AND
HOLD HARMLESS PODS FROM ANY AND ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, COSTS
AND EXPENSES, INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES, ARISING OUT OF
ANY CLAIMS FOR RENT OR UTILITIES AT ANY LOCATION WHERE WESTAR IS REQUIRED TO
FURNISH SPACE AND/OR UTILITIES TO PODS PURSUANT TO THIS AGREEMENT.
8.4
PERSONAL INJURY AND PROPERTY DAMAGE INDEMNITY.
PODS AND WESTAR
EACH AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE OTHER FROM ANY AND ALL
CLAIMS, ACTIONS, DAMAGES, LIABILITIES, COSTS AND EXPENSES, INCLUDING REASONABLE
ATTORNEYS' FEES AND EXPENSES, ARISING OUT OF THIRD PARTY CLAIMS FOR BODILY
INJURY OR DAMAGE TO PHYSICAL PROPERTY, TO THE EXTENT CAUSED DIRECTLY AND
PROXIMATELY BY THE NEGLIGENCE OR WILLFUL MISCONDUCT OF THE INDEMNITOR, ITS
EMPLOYEES OR AGENTS.
8.5
INDEMNIFICATION PROCEDURES.
FOR PURPOSES OF THIS SECTION 8, THE
TERM PODS SHALL INCLUDE PODS, ITS EMPLOYEES AND AGENTS.
THE INDEMNITIES SET
FORTH IN SECTIONS 8.1, 8.2, 8.3 AND 8.4 HEREOF WILL NOT APPLY TO THE EXTENT THE
PARTY CLAIMING THE INDEMNIFICATION WAS RESPONSIBLE FOR GIVING RISE TO THE MATTER
UPON WHICH THE CLAIM FOR INDEMNIFICATION IS BASED AND WILL NOT APPLY UNLESS THE
PARTY CLAIMING INDEMNIFICATION PROMPTLY NOTIFIES THE OTHER OF ANY MATTERS IN
RESPECT OF WHICH THE INDEMNITY MAY APPLY AND OF WHICH THE NOTIFYING PARTY HAS
KNOWLEDGE AND GIVES THE OTHER FULL OPPORTUNITY TO CONTROL THE RESPONSE THERETO
AND THE DEFENSE THEREOF, INCLUDING WITHOUT LIMITATION ANY AGREEMENT RELATING TO
THE SETTLEMENT THEREOF, PROVIDED THAT NEITHER PARTY SHALL SETTLE ANY CLAIM
WITHOUT THE PRIOR WRITTEN CONSENT OF THE INDEMNIFIED PARTY.
THE INDEMNIFIED
PARTY'S FAILURE TO PROMPTLY GIVE NOTICE SHALL AFFECT THE INDEMNIFYING PARTY'S
OBLIGATION TO INDEMNIFY THE INDEMNIFIED PARTY ONLY TO THE EXTENT THE
INDEMNIFYING PARTY'S RIGHTS ARE MATERIALLY PREJUDICED BY SUCH FAILURE.
THE
INDEMNIFIED PARTY MAY PARTICIPATE, AT ITS
12
own expense, in such defense and in any settlement discussions directly or
through counsel of its choice.
8.6
LIMITATION OF LIABILITY.
NEITHER PARTY SHALL BE LIABLE TO THE
OTHER PARTY FOR PUNITIVE DAMAGES.
8.7
FURTHER LIMITATION OF LIABILITY AND WARRANTY DISCLAIMER.
IN THE
EVENT PODS IS NO LONGER A DIRECT OR INDIRECT MAJORITY-OWNED SUBSIDIARY OF
WESTAR, THE FOLLOWING FURTHER LIMITATION ON THE LIABILITY OF THE PARTIES AND
DISCLAIMER OF WARRANTIES SHALL APPLY:
(A)
PODS WARRANTS ONLY THAT ALL SERVICES SHALL BE PERFORMED IN A
WORKMANLIKE MANNER AND IN ACCORDANCE WITH THE SPECIFICATIONS AND DESCRIPTION OF
SUCH SERVICES AS SET FORTH IN THE IT SERVICES ADDENDUM.
EXCEPT AS SET FORTH IN
THIS SECTION 8.7(A), PODS MAKES NO WARRANTIES WITH RESPECT TO ITS SERVICES OR
WORK PRODUCT HEREUNDER, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE,
OR NON-INFRINGEMENT.
(B)
PODS SHALL HAVE NO LIABILITY WITH RESPECT TO ITS OBLIGATIONS UNDER
THIS AGREEMENT OR OTHERWISE FOR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, OR
INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES.
IN ANY EVENT, THE LIABILITY OF PODS TO WESTAR FOR ANY REASON AND UPON
ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, TORT OR OTHERWISE,