Acknowledgement and Acceptance of Auction Administrator. The Applicant accepts the Auction Administrator as the person(s) that will receive the Bid Documents; and hold the same in Escrow in accordance with the provisions of Section 4.3.
Obtaining Legal Advice. In regard to Section 7.2, the Applicant shall obtain legal advice prior to signing this Agreement. By signing this Agreement, the Applicant hereby confirms that it has consulted with legal counsel, has obtained legal advice, and is fully aware of the limitation of liabilities set forth in Section 7 below.
General Provisions. The provisions of this Section 7 set out the entire liability regime as between the Parties from the date hereof in relation to the subject matter of this Agreement (which for the avoidance of doubt includes the participation by the Applicant in any Auction).
Primary Shipper and Auction Administrator. Save as set forth in Section 7.3 and Section 7.5 below, neither the Primary Shipper nor the Auction Administrator shall be liable to the Applicant for any reason whatsoever, whether by reason of any representation or warranty (whether express or implied), any condition or other term, any duty under the common law or under the express terms of this agreement, or otherwise under or in connection with Secondary Capacity Access or any Auction, for any loss (including a consequential loss), howsoever arising, whether or not (a) such loss is or was reasonably foreseeable at the date of execution of this agreement; (b) such loss was occasioned by the negligence of any Party, including its employees, agents or sub-contractors; or (c) the Party committing the breach of contract knew, or ought to have known, that such loss would likely arise, as the case may be.
Liability of Auction Administrator. The Primary Shipper shall during the Term procure and thereafter shall use all reasonable efforts to procure the compliance of the Auction Administrator with the terms of this Deed and, subject to the foregoing, the Primary Shipper shall during the Term be responsible for any disclosure by the Auction Administrator in breach of this Deed and thereafter shall be responsible for any failure to use reasonable efforts to procure such compliance. The Parties acknowledge and agree that, without prejudice to the rights of a Party (other than the Auction Administrator) to seek equitable remedies under Section 11 below, the Auction Administrator shall have no personal liability under this Deed for a breach of any provision of this Deed.
No Representations or Warranties. Neither the Primary Shipper nor the Auction Administrator gives to the Applicant any representations or warranties in relation to, in connection with, or pursuant to this Agreement or under any aspect or process of the Secondary Capacity Access or any Auction. Any statute, common law, or other law imposing express or implied duties and obligations upon any of such Parties in respect of or in connection with the Secondary Capacity Access or any Auction is excluded to the fullest extent permitted by Applicable Law.
Non-Excluded Liabilities. Nothing in this Section shall restrict or exclude any Party’s liability:
in respect of fraudulent misrepresentation; or
for death or personal injury caused by a Party’s negligence.
Version 1.4 – 2 December 20089