Common use of Consequential Damages Waiver Clause in Contracts

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR SUPPLIER’S OBLIGATIONS IN SECTION 17.3 (OPEN SOURCE WARRANTY), 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2), FOR BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 20, AND FOR VIOLATION OR INFRINGEMENT BY ONE PARTY OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY OR A THIRD PARTY, UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS SECTION DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) OR PHYSICAL DAMAGE TO TANGIBLE PROPERTY.

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING EXCEPT FOR EACH PARTY’S OBLIGATION TO THE CONTRARY INDEMNIFY FOR CERTAIN DAMAGES AWARDED TO THIRD PARTIES UNDER SECTIONS 10.10 AND 12 (INDEMNIFICATION) AND ANY BREACH OF SECTION 2.9(e) OR 13 (CONFIDENTIALITY), NEITHER PARTY NOR ITS SUPPLIERS SHALL HAVE ANY LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OR LIABILITIES OF ANY KIND OR FOR LOSS OF PALMSOURCE AND PALMONE CONFIDENTIAL REVENUE, LOSS OF BUSINESS, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EXCEPT FOR SUPPLIER’S OBLIGATIONS IN SECTION 17.3 (OPEN SOURCE WARRANTY), 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2), FOR BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 20, AND FOR VIOLATION OR INFRINGEMENT BY ONE PARTY REGARDLESS OF THE INTELLECTUAL PROPERTY FORM OF THE OTHER PARTY OR A THIRD PARTYACTION, UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY WHETHER IN CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), ARISING OUT STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER OR NOT THAT A PARTY HERETO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. DAMAGES AND EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE; PROVIDED, HOWEVER, THAT THE PARTIES AGREE THAT ANY EXPRESS PAYMENT OBLIGATION OF LICENSEE UNDER THIS AGREEMENT SHALL BE DEEMED DIRECT DAMAGES, AND NO PORTION OF ANY SUCH EXPRESS PAYMENT OBLIGATION SHALL BE DEEMED CONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION DOES 14.1; AND PROVIDED FURTHER, HOWEVER, THAT TO THE EXTENT LICENSEE IS HELD LIABLE FOR ITS CUSTOMERS’ OR APPROVED THIRD PARTY CONTRACTORS’ MAKING OF UNAUTHORIZED COPIES OF THE PS LICENSED PRODUCTS, ANY LICENSE FEES, ROYALTIES OR MAINTENANCE FEES RELATED TO SUCH COPIES ASSESSED AGAINST LICENSEE SHALL BE DEEMED DIRECT DAMAGES, AND NOT LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) OR PHYSICAL DAMAGE TO TANGIBLE PROPERTYCONSEQUENTIAL DAMAGES WITHIN THE MEANING OF THIS SECTION 14.1.

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING NEITHER PARTY SHALL BE LIABLE TO THE CONTRARY IN OTHER PARTY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, EXCEPT FOR SUPPLIER’S OBLIGATIONS IN SECTION 17.3 (OPEN SOURCE WARRANTY), 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2), FOR BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 20, AND FOR VIOLATION OR INFRINGEMENT BY ONE PARTY OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY OR A THIRD PARTY, UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE WHETHER UNDER ANY CONTRACT, PRODUCT LIABILITYNEGLIGENCE, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, MULTIPLE OR INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION, LOSS OF DAMAGES (INCLUDING LOST PROFITS, LOSS OF REVENUEUSE, DAMAGE TO GOODWILL, OR LOSS OF DATA, LOSS OF GOODWILL OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), BUSINESS) ARISING OUT OF FROM OR RELATING IN TO ANY WAY TO THE SUBJECT MATTER BREACH OF THIS AGREEMENT, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED REGARDLESS OF ANY NOTICE OF THE POSSIBILITY OF SUCH DAMAGEDAMAGES. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION DOES NOT IS INTENDED TO OR SHALL LIMIT EITHER OR RESTRICT (A) THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF A PARTY UNDER SECTION 11.1 (INDEMNIFICATION BY SELECTA) AND SECTION 11.2 (INDEMNIFICATION BY ASTELLAS), (B) ANY DAMAGES AVAILABLE FOR A PARTY’S LIABILITY BREACH OF ITS CONFIDENTIALITY OBLIGATIONS IN ARTICLE 9 (CONFIDENTIALITY), (C) ANY DAMAGES AVAILABLE FOR BODILY INJURY ASTELLAS’ BREACH OF THE SCOPE OF THE LICENSE GRANT IN SECTION 3.1 (INCLUDING DEATHGRANT OF LICENSE) OR PHYSICAL DAMAGE TO TANGIBLE PROPERTYSELECTA’S BREACH OF ITS OBLIGATIONS IN SECTION 3.3 (EXCLUSIVITY), OR (D) ANY DAMAGES AVAILABLE FOR A PARTY’S GROSS NEGLIGENCE, INTENTIONAL MISCONDUCT OR FRAUD.

