REASONABLY NECESSARY TO REMEDY AND MINIMIZE SUCH EVENTS,
INSTINET CANNOT GUARANTEE THAT SUCH EVENTS WILL NOT OCCUR. ACCORDINGLY, INSTINET
DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO SUCH EVENTS, AND
SUBSCRIBER ACCEPTS SUCH DISCLAIMER WITHOUT LIABILITY TO INSTINET.
11.4 LIMITATION OF LIABILITY. EXCEPT AS SET FORTH IN SECTION 2.2.7, THE TOTAL
LIABILITY OF INSTINET TO SUBSCRIBER IN CONNECTION WITH THIS AGREEMENT WILL BE
LIMITED TO THE LESSER OF: (A) DIRECT DAMAGES PROVEN BY SUBSCRIBER OR (B) THE
AGGREGATE AMOUNTS PAID BY SUBSCRIBER TO INSTINET UNDER THIS AGREEMENT FOR THE
SIX (6) MONTHLY PERIODS PRIOR TO ACCRUAL OF SUCH CAUSE OF ACTION (OR, IN THE
EVENT THAT THIS AGREEMENT HAS BEEN IN EFFECT FOR LESS THAN SIX (6) MONTHS AFTER
THE SERVICES COMMENCEMENT DATE, SIX (6) TIMES THE AVERAGE ACTUAL (OR
PROSPECTIVE) MONTHLY PAYMENT AMOUNTS DURING A SIX (6) MONTH PERIOD PRECEDING (OR
FOLLOWING) THE DATE OF THE CALCULATION). THE FOREGOING LIMITATION APPLIES TO ALL
CAUSES OF ACTION AND CLAIMS, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT,
BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER
TORTS, AND CLAIMS UNDER ANY APPLICABLE LAW.
11.5 AGGREGATE CAP. WITHOUT LIMITATION OF SECTION 11.4 (OTHER THAN LIMITATION OF
THE EXCEPTION SET FORTH IN THE FIRST SENTENCE THEREOF), AND NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, INCLUDING SECTION 2.2.7,
OR ANY OTHER AGREEMENT, EACH PARTY ACKNOWLEDGES AND AGREES THAT IN NO EVENT
SHALL THE TOTAL AGGREGATE LIABILITY OF THE OTHER PARTY OR ANY PERSON AFFILIATED
WITH THE OTHER PARTY FOR ANY CLAIMS, LOSSES OR DAMAGES, FOR ANY CAUSE
WHATSOEVER, ARISING OUT OF OR RELATED TO, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN
PART, THIS AGREEMENT, THE LICENSE-BACK AGREEMENT BY AND BETWEEN INSTINET AND
SUBSCRIBER DATED AS THE DATE HEREOF OR THE ASSET PURCHASE AGREEMENT, AND
REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, IN TORT (INCLUDING
NEGLIGENCE OR STRICT LIABILITY), PURSUANT TO ANY INDEMNIFICATION PROVISIONS
HEREOF OR THEREOF OR OTHERWISE, EXCEED IN THE AGGREGATE $7,750,000, EXCEPT AS
PROVIDED IN THE LAST SENTENCE OF SECTION 8.4(b) OF THE LICENSE AGREEMENT AND THE
LAST SENTENCE OF THIS SECTION 11.5. THE FOREGOING LIMITATION OF LIABILITY IS
COMPLETE AND EXCLUSIVE, SHALL APPLY EVEN IF A PARTY HAS
18
BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL CLAIMS, LOSSES OR DAMAGES, AND
SHALL APPLY REGARDLESS OF THE SUCCESS OR EFFECTIVENESS OR FAILURE OF ESSENTIAL
PURPOSE OF ANY OTHER REMEDIES POSSESSED BY SUCH PARTY OR ANY OTHER PERSON. THE
LIMITATION OF LIABILITY SET FORTH IN THIS SECTION 11.5 SHALL NOT APPLY WITH
RESPECT TO (i) ANY AMOUNTS PAYABLE BY A PARTY INDEMNIFIED UNDER SECTION 8.1 TO A
CO-LOCATION CUSTOMER OF INSTINET OR ITS AFFILIATES AS A RESULT OF A CLAIM
BROUGHT BY SUCH CO-LOCATION CUSTOMER AGAINST SUCH INDEMNIFIED PARTY AND FOR
WHICH SUBSCRIBER IS REQUIRED TO INDEMNIFY SUCH INDEMNIFIED PARTY UNDER SECTION
8.1, AND (ii) THE REASONABLE ATTORNEYS' FEES INCURRED BY SUCH INDEMNIFIED
PARTIES IN ACCORDANCE WITH SECTION 8.1 IN CONNECTION WITH SUCH CLAIM.
11.6 Notwithstanding anything to the contrary herein, Subscriber shall not have
any