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PARRIS N. GLENDENING, Governor
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S.B. 142
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THE SUBJECT OF THE BREACH PLUS RESTITUTION OF ANY AMOUNTS PAID FOR
PERFORMANCE NOT RECEIVED AND NOT ACCOUNTED FOR WITHIN THE INDICATED
RECOVERY:
(A) WITH RESPECT TO PERFORMANCE THAT HAS BEEN ACCEPTED
AND THE ACCEPTANCE NOT RIGHTFULLY REVOKED, THE VALUE OF THE
PERFORMANCE REQUIRED LESS THE VALUE OF THE PERFORMANCE ACCEPTED AS
OF THE TIME AND PLACE OF ACCEPTANCE;
(B) WITH RESPECT TO PERFORMANCE THAT HAS NOT BEEN
RENDERED OR THAT WAS RIGHTFULLY REFUSED OR ACCEPTANCE OF WHICH WAS
RIGHTFULLY REVOKED:
(I) THE AMOUNT OF ANY PAYMENTS MADE AND THE VALUE
OF OTHER CONSIDERATION GIVEN TO THE LICENSOR WITH RESPECT TO THAT
PERFORMANCE AND NOT PREVIOUSLY RETURNED TO THE LICENSEE;
(II) THE MARKET VALUE OF THE PERFORMANCE LESS THE
CONTRACT FEE FOR THAT PERFORMANCE; OR
(III) THE COST OF A COMMERCIALLY REASONABLE
SUBSTITUTE TRANSACTION LESS THE CONTRACT FEE UNDER THE BREACHED
CONTRACT, IF THE SUBSTITUTE TRANSACTION WAS ENTERED INTO BY THE
LICENSEE IN GOOD FAITH AND WITHOUT UNREASONABLE DELAY FOR
SUBSTANTIALLY SIMILAR INFORMATION WITH THE SAME CONTRACTUAL USE
TERMS; OR
(C) DAMAGES CALCULATED IN ANY REASONABLE MANNER; AND
(2) INCIDENTAL AND CONSEQUENTIAL DAMAGES.
(B) THE AMOUNT OF DAMAGES MUST BE REDUCED BY ANY UNPAID
CONTRACT FEES FOR PERFORMANCE BY THE LICENSOR WHICH HAS BEEN
ACCEPTED BY THE LICENSEE AND AS TO WHICH THE ACCEPTANCE HAS NOT BEEN
RIGHTFULLY REVOKED.
21-810. RECOUPMENT.
(A) EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION (B) OF THIS SECTION,
AN AGGRIEVED PARTY, UPON NOTIFYING THE PARTY IN BREACH OF CONTRACT OF
ITS INTENTION TO DO SO, MAY DEDUCT ALL OR ANY PART OF THE DAMAGES
RESULTING FROM THE BREACH FROM ANY PAYMENTS STILL DUE UNDER THE SAME
CONTRACT.
(B) IF A BREACH OF CONTRACT IS NOT MATERIAL WITH REFERENCE TO THE
PARTICULAR PERFORMANCE, AN AGGRIEVED PARTY MAY EXERCISE ITS RIGHTS
UNDER SUBSECTION (A) OF THIS SECTION ONLY IF THE AGREEMENT DOES NOT
REQUIRE FURTHER AFFIRMATIVE PERFORMANCE BY THE OTHER PARTY AND THE
AMOUNT OF DAMAGES DEDUCTED CAN BE READILY LIQUIDATED UNDER THE
AGREEMENT.
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- 3713 -
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