Common use of Limitation of Liability For Consequential Damages Clause in Contracts

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in the Contract Documents, including this Section 12.6, to the extent permitted by applicable Law, neither party shall be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party hereby releases the other party from any such liability. 12.6.2 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages in accordance with Section 12.4 or any other provision of the CMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Maintenance Agreement by Maintenance Contractor that occurs prior to the end of the term of the Capital Maintenance Agreement, subject to a cap in the amount of $1,000,000.

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in 12.7.1 Notwithstanding any other provision of the Contract COMA Documents, including this Section 12.6, to the extent permitted by applicable Law, neither party under no circumstances shall TxDOT be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Comprehensive Maintenance Agreement, tort (including negligence) or any other theory of liability, and Maintenance Contractor hereby releases TxDOT from any such liability. 12.7.2 Notwithstanding any other provision of the COMA Documents and except as set forth in this Section 12.7.2 and in Section 12.7.3, to the extent permitted by applicable Law, Maintenance Contractor shall not be liable to TxDOT for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Comprehensive Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party TxDOT hereby releases the other party Maintenance Contractor from any such liability. 12.6.2 12.7.3 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Contractor- Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Contractor-Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA COMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages owing under Section 5.4.7 or 5.4.8, Noncompliance Charges in accordance with Section 12.4 12.3, Lane Rental Charges in accordance with Section 12.5, or damages owing under any other provision of the CMA COMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Comprehensive Maintenance Agreement by Maintenance Contractor that occurs prior to the end of the term of the Capital Comprehensive Maintenance Agreement, subject to a cap in the amount of $1,000,000.

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in Notwithstanding any other provision of the Contract Documents, including Documents and except as set forth in this Section 12.612.6.1 and in Section 12.6.2, to the extent permitted by applicable Law, neither party shall be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Comprehensive Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party hereby releases the other party from any such liability. 12.6.2 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Texas Department of Transportation Loop 375 - Border Highway West Extension Project December 20, 2013 75 Comprehe nsive Request for Proposals Maintenance Agreement Maintenance Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA COMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages in accordance with Section 12.4 or any other provision of the CMA COMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Comprehensive Maintenance Agreement by Maintenance Contractor that occurs prior to the end of the term of the Capital Comprehensive Maintenance Agreement, subject to a cap in the amount of $1,000,000.

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in 12.8.1 Notwithstanding any other provision of the Contract COMA Documents, including this Section 12.6, to the extent permitted by applicable Law, neither party under no circumstances shall TxDOT be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Comprehensive Maintenance Agreement, tort (including negligence) or any other theory of liability, and Maintenance Contractor hereby releases TxDOT from any such liability. 12.8.2 Notwithstanding any other provision of the COMA Documents and except as set forth in this Section 12.8.2 and in Section 12.8.3, to the extent permitted by applicable Law, Maintenance Contractor shall not be liable to TxDOT for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Comprehensive Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party TxDOT hereby releases the other party Maintenance Contractor from any such liability. 12.6.2 12.8.3 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Contractor- Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Contractor-Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA COMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages owing under Section 5.4.7 or 5.4.8, Noncompliance Charges in accordance with Section 12.4 12.3, Lane Rental Charges in accordance with Section 12.5, or damages owing under any other provision of the CMA COMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Comprehensive Maintenance Agreement by Maintenance Contractor that occurs prior to the end of the term of the Capital Comprehensive Maintenance Agreement, subject to a cap in the amount of $1,000,000.

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in inNotwithstanding any other provision of the Contract Documents, including and except as set forth in this Section 12.612.6,12.6.1 and in Section 12.6.2, to the extent permitted by applicable Law, neither party shall be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Maintenance AgreementCMA, in tort (including negligence) or any other theory of liability, and each party hereby releases the other party from any such liability. 12.6.2 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages in accordance with Section 12.4 or any other provision of the CMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Maintenance Agreement CMA by Maintenance Contractor that occurs prior to the end of the term of the Capital Maintenance AgreementCMA, subject to a cap in the amount of $1,000,000.

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in Notwithstanding any other provision of the Contract Documents, including Documents and except as set forth in this Section 12.612.6.1 and in Section 12.6.2, to the extent permitted by applicable Law, neither party shall be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party hereby releases the other party from any such liability. 12.6.2 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages in accordance with Section 12.4 or any other provision of the CMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Maintenance Agreement by Maintenance Contractor that occurs prior to the end of the term of the Capital Maintenance Agreement, subject to a cap in the amount of $1,000,000.

