Common use of Liability & Indemnity Clause in Contracts

Liability & Indemnity. 4.1 Licensee hereby assumes risk of and agrees to indemnify, defend, protect and save the Railroad Indemnitees harmless from and against (a) injury to or death of any person or persons whomsoever, including but not limited to the agents, employees or contractor(s) of the parties hereto, and (b) the loss or damage to any property whatsoever, including property claims, demands, suits, judgments or expenses incurred in connection therewith, resulting from or arising out of the acts or omissions of Licensee, its agents, employees or contractor(s), or resulting from, arising out of, or occurring in connection with the entry or presence of Licensee, its agents, employees or contractor(s) on the Property, or resulting from, arising out of, or occurring in connection with the performance or execution of the Work performed under this Agreement or incidental thereto, regardless of any negligence on the part of Licensee or Railroad. THE INDEMNITY PROVIDED IN THIS SECTION 4 IS SPECIFICALLY MEANT TO INCLUDE INDEMNITY OF THE RAILROAD INDEMNITEES FOR THEIR OWN ORDINARY NEGLIGENCE, EVEN IF THE INJURY OR DAMAGE IS CAUSED ENTIRELY BY THE ORDINARY NEGLIGENCE OF THE RAILROAD INDEMNITEES AND THERE IS NO NEGLIGENCE ON THE PART OF THE LICENSEE. LICENSEE’S INDEMNITY OBLIGATIONS IN THIS SECTION 4 SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS AVAILABLE UNDER WORKERS’ OR WORKMEN’S COMPENSATION ACTS, DISABILITY ACTS OR EMPLOYEE BENEFITS ACTS. 4.2 IN NO EVENT UNDER THIS AGREEMENT WILL THE RAILROAD INDEMNITEES HAVE ANY LIABILITY FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. ADDITIONALLY, THE TERM “RAILROAD INDEMNITEES” AS USED IN THIS SECTION 4 SHALL INCLUDE ANY OTHER RAILROAD COMPANY THAT MAY BE LAWFULLY OPERATING UPON AND OVER THE TRACKS OR THE TRACKS CROSSING OR ADJACENT TO THE TRACKS, AND THE OFFICERS, AGENTS, INVITEES AND EMPLOYEES THEREOF.

Liability & Indemnity. 4.1 Licensee hereby assumes risk The Advisor is not and never shall be liable to any creditor of and agrees to indemnify, defend, protect and save the Railroad Indemnitees harmless from and against (a) injury to or death of any person or persons whomsoever, including but not limited Trust. In addition to the agentscompensation and expenses that the Trust has agreed to pay for the services to be performed pursuant to this Agreement, employees the Trust agrees: (i) to indemnify and hold the Advisor (which term for the purposes of this Agreement includes its controlling persons, members, directors, officers, employees, agents and representatives) harmless against and from all losses, claims, damages or contractor(s) liabilities, joint or several (and all action, claims, proceeds and investigations in respect thereof), to which the Advisor may become subject in connection with its performance of the parties heretoservices described in this Agreement, (ii) that the Advisor will not be culpable for and will have no liability to the Trust for or with respect to any and all losses, claims, damages or liabilities, joint or several, of the Trust incurred in connection with the Advisor’s performance of the services described in this Agreement, and (biii) in each case, to reimburse the loss Advisor for all reasonable legal and other out-of-pocket expenses (including the cost of investigation and preparation) as and when incurred by the Advisor arising out of or damage to in connection with any property whatsoeveraction, including property claimsclaim, demands, suits, judgments proceeding or expenses incurred investigation (whether initiated or conducted by the Trust or any other party) in connection therewith, whether or not resulting from in any liability (and whether or arising out not the Advisor is a defendant in, or target of, any such action, claim, proceeding or investigation); provided, however, that the Trust shall not be liable to the Advisor pursuant to clauses (i) and (iii) above and the Trust’s exculpation of the acts Advisor pursuant to clause (ii) above shall not apply in any such case to the extent that any such loss, claim, damage or omissions liability is found in a final judgment by a court of Licenseecompetent jurisdiction to have resulted