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"Indemnified Parties") from and against any and all claims, demands, costs, damages, losses, <br /> liabilities, joint and/or several, expenses of any nature including reasonable attorneys', <br /> accountants', and experts'fees and disbursements, and judgments,fines,settlements and other <br /> amounts ("Damages") arising from any and all civil, criminal, administrative or investigative <br /> claims, demands, actions, suits or proceedings ("Claims") relating to or arising out of: <br /> (a) Any failure of Customer to observe or perform the terms and <br /> provisions of this Agreement; <br /> (b) Any failure of any representation or warranty made by Customer herein <br /> to be true in any material respect as of the date made or deemed made; <br /> (c) Any Claim of any third party resulting from the negligence or willful <br /> misconduct of Customer; and <br /> (d) Any Claim of any customer of Customer. <br /> The Indemnified Parties shall promptly notify Customer of the nature and amount of such Claim <br /> and the method and means proposed by the Indemnified Parties for defending or satisfying <br /> such claim.The Indemnified Parties shall consult with the Customer respecting the defense and <br /> satisfaction of such claim, including the selection of and direction to legal counsel, and the <br /> Indemnified Parties shall not pay or settle any such claim without the prior written consent of <br /> the Customer, which consent shall not be unreasonably withheld. Nothing herein contained <br /> shall be construed as prohibiting the Indemnified Parties from retaining their own legal counsel <br /> and defending any actions or suits brought against them and, in such event, the Indemnified <br /> Parties shall be liable for all costs and fees incurred solely in the defense of any such claim, <br /> demand or suit. The Indemnified Parties will coordinate any defense with Customer. <br /> ARTICLE 14 <br /> LIMITATION OF LIABILITY <br /> CITY'S LIABILITY HEREUNDER SHALL NOT EXCEED THE UNUSED PORTION OF <br /> THE IRU FEE AND UNUSED PORTION OF FIBER MAINTENACE FEES, IF ANY, BASED ON <br /> THE TIME PERIOD REMAINING IN THE TERM OR ANY RENEWAL TERM WHEN THE <br /> EVENT GIVING RISE TO LIABILITY OCCURS. NOTWITHSTANDING ANYTHING <br /> CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NO PARTY HERETO SHALL BE <br /> LIABLE TO THE OTHER PARTY FOR INDIRECT SPECIAL, CONSEQUENTIAL, <br /> EXEMPLARY OR PUNITIVE DAMAGES RESULTING FROM A PARTY'S PERFORMANCE <br /> OR FAILURE TO PERFORM ANY TERM OR PROVISION OF THIS AGREEMENT, <br /> REGARDLESS OF WHETHER SUCH CLAIM IS MADE UNDER THEORIES OF CONTRACT <br /> OR THEORIES OF TORT(INCLUDING STRICT LIABILITY). <br /> 12 <br />