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<br />21. Remedy Limitations
<br />
<br />21.1 Applicability
<br />
<br />21.2 Remedy
<br />Exclusions
<br />
<br />21.3 Capped
<br />Damages
<br />
<br />21.4 Carn-Outs
<br />from Remedy
<br />Limitations
<br />
<br />GENERAL PROVISIONS
<br />
<br />The parties specifically agree that each of the remedy limitations set out in this Section 21 and else-
<br />where in this Agreement is to be enforced to the maximum extent pennitted by applicable law, in.
<br />dependently of any other applicable remedy limitation, even if any particular remedy is held to have
<br />failed of its essential purpose, and also independently of the warranty-disclaimer provisions of this
<br />Agreement. The limitations in this Section 21 are a material consideration for each party in entering
<br />into this Agreement.
<br />
<br />Exceol as nrovided in Section 2104, the following remedy exclusions will apply to the greatest ex-
<br />tent nnt prnhibited by applicable law NEITHER PARTY NOR ITS SUBSIDIARIES, PARENT
<br />COMPANY, OR AFFILIATES, IF ANY, WILL BE LIABLE TO THE OTHER PARTY OR ITS
<br />SUBSIDIARIES, PARENT COMPANY, OR AFFILIATES IN CONTRACT, TORT (for example,
<br />negligence), OR ANY OTHER FORM OF ACTION FOR ANY INDIRECT, CONSEQUENTIAL,
<br />INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, OR SIMILAR DAMAGES arising oul of or
<br />relating to a breach of this Agreement by the first party, including, for example, damages for lost
<br />profits or other economic loss.
<br />
<br />Excent as nrovided in Section 21.4, the following limitation ("monetary cap") will apply to the
<br />greatest extent not prohibited by applicable law THE MAXIMUM AGGREGATE LIABILITY OF
<br />EITHER PARTY and its suppliers, subsidiaries, parent company, or affiliates, ifany, to the other
<br />party and all persons claiming rights through the other party (including, for example, any affiliate or
<br />other entity having rights under this Agreement), in respect of any and all claims arising out of or
<br />related to this Agreement, in contract, tort, or otherwise, will be (a) for Order Forms, the sum of
<br />(1) the initial license fee for the License, plus (2) the aggregate of the maintenance fees that you
<br />paid, ifany, in the five (5) years preceding the final detennination of such liability, and (b) for
<br />Statements of Work, two times the applicable fee for the Services in question.
<br />
<br />In the categories set forth in the table below, the remedy exclusions of Section 21.2 and the mone-
<br />tary cap of Section 21.3 will apply only as set forth therein (see also the notes in Section 21.5)
<br />SUBJECT TO SUBJECT TO
<br />REMEDY MONETARY
<br />CATEGORY EXCLUSIONS? CAP?
<br />
<br />Money you owe for license fees, maintenance fees, or service
<br />fees hereunder
<br />
<br />InfringementMdefense and -indemnity obligations under this
<br />Agreement
<br />
<br />A party's intentional breach ofa confidentiality obligation
<br />hereunder or intentional infringement ofthe other party's intelM
<br />lectual property rights
<br />
<br />Direct damages arising from bodily injury or death
<br />
<br />Direct damages arising from physical injury to or destruction of
<br />tangible personal property
<br />
<br />Yes Noll
<br />[Note 1 J No
<br />Nn No
<br />No Nn
<br />Yes Nn
<br />[Note 2J [NOles 2, 3J
<br />
<br />31 Section 2 J.4: The money-owed category/ is flat subject to the monetary cap, because at the very beginning of a license rela-
<br />tionship, the money that you owe for a license fee, prepaid maintenance fee, and (optiona//)) service fees, will always exceed the
<br />amount of the dol/ar cap. (This is because at that time the previous five years of maintenance fees will be equal to zero.)
<br />
<br />BINDVIEW CUSTOMER AGREEMENT 95-3172
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<br />PAGE 26
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