2.1 (d), ALL PRODUCTS OBTAINED FOR HOLDINGS ARE AS IS,
WHERE IS, WITH ALL FAULTS AND VALERO GP MAKES NO (AND HEREBY DISCLAIMS AND
NEGATES ANY AND ALL) REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE
WITH RESPECT TO THE SERVICES RENDERED OR PRODUCTS OBTAINED FOR HOLDINGS.
FURTHERMORE, HOLDINGS MAY NOT RELY UPON ANY REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE MADE TO VALERO GP BY ANY PARTY (INCLUDING, AN AFFILIATE OR
DESIGNEE OF VALERO GP) PERFORMING SERVICES ON BEHALF OF VALERO GP HEREUNDER,
UNLESS SUCH PARTY MAKES AN EXPRESS WARRANTY TO HOLDINGS.
HOWEVER, IN THE CASE
OF SERVICES PROVIDED BY A THIRD PARTY FOR HOLDINGS, IF THE THIRD PARTY PROVIDER
OF SUCH SERVICES MAKES AN EXPRESS WARRANTY TO HOLDINGS, HOLDINGS IS ENTITLED TO
CAUSE VALERO GP TO RELY ON AND TO ENFORCE SUCH WARRANTY.
IT IS EXPRESSLY UNDERSTOOD BY HOLDINGS THAT VALERO GP AND ITS AFFILIATES AND
DESIGNEES SHALL HAVE NO LIABILITY FOR THE FAILURE OF THIRD PARTY PROVIDERS TO
PERFORM ANY SERVICES HEREUNDER AND FURTHER THAT VALERO GP AND ITS AFFILIATES AND
DESIGNEES SHALL HAVE NO LIABILITY WHATSOEVER FOR THE SERVICES PROVIDED BY ANY
SUCH THIRD PARTY UNLESS IN EITHER EVENT SUCH SERVICES ARE PROVIDED IN A MANNER
WHICH WOULD EVIDENCE GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT ON THE PART OF
VALERO GP OR ITS AFFILIATES OR DESIGNEES BUT VALERO GP SHALL, ON BEHALF OF
HOLDINGS, PURSUE ALL RIGHTS AND REMEDIES UNDER
5
ANY SUCH THIRD PARTY CONTRACT.
HOLDINGS AGREES THAT THE REMUNERATION PAID TO
ALERO GP HEREUNDER FOR THE SERVICES TO BE PERFORMED REFLECT THIS LIMITATION OF
LIABILITY AND DISCLAIMER OF WARRANTIES.
IN NO EVENT SHALL VALERO GP BE LIABLE
TO HOLDINGS OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL
DAMAGES RESULTING FROM ANY ERROR IN THE PERFORMANCE OF SERVICES OR FROM THE
BREACH OF THIS AGREEMENT, REGARDLESS OF THE FAULT OF VALERO GP, ANY VALERO GP
AFFILIATE OR DESIGNEE, OR ANY THIRD PARTY PROVIDER OR WHETHER VALERO GP, ANY
VALERO GP AFFILIATE OR DESIGNEE, OR THE THIRD PARTY PROVIDER ARE WHOLLY,
CONCURRENTLY, PARTIALLY, OR SOLELY NEGLIGENT.
TO THE EXTENT ANY THIRD PARTY
PROVIDER HAS LIMITED ITS LIABILITY TO VALERO GP OR ITS AFFILIATE OR DESIGNEE FOR
SERVICES UNDER AN OUTSOURCING OR OTHER AGREEMENT, HOLDINGS AGREES TO BE BOUND BY
SUCH LIMITATION OF LIABILITY FOR ANY PRODUCT OR SERVICE PROVIDED TO HOLDINGS BY
SUCH THIRD PARTY PROVIDER UNDER VALERO GP'S OR SUCH AFFILIATE'S OR DESIGNEE'S
AGREEMENT.
SECTION 3.5
FORCE MAJEURE.
IF EITHER PARTY TO THIS AGREEMENT IS
RENDERED UNABLE BY FORCE MAJEURE TO CARRY OUT ITS OBLIGATIONS UNDER THIS
AGREEMENT, OTHER THAN A PARTY'S OBLIGATION TO MAKE PAYMENTS AS PROVIDED FOR
HEREIN, THAT PARTY SHALL GIVE THE OTHER PARTY PROMPT WRITTEN NOTICE OF THE FORCE
MAJEURE WITH REASONABLY FULL PARTICULARS CONCERNING IT.
THEREUPON, THE
OBLIGATIONS OF THE PARTY GIVING THE NOTICE, INSOFAR AS THEY ARE AFFECTED BY THE
FORCE MAJEURE, SHALL BE SUSPENDED DURING, BUT NO