REMEDY; NONEXCLUSIVITY.
VENDOR SHALL, WITH RESPECT TO ANY
BREACH DURING THE TERM OF THIS AGREEMENT, PROMPTLY AND AT NO CHARGE TO NEXTEL,
(I) REPERFORM ANY SERVICES THAT DO NOT MEET THE REQUIREMENTS OF THIS AGREEMENT
AND (II) CORRECT ALL FAILURES OF ANY DELIVERABLES HEREUNDER TO PERFORM IN
ACCORDANCE WITH THE REQUIREMENTS OF THIS AGREEMENT.
NO REMEDY SET FORTH IN THIS
AGREEMENT (EXCEPT TO THE EXTENT SPECIFICALLY STATED HEREIN) IS INTENDED TO BE
EXCLUSIVE OF ANY OTHER REMEDY.
EACH REMEDY SHALL BE IN ADDITION TO EVERY OTHER
REMEDY GIVEN HEREUNDER, OR NOW OR HEREAFTER EXISTING AT LAW, IN EQUITY, BY
STATUTE, OR OTHERWISE.
NO QUALITY ASSURANCE, ACCEPTANCE TEST, OR OTHER SIMILAR
PROCEDURE SHALL BE DEEMED TO OBLIGATE NEXTEL WITH RESPECT TO, OR NECESSARILY TO
CONSTITUTE, LEGAL "ACCEPTANCE" OF ANY DELIVERABLE AND NO SUCH PROCEDURE SHALL BE
DEEMED TO WAIVE ANY RIGHT OR REMEDY HEREUNDER.
9.2.
LIMITATION OF LIABILITY.
9.2.1.
GENERAL LIMITATION.
THE PARTIES HEREUNDER SHALL BE LIABLE ONLY
FOR DIRECT DAMAGES AND NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR CONSEQUENTIAL
OR PUNITIVE DAMAGES (INCLUDING LOST PROFITS OR SAVINGS) EVEN IF IT HAS BEEN
ADVISED OF THEIR POSSIBLE EXISTENCE; PROVIDED, HOWEVER, THAT THE FOREGOING
LIMITATION SHALL IN NO EVENT LIMIT A PARTY'S ABILITY TO RECOVER ACTUAL DAMAGES
FOR BREACH HEREOF, INCLUDING THE COSTS OF OBTAINING REPLACEMENT SERVICES AND
DELIVERABLES COMPLYING WITH THE TERMS HEREOF.
IN NO EVENT SHALL THE TOTAL AND
CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER UNDER THIS AGREEMENT FOR ANY
CLAIM OR CLAIMS HEREUNDER CONCERNING PERFORMANCE OR NONPERFORMANCE HEREUNDER
EXCEED THE GREATER OF:
[ . . . * * * . . . ]
9.2.2.
EXCLUSION.
NOTWITHSTANDING THE FOREGOING AND SECTION 9.2.3
BELOW, THERE SHALL BE NO LIMITATION ON THE AMOUNT OF LIABILITY, AND NO EXCLUSION
OF ANY TYPES OF DAMAGES FOR THE FOLLOWING: (I) EITHER PARTY'S INDEMNIFICATION
OBLIGATIONS; (II) LOSSES ARISING OUT OF EITHER PARTY'S WILLFUL, INTENTIONAL OR
GROSSLY NEGLIGENT MISCONDUCT OR VENDOR'S INTENTIONAL AND WRONGFUL
***Certain information in this exhibit has been omitted and filed separately
with the commission.
Confidential treatment has been requested with respect to the omitted portions.
22
REPUDIATION OF THIS AGREEMENT; (III) DAMAGES TO REAL AND TANGIBLE PERSONAL
PROPERTY CAUSED BY NEGLIGENT OR OTHER TORTIOUS CONDUCT OF VENDOR; (IV) PERSONAL
INJURY OR DEATH CAUSED BY NEGLIGENT OR OTHER TORTIOUS CONDUCT OF A PARTY OR ITS
AGENTS; (V) INTENTIONAL OR NEGLIGENT BREACHES OF CONFIDENTIALITY OR NON-USE OF
INFORMATION REQUIREMENTS; OR (VI) ANY BREACH OF SECTION 13.4.
9.2.3.
NEXTEL LIMITATION.
IN NO EVENT SHALL NEXTEL HAVE ANY LIABILITY
FOR MONETARY DAMAGES WITH RESPECT TO ITS DUTIES AND OBLIGATIONS HEREUNDER, OTHER
THAN ITS DUTIES AND OBLIGATIONS PURSUANT TO SECTIONS 6.7, 7.3 AND 10.
10.
INDEMNIFICATION
10.1.
INTELLECTUAL PROPERTY.
VENDOR SHALL DEFEND, INDEMNIFY AND HOLD NEXTEL
AND ITS PARENT, SUBSIDIARIES, AND AFFILIATES, AND EACH OF THEIR RESPECTIVE
OFFICERS, SHAREHOLDERS, DIRECTORS, AND EMPLOYEES HARMLESS FROM AND AGAINST ANY
CLAIMS AND SHALL PAY ALL LOSSES, DAMAGES, LIABILITIES, CLAIMS AND ACTIONS, AND
ALL RELATED EXPENSES (INCLUDING REASONABLE ATTORNEYS' FEES AND EXPENSES) BASED
UPON ANY ALLEGATIONS THAT WOULD