SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT
TO ANY SUBJECT MATTER OF THIS AGREEMENT.
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10.9
LIMITATION OF LIABILITY.
OTHER THAN WITH RESPECT
TO A CLAIM PURSUANT TO SECTION 9.1,ASSIGNEE SHALL NOT BE LIABLE UNDER THIS
AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR ANY AMOUNTS, IN THE AGGREGATE, IN EXCESS OF $50,000 AUD.
EACH OF MARIE-ISABEL AND SUPUNDI HEREBY AGREE THAT ASSIGNEE SHALL HAVE NO
OBLIGATIONS OR LIABILITY WHATSOEVER TO MARIE-ISABEL AND SUPUNDI FOR ROYALTIES ON
NET SALES, THE GIVING OF NOTICES UNDER THIS AGREEMENT OR ANY OTHER
RESPONSIBILITY ON THE PART OF ASSIGNEE HEREUNDER.
10.10
FORCE MAJEURE.
NEITHER PARTY SHALL LOSE ANY RIGHTS
HEREUNDER OR BE LIABLE TO THE OTHER PARTY FOR DAMAGES OR LOSSES OR BE DEEMED TO
HAVE DEFAULTED UNDER OR BREACHED THIS AGREEMENT ON ACCOUNT OF FAILURE OF
PERFORMANCE BY THE DEFAULTING PARTY IF THE FAILURE IS OCCASIONED BY WAR, ACTS OF
WAR (WHETHER DECLARED OR NOT), STRIKE, INSURRECTIONS, RIOTS, CIVIL COMMOTIONS,
FIRE, ACT OF GOD, EARTHQUAKE, FLOOD, LOCKOUT OR OTHER LABOR DISTURBANCES,
EMBARGO, GOVERNMENTAL ACTS OR ORDERS OR RESTRICTIONS, OR ANY OTHER REASON WHERE
FAILURE TO PERFORM IS BEYOND THE REASONABLE CONTROL AND NOT CAUSED BY THE
NEGLIGENCE, INTENTIONAL CONDUCT OR MISCONDUCT OF THE NON-PERFORMING PARTY AND
SUCH PARTY HAS EXERTED ALL COMMERCIALLY REASONABLE EFFORTS TO AVOID AND REMEDY
SUCH FORCE MAJEURE; PROVIDED, HOWEVER, THAT THE NON-PERFORMING PARTY SHALL
NOTIFY THE OTHER PARTY IN WRITING THAT SUCH CONDITION EXISTS WITHIN FIVE (5)
DAYS OF THE START OF LEARNING THAT SUCH CONDITIONS EXISTS. SHOULD SUCH FORCE
MAJEURE CONDITION CONTINUE FOR A PERIOD OF THIRTY (30) DAYS BEYOND THE DATE OF
NOTICE THAT SUCH CONDITION EXISTS, THE PARTIES SHALL MEET AND USE THEIR BEST
EFFORTS TO ASSIST THE PERFORMING PARTY TO SEEK PERFORMANCE FROM A THIRD PARTY
(IF APPROPRIATE).
10.11
ENTIRE AGREEMENT.
THIS AGREEMENT AND THE EXHIBITS
ATTACHED HERETO HEREUNDER CONSTITUTE THE ENTIRE AGREEMENT, BOTH WRITTEN AND
ORAL, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND ALL
PRIOR AGREEMENTS
RESPECTING THE SUBJECT MATTER HEREOF, EITHER WRITTEN OR ORAL,
EXPRESSED OR IMPLIED, SHALL BE ABROGATED, CANCELED, AND ARE NULL AND VOID AND OF
NO EFFECT.
THE PARTIES HEREBY AGREE THAT THE CONFIDENTIAL DISCLOSURE AGREEMENT
BETWEEN THE PARTIES DATED MAY 21, 1998, AS AMENDED, SHALL TERMINATE AS OF THE
EFFECTIVE DATE, BUT SHALL CONTINUE IN FULL FORCE AND EFFECT UNDER ITS TERMS AND
FOR THE TERM INDICATED THEREIN WITH RESPECT TO ANY PROPRIETARY INFORMATION, AS
DEFINED IN THAT AGREEMENT, DISCLOSED BY EITHER PARTY PRIOR TO THE EFFECTIVE
DATE.
NO AMENDMENT OR CHANGE HEREOF OR ADDITION HERETO SHALL BE EFFECTIVE OR
BINDING ON EITHER OF THE PARTIES HERETO UNLESS REDUCED TO WRITING AND EXECUTED
BY THE RESPECTIVE DULY AUTHORIZED REPRESENTATIVES OF THE PARTIES.
10.12
HEADINGS.
THE CAPTIONS TO THE SEVERAL ARTICLES AND
SECTIONS HEREOF ARE NOT A PART OF THIS AGREEMENT, BUT ARE INCLUDED MERELY FOR
CONVENIENCE OF REFERENCE AND LOCATION ONLY AND SHALL NOT AFFECT ITS MEANING OR
INTERPRETATION.
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10.13
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED