OF RECOVERY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER BASED UPON AN ACTION OR CLAIM IN CONTRACT,
TORT, WARRANTY, NEGLIGENCE, INTENDED CONDUCT OR OTHERWISE (INCLUDING ANY ACTION
OR CLAIM ARISING FROM THE ACTS OR OMISSIONS, NEGLIGENT OR OTHERWISE, OF THE
LIABLE PARTY), SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL CHARGES PAYABLE TO
PROVIDER DURING THE EIGHTEEN (18) MONTH PERIOD IMMEDIATELY PRECEDING THE MOST
RECENT EVENT GIVING RISE TO SUCH LIABILITY UNDER THE RELEVANT STATEMENT OF WORK
WHICH GIVES RISE TO SUCH LIABILITY (OR, IF SUCH EVENT OCCURS WITHIN THE FIRST 18
MONTHS OF THE TERM, AN AMOUNT EQUAL TO $15,000,000).
(C)
EXCEPTIONS TO EXCLUSIONS AND LIMITATIONS OF LIABILITY.
THE
EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTION 17.2(A) AND
SECTION 17(B), RESPECTIVELY, SHALL NOT APPLY WITH RESPECT TO (I) LOSSES
RESULTING FROM ANY ACTS OR OMISSIONS OF A PARTY CONSTITUTING FRAUD, WILLFUL
MISCONDUCT OR GROSS NEGLIGENCE; (II) INDEMNIFICATION OBLIGATIONS OF A PARTY
PURSUANT TO SECTION 16.1, 16.2 OR 16.3; (III) ANY ABANDONMENT BY PROVIDER OF THE
AGREEMENT; OR (IV) LOSSES RESULTING FROM
75
ANY BREACH OF A PARTY'S OBLIGATIONS UNDER SECTIONS 12.1, 12.2 AND 12.3 OR
ARTICLE XIII.
(D)
ITEMS NOT CONSIDERED DAMAGES.
THE FOLLOWING SHALL NOT BE
CONSIDERED DAMAGES SUBJECT TO, AND SHALL NOT BE COUNTED TOWARD, THE LIABILITY
EXCLUSIONS OR LIMITATIONS SPECIFIED IN SECTION 17.2(A) AND SECTION 17.2(B),
RESPECTIVELY:
(I) PERFORMANCE CREDITS ASSESSED AGAINST PROVIDER PURSUANT TO THE
AGREEMENT; (II) INVOICED CHARGES THAT IDEARC IS NOT OBLIGATED TO PAY UNDER THE
AGREEMENT BECAUSE SUCH AMOUNTS ARE ATTRIBUTABLE TO BILLING ERRORS OR FOR
SERVICES NOT PROVIDED IN ACCORDANCE WITH THE AGREEMENT; (III) AMOUNTS PAID BY
IDEARC BUT SUBSEQUENTLY RECOVERED FROM PROVIDER DUE EITHER TO INCORRECT CHARGES
BY PROVIDER OR FOR SERVICES NOT PROVIDED IN ACCORDANCE WITH THE AGREEMENT; OR
(IV) INVOICED CHARGES AND OTHER AMOUNTS THAT ARE DUE AND OWING TO PROVIDER FOR
SERVICES PROVIDED UNDER THE AGREEMENT.
(E)
ACKNOWLEDGED DIRECT DAMAGES.
WITHOUT LIMITING THE GENERALITY OF
THE PROVISIONS OF THIS ARTICLE XVII, THE FOLLOWING SHALL BE CONSIDERED A
NON-EXCLUSIVE LIST OF DIRECT DAMAGES AND NEITHER PARTY SHALL ASSERT THAT THEY
CONSTITUTE INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OR LOST
PROFITS TO THE EXTENT THEY RESULT DIRECTLY FROM EITHER PARTY'S BREACH OF ITS
OBLIGATIONS UNDER THE AGREEMENT:
(I)
COSTS AND EXPENSES INCURRED FOR RECONSTRUCTING OR RELOADING ANY
LOST, STOLEN OR DAMAGED IDEARC DATA;
(II)
COSTS AND EXPENSES INCURRED FOR IMPLEMENTING AND PERFORMING A
WORK-AROUND IN RESPECT OF A FAILURE TO PROVIDE THE SERVICES OR ANY PART THEREOF
IN ACCORDANCE WITH THE AGREEMENT;
(III)
COSTS AND EXPENSES INCURRED FOR REPLACING LOST, STOLEN OR DAMAGED
EQUIPMENT, SOFTWARE OR MATERIALS;
(IV)
COVER DAMAGES, INCLUDING THE COSTS AND EXPENSES INCURRED TO
PROCURE REPLACEMENT OR CORRECTED SERVICES FROM AN ALTERNATE SOURCE TO PROVIDE
THE SERVICES OR CORRECTED SERVICES USING A PARTY'S OWN INTERNAL RESOURCES, TO
THE EXTENT IN EXCESS OF PROVIDER'S APPLICABLE CHARGES UNDER THE AGREEMENT;
(V)
OVERTIME, STRAIGHT TIME AND RELATED EXPENSES INCURRED BY IDEARC,
INCLUDING OVERHEAD ALLOCATIONS FOR EMPLOYEES, WAGES AND