Virginia Code 59.1-508.8: Licensor’s damages
(a) In this section, “substitute transaction” means a transaction by the licensor which would not have been possible except for the licensee‘s breach and which transaction is for the same information or informational rights with the same contractual use terms as the transaction to which the licensee’s breach applies.
Terms Used In Virginia Code 59.1-508.8
- Contract: A legal written agreement that becomes binding when signed.
- Contract: means the total legal obligation resulting from the parties' agreement as affected by this chapter and other applicable law. See Virginia Code 59.1-501.2
- Damages: Money paid by defendants to successful plaintiffs in civil cases to compensate the plaintiffs for their injuries.
- Good faith: means honesty in fact and the observance of reasonable commercial standards of fair dealing. See Virginia Code 59.1-501.2
- Information: means data, text, images, sounds, mask works, or computer programs, including collections and compilations of them. See Virginia Code 59.1-501.2
- Informational rights: include all rights in information created under laws governing patents, copyrights, mask works, trade secrets, trademarks, publicity rights, or any other law that gives a person, independently of contract, a right to control or preclude another person's use of or access to the information on the basis of the rights holder's interest in the information. See Virginia Code 59.1-501.2
- Licensee: means a person entitled by agreement to acquire or exercise rights in, or to have access to or use of, computer information under an agreement to which this chapter applies. See Virginia Code 59.1-501.2
- Licensor: means a person obligated by agreement to transfer or create rights in, or to give access to or use of, computer information or informational rights in it under an agreement to which this chapter applies. See Virginia Code 59.1-501.2
(b) Except as otherwise provided in § 59.1-508.7, a breach of contract by a licensee entitles the licensor to recover the following compensation for losses resulting in the ordinary course from the breach, less expenses avoided as a result of the breach, to the extent not otherwise accounted for under this subsection:
(1) damages measured in any combination of the following ways but not to exceed the contract fee and the market value of other consideration required under the contract for the performance that was the subject of the breach:
(A) the amount of accrued and unpaid contract fees and the market value of other consideration earned but not received for:
(i) any performance accepted by the licensee; and
(ii) any performance to which § 59.1-506.4 applies;
(B) for performances not governed by subparagraph (A), if the licensee repudiated or wrongfully refused the performance or the licensor rightfully canceled and the breach makes possible a substitute transaction, the amount of loss as determined by contract fees and the market value of other consideration required under the contract for the performance less:
(i) the contract fees and market value of other consideration received from an actual and commercially reasonable substitute transaction entered into by the licensor in good faith and without unreasonable delay; or
(ii) the market value of a commercially reasonable hypothetical substitute transaction;
(C) for performances not governed by subparagraph (A), if the breach does not make possible a substitute transaction, lost profit, including reasonable overhead, that the licensor would have realized on acceptance and full payment for performance that was not delivered to the licensee because of the licensee’s breach; or
(D) damages calculated in any reasonable manner; and
(2) consequential and incidental damages.