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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 CostanzoKudoZ activityQuestions: 28 (none open) ( 1 closed without grading) Answers: 7
| Local time: 03:16
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| | English translation: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..."
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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: 02:16
| Grading comment Thanks to Ty and everybody else for your help!
4 KudoZ points were awarded for this answer |
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| Discussion entries: 0 |
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Automatic update in 00:
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9 mins confidence:  peer agreement (net): +5 | or xx's performance or asserted failure to perform hereunder 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.
--------------------------------------------------
Note added at 14 mins (2011-10-30 07:25:36 GMT)
--------------------------------------------------
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)
--------------------------------------------------
Spelling mistake **there rest is...** should be "the rest is..."
I blame the clocks going back! :)
--------------------------------------------------
Note added at 8 hrs (2011-10-30 15:40:54 GMT)
--------------------------------------------------
Yes, I believe that interpretation is correct.
--------------------------------------------------
Note added at 8 hrs (2011-10-30 15:44:31 GMT)
--------------------------------------------------
Liability stemming from the Agreement, except for breach of warranty and performance issues shall not exceed...
| Ty Kendall
United Kingdom
Local time: 02:16
Specializes in field
Native speaker of:  English
PRO pts in category: 6
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| | 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?
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The translation workplace 
