Limitation of Liability

National Master Standing Offer
EZ107-060001/001/VAN to EZ107-060001/006/VAN
Desktop and Network Printers   including Accessories, Supplies and Services

B.21 Limitation of Liability

(a) Liability of Canada and the Contractor to Third Parties: Each Party to this Contract agrees it is responsible to any third party for injury or losses that the third party may suffer to the extent such Party to this Contract caused them, where the third party has a cause of action directly against that Party in respect of the injury or losses. The Parties agree that with respect to such third party claims against the Contractor, the Contractor will be responsible for damages arising out of the injury or losses to the extent that it caused them, including those situations where Canada may be required to pay the damages caused by the Contractor as a result of joint and several liability. With respect to third party claims where the third party does not have a cause of action directly against the Party causing the damage, this Sub-article (a) does not prevent or restrict in any way Canada's right to pursue and enforce any rights that it may have against the Contractor. In the event of any conflict between this Sub-article (a) and any other Sub-article of this Article, this Sub-article (a) will prevail.

(b) Extent of Contractor's Liability for Damages: Regardless of the basis on which Canada may be entitled to claim damages from the Contractor (whether in contract, tort or any other cause of action), the Contractor is liable to Canada only for the following:

(i) all damages and costs resulting from intellectual property right infringement as set out in the Article entitled "Intellectual Property Infringement";

(ii) all damages for physical injury, including death, caused by the Contractor, its employees, agents or subcontractors;

(iii) all direct damages for loss of or physical harm to tangible property and real property caused by the Contractor, its employees, agents or subcontractors;

(iv) all damages for breach of confidentiality;

(v) all damages arising from claims for liens, attachments, charges or other encumbrances or claims upon or in respect of any materials, parts, work-in-process or finished work furnished to, or in respect of which any payment has been made by, Canada, provided that this Sub-article does not apply to claims of intellectual property infringement which claims are covered in Sub-article (i) above; and,

(vi) any other direct damages caused by the Contractor, its employees, agents or subcontractors in relation to this Contract, including reprocurement costs as defined below, and restoration of records to the extent that the Contractor fails to comply with Section (d) below, up to an aggregate maximum for this Sub-article (b) (vi) of the greater of 0.5 times the total estimated cost, or $1,000,000.00.

(c) The Contractor will not be liable to Canada for the following:

(i) damages of third parties claimed against Canada except those referred to in Sub-article (b)(i), (ii), (iii), (iv) or (v) above;

(ii) harm to Canada's records or data, except for the restoration set out in Section (d) below, and subject to the limitation set out in Sub-article (b)(vi) above; or

(iii) special, indirect or consequential damages (other than the payments referred to in Sub-article (b)(i) above, and the damages referred to in Sub-article (b)(ii) above), even if the Contractor is made aware of the potential for such damages, including lost profits and lost savings.

(d) Canada is responsible for maintaining adequate backup of its records and data to enable their restoration if needed for any reason. If Canada's records or data are harmed by the Contractor's or a subcontractor's negligence or willful act, the Contractor is responsible for restoring Canada's records and data to the same state as in the last available backup copy.

(e) For the purposes of this Article:

(i) total estimated cost means the dollar amount shown on the first page of the Contract in the cell titled "Total Estimated Cost";

(ii) reprocurement costs means all identifiable direct costs incurred by Canada to reprocure the Work with another contractor, including deinstallation and return of the Work to the Contractor, administrative costs of selecting another contractor or retendering all or part of the Contract, as applicable, and any increase in the price payable by Canada for the other Work having equivalent functionality, performance and quality; and,

(iii) the term "Contract" applies to stand-alone contracts, and to each call-up, purchase order and other contractual document, irrespective of its title, issued under a Standing Offer or a Supply Arrangement.