Common use of Liability, general Clause in Contracts

Liability, general. Neither IUK nor the IAA Shipper shall be liable to the other for: (a) any Consequential Losses; or (b) any special or incidental loss or damage; sustained as a result of any action or failure on the part of IUK or on the part of the IAA Shipper (including, for this purpose, their respective contractors, subcontractors, employees or representatives) except that such exclusion shall not apply to liability under each of the indemnities in Clauses 2.8(b) and 3.3, 7.1(a)(vi), 7.4(f) and 7.5(b). The Party in whose favour the indemnities contained in Clauses 2.7(b), 3.3, 7.1, 7.4 and 7.5 above is given shall: (a) notify the indemnifying Party as soon as reasonably practicable of any claim or fact or circumstance which may give rise to a claim; (b) not make any admission of liability or any admission of any material fact or matter relating to a claim without the written agreement of the indemnifying Party; (c) permit the indemnifying Party to conduct the defence and settlement of any claim (subject to the indemnifying Party undertaking to provide the other Party with such information in relation thereto as that other Party may from time to time reasonably request). Nothing in this Agreement restricts or limits a Party’s obligation under law to mitigate a loss it may suffer or incur or has suffered or incurred that may give rise to a claim under an indemnity given in this Agreement. Nothing in this Agreement excludes or limits the liability of either Party for death or personal injury resulting from the negligence of such Party. Nothing in this Agreement prevents either Party from or restricts it in enforcing any obligation (including suing for a debt) owed to it under or pursuant to this Agreement. Subject to Clause 8.9 nothing in this Agreement shall be a waiver by either Party of any right or remedy it has (other than under this Agreement) in respect of a breach by the other Party of any applicable law. Subject to Clause 8.6, where this Agreement provides that any amount to be payable by a Party upon or in respect of that Party's breach of any provision of this Agreement or termination of this Agreement the remedy conferred by such provision is exclusive of and is in substitution for any remedy in damages in respect of such breach or the event or circumstances giving rise to such breach. Where this Agreement provides that any amount to be payable by a Party upon or in respect of that Party's breach of any provision of this Agreement or termination of this Agreement the Parties confirm that the amount payable is reasonable and proportionate to protect the interest of the Party in receipt of such payment. The rights and remedies of the Parties pursuant to this Agreement exclude and are in place of any rights or remedies of either Party in tort (including negligence and nuisance) in respect of the subject matter of this Agreement and accordingly, but without affecting the operation of Clauses

Liability, general. Neither IUK nor Solely for purposes of third-party claims, the IAA Shipper following provisions shall be liable apply to any claim for defense or indemnity made by a Party (“Injured Party”) of the other for:Party (“Responsible Party”): (a) An Injured Party shall give Responsible Party written notice of any Consequential LossesClaim, assertion, event or proceeding by or in respect of a third party as to which such Injured Party may request payment, reimbursement or indemnification hereunder as soon as is practicable and in any event within sixty (60) days of the time that such Injured Party learns of such Claim, assertion, event or proceeding; orprovided, however, that the failure to so notify Responsible Party shall not affect rights to indemnification or otherwise hereunder except to the extent that Responsible Party is actually prejudiced by such failure. (b) any special Responsible Party shall have the right by notice given to the Injured Party within sixty (60) days of receipt of notice of the Claim to direct, through counsel of its own choosing reasonably acceptable to the Injured Party, the defense or incidental loss or damage; sustained as a result settlement of any action such Claim or failure proceeding at its own expense, provided that Responsible Party shall not settle any such Claim or proceeding without arranging for the release of the Injured Party and the partners, members, shareholders or other owners of the Injured Party. If Responsible Party elects to assume the defense of any such Claim or proceeding, Responsible Party shall consult with the Injured Party and the Injured Party may participate in such defense, but in such case the expenses of the Injured Party shall be paid by the Injured Party. The Injured Party shall provide Responsible Party with access to its records and personnel relating to any such Claim, assertion, event or proceeding during normal business hours and shall otherwise cooperate with Responsible Party in the defense or settlement thereof, and Responsible Party shall reimburse the Injured Party for all its reasonable out-of-pocket expenses in connection therewith. If Responsible Party elects to direct the defense of any such Claim or proceeding, the Injured Party shall not pay, or permit to be paid, any part of any Claim or demand arising from such asserted Liability unless Responsible Party consents in writing to such payment or unless a final judgment from which no appeal may be taken by or on behalf of Responsible Party is entered against the Injured Party for such Liability. If Responsible Party fails to defend or if, after commencing or undertaking any such defense, Responsible Party fails to diligently prosecute or withdraws from such defense (or an unacceptable conflict of interest shall exist or arise), the Injured Party shall have the right to undertake the defense or settlement thereof, at Responsible Party’s expense and in that event the Injured Party may settle such Claim or proceeding prior to a final judgment thereon or elect to forego any appeal with respect thereto. (c) All amounts owed by the Responsible Party to the Injured Party, after a final judgment (without further right of appeal) determining the amount owed is rendered, or after a final settlement or agreement as to the amount owed is executed, shall be paid in full to the Injured Party in readily available funds. If the amounts owed by the Responsible