review, drafting and negotiation of
this Agreement. Accordingly, the rule of construction that any ambiguity in this
Agreement will be construed against the drafting Party will not apply.
11.9 Force Majeure. Either Party's timely performance of any part of this
Agreement, other than payment obligations, shall be excused to the extent that
it is hindered, delayed or otherwise made impractical by any cause beyond the
reasonable control of that Party and not caused by the negligence of the
non-performing Party (collectively referred to as "Force Majeure"). If any Force
Majeure condition(s) occur, the non-performing Party shall make reasonable
efforts to notify the other Party of the nature of any such condition and the
extent of the delay, and shall make reasonable, good faith efforts to resume
performance as soon as possible.
11.10 Liability Limitations. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND
WARRANTIES SET FORTH HEREIN, ROW 44 SPECIFICALLY DISCLAIMS ALL OTHER
REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING TO THE SERVICES
PROVIDED BY ROW 44 HEREUNDER, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. IN NO EVENT SHALL EITHER PARTY BE
LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY,
PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND OR NATURE (INCLUDING
LOST PROFITS AND LOST REVENUES), WHETHER FORESEEABLE OR NOT, ARISING OUT OF OR
RELATING TO THIS AGREEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IN
NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY LOSSES OR
DAMAGES OF ANY KIND OR NATURE ARISING OUT OF RELATING TO THIS AGREEMENT IN
EXCESS OF THE TOTAL AMOUNT ACTUALLY PAID TO AND RECEIVED BY ROW 44 FROM
SOUTHWEST DURING THE 12 MONTH PERIOD PRIOR TO SUCH CLAIM, WHICH AMOUNT WILL BE
THE MAXIMUM AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY HEREUNDER.
NOTWITHSTANDING THE FOREGOING, NOTHING HEREIN SHALL BE DEEMED TO LIMIT ANY
LIABILITY WITH RESPECT TO (A) AN OBLIGATION OF INDEMNITY SET FORTH IN THIS
AGREEMENT, (B) FOR DAMAGES RESULTING FROM A BREACH OF AN OBLIGATION OF
CONFIDENTIALITY, (C) A BREACH OF THE OBLIGATIONS IN EXHIBIT J HEREUNDER, (D) FOR
PERSONAL INJURY OR PATENT INFRINGEMENT OR (E) ANY RIGHT OR REMEDY AVAILABLE TO
SOUTHWEST AT LAW OR EQUITY BASED ON ROW 44'S FRAUDULENT ACTS, FRAUDULENT
OMISSIONS OR INTENTIONAL MISREPRESENTATIONS. THE PAST, PRESENT OR FUTURE
DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS OF SOUTHWEST AND ITS AFFILIATES
SHALL NOT HAVE ANY PERSONAL LIABILITY OR OBLIGATION TO ROW 44 ARISING UNDER THIS
AGREEMENT.
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11.11 Third Party Beneficiaries. Except as otherwise expressly provided in this
Agreement, nothing herein expressed or implied is intended or will be construed
to confer upon or to give to any third party any rights or remedies by reason of
this Agreement. Except as otherwise expressly provided in this Agreement, there
are no intended third party beneficiaries under or by reason of this Agreement.
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IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as
of the Effective Date.