Common use of Aggregate Limit of Liability Clause in Contracts

Aggregate Limit of Liability. (a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an aggregate amount in excess of the Maximum Liability; provided that such limitation of liability shall not apply to any liability that is the result of (i) gross negligence, fraud or willful misconduct of a Party, (ii) a Third Party Claim, (iii) the failure to pay the Service Fees (which amount shall not be included in calculating Owner’s Maximum Liability), (iv) a claim of Owner against BE or Operator in the event of any breach, default or misrepresentation of any representation and warranty or covenant set forth in Section 8.2(e) or (v) a claim of Owner against BE or Operator under Section 2.8. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (a) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 7.1 shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Owner, Diamond State Generation Holdings, LLC, or both, and (b) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Owner). (b) Notwithstanding anything to the contrary provided herein, in no event shall Operator be liable under this Agreement (including with respect to its obligations related to the Facility Service Warranty, the Power Performance Warranty or Warranty Specification) for (i) any failure of or damage to the Bloom System or (ii) any obligations on the part of Operator (including internal rate of return or other financial metrics or any obligations to deliver power to Owner or service the Bloom System) caused by or arising from (A) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party’s actions or omissions, (B) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (C) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) removal of any safety devices, (D) Force Majeure Events, (E) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or Operator’s authorized agents or Owner’s operator acting pursuant to a operating and maintenance agreement provided such operator is acting in accordance with Prudent Electrical Practices and information or materials supplied by Operator or its Affiliates, or (F) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BE, provided that the exclusions in this clause (F) shall not extend to any warranty claim to the extent caused by or arising from (1) any defect in construction materials or workmanship of the BOF or (2) any deficiency in design of the BOF by BE, in each case during the period while the MESPA Section 8.2(b) Warranty is in effect. OPERATOR SHALL NOT BE RESPONSIBLE FOR DAMAGE TO BLOOM SYSTEMS OR THEIR COMPONENTS DUE TO THEIR OPENING OR MODIFICATION BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES. Except for Owner’s payment of money to Operator, and subject to Section 9.19 hereof, neither Party shall be liable under any circumstance, nor be deemed to be in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from any Force Majeure Event, or any other cause or causes which are beyond such Party’s reasonable control.

Aggregate Limit of Liability. (a) Notwithstanding anything to the contrary in this Agreement, in no event shall a Party be liable to the other Party for an aggregate amount in excess of the Maximum Liability; provided that such limitation of liability shall not apply to any liability that is the result of (i) gross negligence, fraud fraud, willful default or willful misconduct of a Party or that Party’s employees, agents, subcontractors (except that for the purposes of this provision, the Operator and its employees, agents and subcontractors will not be deemed to be employees, agents or subcontractors of the Owner), (ii) a Third Party Claim, (iii) the failure to pay the Service Fees (which amount shall not be included in calculating Owner’s Maximum Liability), (iv) a claim of Owner against BE with respect to injury to or Operator in the event death of any breachperson, default or misrepresentation of any representation and warranty or covenant set forth in Section 8.2(e) or (v) the Operator’s abandonment to the extent constituting a claim repudiation of Owner against BE this Agreement in respect of all or any part of the Bloom Systems or BOF, or (vi) events or circumstances in respect of which insurance proceeds are available or that would have been available but for a failure by the Operator to maintain, or comply with the terms of, insurance that it is required to obtain and maintain under Section 2.8this Agreement, and any amounts so received will not be included when calculating the Operator’s Maximum Liability. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages or amounts specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (a) indirect, punitive, special or consequential damages or loss of profits; provided, however, that the loss of profits language set forth in this Section 7.1 shall not be interpreted to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Owner or interest, cost or expense payable by Owner to the Owner, Diamond State Generation Holdings, LLC, or both, ’s Lender and (b) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Owner). (b) Notwithstanding anything to the contrary provided herein, in no event shall Operator be liable under this Agreement (including with respect to its obligations related to the Facility Service Warranty, the Power Performance Capacity Warranty or Warranty SpecificationSpecifications) for (i) any failure of or damage to the Bloom System Systems or (ii) any obligations on the part of Operator (including internal rate of return or other financial metrics or any obligations to deliver power to Owner or service the Bloom SystemSystems) to the extent caused by or arising from (A) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from or BOF being affected by vandalism or other third-party’s actions or omissionsomissions occurring after Commencement of Operations (other than to the extent that Operator, (B) Owner’s (as opposed to Operator or Operator’s Affiliate Affiliate, the Service Provider or subcontractor acting as operator under this AgreementAgreement fails to properly protect the Bloom Systems and was required to do so under the Transaction Documents), (B) any failure relating to use gas quality or supply in relation to which the specified input fuelOwner is satisfactorily compensated by the applicable PPA Customer under a PPA or by Operator under Section 2.8 or 2.19; (C) Owner’s (as opposed to Operator or Operator, Operator’s Affiliate Affiliate, the Service Provider or a subcontractor thereof acting as operator under this Agreement) or a PPA Customer’s (in which case the provisions of Article 3B apply) removal of any safety devices, (D) any conditions caused by unforseeable movement in the environment in which the Bloom Systems are installed (provided that normal soil settlement, shifting, subsidence or cracking will not constitute ‘unforseeable movement’), (E) accidents, abuse, neglect, or improper third party testing (unless caused by Operator, Operator’s Affiliate, the Service Provider or a subcontractor thereof acting as operator under this Agreement), (F) Force Majeure Events, (EG) installation, operation, repair or modification of the Bloom Systems or BOF by anyone other than Operator or Operator’s authorized agents or Owner’s operator acting pursuant to a operating and maintenance agreement provided such operator is acting in accordance with Prudent Electrical Practices and information or materials supplied by Operator or its Affiliatesagents, or (F) any defect in construction materials or workmanship of the BOF or any deficiency in design of the BOF by BEOPERATOR SHALL HAVE NO OBLIGATION UNDER THE WARRANTY SPECIFICATIONS, provided that the exclusions in this clause (F) shall not extend to any warranty claim to the extent caused by or arising from (1) any defect in construction materials or workmanship of the BOF or (2) any deficiency in design of the BOF by BEMAKES NO REPRESENTATION AS TO, in each case during the period while the MESPA Section 8.2(b) Warranty is in effect. OPERATOR AND SHALL NOT BE RESPONSIBLE FOR DAMAGE TO TO, BLOOM SYSTEMS OR THEIR COMPONENTS DUE TO THEIR OPENING BOF WHICH HAVE BEEN OPENED OR MODIFICATION MODIFIED BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVESREPRESENTATIVES IN EACH CASE TO THE EXTENT OF ANY DAMAGE OR OTHER NEGATIVE CONSEQUENCE OF SUCH OPENING OR MODIFICATION. Except for Owner’s payment of money to Operator, and subject to Section 9.19 hereof, neither Party shall be liable under any circumstance, nor be deemed to be in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from any Force Majeure Event, or any other cause or causes which are beyond such Party’s reasonable control.

Aggregate Limit of Liability. (a) Notwithstanding anything Contractor’s total liability for liquidated damages hereunder shall not exceed the following limits: (i) for Delay Damages, ten percent (10%) of the Contract Price; (ii) for Performance Liquidated Damages, fifteen percent (15%) of the Contract Price; and (iii) for Delay Damages and Performance Liquidated Damages in the aggregate, twenty percent (20%) of the Contract Price (the “Liquidated Damages Aggregate Cap”). (b) Except as otherwise specifically set forth herein, Contractor’s aggregate liability to Owner, from any and all causes (including all Delay Damages, Substantial Completion Cliff Liquidated Damages and Performance Liquidated Damages payable hereunder and all claims under the contrary warranties described in this Agreement), whether based on contract, tort (including negligence), strict liability or any other cause of action, shall in no event shall a Party be liable to exceed the other Party for an aggregate amount in excess of the Maximum Liability; provided that such limitation of liability shall not apply to any liability that is the result of (i) gross negligence, fraud or willful misconduct of a Party, (ii) a Third Party Claim, (iii) the failure to pay the Service Fees (which amount shall not be included in calculating Owner’s Maximum Liability), (iv) a claim of Owner against BE or Operator in the event of any breach, default or misrepresentation of any representation and warranty or covenant set forth in Section 8.2(e) or (v) a