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENTMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR SUPPLIER’S OBLIGATIONS IN SECTION 17.3 (OPEN SOURCE WARRANTY)AMOUNTS PAYABLE BY CUSTOMER TO RAPTA, 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2), FOR BREACH OF A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 10, ANY BREACH BY CUSTOMER OF CONFIDENTIALITY UNDER SECTION 20ANY LICENSES GRANTED HEREUNDER OR BREACH OF SECTIONS 1, AND FOR 4, 6.2 OR 15.10, OR VIOLATION OR INFRINGEMENT MISAPPROPRIATION BY ONE A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY OF THE OTHER RIGHTS, IN NO EVENT SHALL EITHER PARTY OR A THIRD PARTY, UNDER NO CIRCUMSTANCES WILL HAVE ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, LIABILITY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION, INCLUDING WITHOUT LIMITATION LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF REVENUEBUSINESS, LOSS OF DATAGOODWILL, LOSS OF GOODWILL DAMAGE TO, OR CORRUPTION OF, DATA, FAILURE OF SECURITY MECHANISMS, LOSS OF USE, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES SERVICES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), ARISING OUT INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENTLIABILITY, WHETHER OR NOT THAT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS SECTION DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) DAMAGE OR PHYSICAL WHETHER SUCH DAMAGE TO TANGIBLE PROPERTYWAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENTMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT FOR SUPPLIER’S AMOUNTS PAYABLE BY CUSTOMER TO POSIT, THE INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 17.3 (OPEN SOURCE WARRANTY)8, 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2)ANY BREACH BY CUSTOMER OF ITS OBLIGATIONS UNDER SECTIONS 2.1, FOR BREACH OF A 2.2, 3, 5.2 OR 13.10, EITHER PARTY’S OBLIGATIONS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR BREACH OF CONFIDENTIALITY UNDER SECTION 2010, AND FOR VIOLATION OR INFRINGEMENT BY ONE IN NO EVENT SHALL EITHER PARTY OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY OR A THIRD PARTY, UNDER NO CIRCUMSTANCES WILL HAVE ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, LIABILITY FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION, INCLUDING WITHOUT LIMITATION LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF REVENUEBUSINESS, LOSS OF DATAGOODWILL, LOSS OF GOODWILL DAMAGE TO, OR CORRUPTION OF, DATA, FAILURE OF SECURITY MECHANISMS, LOSS OF USE, OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES SERVICES, HOWEVER CAUSED, WHETHER ARISING UNDER STATUTE, CONTRACT, TORT (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), ARISING OUT INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENTLIABILITY, WHETHER OR NOT THAT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THIS SECTION DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) DAMAGE OR PHYSICAL WHETHER SUCH DAMAGE TO TANGIBLE PROPERTYWAS FORESEEABLE OR IN THE CONTEMPLATION OF THE PARTIES.

