Hello fellow licensers,

If a licensor is providing indemnification to us against 3^rd 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]