiliates, recover with respect to any Claims based on Known Matters Losses until the amount of which Buyer has actual knowledge all such Losses is equal to or written notice prior to the Effective Date. If Buyer first obtains actual knowledge or written notice of Known Matters after the Effective Date but prior to Closing, and nevertheless proceeds to Closing despite the ability to terminate this Agreement pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, greater than $150,000 individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”"Loss Threshold"), except in the case of a breach of the representation or warranty set forth in Section 4.05(b), as to which the Purchaser shall be required to suffer or incur a loss in the amount of $150,000 before any such claim can be made (the "Financial Statement Loss Threshold"); provided, however, if such Claims and liabilities exceed that to the Deductible, then Sellers shall be liable for all such Claims and liabilities, including the amount of the Deductible, but extent that any Loss subject to the Seller Liability Cap (defined belowFinancial Statement Loss Threshold involves a breach of a representation or warranty contained herein, other than in Section 4.05(b) hereof, such Loss shall be applied in reduction of the Loss Threshold. The Purchaser shall only be entitled to recover Losses suffered or incurred by it in excess of the Loss Threshold or the Financial Statement Loss Threshold, as applicable, and in addition the Purchaser shall not be entitled to be indemnified against any Loss item under Section 11(a)(ii) hereof to the extent that it has previously received payments on account of the identical loss item in respect of any breach of the representation or warranty set forth in Section 4.05(b). Known Matters Any and all claims for the recovery of which Buyer is actually aware or of which it has received written notice prior losses (other than claims against the Company under Sections 11.02(a)(i), (b)(except as relates to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by SellerSection 6.01(k) hereof) or prior (c) hereof) must be brought by Purchaser within one year after the Closing Date, and any claim for recovery of any Loss under Section 11.02(b)(iii) as relates to or as of Section 6.01(k) must be brought by Purchaser within eighteen months after the Closing Date (in each case, the event Buyer elects "Limitation Period"), except in the case of a breach of the representation and warranty set forth in Section 4.05(b), as to close notwithstanding such Seller breach despite which any claims must be brought within sixty (60) days after the ability to terminate this Agreement pursuant Closing Date and shall be based solely upon an unaudited combined balance sheet of BSL and CMC (giving effect to the terms transfers contemplated in the Related Assets and Liabilities Transaction and the Excluded Assets Transaction but not taking into account the effect of this Agreement the Merger of BSL into the Purchaser), dated as of the Closing on the Closing Date, prepared by or at the direction of Purchaser in accordance with GAAP and otherwise on a result of such Seller breachbasis consistent with the Pro Forma Balance Sheet. Any claim against the Company under Section 11.02(a)(i), (b)(except as relates to Section 6.01(k) shall not form the basis of a Claim and hereof) or (c) hereof shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable subject to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or limitation set forth in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million 11.05 and NO/100 Dollars may be brought ($10,000,000.00except as provided in Section 11.02(c) (hereof) at any time prior to the “Seller Liability Cap”). Notwithstanding expiration of the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply statute of limitations applicable with respect to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closingsuch claim.

Limitation on Claims. Notwithstanding any provision of this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliatestheir Affiliates, with respect to any Claims based on Known Matters of which Buyer has actual knowledge or written notice prior to the Effective Date. If Buyer first obtains information providing notice or actual knowledge or written notice of Known Matters after the Effective Date but prior to the Closing, and with knowledge or notice of same, nevertheless proceeds to Closing despite consummates the ability to terminate this Agreement pursuant to the terms of transaction contemplated by this Agreement, Buyer agrees that Sellers shall have no liability to Buyer or any of its affiliates Affiliates with respect to any Claims relating to such Known MattersMatters unless, prior to consummation of the Closing, such party delivers written notice to Sellers (i) setting forth in reasonable detail the Known Matters upon which the Claim is based, (ii) containing a statement of the representations or warranties which Buyer claims to have been inaccurate, and (iii) containing a statement of the amount of damages for which Buyer believes Sellers are liable because of such Known Matters (which estimate shall not be binding on Sellers). If In any event, if Buyer discovers a breach of any representations, such representations or warranties or covenants of Sellers, whether prior to or following the Closing, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 10.3 or in the foregoing provisions of this Section 9.410.4) the total of all Claims for indemnity or damages with respect to any such breach breach, combined with any liability under Section 13.12, is reasonably estimated to exceed Two Hundred Fifty Thousand and NO/100 Dollars ($200,000.00250,000.00) in the aggregate (the “DeductibleFloor”); provided, howeverin which event and once the Floor is reached, if such Claims and liabilities exceed the Deductible, then Sellers shall be liable for the full amount of all such Claims and liabilitieslosses, including the amount of the Deductible, but subject to the Seller Liability Cap (as defined below). Known Matters of which Buyer is actually aware or has actual knowledge of which it has received written notice prior to the Effective Date, and Known Matters of which Buyer first has actual knowledge of after the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) but on or prior to or as of before the Closing Date (and that are not identified in writing by Buyer to Sellers prior to consummation of the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement pursuant to the terms of this Agreement as a result of such Seller breach) Closing, shall not form the basis of a Claim and shall not be counted in determining whether the Deductible Floor has been reached. In no event shall any party Seller be liable to any other party Buyer, or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ Sellers total liability, in the aggregate, under this Section 9.4 10.4 and under Section 13.12 shall not exceed Ten Six Million and NO/100 Four Hundred Thousand Dollars ($10,000,000.006,400,000) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive Closing.