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR SUPPLIER’S OBLIGATIONS IN A BREACH OF SECTION 17.3 (OPEN SOURCE WARRANTY)11, 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH NEITHER PARTY SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2)LIABLE FOR ANY LOSS OF GOODWILL, FOR BREACH REPUTATION, BUSINESS, REVENUES, INDIRECT PROFITS, ANTICIPATED PROFITS, CONTRACTS, OR OPPORTUNITIES (REGARDLESS OF A PARTY’S OBLIGATIONS HOW THESE ARE CLASSIFIED AS DAMAGES) OR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, REGARDLESS OF CONFIDENTIALITY UNDER SECTION 20, AND FOR VIOLATION OR INFRINGEMENT BY ONE PARTY WHETHER IT HAS BEEN INFORMED OF THE INTELLECTUAL PROPERTY POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OR THE OTHER PARTY TYPE OF CLAIM, CONTRACT OR A THIRD PARTY, UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) ). NOTHING IN THIS AGREEMENT EXCLUDES OR OTHER LEGAL LIMITS ANY LIABILITY FOR DEATH OR EQUITABLE THEORYPERSONAL INJURY CAUSED BY NEGLIGENCE, FOR FRAUD OR FOR ANY SPECIALOTHER LIABILITY WHICH CANNOT LEGALLY BE EXCLUDED OR LIMITED. NOTWITHSTANDING THE FOREGOING, INCIDENTALTHE LIMITATIONS SET FORTH IN THIS SECTION 14.1 SHALL NOT LIMIT AN INDEMNITOR’ S LIABILITY FOR DAMAGES AWARDED TO ANY THIRD PARTY IN CONNECTION WITH ANY CLAIM FOR WHICH A PARTY IS ENTITLED TO INDEMNIFICATION UNDER SECTION 13. NOTWITHSTANDING ANY OTHER PROVISION IN THIS SECTION 14.1, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS BUT THE LICENSOR SHALL NOT LIMITED TO THOSE BE LIABLE FOR BUSINESS INTERRUPTION, ANY LOSS OF PROFITS, PROFIT CLAIMED BY IMMEDICA TO THE EXTENT SUCH LOSS OF REVENUE, PROFIT ARISES FROM AN ACT OR OMISSION OF A THIRD PARTY SUPPLIER TO LICENSOR AND THE TERMS OF THE CONTRACT BETWEEN LICENSOR AND SUCH THIRD PARTY SUPPLIER EXCLUDES OR LIMITS THE RECOVERY OF SUCH LOSS OF DATA, PROFIT. A PARTY’S AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS BY THE OTHER PARTY FOR ANY DIRECT LOSS OF GOODWILL OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), PROFIT ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF CONNECTION WITH THIS AGREEMENT, WHETHER OR AGREEMENT SHALL NOT THAT PARTY HAS BEEN ADVISED EXCEED [*] OF THE POSSIBILITY TOTAL OF SUCH DAMAGE. ANY SUMS WHICH HAVE BEEN PAID BY IMMEDICA TO LICENSOR UNDER THIS AGREEMENT EXCLUDING, EXCEPT IN THE CASE OF AN INTENTIONAL BREACH BY LICENSOR WITHIN [*] OF THE EFFECTIVE DATE, THE UPFRONT PAYMENT REFERRED TO IN SECTION DOES NOT LIMIT EITHER PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) OR PHYSICAL DAMAGE TO TANGIBLE PROPERTY.6.1.1, TOGETHER WTTH

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN EXCEPT FOR A BREACH OF SECTION 4.1 (“CONFIDENTIAL INFORMATION”) OF THIS AGREEMENT, EXCEPT FOR SUPPLIER’S OBLIGATIONS IN SECTION 17.3 (OPEN SOURCE WARRANTY), 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH SHALL NO EVENT WILL EITHER PARTY BE SUBJECT LIABLE OR RESPONSIBLE TO THE LIMITS CONTAINED IN SECTION 22.2), FOR BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 20, AND FOR VIOLATION OR INFRINGEMENT BY ONE PARTY OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY OR A THIRD PARTY, UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANY TYPE OF INCIDENTAL, EXEMPLARY, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES, SUCH AS INCLUDING, BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTIONTO, LOSS OF LOST REVENUE, LOST PROFITS, LOSS OF REVENUEOR REPLACEMENT GOODS, LOSS OF DATA, LOSS OF GOODWILL OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2), ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER OR NOT THAT PARTY HAS BEEN EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGEDAMAGES, WHETHER ARISING UNDER THEORY OF CONTRACT, TORT STRICT LIABILITY OR OTHERWISE. THIS SECTION DOES NOT LIMIT FURTHER, NO CAUSE OF ACTION WHICH ACCRUED MORE THAN TWO (2) YEARS PRIOR TO THE FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST EITHER PARTY. THE MAXIMUM TOTAL LIABILITY OF HIGHPOINT TECHNOLOGY GROUP TO CUSTOMER FOR ANY CLAIMS ARISING OUT OF OR RELATING TO ANY NEGLIGENT, INTENTIONAL OR FRAUDULENT ACTS OF A PARTY SHALL BE LIMITED TO THE TOTAL FEES PAID TO HIGHPOINT TECHNOLOGY GROUP FOR SERVICE IN THE ONE-YEAR PERIOD PRECEDING THE DATE UPON WHICH ANY SUCH CLAIM IS MADE. HIGHPOINT TECHNOLOGY GROUP SHALL NOT BE RESPONSIBLE FOR FAILURES, MALFUNCTIONS, OR INADEQUACIES OF CUSTOMER AND/OR ANY THIRD PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) TERMINALS OR PHYSICAL DAMAGE TO TANGIBLE PROPERTYCOMMUNICATIONS SYSTEMS, INCLUDING, BUT NOT LIMITED TO, MALFUNCTIONS OR INADEQUACIES OF TELECOMMUNICATIONS CARRIERS, OR SIMILAR SYSTEMS.

