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46.a.1. IF SUPPLIER OR ITS REPRESENTATIVES ARE HELD LIABLE FOR ANY REASON
<br />FOR ANY LOSS, INJURY, OR DAMAGES OF ANY KIND THAT ARISES OUT OF, RESULTS
<br />FROM, OR IS RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION,
<br />LOSSES, INJURIES OR DAMAGES RESULTING FROM SUPPLIER'S SOLE OR PARTIAL
<br />NEGLIGENCE, WHETHER ACTIVE OR PASSIVE), UNIVERSITY AGREES AND WARRANTS
<br />THAT SUPPLIER'S AND ITS REPRESENTATIVE'S COLLECTIVE LIABILITY TO UNIVERSITY,
<br />ITS AGENTS, OFFICERS, DIRECTORS, AND EMPLOYEES SHALL BE LIMITED EXCLUSIVELY
<br />TO $2,000,000; PROVIDED, HOWEVER, THAT THE FOREGOING LIMITATION OF LIABILITY
<br />SHALL NOT APPLY TO: (1) DAMAGES ARISING FROM THE GROSS NEGLIGENCE OR
<br />WILLFUL MISCONDUCT OF SUPPLIER, ITS EMPLOYEES, ITS SUBCONTRACTORS, OR ITS
<br />AGENTS; (2) CLAIMS FOR PERSONAL INJURY, INCLUDING DEATH, ARISING FROM THE
<br />NEGLIGENCE OF SUPPLIER, ITS EMPLOYEES, ITS SUBCONTRACTORS, OR ITS AGENTS-
<br />(3) AND CLAIMS FOR DAMAGE TO REAL PROPERTY OR TANGIBLE OR INTANGIBLE
<br />PROPERTY ARISING FROM SUPPLIER'S ACTS OR OMISSIONS UNDER THE AGREEMENT.
<br />If University wishes to increase the limitation of liability, Supplier and University may negotiate a
<br />supplemental written agreement to increase the limit of Supplier's liability, but no such agreed upon
<br />increase to the limit of Supplier's liability shall be interpreted to find Supplier or its subcontractors
<br />or representatives to be insurers. Neither party shall be liable to the other or any other person for
<br />any incidental, punitive, speculative, or consequential damages of any type, including, but not
<br />limited to, loss of profits or business opportunity.
<br />b. As it pertains to Participating Public Agencies, the following limitation of liability shall apply:
<br />46.b.1. Participating Public Agency acknowledges that Supplier's service fees/purchase prices are
<br />based on the value of services or goods provided and the limited liability provided under this
<br />Agreement and not on the value of the Participating Public Agency's premises or its contents, or
<br />the likelihood or potential extent or severity of injury (including death) to Participating Public Agency
<br />or others. Participating Public Agency further acknowledges and agrees that Supplier cannot
<br />predict the potential amount, extent, or severity of any damages or injuries that Participating Public
<br />Agency or others may incur due to the failure of the goods, systems, or services to work as
<br />intended. IF SUPPLIER OR ITS REPRESENTATIVES ARE HELD LIABLE FOR ANY REASON
<br />FOR ANY LOSS, INJURY, OR DAMAGES OF ANY KIND THAT ARISES OUT OF, RESULTS
<br />FROM, OR IS RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION,
<br />LOSSES, INJURIES OR DAMAGES RESULTING FROM SUPPLIER'S SOLE OR PARTIAL
<br />NEGLIGENCE, WHETHER ACTIVE OR PASSIVE), PARTICIPATING PUBLIC AGENCY
<br />AGREES AND WARRANTS THAT SUPPLIER'S AND ITS REPRESENTATIVE'S COLLECTIVE
<br />LIABILITY TO PARTICIPATING PUBLIC AGENCY, ITS AGENTS, OFFICERS, DIRECTORS,
<br />EMPLOYEES, INVITEES, AND ANY THIRD PARTY SHALL BE LIMITED EXCLUSIVELY TO 25%
<br />OF PARTICIPATING PUBLIC AGENCY'S SPEND IN THE TWELVE (12) MONTHS
<br />IMMEDIATELY PRECEDING THE DATE ON WHICH THE LIABILITY AROSE. If Participating
<br />Public Agency wishes to increase the limitation of liability, Supplier and Participating Public Agency
<br />may negotiate a supplemental written agreement to increase the limit of Supplier's liability, but no
<br />such agreed upon increase to the limit of Supplier's liability shall be interpreted to find Supplier or
<br />its subcontractors or representatives to be insurers. PARTICIPATING PUBLIC AGENCY AGREES
<br />THAT THE LIMITS ON THE LIABILITY OF SUPPLIER AND THE WAIVERS AND INDEMNITIES
<br />SET FORTH IN THIS AGREEMENT ARE A FAIR ALLOCATION OF RISKS AND LIABILITIES
<br />BETWEEN SUPPLIER, PARTICIPATING PUBLIC AGENCY, AND ANY OTHER AFFECTED
<br />PARTIES. PARTICIPATING PUBLIC AGENCY ACKNOWLEDGES AND AGREES THAT WERE
<br />SUPPLIER TO HAVE LIABILITY GREATER THAN THAT STATED ABOVE, IT WOULD NOT
<br />PROVIDE THE GOODS AND SERVICES. Neither party shall be liable to the other or any other
<br />person for any incidental, punitive, speculative, or consequential damages of any type, including,
<br />but not limited to, loss of profits or business opportunity.
<br />47. No Federal Contractor. As a material condition of this Agreement, University represents and
<br />warrants that: (a) University is not an agency or instrumentality of the United States government; and (b)
<br />this Agreement does not constitute, and is not entered to support, a federal government contract,
<br />100056454.DOCX; s} Page 13
<br />Title: Master Agreement - Expenditure
<br />Revised: 220727
<br />Effective: 220804
<br />
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