07/05/2022 (2) - Laserfiche WebLink

Home Browse Search

DocuSign Envelope ID: 29EAB906-1936-4BAB-83BE-97C974F00293 7.2 Disclaimer of Damages- Limitation of Liabili . (a) Disclaimer of Dama--es- Limitation ofikbility. EXCEPT AS SET FORTH IN SECTION 22LI21 BELOW, (i) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR TORT DAMAGES (INCLUDING LOST BUSINESS, PROFITS, OR GOODWILL) ARISING OUT OF OR RELATING TO THIS AGREEMENT, AN EXHIBIT, AMENDMENT, AND/OR ADDENDUM, REGARDLESS OF WHETHER THE CLAIM ARISES IN TORT, CONTRACT, OR OTHERWISE, AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (ii) IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY TO THE OTHER PARTY UNDER THIS AGREEMENT, AN EXHIBIT, AMENDMENT, AND/OR ADDENDUM AND WITH RESPECT TO THE SERVICES PROVIDED PURSUANT THERETO EXCEED THE AMOUNT OF NETWORK USE FEES ACTUALLY PAID BY SPONSOR TO EDH UNDER THIS AGREEMENT DURING THE IMMEDIATELY PRECEDING TWELVE (12) MONTHS. THE FOREGOING DISCLAIMER OF DAMAGES AND LIMITATION OF LIABILITY REPRESENTS THE ALLOCATION OF RISK BETWEEN THE PARTIES UNDER THIS AGREEMENT AND ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. (b) Exceptions. The disclaimer of damages and limitation of liability in Section_7._2_�a above in no way limit either Party's liability or any rights and/or remedies either Party may have with respect to: (i) Sponsor's breach of any obligation to pay EDH any amount due under this Agreement, including, without limitation, Sponsor's obligation to pay Claims and EDH Fees; (ii) EDH's breach of its obligation to provide setoff or payment to Sponsor pursuant to Section 4.4(b. of this Agreement; (iii) Sponsor's breach of its obligations set forth in Section 3.11 of this Agreement; (iv) Sponsor's breach of its obligations set forth in Section 3.3 of this Agreement; (v) either Party's breach of its obligations set forth in Section 6,3 of this Agreement; (vi) either Party's breach of its obligations set forth in the Business Associate Agreement; or (vii) either Party's willful misconduct or fraud. 7.3 Survival. The provisions of this Article 7 shall survive any termination or expiration of this Agreement. ARTICLE 8. DISPUTE RESOLUTION 8.1 Dispute Resolution Procedure. (a) Negotiation. In the event any dispute arises between the Parties under or concerning this Agreement, or the breach thereof (a "Dispute"), the Parties will meet and confer in good faith and attempt to resolve the Dispute. If the Parties do not resolve the Dispute within thirty (30) days of the first meeting, then either Party may, by providing written notice, require both Parties to submit the dispute to mediation. (b) Venue. If the negotiation and/or mediation described in Section 8.11ia, does not resolve the Dispute, and if any Party wishes to pursue the Dispute, the location for such dispute, arising out of or relating to any part of this Agreement, or any breach hereof, as well as any litigation between the parties, shall be Indian River County, Florida for claims brought in state court, and the Ft. Pierce District of the Southern District of Florida for those claims justiciable in federal court. Each Party shall bear its respective expenses and each shall pay its pro -rata portion of any mediator's charges and expenses. (c) Waivero`Trial byJurv. TO THE EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HERETO HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES THE RIGHT EITHER OF THEM MAY HAVE TO A TRIAL BYJURY IN RESPECT OF ANY LITIGATION BASED HEREON, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT. THIS PROVISION IS A MATERIAL INDUCEMENT FOR THE PARTIES ENTERING INTO THIS AGREEMENT -16- 132