9.1, THE R2
PRODUCT IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND.
R2 MAKES NO
ADDITIONAL WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER, EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, AND R2 SPECIFICALLY DISCLAIMS THE IMPLIED WARRANTIES
AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT WITH RESPECT TO THE R2 LUNG CAD PRODUCT PROVIDED HEREUNDER, AND
WITH RESPECT TO THE USE THEREOF.
10. LIMITATION OF LIABILITY
10.1 EXCEPT FOR AMOUNTS PAYABLE PURSUANT TO A PARTY'S INDEMNIFICATION
OBLIGATIONS, AND EXCEPT FOR A BREACH OF SECTION 2.6 OR 11.2, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, COST OF SUBSTITUTE
GOODS, OR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, HOWEVER
CAUSED AND ON ANY THEORY OF LIABILITY, INCLUDING NEGLIGENCE, ARISING OUT OF THIS
AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
IN NO EVENT SHALL
THE TOTAL LIABILITY OF EITHER PARTY EXCEED THE AMOUNTS PAID BY VITAL TO R2
DURING THE TWELVE-MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE
LIABILITY.
THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING OF THE FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY HEREIN.
11. CONFIDENTIALITY
11.1 DEFINITION.
FOR PURPOSES OF THIS AGREEMENT, "CONFIDENTIAL INFORMATION"
MEANS INFORMATION EXCHANGED BETWEEN R2 AND VITAL PURSUANT TO THIS AGREEMENT AND
THE PERFORMANCE OF THE PARTIES' OBLIGATIONS HEREUNDER, ORALLY (IF REDUCED TO
WRITING AND DELIVERED TO THE OTHER PARTY WITHIN THIRTY (30) DAYS OF DISCLOSURE)
OR IN WRITING, IF MARKED TO INDICATE ITS CONFIDENTIAL NATURE OR IF OF A TYPE
THAT A REASONABLE PERSON WOULD EXPECT TO BE PROPRIETARY AND CONFIDENTIAL AND
SHALL INCLUDE THE TERMS OF THIS AGREEMENT.
CONFIDENTIAL INFORMATION SHALL NOT
MEAN INFORMATION WHICH IS (A) IN THE PUBLIC DOMAIN OR SUBSEQUENTLY ENTERS THE
PUBLIC DOMAIN THROUGH NO ACT OR OMISSION OF THE RECEIVING PARTY;
(B) SUBSEQUENTLY ACQUIRED FREE OF ANY CONFIDENTIALITY OBLIGATION BY THE
RECEIVING PARTY FROM A THIRD PERSON HAVING, TO THE RECEIVING PARTY'S KNOWLEDGE,
NO OBLIGATION OF CONFIDENTIALITY TO THE DISCLOSING PARTY; (C) KNOWN TO THE
RECEIVING PARTY AT THE TIME OF DISCLOSURE, AS ESTABLISHED BY COMPETENT PROOF; OR
(D) DEVELOPED INDEPENDENTLY BY OR ON BEHALF OF THE RECEIVING PARTY, WITHOUT
RELIANCE ON OR USE OF ANY CONFIDENTIAL INFORMATION OF THE OTHER.
NOTWITHSTANDING THE ABOVE, BEFORE EITHER PARTY DISCLOSES CONFIDENTIAL
INFORMATION WHICH INCLUDES TECHNICAL OR SCIENTIFIC INFORMATION, IT WILL INFORM
THE OTHER PARTY OF THE GENERAL NATURE OF SUCH INFORMATION AND THE OTHER PARTY
MAY AGREE OR DECLINE TO RECEIVE SUCH INFORMATION, OR THE PARTIES MAY NEGOTIATE A
SEPARATE AGREEMENT COVERING SUCH INFORMATION.
EXCEPT AS TO TECHNICAL OR
SCIENTIFIC INFORMATION, WHICH A PARTY SO AGREES TO RECEIVE, NEITHER PARTY SHALL
HAVE ANY OBLIGATIONS WITH RESPECT TO ANY TECHNICAL OR SCIENTIFIC INFORMATION,
WHICH IT MAY LEARN WITHOUT REFERENCE TO THE OTHER PARTY'S CONFIDENTIAL
INFORMATION.
11.2 OBLIGATIONS.
NEITHER PARTY SHALL USE THE CONFIDENTIAL INFORMATION OF THE
OTHER EXCEPT AS PERMITTED OR EXPRESSLY PROVIDED UNDER THIS AGREEMENT.
IN
ADDITION, EACH PARTY SHALL HOLD ALL CONFIDENTIAL INFORMATION OF THE OTHER IN
CONFIDENCE AND SHALL NOT PUBLISH, DISCLOSE OR DISSEMINATE THE