Common use of LIMITATIONOF LIABILITY Clause in Contracts

LIMITATIONOF LIABILITY. 22.1 Except for any indemnification obligations of the Parties hereunder, each Party’s liability to the other for any Loss relating to or arising out of any cause whatsoever, including any negligent act or omission (whether willful or inadvertent) whether based in contract, tort, strict liability or otherwise, relating to the performance of this Agreement, shall not exceed a credit for the actual cost of the Facilities,products, services or functions not performed or provided or improperly performed or provided. 22.2 Except as otherwise expressly provided in specific Attachments, in the case of any Loss alleged or claimed by a Third Party to have arisen out of the negligence or willful misconduct of any Party, each Party shall bear, and its obligation shall be limited to, that portion (as mutually agreed to by the Parties or as otherwise established) of the resulting expense caused by its own neglgi ence or willful misconduct or that of its agents, servants, contractors, or others acting inaidor concert with it. 22.3 A Party may, in its sole discretion, provide in its tariffs and contracts with its End Users or Third Parties that relate to any Interconnection products and/or services provided or contemplated under this Agreement that, to the maximum extent permitted by Applicable Law, such Party shall not be liable to such End User or Third Party for (i) any Loss relating to or arising out of this Agreement, whether in contract, tort or otherwise, that exceeds the amount such Party would have charged the End User or Third Party for the Interconnection products and/or services that gave rise to such Loss and (ii) any Consequential Damages. If a Party elects not to place in its tariffs or contracts such limitation(s) of liability, and the other Party incurs a Loss as a result thereof, the first Party shall indemnify and reimburse the other Party for that portion of the Loss that would have been limited had the first Party included in its tariffs and contracts the limitation(s) of liability described in Section 22.0 above. 22.4 Neither Carrier nor AT&T-22STATE shall be liable to the other Party for any Consequential Damages suffered by the other Party, regardless of the form of action, whether in contract, warranty, strict liability, tort or otherwise, including negligence of any kind, whether active or passive (and including alleged breaches of this Agreement and causes of action alleged to arise from allegations that breach of this Agreement constitutes a violation of the Act or other statute), and regardless of whether the Parties knew orhad been advised of ht e possibility that such damages could result in connection with or arising from anything said, omitted, or done hereunder or related hereto, including willful acts or omissions; provided that the foregoing shall not limit a Party’s obligation under Section 22.0 above to indemnify, defend, and hold the other Party harmless against any amounts payable to a Third Party, including any Losses, and Consequential Damages of such Third Party; provided, however, that nothing in this Section 22.4 shall impose indemnity obligations on a Party for any Loss or Consequential Damages suffered by that Party’s End User in connection with any affected Interconnection products and/or srevices. Except as provided in the prior sentence, each Party (“Indemnifying Party”) hereby releases and holds harmless the other Party (“Indemnitee”) (and Indemnitee’s Affiliates, and its respective officers, directors, employees and agents) against any Loss or Claimmade by the Indemnifying Party’s End User.

LIMITATIONOF LIABILITY. 22.1 Except for any indemnification obligations of the Parties hereunder, each PartyAT&T’s liability to the other CUSTOMER for any Loss loss, cost, claim, injury, liability or expense, including reasonable attorneys’ fees relating to or toor arising out of any cause whatsoever, including any negligent act or omission (whether willful or inadvertent) whether based in contract, negligence or other tort, strict liability or otherwiselai bility orotherwise, relating to the performance of this Agreement, shall not exceed a credit for the actual cost of the Facilities,products, services or functions Services not performed or provided or improperly performed or providedperformed. 22.2 Except as otherwise expressly provided in specific Attachments, in the case of any Loss alleged or claimed by a Third Party to have arisen out of the negligence or willful misconduct of any Party, each Party shall bear, and its obligation shall be limited to, that portion (as mutually agreed to by the Parties or as otherwise established) of the resulting expense caused by its own neglgi ence or willful misconduct or that of its agents, servants, contractors, or others acting inaidor concert with it. 22.3 A Party may6.3.1 CUSTOMERmay, in its sole discretion, provide in its tariffs and contracts with its End Users or Third Parties and third parties that relate to any Interconnection products and/or services Service provided or contemplated under this Agreement Agreement, that, to the maximum extent maximumextent permitted by Applicable Lawapplicable law, such Party CUSTOMER shall not be liable to such the End User or Third Party third party for (i) any Loss loss relating to or toor arising out of this Agreement, whether in contract, tort or otherwise, that exceeds the amount such Party would CUSTOMERwould have charged the End User or Third Party that applicable person for the Interconnection products and/or services Service that gave rise to such Loss loss and (ii) any Consequential Damagesindirect, incidental or consequential damages. If a Party To the extent that CUSTOMER elects not to place toplace in its tariffs or contracts such limitation(s) limitations of liability, and the other Party AT&T incurs a Loss loss as a result thereof, the first Party CUSTOMER shall indemnify and reimburse the other Party AT&T for that portion of the Loss loss that would have been limited had the first Party CUSTOMER included in its tariffs and contracts the limitation(s) limitations of liability that AT&T included in its own tariffs at the time of such loss, except to the extent caused by AT&T’sgross negligence orwillful misconduct. 6.3.2 AT&T shall not be liable for damages to CUSTOMER’s terminal location, equipment or End User premises resulting from the furnishing of a Service, including, but not limited to, the installation and removal of equipment or associated wiring, except to the extent caused by AT&T’s negligence or willful misconduct. 6.3.3 Under no circumstance shall AT&T be responsible or liable for indirect, incidental, or consequential damages, including, but not limited to, economic loss or lost business or profits, damages arising from the use or performance of equipment or software, or the loss of use of software or equipment, or accessories attached thereto, delay, error, or loss of data. In connection with this limitation of liability, CUSTOMER recognizes that AT&Tmay,from time to time, provide advice, make recommendations, or supply other analyses related to the Services described in Section 22.0 abovethis Agreement, and, while AT&T shall use diligent efforts inthis regard, CUSTOMER acknowledges and agrees that this limitation of liability shall apply toprovision of such advice, recommendations, and analyses. 22.4 Neither Carrier nor AT&T-22STATE shall be liable to 6.3.4 To the other Party for extent any Consequential Damages suffered by the other Party, regardless of the form of action, whether in contract, warranty, strict liability, tort or otherwise, including negligence of any kind, whether active or passive (and including alleged breaches specific provision of this Agreement and causes of action alleged purports to arise from allegations that breach of this Agreement constitutes a violation of the Act or other statute), and regardless of whether the Parties knew orhad been advised of ht e possibility that such damages could result in connection with or arising from anything said, omittedimpose liability, or done hereunder limitation of liability, on AT&T different fromor in conflict with the liability or related hereto, including willful acts or omissions; provided that the foregoing shall not limit a Party’s obligation under Section 22.0 above to indemnify, defend, and hold the other Party harmless against any amounts payable to a Third Party, including any Losses, and Consequential Damages limitation of such Third Party; provided, however, that nothing liability set forth in this Section 22.4 Section, then with respect to any facts or circumstances covered by such specific provisions, the liability or limitation of liability containedin such specific provision shall impose indemnity obligations on a Party for any Loss or Consequential Damages suffered by that Party’s End User in connection with any affected Interconnection products and/or srevices. Except as provided in the prior sentence, each Party (“Indemnifying Party”) hereby releases and holds harmless the other Party (“Indemnitee”) (and Indemnitee’s Affiliates, and its respective officers, directors, employees and agents) against any Loss or Claimmade by the Indemnifying Party’s End Userapply.