Waiver of Consequential Damages, Etc. To the fullest extent permitted by applicable law, the Borrowers shall not assert, and the Borrowers hereby waive, any claim against any Indemnitee, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No Indemnitee referred to in [Section 11.04(b)] above shall be liable for any damages arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual damages resulting from the gross negligence or willful misconduct of such Indemnitee as determined by a final and non-appealable judgment of a court of competent jurisdiction.

“Losses” means any and all damages, losses, liabilities, commitments, obligations, awards, penalties, costs or expenses (including reasonable attorneys’ fees); provided, however, that Losses hereunder shall not include punitive, exemplary, indirect, special, consequential damages, lost profits or diminution in value other than # such damages actually paid to a non-Affiliated Person in respect of a Third Party Claim or # consequential damages and lost profit damages to the extent that, in accordance with the Laws of the State of Colorado, such damages are within the reasonable contemplation of the parties or are the direct and reasonably foreseeable consequence of the breach or alleged breach giving rise to the claim on which such Losses are based, and the Indemnified Party satisfies all elements necessary for proof of such damages under such Laws.

IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER TO THE OTHER PARTY FOR ANY PUNITIVE, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST REVENUE, LOST PROFITS, OR LOST SAVINGS) HOWEVER CAUSED AND UNDER ANY THEORY, EVEN IF IT HAS NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.

Liquidated Damages. The Company’s obligations to pay any partial liquidated damages or other amounts owing under the Transaction Documents is a continuing obligation of the Company and shall not terminate until all unpaid partial liquidated damages and other amounts have been paid notwithstanding the fact that the instrument or security pursuant to which such partial liquidated damages or other amounts are due and payable shall have been canceled.

Liquidated Damages. If, after one hundred twenty (120) days from the Closing Date, the Company has not registered Registrable Securities pursuant to the requirements of Section 2.1 herein, or if the Registration Statement filed pursuant to Section 2.1 herein (and modified pursuant to Section 2.2, if applicable) is not declared effective, or if the Registrable Securities (or such number of them permitted to be registered pursuant to Section 2.2 hereof) are registered pursuant to an effective Registration Statement and such Registration Statement is not effective for a period thereafter in excess of thirty days during any calendar year, the Company shall, for each business day issue exceeding the aforesaid limits on which the Registration Statement is not effective, issue to the Participating Holder(s), as liquidated damages and not as a penalty, two (2) shares of Series C Preferred Stock for any such day, such issuance to be made no later than the tenth business day of the calendar month next succeeding the month in which such day of ineffectiveness occurs.

Liquidated Damages. Company and Investor agree that in the event Company fails to comply with any of the terms or provisions of this Warrant, Investor’s damages would be uncertain and difficult (if not impossible) to accurately estimate because of the parties’ inability to predict future interest rates, future share prices, future trading volumes and other relevant factors. Accordingly, Investor and Company agree that any fees or other charges assessed under this Warrant are not penalties but instead are intended by the parties to be, and shall be deemed, liquidated damages (under Investor’s and Company’s expectations that any such liquidated damages will tack back to the Issue Date for purposes of determining the holding period under Rule 144.

With respect to Components ordered after the Full Commercial Operation Date and [...​...] after the Seller’s confirmed delivery date (it being understood that such [...​...], Seller agrees to pay to Buyer as liquidated damages an amount as set forth below for the period of time that delivery of the Component is late:

The Consultant shall be liable for any and all direct and indirect damages, costs and expenses resulting from any violation of the above paragraph including, without limitation, reasonable attorneys’ fees and disbursements, consequential damages and lost profits.

NEITHER LICENSOR NOR LICENSEE HAS ANY LIABILITY FOR, AND EACH PARTY HEREBY WAIVES ANY RIGHT TO RECOVER FROM THE OTHER PARTY OR ANY OF ITS OWNERS, OFFICERS OR AFFILIATES, PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL AND OTHER INDIRECT DAMAGES (INCLUDING LOST PROFITS) ARISING IN CONNECTION WITH OR WITH RESPECT TO THIS LICENSE AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY, OTHER LAW OR OTHERWISE. FOR THE AVOIDANCE OF DOUBT, THIS SECTION 11(C) SHALL NOT PREVENT ANY PARTY FROM SEEKING INDEMNIFICATION HEREUNDER FOR CLAIMS OF THIRD PARTIES FOR DAMAGES THAT ARE PUNITIVE, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR INDIRECT IN NATURE (INCLUDING LOST PROFITS).

The Arbitral Tribunal shall award the prevailing party its attorneys’ fees and costs, arbitration administrative fees, panel member fees and costs, and any other costs associated with the arbitration. The Arbitral Tribunal may only award damages as provided for under the terms of the Contract and in no event may punitive, consequential and special damages be awarded.