Common use of Limitation on Consequential Damages Clause in Contracts

Limitation on Consequential Damages. 12.7.1 Notwithstanding any other provision of the CMA Documents, under no circumstances shall TxDOT be liable for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this CMA, tort (including negligence) or any other theory of liability, and DB Contractor hereby releases TxDOT from any such liability. 12.7.2 Notwithstanding any other provision of the CMA Documents and except as set forth in this Section 12.7.2 and in Section 12.7.3, to the extent permitted by applicable Law, DB Contractor shall not be liable to TxDOT for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this CMA, in tort (including negligence) or any other theory of liability, and TxDOT hereby releases DB Contractor from any such liability. 12.7.3 The foregoing limitation on DB Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, (ii) covered by the proceeds of insurance actually carried by or insuring any DB Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) DB Contractor is deemed to have self- insured the Loss pursuant to Section 7.8.4; (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any DB Contractor-Related Entity; (c) DB Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA Documents; (d) DB Contractor’s obligation to pay Key Personnel Unavailability Fees owing under Section

Limitation on Consequential Damages. 12.7.1 Notwithstanding any other provision of the CMA Documents, under no circumstances shall TxDOT be liable for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this CMA, tort (including negligence) or any other theory of liability, and DB Contractor hereby releases TxDOT from any such liability. 12.7.2 Notwithstanding any other provision of the CMA Documents and except as set forth in this Section 12.7.2 and in Section 12.7.3, to the extent permitted by applicable Law, DB Contractor shall not be liable to TxDOT for punitive damages or indirect, incidental or consequential damages, whether arising out of breach of this CMA, in tort (including negligence) or any other theory of liability, and TxDOT hereby releases DB Contractor from any such liability. 12.7.3 The foregoing limitation on DB Contractor’s liability for punitive, indirect, incidental or consequential damages shall not apply to or limit any right of recovery TxDOT may have respecting the following: (a) Losses (including defense costs) to the extent (i) covered by the proceeds of insurance required to be carried pursuant to Section 7, (ii) covered by the proceeds of insurance actually carried by or insuring any DB Contractor-Related Entity under policies solely with respect to the Project and the Maintenance Services, regardless of whether required to be carried pursuant to Section 7, or (iii) DB Contractor is deemed to have self- insured the Loss pursuant to Section 7.8.4;; Texas Department of Transportation - 90 - Execution Version I-635 LBJ East Project Capital Maintenance Agreement (b) Losses arising out of fraud, criminal conduct, intentional misconduct (which does not include any intentional Event of Default), recklessness, bad faith or gross negligence on the part of any DB Contractor-Related Entity; (c) DB Contractor’s indemnities set forth in Section 15.1 or elsewhere in the CMA Documents; (d) DB Contractor’s obligation to pay Key Personnel Unavailability Fees owing under Section