(i)the payment of such amount as liquidated damages as provided in this
Agreement is reasonable as a forecast of anticipated or actual harm which would
be caused by FTSI's breach of its purchase obligations under this Agreement and
has been negotiated between the Parties;
(ii)such liquidated damages are not unreasonably large or in the nature of or
the magnitude of a penalty;
(iii)actual damages would be incapable or difficult of estimation or computation
in the event of such a breach by FTSI; and
(iv)obtaining an adequate remedy other than such liquidated damages would be
inconvenient and potentially infeasible.
(h)Supplier's right to the remedies set forth in this Section 8.4 shall be its
exclusive remedies for the termination of this Agreement, and FTSI shall not be
liable to Supplier for any other damages or any make whole, shortfall or other
similar payments or damages regardless of how characterized, in respect of such
a termination of this Agreement, except as set forth in this Section 8.4.
9.
INDEMNITY AND LIMITATION OF LIABILITY
9.1Indemnification.
(a)SUBJECT TO SECTIONS 9.1(c) AND 9.1(d), FTSI AND SUPPLIER (EACH, IN SUCH
CAPACITY, AN "INDEMNIFYING PARTY") EACH AGREE TO FULLY RELEASE, INDEMNIFY,
DEFEND AND HOLD HARMLESS THE OTHER PARTY AND/OR ITS RESPECTIVE PARENT,
SUBSIDIARY OR AFFILIATE ENTITIES AND THEIR RESPECTIVE PAST, PRESENT AND FUTURE
OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, PARTNERS (GENERAL OR
LIMITED),
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SUCCESSORS AND ASSIGNS (EACH, IN SUCH CAPACITY, AN "INDEMNIFIED PARTY"; IN THE
CASE OF FTSI, AN "FTSI INDEMNIFIED PARTY" AND IN THE CASE OF SUPPLIER, A
"SUPPLIER INDEMNIFIED PARTY") FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS,
COSTS, REASONABLE ATTORNEYS' FEES, CAUSES OF ACTION, FINES, PENALTIES OR OTHER
LIABILITY THAT MAY BE ASSERTED AGAINST AN INDEMNIFIED PARTY (COLLECTIVELY,
"LOSSES"), TO THE EXTENT SUCH LOSSES ARISE OUT OF THE INDEMNIFYING PARTY'S
BREACH OF ITS OBLIGATIONS HEREUNDER, NEGLIGENCE, GROSS NEGLIGENCE OR INTENTIONAL
OR WILLFUL MISCONDUCT IN CONNECTION WITH THE INDEMNIFYING PARTY'S PERFORMANCE
UNDER THIS AGREEMENT.
(b)FTSI HEREBY AGREES AND ACKNOWLEDGES THAT THE PRODUCTS SUPPLIED HEREUNDER
REQUIRE SPECIAL HANDLING, USE, TRANSPORT, STORING AND DISPOSAL, AND THAT THE
SUPPLY OF PRODUCTS BY SUPPLIER HEREUNDER, IN ACCORDANCE WITH THE TERMS AND
CONDITIONS HEREOF, IS NOT A NEGLIGENT ACT ON THE PART OF SUPPLIER.
NOTWITHSTANDING ANYTHING ELSE CONTAINED THIS SECTION 9.1(b), SUPPLIER AGREES AND
ACKNOWLEDGES THAT THIS SECTION SHALL NOT REDUCE SUPPLIER'S LIABILITY UNDER
SECTION 5.4 TO FTSI FOR PRODUCTS THAT ARE DEFECTIVE (AS DEFINED HEREIN).
(c)NOTWITHSTANDING SECTION 9.1(a), SUPPLIER AGREES TO FULLY COMPENSATE,
REIMBURSE, RELEASE, INDEMNIFY, DEFEND AND HOLD HARMLESS EACH FTSI INDEMNIFIED
PARTY FROM AND AGAINST ANY AND ALL LOSSES (WITHOUT REGARD TO THE SOLE, JOINT
AND/OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF ANY SUCH FTSI INDEMNIFIED
PARTY) IN CONNECTION WITH, RELATED TO OR IN ANY MANNER ARISING OUT OF THE
MINING, MANUFACTURING, PROCESSING, HANDLING, USE, TRANSPORT, STORING AND
DISPOSAL OF THE PRODUCTS THAT ARE ASSERTED BY ANY ENTITY, PERSON OR PERSONS,
INCLUDING EMPLOYEES OF SUPPLIER AND ALL THIRD PARTIES, FOR PERSONAL INJURY,
DISEASE AND/OR DEATH, IN EACH CASE CAUSED BY OR ALLEGED TO HAVE BEEN CAUSED