Gap (GPS)

1.35 “Egregious Acts”

“Egregious Acts” shall have the meaning specified in Section 28.4 (Egregious Acts).

28.4 Egregious Acts

For purposes of this Agreement, “Egregious Acts” shall mean *, or other similar *. As to Egregious Acts, the limitation of liability amount set forth in Section 28.2 (Limitation of Liability Amount) shall be modified as follows: Supplier’s and Gap’s (and their respective Affiliates, subcontractors, employees, officers or directors) aggregate liability for all direct damages whatsoever, arising out of this Agreement including all costs of cover, regardless of the form of the action or the theory of recovery whether in contract or tort (including breach of warranty, negligence and strict liability in tort) shall be limited, for all claims under this Agreement, to an aggregate amount equal to the total Charges paid to Supplier pursuant to this Agreement for the * prior to the month in which the first Primary Event giving rise to liability occurred; provided that if the event giving rise to liability occurs during the first * after the Reference Date of this Agreement, liability shall be limited to an amount equal to the total Charges to be paid to Supplier in * pursuant to this Agreement (the “Egregious Act Damage Limit”). For purposes of clarity, the Egregious Act Damage Limit is inclusive of the Damage Limit set forth in Section 28.2 (Limitation of Liability Amount) above (as opposed to in addition to such Damage Limit).

Gap Confidential and Proprietary Information

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In the event that at any time during the Term, the Egregious Act Damage Limit has been depleted such that the remaining Egregious Act Damage Limit as to a Party falls below an amount that is * or less of the Egregious Act Damage Limit then either (1) that Party shall agree, upon request by the other Party, by Amendment to this Agreement to reset the Egregious Act Damage Limit to an amount equal to the total Charges paid to Supplier pursuant to this Agreement for the * prior to the month in which the first Primary Event giving rise to liability occurred; or (2) in the event the Party does not agree to reset the Egregious Act Damage Limit, the other Party shall have the option to terminate this Agreement without termination fees and (i) as to Gap, the payment to Supplier of Stranded Costs and (ii) as to Supplier, the payment to Gap of an amount that would be equal to the Stranded Cost amount Supplier would receive from Gap, if Gap was terminating the Agreement for convenience as of that date.