Suresh has requested that we carve out punitive damages from deemed direct 
damages in DealBench trademark indemnity for third-party claims.  The request 
is based upon a conversation Wednesday night between Suresh and an Envera 
commercial person (Bif).  Following is latest version of Section 4(c)with 
proposed carveouts in italics (also included for comparison purposes is what 
I understand is latest version of Section 5 on liability limitations):  

(c)   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 
exemplary damages entered against Envera on an Infringement Claim by a third 
party, or any amounts other than punitive or exemplary damages required to be 
paid in settlement of any Infringement Claim by a third party, shall be 
deemed direct damages of Envera.  The foregoing notwithstanding, DealBench 
shall have no liability for any claim Infringement Claim based upon any use 
of the DealBench Marks not expressly authorized under this Agreement.

5. Disclaimers; Limitation of Liability.

 (a) No Warranty.  DealBench makes no representations or warranties regarding 
access to the DealBench Login Page or the DealBench Website;  such access is 
provided &as is8 and may be interrupted from time to time.  DealBench 
specifically disclaims all warranties, express or implied, including without 
limitation, the warranties of merchantability, title, non-infringement, 
non-interference, or fitness for a particular purpose with regard to (i) the 
DealBench Web Site and information and services provided thereunder, and (ii) 
the DealBench Marks.

 (b) Limitation on Consequential Damages. In no event shall either party be 
liable to the other for any indirect, special, incidental, punitive, or 
consequential damages, including, but not limited to, loss of profits, loss 
of data, loss of business or other loss arising out or resulting from this 
Agreement, even if either party has been advised of the possibility of such 
damages.  The foregoing shall apply regardless of the negligence or other 
fault of either party and regardless of whether such liability sounds in 
contract, negligence, tort or any other theory of liability.  

(c) Limitation on Liability.  The aggregate liability of either party arising 
with respect to this Agreement will not exceed the amount of $10,000, except 
that the limitation set forth in this paragraph (c) shall not apply (i) to 
the extent that Envera is liable for violating a provision of Sections 2 or 3 
and (ii) to the extent that DealBench is required to indemnify Envera 
pursuant to Section 4(c).


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



	"Alderden, Emily" <ealderden@velaw.com>
	01/11/01 06:53 PM
		 
		 To: "Dobin, Nora (Enron)" <nora.dobin@enron.com>
		 cc: "Harvey, Dean" <dharvey@velaw.com>
		 Subject: FW: DealBench Linking:  Indemnity Language (4(c))




 
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