Party to the Injured Party are not paid when due, interest shall accrue on such amount at the rate of five percent (5%) per annum compounded annually until paid in full. (d) Responsible Party may procure and maintain liability insurance, at its own expense, for itself and for the benefit of any Injured Party, and Responsible Party may satisfy, in whole or in part, its obligation to defend or indemnify an Injured Party as set forth in this Section 8.5 through the proceeds of liability insurance. Injured Party will cooperate in good faith with Responsible Party to comply with the terms and conditions of such liability insurance and to maximize the proceeds of such liability insurance, if any. Notwithstanding the foregoing, the availability or lack of insurance coverage under any insurance policy, whether required herein or otherwise, is not intended, nor shall such availability or lack thereof be argued to, alter, limit, change or modify any defense or indemnity obligation undertaken in this Agreement. (e) Anything herein to the contrary notwithstanding, no breach of any representation, warranty, covenant or agreement contained herein shall give rise to any right on the part of IUK or on any party, after the part consummation of the IAA Shipper transactions contemplated hereby, to rescind this Agreement or any of the transactions contemplated hereby. (includingf) Notwithstanding anything to the contrary contained herein: (i) the maximum aggregate liability of Investor, and the maximum aggregate amount that may be awarded to and collected by Summit, under this Agreement and any Ancillary Agreements shall, under no circumstances whatsoever, exceed the sum of One Million and 00/100 Dollars ($1,000,000.00) per Project, and Fifteen Million and 00/100 Dollars ($15,000,000.00) in the aggregate for this purposeall Projects (the “Cap Amount”); and (ii) no Claim by Summit alleging a breach by Investor of any representation, their respective contractorswarranty and/or covenant of Investor contained herein or any of the Ancillary Agreements may be made, subcontractors, employees or representatives) except that such exclusion and Investor shall not apply to liability under each be liable for any judgment in any action based upon any such claim, unless and until such Claim, either alone or together with any other Claims by Investor alleging a breach by Investor of any such representation, warranty and/or covenant, is for an aggregate amount in excess of One Million and 00/100 Dollars ($1,000,000.00) (the indemnities in Clauses 2.8(b) and 3.3, 7.1(a)(vi“Floor Amount”), 7.4(f) and 7.5(b). The Party in whose favour which event Investor’s aggregate liability respecting any final judgment concerning such Claim or Claims shall be for the indemnities contained in Clauses 2.7(b)entire amount thereof, 3.3, 7.1, 7.4 and 7.5 above is given shall: (a) notify the indemnifying Party as soon as reasonably practicable of any claim or fact or circumstance which may give rise to a claim; (b) not make any admission of liability or any admission of any material fact or matter relating to a claim without the written agreement of the indemnifying Party; (c) permit the indemnifying Party to conduct the defence and settlement of any claim (subject to the indemnifying Party undertaking Cap Amount set forth in clause (i) above; provided, however, that if any such final judgment is for an amount that is less than or equal to provide the other Party Floor Amount, then Investor shall have no liability with such information in relation thereto as that other Party may from time respect thereto. Summit shall be deemed to time reasonably request). Nothing in this Agreement restricts or limits a Party’s obligation under law to mitigate a loss it may suffer or incur or has suffered or incurred that may give rise to have waived any Claim against Investor unless Summit provides written notice of a claim under an indemnity given to Investor prior to the end of the Survival Period and commences a legal action against Investor within sixty (60) days after the end of the Survival Period. Investor shall be deemed to have waived any Claim against Summit unless Investor provides written notice of a claim to Summit prior to the end of the Survival Period and commences a legal action against Summit within sixty (60) days after the end of the Survival Period. (g) Notwithstanding anything to the contrary contained herein, neither the Floor Amount nor the Cap Amount shall apply to, nor shall the Cap Amount be reduced by, any Claims made by Summit with respect to: (A) the indemnities of Summit set forth in this Agreement. Nothing in this Agreement excludes Article X; (B) any Claims relating to the fraud or limits the liability intentional misrepresentation of either Party for death Summit as determined by a final unappealable judgment; (C) any amounts that must be paid or personal injury resulting from the negligence of such Party. Nothing in this Agreement prevents either Party from or restricts it in enforcing any obligation (including suing for a debt) owed to it under or reconciled pursuant to this Agreement. Subject to Clause 8.9 nothing in this Agreement shall be a waiver by either Party of Article III; or (D) any right or remedy it has Pre-Closing Entity Taxes. (other than under this Agreementh) in respect of a breach by the other Party of any applicable law. Subject to Clause 8.6, where this Agreement provides that any amount to be payable by a Party upon or in respect of that Party's breach of any provision The provisions of this Agreement or termination of this Agreement Article VIII shall survive the remedy conferred by such provision is exclusive of and is in substitution for any remedy in damages in respect of such breach or the event or circumstances giving rise to such breach. Where this Agreement provides that any amount to be payable by a Party upon or in respect of that Party's breach of any provision of this Agreement or termination of this Agreement the Parties confirm that the amount payable is reasonable and proportionate to protect the interest of the Party in receipt of such payment. The rights and remedies of the Parties pursuant to this Agreement exclude and are in place of any rights or remedies of either Party in tort (including negligence and nuisance) in respect of the subject matter of this Agreement and accordingly, but without affecting the operation of ClausesClosing.