OF THIS
AGREEMENT AND EACH PARTY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NONINFRINGEMENT.
9.5
LIMITED LIABILITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN
THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY OF ITS
AFFILIATES FOR (I) ANY SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL
DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS OR LOST REVENUES, OR (II)
COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES, WHETHER UNDER
ANY CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY.
10.
MISCELLANEOUS
10.1
NOTICES.
ANY NOTICES, REQUESTS, DELIVERIES, APPROVALS OR CONSENTS
REQUIRED OR PERMITTED TO BE GIVEN UNDER THIS AGREEMENT TO SANOFI-AVENTIS OR
IMMUNOGEN SHALL BE IN WRITING AND SHALL BE EFFECTIVE ON RECEIPT WHEN DELIVERED
TO THE APPLICABLE ADDRESS SPECIFIED BELOW (OR TO SUCH OTHER ADDRESS AS MAY BE
SPECIFIED IN WRITING TO THE OTHER PARTY HERETO):
If to ImmunoGen:
ImmunoGen, Inc.
128 Sidney Street
Cambridge, MA 02139
Attn: Chief Executive Officer
With a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center
Boston, MA 02111
Attn: [***] [***] [***], Esq
Telecopy: 617-542-2241
If to sanofi-aventis:
sanofi-aventis U.S. Inc.
1041 Rt.202-206
Bridgewater, NJ 08807
Attn: Head, US Alliance & Partnerships
With a copy to:
Attn: Head, US R&D Legal
Except as otherwise expressly provided in this Agreement or mutually agreed in
writing, any notice, communication or document (excluding payment) required to
be given or made shall be deemed given or made and effective upon actual receipt
or, if earlier, (a) three (3) business days after deposit with an
internationally-recognized overnight express courier with changes prepaid, or
(b) five (5) business days after mailed by certified, registered or regular
mail, postage prepaid, in each case addressed to a Parties at its address stated
above or to such other address as such Party may designate by written notice
given in accordance with this Section 10.1.
17
10.2
GOVERNING LAW.
THIS AGREEMENT WILL BE CONSTRUED, INTERPRETED AND
APPLIED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE (EXCLUDING ITS BODY
OF LAW CONTROLLING CONFLICTS OF LAW).
10.3
LIMITATIONS.
EXCEPT AS SET FORTH ELSEWHERE IN THIS AGREEMENT,
NEITHER PARTY GRANTS TO THE OTHER PARTY ANY RIGHT OR LICENSE TO ANY OF ITS
INTELLECTUAL PROPERTY.
10.4
ENTIRE AGREEMENT.
THIS IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR
REPRESENTATIONS, UNDERSTANDINGS AND AGREEMENTS BETWEEN THE PARTIES WITH RESPECT
TO THE SUBJECT MATTER HEREOF, INCLUDING WITHOUT LIMITATION THE OPTION
AGREEMENT.
NO MODIFICATION SHALL BE EFFECTIVE UNLESS IN WRITING WITH SPECIFIC
REFERENCE TO THIS AGREEMENT AND SIGNED BY THE PARTIES.
10.5
WAIVER.
THE TERMS OR CONDITIONS OF THIS AGREEMENT MAY BE WAIVED
ONLY BY A WRITTEN INSTRUMENT EXECUTED BY THE PARTY WAIVING COMPLIANCE.
THE
FAILURE OF EITHER PARTY AT ANY TIME OR TIMES TO REQUIRE PERFORMANCE OF ANY
PROVISION HEREOF SHALL IN NO MANNER AFFECT ITS RIGHTS AT A LATER TIME TO ENFORCE
THE SAME.
NO WAIVER BY