Common use of Substantial Nonperformance Clause in Contracts

Substantial Nonperformance. In the event Customer reasonably believes that Vendor has substantially failed to provide the Services, Customer will give to Vendor a written notice specifically describing the nature of such failure and the approximate date on which Vendor failed to so provide the Services. Upon receipt of such notice, Vendor shall have 30 days to cure such failure or such longer time as mutually agreed upon by the parties. In the event Vendor fails to cure such failure within such time, and such failure has or will have a materially adverse effect upon Customer, Customer shall have a right to terminate this Agreement effective upon not less than 60 days prior notice to Vendor. Upon such termination, Vendor will reimburse Customer the actual monetary damages Customer incurred as a result of Vendor’s nonperformance; provided, however, in no event shall such damages exceed the limit of liability set forth in Section 9. The obligations of Vendor under this Section 7 are conditioned upon: (i) Vendor’s receipt of a notice of nonperformance from Customer as required in this Section 7; and, (ii) Vendor’s nonperformance is not the result of any negligent, improper or prohibited act or omission of Customer, or their employees or agents, or any other factor not directly within the reasonable control of Vendor. Customer shall promptly reimburse Vendor for any expenses incurred by Vendor in investigating or correcting any problem experienced by Customer, which is the responsibility of or caused by Customer. Customer shall promptly reimburse Vendor for 50% of all expenses incurred by Vendor in investigating or correcting any problems experienced by Customer which is not the responsibility of or solely caused by Vendor under this Agreement.