Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees. 12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project. 12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate. 12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement. 12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred. 12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred. 12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement. 12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. 12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 9 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer a Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless, and at Company’s option, defend Companyharmlessthe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the ProjectATP, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save hold harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien Liens asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the ProjectATP, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer Except as it relates to any gain from the conveyance by National Grid to NYSEG of the NYSEG Acquired ROW, NYSEG shall also protectdefend, indemnify and hold harmless the Company National Grid and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company National Grid and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company National Grid or the applicable Company National Grid Affiliate.
12.4 The CompanyPrior to the start of construction activities by National Grid, National Grid’s total cumulative liability to Customer NYSEG and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project ATP, or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made to Company by Customer as Company Reimbursable Costs actually paid to National Grid by NYSEG under this Agreement. Following commencement of construction activities by National Grid, National Grid’s total cumulative liability to NYSEG and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the ATP, or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by National Grid under this Agreement; or (b) the total of all Reimbursable Costs actually paid to National Grid by NYSEG under this Agreement. For the avoidance of doubt, the Initial Pre-Payment amount paid by NYSEG to National Grid shall be included in the estimated and actual costs in determining the cumulative liability cap for purposes of this Section.
12.5 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (ia) such damages were reasonably foreseeable or (iib) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (ia) such damages were reasonably foreseeable or (iib) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: , neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Siteany site where Work is to be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer NYSEG and Company National Grid to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything ; or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to system reliability in this Agreement to the contrary notwithstanding, if any Party’s liability in connection accordance with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such PartyGood Utility Practice.
12.9 Notwithstanding any other provision of this Agreement, this Article Section 12 shall survive the termination, cancellation expiration or expiration of terminationof this Agreement.
Appears in 8 contracts
Samples: Commercial Agreement, Commercial Agreement, Commercial Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted allowed by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all direct liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against the Company’s contractors or any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge person or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 entity for whom Company is legally responsible. Customer shall also protect, indemnify and hold harmless the Company and its Affiliates affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates affiliates as the result of payments, and/or real or personal property transfers, payments made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliateaffiliate.
12.4 12.2 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement. Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.5 12.3 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney’s fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 12.4 Neither Party shall be liable to the other Party for claims of, or damages for for, lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.5 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such other Party or any person or entity for whom such other Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreementparty.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 12.6 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 8 contracts
Samples: Cost Reimbursement Agreement, Transmission Facility Interconnection Agreement, Transmission Facility Interconnection Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 7 contracts
Samples: Reimbursement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any the Indemnifying Party’s Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Indemnifying Party’s Work or the Project, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees. Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated by this Agreement.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Company Work; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, the Initial Prepayment paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or negligent or unlawful omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.9 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s or Company’s insurance.
12.9 12.10 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 7 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-third- party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party Company or its contractors, officers, directors, servants, agents, representatives, any person or employeesentity for whom Company is legally responsible.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 12.4 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney’s fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 12.5 Neither Party shall be liable to the other Party for claims or damages for of lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreementparty.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 12.7 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation termination or expiration of this the Agreement.
Appears in 7 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer a Party (the “Indemnifying Party”) shall defend, indemnify and hold harmless, and at Company’s option, defend Companyharmless the other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the ProjectATP, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save hold harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien Liens asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the ProjectATP, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer Except as it relates to any gain from the conveyance by National Grid to NYSEG of the NYSEG Acquired ROW, NYSEG shall also protectdefend, indemnify and hold harmless the Company National Grid and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company National Grid and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company National Grid or the applicable Company National Grid Affiliate.
12.4 The CompanyPrior to the start of construction activities by National Grid, National Grid’s total cumulative liability to Customer NYSEG and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project ATP, or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made to Company by Customer as Company Reimbursable Costs actually paid to National Grid by NYSEG under this Agreement. Following commencement of construction activities by National Grid, National Grid’s total cumulative liability to NYSEG and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the ATP, or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by National Grid under this Agreement; or (b) the total of all Reimbursable Costs actually paid to National Grid by NYSEG under this Agreement. For the avoidance of doubt, the Initial Pre-Payment amount paid by NYSEG to National Grid shall be included in the estimated and actual costs in determining the cumulative liability cap for purposes of this Section.
12.5 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (ia) such damages were reasonably foreseeable or (iib) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (ia) such damages were reasonably foreseeable or (iib) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: , neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Siteany site where Work is to be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer NYSEG and Company National Grid to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything ; or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to system reliability in this Agreement to the contrary notwithstanding, if any Party’s liability in connection accordance with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such PartyGood Utility Practice.
12.9 Notwithstanding any other provision of this Agreement, this Article Section 12 shall survive the termination, cancellation expiration or expiration termination of this Agreement.
Appears in 6 contracts
Samples: Commercial Agreement, Commercial Agreement, Commercial Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the any Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 6 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted allowed by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all direct liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against the Company’s contractors or any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge person or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 entity for whom Company is legally responsible. Customer shall also protect, indemnify and hold harmless the Company and its Affiliates affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates affiliates as the result of payments, and/or real or personal property transfers, payments made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 affiliate. The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 . Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney’s fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 . Neither Party shall be liable to the other Party for claims of, or damages for for, lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 . Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such other Party or any person or entity for whom such other Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder)party. For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 5 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. DWT 29559604v3 0089555-000048
12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer a Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the Project, except to the extent such Liens are caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.. DWT 29559604v3 0089555-000048
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by Company under this Agreement; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, any initial pre-payment amount paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). DWT 29559604v3 0089555-000048
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 5 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an a “Company Indemnified Party” and, collectively, the “Company Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage or other damages (collectively, “Damages”), incurred by any Company Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by attributable to (x) the gross negligence, intentional misconduct misconduct, breach of this Agreement or unlawful act of the a Company Indemnified Party or its contractors, officers, directors, servants, agents, representativesas determined by a court of competent jurisdiction, or employees.
12.2 Customer (y) the subject matter of Developer’s indemnity set forth in Section 19.1. To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Company shall defend, indemnify and save harmless Companyhold harmless, and at Developer’s option, defend Developer, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representativescontractors and representatives (each, and employeesindividually, a “Developer Indemnified Party” and, collectively, the “Developer Indemnified Parties”), from and against any and all liabilitiesDamages, lossesincurred by any Developer Indemnified Party to the extent such Damages are attributable to the negligence, costsintentional misconduct, counsel feesor unlawful act of a Company Indemnified Party in connection with this Agreement, expensesthe Project, damagesor any Company Work as determined by a court of competent jurisdiction, judgmentsexcept to the extent such Damages are attributable to the negligence, decrees intentional misconduct, breach of this Agreement or unlawful act of a Developer Indemnified Party as determined by a court of competent jurisdiction.
12.2 Without limiting the foregoing, Developer shall defend, indemnify and appeals save harmless the Company Indemnified Parties from and against any and all Damages resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of CustomerDeveloper’s contractors, subcontractors or suppliers in connection with the any Work or the Project, or (ii) any claim of trespass, or other similar cause of action arising from or are related to reliance upon or use of the New Line Property Rights by the Company Indemnified Parties for the purposes contemplated herein.
12.3 Customer Without limiting the foregoing, Developer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as (including, without limitation, the result cost consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) attributable to the payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), kind made under or otherwise, pursuant to the terms of this Agreement for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed be limited to the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither Anything in this Agreement to the contrary notwithstanding, neither Party shall be liable to the other Party (or to any Indemnified Party) for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, any such damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Anything in this Agreement to the contrary notwithstanding, neither Party shall be liable to the other Party (or to any Indemnified Party) for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Work), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this AgreementAgreement (provided that Company has made good faith efforts to reach agreement), or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to system reliability in accordance with Good Utility Practice. With respect to the foregoing subsection (e), however, Company agrees that it shall undertake commercially reasonable efforts to mitigate the impact of such suspension of Work.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 5 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance. Engineering & Procurement Agreement - NMPC/ATLANTIC WIND, LLC Q546
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 4 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party Company or its contractors, officers, directors, servants, agents, representatives, any person or employees.
12.2 entity for whom Company is legally responsible. Customer shall defend, indemnify and save harmless Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 . The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 . Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney’s fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 . Neither Party shall be liable to the other Party for claims or damages for of lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 . Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder)party. For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation termination or expiration of this the Agreement.
Appears in 4 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.[Reserved]
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.[Reserved]
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. NMPC/O’Brien and Xxxx Cost Reimbursement Agreement dated as of September 25th 2019 EXECUTION VERSION
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.. NMPC/O’Brien and Xxxx Cost Reimbursement Agreement dated as of September 25th 2019 EXECUTION VERSION
Appears in 4 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Substation Reconfiguration Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any Customer Required Actions or any other tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under or in connection with this AgreementAgreement (including, without limitation, as contemplated in Exhibit X- 0 xxxxxx), (bx) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 4 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer a Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the Project, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by Company under this Agreement; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, any initial pre-payment amount paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 4 contracts
Samples: Service Agreement, Cost Reimbursement Agreement, Service Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the any Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.. XX 0000
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance. XX 0000
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 4 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Customer Expansion Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the any Work or the Customer Expansion Project., or (ii) any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated herein. Effective Date: 2/21/2020 - Docket #: ER20-1352-000 - Page 23
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The . To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Customer Expansion Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 . 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 4 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Substation Reconfiguration Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any Customer Required Actions or any other tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under or in connection with this AgreementAgreement (including, without limitation, as contemplated in Exhibit A-1 hereto), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 4 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party shall indemnify and hold harmless, and at Companythe other Party’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party Party, to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe a Party, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customera Party’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Project.. Effective Date: 11/2/2023 - Docket #: ER24-391-000 - Page 21
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Except for Company’s indemnification obligations in this Section 12.1 and 12.2, to the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made actually paid to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
. 12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 . Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 . Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 . The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 . Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 . Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 . Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 . Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 . Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party Party, to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of the Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.. Cost Reimbursement Agreement 2/27/2019
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made actually paid to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Cost Reimbursement Agreement 2/27/2019
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without Effective Date: 6/30/2022 - Docket #: ER22-2523-000 - Page 26 limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments 12465314.8 6/24/2021 of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any the Indemnifying Party’s Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Indemnifying Party’s Work or the Project, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees. Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated by this Agreement.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.. Effective Date: 6/30/2022 - Docket #: ER22-2523-000 - Page 28 12465314.8 6/24/2021
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Company Work; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, the Initial Prepayment paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or negligent or unlawful omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). Effective Date: 6/30/2022 - Docket #: ER22-2523-000 - Page 30 12465314.8 6/24/2021
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.9 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s or Company’s insurance.
12.9 12.10 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s 's option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “"Indemnified Party” " and, collectively, the “"Indemnified Parties”"), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “"Damages”"), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party Company or its contractors, officers, directors, servants, agents, representatives, any person or employeesentity for whom Company is legally responsible.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s 's total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 12.3 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney's fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 12.4 Neither Party shall be liable to the other Party for claims or damages for of lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.5 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such other Party or any person or entity for whom such other Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreementparty.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 12.6 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation termination or expiration of this the Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.as determined by a court of competent final jurisdiction. Transco and NMPC Engineering & Procurement Agreement - March 2020 EXECUTION VERSION
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Transco and NMPC Engineering & Procurement Agreement - March 2020 EXECUTION VERSION
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not not
(i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, liability for any and all federal, state or local taxes, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable any person or entity for whom Company Affiliate.
12.4 is legally responsible. The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 . Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney’s fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 . Neither Party shall be liable to the other Party for claims or damages for of lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 . Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder)party. For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation termination or expiration of this the Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 3 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Customer Expansion Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the any Work or the Customer Expansion Project., or (ii) any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated herein. Lake Placid Cost Reimbursement Agreement - February 2020
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The . To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Customer Expansion Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Lake Placid Cost Reimbursement Agreement - February 2020
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Customer Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the any Work or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Customer Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this AgreementAgreement within the 6 calendar months immediately preceding the applicable claim.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.as determined by a court of competent final jurisdiction. Effective Date: 3/18/2020 - Docket #: ER20-1584-000 - Page 27
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Effective Date: 3/18/2020 - Docket #: ER20-1584-000 - Page 29
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.as determined by a court of competent final jurisdiction. Service Agreement 2531
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Service Agreement 2531
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the Project, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by Company under this Agreement; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, any initial pre-payment amount paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 (a) To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an a “Company Indemnified Party” and, collectively, the “Company Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage or other damages (collectively, “Damages”), incurred by any Company Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Fish Passage Project, or any Work, except to the extent such Damages are directly caused by attributable to (x) the gross negligence, intentional misconduct misconduct, breach of this Agreement or unlawful act of the a Company Indemnified Party as determined by a court of competent jurisdiction, or (y) the subject matter of Customer’s indemnity set forth in Section 19.1 of this Agreement. Erie Blvd. Cost Reimbursement Agreement
(b) To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Company shall indemnify and hold harmless, and at Customer’s option, defend Customer, its contractors, parents and Affiliates and their respective officers, directors, members, managers, partners, employees, servants, agents, representativescontractors and representatives (each, individually, a “Customer Indemnified Party” and, collectively, the “Customer Indemnified Parties”), from and against any and all Damages incurred by any Customer Indemnified Party to the extent such Damages are attributable to the negligence, intentional misconduct, or employeesunlawful act of a Company Indemnified Party in connection with this Agreement, the Fish Passage Project, the Project, or any Company Work as determined by a court of competent jurisdiction, except to the extent such Damages are attributable to the negligence, intentional misconduct, breach of this Agreement or unlawful act of a Customer Indemnified Party as determined by a court of competent jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, the Company Indemnified Parties from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals Damages resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the any Work or the Fish Passage Project, or (ii) any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated herein.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.. Erie Blvd. Cost Reimbursement Agreement
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement., or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice. Erie Blvd. Cost Reimbursement Agreement
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.. Engineering & Procurement Agreement - NMPC/ATLANTIC WIND, LLC Q546
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance. Engineering & Procurement Agreement - NMPC/ATLANTIC WIND, LLC Q546
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 3 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 3 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-third- party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party Company or its contractors, officers, directors, servants, agents, representatives, any person or employeesentity for whom Company is legally responsible.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 12.4 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney’s fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not not
(i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 12.5 Neither Party shall be liable to the other Party for claims or damages for of lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreementparty.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 12.7 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation termination or expiration of this the Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff)law, Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, liability for any and all federal, state or local taxes, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party Company or its contractors, officers, directors, servants, agents, representatives, any person or employeesentity for whom Company is legally responsible.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 12.3 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ attorney’s fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 12.4 Neither Party shall be liable to the other Party for claims or damages for of lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.5 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreementparty.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 12.6 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation termination or expiration of this the Agreement.
Appears in 3 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.. Luther Forest Cost Reimbursement Agreement 11
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.. Luther Forest Cost Reimbursement Agreement 12
Appears in 2 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were Effective Date: 8/12/2019 - Docket #: ER20-37-000 - Page 24 reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Invenergy Alle Catt II Wind Project Engineering & Procurement Agreement August 2019 NYISO Agreements --> Service Agreements --> NMPC & Invenergy Wind - Engineering & Procurement Agreement
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.. Effective Date: 8/12/2019 - Docket #: ER20-37-000 - Page 26 Invenergy Alle Catt II Wind Project Engineering & Procurement Agreement August 2019 NYISO Agreements --> Service Agreements --> NMPC & Invenergy Wind - Engineering & Procurement Agreement
Appears in 2 contracts
Samples: Engineering & Procurement Agreement, Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Invenergy Alle Catt II Wind Project Engineering & Procurement Agreement August 2019
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.. Invenergy Alle Catt II Wind Project Engineering & Procurement Agreement August 2019
Appears in 2 contracts
Samples: E&p Agreement (Sa 2471), Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or Effective Date: 12/11/2020 - Docket #: ER21-778-000 - Page 27 judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties Transco and NMPC Reimbursement Agreement - December 2020 EXECUTION VERSION SERVICE AGREEMENT NO. 2590 for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Effective Date: 12/11/2020 - Docket #: ER21-778-000 - Page 29 Transco and NMPC Reimbursement Agreement - December 2020 EXECUTION VERSION SERVICE AGREEMENT NO. 2590
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 2 contracts
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer i) Landowner shall indemnify and hereby agrees to hold harmless, indemnify, protect, and at Company’s option, defend CompanyRangeland Trust, its parents and Affiliates and their respective contractors, officers, directors, servantsmembers, employees, contractors, legal representatives, agents, representatives, successors and employees assigns and each of them (each, individually, an “Indemnified Party” and, collectively, the “collectively "Rangeland Trust Indemnified Parties”), ") from and against any and all liabilities, damagespenalties, costs, losses, costsorders, expenses (includingliens, without limitationdamages, any and all reasonable attorneys' fees and disbursements)expenses, causes of action, suits, liens, claims, damagesdemands, penaltiesor judgments, obligationsincluding without limitation reasonable attorneys’ and experts’ fees, demands arising from or judgments in any way connected with: (a) injury to or the death of any natureperson, includingor physical damage to any property, without limitationresulting from any act, for deathomission, personal injury and property damagecondition or other matter related to or occurring on or about the Easement Area, economic damageregardless of cause, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party except to the extent caused by the negligence or willful misconduct of any of the Rangeland Trust Indemnified Parties; (ib) any breach of this Agreement by Customer, its Affiliates, third-party contractorsa violation of, or their respective other failure to comply with, any state, federal or local law, regulation or requirement, by Landowner, or any party other than one of the Rangeland Trust Indemnified Parties acting upon permission from Landowner, in any way affecting, involving or relating to the Easement Area; (c) the breach by Landowner of any of its obligations set forth in this Conservation Easement.
(ii) Rangeland Trust shall hold harmless, indemnify, and defend Landowner and its officers, directors, servantsemployees, contractors, legal representatives, agents, heirs, personal representatives, or employeessuccessors and assigns, and each of them (collectively “Landowner Indemnified Parties”) from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or (ii) judgments, including without limitation, reasonable attorneys’ and experts’ fees, arising from or in any way connected with any injury to or the negligencedeath of any person, unlawful act or physical damage to any property, resulting from any act, omission, or intentional misconduct of Customer, its Affiliates, third-party contractorscondition, or their respective officers, directors, servants, agents, representatives, and employees, arising out of other matter related to or in connection with this Agreement, occurring on or about the Project, or any Work, except Easement Area to the extent such Damages are directly caused by the gross negligence, intentional negligence or willful misconduct or unlawful act of any of the Rangeland Trust Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesParties.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 2 contracts
Samples: Deed of Agricultural Conservation Easement, Deed of Agricultural Conservation Easement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an a “Company Indemnified Party” and, collectively, the “Company Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage or other damages (collectively, “Damages”), incurred by any Company Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by attributable to (x) the gross negligence, intentional misconduct misconduct, breach of this Agreement or unlawful act of the a Company Indemnified Party or its contractors, officers, directors, servants, agents, representativesas determined by a court of competent jurisdiction, or employees(y) the subject matter of Developer’s indemnity set forth in Section 19.
12.2 Customer 1. To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Company shall defend, indemnify and save harmless Companyhold harmless, and at Developer’s option, defend Developer, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representativescontractors and representatives (each, and employeesindividually, a “Developer Indemnified Party” and, collectively, the “Developer Indemnified Parties”), from and against any and all liabilitiesDamages, lossesincurred by any Developer Indemnified Party to the extent such Damages are attributable to the negligence, costsintentional misconduct, counsel feesor unlawful act of a Company Indemnified Party in connection with this Agreement, expensesthe Project, damagesor any Company Work as determined by a court of competent jurisdiction, judgmentsexcept to the extent such Damages are attributable to the negligence, decrees intentional misconduct, breach of this Agreement or unlawful act of a Developer Indemnified Party as determined by a court of competent jurisdiction.
12.2 Without limiting the foregoing, Developer shall defend, indemnify and appeals save harmless the Company Indemnified Parties from and against any and all Damages resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of CustomerDeveloper’s contractors, subcontractors or suppliers in connection with the any Work or the Project, or (ii) any claim of trespass, or other similar cause of action arising from or are related to reliance upon or use of the New Line Property Rights by the Company Indemnified Parties for the purposes contemplated herein.
12.3 Customer Without limiting the foregoing, Developer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as (including, without limitation, the result cost consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) attributable to the payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), kind made under or otherwise, pursuant to the terms of this Agreement for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed be limited to the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither Anything in this Agreement to the contrary notwithstanding, neither Party shall be liable to the other Party (or to any Indemnified Party) for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, any such damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Anything in this Agreement to the contrary notwithstanding, neither Party shall be liable to the other Party (or to any Indemnified Party) for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Work), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this AgreementAgreement (provided that Company has made good faith efforts to reach agreement), or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to system reliability in accordance with Good Utility Practice. With respect to the foregoing subsection (e), however, Company agrees that it shall undertake commercially reasonable efforts to mitigate the impact of such suspension of Work.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 2 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Customer Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the any Work or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Customer Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 2 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of CustomerDeveloper’s contractors, subcontractors or suppliers in connection with any Work, the Work Developer Project or the Project.
12.3 Customer , or (ii) any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Property Rights by the Company or any other Indemnified Parties for the purposes contemplated herein. Without limiting the foregoing, Developer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.. Effective Date: 2/19/2019 - Docket #: ER19-1401-000 - Page 26 Cost Reimbursement Agreement - Greenway Conservancy for the Xxxxxx River Valley - Feb. 2019 NYISO Agreements --> Service Agreements --> CRA between NMPC and Greenway Conservancy for Xxxxxx River
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Effective Date: 2/19/2019 - Docket #: ER19-1401-000 - Page 28 Cost Reimbursement Agreement - Greenway Conservancy for the Xxxxxx River Valley - Feb. 2019 NYISO Agreements --> Service Agreements --> CRA between NMPC and Greenway Conservancy for Xxxxxx River
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any failure or inability of Developer to perform any of its obligations or responsibilities under the License Agreement or to otherwise comply with the terms and conditions thereof, (e) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (f) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 2 contracts
Samples: Cra, Service Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of CustomerDeveloper’s contractors, subcontractors or suppliers in connection with any Work, the Work Developer Project or the Project.
12.3 Customer , or (ii) any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Property Rights by the Company or any other Indemnified Parties for the purposes contemplated herein. Without limiting the foregoing, Developer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.. Cost Reimbursement Agreement - Greenway Conservancy for the Xxxxxx River Valley - Feb. 2019 Execution Version
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Cost Reimbursement Agreement - Greenway Conservancy for the Xxxxxx River Valley - Feb. 2019 Execution Version
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any failure or inability of Developer to perform any of its obligations or responsibilities under the License Agreement or to otherwise comply with the terms and conditions thereof, (e) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (f) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 2 contracts
Samples: Service Agreement, Service Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, Agreement or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the Work or the Projectthis Agreement.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice. 12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 2 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any the Indemnifying Party’s Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Indemnifying Party’s Work or the Project., except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees. Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the Effective Date: 8/18/2021 - Docket #: ER21-2894-000 - Page 25 New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated by this Agreement. 12465314.8 6/24/2021
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Company Work; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, the Initial Prepayment paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such Effective Date: 8/18/2021 - Docket #: ER21-2894-000 - Page 27 failure or inability is caused by the acts or negligent or unlawful omissions of the other Party (including any contractor of such Party or any person or entity for 12465314.8 6/24/2021 whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.9 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s or Company’s insurance.
12.9 12.10 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 2 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. DWT 29559604v3 0089555-000048
12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer a Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the Project, except to the extent such Liens are caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.. DWT 29559604v3 0089555-000048
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by Company under this Agreement; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, any initial pre-payment amount paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not not
(i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). DWT 29559604v3 0089555-000048
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 2 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, Agreement or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the Work or the Projectthis Agreement.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.. Northbrook Xxxxx Falls Cost Reimbursement Agreement
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement., or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice. Northbrook Xxxxx Falls Cost Reimbursement Agreement
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 2 contracts
Samples: Cost Reimbursement Agreement, Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Engineering & Procurement Agreement - NMPC/KCE NY 6, LLC Q759
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.. Engineering & Procurement Agreement - NMPC/KCE NY 6, LLC Q759
Appears in 1 contract
Samples: Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party Party, to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of the Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made actually paid to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.[Reserved]
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.[Reserved]
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer a Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the Project, except to the extent such Liens are caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by Company under this Agreement; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, any initial pre-payment amount paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were Effective Date: 11/24/2020 - Docket #: ER21-613-000 - Page 23 reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Engineering & Procurement Agreement - NMPC/KCE NY 6, LLC Q759
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.. Effective Date: 11/24/2020 - Docket #: ER21-613-000 - Page 25
Appears in 1 contract
Samples: Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.[Reserved]
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.[Reserved]
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Effective Date: 9/25/2019 - Docket #: ER20-178-000 - Page 26 NMPC/O’Brien and Xxxx Cost Reimbursement Agreement dated as of September 25th 2019 NYISO Agreements --> Service Agreements --> Cost Reimbursement Agreement NMPC and XXxxxx and Xxxx EXECUTION VERSION
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.. Effective Date: 9/25/2019 - Docket #: ER20-178-000 - Page 28 NMPC/O’Brien and Xxxx Cost Reimbursement Agreement dated as of September 25th 2019 NYISO Agreements --> Service Agreements --> Cost Reimbursement Agreement NMPC and XXxxxx and Xxxx EXECUTION VERSION
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Customer Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the any Work or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Customer Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this AgreementAgreement within the 6 calendar months immediately preceding the applicable claim.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the any Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments (including the Initial Prepayment and any Additional Prepayments) made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.. SA 2568
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Agreement (including, without limitation, conditions of or at the SiteDeveloper Required Actions), delays in shipments of materials and equipment and the unavailability of materials)(b) subject to Article 23.0, any Force Majeure Event, (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during such times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance. SA 2568
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were Effective Date: 7/12/2023 - Docket #: ER23-2496-000 - Page 19 reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 1 contract
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer a Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Work or the Project, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Work to be performed by Company under this Agreement; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, any initial pre-payment amount paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not not
(i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions negligence of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 1 contract
Samples: Service Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments 12465314.8 6/24/2021 of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any the Indemnifying Party’s Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Indemnifying Party’s Work or the Project, except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees. Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated by this Agreement.