Limitation on Claims. Notwithstanding any provision of No claims shall be payable under this Agreement to the contrary, no Seller shall have any liability to Buyer or any of its affiliates, SECTION 9 with respect to any Claims based on Known Matters Damages unless and until the aggregate Damages owing under this SECTION 9 in respect of any Indemnitee (as defined below) exceed $100,000, in which Buyer has actual knowledge case the Indemnitee shall be entitled to indemnification from the indemnifying party for all Damages without regard to such threshold. As used herein, an "INDEMNITEE" means one or written notice prior more of the AIC Indemnified Parties or the Xtrana Indemnified Parties to the Effective Dateextent that such parties seek indemnification from the other pursuant to this SECTION 9. If Buyer first obtains actual knowledge The Xtrana Indemnified Parties' sole and exclusive remedy for indemnification claims against AIC under this Agreement shall consist of its right to set off any Damages against the Holdback Shares and the AIC Indemnified Parties' sole and exclusive remedy for indemnification claims against Xtrana under this Agreement shall consist of their right to receive additional shares of Xtrana Common Stock out of the AIC Indemnification Shares, in either case pursuant to the procedure described in SECTION 9.5 hereof. No claims shall be payable with respect to any representation or written notice of Known Matters warranty unless such claim is asserted in writing within twelve (12) months after the Closing Date (the "INDEMNIFICATION TERMINATION PERIOD"). For the purposes of this SECTION 9.4 a month shall be deemed to elapse at 5:00 p.m. California time on the day of the month on which the Closing Date occurred. (For example, if the Effective Date but prior Time occurs on March 15, 2005, the sixth month would be deemed to Closingelapse at 5:00 p.m. California time on September 15, and nevertheless proceeds 2005.) All Holdback Shares not then subject to Closing despite indemnification claims under SECTION 9.3.2 hereof shall be released to the ability to terminate this Agreement AIC's pre-Merger shareholders pursuant to the terms of this Agreement, Buyer agrees that Sellers shall have no liability the Escrow Agreement upon the expiration of the Indemnification Termination Period. All AIC Indemnification Shares not then subject to Buyer or any of its affiliates with respect to any Claims relating to such Known Matters. If Buyer discovers a breach of any representations, warranties or covenants of Sellers, the Sellers shall not be liable, individually or collectively, in connection therewith, unless and until (in addition to the other limitations set forth in Section 9.3 or in this Section 9.4) the total of all Claims for indemnity or damages with respect to any such breach is reasonably estimated to exceed Two Hundred Thousand and NO/100 Dollars ($200,000.00) in the aggregate (the “Deductible”); provided, however, if such Claims and liabilities exceed the Deductible, then Sellers indemnification claims under SECTION 9.3.1 hereof shall be liable for all such Claims released from escrow and liabilities, including the amount of the Deductible, but subject to the Seller Liability Cap (defined below). Known Matters of which Buyer is actually aware or of which it has received written notice prior to the Effective Date (in the event Buyer elects to not proceed to Closing due to a breach by Seller) or prior to or as of the Closing Date (in the event Buyer elects to close notwithstanding such Seller breach despite the ability to terminate this Agreement permanently cancelled pursuant to the terms Escrow Agreement upon the expiration of this Agreement as a result of such Seller breach) shall not form the basis of a Claim and shall not be counted in determining whether the Deductible has been reached. In no event shall any party be liable to any other party or any of its affiliates, designees, successors or assigns for indirect, special, speculative or punitive damages arising out of or in connection with this Agreement. Further, Buyer acknowledges and agrees that Sellers’ total liability, in the aggregate, under this Section 9.4 shall not exceed Ten Million and NO/100 Dollars ($10,000,000.00) (the “Seller Liability Cap”). Notwithstanding the foregoing, in no event shall (a) the Deductible or the Seller Liability Cap apply to any post-Closing adjustments pursuant to Section 5.5(k); and (b) the Deductible, the Seller Liability Cap or the Survival Period limit any Claims or liabilities arising out of any fraud by any Seller. The provisions of this Section 9.4 shall survive ClosingIndemnification Termination Period.