WILLING TO REPURCHASE SUCH INVENTORY OF PSS, FOR
A PERIOD OF [***] AFTER BIOSITE PROVIDES WRITTEN NOTICE TO PSS THAT BIOSITE IS
ELECTING NOT TO REPURCHASE PSS'S INVENTORY OF THE PRODUCTS (THE "FINAL SELL-OFF
PERIOD"), PSS SHALL HAVE THE RIGHT TO SELL OFF THE REMAINING INVENTORY OF
PRODUCTS AS SET FORTH IN THE INVENTORY NOTICE (AND TO EXERCISE SUCH RIGHTS
PROVIDED FOR UNDER THIS AGREEMENT AS REASONABLY REQUIRED FOR PSS TO SELL SUCH
REMAINING STOCK).
WITHIN FIVE (5) BUSINESS DAYS AFTER THE CONCLUSION OF THE
FINAL SELL-OFF PERIOD, PSS SHALL DESTROY ITS REMAINING INVENTORY OF THE PRODUCTS
AND SHALL PROVIDE WRITTEN CONFIRMATION THEREOF TO BIOSITE.
(C)
SUBJECT TO PSS'S RIGHT TO SELL PRODUCTS
REMAINING IN INVENTORY AS SET FORTH ABOVE, PSS SHALL REMOVE FROM ITS PROPERTY
AND IMMEDIATELY DISCONTINUE ALL USE, DIRECTLY OR INDIRECTLY, OF TRADEMARKS,
DESIGNS, AND MARKINGS OWNED OR LICENSED EXCLUSIVELY BY BIOSITE, OR ANY WORD,
TITLE, EXPRESSION, TRADEMARK, DESIGN, OR MARKING THAT IS CONFUSINGLY SIMILAR
THERETO.
(D)
PSS SHALL PROVIDE TO BIOSITE, WITHIN THREE
(3) BUSINESS DAYS AFTER THE CONCLUSION OF THE INITIAL SELL-OFF PERIOD, COMPLETE
AND UP-TO-DATE INFORMATION REGARDING CUSTOMERS IN THE TERRITORY THAT HAVE
PURCHASED THE PRODUCTS FROM PSS.
SUCH INFORMATION SHALL INCLUDE, WITHOUT
LIMITATION, CUSTOMER NAME, ADDRESS, TELEPHONE NUMBER, AND UNIT SALES BY EACH
CUSTOMER SORTED BY ZIP CODE.
IN THE EVENT THAT THIS AGREEMENT IS TERMINATED DUE
TO BREACH BY PSS, OR IN THE EVENT THAT THIS AGREEMENT IS NOT EXTENDED, DUE TO
PSS'S ELECTION, FOR AN ADDITIONAL PERIOD OF [***] AFTER [***] PURSUANT TO THE
TERMS AND CONDITIONS OF SECTION 8.1, THEN SUCH INFORMATION TO BE PROVIDED BY PSS
SHALL ALSO INCLUDE PRODUCT PRICE AND REVENUE BY EACH CUSTOMER SORTED BY ZIP
CODE.
ALL SUCH INFORMATION PROVIDED BY PSS UNDER THIS SECTION (D) SHALL BE
SOLELY OWNED BY BIOSITE.
NOTWITHSTANDING BIOSITE'S OWNERSHIP OF SUCH
INFORMATION, NOTHING HEREIN SHALL PRECLUDE PSS FROM THE RIGHT OR ABILITY TO USE
SUCH INFORMATION FOR ITS LAWFUL BUSINESS PURPOSES.
8.4
SOLE REMEDY.
OTHER THAN DUE TO A BREACH OF
THIS AGREEMENT BY BIOSITE, PROVISIONS PURSUANT TO SECTION 8.3(B) SHALL
CONSTITUTE PSS'S SOLE REMEDY FOR THE TERMINATION OR NON-RENEWAL OF THIS
AGREEMENT.
NOTWITHSTANDING ANY OF THE PROVISIONS OF THIS AGREEMENT, OTHER THAN
A
8
PARTY'S LIABILITY IN CONNECTION WITH ANY BREACH OF SECTION 5, AND OTHER THAN A
PARTY'S INDEMNITY OBLIGATIONS UNDER SECTIONS 2.7 OR 6, NEITHER PARTY SHALL, BY
REASON OF THE TERMINATION OF THIS AGREEMENT OR OTHERWISE, BE LIABLE TO THE OTHER
PARTY FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES
SUCH AS, BUT NOT LIMITED TO, COMPENSATION OR DAMAGES FOR LOSS OF PRESENT OR
PROSPECTIVE PROFITS OR REVENUES, LOSS OF ACTUAL OR ANTICIPATED REVENUE ON SALES
OR ANTICIPATED SALES, OR EXPENDITURES, INVESTMENTS OR COMMITMENTS MADE IN
CONNECTION WITH THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF THE
DISTRIBUTORSHIP CREATED BY THIS AGREEMENT OR IN CONNECTION WITH THE PERFORMANCE
OF OBLIGATIONS HEREUNDER, WHETHER OR NOT THE OTHER PARTY HAS BEEN NOTIFIED OF
THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANY OF THE PROVISIONS OF THIS
AGREEMENT, OTHER