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
. 12465314.8 6/24/2021 12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Party shall be liable . Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to the other Party Customer and its Affiliates for consequentialall claims of any kind, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims whether based on causes of action for breach of upon contract, tort (including negligencenegligence and strict liability), or otherwise, for any other theory loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of recovery, whether or not (i) such damages were reasonably foreseeable the total estimated costs of the Company Work; or (iib) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable total of all Company Reimbursable Costs actually paid to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in Company by Customer under this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder)Agreement. For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability the Initial Prepayment paid by Customer to Company under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical included in the estimated and actual costs in determining the cumulative liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Partyabove.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, Agreement or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the Work or the Projectthis Agreement.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.. Northbrook Xxxxx Falls Cost Reimbursement Agreement
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party shall indemnify and hold harmless, and at Companythe other Party’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party Party, to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe a Party, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customera Party’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Except for Company’s indemnification obligations in this Section 12.1 and 12.2, to the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made actually paid to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.. Cost Reimbursement Agreement - NMPC / Westfield - May 2023
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement., or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice. Cost Reimbursement Agreement - NMPC / Westfield - May 2023
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of CustomerDeveloper’s contractors, subcontractors or suppliers in connection with any Work, the Work Developer Project or the Project.
12.3 Customer , or (ii) any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Property Rights by the Company or any other Indemnified Parties for the purposes contemplated herein. Without limiting the foregoing, Developer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any failure or inability of Developer to perform any of its obligations or responsibilities under the License Agreement or to otherwise comply with the terms and conditions thereof, (e) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (f) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were Effective Date: 8/12/2019 - Docket #: ER20-37-000 - Page 24 reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Invenergy Alle Catt II Wind Project Engineering & Procurement Agreement August 2019 New York Independent System Operator, Inc. - NYISO Agreements - Service Agreements - NMPC & Invenergy Wind - Engineering & Procurement Agreement
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.. Effective Date: 8/12/2019 - Docket #: ER20-37-000 - Page 26 Invenergy Alle Catt II Wind Project Engineering & Procurement Agreement August 2019 New York Independent System Operator, Inc. - NYISO Agreements - Service Agreements - NMPC & Invenergy Wind - Engineering & Procurement Agreement
Appears in 1 contract
Samples: Engineering & Procurement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer each Party (the “Indemnifying Party”) shall indemnify and hold harmless, and at Company’s option, defend Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' ’ fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customerthe Indemnifying Party, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any the Indemnifying Party’s Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer Each Party shall defend, indemnify and save harmless Companythe other Party, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien (collectively, “Liens”) asserted by any of Customerthe Indemnifying Party’s subcontractors or suppliers in connection with the Indemnifying Party’s Work or the Project., except to the extent such Liens are directly caused by the negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees. Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated by this Agreement. 12465314.8 6/24/2021
12.3 Customer shall also protectdefend, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Prior to the start of construction activities hereunder by Company, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the aggregate amount total of all payments made Company Reimbursable Costs actually paid to Company by Customer as under this Agreement. Following commencement of construction activities by Company hereunder, Company’s total cumulative liability to Customer and its Affiliates for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall be capped at an amount not to exceed the greater of: (a) fifty percent (50%) of the total estimated costs of the Company Work; or (b) the total of all Company Reimbursable Costs actually paid to Company by Customer under this Agreement. For the avoidance of doubt, the Initial Prepayment paid by Customer to Company under this Agreement shall be included in the estimated and actual costs in determining the cumulative liability cap above.
12.5 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Notwithstanding any other provision contained in this Agreement, neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or negligent or unlawful omissions of the other Party (including any contractor of such Party or any person or entity for 12465314.8 6/24/2021 whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). .
12.8 For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of results from (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Sitesite of the Work, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.9 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s or Company’s insurance.
