Indemnification and Limitation of Liabilities. Except in cases of criminal intent or wilful misconduct; 17.1 Both parties hereby agree that neither party shall hold the other party liable, whether under this Agreement or otherwise, for any indirect or consequential loss or damages, loss of production or loss of profits or interest costs, provided that this exclusion does not apply to any obligation under this Agreement to pay penalties or damages to the other party for Services not provided in terms of this Agreement; 17.2 Subject only to the limitations set forth in this clause, a Party who breaches any of its duties under this Agreement or any Service Annexure shall be liable to the other party for direct damages actually incurred by the other party as a result of such breach provided that for any claim or number of claims, each Party's aggregate liability shall be limited to the annual contract value of the Services provided under this Agreement. Direct damages shall include the following and neither party shall assert that they are consequential, indirect or special damages to the extent they result from a Party's failure to fulfill its duties in accordance with this Agreement: 17.2.1 costs to recreate or reload any of Drakenstein's lost or damaged information utilising the latest available back-up data; 17.2.2 costs to implement a workaround in respect of a failure to provide the Services, including salaries of employees for overtime worked; 17.2.3 costs to replace lost or damaged equipment, hardware, software or other materials; 17.2.4 costs and expenses incurred to correct errors in hardware or software maintenance and enhancements or modifications, if any, provided as part of the Services; 17.2.5 costs and expenses incurred to procure the Services from an alternate source. 17.3 The Service Provider hereby indemnifies and shall hold harmless Drakenstein: 17.3.1 Against all third party claims of infringement of trademarks, industrial design, use of confidential information, or intellectual copy or patent rights, arising out, or in connection with the Services or any misappropriation by the Service Provider or any of its sub-contractors; 17.3.2 Unless otherwise expressly stated herein, the Service Provider shall be solely responsible for, and shall indemnify Drakenstein against all sub- contractor claims for costs, losses and expenses of the Service Provider necessary to meet the Service Provider's duties arising under this Agreement and the Service Annexures; 17.4 Each Party shall have a duty to mitigate damages for which the other Party is liable.
Appears in 1 contract
Sources: Business Agreement for It Services
Indemnification and Limitation of Liabilities. Except CLEC shall indemnify and hold harmless Qwest, its owners, parents, subsidiaries, affiliates, agents, directors, and employees against any and all liabilities, claims, judgments, losses, orders, awards, damages, costs, fines, penalties, costs of defense, and attorneys’ fees (“Liabilities”) to the extent they arise from or in cases connection with: (1) infringement, or alleged infringement, of criminal intent any patent rights or wilful misconduct;
17.1 Both parties hereby agree that neither party shall hold claims caused, or alleged to have been caused, by the other party liableuse of any apparatus, whether appliances, equipment, or parts thereof, furnished, installed or utilized by the CLEC; (2) actual or alleged fault or negligence of the CLEC, its officers, employees, agents, subcontractors and/or representatives; (3) furnishing, performance, or use of any material supplied by CLEC under this Agreement Contract or otherwise, for any indirect or consequential loss or damages, loss of production or loss of profits or interest costs, provided that this exclusion does not apply product liability claims relating to any obligation material supplied by CLEC under this Agreement Contract; (4) failure of CLEC, its officers, employees, agents, subcontractors and/or representatives to pay penalties comply with any term of this Contract or damages any applicable local, state, or federal law or regulation, including but not limited to the OSH Act and environmental protection laws; (5) assertions under workers’ compensation or similar employee benefit acts by CLEC or its employees, agents, subcontractors, or subcontractors’ employees or agents; (6) the acts or omissions (other party for Services not than the gross negligence or willful misconduct) of Qwest, its officers, employees, agents, and representatives, except as otherwise provided in terms of this Agreement;
17.2 Subject only to paragraphs 11.3 and 11.4 below; and/or, (7) any economic damages that may rise, including damages for delay or other related economic damages that the limitations set forth in this clause, a Party who breaches any of its duties under this Agreement Qwest or any Service Annexure shall be liable to the other party for direct damages actually incurred by the other party third parties may suffer or allegedly suffer as a result of such breach provided that for any claim the performance or number of claims, each Party's aggregate liability shall be limited to the annual contract value of the Services provided under this Agreement. Direct damages shall include the following and neither party shall assert that they are consequential, indirect or special damages to the extent they result from a Party's failure to fulfill its duties in accordance with this Agreement:
17.2.1 costs to recreate or reload any perform work by the CLEC. If both Qwest and the CLEC are sued as a result of Drakenstein's lost or damaged information utilising the latest available back-up data;
17.2.2 costs to implement a workaround in respect of a failure to provide the Services, including salaries of employees for overtime worked;
17.2.3 costs to replace lost or damaged equipment, hardware, software or other materials;
17.2.4 costs and expenses incurred to correct errors in hardware or software maintenance and enhancements or modifications, if any, provided as part of the Services;
17.2.5 costs and expenses incurred to procure the Services from an alternate source.
