FOLLOWING:
(I) ANYTHING PROVIDED BY IBM OR A THIRD PARTY ON IBM'S BEHALF THAT IS
INCORPORATED INTO SUCH PRODUCT, SERVICE, MATERIAL OR DELIVERABLE OR ACI'S
COMPLIANCE WITH ANY DESIGNS, SPECIFICATIONS OR INSTRUCTIONS PROVIDED BY IBM OR A
THIRD PARTY ON IBM'S BEHALF;
(II) THE MODIFICATION OF SUCH PRODUCT, SERVICE, MATERIAL OR DELIVERABLE BY IBM
OR A THIRD PARTY ON IBM'S BEHALF;
(III) THE COMBINATION, OPERATION OR USE OF SUCH PRODUCT, SERVICE, MATERIAL OR
DELIVERABLE WITH ANY PRODUCT, DATA, APPARATUS, METHOD OR PROCESS THAT ACI DID
NOT PROVIDE AS A SYSTEM, IF THE INFRINGEMENT WOULD NOT HAVE OCCURRED WERE IT NOT
FOR SUCH COMBINATION, OPERATION OR USE; AND
32
ACI WORLDWIDE, INC. HAS REQUESTED THAT
THE PORTIONS OF THIS DOCUMENT DENOTED
BY BOXES AND ASTERISKS BE ACCORDED
CONFIDENTIAL TREATMENT PURSUANT TO
RULE 24b-2 PROMULGATED UNDER THE
SECURITIES EXCHANGE ACT OF 1934.
(IV) THE DISTRIBUTION, OPERATION OR USE OF SUCH PRODUCT, SERVICE, MATERIAL OR
DELIVERABLE OUTSIDE OF IBM AND ITS AFFILIATES.
SECTION 10.04.
LIMITATION ON LIABILITY.
(A)
NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL
DAMAGES (INCLUDING LOST PROFITS, BUSINESS, REVENUE, GOODWILL OR ANTICIPATED
SAVINGS AND LOSS OF OR DAMAGE TO DATA AND RECORDS), SPECIAL DAMAGES, INCIDENTAL
DAMAGES, INDIRECT DAMAGES OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR UNDER ANY
OTHER ALLIANCE AGREEMENT, EVEN IF ADVISED THAT ANY OF THESE TYPES OF DAMAGES MAY
OCCUR; PROVIDED THAT THE LIMITATIONS SET FORTH THIS SECTION 10.04(A) SHALL NOT
APPLY TO (I) ANY SUCH DAMAGES THAT MAY BE AWARDED PURSUANT TO A THIRD PARTY'S
CLAIM CONTEMPLATED BY SECTION 10.01 OR (II) ANY BREACH OF A PARTY'S OBLIGATIONS
SET FORTH IN ARTICLE IX OR SECTION 10 OF THE ENABLEMENT ASSISTANCE AGREEMENT;
AND PROVIDED, FURTHER, THAT THE LIMITATIONS SET FORTH IN THIS
SECTION 10.04(A) WITH RESPECT TO CONSEQUENTIAL DAMAGES AND INDIRECT DAMAGES
SHALL NOT APPLY TO ANY CLAIM FOR WILLFUL INFRINGEMENT OF INTELLECTUAL PROPERTY
RIGHTS.
(B)
EACH PARTY'S ENTIRE LIABILITY FOR ALL CLAIMS IN THE AGGREGATE ARISING FROM
OR RELATED TO ANY ALLIANCE AGREEMENT WILL IN NO EVENT EXCEED:
(I) PAYMENTS REFERRED TO IN SECTION 10.01;
(II) PAYMENTS [_*_] EXPRESSLY REQUIRED TO BE MADE TO THE OTHER PARTY PURSUANT TO
THE ALLIANCE AGREEMENTS;
(III) DAMAGES FOR BODILY INJURY (INCLUDING DEATH), AND DAMAGE TO REAL PROPERTY
AND TANGIBLE PERSONAL PROPERTY FOR WHICH A PARTY IS LEGALLY LIABLE;
(IV) DAMAGES FOR INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY'S INTELLECTUAL
PROPERTY RIGHTS; AND
(V) THE AMOUNT OF ANY OTHER ACTUAL DIRECT DAMAGES IN AN AGGREGATE AMOUNT NOT TO
EXCEED $[_*_]; PROVIDED THAT NO SUCH LIMITATION SHALL BE APPLIED TO ACTUAL
DIRECT DAMAGES AWARDED TO A PARTY AS A RESULT OF THE OTHER PARTY'S BREACH OF ITS
OBLIGATIONS SET FORTH IN ARTICLE IX OF THIS AGREEMENT OR SECTION 10 OF THE
ENABLEMENT ASSISTANCE AGREEMENT.
(C)
THE LIMITS SET FORTH IN THIS SECTION 10.04 ALSO APPLY TO EACH PARTY'S
SUBCONTRACTORS. IT IS THE MAXIMUM FOR WHICH SUCH PARTY AND ITS SUBCONTRACTORS
ARE COLLECTIVELY RESPONSIBLE.
(D)
THE PROVISIONS OF THIS SECTION 10.04 APPLY TO ALL LIABILITIES, CLAIMS AND