12.9 12.10 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not Effective Date: 5/3/2023 - Docket #: ER23-2045-000 - Page 23 exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.. Cost Reimbursement Agreement - NMPC / Westfield - May 2023
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice. 12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, Agreement or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the Work or the Projectthis Agreement.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project Agreement or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party Party, to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of the Customer, its Affiliatesparents or affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with any Work, the Work Project or the Customer Project.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.. Effective Date: 3/1/2019 - Docket #: ER19-1468-000 - Page 26 Cost Reimbursement Agreement 2/27/2019 New York Independent System Operator, Inc. - NYISO Agreements - Service Agreements - Cost Reimbursement Agreement (SA 2448) between NMPC and NYPA
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made actually paid to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Effective Date: 3/1/2019 - Docket #: ER19-1468-000 - Page 28 Cost Reimbursement Agreement 2/27/2019 New York Independent System Operator, Inc. - NYISO Agreements - Service Agreements - Cost Reimbursement Agreement (SA 2448) between NMPC and NYPA
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 (a) To the fullest extent permitted by applicable law (including, without limitationlaw, the applicable provisions Manager, the Special Manager, the employees, agents and attorneys of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend the Company, its parents each Member, each Member's, the Manager's and Affiliates each Special Manager's respective Affiliates, and their respective contractorsstockholders, directors, officers, directorsemployees, servants, agents, representatives, attorneys and employees agents and the officers of the Company (each, individually, an “Indemnified Party” and, collectively, "Indemnitee") shall each be indemnified and held harmless by the “Indemnified Parties”), Company from and against any and all liabilities, damages, losses, costspenalties, fines, settlement payments, obligations, liabilities, claims, actions and causes of action (actual or threatened, matured or unmatured, known or unknown, contingent or otherwise) and costs and expenses (includingsuffered, sustained, incurred or required to be paid by any Indemnitee, including without limitation, any costs of investigation and all reasonable attorneys' or experts' fees and disbursements), causes of action, suits, liens, based upon or arising from any and all claims, damagesdemands, penaltiesactions, obligationssuits or proceedings, demands civil, criminal, administrative or judgments investigative which arise primarily out of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party or relate primarily to the extent caused by operations of the Company after the date hereof, in which the Indemnitee may be involved, or threatened to be involved, as a party, irrespective of whether the Indemnitee continues to be the Manager, the Special Manager, or an employee, agent or attorney of the Company or a Member or an Affiliate, stockholder, employee, servant, attorney or agent of a Member or of the Manager or Special Manager or an officer of the Company at the time any such obligation, liability or expense is paid or incurred, if (i) the Indemnitee acted in good faith and in a manner it reasonably believed to be in, or not opposed to, the best interests of the Company, and, with respect to any breach criminal proceeding, had no reasonable cause to believe its conduct was unlawful, and (ii) the Indemnitee's conduct did not constitute fraud, gross negligence or willful or wanton misconduct. The termination of this Agreement by Customer, its Affiliates, any third-party contractorsaction, suit or proceeding by order, settlement, or their respective officers, directors, servants, agents, representativesupon a plea of nolo contendere, or employeesits equivalent, shall not, of itself, create a presumption that the Indemnitee acted in a manner contrary to that specified in clauses (i) or (ii) above.
(b) To the negligencefullest extent permitted by applicable law, unlawful act reasonable expenses (including attorneys' and experts' fees and disbursements) incurred by an Indemnitee in defending any claim, demand, action, suit or omissionproceeding subject to this Section shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Indemnitee to repay such amount unless it shall be determined that such person is not entitled to be indemnified as authorized in this Section.
(c) The indemnification provided by this Section shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, vote of the Members, as a matter law or otherwise, both as to action in the Indemnitee's capacity as the Manager or Special Manager or an employee, agent or attorney of the Company, a Member, an Affiliate, stockholder, director, officer, employee, servant, attorney or agent of the Manager or Special Manager or a Member or as officer of the Company, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representativesin any other capacity, and employeesshall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, arising successors, assigns and administrators of such Indemnitee.
(d) All indemnifications set forth in this Section 3.5 shall be paid out of or in connection with this Agreementof, and shall be limited to, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act assets of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates shall otherwise be non-recourse as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company AffiliateMember.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.
Appears in 1 contract
Samples: Partnership Agreements (Shelbourne Properties I Inc)
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.[Reserved]
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.[Reserved]
12.4 The To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.. Effective Date: 9/25/2019 - Docket #: ER20-178-000 - Page 26 NMPC/O’Brien and Xxxx Cost Reimbursement Agreement dated as of September 25th 2019 New York Independent System Operator, Inc. - NYISO Agreements - Service Agreements - Cost Reimbursement Agreement NMPC and XXxxxx and Xxxx EXECUTION VERSION
12.6 Neither Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of of
(a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.. Effective Date: 9/25/2019 - Docket #: ER20-178-000 - Page 28 NMPC/O’Brien and Xxxx Cost Reimbursement Agreement dated as of September 25th 2019 New York Independent System Operator, Inc. - NYISO Agreements - Service Agreements - Cost Reimbursement Agreement NMPC and XXxxxx and Xxxx EXECUTION VERSION
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, economic damage, and claims brought by third parties for personal injury and/or property damage (collectively, “Damages”), incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any Work, except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employees.
12.2 Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates as the result of payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.. Luther Forest Cost Reimbursement Agreement 11 NYISO Agreements --> Service Agreements --> Cost Reimbursement Agrmnt 2056 btwn NYSEG and Niagara Mohawk
12.5 Neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not not
(i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither Party shall be liable to the other Party for claims or damages for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, shall have any responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party under this Agreement, (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement.
12.8 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party.
12.9 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation or expiration of this Agreement.. Luther Forest Cost Reimbursement Agreement 12 NYISO Agreements --> Service Agreements --> Cost Reimbursement Agrmnt 2056 btwn NYSEG and Niagara Mohawk
Appears in 1 contract
Samples: Cost Reimbursement Agreement
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer Developer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Customer Without limiting the foregoing, Developer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, servants, agents, representatives, and employees, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s subcontractors or suppliers in connection with the Work or the Project.
12.3 Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The 12.3 To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer Developer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were Effective Date: 7/12/2023 - Docket #: ER23-2496-000 - Page 18 reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 and 12.2, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Developer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Developer under this AgreementAgreement (including, without limitation, the Developer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Site, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer Developer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Developer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the terminationcompletion, cancellation expiration or expiration earlier termination of this Agreement.
