From: "Mackinder, Lisa" <[log in to unmask]>
Date: Tue, 5 Nov 2019 14:30:05 +0000

Hello fellow licensers,



If a licensor is providing indemnification to us against 3rd party
copyright and IP right infringement claims, but there is a liability cap in
place, does that mean that we are only indemnified up to that amount?  In
other words, if the claim is one where the total liability being decided
exceeds the amount in the liability cap clause, are we liable above that
cap?



Here are the 2 clauses in question:



*Provider Indemnification*. Provider shall indemnify and hold harmless the
Customer and Designated Users for any losses, claims, damages, awards,
penalties, or injuries incurred, including reasonable attorney's fees, that
arise from any third party claim that alleges copyright infringement or
other intellectual property infringement arising from the use of the Hosted
Services by the Customer or any Designated User. This Section 8 shall
survive the termination of this Agreement.



*Liability Cap*. EXCEPT AS OTHERWISE PROVIDED IN SECTION 8.3, IN NO EVENT
WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT,
WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO
PROVIDER PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD
PRECEDING THE EVENT GIVING RISE TO THE CLAIM.



I want to make absolute sure I understand how these two clauses work
together.  My instinct tells me that the liability cap nullifies the
indemnification over that cap, but please do tell me if I’m wrong.



Thanks very much!



Lisa



Lisa Mackinder | Head of Acquisitions and Collections Services

Alden Library | Ohio University

740-593-2707 | [log in to unmask]

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