Liability cap clause samples

(c)Notwithstanding anything to the contrary herein contained, from and after the Closing Date, with respect to any asserted Breach of Rockpoint’s representations and warranties set forth herein and/or in any document required to be executed by Rockpoint in connection with the Closing and/or any asserted breach of any of Rockpoint’s Closing Surviving Rights/Obligations, (i) Rockpoint shall have no liability to Buyer if Buyer has not delivered a Claim Notice with respect thereto as required pursuant hereto, and in any event prior to the expiration of (A) the Survival Period (solely with respect to Breaches) and (B) the applicable survival period provided herein (with respect to breaches of Rockpoint’s Closing Surviving Rights/Obligations), (ii) Buyer shall in no event whatsoever be entitled to recover consequential or punitive damages against Rockpoint with respect thereto and (iii) the aggregate liability of Rockpoint arising by reason of or in connection therewith, including any liability under Section 6.3 or any other Section of this Agreement (excluding Rockpoint’s obligations under Section 9.6 or Section 9.8, which shall not be subject to any limitation) shall not in any event exceed the Post-Closing Breach Liability Cap. As used herein, the “Post-Closing Breach Liability Cap” shall mean: (x) with respect to Rockpoint’s Breaches of Fundamental Representations, the Buyer Purchase Price (the “Fundamental Representations Cap”); and (y) with respect to all other Breaches, $3,033,000. As used herein, a “Fundamental Representation” shall mean each of the representations in Section 6.1 hereof (excluding, the representation in Section 6.1(d)(ii)).

Notwithstanding anything to the contrary set forth in this Agreement (except as otherwise expressly set forth below in this paragraph) or in any other agreement or document delivered in connection herewith Seller shall have no liability whatsoever to Purchaser for a breach of any Representations unless the valid claims for all such breaches against Seller collectively aggregate more than the Liability Floor, in which event the full amount of such valid claims shall be actionable up to, but not in excess of, the Liability Cap in the aggregate for all liability. In no event shall Seller be liable for any incidental, consequential or punitive damages or for any damages in excess of the Liability Cap with respect to a breach of Seller’s representations and warranties set forth in this Agreement. For purposes of the foregoing: (A)“Liability Floor” shall mean $50,000 and (B)“Liability Cap” shall mean Two Percent (2%) of the Purchase Price. Seller represents and warrants that it has and, as of the Closing Date shall have, liquid assets in an amount not less than the Liability Cap. Seller covenants and agrees that it shall maintain liquid assets in an amount not less than the Liability Cap from the Closing Date through the end of the Limitation Period. Seller has made the foregoing representations and covenant to induce Purchaser to enter into this Agreement without requiring either a guaranty of Seller’s post-Closing obligations from an entity with sufficient net worth or an escrow sufficient in amount to cover such post-Closing obligations; it being the intention of the parties that Seller has and will maintain throughout the Limitation Period sufficient net worth in the form of liquid assets to satisfy Seller’s post-Closing obligations under this Agreement and cover the Liability Cap. As used herein, the term “liquid assets” shall mean immediately available funds. The provisions of this Sectionshall survive the Closing.

Section8.03Liability Cap. Notwithstanding anything contained herein or in the SDA, to the maximum extent permitted by applicable Law, except in the instance of willful misconduct or gross negligence of Service Provider (or any of its Related Parties), the maximum aggregate liability of each Party (including its Related Parties) arising out of or in connection with this Agreement shall not exceed the aggregate amount paid or payable by Service Recipient to Service Provider for Services contained within the same Service Schedule as the Service giving rise to such liability, as of the date of the events or circumstances giving rise to such liability.

15.8. The aggregate liability of Sellers for all claims of Purchaser pursuant to this Section15, other than for any Trade Tax Indemnification Claim, shall not exceed the Total W&I Liability Cap. If a Tax Indemnification Claim for which Sellers may be liable under Section15.1 above is covered by the W&I Insurance and is subject to the Total W&I Liability Cap, Purchaser is released from its obligations under Sections15.3 and 15.4 above, respectively, with respect to such Taxes and Sellers shall not be entitled to exercise their rights under Sections 15.3 or 15.4.

