Contractor Responsibility for System Agency’s Termination Costs Clause Samples

Contractor Responsibility for System Agency’s Termination Costs. This section is deleted in its entirety and replaced with the following:

Contractor Responsibility for System Agency’s Termination Costs. (1) If the System Agency terminates the Contract for cause, the Contractor shall be responsible to the System Agency for all direct costs incurred by the System Agency and the State of Texas to replace the Contractor. These costs include, but are not limited to, the costs of procuring a substitute vendor to the extent they exceed those that would have been paid to the Contractor hereunder, and the cost of any claim or litigation attributable to Contractor’s failure to perform any Service in accordance with the terms of the Contract. (2) In addition to the above, and for the avoidance of doubt, the following shall be considered direct damages, and neither Party shall assert that these damages are indirect, incidental, collateral, consequential or special damages, or lost profits, to the extent they result directly from the breaching Party's failure to perform in accordance with the Contract: (a) Direct costs and expenses of implementing any work-around in respect of a failure by Contractor to provide the Services or any part thereof as provided in Article B.3.1 (Limited Warranties) in Exhibit 1 (Master Agreement) to Attachment C (Esri Enterprise Agreement); (b) Direct costs and expenses of replacing lost, stolen, or damaged government real or tangible property, to the extent caused by Contractor; (c) Direct incremental and unavoidable costs and expenses incurred to bring the services in-house or in obtaining the same Services from an alternate source than the Contractor; (d) Direct, incremental and unavoidable straight time, overtime or related expenses incurred by either Party in performing (a) through (e) of this Subsection 2, including overhead allocations for employees, wages, and salaries of additional employees, travel expenses, overtime expenses, telecommunication charges, and similar charges that are not avoidable and would not otherwise be incurred; and (e) Fines, penalties, sanctions, interest or other monetary remedies incurred by System Agency as a result of the Contractor’s failure to comply with laws applicable to Contactor as a provider of the products and services pursuant to this Agreement. (3) Subsection 2 is not intended to be an exhaustive list. The exclusion of certain direct damages from the list in this Subsection shall not be construed or interpreted as an agreement to exclude such damages as direct damages under the Contract. Esri’s liability as set forth in this Article 9.4 shall be subject to Article B.4 (Limitation of Liability) ...

Contractor Responsibility for System Agency’s Termination Costs. If the System Agency terminates the Contract for cause, as defined in Section 9.3 above, and it is determined by the parties to be the fault of the Contractor alone, the parties shall work in good faith to arrive at a fair and equitable payment by the Contractor to the System Agency for all direct costs incurred by the System Agency and the State of Texas associated with the selection of a new contractor. Notwithstanding the foregoing, these costs do not include any fees related to the implementation or ongoing costs related to a replacement contractor. If the parties cannot resolve the matter through good faith negotiations, System Agency may pursue all available remedies at law and in equity. 10. Section 10.2 (Intellectual Property) of Attachment B (HHSC Uniform Terms and Conditions (Vendor v. 3.4)) is modified by adding the following paragraph: For the avoidance of doubt, Contractor’s indemnification obligations will not apply to the extent an infringement claim is based upon (i) the use of the licensed software in violation with the terms of this Contract; (ii) the use of the licensed software in combination with other products or services not made or furnished by Contractor, provided that the licensed software alone is not the cause of such claim; or (iii) the modification, additions or alterations of the licensed software or any portion thereof by anyone other than Contractor, provided that the licensed software in unmodified form is not the cause of such claim. 11. Section 11.2 (Insurance) of Attachment B (HHSC Uniform Terms and Conditions (Vendor v. 3.4)) is modified by adding paragraph C as follows: