Liability Restrictions. (a) Subject to Subsection (d) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten percent (10%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (b) and (d) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Dollars ($10,000,000); provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000). (b) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor, then the Parties agree as follows: (i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party; (ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule; (iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pursuant to Subsection (a) of this Section prior to the recovery of damages from a third party, Vendor may reduce the amount of recovery received from such third party by the amount previously paid to Customer in respect of such event causing the damages; and (iv) Amounts recovered by Vendor from third parties shall be first passed on to Customer until Customer's full damages are satisfied. (c) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. (d) The limitations set forth in Subsection (a) of this Section shall not apply with respect to (i) intentional breach by Vendor;
Appears in 2 contracts
Sources: Network Services Agreement (Genuity Inc), Network Services Agreement (Genuity Inc)
Liability Restrictions. (a) Subject to Subsection (de) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten percent (10%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule and the Original Agreement during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (bc) and (de) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Dollars ($10,000,000); provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000).
(b) By way of example and without limitation, in the event that four events occur in calendar year 2000, as described below, for which Vendor would have liability to Customer under Subsection (a) of this Section, then Vendor's liability to Customer for each such event would be as follows:
(i) An event in March 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $17 million, with the preceding twelve month amounts paid of $350 million, the liability of Vendor to Customer for such event would be $17 million; and
(ii) An event in June 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer CONFIDENTIAL TREATMENT REQUESTED damages of $12 million, with the preceding twelve months amounts paid of $375 million, the liability of Vendor to Customer for such event would be $10 million subject to Vendor's obligations set forth in Subsection (c) of this Section; and
(iii) An event in October 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $15 million, with preceding twelve month amounts paid of $400 million, the liability of Vendor to Customer for such event would be $13 million; and
(iv) An event in December 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer damages of $3 million, with the preceding twelve months amounts paid of $425 million, the liability of Vendor to Customer for such event would be $0 subject to Vendor's obligations set forth in Subsection (c) of this Section.
(c) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor, then the Parties agree as follows:
(i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party;
(ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule;; and
(iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pursuant to Subsection (a) of this Section prior to the recovery of damages from a third party, that Vendor may reduce the amount of recovery received from such third party by the amount previously paid to Customer in respect of such event causing the damages; and.
(iv) Amounts recovered by Vendor from third parties shall first be first passed on to Customer until Customer's full damages are satisfied.
(cd) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL CONFIDENTIAL TREATMENT REQUESTED DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(de) The limitations set forth in Subsection (a) of this Section shall not apply with respect to (i) intentional breach by Vendor;; (ii) damages occasioned by an intentional tort or the gross negligence of Vendor; (iii) damages occasioned by Vendor's breach of its obligations described in Article 11 (Confidentiality) of the Master Agreement, or (iv) claims subject to indemnification pursuant to this Agreement (such amounts paid by the indemnitee to third parties shall be deemed to be direct damages) other than claims subject to the indemnity set forth in Section 15(a) of the Master Agreement.
(f) Each Party shall have a duty to reasonably mitigate (i.e., minimize) damages for which the other Party is responsible.
Appears in 1 contract
Liability Restrictions. (a) Subject to Subsection (d) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten percent (10%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (b) and (d) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Dollars ($10,000,000); provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000).
(b) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor, then the Parties agree as follows:
(i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party;
(ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule;
(iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pursuant to Subsection (a) of this Section prior to the recovery of damages from a third party, Vendor may reduce the amount of recovery received from such third party by the amount previously paid to Customer in respect of such event causing the damages; and
(iv) Amounts recovered by Vendor from third parties shall be first passed on to Customer until Customer's full damages are satisfied.
(c) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(d) The limitations set forth in Subsection (a) of this Section shall not apply with respect to (i) intentional breach by Vendor;; (ii) damages occasioned by an intentional tort or the gross negligence of Vendor; (iii) damages occasioned by Vendor' breach of its obligations described in Article 11 (Confidentiality) of the Master Agreement, or (iv) claims subject to indemnification pursuant to this Agreement (such amounts paid by the indemnitee to third parties shall be deemed to be direct damages) other than claims subject to the indemnity set forth in Section 15(a) of the Master Agreement.
