at its option and expense, and in addition to its other
rights under the Agreement, undertake further actions to mitigate or resolve the
Claim such as: (i) procure the copyright, trademark, or patent rights, or
licenses to address the Claim; (ii) replace or modify the Product or trademark
to make it non-infringing; or (iii) if Microsoft reasonably determines, after
the exercise of commercially reasonable efforts,
that neither of the foregoing
are feasible, refund the Product Fees paid for affected Products in accordance
with the provisions set forth in the associated Guides.
Page 21 of 41
CONFIDENTIAL
Microsoft Global Partner Agreement NOV 2018
Document Tracking Number: [***]
8. LIMITATIONS ON LIABILITY, GENERAL
8.1
TO THE EXTENT PERMITTED BY LAWS, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR
ANY DAMAGES FOR LOSS OF PROFITS OR REVENUES, BUSINESS INTERRUPTION, OR LOSS OF
BUSINESS INFORMATION OR DATA, OR FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL,
INDIRECT, OR PUNITIVE DAMAGES.
8.2
THE TOTAL CUMULATIVE LIABILITY (IF ANY) OF EITHER PARTY TO THE OTHER UNDER A
PROGRAM APPENDIX (INCLUDING ASSOCIATED INVESTMENT PROGRAMS) IS LIMITED TO DIRECT
DAMAGES IN AN AMOUNT NOT TO EXCEED 100% OF THE PRODUCT FEES PAID, DUE OR OWING
BY COMPANY TO MICROSOFT UNDER THE PROGRAM APPENDIX DURING THE 12-MONTH PERIOD
PRIOR TO THE DATE ON WHICH THE RIGHT TO ASSERT A CLAIM FIRST AROSE, MINUS ANY
AMOUNTS PAID BY THE LIABLE PARTY DURING THE SAME PERIOD FOR ANY PRIOR LIABILITY
UNDER THE PROGRAM APPENDIX, OR AN AMOUNT AS OTHERWISE INDICATED IN THE PROGRAM
APPENDIX. UNLESS OTHERWISE PROVIVED IN THE PROGRAM APPENDIX, IF THE PROGRAM
APPENDIX HAS BEEN IN EFFECT FOR LESS THAN 12 MONTHS, DIRECT DAMAGES WILL NOT
EXCEED THE AVERAGE MONTHLY PRODUCT FEES PAID, DUE OR OWING MULTIPLIED BY 12. IF
A PRODUCT DOES NOT REQUIRE PAYMENT OF PRODUCT FEES, THE AMOUNT USED FOR
CALCULATING THE CAP WILL BE $10.00 PER UNIT OF PRODUCT USED OR DISTRIBUTED BY
COMPANY DURING THAT PERIOD.
8.3
THE LIMITATIONS ON LIABILITY AND ALLOWABLE DAMAGES WILL NOT APPLY TO EITHER
PARTY'S (I) LIABILITIES FOR UNAUTHORIZED USE OR UNAUTHORIZED DISPOSITION OF THE
OTHER PARTY'S INTELLECTUAL PROPERTY (INCLUDING VIOLATION OF ANY LICENSE GRANTS
AND LIMITATIONS, OR CONFIDENTIALITY OBLIGATIONS IN THE AGREEMENT); (II)
OBLIGATIONS TO DEFEND AND PAY THIRD-PARTY CLAIMS; (III) BREACH OF THE BUSINESS
INTEGRITY PRINCIPLES SET FORTH IN THE CORE TERMS; OR (IV) FRAUD AND GROSS
NEGLIGENCE.
MICROSOFT AND COMPANY AGREE THAT ALL LIMITATIONS ON LIABILITY AND
EXCLUSIONS ON ALLOWABLE DAMAGES SHALL APPLY EVEN IF ANY REMEDIES FAIL OF THEIR
ESSENTIAL PURPOSE.
8.4
MICROSOFT AND COMPANY AGREE THAT A PARTY'S LIABILITY FOR ANY DAMAGES OR
INDEMNITY SHALL BE REDUCED TO THE EXTENT THAT THE OTHER PARTY OR ITS AGENTS
CAUSED OR CONTRIBUTED TO THE HARM GIVING RISE TO THE DAMAGES OR INDEMNITY
OBLIGATION.
9. INSURANCE REQUIREMENTS, GENERAL
9.1
General Requirements.
Throughout the Agreement term, Microsoft and Company will
each maintain sufficient insurance or a program of self-insurance to cover its
risks and obligations under the Agreement. Upon request, a party will provide a
certificate of such coverage