Section, such Indemnitee may defend such Third
Party Claim at the cost and expense of the Indemnifying Party. The indemnified
Party shall reasonably cooperate with the Indemnifying Party in connection with
a Third Party Claim.
6.3
Incidental/Consequential Damages. EXCEPT FOR ANY AMOUNTS PAYABLE TO A
THIRD PARTY PURSUANT TO ITS INDEMNIFICATION OBLIGATIONS ARISING UNDER THIS
ARTICLE 6 OR A BREACH OF ARTICLE 8.11 (PROVIDED THAT SUCH BREACH WAS THE RESULT
OF A BAD FAITH, NEGLIGENCE, WILLFUL MISCONDUCT OR FRAUD), NEITHER PARTY SHALL BE
RESPONSIBLE TO THE OTHER FOR SPECIAL, INCIDENTAL, EXEMPLARY, OR OTHER INDIRECT
DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS OR LOSS OF USE DAMAGES)
OR CONSEQUENTIAL DAMAGES THAT MAY BE INCURRED PURSUANT TO THIS AGREEMENT;
PROVIDED THAT HIGHWATER SHALL BE ENTITLED TO SEEK LOSS OF PROFITS DAMAGES THAT
ARE A DIRECT RESULT OF DAMAGE CAUSED TO THE FACILITY FROM CONSTRUCTION OF THE
BUTAMAX UNIT BY BUTAMAX OR ONE OF BUTAMAX'S
CONTRACTORS, BUT ONLY TO THE EXTENT THAT THE AMOUNT OF SUCH DAMAGES ARE
RECOVERABLE FROM THIRD PARTY INSURANCE MAINTAINED BY BUTAMAX'S CONTRACTORS.
6.4
Health, Safety Hazards and Innovative Technologies. WHILE IT IS BELIEVED
THAT THE ORDINARY AND ANTICIPATED USE OF THE BUTAMAX UNIT OR ANY OTHER BUTAMAX
TECHNOLOGY, WILL NOT RESULT IN SAFETY OR HEALTH HAZARDS TO WORKERS OR TO
PURCHASERS OF PRODUCTS PRODUCED FROM THE BUTAMAX UNIT IF USED AND/OR OPERATED
CORRECTLY, BUTAMAX DOES NOT WARRANT OR GUARANTEE AGAINST SUCH HEALTH OR SAFETY
HAZARDS. HIGHWATER IS RESPONSIBLE AT ALL TIME FOR THE SAFE OPERATIONS OF THE
PLANT AND FOR SAFETY ON ITS PREMISES. EACH PARTY ACKNOWLEDGES THAT THIS
AGREEMENT PROVIDES FOR INNOVATIVE PROGRAMS THAT WILL DEVELOP AND USE NEW
TECHNOLOGIES AND THAT NO WARRANTY IS MADE REGARDING THE SUCCESS OF ANY RESEARCH
OR DEVELOPMENT DONE PURSUANT TO THE EASEMENTS PROVIDED FOR OR THE UTILITY OF ANY
INFORMATION, MATERIALS OR TECHNOLOGY PROVIDED HEREUNDER, SUCH THAT THERE IS NO
WARRANTY OF FIT FOR A PARTICULAR PURPOSE AND NO WARRANTY OF MERCHANTIBILITY.
WITH THE EXCEPTION OF PATENT INFRINGEMENT CLAIMS RESULTING SOLELY FROM OPERATION
OF THE BUTAMAX UNIT AT HIGHWATER, THE AGGREGATE LIABILITY FOR EITHER PARTY FOR
ALL DAMAGES ARISING FROM ANY AND ALL CLAIMS RELATED TO THE INDEMNITIES PROVIDED
HEREIN OR THE PROVISION OF ANY EQUIPMENT, EQUIPMENT OPERATION, OR CONSTRUCTION
OF THE BUTAMAX UNIT PURSUANT TO THE EASEMENTS GRANTED HEREIN, INCLUDING SPECIAL,
INDIRECT OR CONSEQUENTIAL DAMAGES, IF APPLICABLE, SHALL NOT EXCEED
USD$5,500,000, EXCEPT TO THE EXTENT THAT SUCH DAMAGES ARE RECOVERABLE FROM THIRD
PARTY INSURANCE MAINTAINED BY BUTAMAX'S CONTRACTORS.
7.
Security Agreement
7.1
Highwater has pursuant to the Security Agreement executed simultaneously
with this Agreement granted a security interest to Butamax with respect to
Highwater's obligations under this Agreement and the Butamax Unit to be
installed at the Facility.
8.
Other Terms
8.1
If for any reason during the Term, Butamax determines that under one or
more terms of any of the Butamax Agreements, in its sole discretion, that it has
the right and desires to exercise such right to remove the Butamax Unit, the
easement provided