(e) Each Party shall have a duty to reasonably mitigate (i.e., minimize) damages for which the other Party is responsible. CONFIDENTIAL TREATMENT REQUESTED EXHIBIT C-1 Broadband Backhaul Purchase Commitment
1. CONFIDENTIALITY This Exhibit specifies Customer's Broadband Backhaul Purchase Commitments pursuant to Schedule C. The Parties specifically acknowledge that the purchase commitment information contained herein is highly confidential and that its disclosure to the public or third parties could cause significant harm to either Customer or Vendor or both.
Appears in 1 contract
Liability Restrictions. (a) Subject to Subsection (de) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten CONFIDENTIAL TREATMENT REQUESTED [*Material Omitted and Separately Filed Under an Application for Confidential Treatment] percent (10%[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule and the Original Agreement during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (bc) and (de) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses [*Material Omitted and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Separately Filed Under an Application for Confidential Treatment] Dollars ($10,000,000); provided, however, [*Material Omitted and Separately Filed Under an Application for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000Confidential Treatment]).
(b) By way of example and without limitation, in the event that four events occur in calendar year 2000, as described below, for which Vendor would have liability to Customer under Subsection (a) of this Section, then Vendor's liability to Customer for each such event would be as follows:
(i) An event in March 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $17 million, with the preceding twelve month amounts paid of $350 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]; and
(ii) An event in June 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer damages of $12 million, with the preceding twelve months amounts paid of $375 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment] subject to Vendor's obligations set forth in Subsection (c) of this Section; and
(iii) An event in October 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $15 million, with preceding twelve month amounts paid of $400 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]; and
(iv) An event in December 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer damages of $3 million, with the preceding twelve months amounts paid of $425 million, the liability of Vendor to Customer for such event would be $ [*Material Omitted and Separately Filed Under an Application for Confidential Treatment] subject to Vendor's obligations set forth in Subsection (c) of this Section.
(c) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions CONFIDENTIAL TREATMENT REQUESTED of third parties beyond the reasonable control of Vendor, then the Parties agree as follows:
(i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party;
(ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule;; and
(iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pursuant to Subsection (a) of this Section prior to the recovery of damages from a third party, that Vendor may reduce the amount of recovery received from such third party by the amount previously paid to Customer in respect of such event causing the damages; and.
(iv) Amounts recovered by Vendor from third parties shall first be first passed on to Customer until Customer's full damages are satisfied.
(cd) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(de) The limitations set forth in Subsection (a) of this Section shall not apply with respect to (i) intentional breach by Vendor;; (ii) damages occasioned by an intentional tort or the gross negligence of Vendor; (iii) damages occasioned by Vendor's breach of its obligations described in Article 11 (Confidentiality) of the Master Agreement, or (iv) claims subject to indemnification pursuant to this Agreement (such amounts paid by the indemnitee to third parties shall be deemed to be direct damages) other than claims subject to the indemnity set forth in Section 15(a) of the Master Agreement.
(f) Each Party shall have a duty to reasonably mitigate (i.e., minimize) damages for which the other Party is responsible.
Appears in 1 contract
Liability Restrictions. (a) Subject to Subsection (de) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten [*Material Omitted and Separately Filed Under an Application for Confidential Treatment] percent (10%[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule and the Original Agreement during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (bc) and (de) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses [*Material Omitted and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Separately Filed Under an Application for Confidential Treatment] Dollars ($10,000,000); provided, however, [*Material Omitted and Separately Filed Under an Application for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000Confidential Treatment]).
