10-10-11 Regular Meeting of La Porte City Council

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DIR Contract No. DIR -SDD -890 24. Appendix A, Section 9.K, Limitation of Liability is hereby restated in its entirety as follows: K. Limitation of Liability EXCEPT AS SPECIFICALLY SET FORTH IN SECTIONS 9.A.1 AND 9.A.2, AND FOR PAYMENT OBLIGATIONS UNDER THIS CONTRACT, VENDOR AND DIR EACH EXPRESSLY AGREE AND UNDERSTAND THAT THE OTHER PARTY WILL NOT HAVE ANY LIABILITY FOR PRODUCTS NOT BEING AVAILABLE FOR USE, OR FOR LOST OR CORRUPTED DATA OR SOFTWARE. NEITHER PARTY SHALL BE LIABLE FOR ANY CLAIM OR CAUSE OF ACTION ARISING UNDER OR RELATED TO THE CONTRACT: I) NONE OF THE PARTIES SHALL BE LIABLE TO THE OTHER FOR INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, EVEN IF IT IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND 11) VENDOR'S LIABILITY FOR DAMAGES OF ANY KIND TO THE CUSTOMER SHALL BE LIMITED TO THE LESSER OF ONE MILLION DOLLARS ($1,000,000) OR THE U.S. DOLLAR EQUIVALENT OF THE TOTAL DOLLAR VALUE OF PRODUCTS AND SERVICES PURCHASED FROM VENDOR BY SUCH CUSTOMER UNDER THE CONTRACT DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE ACCRUAL OF THE CLAIM OR CAUSE OF ACTION. IN THE EVENT THE LAW OF ANY JURISDICTION WHICH APPLIES TO THIS CONTRACT PROHIBITS IN ANY PART ANY LIMITATION IN THIS PARAGRAPH, THE PARTIES AGREE THAT SUCH LIMITATION SHALL BE MODIFIED, WITHOUT FURTHER ACTION OF EITHER PARTY, SO AS TO BROADLY APPLY TO THE MAXIMUM EFFECT ALLOWED BY GOVERNING LAWS. 25. Appendix A, Section 9.L, Overcharges is hereby restated in its entirety as follows: L. Overcharges Vendor hereby assigns to DIR any and all of its claims for overcharges associated with this contract which arise under the antitrust laws of the United States, 15 U.S.C.A. Section 1, et seq., and which arise under the antitrust laws of the State of Texas, Tex. Bus. and Comm. Code Section 15.01, et seq. to the extent that the overcharge suffered by the Vendor was, in fact, passed on the DIR or its Customers in the products or other goods and /or services purchased by DIR or is Customers under this Contract during the time period referenced in the litigation. Page 14 of 15