OR ANY PROJECT DOCUMENT,
WHETHER SUCH LIABILITY ARISES UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR FOR
ANY OTHER CAUSE OF ACTION, WILL NOT EXCEED $[**] DOLLARS).
THIS CLAUSE 40.3
DOES NOT APPLY TO THE INDEMNITY IN CLAUSE 40.1.
(B)
SUBJECT TO CLAUSES 40.3(D) AND 29.7, BUT NOTWITHSTANDING ANY
OTHER PROVISION OF THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE
CONTRACTOR EXCLUDES ALL LIABILITY TO THE PRINCIPAL AND EACH OTHER INDEMNIFIED
PARTY (WHETHER BY WAY OF INDEMNITY, DAMAGES OR OTHERWISE) IN RESPECT OF:
(I)
ANY INDIRECT OR CONSEQUENTIAL LOSS INCURRED OR SUSTAINED BY
THE PRINCIPAL OR ANY OTHER PERSON, ARISING UNDER, OUT OF, OR IN CONNECTION WITH
THIS AGREEMENT OR ANY PROJECT DOCUMENT, OR FOR ANY ACT OR OMISSION OF THE
CONTRACTOR, ITS RELATED BODIES CORPORATE OR ITS SUB-CONTRACTORS UNDER THIS
AGREEMENT OR ANY PROJECT DOCUMENT; OR
(II)
LOSS OF FAREBOX REVENUE (BEING ANY REVENUE OR MONEY,
INCLUDING FARES AND TRANSFER, ZONE AND PARK AND RIDE RECEIPTS, PAID OR PAYABLE
BY TRANSPORT PASSENGERS, ALSO KNOWN AS "PASSENGER REVENUE"),
whether such liability arises under contract, tort (including negligence) or for
any other cause of action.
(C)
SUBJECT TO CLAUSE 40.3(D), FOR THE PURPOSES OF CLAUSES
40.3(B) AND 40.5, "INDIRECT OR CONSEQUENTIAL LOSS" SUFFERED BY A PERSON MEANS
ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL LOSS OR DAMAGE INCURRED OR SUSTAINED BY
THAT PERSON, INCLUDING WITHOUT LIMITATION, LIABILITY FOR ANY LOSS OF
INFORMATION, DATA, GOODWILL, REVENUE, PROFITS, BUSINESS, OR ANY INTERRUPTION TO
BUSINESS OR SERVICES OR FOR ANY FAILURE TO REALISE ANTICIPATED SAVINGS, EVEN IF
SUCH LOSS OR DAMAGE WAS IN THE REASONABLE CONTEMPLATION OF THE PARTIES AT THE
TIME OF ENTRY INTO THIS AGREEMENT.
(D)
FOR THE PURPOSES OF CLAUSE 40.3(C), WHERE THAT PERSON IS THE
PRINCIPAL:
(I)
"INDIRECT OR CONSEQUENTIAL LOSS" DOES NOT INCLUDE LOSS FOR
WHICH THE PRINCIPAL IS INDEMNIFIED UNDER CLAUSE 40.2; AND
(II)
THE PARTIES AGREE THAT ANY SERVICES CHARGE ADJUSTMENTS FOR
FAILURE BY THE CONTRACTOR TO MEET THE PERFORMANCE REQUIREMENTS ARE NOT IN THE
NATURE OF LOSS OR DAMAGE AND CONSEQUENTLY ARE NOT INDIRECT OR CONSEQUENTIAL LOSS
OF THE PRINCIPAL.
40.4
EXCLUSIONS
(A)
SUBJECT TO CLAUSE 40.4(B), THE LIMITATION IN CLAUSE
40.3(A) DOES NOT APPLY TO:
(I)
LIABILITY IN RELATION TO INTELLECTUAL PROPERTY UNDER CLAUSE
30;
151
(II)
LOSS OR LIABILITY FOR WHICH THE CONTRACTOR IS REQUIRED TO
BE INDEMNIFIED UNDER A POLICY OF INSURANCE REQUIRED TO BE MAINTAINED UNDER
CLAUSE 36 WHICH THE CONTRACTOR RECOVERS OR OUGHT REASONABLY TO HAVE RECOVERED
BUT FOR AN ACT OR OMISSION BY THE CONTRACTOR, EXCEPT WHERE THE CONTRACTOR HAS
BEEN UNABLE TO RECOVER UNDER THE POLICY DUE TO THE OCCURRENCE OF AN EVENT OF
INSOLVENCY IN RELATION TO THE INSURER;
(III)
LOSS OR LIABILITY OF THE CONTRACTOR WHICH IT IS REQUIRED TO
PAY IN RESPECT OF ANY DEDUCTIBLE PAYABLE IN RELATION TO ANY POLICY OF INSURANCE
REQUIRED TO BE MAINTAINED UNDER CLAUSE 36;
(IV)
LOSS, LIABILITY OR CLAIMS IN RESPECT OF LOSS OF OR DAMAGE TO
PROPERTY OR CLAIMS IN RESPECT OF INJURY TO, OR DEATH, OF PERSONS;
(V)
ANY