from the gross negligence, its agentsbad faith or willful misconduct of the Advisor or any other indemnified person hereunder or a material breach of this Agreement, employees in which case any amounts paid and any expenses reimbursed under clause (iii) above shall be refunded. If for any reason the foregoing indemnification (including reimbursement pursuant to clause (iii) above) or contractor(sthe exculpation is unavailable to the Advisor or insufficient to hold it harmless (other than by reason of the proviso to the preceding sentence), then the Trust shall contribute to the amount paid or resulting frompayable by the Advisor as a result of such loss, arising out ofclaim, damage or occurring liability in connection such proportion as is appropriate to reflect not only the relative benefits received by the Trust on the one hand and the Advisor on the other hand but also the relative fault of the Trust and the Advisor as well as any relevant equitable considerations, provided that, in no event, will the Advisor’s aggregate contribution hereunder exceed the amount of compensation actually received by the Advisor pursuant to this Agreement. The indemnity, exculpation, reimbursement and contribution obligations of the Trust under this paragraph shall be paid pursuant to and in accordance with the entry or presence of Licensee, its agents, employees or contractor(spriorities set forth in Section 8.02(d)(16) on the Property, or resulting from, arising out of, or occurring in connection with the performance or execution of the Work performed under Indenture and shall be in addition to any liability which the Trust may otherwise have, shall survive any termination of this Agreement or incidental thereto, regardless and shall be binding upon and extend to the benefit of any negligence on successors, assigns and representatives of the part of Licensee or Railroad. THE INDEMNITY PROVIDED IN THIS SECTION 4 IS SPECIFICALLY MEANT TO INCLUDE INDEMNITY OF THE RAILROAD INDEMNITEES FOR THEIR OWN ORDINARY NEGLIGENCE, EVEN IF THE INJURY OR DAMAGE IS CAUSED ENTIRELY BY THE ORDINARY NEGLIGENCE OF THE RAILROAD INDEMNITEES AND THERE IS NO NEGLIGENCE ON THE PART OF THE LICENSEE. LICENSEE’S INDEMNITY OBLIGATIONS IN THIS SECTION 4 SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS AVAILABLE UNDER WORKERS’ OR WORKMEN’S COMPENSATION ACTS, DISABILITY ACTS OR EMPLOYEE BENEFITS ACTSTrust and the Advisor. 4.2 IN NO EVENT UNDER THIS AGREEMENT WILL THE RAILROAD INDEMNITEES HAVE ANY LIABILITY FOR INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES. ADDITIONALLY, THE TERM “RAILROAD INDEMNITEES” AS USED IN THIS SECTION 4 SHALL INCLUDE ANY OTHER RAILROAD COMPANY THAT MAY BE LAWFULLY OPERATING UPON AND OVER THE TRACKS OR THE TRACKS CROSSING OR ADJACENT TO THE TRACKS, AND THE OFFICERS, AGENTS, INVITEES AND EMPLOYEES THEREOF.

Liability & Indemnity. 4.1 Licensee hereby assumes risk of 11.1. The Buyer shall be responsible for and agrees to indemnify, shall defend, protect indemnify and save the Railroad Indemnitees hold harmless CTS, its servants, agents and subcontractors from and against all claims, losses, damages, costs (a) including reasonable legal costs), expenses and liabilities of every kind or nature in respect of the personal injury to or death of any person personnel or persons whomsoever, including but not limited third party and/or damage to third party property resulting from the agents, employees negligence or contractor(s) wilful misconduct of the parties heretoBuyer, and (b) the loss its servants, agents or sub-contractors under this Agreement. 11.2. CTS shall not be liable for any loss, destruction or damage to Buyer’s property, including any property whatsoever, including property claims, demands, suits, judgments or expenses incurred in connection therewith, resulting from or arising out which may be the subject of the acts order unless and then only to the extent that such loss, destruction or omissions damage is a direct result of Licensee, its agents, employees or contractor(s), or resulting from, arising out of, or occurring in connection with the entry or presence of Licensee, its agents, employees or contractor(s) on the Property, or resulting from, arising out of, or occurring