THAN A PARTY'S LIABILITY IN CONNECTION WITH ANY BREACH OF
SECTION 5, AND OTHER THAN A PARTY'S INDEMNITY OBLIGATIONS UNDER SECTION 2.7 OR
6, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY AND ALL CLAIMS UNDER
THIS AGREEMENT IN AN AMOUNT IN THE AGGREGATE GREATER THAN THE AMOUNTS PAID OR
PAYABLE BY PSS TO BIOSITE ON SALES OF BIOSITE'S PRODUCTS DURING THE TERM OF THIS
AGREEMENT.
THE LIMITATIONS SET FORTH HEREIN SHALL APPLY NOTWITHSTANDING THE
FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED WARRANTIES OR REMEDIES SET FORTH
IN THIS AGREEMENT.
9.
GENERAL PROVISIONS
9.1
ENTIRE AGREEMENT.
THIS AGREEMENT REPRESENTS
THE ENTIRE AGREEMENT BETWEEN THE PARTIES ON THE SUBJECT MATTER HEREOF AND
SUPERSEDES ALL PRIOR DISCUSSIONS, AGREEMENTS, AND UNDERSTANDINGS OF EVERY KIND
AND NATURE BETWEEN THEM.
NO MODIFICATION OR AMENDMENT OF THIS AGREEMENT SHALL
BE EFFECTIVE UNLESS IN WRITING AND SIGNED BY BOTH PARTIES.
9.2
NOTICES.
ALL NOTICES UNDER THIS AGREEMENT
SHALL BE IN WRITING AND ADDRESSED TO THE PARTIES AT THE FOLLOWING ADDRESSES:
If to Biosite
With copy to:
Biosite Incorporated
Gray Cary Ware & Freidenrich LLP
11030 Roselle Street, Suite D
4365 Executive Drive, Suite 1100
San Diego, California 92121
San Diego, California 92121-2133
Attention: President
Attention: Mark R. Wicker, Esq.
If to PSS:
PSS World Medical, Inc.
4345 Southpoint Boulevard
Jacksonville, FL 32216
Attention: President
or to such other address of which either party may advise the other in writing.
Notices shall be effective on receipt.
9.3
FORCE MAJEURE.
EACH PARTY SHALL BE EXCUSED
FROM ANY DELAY OR FAILURE IN PERFORMANCE OF ANY OBLIGATION HEREUNDER (OTHER THAN
AN OBLIGATION FOR THE PAYMENT OF MONEY) CAUSED BY REASON OF ANY OCCURRENCE OR
CONTINGENCY BEYOND ITS REASONABLE CONTROL, INCLUDING, BUT NOT LIMITED TO AN ACT
OF GOD, EARTHQUAKE, LABOR DISPUTES, RIOTS, GOVERNMENT REQUIREMENTS, REGULATORY
AND ENVIRONMENTAL REQUIREMENTS, INABILITY TO SECURE MATERIALS AND TRANSPORTATION
DIFFICULTIES.
THE OBLIGATIONS AND RIGHTS OF THE PARTY SO EXCUSED SHALL BE
EXTENDED ON A DAY-TO-DAY BASIS FOR THE TIME PERIOD EQUAL TO THE PERIOD OF SUCH
EXCUSABLE DELAY.
9.4
ASSIGNMENTS.
NEITHER THIS AGREEMENT NOR ANY
RIGHT OR OBLIGATION HEREUNDER MAY BE ASSIGNED OR OTHERWISE TRANSFERRED (WHETHER
VOLUNTARILY, BY OPERATION OF LAW OR OTHERWISE), WITHOUT THE PRIOR EXPRESS
WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED, HOWEVER, THAT EITHER PARTY MAY,
WITHOUT SUCH CONSENT, ASSIGN THIS AGREEMENT AND ITS RIGHTS AND OBLIGATIONS
HEREUNDER IN CONNECTION WITH THE TRANSFER OR SALE OF ALL OR
9
SUBSTANTIALLY ALL OF ITS BUSINESS, OR IN THE EVENT OF ITS MERGER, CONSOLIDATION,
CHANGE IN CONTROL OR SIMILAR TRANSACTION.
ANY PERMITTED ASSIGNEE SHALL ASSUME
ALL OBLIGATIONS OF ITS ASSIGNOR UNDER THIS AGREEMENT.
ANY PURPORTED ASSIGNMENT
OR TRANSFER IN VIOLATION OF THIS SECTION 9.4 SHALL BE VOID.
9.5
APPLICABLE LAW.
THIS AGREEMENT SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA,
WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS.
9.6
WAIVER.
NO TERM OR PROVISION HEREOF WILL BE
CONSIDERED WAIVED BY EITHER PARTY, AND NO BREACH EXCUSED BY EITHER PARTY, UNLESS
SUCH WAIVER OR