Section8.03 Liability Cap. Notwithstanding anything contained herein or in the SDA, to the maximum extent permitted by applicable Law, the maximum aggregate liability of each Party (including its Related Parties) arising out of or in connection with this Agreement shall not exceed the greater of (i)the aggregate amount paid or payable by Service Recipient to Service Provider for all Services contained within the same Service Schedule as the Service giving rise to such liability, as of the date of the events or circumstances giving rise to such liability, and (ii)one hundred thousand U.S. dollars (U.S. $100,000).

(c) Liability Cap. Subject to Section6.4(e), Purchaser agrees that the total amount of Damages for which the Purchaser Indemnitees are entitled to seek or obtain indemnification (and the maximum amount of payments required to be made by Seller Indemnitor) pursuant to Section6.2(a)for any inaccuracy in or breach of any Fundamental Representation shall be limited to the Transaction Value; provided, however, that the foregoing limitation shall not apply to any indemnification obligation of Seller Indemnitor resulting from any breach of, or inaccuracy in, the representations and warranties of Seller contained in Section3.9.

(a)To induce the Company Parties to enter into the Merger Agreement, each Guarantor hereby absolutely, unconditionally and irrevocably, severally but not jointly (in accordance with each such Guarantor’s percentage as set forth opposite its name on Schedule 1 attached hereto (for each such Guarantor, the “Guaranteed Percentage”)), guarantees to the Company Parties, as primary obligors and not merely as surety, the full and punctual payment, observance, performance, satisfaction and discharge of (a) the payment obligations of Parent to the Company Parties under Section 9.3(d) of the Merger Agreement (the “Parent Termination Fee”) and any related costs and expenses payable by Parent pursuant to Section 9.3(f) of the Merger Agreement (collectively, the “Termination Fee Obligations”), and (b) the payment, indemnification and reimbursement obligations of Parent under Sections 2.8 and 7.15(g) of the Merger Agreement (the “Reimbursement Obligations” and, collectively with the Termination Fee Obligations, the “Guaranteed Obligations”), in each case, as and when due thereunder and subject to the terms and conditions set forth herein; provided, however, that in no event shall the Guarantors’ collective aggregate liability for any amounts that become payable under this Guarantee exceed an amount equal to the Parent Liability Cap. For the avoidance of doubt, this Guarantee may be enforced only for the payment of money in satisfaction of the Guaranteed Obligations by the Guarantors up to the Parent Liability Cap and this Guarantee may not be enforced without giving full and absolute effect to the limitation that the aggregate amount payable under this Guarantee shall in no event exceed the Parent Liability Cap, and the aggregate amount payable by each Guarantor shall in no event exceed such Guarantor’s Guaranteed Percentage of the Parent Liability Cap.

8.1Liability cap.Unless otherwise agreed by the Parties in writing, a Party’s maximum liability in aggregate to the other Party arising out of this Agreement shall not exceed [***] in respect of breaches other than non-payment of sums owed.

(c) As security for Seller’s post-Closing payment obligations under this Agreement and under the Closing Documents, Guarantor hereby guaranties the payment by Seller of all obligations of Seller pursuant to this Agreement which expressly survive Closing and/or under the Closing Documents up to the maximum aggregate amount of the Seller Liability Cap. In the event that Buyer incurs any Losses in connection with a breach by Seller of this Agreement and/or the Closing Documents, Buyer shall be entitled to recover such Losses from Seller and Guarantor, jointly and severally, and may proceed against either party or both, in Buyer’s sole and absolute discretion; it being agreed to by the parties that the obligations of Guarantor are independent of the obligations of Seller, and a separate action or actions may be brought and prosecuted against Guarantor, whether or not action is brought against Seller. The foregoing guaranty shall be coterminous with Seller’s liability for post-Closing obligations under this Agreement and shall expire at the end of the Survival Period only. The provisions of this Section15.4 shall survive the Closing.