OF THE LIQUIDATED DAMAGES AMOUNTS SET
FORTH IN THIS AGREEMENT, CONTRACTOR SPECIFICALLY AGREES TO PAY OWNER ALL ACTUAL
DAMAGES INCURRED BY OWNER IN CONNECTION WITH THE FAILURE TO ACHIEVE THE
APPLICABLE GUARANTEED SUBSTANTIAL COMPLETION DATE OR GUARANTEED PERFORMANCE
LEVELS, AS APPLICABLE; PROVIDED, THAT THE FOREGOING SHALL NOT LIMIT CONTRACTOR'S
RIGHTS TO DISPUTE WHETHER OR NOT LIQUIDATED DAMAGES ARE ACTUALLY OWED. DAMAGES
CLAIMED BY THIRD PARTIES (BUT NOT INCLUDING ANY OWNER INDEMNIFIED PARTIES OR
CONTRACTOR INDEMNIFIED PARTIES) FOR WHICH CONTRACTOR OR OWNER HAVE A DUTY TO
INDEMNIFY THE OTHER PARTY PURSUANT TO THIS AGREEMENT, SHALL NOT BE SUBJECT TO
THE LIMITATIONS SET FORTH IN THIS SECTION 21.2. THE LIMITATIONS SET FORTH IN
THIS SECTION 21.2 SHALL APPLY TO ANY SUPPLIER THAT INCLUDES A SIMILAR WAIVER AND
LIMITATION ON LIABILITY IN FAVOR OF OWNER IN THE SUPPLY CONTRACTS SUCH SUPPLIER
ENTERS INTO WITH RESPECT TO THE WORK.
21.3
APPLICABILITY OF LIABILITY LIMITATIONS. EXCEPT TO THE EXTENT PROHIBITED
BY APPLICABLE LAWS, OR AS OTHERWISE STATED IN THIS AGREEMENT TO THE CONTRARY,
THE WAIVERS, RELEASES, EXCLUSIVE REMEDY PROVISIONS, DISCLAIMERS OF LIABILITY,
LIMITATIONS AND APPORTIONMENTS
218
--------------------------------------------------------------------------------
OF LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY EVEN IN THE EVENT OF THE
NEGLIGENCE (WHETHER SOLE, JOINT OR CONCURRENT), GROSS NEGLIGENCE, WILLFUL
MISCONDUCT, STRICT LIABILITY, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF
CONTRACT, VIOLATION OF LAW OR OTHER LEGAL FAULT OF THE PERSON WHOSE LIABILITY IS
WAIVED, DISCLAIMED, LIMITED OR FIXED, A PRE-EXISTING DEFECT, OR ANY OTHER CAUSE
WHATSOEVER, AND SHALL EXTEND TO A PARTY'S AFFILIATES AND ITS AND THEIR
DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS. [***].
21.4
EXCLUSIVE REMEDIES. IT IS THE INTENT OF THE PARTIES THAT TO THE EXTENT
THAT THERE ARE SPECIFIC REMEDIES SET OUT IN THIS AGREEMENT THAT ARE IDENTIFIED
AS THE SOLE AND EXCLUSIVE REMEDIES, SUCH REMEDIES SHALL BE THE SOLE AND
EXCLUSIVE RIGHTS AND REMEDIES OF THE PARTIES FOR THE OBLIGATIONS AND LIABILITIES
TO WHICH SUCH REMEDIES ARE EXPRESSLY STATED TO APPLY, NOTWITHSTANDING ANY OTHER
REMEDIES THAT MAY OTHERWISE BE AVAILABLE AT LAW OR IN EQUITY. NOTWITHSTANDING
THE FOREGOING, TO THE EXTENT THIS AGREEMENT DOES NOT SET FORTH A SPECIFIC
REMEDY, THE PARTIES MAY EXERCISE ANY RIGHTS AND OBTAIN ANY REMEDIES AVAILABLE AT
LAW OR IN EQUITY, OTHER THAN RESCISSION, AND EACH PARTY EXPRESSLY WAIVES ANY
RIGHT OF RESCISSION THAT MAY OTHERWISE BE APPLICABLE.
ARTICLE 22
NOTICES
22.1
Address Information. Any notices and communications required or
permitted to be given hereunder shall be sufficient in all respects if given in
writing and delivered personally or sent by bonded overnight courier, or mailed
by U.S. Express Mail or by certified or registered United States Mail with
postage fully prepaid, or sent by facsimile transmission or other electronic
transmission (provided that any such facsimile or other electronic transmission
is confirmed either orally or by written confirmation), addressed to the
appropriate Party at the address for such Party shown below or at other such
address as such Party shall have designated by written notice delivered to the
Party giving such notice:
219
--------------------------------------------------------------------------------