Consequential Damages Waiver. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, EXCEPT FOR SUPPLIER’S OBLIGATIONS IN SECTION 17.3 (OPEN SOURCE WARRANTY), 18 (EPIDEMIC FAILURE) AND SECTION 19 (INDEMNIFICATION) OTHER THAN FOR REPLACEMENT PRODUCT COSTS (WHICH NO PARTY SHALL BE SUBJECT TO THE LIMITS CONTAINED IN SECTION 22.2), FOR BREACH OF A PARTY’S OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 20, AND FOR VIOLATION OR INFRINGEMENT BY ONE PARTY OF THE INTELLECTUAL PROPERTY OF THE OTHER PARTY OR A THIRD PARTY, UNDER NO CIRCUMSTANCES WILL ANY PARTY, ITS EMPLOYEES, OFFICERS OR DIRECTORS, AGENTS, SUCCESSORS OR ASSIGNS BE LIABLE UNDER ANY CONTRACT, PRODUCT LIABILITY, STRICT LIABILITY, TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, CIRCUMSTANCES BE RESPONSIBLE FOR ANY INDIRECT, SPECIAL, INCIDENTALEXEMPLARY, PUNITIVE, EXEMPLARYTREBLE, INDIRECT STATUTORY OR CONSEQUENTIAL COSTS DAMAGES OR DAMAGES, SUCH AS BUT NOT LIMITED TO THOSE FOR BUSINESS INTERRUPTION, LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF DATA, LOSS OF GOODWILL OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES (EXCEPT AS PROVIDED IN SECTION 18.2 AND SECTION 19.2)LOSSES, ARISING OUT OF OR RELATING RELATED IN ANY WAY TO THIS AGREEMENT, THE SUBJECT MATTER TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT OR ACTIONS OR INACTIONS OF THE PARTIES TO THIS AGREEMENT THAT ARISE OR RELATE TO THAT PARTY’S PERFORMANCE UNDER THIS AGREEMENT, WHETHER OR NOT THAT PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGEDAMAGES HAS BEEN DISCLOSED TO THE OTHER PARTY IN ADVANCE OR COULD HAVE BEEN REASONABLY FORESEEN BY SUCH OTHER PARTY EXCEPT TO THE EXTENT THAT SUCH DAMAGES HAVE BEEN PAID OR ARE PAYABLE BY AN INDEMNIFIED PARTY HEREUNDER TO A PERSON WHO IS AN UNAFFILIATED THIRD PARTY PURSUANT TO A THIRD PARTY CLAIM. SUBJECT TO THE PRECEDING SENTENCE, BUYER, ON BEHALF OF EACH OF THE BUYER INDEMNITIES AND THE SELLER, ON BEHALF OF EACH OF SELLER INDEMNITIES, WAIVE ANY RIGHT TO RECOVER ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, TREBLE, STATUTORY OR CONSEQUENTIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED IN ANY WAY TO THIS SECTION DOES NOT LIMIT EITHER AGREEMENT, THE TRANSACTIONS CONTEMPLATED IN THIS AGREEMENT OR ACTIONS OR INACTIONS OF THE PARTIES TO THIS AGREEMENT THAT ARISE OR RELATE TO THAT PARTY’S LIABILITY FOR BODILY INJURY (INCLUDING DEATH) OR PHYSICAL DAMAGE TO TANGIBLE PROPERTYPERFORMANCE UNDER THIS AGREEMENT.