or XX's performance or asserted failure to perform hereunder

English translation: Parsing...see explanation

07:11 Oct 30, 2011

English language (monolingual) [PRO]
Law/Patents - Law: Contract(s)

English term or phrase: or XX's performance or asserted failure to perform hereunder

Hallo everybody!

In an US distribution agreement, I have some problems understanding the connection of the part of the clause on "limitation of liability" that I indicate between asterisks in the following sentence:

Under no circumstances shall XX's liability arising out of or in connection with this Agreement, other than by reason of a breach of the warranty set forth in Section aaa above, *or XX's performance or asserted failure to perform hereunder*, in contract, tort (including negligence) or otherwise, exceed the purchase price of the product to which such liability relates.

Does it depend on "other than by reason of" or should be read as "shall XXs liability [...] or XX's performance [...]"? In this case, I have some difficulties understanding the connection between the two elements:

Thank you in advance for any help

Viviana Costanzo KudoZ activity Questions: 28 (none open) (1 closed without grading) Answers: 7
Local time: 15:44

Selected answer:Parsing...see explanation

Explanation:
Under no circumstances shall XX's liability arising out of or in connection with this Agreement, other than by reason of a breach of the warranty set forth in Section aaa above, *or XX's performance or asserted failure to perform hereunder*, in contract, tort (including negligence) or otherwise, exceed the purchase price of the product to which such liability relates.

Basically it's talking about...

Liability arising out of or in connection with:
1. Breach of Warranty
2. XX's performance or failure to perform.

There rest is legalese padding.

The two bold phrases above could quite happily go together, the middle is just legal detailing.

This is how I would analyse the paragraph.

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Note added at 14 mins (2011-10-30 07:25:36 GMT)
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Re-writing the sentence somewhat more simply would be:
"Under no circumstances shall XX's liability, arising out of or in connection with a breach of warranty or XX's performance/failure to perform, exceed the purchase price..."

--------------------------------------------------
Note added at 25 mins (2011-10-30 07:36:43 GMT)
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Spelling mistake **there rest is...** should be "the rest is..."
I blame the clocks going back! :)

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Note added at 8 hrs (2011-10-30 15:40:54 GMT)
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Yes, I believe that interpretation is correct.

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Note added at 8 hrs (2011-10-30 15:44:31 GMT)
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Liability stemming from the Agreement, except for breach of warranty and performance issues shall not exceed...

Selected response from:

Ty Kendall
United Kingdom
Local time: 14:44

Grading comment

Thanks to Ty and everybody else for your help!
4 KudoZ points were awarded for this answer

SUMMARY OF ALL EXPLANATIONS PROVIDED

5 +5

Parsing...see explanation

Ty Kendall

Answers

9 mins confidence:

peer agreement (net): +5

or xx's performance or asserted failure to perform hereunder

Parsing...see explanation

Ty Kendall
United Kingdom
Local time: 14:44
Specializes in field
Native speaker of: English
PRO pts in category: 6

Grading comment

Thanks to Ty and everybody else for your help!

Notes to answerer

Asker: Thank you very much for the useful and detailed explanations! Now I have understood the connection in the sentence, but there is still something abou that I'm not sure: the liability arises out from the agreement but is excluded in the cases of breach of warranty or performance / failure to perform. Is it correct?

Peer comments on this answer (and responses from the answerer)

agree

Tony M: Yes, just to elaborate, Asker's 2 expressions with 'or' in fact follow on from "by reason of... X or [Y or Z]"

6 mins

-> Merci Tony! :)

neutral

B D Finch: Yes and no. The sentence is very badly drafted, as it is unclear whether "other than by reason of" qualifies only the phrase up to the next comma, or everything up to "...otherwise,".

2 hrs

-> I was under the impression it was "other than by reason of ______ or ______. Therefore ending at "otherwise". i.e. by reason of a warranty breach or performance issues. Thanks also!

agree

writeaway: I see nothing wrong with the legalese in the question. Is actually relatively clear

3 hrs

-> Thanks

agree

Martin Riordan

4 hrs

-> Cheers

agree

Phong Le

4 hrs

-> Thanks

agree

Tina Vonhof (X): To asker: in other words, the liability can only exceed the purchase price if there is a breach of contract, failure to perform, etc. etc.

8 hrs

-> Thanks Tina, very concise! :-) I was struggling to phrase it in an easy manner.

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