such
claim or action.
The Indemnifying Party shall be responsible for the employment
of counsel and for all expenses of defending such claims, but the Indemnified
Party may employ separate counsel if (i) the employment of such counsel has been
specifically authorized in writing by the Indemnifying Party; (ii) the
Indemnifying Party has failed to assume the defense of any such claim and employ
counsel; or (iii) the named Parties to any such action (including any impleaded
Parties) include both the Indemnified Party and the Indemnifying Party, and the
Indemnified Party shall have been advised that there may be one or more legal
defenses available to it that are different from or additional to those
available to the Indemnifying Party.
In the case of different or additional
legal defenses, the Indemnifying Party shall not have the right to direct the
defense of such action on behalf of the Indemnified Party.
The Indemnifying
Party shall reimburse the Indemnified Party for the reasonable fees and
disbursements of separate counsel in any case in which separate counsel is
permitted above.
Neither SITA nor WSL shall enter into any settlement that
materially affects the other Party without such other Party's prior written
consent, which consent shall not be unreasonably withheld.
68
10.2
LIMITATION OF LIABILITY AND LIMITED WARRANTY.
(A)
LIMITATION OF LIABILITY. SUBJECT TO SECTION 10.2(C), NEITHER PARTY
SHALL BE LIABLE TO THE OTHER, AND EACH PARTY WAIVES AND RELEASES ANY CLAIMS THAT
MIGHT ARISE AGAINST THE OTHER PARTY, FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR
CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUES, LOST PROFIT, OR LOSS OF
PROSPECTIVE ECONOMIC ADVANTAGE OR LOSS OR DESTRUCTION OF DATA, ARISING FROM THE
OTHER PARTY'S PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, OR FROM
THE OTHER PARTY'S NEGLIGENCE.
THIS PARAGRAPH SHALL NOT BE CONSTRUED AS A
LIMITATION UPON EITHER PARTY'S RIGHT TO SEEK ITS DIRECT DAMAGES.
(B)
LIMITATION OF LIABILITY. SUBJECT TO SECTION 10.2(C), A PARTY'S
LIABILITY TO THE OTHER AS A RESULT OF THE FIRST MENTIONED PARTY'S PERFORMANCE OR
FAILURE TO PERFORM UNDER THIS AGREEMENT, OR NEGLIGENCE OR OTHER TORTS, WILL NOT
EXCEED THE AMOUNT OF [**] UNITED STATES DOLLARS ($[**]) ("LIABILITY CAP") IN
RESPECT OF ALL INCIDENTS DURING THE TERM OF THE AGREEMENT, PROVIDED THAT A PARTY
SHALL NOT BE LIABLE FOR DIRECT DAMAGES UNDER THIS AGREEMENT WHERE (I) A SOLE AND
EXCLUSIVE REMEDY IS OTHERWISE SET FORTH IN THE AGREEMENT OR (II) SERVICE
CREDITS/SCUS ARE PROVIDED IN ATTACHMENT SLA.
EXCEPT IN THE CASE OF MATERIAL
BREACH, A PARTY SEEKING DAMAGES FOR BREACH OF THE AGREEMENT SHALL FIRST PROVIDE
THE BREACHING PARTY WRITTEN NOTICE THEREOF AND A 30 DAY PERIOD DURING WHICH TO
REMEDY THE BREACH.
SERVICE CREDITS/SCUS SHALL NOT BE CONSIDERED DIRECT DAMAGES
FOR PURPOSES OF THE LIABILITY CAP AND SHALL BE IN ADDITION THERETO NOR SHALL
THEY BE SUBJECT TO THE 30-DAY CURE PERIOD SET FORTH ABOVE.
(C)
LIMITATION OF LIABILITY. NOTHING CONTAINED IN SECTION 10.2(A) OR
(B) OR (D) SHALL LIMIT A PARTY'S LIABILITY TO THE OTHER FOR:
(I) INJURY TO OR
DEATH