GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW, AS APPLIED TO CONTRACTS
MADE AND PERFORMED WITHIN THE STATE OF NEW YORK, WITHOUT REGARD TO ANY CHOICE OR
CONFLICTS OF LAW PROVISION OR RULE THAT WOULD CAUSE THE APPLICATION OF THE LAWS
OF ANY JURISDICTION OTHER THAN THE STATE OF NEW YORK.
THIS AGREEMENT HAS BEEN
NEGOTIATED AND EXECUTED BY THE PARTIES IN ENGLISH.
IN THE EVENT ANY TRANSLATION
OF THIS AGREEMENT IS PREPARED FOR CONVENIENCE OR ANY OTHER PURPOSE, THE
PROVISIONS OF THE ENGLISH VERSION SHALL GOVERN.
CERTAIN SCHEDULES AND/OR
EXHIBITS TO THIS AGREEMENT ARE BEING EXECUTED IN BOTH ENGLISH AND SPANISH.
IF
ANY DOUBT, MISUNDERSTANDING OR DISPUTE ARISES IN THEIR INTERPRETATION, THE
ENGLISH VERSION SHALL GOVERN.
SECTION 9.3
DISPUTE RESOLUTION.
ANY CONTROVERSY, CLAIM, OR DISPUTE
AMONG THE PARTIES THAT ARISES OUT OF OR RELATES TO THIS AGREEMENT, INCLUDING ANY
CLAIM OR CONTROVERSY RELATING TO THE INTERPRETATION, BREACH, TERMINATION, OR
INVALIDITY OF ANY PROVISION HEREOF, SHALL BE EXCLUSIVELY AND FINALLY SETTLED
PURSUANT TO AND IN ACCORDANCE WITH THE DISPUTE RESOLUTION AGREEMENT.
SECTION 9.4
LIMITATION ON DAMAGES.
NO PARTY SHALL BE LIABLE FOR ANY
PUNITIVE, MULTIPLE, OR OTHER EXEMPLARY DAMAGE, OR ANY INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL LOSS OR DAMAGE, LOST PROFITS, LOSS OF USE, OR LOST
REVENUES SUFFERED BY ANY OTHER PARTY ARISING FROM OR RELATING TO A PARTY'S
PERFORMANCE, NON-PERFORMANCE, BREACH OF, OR DEFAULT UNDER A COVENANT, WARRANTY,
REPRESENTATION, TERM, OR CONDITION OF THIS AGREEMENT.
EACH PARTY WAIVES AND
RELINQUISHES CLAIMS FOR SUCH PUNITIVE, MULTIPLE, EXEMPLARY, INDIRECT, SPECIAL,
INCIDENTAL, OR CONSEQUENTIAL LOSSES OR DAMAGES, LOST PROFITS, LOSS OF USE, OR
LOST REVENUES.
THE LIMITATIONS ON LIABILITY AND DAMAGES SET FORTH IN THIS
SECTION 9.4 APPLY TO ALL CAUSES OF ACTION THAT MAY BE ASSERTED HEREUNDER,
WHETHER SOUNDING IN BREACH OF CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT
LIABILITY, NEGLIGENCE, OR OTHERWISE.
SECTION 9.5
HEADINGS.
THE ARTICLE AND SECTION HEADINGS OF THIS
AGREEMENT ARE FOR REFERENCE PURPOSES ONLY AND ARE TO BE GIVEN NO EFFECT IN THE
CONSTRUCTION OR INTERPRETATION OF THIS AGREEMENT.
SECTION 9.6
NOTICES.
ALL NOTICES AND OTHER COMMUNICATIONS HEREUNDER
SHALL BE IN WRITING AND SHALL BE DELIVERED PERSONALLY, TELECOPIED (IF RECEIPT OF
WHICH IS CONFIRMED BY THE PERSON TO WHOM SENT), OR SENT BY INTERNATIONALLY
RECOGNIZED DELIVERY SERVICE TO THE PARTIES AT THE FOLLOWING ADDRESSES (OR TO
SUCH OTHER PERSON OR ADDRESS FOR A PARTY AS SPECIFIED BY SUCH PARTY BY LIKE
NOTICE) (NOTICE SHALL BE DEEMED GIVEN AND RECEIVED UPON RECEIPT, IF DELIVERED
PERSONALLY, BY DELIVERY SERVICE OR BY TELECOPY, OR ON THE THIRD BUSINESS DAY
FOLLOWING MAILING, IF MAILED, EXCEPT THAT NOTICE OF A CHANGE OF ADDRESS SHALL
NOT BE DEEMED GIVEN UNTIL ACTUALLY RECEIVED):
80
(A)
IF TO ANY SUMITOMO INTERESTHOLDER, TO SUMITOMO AT:
Sumitomo Corporation
8-11, Harumi, 1-chome,
Chuo-ku, Tokyo, 104-8610 Japan
Attention:
General Manager, Non-Ferrous Metals
& Raw Materials Dept.
Telecopier:
+81-3-5166-6423
(B)
IF TO ANY APEX INTERESTHOLDER, TO APEX AT:
c/o Apex Silver Mines