claim of Owner against BE or Operator under Section 2.8. Subject always to the Maximum Liability limitations set forth in the preceding sentence, except for damages specifically provided for in this Agreement or in connection with the indemnification for damages awarded to a third party under a Third Party Claim, damages hereunder are limited to direct damages, and in no event shall a Party be liable to the other Party, and the Parties hereby waive claims, for (a) indirect, punitive, special or consequential damages or loss of profits; Contract Price provided, however, that the loss foregoing limitation shall not apply to acts of profits language set forth in gross negligence, willful misconduct or fraud by Contractor, amounts transferred to Owner pursuant to Section 2.5(k)(i) or Contractor’s indemnification obligations under Section 5.8 and ARTICLE X. Contractor’s total liability for purposes of this Section 7.1 9.1 shall not be interpreted calculated without regard to exclude from Indemnifiable Losses any claim, demand, suit, loss, liability, damage, obligation, payment, cost or expense (including the cost and expense amounts received by Contractor in respect of any action, suit, proceeding, assessment, judgment, settlement or compromise relating thereto and reasonable attorneys’ fees and reasonable disbursements in connection therewith) that would otherwise be included in the definition of Indemnifiable Losses because they result from a reduction in the profits of Owner, Diamond State Generation Holdings, LLC, or both, and (b) losses or liabilities incurred by the officers, directors, members, managers, partners, shareholders or Affiliates of such Party (unless on behalf of Owner). (b) Notwithstanding anything to the contrary provided herein, in no event shall Operator be liable under this Agreement (including with respect to its obligations related to the Facility Service Warranty, the Power Performance Warranty or Warranty Specification) for (i) any failure of or damage to the Bloom System or (ii) any obligations on the part of Operator (including internal rate of return or other financial metrics or any obligations to deliver power to Owner or service the Bloom System) caused by or arising from (A) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to properly protect the Bloom Systems from vandalism or other third-party’s actions or omissions, (B) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) failure to use the specified input fuel; (C) Owner’s (as opposed to Operator or Operator’s Affiliate or subcontractor acting as operator under this Agreement) removal of any safety devices, (D) Force Majeure Events, (E) installation, operation, repair or modification of the Bloom Systems by anyone other than Operator or Operator’s authorized agents or Owner’s operator acting pursuant to a operating warranties and maintenance agreement provided such operator is acting guarantees of the Subcontractors and vendors obtained in accordance with Prudent Electrical Practices and information or materials supplied by Operator or its Affiliates, or (F) any defect in construction materials or workmanship of the BOF Section 8.5 or any deficiency in design of manufacturer warranties obtained pursuant to Section 8.1 and liabilities excluded from the BOF Contractor’s aggregate liability limitation hereunder by BE, provided that the exclusions in this clause (F) shall not extend to any warranty claim proviso to the extent caused by or arising from (1) any defect in construction materials or workmanship of the BOF or (2) any deficiency in design of the BOF by BE, in each case during the period while the MESPA Section 8.2(b) Warranty is in effectimmediately preceding sentence. OPERATOR SHALL NOT BE RESPONSIBLE FOR DAMAGE TO BLOOM SYSTEMS OR THEIR COMPONENTS DUE TO THEIR OPENING OR MODIFICATION BY OWNER OR ANYONE OTHER THAN OPERATOR, OPERATOR’S AFFILIATE, THE SERVICE PROVIDER OR SUBCONTRACTOR, ACTING AS OPERATOR UNDER THIS AGREEMENT, ANY PERSON ACTING AS AN OPERATOR UNDER THIS AGREEMENT (OR ANY SUCCESSOR AGREEMENT TO THIS AGREEMENT) OR ANY OF SUCH PERSON’S REPRESENTATIVES. Except for Owner’s payment of money aggregate liability to OperatorContractor, and subject to Section 9.19 hereof, neither Party shall be liable under any circumstance, nor be deemed to be in breach of this Agreement, for any delay or failure in performance or interruption of service resulting from any Force Majeure Eventand all causes, whether based on contract, tort (including negligence), strict liability or any other cause of action, shall in no event exceed the Contract Price, provided however, that the foregoing limitation shall not apply to acts of gross negligence, willful misconduct or causes which are beyond such Partyfraud by Owner or Owner’s reasonable controlindemnification obligations under ARTICLE X. Owner’s total liability for purposes of this Section 9.1 shall be calculated without regard to claims made, or amounts received, in respect of liabilities excluded from the Owner’s aggregate liability limitation hereunder by the proviso to the immediately preceding sentence.