(b) By way of example and without limitation, in the event that four events occur in calendar year 2000, as described below, for which Vendor would have liability to Customer under Subsection (a) of this Section, then Vendor's liability to Customer for each such event would be as follows:
(i) An event in March 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $17 million, with the preceding twelve month amounts paid of $350 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]; and
(ii) An event in June 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer CONFIDENTIAL TREATMENT REQUESTED damages of $12 million, with the preceding twelve months amounts paid of $375 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment] subject to Vendor's obligations set forth in Subsection (c) of this Section; and
(iii) An event in October 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $15 million, with preceding twelve month amounts paid of $400 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]; and
(iv) An event in December 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer damages of $3 million, with the preceding twelve months amounts paid of $425 million, the liability of Vendor to Customer for such event would be $ [*Material Omitted and Separately Filed Under an Application for Confidential Treatment] subject to Vendor's obligations set forth in Subsection (c) of this Section.
(c) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor, then the Parties agree as follows:
(i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party;
(ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule;; and
(iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pursuant to Subsection (a) of this Section prior to the recovery of damages from a third party, that Vendor may reduce the amount of recovery received from such third party by the amount previously paid to Customer in respect of such event causing the damages; and.
(iv) Amounts recovered by Vendor from third parties shall first be first passed on to Customer until Customer's full damages are satisfied.
(cd) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL CONFIDENTIAL TREATMENT REQUESTED DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(de) The limitations set forth in Subsection (a) of this Section shall not apply with respect to (i) intentional breach by Vendor;; (ii) damages occasioned by an intentional tort or the gross negligence of Vendor; (iii) damages occasioned by Vendor's breach of its obligations described in Article 11 (Confidentiality) of the Master Agreement, or (iv) claims subject to indemnification pursuant to this Agreement (such amounts paid by the indemnitee to third parties shall be deemed to be direct damages) other than claims subject to the indemnity set forth in Section 15(a) of the Master Agreement.
(f) Each Party shall have a duty to reasonably mitigate (i.e., minimize) damages for which the other Party is responsible.
Appears in 1 contract
Liability Restrictions. (a) Subject to Subsection (d) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten percent (10%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (b) and (d) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Pass- Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Dollars ($10,000,000); provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000).
(b) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions CONFIDENTIAL TREATMENT REQUESTED of third parties beyond the reasonable control of Vendor, then the Parties agree as follows:
(i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party;
(ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule;
(iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pursuant to Subsection (a) of this Section prior to the recovery of damages from a third party, Vendor may reduce the amount of recovery received from such third party by the amount previously paid to Customer in respect of such event causing the damages; and
(iv) Amounts recovered by Vendor from third parties shall be first passed on to Customer until Customer's full damages are satisfied.
(c) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(d) The limitations set forth in Subsection (a) of this Section shall not apply with respect to (i) intentional breach by Vendor;; (ii) damages occasioned by an intentional tort or the gross negligence of Vendor; (iii) damages occasioned by Vendor' breach of its obligations described in Article 11 (Confidentiality) of the Master Agreement, or (iv) claims subject to indemnification pursuant to this Agreement (such amounts paid by the indemnitee to third parties shall be deemed to be direct damages) other than claims subject to the indemnity set forth in Section 15(a) of the Master Agreement.
(e) Each Party shall have a duty to reasonably mitigate (i.e., minimize) damages for which the other Party is responsible. CONFIDENTIAL TREATMENT REQUESTED EXHIBIT C-1 Broadband Backhaul Purchase Commitment
1. CONFIDENTIALITY This Exhibit specifies Customer's Broadband Backhaul Purchase Commitments pursuant to Schedule C. The Parties specifically acknowledge that the purchase commitment information contained herein is highly confidential and that its disclosure to the public or third parties could cause significant harm to either Customer or Vendor or both.
