LIMITATION, DAMAGES DUE TO
BUSINESS INTERRUPTION OR LOST PROFITS, SAVINGS, COMPETITIVE ADVANTAGE OR
GOODWILL) ARISING FROM OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE TYPE OF
CLAIM, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY, WHETHER OR NOT FORESEEABLE, AND REGARDLESS OF THE CAUSE OF
SUCH DAMAGES EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH
DAMAGES IN ADVANCE.
11.2
EXCLUSIONS.
THE LIMITATION AND EXCLUSION SET
FORTH IN SECTION 11.1 DO NOT APPLY TO EITHER PARTY'S LIABILITY FOR (I) BREACH OF
THE CONFIDENTIALITY OBLIGATIONS UNDER ARTICLE 6, (II) OBLIGATIONS UNDER ARTICLE
9 TO INDEMNIFY FOR THIRD-PARTY CLAIMS, OR (III) OBLIGATIONS OF VALIN MPM TO PAY
FEES OR REIMBURSE EXPENSES.
12.
Term, Termination.
12.1
TERM.
THIS AGREEMENT SHALL BECOME EFFECTIVE ON
THE FUNDING DATE AS DEFINED UNDER THE CAPITAL INCREASE AGREEMENT (THE "EFFECTIVE
DATE") AND SHALL CONTINUE TO BE EFFECTIVE DURING THE JOINT VENTURE TERM AS
DEFINED UNDER THE JV CONTRACT (THE "TERM") THEREAFTER UNLESS SOONER TERMINATED
IN ACCORDANCE WITH SECTION 12.2.
12.2
TERMINATION.
EITHER PARTY MAY TERMINATE THIS
AGREEMENT AND THE LICENSES GRANTED HEREIN IF: (I) THE OTHER PARTY BREACHES ANY
MATERIAL TERM OR CONDITION OF THIS AGREEMENT AND FAILS TO CURE SUCH BREACH
WITHIN FORTY-FIVE (45) DAYS AFTER RECEIPT OF WRITTEN NOTICE OF THE SAME EXCEPT
WITH RESPECT TO A BREACH OF OBLIGATIONS UNDER ARTICLE 6, WHICH BREACH IF
CURABLE, MUST BE CURED WITHIN FIFTEEN (15) DAYS; OR (II) THE OTHER PARTY BECOMES
BANKRUPT OR IS THE SUBJECT OF PROCEEDINGS FOR LIQUIDATION OR DISSOLUTION, OR
CEASES TO CARRY ON BUSINESS OR BECOMES UNABLE TO PAY ITS DEBT AS THEY BECOME DUE
OR UPON THE WINDING-UP SALE, CONSOLIDATION, MERGER OR ANY SEQUESTRATION BY
GOVERNMENT AUTHORITY.
IN ADDITION, THIS AGREEMENT SHALL TERMINATE UPON
TERMINATION OF ANY OF THE JV AGREEMENTS.
10
12.3
RIGHTS AND OBLIGATIONS UPON TERMINATION.
(A)
UPON TERMINATION OR EXPIRATION OF THIS
AGREEMENT, ALL CONFIDENTIAL INFORMATION RECEIVED FROM THE DISCLOSING PARTY SHALL
BE RETURNED OR DESTROYED BY THE RECEIVING PARTY WITHIN 30 DAYS AT THE WRITTEN
REQUEST OF THE DISCLOSING PARTY INCLUDING, BUT NOT LIMITED TO, ALL SECRET AND
CONFIDENTIAL TECHNICAL INFORMATION AND KNOW-HOW RECEIVED UNDER THIS AGREEMENT IN
WRITTEN OR IN OTHER TANGIBLE FORM SUCH AS CD'S, DVD'S, COMPUTER TAPES AND DISKS,
INCLUDING ALL COPIES THEREOF AND ALL OTHER TANGIBLE PROPERTY RECEIVED ON LOAN
FROM THE OTHER PARTY.
AN OFFICER OF THE RECEIVING PARTY SHALL PROVIDE WRITTEN
CONFIRMATION TO THE DISCLOSING PARTY THAT ALL CONFIDENTIAL INFORMATION HAS BEEN
RETURNED TO DESTROYED IN ACCORDANCE WITH SECTION 12.3 OF THIS AGREEMENT.
TO THE
EXTENT REQUIRED BY A SPECIFIC LAW OR REGULATION, EACH PARTY MAY RETAIN ONE COPY
OF ANY CONFIDENTIAL INFORMATION RECEIVED FROM THE OTHER PARTY FOR ARCHIVAL
PURPOSES ONLY.
THE PARTY RETAINING ANY CONFIDENTIAL INFORMATION MUST ADVISE THE
DISCLOSING PARTY AS TO THE SPECIFIC STATUTE OR REGULATION WHICH REQUIRES
RETENTION OF THE CONFIDENTIAL INFORMATION.
SUCH RETAINED CONFIDENTIAL
INFORMATION MUST BE STORED AT A LOCATION HAVING LIMITED ACCESS AND WILL NOT BE
STORED ON ANY TYPE OF COMPUTER NETWORK.
(B)
UPON