SHALL BE LIMITED TO
THE AMOUNT PAID BY WESTAR TO PODS IN THE SIX (6) MONTH PERIOD BEFORE THE ACCRUAL
OF THE ACTION OR CLAIM FOR THE SPECIFIC SERVICE THAT IS THE SUBJECT OF THE
ACTION OR CLAIM.
THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION OR CLAIMS IN
THE AGGREGATE, INCLUDING WITHOUT LIMITATION, BREACH OF CONTRACT, BREACH OF
WARRANTY, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATION AND OTHER TORTS.
FURTHER, NO CAUSE OF ACTION THAT ACCRUED MORE THAN TWO (2) YEARS BEFORE THE
FILING OF A SUIT ALLEGING SUCH CAUSE OF ACTION MAY BE ASSERTED AGAINST PODS.
CLIENT AND PODS EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS AND
EXCLUSIONS CONTAINED HEREIN REPRESENT THE PARTIES' AGREEMENT AS TO THE
ALLOCATION OF RISK BETWEEN THE PARTIES IN CONNECTION WITH PODS'S OBLIGATIONS
UNDER THIS AGREEMENT.
THE PAYMENTS PAYABLE TO PODS HEREUNDER REFLECT THIS
ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES IN THIS AGREEMENT.
9.
MISCELLANEOUS
9.1
ASSIGNMENT.
NEITHER PARTY HERETO SHALL ASSIGN, SUBCONTRACT, OR
OTHERWISE CONVEY OR DELEGATE ITS RIGHTS OR DUTIES HEREUNDER TO ANY THIRD PARTY
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY TO THIS AGREEMENT, AND
SHALL REQUIRE THAT THE ASSIGNEE AGREES TO BE SUBJECT TO ALL THE TERMS AND
CONDITIONS OF THIS AGREEMENT.
THIS AGREEMENT SHALL APPLY TO, INURE TO THE
BENEFIT
13
of, and be binding upon the parties hereto and upon their permitted successors
in interest and permitted assigns.
9.2
NOTICES.
ANY NOTICE PROVIDED PURSUANT TO THIS AGREEMENT, IF
SPECIFIED TO BE IN WRITING, SHALL BE IN WRITING AND SHALL BE DEEMED GIVEN (I) IF
BY HAND DELIVERY, UPON RECEIPT THEREOF, (II) IF MAILED, THREE (3) DAYS AFTER
DEPOSIT IN THE UNITED STATES MAILS, POSTAGE PREPAID, CERTIFIED MAIL RETURN
RECEIPT REQUESTED, (III) IF BY NEXT DAY DELIVERY SERVICE, UPON SUCH DELIVERY AND
(IV) IF BY E-MAIL, UPON ELECTRONIC CONFIRMATION THAT SUCH NOTICE HAS BEEN
RECEIVED.
ALL NOTICES SHALL BE ADDRESSED AS FOLLOWS (OR SUCH OTHER ADDRESS AS
EITHER PARTY MAY IN THE FUTURE SPECIFY IN WRITING TO THE OTHER):
In the case of PODS:
Protection One Data Services, Inc.
800 East Waterman
Wichita, KS 67207
Attention: Mack Sands
Tel:
316-352-2501
Fax:
316-352-2435
In the case of Westar:
Westar Energy, Inc.
818 S. Kansas Avenue
Topeka, Kansas
66612
Attention: Bruce A. Akin, Vice President
Tel:
785-575-6354
Fax:
785-575-1936
9.3
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN SEVERAL
COUNTERPARTS, ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE SINGLE AGREEMENT
BETWEEN THE PARTIES HERETO.
9.4
HEADINGS.
THE SECTION HEADINGS USED HEREIN ARE FOR REFERENCE AND
CONVENIENCE ONLY AND SHALL NOT ENTER INTO THE INTERPRETATION HEREOF.
9.5
INDEPENDENT CONTRACTOR.
PODS, AND ANY AND ALL PODS PERSONNEL, IN
PERFORMANCE OF THIS AGREEMENT, ARE ACTING AS INDEPENDENT CONTRACTORS AND ARE NOT
EMPLOYEES OR AGENTS OF WESTAR.
EXCEPT AS CONTEMPLATED BY SECTION 2 HEREOF, PODS
SHALL BE SOLELY RESPONSIBLE FOR THE PAYMENT OF COMPENSATION OF PODS PERSONNEL
ASSIGNED TO PERFORM SERVICES HEREUNDER AND SUCH PERSONNEL ARE NOT ENTITLED TO
THE PROVISIONS OF ANY WESTAR EMPLOYEE BENEFITS.
WESTAR SHALL NOT BE RESPONSIBLE
FOR