OBTAINED; AND
(G)
THE EXECUTION AND DELIVERY OF THIS AGREEMENT
AND THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER DO NOT CONFLICT WITH ANY OF ITS
CONTRACTUAL OBLIGATIONS (EXCEPT THAT ACORDA MAKES NO REPRESENTATION OR WARRANTY
WITH RESPECT TO ITS OBLIGATIONS PURSUANT TO ACORDA THIRD PARTY AGREEMENTS) AND
DO NOT CONSTITUTE A DEFAULT UNDER ANY OF ITS CONTRACTUAL OBLIGATIONS.
8.2
ADDITIONAL REPRESENTATIONS AND WARRANTIES OF
ACORDA.
IN ADDITION TO THE REPRESENTATIONS AND WARRANTIES MADE BY ACORDA IN THE
LICENSE AGREEMENT, ACORDA REPRESENTS AND WARRANTS THAT EXHIBIT A IDENTIFIES EACH
OF THE ACORDA SUPPLY AGREEMENTS THAT IS IN FULL FORCE AND EFFECT AS OF THE
EFFECTIVE DATE AND ACORDA HAS PROVIDED LICENSEE FULL AND COMPLETE COPIES OF EACH
SUCH ACORDA SUPPLY AGREEMENT
8.3
ADDITIONAL COVENANTS OF ACORDA.
ACORDA
AGREES THAT DURING THE TERM:
(A)
ACORDA SHALL COMPLY WITH AND GIVE ALL
NOTICES REQUIRED BY ANY APPLICABLE LAW RELATING TO ACORDA'S PERFORMANCE OF THIS
AGREEMENT;
(B)
ACORDA WILL USE COMMERCIALLY REASONABLE
EFFORTS TO, WITHIN ONE HUNDRED AND EIGHTY (180) DAYS FOLLOWING THE EFFECTIVE
DATE, ENTER INTO AN AGREEMENT WITH THE SECOND SOURCE (AS DEFINED IN THE ELAN
SUPPLY AGREEMENT) GOVERNING THE SUPPLY OF PRODUCT (THE "SECOND SOURCE
AGREEMENT") TO ACORDA (INCLUDING IN THE EVENT THAT ELAN NO LONGER SUPPLIES
ACORDA UNDER THE ELAN SUPPLY AGREEMENT) AND LICENSEE SHALL HAVE THE RIGHT TO
REVIEW AND COMMENT ON (BUT NOT APPROVE) ANY SUCH AGREEMENT BEFORE ITS EXECUTION;
(C)
UPON ACORDA'S EXECUTION OF THE SECOND
SOURCE AGREEMENT, IT SHALL PROVIDE LICENSEE WITH A TRUE AND COMPLETE COPY OF
SUCH AGREEMENT AND, IN ACCORDANCE WITH SECTION 3.4, EXHIBIT A TO THIS AGREEMENT
WILL BE AMENDED TO INCLUDE THE SECOND SOURCE AGREEMENT AS AN ACORDA SUPPLY
AGREEMENT; AND
17
(D)
ACORDA SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO FULFILL ITS OBLIGATIONS UNDER THE ACORDA SUPPLY AGREEMENTS TO THE
EXTENT SUCH OBLIGATIONS HAVE NOT BEEN DELEGATED TO LICENSEE AND TO THE EXTENT
THAT FAILURE TO DO SO WOULD MATERIALLY ADVERSELY AFFECT LICENSEE OR ITS RIGHTS
HEREUNDER.
8.4
DISCLAIMER.
EXCEPT AS OTHERWISE EXPRESSLY
SET FORTH IN THIS AGREEMENT OR IN THE LICENSE AGREEMENT, NEITHER PARTY, AND IN
THE CASE OF ACORDA, ITS LICENSORS AND THIRD PARTY MANUFACTURERS, MAKES ANY
REPRESENTATIONS OR EXTENDS ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR
IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR VALIDITY OF PATENT CLAIMS.
8.5
LIMITATION OF DAMAGES.
EXCEPT AS EXPRESSLY
SET FORTH IN THIS AGREEMENT AND THE LICENSE AGREEMENT, NEITHER PARTY WILL BE
LIABLE TO THE OTHER PARTY OR ITS AFFILIATES FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL EXEMPLARY, PUNITIVE, MULTIPLE OR OTHER INDIRECT DAMAGES, OR FOR
LOSS OF PROFITS, LOSS OF DATA, LOSS OF REVENUE, OR LOSS OF USE DAMAGES, ARISING
FROM OR RELATING TO THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, REGARDLESS OF ANY NOTICE OF SUCH
DAMAGES. NOTHING IN THIS SECTION 8.5 IS INTENDED TO LIMIT OR RESTRICT THE
CONFIDENTIALITY OR INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER
THIS AGREEMENT OR THE LICENSE AGREEMENT.
9.
CONFIDENTIALITY
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