15.1
LIMITATION ON LIABILITIES.
EXCEPT AS OTHERWISE
PROVIDED IN THIS ARTICLE XV, THE LIABILITY OF SUPPLIER AND ITS AFFILIATES ON THE
ONE HAND, AND OF FAIRPOINT, SURVIVING CORPORATION, THE BUYERS OR THEIR
AFFILIATES ON THE OTHER HAND, ARISING OUT OF OR RELATING TO THIS AGREEMENT,
INCLUDING WITHOUT LIMITATION ON ACCOUNT OF PERFORMANCE OR NONPERFORMANCE OF
OBLIGATIONS HEREUNDER, REGARDLESS OF THE FORM OF THE CAUSE OF ACTION, WHETHER IN
CONTRACT, TORT (INCLUDING WITHOUT LIMITATION GROSS NEGLIGENCE), STATUTE OR
OTHERWISE, SHALL IN NO EVENT EXCEED:
(I) WITH RESPECT TO SUPPLIER'S LIABILITY,
THE SUM OF THE AMOUNTS PAID TO SUPPLIER DURING THE TERM CONTEMPLATED HEREBY
(EXCLUDING SCHEDULE C AND SCHEDULE D THIRD-PARTY VENDOR COSTS AND TAXES) UNDER
THIS AGREEMENT DURING THE TERM AT THE TIME THE LIABILITY ARISES UNDER THIS
AGREEMENT AND (II) WITH RESPECT TO BUYERS'
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LIABILITY, FAIRPOINT'S OR SURVIVING CORPORATION'S LIABILITY, THE SUM OF THE
AMOUNTS PAYABLE TO SUPPLIER WERE THIS AGREEMENT TO CONTINUE IN EFFECT FOR THE
ENTIRE 15-MONTH TERM CONTEMPLATED HEREBY.
15.2
NO WARRANTIES; NO SPECIAL DAMAGES.
SUPPLIER AND
ITS AFFILIATES MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES WITH
RESPECT TO THE TRANSITION SERVICES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
EXCEPT AS OTHERWISE
PROVIDED IN THIS ARTICLE XV, IN NO EVENT SHALL ANY PARTY OR ANY OF THEIR
AFFILIATES BE LIABLE HEREUNDER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL,
PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND ARISING FROM THE BREACH OF THIS
AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR BUSINESS
INTERRUPTION.
15.3
EXCEPTIONS TO LIMITATIONS.
NOTWITHSTANDING
SECTIONS 15.1 AND 15.2 ABOVE, THE CAPS ON THE AMOUNT OF LIABILITY AND THE
LIMITATIONS ON TYPE OF LIABILITY DESCRIBED THEREIN SHALL NOT APPLY TO: (I) THE
WILLFUL MISCONDUCT OF A PARTY, (II) ANY VIOLATION BY SUPPLIER OF SECTION 2.9,
(III) THIRD PARTY INDEMNITY OBLIGATIONS PURSUANT TO ARTICLE XVI BELOW, OR (IV)
ANY VIOLATION OF SECTION 22.15.
ARTICLE XVI
INDEMNIFICATION
16.1
INDEMNIFICATION BY SURVIVING CORPORATION.
FAIRPOINT AND, AFTER THE CLOSING DATE, THE SURVIVING CORPORATION AND BUYERS
SHALL, JOINTLY AND SEVERALLY, INDEMNIFY AND HOLD HARMLESS SUPPLIER AND ITS
AFFILIATES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, SUCCESSORS AND
ASSIGNS (COLLECTIVELY, "SUPPLIER INDEMNITEES") FROM AND AGAINST ANY EXPENSE,
CLAIM, LOSS OR DAMAGE (INCLUDING COURT COSTS AND REASONABLE ATTORNEY'S FEES)
("LOSSES") SUFFERED OR INCURRED BY ANY OF THE SUPPLIER INDEMNITEES IN CONNECTION
WITH ANY THIRD-PARTY CLAIMS AGAINST ANY OF THE SUPPLIER INDEMNITEES ARISING FROM
OR RELATING TO:
(A)
ALL CLAIMS FOR BODILY INJURY TO PERSONS OR PHYSICAL DAMAGE TO
TANGIBLE PERSONAL OR REAL PROPERTY FOR WHICH FAIRPOINT (AND AFTER THE CLOSING
DATE SURVIVING CORPORATION AND BUYERS) ARE LEGALLY LIABLE TO THAT THIRD PARTY,
EXCEPT TO THE EXTENT CAUSED BY THE NEGLIGENCE OR INTENTIONAL MISCONDUCT OF
SUPPLIER INDEMNITEES;
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(B)
ALL CLAIMS ARISING FROM A VIOLATION OF ANY FEDERAL, STATE, LOCAL OR
FOREIGN LAW, RULE, REGULATION OR ORDER APPLICABLE TO FAIRPOINT BY FAIRPOINT;
(C)
ALL CLAIMS FOR ANY TAX OWED BY SURVIVING CORPORATION AND BUYERS
UNDER ARTICLE XVII (INCLUDING ANY TAX THAT IS THE SUBJECT OF AN EXEMPTION