Appears in 1 contract
Liability Restrictions. (a) Subject to Subsection (de) of this Section, the liability of Vendor to Customer for all damages arising out of or related to the Services provided under this Schedule will be limited to, and will not exceed, in the aggregate during any calendar year, ten [*Material Omitted and Separately Filed Under an Application for Confidential Treatment] percent (10[*Material Omitted and Separately Filed Under an Application for Confidential Treatment] %) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses and Monthly Pass-Through Expenses) under this Schedule and the Original Agreement during the twelve (12) month period preceding the date of the event giving rise to such damages; provided, however, for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Five Million Dollars ($5,000,000). Subject to Subsections (bc) and (de) of this Section, the liability of Vendor to Customer for damages arising out of or related -------------------------------------------------------------------------------- Network Services Agreement America Online, Inc./BBN Corporation CONFIDENTIAL Schedule C Schedule C - Page 28 CONFIDENTIAL TREATMENT REQUESTED to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of CONFIDENTIAL TREATMENT REQUESTED Vendor will be further limited and will not exceed, in the aggregate during any calendar year, the lesser of (i) five percent (5%) of the aggregate amounts paid to Vendor by Customer (excluding Out-of-Pocket Expenses [*Material Omitted and Monthly Pass-Through Expenses) under this Schedule during the twelve (12) month period preceding the date of the event giving rise to such damages, or (ii) Ten Million Separately Filed Under an Application for Confidential Treatment] Dollars ($10,000,000); provided, however, [*Material Omitted and Separately Filed Under an Application for the initial twelve (12) months following the Effective Date, the foregoing cap shall be no less than Three Million Dollars ($3,000,000Confidential Treatment]).
(b) By way of example and without limitation, in the event that four events occur in calendar year 2000, as described below, for which Vendor would have liability to Customer under Subsection (a) of this Section, then Vendor's liability to Customer for each such event would be as follows:
(i) An event in March 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $17 million, with the preceding twelve month amounts paid of $350 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]; and
(ii) An event in June 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer damages of $12 million, with the preceding twelve months amounts paid of $375 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment] subject to Vendor's obligations set forth in Subsection (c) of this Section; and
(iii) An event in October 2000 that is not caused by the acts or omissions of third parties causing Customer damages of $15 million, with preceding twelve month amounts paid of $400 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment]; and
(iv) An event in December 2000 that is caused by the acts or omissions of third parties beyond the reasonable control of Vendor causing Customer damages of $3 million, with the preceding twelve months amounts paid of $425 million, the liability of Vendor to Customer for such event would be $[*Material Omitted and Separately Filed Under an Application for Confidential Treatment] subject to Vendor's obligations set forth in Subsection (c) of this Section.
(c) In the event of any liability of Vendor to Customer for damages arising out of or related to Services provided under this Schedule caused by the acts or omissions of third parties beyond the reasonable control of Vendor, then the Parties agree as follows:
(i) Vendor agrees to vigorously pursue the recovery of damages against the third party causing the damage, including through negotiations, dispute resolution, or both, to maximize the damages recoverable against such third party;
(ii) Vendor agrees to pass through to Customer any amounts that Vendor actually recovers from such third party relating to damages incurred in connection with Services provided to Customer under this Schedule;; and
(iii) Customer agrees that in the event that Vendor has paid any amounts to Customer pursuant to Subsection (a) of this Section prior to the recovery of damages from a third party, that Vendor may reduce the amount of recovery received from such third party by the amount previously paid to Customer in respect of such event causing the damages; and.
(iv) Amounts recovered by Vendor from third parties shall first be first passed on to Customer until Customer's full damages are satisfied.
(cd) IN NO EVENT, WHETHER IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE AND STRICT LIABILITY IN TORT), SHALL A PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT OR CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
(de) The limitations set forth in Subsection (a) of this Section shall not apply with respect to (i) intentional breach by Vendor;; (ii) damages occasioned by an intentional tort or the gross negligence of Vendor; (iii) damages occasioned by Vendor's breach of its obligations described in Article 11 (Confidentiality) of the Master Agreement, or (iv) claims subject to indemnification pursuant to this Agreement (such amounts paid by the indemnitee to third parties shall be deemed to be direct damages) other than claims subject to the indemnity set forth in Section 15(a) of the Master Agreement.
(f) Each Party shall have a duty to reasonably mitigate (i.e., minimize) damages for which the other Party is responsible.
Appears in 1 contract