TO CONTROL THE DEFENSE. THE INDEMNITY OBLIGATIONS UNDER THIS SECTION 10
SHALL NOT APPLY TO AMOUNTS PAID IN SETTLEMENT OF ANY CLAIM, DEMAND, ACTION OR
OTHER PROCEEDING IF SUCH SETTLEMENT IS EFFECTED WITHOUT THE PRIOR EXPRESS
WRITTEN CONSENT OF THE INDEMNITOR, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED. THE FAILURE TO DELIVER NOTICE TO THE INDEMNITOR WITHIN A
REASONABLE TIME AFTER NOTICE OF ANY SUCH CLAIM OR DEMAND, OR THE COMMENCEMENT OF
ANY SUCH ACTION OR OTHER PROCEEDING, IF PREJUDICIAL TO ITS ABILITY TO DEFEND
SUCH CLAIM, DEMAND, ACTION OR OTHER PROCEEDING, SHALL RELIEVE SUCH INDEMNITOR OF
ANY LIABILITY TO THE INDEMNITEE UNDER THIS SECTION 10 WITH RESPECT THERETO, BUT
THE OMISSION SO TO DELIVER NOTICE TO THE INDEMNITOR SHALL NOT RELIEVE IT OF ANY
LIABILITY THAT IT MAY HAVE TO THE INDEMNITEE OTHERWISE THAN UNDER THIS
SECTION 10. THE INDEMNITOR MAY NOT SETTLE OR OTHERWISE CONSENT TO AN ADVERSE
JUDGMENT IN ANY SUCH CLAIM, DEMAND, ACTION OR OTHER PROCEEDING, THAT DIMINISHES
THE RIGHTS OR INTERESTS OF THE INDEMNITEE WITHOUT THE PRIOR EXPRESS WRITTEN
CONSENT OF THE INDEMNITEE, WHICH CONSENT SHALL NOT BE UNREASONABLY WITHHELD OR
DELAYED. THE INDEMNITEE, ITS EMPLOYEES AND AGENTS, SHALL REASONABLY COOPERATE
WITH THE INDEMNITOR AND ITS LEGAL REPRESENTATIVES IN THE INVESTIGATION OF ANY
CLAIM, DEMAND, ACTION OR OTHER PROCEEDING COVERED BY THIS SECTION 10.
21
11.
LIMITATION OF LIABILITY. EXCEPT FOR A PARTY'S INDEMNITY
OBLIGATIONS UNDER THIS AGREEMENT AND EXCEPT FOR A BREACH OF SECTION 7
(CONFIDENTIALITY), IN NO EVENT SHALL EITHER PARTY BE LIABLE OR OBLIGATED TO THE
OTHER PARTY IN ANY MANNER FOR ANY SPECIAL, NON-COMPENSATORY, CONSEQUENTIAL,
INDIRECT, INCIDENTAL, STATUTORY OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING,
WITHOUT LIMITATION, LOST PROFITS AND LOST REVENUE, REGARDLESS OF THE FORM OF
ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR
OTHERWISE, EVEN IF INFORMED OF OR AWARE OF THE POSSIBILITY OF ANY SUCH DAMAGES
IN ADVANCE. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF
THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. THE PARTIES ACKNOWLEDGE AND AGREE
THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT
REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE
BARGAIN BETWEEN THE PARTIES.
12.
MISCELLANEOUS
12.1
NOTICES. ANY CONSENT, NOTICE OR REPORT REQUIRED OR PERMITTED TO BE
GIVEN OR MADE UNDER THIS AGREEMENT BY ONE OF THE PARTIES TO THE OTHER SHALL BE
IN WRITING AND ADDRESSED TO SUCH OTHER PARTY AT ITS ADDRESS INDICATED BELOW, OR
TO SUCH OTHER ADDRESS AS THE ADDRESSEE SHALL HAVE LAST FURNISHED IN WRITING TO
THE ADDRESSOR, AND SHALL BE EFFECTIVE UPON RECEIPT BY THE ADDRESSEE.
If to Biosite:
Biosite Incorporated
11030 Roselle Street, Suite D
San Diego, California 92121
Attention: President
with a copy to:
Gray Cary Ware & Freidenrich LLP
4365 Executive Drive, Suite 1100
San Diego, California 92121
Attention: Mark R. Wicker, Esq.
If to Beckman:
Beckman Coulter, Inc.
Clinical Diagnostics Division
200 South Kraemer