in connection with the performance or execution of the Work performed under this Agreement or incidental thereto, regardless of any negligence on the part of Licensee or Railroad. THE INDEMNITY PROVIDED IN THIS SECTION 4 IS SPECIFICALLY MEANT TO INCLUDE INDEMNITY OF THE RAILROAD INDEMNITEES FOR THEIR OWN ORDINARY NEGLIGENCE, EVEN IF THE INJURY OR DAMAGE IS CAUSED ENTIRELY BY THE ORDINARY NEGLIGENCE OF THE RAILROAD INDEMNITEES AND THERE IS NO NEGLIGENCE ON THE PART OF THE LICENSEE. LICENSEE’S INDEMNITY OBLIGATIONS IN THIS SECTION 4 SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS AVAILABLE UNDER WORKERSCTS’ OR WORKMEN’S COMPENSATION ACTS, DISABILITY ACTS OR EMPLOYEE BENEFITS ACTSwilful misconduct. 4.2 11.3. IN NO EVENT UNDER THIS AGREEMENT WILL THE RAILROAD INDEMNITEES HAVE ANY LIABILITY SHALL CTS BE LIABLE FOR INDIRECT, SPECIAL, PUNITIVECONSEQUENTIAL, INCIDENTAL MULTIPLE OR PUNITIVE DAMAGES OR ANY DAMAGE DEEMED TO BE OF AN INDIRECT OR CONSEQUENTIAL DAMAGESNATURE ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THIS AGREEMENT, WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, INDEMNITY, NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT OR CIVIL LAW OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY. 11.4. ADDITIONALLYIN NO EVENT SHALL THE TOTAL CUMULATIVE LIABILITY OF CTS OR ITS SUBCONTRACTORS OR SUPPLIERS OF ANY TIER FOR THE PERFORMANCE OR BREACH OF THIS AGREEMENT OR ANYTHING DONE IN CONNECTION THEREWITH EXCEED THE PRICE PAYABLE FOR THE PRODUCT. 11.5. In the event that this limitation of liability conflicts with any other provisions of this Agreement, THE TERM “RAILROAD INDEMNITEES” AS USED IN THIS SECTION 4 SHALL INCLUDE ANY OTHER RAILROAD COMPANY THAT MAY BE LAWFULLY OPERATING UPON AND OVER THE TRACKS OR THE TRACKS CROSSING OR ADJACENT TO THE TRACKS, AND THE OFFICERS, AGENTS, INVITEES AND EMPLOYEES THEREOFsaid provision shall be regarded as amended to whatever extent is required to make such provisions consistent with this provision. 11.6. Nothing in this clause shall exclude or limit either Party’s liability to each other for death or personal injury; or fraud or fraudulent misrepresentation or any other liability which cannot be excluded or limited at law.

Liability & Indemnity. 4.1 Licensee hereby assumes risk of and agrees 9.1 Our liability to indemnifyyou for any loss, defendcost, protect and save the Railroad Indemnitees harmless from and against damage, expense or other liability, whether in contract (a) injury to or death of any person or persons whomsoever, including but not limited to the agents, employees or contractor(s) of the parties hereto, and (b) the loss or damage to any property whatsoever, including property claims, demands, suits, judgments or expenses incurred in connection therewith, resulting from or arising out of the acts or omissions of Licensee, its agents, employees or contractor(sunder an indemnity), tort (including negligence), under statute or resulting from, otherwise ("Liability") arising out of, as a result of or occurring in connection with the entry or presence of Licensee, its agents, employees or contractor(s) on the Property, or resulting from, arising out of, or occurring in connection with the performance or execution of Services in respect of a particular Contract Year is limited in the aggregate to an amount equal to all Service Fees paid by you to us in respect of the Work performed relevant Contract Year, less all Service Credits recoverable by you under this Agreement (or incidental theretowhich would have been recoverable in the absence of clause 5.3) during that Contract Year 9.2 Subject to Clause 9.3, regardless to the maximum extent permitted by law we exclude all Liability: (a) for any failure to perform the Services in accordance with the requirements of this Agreement where such failure occurs in relation to an aspect of the Services which we have proposed be upgraded or changed (without charge to you) but you have unreasonably withheld or delayed agreement to such requested upgrade or change; (b) in respect of any negligence claim where the claim has not been notified by you to us in writing within six (6) calendar months of the date of the earliest act or omission giving rise to the claim; (c) for