Common use of Consequential Damages Exclusion; Express Negligence Clause in Contracts

Consequential Damages Exclusion; Express Negligence. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOST PROFITS (EXCEPT TO THE EXTENT THAT ANY DIRECT DAMAGES INCLUDE AN ELEMENT OF PROFIT), LOST SALES OR REVENUES, AND ALL BUSINESS INTERRUPTION DAMAGES, WHETHER BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE (EXCEPT (a) TO THE EXTENT THAT AN INDEMNIFYING PARTY, PURSUANT TO THE PROVISIONS OF SECTION 9.4 OR SECTION 13.3 OR ARTICLE XII, IS OBLIGATED TO INDEMNIFY AN INDEMNITEE AGAINST THIRD PARTY CLAIMS OR (b) AN EXPRESS MEASURE OF DAMAGES HEREIN INCLUDES CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OR (c) IN THE CASE OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INTENTIONAL, BAD FAITH BREACH). THE PARTIES INTEND AND AGREE THAT (i) THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES AND, EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN THE PROVISO TO SECTION 12.1, THE INDEMNITIES IN SECTION 12.1(d) BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF THE BENEFICIARY THEREOF, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE AND (ii) “COVER” DAMAGES REASONABLY INCURRED BY A NON-DEFAULTING PARTY DO NOT CONSTITUTE CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES FOR PURPOSES OF THIS AGREEMENT. WITH RESPECT TO THE INDEMNITIES IN SECTION 12.1(a) AND SECTION 12.1(b), IT IS THE INTENT OF THE PARTIES THAT WHERE, AS BETWEEN THE PARTIES, FAULT IS DETERMINED TO HAVE BEEN JOINT OR CONTRIBUTORY, PRINCIPLES OF COMPARATIVE FAULT WILL BE FOLLOWED AND EACH PARTY SHALL BEAR THE PROPORTIONATE DAMAGE CAUSED BY THAT PARTY’S FAULT.

Consequential Damages Exclusion; Express Negligence. NEITHER PARTY SHALL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND OR NATURE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOST PROFITS (EXCEPT TO THE EXTENT THAT ANY DIRECT DAMAGES INCLUDE AN ELEMENT OF PROFIT), LOST SALES OR REVENUES, AND ALL BUSINESS INTERRUPTION DAMAGES, WHETHER BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE (EXCEPT (a) TO THE EXTENT THAT AN INDEMNIFYING PARTY, PURSUANT TO THE PROVISIONS OF SECTION 9.4 13.4 OR SECTION 13.3 17.2 OR ARTICLE XIIXVI, IS OBLIGATED TO INDEMNIFY AN INDEMNITEE AGAINST THIRD PARTY CLAIMS (INCLUDING, IF APPLICABLE, CLAIMS BY ANY GOVERNMENTAL AUTHORITY) OR (b) AN EXPRESS MEASURE OF DAMAGES HEREIN (INCLUDING AMOUNTS PAYABLE BY SELLER PURSUANT TO SECTION 10.3(b) OR AS LIQUIDATED DAMAGES) INCLUDES CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES OR (c) IN THE CASE OF A PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR INTENTIONAL, BAD FAITH BREACH). THE PARTIES INTEND AND AGREE THAT (i) THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES AND, EXCEPT TO THE EXTENT OTHERWISE PROVIDED IN THE PROVISO TO SECTION 12.116.1, THE INDEMNITIES IN SECTION 12.1(d16.1(IV), SECTION 16.1(V) AND SECTION 16.1(VI) BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF THE BENEFICIARY THEREOF, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, ACTIVE OR PASSIVE AND (ii) “COVER” DAMAGES REASONABLY INCURRED BY A NON-DEFAULTING PARTY DO NOT CONSTITUTE CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES FOR PURPOSES OF THIS AGREEMENT. WITH RESPECT TO THE INDEMNITIES IN SECTION 12.1(a16.1(i) AND SECTION 12.1(b16.1(ii), IT IS THE INTENT OF THE PARTIES THAT WHERE, AS BETWEEN THE PARTIES, FAULT IS DETERMINED TO HAVE BEEN JOINT OR CONTRIBUTORY, PRINCIPLES OF COMPARATIVE FAULT WILL BE FOLLOWED AND EACH PARTY SHALL BEAR THE PROPORTIONATE DAMAGE CAUSED BY THAT PARTY’S FAULT.