eTrade 2007 Annual Report Download - page 177
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Section 5.2 Limitation on Liability. In no event shall any Party be liable to any other Party for, and each Party shall procure
that none of its Affiliates shall make any claim against any other Party (or any of its Affiliates) for, any lost profits, diminution in
value, loss of business, loss of contracts, diminished goodwill, diminished reputation, or consequential, indirect, incidental, special or
punitive damages arising under or in connection with this Agreement. This Section 5.2 shall not be construed to limit a Party’s right to
indemnification for payments required to be made by it to third parties in respect of damages (of any kind or type, including, but not
limited to, direct or consequential) for third party claims which are subject to indemnification under Article VI. This Section 5.2 shall
not be construed to limit the Company’s right to receive the Liquidated Damages Amount from Parent in accordance with the terms of
this Agreement.
Section 5.3 Disclaimer Of Warranties. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS
AGREEMENT AND THE INVESTMENT AGREEMENT, NO PARTY MAKES ANY OTHER WARRANTIES, EXPRESS OR
IMPLIED, REGARDING THIS AGREEMENT, THE PERFORMANCE OF ITS OBLIGATIONS OR THE PRODUCTS OR
SERVICES THAT IT PROVIDES HEREUNDER. IN PARTICULAR, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH
IN THIS AGREEMENT AND THE INVESTMENT AGREEMENT, EACH PARTY EXPRESSLY AND SPECIFICALLY
DISCLAIMS AND WAIVES ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION,
THE IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT.
Section 5.4 Covenants.
(a) Each of the Parties hereby agrees that during the term of this Agreement, it shall not, and shall ensure that its Affiliates
shall not, enter into any agreement with a third party that will materially limit its ability to perform hereunder.
(b) Each of the Parties hereby agrees that it shall provide such information and cooperation as may be reasonably requested
of it by another Party in connection with customer complaints and inquiries, and Legal Proceedings brought against such Person by a
third party that arises out of or relates to Covered Orders, unless the sharing of such information or cooperation would be reasonably
likely to void any legal privilege.
(c) Parent shall not, and shall cause its Affiliates not to, take any actions that are intended, designed or that would
reasonably be expected to circumvent the terms or intention of this Agreement including, without limitation, transferring or
reclassifying accounts.
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