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f <br />12. INDEMNIFICATION AND LIMITATION OF LIABILITY <br />A. NO LIMITATION OF CERTAIN CATEGORIES OF LIABILITY. <br />Dynix acknowledges the full extent of its own liability to the City arising from: <br />1. death or personal injury resulting from Dynix's negligent acts or omissions; <br />2. Dynix's breach of any applicable license grant; or <br />3. the non-excludable statutory rights of consumers, e.g., under laws providing for strict <br />product liability. <br />B. LIMITATIONS ON OTHER CATEGORIES OF LIABILITY. <br />Subject to 12.A above and to the extent not prohibited by applicable law: <br />1. Dynix's maximum aggregate liability for all claims relating to the Agreement, whether for <br />breach of contract, breach of warranty or in tort, including negligence, will be limited to the <br />amount paid by the City to Dynix during the previous twelve (12) months for the product or <br />service which is the subject matter of the claim; and <br />2. DYNIX WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, <br />INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING <br />OUT OF THE AGREEMENT (INCLUDING, WITHOUT LIMITATION, LOSS OF <br />BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY <br />TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY <br />ARISE, WHETHER IN BREACH OF CONTRACT, BREACH OF WARRANTY, OR IN <br />TORT, INCLUDING NEGLIGENCE, AND EVEN IF DYNIX HAS PREVIOUSLY BEEN <br />ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. <br />LIABILITY FOR DAMAGES WILL BE LIMITED AND EXCLUDED, EVEN IF ANY <br />EXCLUSIVE REMEDY PROVIDED FOR IN THE AGREEMENT FAILS OF ITS <br />ESSENTIAL PURPOSE. <br />13. TERMINATION <br />A. Either party may terminate this Agreement immediately upon written notice: <br />1. If the other party commits anon-remediable material breach of this Agreement; or <br />2. If the other party fails to cure any remediable material breach or provide a written plan of <br />cure acceptable to the non-breaching party within thirty (30) days of being notified in writing <br />of such breach. <br />B. Following termination of this Agreement (for whatever reason), each party will deliver to the <br />other any property of the other in its possession or control in good condition, reasonable wear <br />and tear excepted. <br />C. Neither party will be liable for any damages arising out of the termination of this Agreement, <br />provided that such termination or expiration will not affect any right to recover: <br />1. Damages sustained by reason of material breach; or <br />2. Any payments which may be owing in respect of the Agreement. <br />14. RETURNS <br />The Library may incur restocking fees and other like assessments if it changes the types and <br />quantities of items purchased under this Agreement after the items have been ordered. Returns of <br />third party products shall be governed by the manufacturer's policies. <br />15. ASSIGNMENT <br />No assignment of this Agreement or any right or interest herein by either party will be effective unless <br />the other party has given its written consent to such assignment, which consent will not be <br />unreasonably withheld. However, Dynix may assign this Agreement to an affiliate or subsidiary of <br />Dynix or its parent corporation within its corporate structure, including its affiliates, subsidiaries and <br />parent corporation, or assign its rights to receive payments hereunder without the Library's consent. <br />City of San Leandro -Page 5 <br />CONFIDENTIAL AND PROPRIETARY <br />