Article XIII. Limitation of Liabilities

Section 13.01 Limitation of Liability. Other than with respect to its indemnity obligations arising in relation to third-party claims and in the case of intentional fraud, willful misconduct or gross negligence, in no event will (a) either Party be liable for any indirect, consequential, punitive, speculative, exemplary, or special damages (including loss of business profits, whether characterized as direct or indirect damages and without regard to whether a Party has been made aware of the possibility of such damages) hereunder; (b) Supplier's liability to Buyer for breach of this Agreement exceed (i) prior to the COD, ( ) percent (%) of the total value for all Contract Years set forth in Exhibit B and (ii) from and after the COD, the total value for all Contract Years set forth in Exhibit B; or (c) Buyer's liability to Supplier for breach of this Agreement exceed (x) in the case of a Payment Failure, the amount of any such required payment not yet made and not subject to good faith dispute or offset or (y) in the case of any other Buyer Breach (i) prior to the COD, [__] dollars ($) and (ii) from and after the COD, the portion of the total contract value for all Contract Years that has not been paid to Supplier as of the date of such breach for the remainder of the Term.

Section 13.02 Reliance. Each Party acknowledges and agrees that the Parties entered into this Agreement in reliance upon the limitations of liability set forth in this Article XIII, that the same reflect an allocation of risk between the Parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the Parties.