INTO ANY CONTRACTS ON BEHALF OF BREITBURN, THE ACQUIRED
COMPANIES OF THEIR AFFILIATES IN CONNECTION WITH PROVIDING THE MARKETING
SERVICES, QUICKSILVER UNDERSTANDS AND AGREES THAT QUICKSILVER HAS NOT BEEN
GRANTED AUTHORITY TO ENTER INTO ANY CONTRACTS ON BEHALF OF BREITBURN, THE
ACQUIRED COMPANIES OR THEIR AFFILIATES.
8.
DISCLAIMER, INDEMNIFICATION AND
LIABILITY LIMITATIONS.
(A)
DISCLAIMER. NOTWITHSTANDING ANY OTHER
PROVISIONS OF THIS AGREEMENT, QUICKSILVER DOES NOT MAKE, AND EXPRESSLY
DISCLAIMS, ANY REPRESENTATIONS OR WARRANTIES, WRITTEN OR ORAL, STATUTORY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE PERFORMANCE OF THE SERVICES, INCLUDING,
WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY EXCLUDED AND
DISCLAIMED.
(B)
EXCULPATION AND INDEMNIFICATION. BREITBURN
HEREBY AGREES TO DEFEND, RELEASE, INDEMNIFY AND HOLD HARMLESS QUICKSILVER AND
EACH OF THE OTHER QUICKSILVER INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL
DAMAGES ARISING OUT OF, RESULTING FROM OR RELATING TO ANY ACT OR OMISSION
PERFORMED OR OMITTED IN CONNECTION WITH THE SERVICES OR UNDER OR ON ACCOUNT OF
THIS AGREEMENT (A) IN A MANNER REASONABLY BELIEVED BY QUICKSILVER TO BE WITHIN
THE SCOPE OF THE AUTHORITY GRANTED TO QUICKSILVER IN THIS AGREEMENT AND (B) IN A
MANNER NOT CONSTITUTING WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, EVEN IF SUCH
DAMAGES ARISE OUT OF OR RESULT FROM, SOLELY OR IN PART, THE SOLE, ACTIVE,
PASSIVE, CONCURRENT OR COMPARATIVE NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT
OR VIOLATION OF LAW OF OR BY QUICKSILVER OR ANY OTHER QUICKSILVER INDEMNIFIED
PARTIES.
(C)
LIABILITY LIMITATIONS. IN NO EVENT SHALL
ANY PARTY AND/OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL,
INDIRECT OR PUNITIVE DAMAGES CLAIMED BY A PARTY HERETO OR ANY BREITBURN
INDEMNIFIED PARTIES OR QUICKSILVER INDEMNIFIED PARTIES ARISING FROM OR RELATING
TO (A) ANY ACTIONS FOR INDEMNIFICATION UNDER SECTION 8(B) OR (B) ANY BREACH OR
ALLEGED BREACH OF THIS AGREEMENT (INCLUDING ANY FAILURE OR ALLEGED FAILURE TO
COMPLY WITH THIS AGREEMENT); PROVIDED, HOWEVER, THAT THE FOREGOING
6
SHALL NOT BAR RECOVERY BY A QUICKSILVER INDEMNIFIED PARTY FOR INDEMNIFIED
DAMAGES UNDER SECTION 8(B) TO THE EXTENT SUCH DAMAGES ARE OWED BY THE
QUICKSILVER INDEMNIFIED PARTY TO AN UNAFFILIATED THIRD PARTY (WHICH SHALL NOT
INCLUDE ANY QUICKSILVER INDEMNIFIED PARTIES AND ANY OF THEIR RESPECTIVE
AFFILIATES).
9.
NOTICES.
SUBJECT TO QUICKSILVER'S
RIGHT TO RELY ON COMMUNICATIONS FROM BREITBURN'S CONTACT PERSONS PURSUANT TO
SECTION 5, ALL WRITTEN NOTICES AND COMMUNICATIONS REQUIRED OR PERMITTED UNDER
THIS AGREEMENT SHALL BE DELIVERED AS PROVIDED IN SECTION 11.1 OF THE
CONTRIBUTION AGREEMENT.
10.
AMENDMENTS. THIS AGREEMENT MAY NOT BE AMENDED
EXCEPT BY AN INSTRUMENT IN WRITING SIGNED BY QUICKSILVER AND BREITBURN. ANY
RIGHTS HEREUNDER SHALL NOT BE WAIVED EXCEPT BY AN INSTRUMENT IN WRITING SIGNED
BY QUICKSILVER AND BREITBURN.
11.
ASSIGNMENT. NEITHER PARTY MAY ASSIGN ALL OR
ANY PORTION OF ITS RIGHTS, OR DELEGATE ALL OR ANY PORTION OF ITS DUTIES
HEREUNDER, UNLESS IT CONTINUES TO REMAIN LIABLE FOR THE PERFORMANCE OF ITS
OBLIGATIONS HEREUNDER AND OBTAINS THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY.
NOTHING CONTAINED IN THIS AGREEMENT, EXPRESS OR IMPLIED, SHALL