Gap (GPS)

28.5 Direct Damages

The Parties agree that the following costs and damages, if incurred by either Party, shall be deemed direct damages and neither Party shall assert, and each is estopped from asserting, that they are special, indirect, incidental, consequential or exemplary damages, lost profits or other damages for which recovery is limited or excluded:

A. Costs of reloading data from last available back-up;

B. Costs of performing work-arounds regarding a service failure;

C. Costs of replacing lost, stolen or damaged goods or materials for which a Party is liable;

D. Costs payable to an alternate source to procure replacement services from that alternate source as a result of a failure to perform, to the extent in excess of the applicable charges; and

E. Overtime, straight time and related expenses and allocated overhead (including travel, lodging and wages) as a result of a failure to perform or provide all or a portion of the Services incurred in connection with (A) through (D) above.

The Parties acknowledge that by defining the foregoing as direct damages, they are not precluding the recovery of other damages that may be determined by a court to be direct.