any consequential, indirect or special damages, or any loss of profits, loss of revenue, loss of data, loss or business opportunities, loss of or damage to goodwill or reputation or loss or damage suffered as a result of claims by any third person (including a customer of yours), arising out of or in connection with this Agreement, whether in contract, tort, statute in equity or otherwise, even if we knew they were possible or they were otherwise foreseeable; (d) to the extent arising from any software or other material provided to us by or on behalf of you; and (e) to the part extent caused or contributed to by your negligence, breach of Licensee contract or Railroad. THE INDEMNITY PROVIDED IN THIS SECTION 4 IS SPECIFICALLY MEANT TO INCLUDE INDEMNITY OF THE RAILROAD INDEMNITEES FOR THEIR OWN ORDINARY NEGLIGENCE, EVEN IF THE INJURY OR DAMAGE IS CAUSED ENTIRELY BY THE ORDINARY NEGLIGENCE OF THE RAILROAD INDEMNITEES AND THERE IS NO NEGLIGENCE ON THE PART OF THE LICENSEE. LICENSEE’S INDEMNITY OBLIGATIONS IN THIS SECTION 4 SHALL NOT BE LIMITED IN ANY WAY BY ANY LIMITATION ON THE AMOUNT OR TYPE OF DAMAGES, COMPENSATION OR BENEFITS AVAILABLE UNDER WORKERS’ OR WORKMEN’S COMPENSATION ACTS, DISABILITY ACTS OR EMPLOYEE BENEFITS ACTSother wrongful acts or omissions. 4.2 IN NO EVENT UNDER THIS AGREEMENT WILL THE RAILROAD INDEMNITEES HAVE ANY LIABILITY FOR INDIRECT9.3 Except as expressly provided by this Agreement, SPECIALwe make no warranty to any person in relation to any goods or services provided under this Agreement. All conditions, PUNITIVEwarranties and terms which would in the absence of this clause 9.3 be implied into this Agreement by statute, INCIDENTAL OR CONSEQUENTIAL DAMAGESgeneral law, or custom are excluded, provided that we do not exclude any implied condition or warranty the exclusion of which would contravene any statute (including the Competition and Consumer Act 2010 (Cth)) or cause this clause to be void (“Non-excludable Condition”). ADDITIONALLYTo the maximum extent permitted by law, THE TERM “RAILROAD INDEMNITEES” AS USED IN THIS SECTION 4 SHALL INCLUDE ANY OTHER RAILROAD COMPANY THAT MAY BE LAWFULLY OPERATING UPON AND OVER THE TRACKS OR THE TRACKS CROSSING OR ADJACENT TO THE TRACKSour liability in respect of a Non-excludable Condition is limited at our sole option: (a) in the case of goods to either replacement of the goods; or correction of defects in the goods; and (b) in the case of services to either re-supply of the services; or the cost of the re-supply of the services. 9.4 Other than in respect of the Non-excludable Conditions, AND THE OFFICERSthe benefit of any warranty shall not be available to you while any amount payable under this Agreement remains unpaid and in respect of which no dispute notification has been received by us under this Agreement. 9.5 You indemnify us from and against any actions, AGENTSclaims, INVITEES AND EMPLOYEES THEREOFlosses, damages, costs, expenses and other liabilities which we may suffer, incur or sustain (including reimbursement for legal fees on an indemnity basis) in connection with: (a) third party claims for breach of any Law (including breach of your obligations under the Privacy Act 1988 (Cth) or the Spam Act 2003 (Cth)), or infringement of any rights of any person (including any infringement of Intellectual Property Rights, passing off, defamation or breach of confidence) arising out of or in connection with the Client Data or your use of the Services; (b) your acts and omissions, or those of your agent or contractor relating to those parts of the Services for which you are responsible as defined under a SOF including software, components or tools installed by you or at your direction or request; (c) the performance of any non-standard procedure, installation of any non-standard component or object, or the provision of any other non-standard service at your request. We reserve the right to refuse your request for the non-standard service, however, if we do agree to carry out your request, we will do so with reasonable care. (d) death and injury to any person or damage to any tangible property caused by or arising from your negligent or wrongful act or omission, or those of your employees or contractors (other than us).