under
this Article 15.1.
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ARTICLE 16 - WARRANTY, LIMITATION OF LIABILITY, DUTY TO
MITIGATE, AND INDEMNIFICATION
16.1
FOR BOTH MINN-DAK FARMERS COOPERATIVE AND ENSERCO ENERGY INC., A BREACH OF ANY
PROVISION HEREUNDER FOR WHICH AN EXPRESS REMEDY OR MEASURE OF DAMAGES IS
PROVIDED, SUCH EXPRESS REMEDY OR MEASURE OF DAMAGES SHALL BE THE SOLE AND
EXCLUSIVE REMEDY. A PARTY'S LIABILITY HEREUNDER SHALL BE LIMITED AS SET FORTH IN
SUCH PROVISION, AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE HEREBY
WAIVED. IF NO REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY PROVIDED HEREIN, A
PARTY'S LIABILITY SHALL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY. SUCH DIRECT
ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY, AND ALL OTHER REMEDIES OR
DAMAGES AT LAW OR IN EQUITY ARE HEREBY WAIVED. UNLESS EXPRESSLY HEREIN PROVIDED,
IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY
CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS
OR OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER BY STATUTE, IN TORT OR CONTRACT,
UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT
THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT
REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY
PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR
PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED,
THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO
DETERMINE, OR OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE
DAMAGES CALCULATED HEREUNDER CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM
OR LOSS.
16.2
EXCEPT AS EXPRESSLY SETFORTH HEREIN, SELLER MAKES NO WARRANTY, EXPRESSED OR
IMPLIED, AS TO THE QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
OF THE COAL TO BE DELIVERED UNDER THIS AGREEMENT OR AS TO THE RESULTS TO BE
OBTAINED FROM THE USE OF SUCH COAL.
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16.3
Each Party agrees it has a commercially reasonable good faith duty to mitigate
damages hereunder. Each Party will use commercially reasonable efforts to
minimize any damages it may incur as a result of the other Party's performance
or non-performance of the Agreement (except that neither Party shall be required
to enter into a replacement transaction as provided under this Agreement).
16.4
Each Party shall indemnify, defend, and hold the other Party harmless from and
against any and all third party claims arising out of or resulting from the
willful acts or negligence of such Party, its agents, and employees.
ARTICLE 17 - LIMITATION ON WAIVER
17.1
No waiver by either Party of any one or more defaults of the other Party in the
performance of this Agreement shall operate or be construed as a waiver of any
future default, or defaults, whether of a like or different character.
ARTICLE 18 - CONFIDENTIALITY
18.1
The Parties shall protect the confidentiality of the terms of this Agreement and
neither this Agreement nor any of its terms shall be disclosed to any