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Schedule 1 <br />Page 18 <br />(ii) Only as arising under this Agreement and not in its capacity as a municipality or <br />otherwise, Licensee shall be liable to ExteNet for all of its actions or omissions that cause <br />damage to the ExteNet Cable, the Access Points and all other facilities and equipment <br />associated with the Network, or that interfere with, disrupt or degrade the quality or reach of <br />any signal, transmission or telecommunications carried on the ExteNet Cable or the Network, <br />but shall not be liable for any special, indirect, or consequential damages arising from <br />Licensee’s actions or omissions. <br />(iii) ExteNet shall not be liable to Licensee for any special, indirect, or consequential <br />damages arising from any interruption or degradation of Licensee’s communications carried <br />on Licensed Fiber. <br />5. Mutual Indemnification <br />(i)Each of ExteNet and Licensee (as “Indemnifying Party”) hereby agrees to indemnify, <br />defend and hold harmless the other (as “Indemnitee”) from and against any third party <br />demand, claim, action, suit or proceeding (“Claim”) and any resulting loss, liability, cost, <br />expense or fine, including court and appeal costs and reasonable attorneys' fees and expenses <br />(“Losses”), that are caused by or arise out of the actual or alleged acts or omissions, whether <br />negligent or willful, of the Indemnifying Party, its personnel, agents or contractors, in <br />connection with the performance under this Agreement or otherwise in connection with the <br />construction (including any excavation), installation, operation, maintenance or use of the <br />ExteNet Cable or the Licensed Fiber or any equipment or facilities interconnected or <br />associated therewith. <br />(ii)Notwithstanding the foregoing, each party’s respective obligations as an <br />Indemnifying Party under paragraph (i) above shall not include any liability or obligation to <br />defend: <br />(a) to the extent that Losses arise out of or are caused by the Indemnitee’s intentional <br />misconduct and/or gross negligence; <br />(b) to the extent that the defense of any Claim is prejudiced, or the resulting Losses <br />are caused by the Indemnitee’s failure or refusal to provide the Indemnifying <br />Party with timely notice of the Claim, or to cooperate in the defense thereof, or <br />are caused by the Indemnitee entering into a settlement or compromise of the <br />Claim without the prior written approval of the Indemnifying Party; or <br />(c) to the extent that Losses result from the Indemnitee’s failure or refusal to take <br />commercially reasonable actions as the Indemnifying Party may request, and at <br />the Indemnifying Party’s sole cost and expense, in order to mitigate or lessen such <br />Losses. <br />(iii)The Indemnitee shall give the Indemnifying Party timely written notice of any Claim <br />covered by this Section 5. The Indemnitee shall tender the defense of the Claim to the <br />Indemnifying Party and such defense shall be carried out under the control and at the expense <br />of, the Indemnifying Party. The Indemnitee may participate in the defense of a Claim at any <br />time, provided that, during all periods in which such defense has been assumed and is being <br />carried out by the Indemnifying Party with qualified counsel, the incremental costs of the <br />Indemnitee’s participation shall be at its own expense. The Indemnifying Party may not