|
Page 8 of 14
<br />GDSVF&H\9154876.4
<br />GDSVF&H\9154876.4 LA515\1\1011954.v2
<br />13. Limitations of Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS
<br />AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING
<br />NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY,
<br />SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS,
<br />PRODUCTION, REVENUES, OR PROFITS; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS,
<br />INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF
<br />REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER BS&A WAS ADVISED OF THE POSSIBILITY
<br />OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL
<br />’EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR
<br />EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND
<br />OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND/OR PAYABLE TO BS&A UNDER THIS AGREEMENT IN THE TWELVE
<br />(12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY WITH
<br />RESPECT TO LIABILITIES ARISING FROM: (A) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 8;
<br />(B) A PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; OR (C) A PARTY’S INDEMNIFICATION OBLIGATIONS
<br />UNDER SECTION 12 (PROVIDED THAT BS&A’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH SUCH
<br />INDEMNIFICATION OBLIGATIONS WILL NOT EXCEED THREE TIMES (3X) THE TOTAL AMOUNTS PAID AND/OR PAYABLE TO
<br />BS&A UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM).
<br />14. Subscription Period and Termination.
<br />14.1 Subscription Period. The initial term of this Agreement begins on the Effective Date and, unless
<br />terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period identified in the
<br />Order (the “Initial Subscription Period”). This Agreement will automatically renew for additional successive terms equal
<br />to the length of the Initial Subscription Period unless earlier terminated pursuant to this Agreement’s express provisions
<br />or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the
<br />then-current term (each a “Renewal Subscription Period” and together with the Initial Subscription Period, the
<br />“Subscription Period”).
<br />14.2 Termination. In addition to any other express termination right set forth in this Agreement:
<br />(a) BS&A may terminate this Agreement, effective on written notice to Customer, if Customer: (i)
<br />fails to pay any amount when due hereunder, and such failure continues more than ten (10) calendar days after BS&A’s
<br />delivery of written notice thereof; or (ii) breaches any of its obligations under Section 2.3 or Section 8;
<br />(b) either Party may terminate this Agreement, effective on written notice to the other Party, if
<br />the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure,
<br />remains uncured thirty (30) calendar days after the non-breaching Party provides the breaching Party with written notice
<br />of such breach; or
<br />(c) either Party may terminate this Agreement, effective immediately upon written notice to the
<br />other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become
<br />due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject,
<br />voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or
<br />seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee,
<br />custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material
<br />portion of its property or business.
<br />14.3 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Customer
<br />shall immediately discontinue use of the BS&A IP and, without limiting Customer’s obligations under Section 8, Customer
<br />shall delete, destroy, or return all copies of the BS&A IP and certify in writing to the BS&A that the BS&A IP has been
<br />deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become
<br />due before such expiration or termination or entitle Customer to any refund.
<br />14.4 Survival. This Section 14.4 and Sections 1, 5, 8, 10, 11, 12, 13, 14.3, and 15 survive any termination or
<br />expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this
<br />Agreement.
<br />15. Miscellaneous.
<br />15.1 Relationship of the Parties. BS&A performs its obligations hereunder as an independent contractor and
|