2004/11/29 Council Agenda Packet

5 PASS TO THE OWNER OR OPERATOR OF THE BUSINESS OR INSTITUTION WHERE THE SPRAY HEAD WAS INSTALLED. Section 7. Limitation of Liability 7.1 Limitation of Damages EXCEPT TO THE EXTENT NECESSARY TO SATISFY ANY LIABILITY FOR THIRD-PARTY CLAIMS,NEITHER PARTY WILL BE LIABLE TO THE OTHER, WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY), OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT NECESSARILY LIMITED TO, LOSS OF PROFIT, REVENUE OR USE) ARISING OUT OF SUCH PARTY'S PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT,BREACH OR DEFAULT UNDER THIS AGREEMENT, OR THE USE OF, INABILITY TO USE OR RESULTS OF USE OF ANY ITEMS FURNISHED UNDER THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 7.2 Limitation of Liability EXCEPT TO THE EXTENT NECESSARY TO SATISFY ANY LIABILITY FOR THIRD-PARTY CLAIMS,NEITHER PARTY'S TOTAL LIABILITY (WHETHER IN CONTRACT,TORT OR OTHERWISE) WITH REGARD TO THIS AGREEMENT (INCLUDING, BUT NOT NECESSARILY LIMITED TO, ANY LIABILITY ARISING OUT OF ANY PERFORMANCE, NONPERFORMANCE, BREACH OR DEFAULT UNDER THIS AGREEMENT) WILL IN THE AGGREGATE, EXCEED THE TOTAL AMOUNTS PAYABLE BY CITY OF EVERETT TO PSE UNDER THIS AGREEMENT. Section 8. Indemnification 8.1 By PSE PSE will indemnify, defend, and hold City of Everett harmless from any and all losses, claims, actions, damages and expenses arising out of or resulting from, PSE's negligence or willful misconduct under this Agreement except to the extent that such losses, claims, actions, damages and expenses are caused by or arise out of the negligence of City of Everett. In the event that any suit based upon such losses, claims, actions, damages, or expenses is brought against City of Everett, PSE upon notice of the commencement thereof,will defend the same at its sole cost and expense, and if final PAGE 8