17.3 The Service Provider hereby indemnifies and shall hold harmless Drakenstein:
17.3.1 Against all third party claims of infringement of trademarks, industrial design, use of confidential information, or intellectual copy or patent rights, arising out, or in connection with the Services performance of work arising out of this Contract, the parties hereby agree that the defense of the case (including the costs of the defense and attorneys’ fees) shall be the responsibility of the CLEC, if Qwest desires. Qwest shall give the CLEC reasonable written notice of all such claims and any suits alleging such claims and shall furnish upon the CLEC’s request and at the CLEC’s expense all information and assistance available to the Qwest for such defense. The parties shall employ Article 13, Dispute Resolution, to resolve any dispute concerning the proportional fault and liability after the underlying case is terminated.
11.1 IF WORK IS PERFORMED IN THE STATE OF WASHINGTON UNDER THIS GENERAL CONTRACT, THE CLEC ACKNOWLEDGES AND AGREES THAT THIS INDEMNIFICATION OBLIGATION SHALL INCLUDE, BUT IS NOT LIMITED TO, ALL CLAIMS AGAINST QWEST BY AN EMPLOYEE OR FORMER EMPLOYEE OF THE CLEC, AND THE CLEC EXPRESSLY WAIVES ALL IMMUNITY AND LIMITATION ON LIABILITY UNDER ANY INDUSTRIAL INSURANCE ACT, OTHER WORKERS’ COMPENSATION ACT, DISABILITY BENEFIT ACT, OR OTHER EMPLOYEE BENEFIT ACT OF ANY JURISDICTION WHICH WOULD OTHERWISE BE APPLICABLE IN THE CASE OF SUCH A CLAIM.
11.2 Except as expressly provided herein, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO, ANY LOSS OF USE, LOSS OF BUSINESS OR LOSS OF PROFIT; provided, however, there shall be no limitation on a party’s liability to the other for any fines or penalties imposed on the other party by any court of competent jurisdiction or federal, state or local administrative agency resulting from the failure of the party to comply with any term or condition of this Contract or any misappropriation by the Service Provider valid and applicable law, rule or any of its sub-contractors;regulation.
17.3.2 Unless otherwise expressly stated herein11.3 FOR ANY WORK PERFORMED IN ARIZONA, the Service Provider shall be solely responsible forIDAHO, and shall indemnify Drakenstein against all sub- contractor claims for costsSOUTH DAKOTA, losses and expenses of the Service Provider necessary to meet the Service Provider's duties arising under this Agreement and the Service Annexures;UTAH OR WASHINGTON, SECTION 11(6) SHALL NOT EXTEND TO THE SOLE NEGLIGENCE OF QWEST BUT SHALL EXTEND TO THE NEGLIGENCE OF QWEST WHEN CONCURRENT WITH THAT OF THE CLEC.