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in Notwithstanding any other provision of the Contract Documents, including Documents and except as set forth in this Section 12.612.6.1 and in Section 12.6.2, to the extent permitted by applicable Law, neither party shall be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Comprehensive Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party hereby releases the other party from any such liability. 12.6.2 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Contractor- Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Contractor-Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA COMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages in accordance with Section 12.4 or any other provision of the CMA COMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Comprehensive Maintenance Agreement by Maintenance Contractor that occurs prior to the end of the term of the Capital Comprehensive Maintenance Agreement, subject to a cap in the amount of $1,000,000.

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified expressly provided in the Contract Documents, including this Section 12.6, to the extent permitted by applicable Law9.05, neither party Party (including their Subsidiaries, Affiliates, shareholders, officers, contractors, directors, employees and agents) shall be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party hereby releases the other party from any such liability. 12.6.2 The foregoing limitation on Maintenance Contractor’s liability for punitivespecial, indirect, incidental or consequential damages of any kind, including without limitation, damages arising from lost business, lost savings, lost data or lost profits, regardless of the cause and whether arising in contract (including fundamental breach), tort (including negligence), or otherwise, even if such party has been advised of the possibility of such damages. The foregoing exclusion of liability shall not apply where such damages arise out of or in connection with (i) an allegation that any NETGEAR Product or Improvement thereto infringes or violates any Intellectual Property Right of a third party, to the extent that such damages are payable to a third party, or limit (ii) disclosure of any right of recovery TxDOT may have respecting the followingConfidential Information, provided that: (a) Losses (including defense costs) to the extent (i) covered by Indemnitee permits the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed Indemnitor to have self-insured complete carriage and control of the Loss pursuant to Section 7.4.3defense of the claim; (b) Losses arising out the Indemnitee cooperates fully with the Indemnitor in all aspects of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Related Entitydefense against the claim; (c) Maintenance Contractor’s indemnities set forth such damages are either actual damages finally awarded by a court of competent jurisdiction, or constitute a settlement approved in Section 15.1 or elsewhere in writing by the CMA DocumentsIndemnitor; (d) Maintenance Contractor’s obligation to pay liquidated the Indemnitor shall not be liable for any portion of such damages arising from willful infringement by any party or constituting treble damages (except that an Indemnitor shall be liable for damages resulting from its own willful infringement); (e) the Indemnitee promptly pays all damages other than those for which the Indemnitor is responsible in accordance with Section 12.4 or any other provision the provisions of the CMA Documentsthis Article IX; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Maintenance Agreement by Maintenance Contractor that occurs prior to where the end of the term of the Capital Maintenance Agreement, subject claim relates to a cap in NETGEAR Product or Improvement as described at (i) above, provided additionally that: 14 15 (1) the amount Indemnitee modifies the NETGEAR Product or Improvement thereto within a reasonable time so as to avoid the allegation of $1,000,000.infringement or violation of Intellectual Property Rights, if requested to do so by the Indemnitor; and

Limitation of Liability For Consequential Damages. 12.6.1 Except as otherwise specified in Notwithstanding any other provision of the Contract Documents, including and except as set forth in this Section 12.612.6.1 and in Section 12.6.2, to the extent permitted by applicable Law, neither party shall be liable to the other for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this Capital Maintenance Agreement, in tort (including negligence) or any other theory of liability, and each party hereby releases the other party from any such liability. 12.6.2 The foregoing limitation on Maintenance Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, and (ii) covered by the proceeds of insurance actually carried by or insuring any Maintenance Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) Maintenance Contractor is deemed to have self-insured the Loss pursuant to Section 7.4.3; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any Maintenance Contractor- Contractor-Related Entity; (c) Maintenance Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA Documents; (d) Maintenance Contractor’s obligation to pay liquidated damages Liquidated Damages in accordance with Section 5.4, Section 12.4 or any other provision of the CMA Documents; and (e) Losses arising out of Maintenance Contractor Releases of Hazardous Materials. (f) Any other consequential damages arising from a breach of this Capital Maintenance Agreement by Maintenance Contractor that occurs prior to the end of the term of the Capital Maintenance Agreement, subject to a cap in the amount of $1,000,000.. Texas Department of Transportation Execution Version Horseshoe Project 89 Capital Maintenance Agreement