Liability.
EXCEPT FOR (i) EACH PARTY'S RESPECTIVE EXPRESS
INDEMNITY OBLIGATIONS UNDER THIS AGREEMENT, AND (ii) DAMAGES RESULTING FROM A
PARTY'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT:
(a)
NEITHER PARTY NOR THEIR AFFILIATES SHALL HAVE ANY LIABILITY FOR CONSEQUENTIAL,
INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES OF ANY NATURE OR
TYPE WHATSOEVER, OR FOR ANY MALFUNCTIONS, DELAYS, LOSS OF DATA, LOSS OF PROFIT,
INTERRUPTION OF SERVICE OR LOSS OF BUSINESS OR ANTICIPATORY PROFITS, EVEN IF IT
HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES,
(b)
NOR SHALL ALLIN OR ITS AFFILIATES, UNDER ANY CIRCUMSTANCES, BE LIABLE TO COSTA
OR ITS AFFILIATES FOR ANY CLAIM BASED UPON ANY THIRD PARTY CLAIM, AND
(c)
THE COLLECTIVE AND ENTIRE LIABILITY OF EITHER PARTY AND ITS AFFILIATES FOR ANY
REASONS AND UPON ANY CAUSE OF ACTION OR CLAIM IN CONTRACT, STATUTE, WARRANTY,
TORT, NEGLIGENCE, MISREPRESENTATION, FAILURE TO
9
EXERCISE DUE CARE, STRICT LIABILITY, OR OTHERWISE SHALL BE LIMITED, TO SIX
MILLION DOLLARS ($6,000,000).
NO CAUSE OF ACTION WHICH ACCRUED FOR MORE THAN TWO YEARS PRIOR TO THE FILING OF
A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST EITHER PARTY OR ITS
AFFILIATES.
THE PARTIES TO THIS AGREEMENT UNDERSTAND AND AGREE THAT THE LIMITATIONS AND
EXCLUSIONS SET FORTH HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE
ALLOCATION OF RISK LIMITATIONS AND EXCLUSIONS BETWEEN THE PARTIES IN CONNECTION
WITH THIS AGREEMENT. THE FEES PAYABLE TO ALLIN HEREUNDER REFLECT, AND ARE SET IN
RELIANCE UPON, THE ALLOCATION OF RISK SET FORTH HEREIN AND THE EXCLUSION OF
CONSEQUENTIAL DAMAGES AND LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
17.
General Indemnification.
Each party (an "Indemnifying Party") agrees to
indemnify and hold harmless the other, its affiliates and its and their
partners, principals, officers, directors, agents and employees (collectively,
the "Indemnified Parties"), from and against any and all actions, damages,
claims, liabilities, costs, expenses, or loses (including, without limitation,
reasonable legal fees and expenses) brought against, incurred by, or paid by any
of the Indemnified Parties, for bodily injury, death, or damage to tangible
personal property at Costa's facilities during the term of this Agreement
(collectively, the "Injury Claims") to the extent caused by the negligent acts
or omissions or tortious misconduct of the Indemnifying Party or any of its
employees or agents in the performance of this Agreement (but expressly
excluding Injury Claims actually or alleged to have resulted from Costa's use of
or reliance upon any Application Deliverable(s) or other materials provided by
Allin under this Agreement) or either party's breach of any material obligation,
representation, warranty, covenant or agreement under this Agreement.
18.
Intellectual Property Indemnification.
In addition to Allin's general
indemnification obligations set forth above, Allin shall defend Costa from and
against any allegation that any Deliverable or part thereof infringes or
misappropriates any copyright, patent, trade mark, trade secret or other
intellectual property or proprietary right of an unaffiliated third party, and
shall indemnify and hold harmless Costa from and against, and shall pay all
losses, damages, liabilities, claims and actions