17.4 Each Party shall have a duty to mitigate damages for which the other Party is liable11.4 FOR ANY WORK PERFORMED IN THE STATES OF MINNESOTA, NEBRASKA, NEW MEXICO, OR OREGON, ARTICLE 11 SHALL NOT APPLY, EXCEPT THAT SECTION 11 SHALL APPLY FOR WORK PERFORMED IN MINNESOTA FOR MAINTENANCE OR REPAIR OF MACHINERY, EQUIPMENT, OR OTHER SUCH DEVICES, USED AS PART OF A MANUFACTURING, COVERING, OR OTHER PRODUCTION PROCESS INDULGING ELECTRIC, GAS, STEAM, AND TELEPHONE UTILITY EQUIPMENT USED FOR PRODUCTION, TRANSMISSION, OR DISTRIBUTION PURPOSES.
Appears in 1 contract
Sources: Right of Way Access Agreement
Indemnification and Limitation of Liabilities. Except in cases of criminal intent or wilful misconduct;
17.1 Both parties hereby agree that neither party WSP shall indemnify and hold the other party liableharmless CenturyLink, whether under this Agreement or otherwiseits owners, for parents, subsidiaries, affiliates, agents, directors, and employees against any indirect or consequential loss or and all liabilities, claims, judgments, losses, orders, awards, damages, loss of production or loss of profits or interest costs, provided that this exclusion does not apply to any obligation under this Agreement to pay penalties or damages to the other party for Services not provided in terms fines, penalties, costs of this Agreement;
17.2 Subject only to the limitations set forth in this clausedefense, a Party who breaches any of its duties under this Agreement or any Service Annexure shall be liable to the other party for direct damages actually incurred by the other party as a result of such breach provided that for any claim or number of claims, each Party's aggregate liability shall be limited to the annual contract value of the Services provided under this Agreement. Direct damages shall include the following and neither party shall assert that they are consequential, indirect or special damages attorneys’ fees (“Liabilities”) to the extent they result arise from a Party's failure to fulfill its duties in accordance with this Agreement:
17.2.1 costs to recreate or reload any of Drakenstein's lost or damaged information utilising the latest available back-up data;
17.2.2 costs to implement a workaround in respect of a failure to provide the Services, including salaries of employees for overtime worked;
17.2.3 costs to replace lost or damaged equipment, hardware, software or other materials;
17.2.4 costs and expenses incurred to correct errors in hardware or software maintenance and enhancements or modifications, if any, provided as part of the Services;
17.2.5 costs and expenses incurred to procure the Services from an alternate source.
17.3 The Service Provider hereby indemnifies and shall hold harmless Drakenstein:
17.3.1 Against all third party claims of infringement of trademarks, industrial design, use of confidential information, or intellectual copy or patent rights, arising out, or in connection with with: (1) infringement, or alleged infringement, of any patent rights or claims caused, or alleged to have been caused, by the Services use of any apparatus, appliances, equipment, or parts thereof, furnished, installed or utilized by the WSP; (2) actual or alleged fault or negligence of the WSP, its officers, employees, agents, subcontractors and/or representatives; (3) furnishing, performance, or use of any material supplied by WSP under this Contract or any misappropriation product liability claims relating to any material supplied by the Service Provider WSP under this Contract; (4) failure of WSP, its officers, employees, agents, subcontractors and/or representatives to comply with any term of this Contract or any applicable local, state, or federal law or regulation, including but not limited to the OSH Act and environmental protection laws; (5) assertions under workers’ compensation or similar employee benefit acts by WSP or its employees, agents, subcontractors, or subcontractors’ employees or agents; (6) the acts or omissions (other than the gross negligence or willful misconduct) of CenturyLink, its sub-contractors;
17.3.2 Unless otherwise expressly stated hereinofficers, the Service Provider shall be solely responsible foremployees, agents, and shall indemnify Drakenstein against all sub- contractor claims for costsrepresentatives, losses and expenses of the Service Provider necessary to meet the Service Provider's duties arising under this Agreement and the Service Annexures;
17.4 Each Party shall have a duty to mitigate damages for which the other Party is liable.except as otherwise provided in paragraphs 11.3 and
Appears in 1 contract
Sources: General Agreement