                                 CODE OF VIRGINIA

LICENSOR&#8217;S DAMAGES (§ 59.1-508.8)

a. In this section, &#8220;substitute transaction&#8221; means a transaction by
the licensor which would not have been possible except for the licensee&#8217;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&#8217;s breach applies.

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 &#xA7; 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&#8217;s breach; or

D. damages calculated in any reasonable manner; and

   2. consequential and incidental damages.

HISTORY: 2000, cc. 101, 996.