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Enron Mail |
David
I had a few minor suggestions, as set out below. Please also note the=20 following: SHELL had requested that the limitation of liability in clause 4(a) be=20 mutual; I have therefore left clause 4(a) as it stands, but added new claus= e=20 4© below. The risk of including the language in (b)(ii) below is that SHELL will ask= =20 for Enron for a indemnity to the extent that SHELL suffers Loss arising ou= t=20 of Enron's breach of the Agreement. I have also sought to restrict the=20 circumstances where breach by SHELL would trigger the indemnity - I believe= =20 sub-clauses (a), © and (d) of clause 2 capture these. (b) Counterparty shall indemnify, protect, and hold harmless Enron and it= s=20 directors, officers, employees and agents from and against any and all=20 losses, liabilities, judgments, suits, actions, proceedings, claims,=20 damages, and costs (including attorneys=01, fees) (collectively, =01&Loss= =018)=20 resulting from or arising out of (i) any Transactions executed through the= =20 Website by any person obtaining access to the Website through the Passwords= =20 (as defined in the Password Application), whether or not Counterparty has= =20 authorized such access, or (ii) any material breach by Counterparty of its= =20 obligations under clause 2(a), © or (d) of this Agreement, provided that= ,=20 in no event will Counterparty have any liability under this clause 4(b) for= =20 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 TH= E=20 OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR=20 CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, LOS= S=20 OF PROFIT, LOSS OR CORRUPTION OF DATA, LOSS OF GOODWILL OR REPUTATION OR= =20 WASTED MANAGEMENT TIME) WHICH MAY BE INCURRED OR EXPERIENCED ON ACCOUNT OF= =20 EITHER PARTY ENTERING INTO THIS AGREEMENT. (d) Nothing in this Agreement shall have the effect of limiting or=20 restricting either party's liability arising as a result of fraud. Look forward to your response. Thanks. Justin =20 =09Enron Capital & Trade Resources Corp. =09 =09From: GILBERGD@sullcrom.com 18/10/2000 23:36 =09 To: justin.boyd@enron.com cc: =20 Subject: ETA Justin: Attached is a proposed revision of Section 4(b) of the ETA, as we= =20 discussed. I have attempted both to narrow its scope and to carve out the= =20 negligence, misconduct or breaches of Enron. Please call or e-mail with an= y=20 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. - UKETA.doc
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