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Enron Mail |
Justin: Thanks for your note. I had the following thoughts.
1. I think the revised Section 4(b) set forth below in your mail is fine; the only thing that I believe it leaves out (and I assume you are comfortable not having it) is the counterparty's use of information or content on the website. I had included that clause to cover situations in which the counterparty uses information on the website but not in connection with an EOL transaction (e.g., reliance on information in making trading decisions that are executed elsewhere) or where the counterparty passes information from the website on to a third party. I think the language in your draft covers the most important stuff. I point this out only to be clear on why I had included "use". 2. I am not sure the lead in to 4© ("Subject to clause 4(b)") should be included. It seems to suggest that the counterparty could be liable for consequential damages, etc. for the things covered in 4(b), which I suspect will be difficult for Shell to accept. 3. Will 4(a) remain in the Agreement? I think it should, because there are things covered in (a) that should not be mutual but should be retained; e.g., no liability for timeliness, accuracy, etc. and exculpation for use of the website. However, if (a) is retained, perhaps we should strike those portions in the current version of (a) that will be covered by ©; e.g., exclusion of consequential and punitive damages, etc. Otherwise, © will be duplicative with respect to Enron's liabiity, which could be confusing. 4. Two "nits" in Section 4(b) of the version of the ETA attached to your e-mail -- "Website" is misspelled as "Webiste" in the sixth line, and the "(ii)" in the next line should be deleted. Please let me know if you want to discuss. Hope all is well with you. Thanks. <<< <Justin.Boyd@enron.com< 10/24 4:22 AM <<< David I had a few minor suggestions, as set out below. Please also note the following: SHELL had requested that the limitation of liability in clause 4(a) be mutual; I have therefore left clause 4(a) as it stands, but added new clause 4© below. The risk of including the language in (b)(ii) below is that SHELL will ask for Enron for a indemnity to the extent that SHELL suffers Loss arising out of Enron's breach of the Agreement. I have also sought to restrict the circumstances where breach by SHELL would trigger the indemnity - I believe sub-clauses (a), © and (d) of clause 2 capture these. (b) Counterparty shall indemnify, protect, and hold harmless Enron and its directors, officers, employees and agents from and against any and all losses, liabilities, judgments, suits, actions, proceedings, claims, damages, and costs (including attorneys' fees) (collectively, "Loss") resulting from or arising out of (i) any Transactions executed through the Website by any person obtaining access to the Website through the Passwords (as defined in the Password Application), whether or not Counterparty has authorized such access, or (ii) any material breach by Counterparty of its obligations under clause 2(a), © or (d) of this Agreement, provided that, in no event will Counterparty have any liability under this clause 4(b) for any Loss caused by the negligence or wilful misconduct of Enron. © SUBJECT TO CLAUSE 4(b), IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL OR REPUTATION OR WASTED MANAGEMENT TIME) WHICH MAY BE INCURRED OR EXPERIENCED ON ACCOUNT OF EITHER PARTY ENTERING INTO THIS AGREEMENT. (d) Nothing in this Agreement shall have the effect of limiting or restricting either party's liability arising as a result of fraud. Look forward to your response. Thanks. Justin (Embedded Enron Capital & Trade Resources Corp. image moved to file: From: GILBERGD@sullcrom.com pic24182.pcx) 18/10/2000 23:36 To: justin.boyd@enron.com cc: Subject: ETA Justin: Attached is a proposed revision of Section 4(b) of the ETA, as we discussed. I have attempted both to narrow its scope and to carve out the negligence, misconduct or breaches of Enron. Please call or e-mail with any thoughts or comments. Best regards. ---------------------------------- This e-mail is sent by a law firm and contains information that may be privileged and confidential. If you are not the intended recipient, please delete the e-mail and notify us immediately. (See attached file: UKETA.doc) ---------------------------------- This e-mail is sent by a law firm and contains information that may be privileged and confidential. If you are not the intended recipient, please delete the e-mail and notify us immediately.
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