at the cost and expense of, the other Party, do
all such acts and/or execute and deliver all such instruments and assurances as
are reasonably necessary for carrying out or giving full effect to the terms of
this Agreement.
Section 18.11 No Third Party Beneficiary. Except with respect to the rights of
the Financing Parties, Affiliates and as provided above and the rights of
indemnitees under Article XVI, (a) nothing in this Agreement nor any action
taken hereunder shall be construed to create any duty, liability or standard of
care to any Person that is not a Party, (b) no person that is not a Party shall
have any rights or interest, direct or indirect, in this Agreement or the
services to be provided hereunder and (c) this Agreement is intended solely for
the benefit of the Parties, and the Parties expressly disclaim any intent to
create any rights in any third party as a third-party beneficiary to this
Agreement or the services to be provided hereunder.
Section 18.12 Offset. Any and all amounts owing or to be paid by Owner to
Contractor hereunder, or by Contractor to Owner hereunder, shall be subject to
offset and reduction pro tanto by any amounts that may be owing hereunder at any
time by Contractor to Owner or Owner to Contractor, as the case may be.
Section 18.13 Intentionally left blank.
Section 18.14 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
Section 18.15 Waiver of Consequential Damages; Maximum Liability.
(a) ANYTHING TO THE CONTRARY NOTWITHSTANDING, THE CONTRACTOR AND OWNER WAIVE
CLAIMS AGAINST EACH OTHER FOR SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR
RELATING TO THIS AGREEMENT. OTHER THAN LIQUIDATED DAMAGES AS MAY BE EXPRESSLY
PROVIDED FOR IN THIS AGREEMENT, NEITHER PARTY SHALL
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BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL
LOSS, COMMERCIAL INJURY OR DAMAGES OF ANY NATURE SUCH AS, BUT NOT LIMITED TO,
LOSS OF PROFIT, INCOME, BUSINESS OPPORTUNITY OR PRODUCTION OR LOSS BY REASON OF
PLANT SHUTDOWN, DELAY OR ANY CAUSE OR INCREASED USE OF RAW MATERIAL, ENERGY,
LABOR, FINANCING COSTS, RENTAL EXPENSES, LOSS OF PRODUCTIVITY CLAIMS OF
CUSTOMERS, DAMAGE TO REPUTATION, OR THE LIKE, WHETHER BASED ON CONTRACT,
WARRANTY, TORT (INCLUDING NEGLIGENCE OF ANY NATURE, WHETHER SOLE OR CONCURRENT),
STRICT LIABILITY OR OTHERWISE.
(b) THE MUTUAL WAIVER ABOVE IS APPLICABLE, WITHOUT LIMITATION, TO ALL
CONSEQUENTIAL DAMAGES DUE TO EITHER PARTY'S TERMINATION IN ACCORDANCE WITH
ARTICLE XV.
(c) THE CUMULATIVE MAXIMUM LIABILITY OF CONTRACTOR TO ACHIEVE READY FOR START-UP
OF THE FACILITY UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE OF ANY NATURE, WHETHER SOLE OR CONCURRENT), STRICT
LIABILITY OR OTHERWISE, SHALL NOT EXCEED IN THE AGGREGATE AN AMOUNT EQUAL TO
"*****"% OF THE ALLOCATED CONTRACT PRICE, LESS AMOUNTS PAID BY CONTRACTOR FOR
SCHEDULE LIQUIDATED DAMAGES AND PERFORMANCE LIQUIDATED DAMAGES AND FOR ALL OTHER
LIABILITIES UNDER THIS AGREEMENT ("READY FOR