LIMITATION OF LIABILITY.
NEITHER SOLVAY NOR DEPOMED SHALL BE LIABLE
TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL, OR
PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF USE,
REVENUE, PROFIT, OPERATING COSTS, FINANCING AND INTEREST COSTS, AND BUSINESS
INTERRUPTION, HOWEVER THE SAME MAY BE CAUSED, ARISING FROM OR RELATING TO THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE FAULT, BREACH OF CONTRACT, OR TORT
(INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), EVEN
IF THE OTHER PARTY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SUCH
LIMITATION SHALL
38
Confidential Information, indicated by [***] has been omitted from this filing
and filed separately with the Securities Exchange Commission
NOT LIMIT EITHER PARTY'S INDEMNIFICATION OBLIGATIONS UNDER SECTIONS 11.1 THROUGH
11.5 AND SHALL NOT APPLY IN CASES OF (A) THE WILLFUL MISCONDUCT OF EITHER PARTY,
(B) DAMAGES CLAIMED BY THIRD PARTIES, (C) A PARTY'S BREACH OF ITS
CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 10.
ARTICLE 12
MISCELLANEOUS
12.1
SEVERABILITY.
IF AND TO THE EXTENT THAT ANY COURT OR OTHER JUDICIAL
BODY DETERMINES ANY PROVISION OF THIS AGREEMENT TO BE INVALID, SUCH
DETERMINATION SHALL IN NO WAY AFFECT THE LEGALITY, VALIDITY, AND ENFORCEABILITY
OF THE OTHER PROVISIONS OF THIS AGREEMENT, WHICH SHALL REMAIN IN FULL FORCE AND
EFFECT AND SHALL BE CONSTRUED AS NEARLY AS POSSIBLE TO REFLECT THE GENERAL
INTENTIONS OF THE PARTIES AS REFLECTED IN THIS AGREEMENT SO LONG AS THE ECONOMIC
AND LEGAL SUBSTANCE OF THE TRANSACTIONS CONTEMPLATED HEREBY IS NOT AFFECTED IN
ANY MANNER MATERIALLY ADVERSE TO EITHER PARTY.
12.2
FORCE MAJEURE.
EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS
AGREEMENT, NEITHER PARTY SHALL BE DEEMED TO HAVE DEFAULTED UNDER OR BREACH THIS
AGREEMENT FOR FAILURE OR DELAY IN FULFILLING ITS OBLIGATIONS UNDER THIS
AGREEMENT TO THE EXTENT SUCH FAILURE OR DELAY IS DUE, IN WHOLE OR IN PART, TO
INTERVENTION OF ANY GOVERNMENTAL AUTHORITY OR ACTS OF REGULATORY AGENCIES,
FIRES, EARTHQUAKES, ACTS OF GOD OR CAUSES BEYOND ITS CONTROL (SUCH OCCURRENCE
BEING REFERRED TO AS AN EVENT OF "FORCE MAJEURE").
IF AN EVENT OF FORCE MAJEURE
OCCURS, THE AFFECTED PARTY SHALL PROMPTLY NOTIFY THE OTHER PARTY, EXPLAINING THE
NATURE, DETAILS, AND EXPECTED DURATION THEREOF.
FURTHER, THE AFFECTED PARTY
SHALL ALSO NOTIFY THE OTHER PARTY FROM TIME TO TIME AS TO WHEN THE AFFECTED
PARTY REASONABLY EXPECTS TO RESUME PERFORMANCE IN WHOLE OR IN PART OF ITS
OBLIGATIONS HEREUNDER, AND NOTIFY THE OTHER PARTY OF THE CESSATION OF ANY SUCH
EVENT.
IN THE EVENT A PARTY'S PERFORMANCE IS DELAYED BY MORE THAN ONE HUNDRED
TWENTY (120) DAYS DUE TO AN EVENT OF FORCE MAJEURE, THEN THE OTHER PARTY WILL
HAVE THE RIGHT TO TERMINATE THIS AGREEMENT IMMEDIATELY UPON WRITTEN NOTICE TO
THE AFFECTED PARTY.
12.3
NOTICES.
WHEREVER NOTICE IS REQUIRED OR PERMITTED HEREUNDER, IT
SHALL BE BY PERSONAL DELIVERY, FIRST CLASS MAIL, OVERNIGHT DELIVERY SERVICE, OR
SENT BY FACSIMILE TRANSMISSION, WITH ELECTRONIC CONFIRMATION, PROPERLY DIRECTED
TO THE PARTY AT ITS ADDRESS AND CONTACT INFORMATION LISTED BELOW.
SAID ADDRESS
AND CONTACT INFORMATION MAY BE CHANGED FROM TIME TO TIME