OWNER HEREBY RELEASE CONTRACTOR FROM ANY LIABILITY IN EXCESS OF THE
MAXIMUM LIABILITY CAP; PROVIDED, THAT, NOTWITHSTANDING THE FOREGOING, BUT IN ANY
EVENT SUBJECT TO SECTION 21.2, THE LIMITATION OF LIABILITY SET FORTH IN THIS
SECTION 21.1 SHALL NOT APPLY TO: (A) CONTRACTOR'S OBLIGATION TO PERFORM AND
COMPLETE THE WORK NECESSARY TO ACHIEVE SUBSTANTIAL COMPLETION FOR EACH STAGE OF
THE LNG FACILITY (SUBJECT TO CONTRACTOR'S RIGHT TO PAY PERFORMANCE LIQUIDATED
DAMAGES WITH RESPECT TO A GUARANTEED PERFORMANCE LEVEL TO WHICH A MINIMUM
PERFORMANCE STANDARD APPLIES IN ACCORDANCE WITH SECTION 9.10); (B) CONTRACTOR'S
OBLIGATIONS UNDER ARTICLE 15; AND (C) CONTRACTOR'S OBLIGATION TO DELIVER TO
OWNER FULL LEGAL TITLE TO AND OWNERSHIP OF ALL OR ANY PORTION OF THE WORK AND
THE LNG FACILITY FREE AND CLEAR OF ANY LIENS OR OTHER ENCUMBRANCE IN ACCORDANCE
WITH THIS AGREEMENT; IN ALL CASES EVEN IF THIS AGREEMENT IS TERMINATED FOR A
CONTRACTOR EVENT OF DEFAULT. IN NO EVENT SHALL AMOUNTS INCURRED BY CONTRACTOR TO
PERFORM THE WORK, INCLUDING TO REPAIR OR REPLACE DEFECTIVE WORK, PRIOR TO
SUBSTANTIAL COMPLETION OF A STAGE, OR TO PERFORM ITS OBLIGATIONS HEREUNDER THAT
ARE COVERED BY PROCEEDS RECEIVED FROM INSURANCE COVERAGE OBTAINED BY CONTRACTOR
PURSUANT TO ARTICLE 16, BE COUNTED AGAINST THE LIMITATION OF LIABILITY SET FORTH
IN THIS SECTION 21.1.
21.2
LIMITATION ON CONSEQUENTIAL, PUNITIVE AND OTHER DAMAGES. NOTWITHSTANDING
ANY OTHER PROVISIONS OF THIS AGREEMENT TO THE CONTRARY, NEITHER OWNER NOR THE
COMMON FACILITIES OWNER, NOR CONTRACTOR, SHALL BE LIABLE TO THE OTHER (OR TO ANY
OTHER PERSON
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CLAIMING THROUGH THEM OR UNDER THIS AGREEMENT) PURSUANT TO THIS AGREEMENT OR
UNDER ANY CAUSE OF ACTION RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT,
WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, PRODUCTS
LIABILITY, PROFESSIONAL LIABILITY, INDEMNITY, CONTRIBUTION, OR ANY OTHER CAUSE
OF ACTION FOR (A) SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL
LOSSES OR DAMAGES; OR (B) LOSS OF PROFITS, LOSS OF USE, LOSS OF PRODUCT, LOSS OF
PRODUCTIVITY, LOSS OF OPPORTUNITY, LOSS OF REVENUES, LOSS OR COST OF OBTAINING
OR MAINTAINING FINANCING, COST OF CAPITAL, LOSS OF OR REDUCTION IN BONDING
CAPACITY, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR CLAIMS BY OWNER'S
CUSTOMERS, WHETHER OR NOT ANY OF THE FOREGOING ARE CONSIDERED OR CLASSIFIED AS
DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, AND OWNER, THE
COMMON FACILITIES OWNER AND CONTRACTOR ON BEHALF OF THEMSELVES AND ANY OTHER
PERSON CLAIMING THROUGH THEM OR UNDER THIS AGREEMENT, HEREBY WAIVE AND RELEASE
EACH OTHER FROM ALL SUCH LOSSES AND DAMAGES. THE WAIVER, RELEASE AND LIMITATION
OF LIABILITY SET FORTH IN THIS SECTION 21.2 SHALL NOT APPLY TO THE DELAY
LIQUIDATED DAMAGES SET OUT IN SECTION 4.3 OR THE PERFORMANCE LIQUIDATED DAMAGES
SET OUT IN SECTION 5.2, OR, IF SUCH LIQUIDATED DAMAGES AMOUNTS ARE FOUND TO BE
UNENFORCEABLE DUE TO A CHALLENGE BY CONTRACTOR OR CONTRACTOR'S GUARANTOR, TO ANY
ACTUAL DAMAGES PAYABLE IN LIEU OF SUCH LIQUIDATED DAMAGES AMOUNTS. IF CONTRACTOR
OR CONTRACTOR GUARANTOR SEEKS AN ORDER FROM A COURT OR A FINDING BY AN
ARBITRATOR TO INVALIDATE OR REDUCE ANY