for such Batch of Product.
In addition to
this payment, BVL will be responsible for all Manufacturing fees incurred during
the Manufacture of the failed Batch, pro-rated over the usable portion of the
Batch, if applicable.
Notwithstanding the foregoing, or any declared value of
API costs in excess of $**** or $****, as applicable, or the insurance levels
identified in Section 8.4 or elsewhere, in no event shall BVL's liability to
Customer for in-process loss of API or Customer-supplied Composition be in
excess of $**** or $****, as applicable, per Batch.
8.6.
LIABILITY LIMITATION.
8.6.1.
ELECTION OF REMEDIES. SECTION 3.9.4, 3.9.5, 8.2, 8.5,
8.6.3, 25.1 AND 34 ARE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY PRODUCT THAT
DOES NOT COMPLY WITH THE SPECIFICATIONS CONTAINED IN THE MASTER BATCH RECORD
AND/OR WERE NOT MANUFACTURED IN ACCORDANCE WITH THE REQUIREMENTS SET FORTH IN
THIS AGREEMENT.
8.6.2.
SPECIAL DAMAGES. NEITHER PARTY SHALL BE LIABLE TO THE
OTHER FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING
WITHOUT LIMITATION, LOST PROFITS, LOST MARKET SHARE OR DAMAGES STEMMING FROM AN
INTERRUPTION OF SUPPLY
22
ARISING OUT OF THIS AGREEMENT, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY
(THE "SPECIAL DAMAGES").
8.6.3.
AGGREGATE AGREEMENT CAP ON COSTS, LOSSES, EXPENSES,
DAMAGES AND MAXIMUM WEEKLY PAYMENT CAP. THE PARTIES RECOGNIZE AND ACKNOWLEDGE
THAT THIS ARTICLE 8 ATTEMPTS TO EQUITABLY ALLOCATE RISK WITH RESPECT TO EACH
PARTIES' RESPECTIVE INTEREST IN THE AGREEMENT AND THAT THE LIMITATIONS OF
LIABILITY SET FORTH HEREIN ARE COMPROMISES.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY SET FORTH HEREIN, BVL'S TOTAL MAXIMUM AGGREGATE LIABILITY FOR DAMAGES,
LIABILITY AND INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT SHALL NOT EXCEED
A TOTAL AGGREGATE CAP OF FIVE MILLION DOLLARS (USD$5,000,000).
THIS CAP ON
DAMAGES AND LIABILITY (THE "BVL CAP") IS INTEGRAL TO THIS AGREEMENT AND THE
AGREEMENT WOULD NOT HAVE BEEN EXECUTED IN ITS ABSENCE.
8.6.4.
EXCEPTIONS TO
LIABILITY CAP.
THE BVL CAP SHALL NOT APPLY TO DAMAGES RESULTING FROM: BREACHES
BY A PARTY OF A DUTY IMPOSED UNDER ARTICLE 9 (CONFIDENTIALITY), SECTION 11
(INTELLECTUAL PROPERTY), OR DUE TO A PARTY'S WILLFUL MISCONDUCT OR FRAUD.
FOR
THE AVOIDANCE OF DOUBT, THE PARTIES EXPLICITLY ACKNOWLEDGE AND AGREE THAT BVL'S
OFFERING TO ENTER INTO THIS AGREEMENT AND ENTERING INTO THIS AGREEMENT GIVEN
BVL'S CURRENT AND POTENTIAL REGULATORY SITUATION AND THE POTENTIAL IMPACT OF
THAT ON BVL'S ABILITY TO MANUFACTURE AND DELIVER PRODUCT UNDER THIS AGREEMENT
SHALL NOT SERVE AS THE BASIS OF ANY CLAIM FOR WILLFUL MISCONDUCT, FRAUD OR FRAUD
IN THE INDUCEMENT.
8.6.5.
INTEGRAL PROVISIONS.
THESE LIMITATIONS SET FORTH IN
THIS SECTION 8.6 SHALL APPLY, NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE
OF ANY LIMITED REMEDY. SUCH LIMITED WARRANTIES, LIMITATION OF LIABILITY AND
SPECIAL PROVISIONS ARE INTEGRAL PARTS OF THIS AGREEMENT.
ARTICLE 9 -
CONFIDENTIALITY
9.1.
Confidential Information. As used in this
Agreement, "Confidential Information" means any scientific, technical, trade,
business or proprietary information related to the subject of the Agreement,
irrespective of whether in human or machine-readable form, tangible or
intangible, (a) which is or has been given by the Disclosing Party