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Enron Mail |
Suresh has requested that we carve out punitive damages from deemed direct=
=20 damages in DealBench trademark indemnity for third-party claims. The reque= st=20 is based upon a conversation Wednesday night between Suresh and an Envera= =20 commercial person (Bif). Following is latest version of Section 4©with= =20 proposed carveouts in italics (also included for comparison purposes is wha= t=20 I understand is latest version of Section 5 on liability limitations): =20 © In addition to the foregoing, DealBench will defend at its own expense, indemnify and hold harmless Envera from and against any and all liabilities, damages, losses, costs and expenses of any kind (including reasonable attorneys' fees and costs), to the extent arising out of or resulting from any claim brought against Envera by any third party based on an allegation that the DealBench Marks used as permitted under this Agreement infringe any trademarkrights trademark rights of any third party an "Infringement Claim"), provided that: (i) Envera notifies DealBench promptly (in any event no later than five days from notice) in writing of the claim Infringement Claim; (ii) DealBench has sole control of the defense and all related settlement negotiations and (iii) Envera provides DealBench with assistance, information and authority necessary to perform the above. If any settlement requires any obligation or ongoing liability of Envera other than the payment of money for which Envera will be indemnified hereunder, then such settlement shall require Envera's written consent, which shall not be unreasonably withheld or delayed. The parties acknowledge and agree that any final judgment for other than punitive or=20 exemplary damages entered against Envera on an Infringement Claim by a thir= d=20 party, or any amounts other than punitive or exemplary damages required to = be=20 paid in settlement of any Infringement Claim by a third party, shall be=20 deemed direct damages of Envera. The foregoing notwithstanding, DealBench= =20 shall have no liability for any claim Infringement Claim based upon any use= =20 of the DealBench Marks not expressly authorized under this Agreement. 5. Disclaimers; Limitation of Liability. (a) No Warranty. DealBench makes no representations or warranties regardi= ng=20 access to the DealBench Login Page or the DealBench Website; such access i= s=20 provided =01&as is=018 and may be interrupted from time to time. DealBench= =20 specifically disclaims all warranties, express or implied, including withou= t=20 limitation, the warranties of merchantability, title, non-infringement,=20 non-interference, or fitness for a particular purpose with regard to (i) th= e=20 DealBench Web Site and information and services provided thereunder, and (i= i)=20 the DealBench Marks. (b) Limitation on Consequential Damages. In no event shall either party be= =20 liable to the other for any indirect, special, incidental, punitive, or=20 consequential damages, including, but not limited to, loss of profits, loss= =20 of data, loss of business or other loss arising out or resulting from this= =20 Agreement, even if either party has been advised of the possibility of such= =20 damages. The foregoing shall apply regardless of the negligence or other= =20 fault of either party and regardless of whether such liability sounds in=20 contract, negligence, tort or any other theory of liability. =20 © Limitation on Liability. The aggregate liability of either party arisi= ng=20 with respect to this Agreement will not exceed the amount of $10,000, excep= t=20 that the limitation set forth in this paragraph © shall not apply (i) to= =20 the extent that Envera is liable for violating a provision of Sections 2 or= 3=20 and (ii) to the extent that DealBench is required to indemnify Envera=20 pursuant to Section 4©. Nora J. Dobin Senior Counsel Enron Global Finance Enron Corp. 1400 Smith Street Houston, Texas 77002 713/345-7723 (phone) 713/853-9252 (fax) E-mail: nora.dobin@enron.com =09"Alderden, Emily" <ealderden@velaw.com< =0901/11/01 06:53 PM =09=09=20 =09=09 To: "Dobin, Nora (Enron)" <nora.dobin@enron.com< =09=09 cc: "Harvey, Dean" <dharvey@velaw.com< =09=09 Subject: FW: DealBench Linking: Indemnity Language (4©) =20 ++++++CONFIDENTIALITY NOTICE+++++ The information in this email may be confidential and/or privileged. This email is intended to be reviewed by only the individual or organization named above. If you are not the intended recipient or an authorized representative of the intended recipient, you are hereby notified that any review, dissemination or copying of this email and its attachments, if any, or the information contained herein is prohibited. If you have received this email in error, please immediately notify the sender by return email and delete this email from your system. Thank You
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