ITS INDEMNIFICATION OBLIGATION OR TO
ASSUME THE DEFENSE OF A CLAIM, WITHIN THE REQUIRED NOTICE PERIOD IN ACCORDANCE
WITH SECTION 14.6(A), THE INDEMNITEE SHALL HAVE THE RIGHT TO DEFEND THE CLAIM IN
SUCH MANNER AS IT MAY DEEM APPROPRIATE.
IF IT IS LATER DETERMINED THAT THE
INDEMNITOR WAS OBLIGATED TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE INDEMNITEE
FROM THE APPLICABLE CLAIM, THE INDEMNITOR SHALL BE RESPONSIBLE FOR REIMBURSING
THE INDEMNITEE FOR ITS REASONABLE COSTS AND EXPENSES IN DEFENDING SUCH CLAIM,
INCLUDING PAYMENT OF ANY JUDGMENT OR AWARD AND THE COSTS OF SETTLEMENT OR
COMPROMISE OF THE CLAIM.
IN SUCH EVENT, THE INDEMNITOR SHALL PROMPTLY REIMBURSE
THE INDEMNITEE FOR ALL SUCH COSTS AND EXPENSES, INCLUDING PAYMENT OF ANY
JUDGMENT OR AWARD AND THE COSTS OF SETTLEMENT OR COMPROMISE OF THE CLAIM.
14.7
Subrogation.
If an Indemnitor is obligated to indemnify an
Indemnitee pursuant to this Article XIV, the Indemnitor shall, upon fulfillment
of its obligations with respect to indemnification, including payment in full of
all amounts due pursuant to its indemnification obligations, be subrogated to
the rights of the Indemnitee with respect to the claims to which such
indemnification relates.
ARTICLE XV
LIMITATION OF LIABILITY AND RISK ALLOCATION
15.1
Liability Cap.
(A)
THE LIMIT OF EACH PARTY'S LIABILITY
(WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, BY STATUTE OR
OTHERWISE) TO THE OTHER PARTY IN ANY MATTER RELATED TO THIS AGREEMENT UNDER EACH
SOW, SHALL NOT IN THE AGGREGATE EXCEED AN AMOUNT EQUAL TO THE GREATER OF THE
MINIMUM LIABILITY CAP, OR:
(I)
SUBJECT TO EXHIBIT Q (OTHER TERMS) WITH
RESPECT TO LIABILITY FOR BREACH OF SECTION 10.1(C), FOR LIABILITY ARISING FROM
THE RECOVERY SERVICES AND SERVICES PERFORMED UNDER THE INTERIM ARRANGEMENT,
CHARGES PAID TO ACCENTURE UNDER THE RECOVERY SERVICES SOW AND INTERIM
ARRANGEMENT DURING THE LIABILITY CAP CALCULATION PERIOD;
44
(II)
FOR LIABILITY ARISING FROM THE ENHANCEMENT
SERVICES, CHARGES FOR ENHANCEMENT SERVICES PAID TO ACCENTURE UNDER THE
ENHANCEMENTS SOW DURING LIABILITY CAP CALCULATION PERIOD; OR
(III)
FOR LIABILITY ARISING FROM THE AM SERVICES,
CHARGES FOR AM SERVICES PAID TO ACCENTURE UNDER THE AM SERVICES SOW DURING THE
LIABILITY CAP CALCULATION PERIOD.
(B)
THE LIMITATION SET FORTH IN SECTION 15.1(A)
ABOVE AND SECTION 15.2 BELOW SHALL NOT APPLY TO THE LIABILITY OF THE APPLICABLE
PARTY TO THE EXTENT SUCH LIABILITY RESULTS FROM (I) SUCH PARTY'S OBLIGATION TO
INDEMNIFY (ARTICLE XIV); OR (II) SUCH PARTY'S BREACH OF ITS OBLIGATIONS WITH
RESPECT TO CONFIDENTIALITY (ARTICLE XI).
IN ADDITION, HAWAIIAN TELCOM'S
OBLIGATION TO PAY AMOUNTS DUE SHALL NOT BE SUBJECT TO THE CAP SET FORTH IN
SECTION 15.1.
(C)
MITIGATION.
EACH PARTY HAS A DUTY TO
MITIGATE THE DAMAGES THAT WOULD OTHERWISE BE RECOVERABLE FROM THE OTHER PARTY
PURSUANT TO THIS AGREEMENT BY TAKING APPROPRIATE AND COMMERCIALLY REASONABLE
ACTIONS TO REDUCE OR LIMIT THE AMOUNT OF SUCH DAMAGES.
(D)
SERVICE LEVEL CREDITS.
IN ADDITION TO
HAWAIIAN TELCOM'S RIGHT TO TERMINATE FOR DEFAULT UNDER SECTION 16.1, THE
PROVISION OF SERVICE LEVEL CREDITS SHALL CONSTITUTE HAWAIIAN TELCOM'S SOLE AND
EXCLUSIVE REMEDY FOR THE FAILURE OF ACCENTURE