Appears in 1 contract
Liability and Indemnification. 12.1 To the fullest extent permitted by applicable law (including, without limitation, the applicable provisions of any governing federal or state tariff), Customer shall indemnify and hold harmless, and at Company’s option, defend Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees, servants, agents, representatives, contractors and employees representatives (each, individually, an “Indemnified Party” and, collectively, the “Indemnified Parties”), from and against any and all liabilities, damages, losses, costs, expenses (including, without limitation, any and all reasonable attorneys' fees and disbursements), causes of action, suits, liens, claims, damages, penalties, obligations, demands or judgments of any nature, including, without limitation, for death, personal injury and property damage, for economic damage, and for claims brought by third parties for personal injury and/or injury, property damage (collectively, “Damages”)or other damages, incurred by any Indemnified Party to the extent caused by (i) any breach of this Agreement by Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, or employees, or (ii) the negligence, unlawful act or omission, or intentional misconduct of Customer, its Affiliates, third-party contractors, or their respective officers, directors, servants, agents, representatives, and employees, arising out of or in connection with this Agreement, the Customer Expansion Project, or any WorkWork (collectively, “Damages”), except to the extent such Damages are directly caused by the gross negligence, intentional misconduct or unlawful act of the Indemnified Party or its contractors, officers, directors, servants, agents, representatives, or employeesas determined by a court of competent final jurisdiction.
12.2 Without limiting the foregoing, Customer shall defend, indemnify and save harmless Company, its parents and Affiliates and their respective contractors, officers, directors, members, managers, partners, employees servants, agents, representativescontractors, and employeesrepresentatives, from and against any and all liabilities, losses, costs, counsel fees, expenses, damages, judgments, decrees and appeals resulting from (i) any charge or encumbrance in the nature of a laborer’s, mechanic’s or materialman’s lien asserted by any of Customer’s contractors, subcontractors or suppliers in connection with the any Work or the Customer Expansion Project, or (ii) any claim of trespass, or other third party cause of action arising from or are related to reliance upon or use of the New Facilities Property Rights by the Company or any other Indemnified Parties for the purposes contemplated herein.
12.3 Without limiting the foregoing, Customer shall also protect, indemnify and hold harmless the Company and its Affiliates from and against the cost consequences of any tax liability imposed against or on Company and/or its Affiliates (including, without limitation, the costs consequences of any tax liabilities resulting from a change in applicable law or from an audit determination by the IRS) as the result of or attributable to payments, and/or real or personal property transfers, made in connection with this Agreement, as well as any related interest and penalties, other than interest and penalties attributable to any delay directly caused by Company or the applicable Company Affiliate.
12.4 The . To the fullest extent permitted by applicable law, the Company’s total cumulative liability to Customer for all claims of any kind, whether based upon contract, tort (including negligence and strict liability), or otherwise, for any loss, injury, or damage connected with, or resulting from, this Agreement, the Customer Expansion Project or the Work, shall not exceed the aggregate amount of all payments made to Company by Customer as Company Reimbursable Costs under this Agreement.
12.5 Neither 12.4 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for consequential, indirect, special, incidental, multiple, or punitive damages (including, without limitation, attorneys’ fees or litigation costs) in connection with or related to this Agreement, including, without limitation, damage claims based on causes of action for breach of contract, tort (including negligence), or any other theory of recovery, whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.6 Neither 12.5 Subject to the obligations set forth in Sections 12.1 through 12.3, neither Party shall be liable to the other Party for claims or damages in connection with or related to this Agreement for lost profits, delays, loss of use, business interruption, or claims of customers, whether such claims are categorized as direct or consequential damages, or whatever the theory of recovery, and whether or not (i) such damages were reasonably foreseeable or (ii) the Parties were advised or aware that such damages might be incurred.
12.7 12.6 Anything in this Agreement to the contrary notwithstanding, neither Party shall be responsible for any failure or inability to perform hereunder to the extent such failure or inability is caused by the acts or omissions of the other Party (including any contractor of such Party or any person or entity for whom such Party is legally responsible) or of any third party (other than a subcontractor of the Party that is unable or failing to perform hereunder). For the avoidance of doubt: neither Party, as applicable, Company shall have any no responsibility or liability under this Agreement for any delay in performance or nonperformance to the extent such delay in performance or nonperformance is caused by or as a result of (a) the inability or failure of the other Party Customer or its contractors to cooperate or to perform any tasks or responsibilities contemplated to be performed or undertaken by such other Party Customer under this AgreementAgreement (including, without limitation, the Customer Required Actions), (b) any unforeseen conditions or occurrences beyond the reasonable control of the Party Company (including, without limitation, conditions of or at the Sitesite(s) where Work is or will be performed, delays in shipments of materials and equipment and the unavailability of materials), (c) the inability or failure of Customer and Company to reach agreement on any matter requiring their mutual agreement under the terms of this Agreement, or (d) any valid order or ruling by any governmental agency or authority having jurisdiction over the subject matter of this Agreement, or (e) suspension of Work during peak demand periods or such other times as may be reasonably required to minimize or avoid risks to utility system reliability in accordance with Good Utility Practice.
12.8 12.7 Anything in this Agreement to the contrary notwithstanding, if any Party’s liability in connection with this Agreement is limited or capped pursuant to any applicable law, statute, rule or regulation, then the other Party hereto shall be entitled to elect an identical liability limitation and/or cap as if such law, statute, rule or regulation were applicable to such Party. The obligations under this Article shall not be limited in any way by any limitation on Customer’s insurance.
12.9 12.8 Notwithstanding any other provision of this Agreement, this Article shall survive the termination, cancellation cancellation, completion or expiration of this Agreement.
Appears in 1 contract
Samples: Cost Reimbursement Agreement
