a manner for which
it was not designed, or in an incompatible operating environment; or (iii)
mishandles, abuses, misuses or damages the Standard Store Configuration.
THE
LIMITED WARRANTY STATED IN THIS SECTION AND THE REMEDIES FOR A FAILURE OR BREACH
OF SUCH LIMITED WARRANTY ARE EXCLUSIVE.
THEY ARE GIVEN TO CUSTOMER IN LIEU OF
ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, ACCURACY, QUIET ENJOYMENT, NON-INFRINGEMENT, OR
COURSE OF PERFORMANCE OR DEALING, WHICH EPL IT SPECIFICALLY DISCLAIMS.
7.
Limitation of Damages. IN NO EVENT SHALL EPL IT (OR ITS SUPPLIERS)
BE LIABLE TO CUSTOMER FOR LOST PROFITS, LOSS OR INTERRUPTION OF BUSINESS, LOSS
OF DATA OR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHER
DAMAGES, HOWEVER CAUSED, AND WHETHER BASED IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY.
THE FOREGOING LIMITATION SHALL
APPLY EVEN IF EPL IT (OR ITS SUPPLIERS) KNOW OR HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING ANY FAILURE OR ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY PROVIDED FOR HEREIN.
EXCEPT IN RESPECT OF INJURY TO OR
DEATH OF ANY PERSON RESULTING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF
EPL IT, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS (FOR WHICH NO LIMIT APPLIES), IN
NO EVENT WILL EPL IT'S ENTIRE LIABILITY UNDER THIS AGREEMENT EXCEED THE GREATER
OF (A) THE FEES PAID TO EPL IT UNDER THIS AGREEMENT OR (B) $5,000.00.
IN NO
EVENT SHALL EPL IT HAVE ANY LIABILITY FOR ANY COMPONENT OF THE STANDARD STORE
CONFIGURATION.
IN ADDITION, EPL IT SHALL NOT BE LIABLE UNDER ANY CLAIM BROUGHT
UNDER ANY THEORY OF LAW THAT AROSE MORE THAN ONE (1) YEAR PRIOR TO THE
INSTITUTION OF SUIT THEREON.
EPL IT SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE
CAUSED BY DELAY IN FURNISHING ANY COMPONENT OF THE STANDARD NETWORK OPERATING
ENVIRONMENT, ANY REPORTS, ANY SERVICES, OR ANY OTHER PERFORMANCE UNDER OR
PURSUANT TO THIS AGREEMENT.
EACH PARTY ACKNOWLEDGES AND AGREES THAT THE
FOREGOING LIMITATIONS ON LIABILITY ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE
BARGAIN BETWEEN THE PARTIES AND THAT IN THE ABSENCE OF SUCH LIMITATIONS, THE
MATERIAL AND ECONOMIC TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT.
Exhibit 8 to Franchise Agreement (Exhibit D of Disclosure Document 033109)
Page 113 of 124
El Pollo Loco Unit # ______
City, State
8.
Term & Termination.
This Agreement shall commence on the term
commencement date set forth above and continue in effect unless earlier
terminated by a party for default.
Either party shall have the right to
terminate this Agreement at the end of each 12 month period of Services by
providing the other party with thirty (30) days prior written notice. If no
cancellation notice is received, EPL IT shall have the right to automatically
renew this contract for a period of 12 months.
EPL IT shall have the right to
terminate this Agreement immediately by written notice if Customer fails to pay
annual