CLAIMS
UNDER SECTION 13.3 HEREOF WHICH SHALL IN ALL EVENTS GOVERN THIRD PARTY CLAIMS,
IF SUCH WRITTEN NOTICE (OR AN AMENDED NOTICE) STATES THE AMOUNT OF SELLER
DAMAGES CLAIMED AND BUYER NOTIFIES SELLER THAT BUYER DOES NOT DISPUTE THE CLAIM
DESCRIBED IN SUCH NOTICE OR FAILS TO NOTIFY SELLER WITHIN 60 DAYS AFTER RECEIPT
OF SUCH NOTICE BY BUYER WHETHER BUYER DISPUTES THE CLAIM DESCRIBED IN SUCH
NOTICE, BUYER SHALL BE RESPONSIBLE FOR THE PAYMENT OF SUCH SELLER DAMAGES TO THE
SELLER PARTY.
IF BUYER HAS TIMELY DISPUTED ITS LIABILITY WITH RESPECT TO SUCH
CLAIM BY DELIVERY OF A NOTICE SELLER AND BUYER WILL PROCEED IN GOOD FAITH TO
NEGOTIATE A RESOLUTION OF SUCH DISPUTE.
ANY WRITTEN NOTICE DELIVERED BY BUYER
TO SELLER FOR PURPOSES OF DISPUTING A CLAIM FOR SELLER DAMAGES SHALL, TO THE
EXTENT PRACTICABLE, PROVIDE AN EXPLANATION WITH REASONABLE SPECIFICITY FOR ANY
OBJECTION TO THE MATTERS SET FORTH IN THE SELLER NOTICE AND THE PORTION OF THE
CLAIM (IF LESS THAN ALL) WHICH IS THE SUBJECT OF THE DISPUTE NOTICE.
(2)
NO INDEMNIFICATION SHALL BE MADE UNDER
SECTION 13.2(D)(I) BY BUYER (I) FOR ANY INDIVIDUAL ITEM WHERE THE LOSS RELATING
THERETO IS
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LESS THAN THE BASKET AND SUCH ITEMS SHALL NOT BE AGGREGATED FOR PURPOSES OF
DETERMINING WHETHER THE THRESHOLD AMOUNT HAS BEEN EXCEEDED PURSUANT TO
SECTION 13.2(E)(2)(II), AND (II) UNLESS AND UNTIL THE AGGREGATE AMOUNT OF THE
LOSSES SUFFERED BY THE SELLER PARTIES EXCEEDS THE THRESHOLD AMOUNT, AND THEN
ONLY TO THE EXTENT OF ANY SUCH EXCESS.
(3)
BUYER'S LIABILITY FOR ALL SUCH
INDEMNIFICATION CLAIMS SHALL IN NO EVENT EXCEED THE CAP AMOUNT, EXCEPT IN THE
EVENT THAT SUCH OBLIGATION TO INDEMNIFY ARISES FROM FRAUD BY BUYER.
(F)
BUYER WILL PAY THE AMOUNT OF ANY SELLER
DAMAGES TO SELLER ON BEHALF OF THE SELLER PARTIES WITHIN TEN DAYS FOLLOWING THE
DETERMINATION OF BUYER'S LIABILITY FOR AND THE AMOUNT OF SELLER DAMAGES (WHETHER
SUCH DETERMINATION IS MADE PURSUANT TO THE PROCEDURES SET FORTH IN THIS
ARTICLE 13, BY AGREEMENT BETWEEN BUYER AND SELLER, BY ARBITRATION AWARD OR BY
FINAL ADJUDICATION IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT).
13.3
THIRD PARTY CLAIMS.
WITH RESPECT TO ANY CLAIM FOR
INDEMNIFICATION RESULTING FROM THE ASSERTION OF LIABILITY BY THIRD PARTIES (A
"CLAIM"), THE OBLIGATIONS AND LIABILITIES OF THE PARTY ALLEGEDLY RESPONSIBLE FOR
INDEMNIFICATION (THE "INDEMNIFYING PARTY") HEREUNDER WITH RESPECT TO THE CLAIM
BY THE PARTY ALLEGEDLY ENTITLED TO INDEMNITY (THE "INDEMNIFIED PARTY") SHALL BE
SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS:
(A)
THE INDEMNIFIED PARTY SHALL GIVE PROMPT
WRITTEN NOTICE TO THE INDEMNIFYING PARTY OF ANY ASSERTION OF LIABILITY BY A
THIRD PARTY WHICH MIGHT GIVE RISE TO A CLAIM BY THE INDEMNIFIED PARTY AGAINST
THE INDEMNIFYING PARTY BASED ON THE INDEMNITY AGREEMENTS CONTAINED IN
SECTION 13.2 HEREOF, STATING THE NATURE AND BASIS OF SAID ASSERTION AND THE
AMOUNT THEREOF, TO THE EXTENT KNOWN.
(B)
IF ANY PROCEEDING IS BROUGHT AGAINST THE
INDEMNIFIED PARTY, WITH RESPECT TO WHICH THE INDEMNIFYING PARTY MAY HAVE
LIABILITY UNDER THE INDEMNITY