Earthlink 2008 Annual Report Download - page 243

third party; provided however that TWC will have no obligation hereunder to the extent such Third Party Claim relates in whole or in part to
actions of EarthLink in violation of this Agreement or any subsequent agreement or procedures agreed to between the Parties.
6.3 Indemnification Procedure . If a Party entitled to indemnification hereunder (the “Indemnified Party”) becomes aware of any
matter as to which it believes it is entitled to indemnification hereunder involving any Third Party Claim, the Indemnified Party shall give the
other Party (the “Indemnifying Party”) prompt written notice of such Action. Such notice shall (i) provide the basis on which indemnification is
being asserted and (ii) be accompanied by copies of all relevant pleadings, demands, and other papers related to the Action and in the possession
of the Indemnified Party. The Indemnifying Party shall have the right to assume the defense of the Action, and in the event the Indemnifying
Party assumes such defense, the Indemnified Party shall cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its
counsel in the defense, and the Indemnified Party shall have the right to participate fully, at its own expense, in the defense of such Action. The
Indemnifying Party shall have the right to compromise or settle any Action; provided that the settlement or compromise includes an
unconditional release of each Indemnified Party from all Losses arising out of the Action, and provided further that any compromise or
settlement involving anything other than monetary damages shall require the consent of the other Party.
7.
ACKNOWLEDGMENT.
EarthLink and TWC each acknowledges that the provisions of the agreement were negotiated in an arm’s length transaction and with the
assistance of counsel. The provisions of this Section 7 will be enforceable independent of and severable from any other enforceable or
unenforceable provision of the agreement.
8.
AUDIT RIGHTS.
Each Party shall maintain complete, clear and accurate records of all expenses, revenues, fees, transactions and related documentation
(including agreements) in connection with the performance of the Agreement (“Records”). All such Records shall be maintained for a minimum
of five (5) years following termination of the Agreement. For the sole purpose of ensuring compliance with the Agreement, each Party shall have
the right, at its expense, to direct an independent certified public accounting firm subject to strict confidentiality restrictions to conduct a
reasonable inspection of portions of the relevant Records of the other Party. Any such audit may be conducted after twenty (20) business days
prior written notice, subject to the following: (a) such audits shall not be made more frequently than once every twelve months (unless the results
of the audit are such that the audited Party is required to bear the expenses thereof as provided below, in which event another audit may be held
after six months), (b) no such audit of EarthLink shall occur during the period beginning on January 1 and ending on April 1 (or, if the fiscal year
of EarthLink changes, the first three months of such fiscal year) and (c) no such audit of TWC shall occur during the period beginning of
January 1 and ending on April 1 (or if the fiscal year of TWC changes, the first three months of such fiscal year). Each audit shall be at the
expense of the Party conducting the examination, unless the examination results show that 90% or less of fees owing for the examined period
were actually paid or
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credited to the other Party, or netted against amounts owed by such other Party, in which event the Party being audited shall bear all expenses of
the examination.
9.
FORCE MAJEURE.
Neither Party will be liable for, or be considered in breach of or default under the Agreement on account of, any delay or failure to
perform as required by the Agreement as a result of strike, fire, explosion, flood, storm, material shortages, riot, insurrection, governmental acts,
labor conditions, acts of God, war, earthquake or any other cause which is beyond the reasonable control of such Party; provided, however, that
the non-performing Party gives reasonably prompt notice under the circumstances of such condition(s) to the other Party.
10.
INDEPENDENT CONTRACTORS.
The Parties to the Agreement are independent contractors. Neither Party is an agent, representative or partner of the other Party. The
Agreement shall not create for a Party or grant a Party any right, power or authority to enter into any agreement for or on behalf of, or incur any
obligation or liability of, or to otherwise bind, the other Party. The Agreement will not be interpreted or construed to create an association,
agency, joint venture or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party.
11.
LIMITATION OF LIABILITY.
11.1
Limitation for Service Outages . Each Party’s liability for monetary damages for service outages shall be limited to the amounts
set forth in Section 2.4 of the Agreement.
11.2 Limitation on Other Liability .
SUBJECT TO SECTION 11.3 OF THIS EXHIBIT C, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF
THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) ARISING FROM OR RELATING TO THIS
AGREEMENT, INCLUDING LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS.
11.3
Exclusions . The limitations set forth in Section 11.2 of this Exhibit C shall not apply with respect to: (a) damages occasioned by a
Party
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s breach of its obligations described in Sections 1 and 5 of this Exhibit C, or (b) claims subject to indemnification pursuant to this