Incredimail 2013 Annual Report Download - page 193

EXECUTION VERSION
9. LIMITATION OF LIABILITY
9.1 NO CONSEQUENTIAL DAMAGES . SUBJECT TO SECTION 9.3 (EXCEPTIONS FROM EXCLUSIONS AND
LIMITATIONS), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE
OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING FOR
THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER
CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY
CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
9.2 LIABILITY CAP . SUBJECT TO SECTION 9.3 (EXCEPTIONS FROM EXCLUSIONS AND LIMITATIONS), IN NO
EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT
(WHEN AGGREGATED WITH SUCH PARTY’S LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION
WITH THIS AGREEMENT BUT EXCLUDING AMOUNTS PAID IN CONNECTION WITH ITEMS SPECIFIED IN SECTION 9.3
(EXCEPTIONS FROM EXCLUSIONS AND LIMITATIONS)) EXCEED THE GREATER OF (A) [***] MONTH
PERIOD IMMEDIATELY PRIOR TO THE INCIDENT FIRST GIVING RISE TO THE LIABILITY.
9.3 Exceptions from Exclusions and Limitations . Nothing in this Agreement shall exclude or limit either Party’s liability for: (a)
breaches of Section 6 (Confidentiality); (b) amounts owed under Section 4 (Compensation and Payment) ; [***] (e) breach of the
exclusivity provisions set forth in Section 3.1; or (f) gross negligence, intentional misconduct or abandonment of this Agreement.
9.4 Allocation of Risk . The Parties agree that (a) the mutual agreements made in this Section 9 (Limitation of Liability) reflect a
reasonable allocation of risk, and (b) that each Party would not enter into the Agreement without these exclusions and limitations on liability and
the exceptions set forth above.
10. INDEMNIFICATION
10.1 Microsoft Indemnity of Conduit . Microsoft will defend at Microsoft’s cost (with legal counsel selected by Microsoft and
approved by Conduit, which approval will not be unreasonably withheld) the Conduit Indemnified Parties from and against any Third Party
Claim and indemnify the Conduit Indemnified Parties from any Covered Amounts resulting from such Third Party Claim, to the extent that the
Third Party Claim is based upon:
10.1.1 an allegation that any Service, Other Platform Service or any portion or element of any of the foregoing or the
underlying technology or business methods used by Microsoft in providing any of the foregoing (a) infringes, misappropriates or otherwise
violates any third-party Intellectual Property Rights or violates any Law; (b) breaches any third-party rights of publicity or privacy, or (c) is
false, deceptive, misleading, defamatory or libelous;
10.1.2 an allegation that any Result provided by Microsoft in the performance of Services or Other Platform Services
under this Agreement (a) infringes, misappropriates or otherwise violates any third-party Intellectual Property Rights or violates any Law, (b)
breaches any third-party rights of publicity or privacy, or (c) is false, deceptive, misleading, defamatory or libelous;
CONFIDENTIAL
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