at the time of delivery by
Micrus to Distributor for the
Micrus Endovascular
July 30, 2007
Page 8 of 30
shelf life of the Product as specified on the Product labeling; provided,
however, that such Product: (i) has been shipped in accordance with Micrus'
shipping instructions and stored in accordance with the instructions on the
labeling and the packaging for such Product; (ii) is used in the application for
which it was intended; and (iii) has not been modified without Micrus' prior
written consent. Distributor shall handle and be solely responsible for all
warranty returns from its direct and indirect customers. MICRUS' SOLE AND
EXCLUSIVE LIABILITY UNDER THE WARRANTY SET FORTH IN THIS SECTION 8.1 SHALL BE
LIMITED TO A REPLACEMENT TO DISTRIBUTOR OF THE DEFECTIVE UNIT OF THE PRODUCT
WITH A PRODUCT UNIT SUBSTANTIALLY EQUIVALENT TO THE UNIT ORIGINALLY SHIPPED BY
MICRUS TO DISTRIBUTOR, OR IF THAT IS IMPRACTICABLE, THE REFUND BY MICRUS TO
DISTRIBUTOR OF ALL AMOUNTS PAID TO MICRUS FOR SUCH DEFECTIVE UNIT.
8.2 No Other Warranty. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH IN
SECTION 8.1 HEREIN, THE PRODUCT IS PROVIDED "AS IS," AND MICRUS GRANTS NO OTHER
WARRANTIES, EXPRESS OR IMPLIED, BY STATUTE OR OTHERWISE, REGARDING ANY PRODUCT,
ITS FITNESS FOR ANY PARTICULAR PURPOSE, ITS QUALITY, ITS MERCHANTABILITY, OR
OTHERWISE.
8.3 Limitation of Liability: NOTWITHSTANDING ANYTHING ELSE IN THIS
AGREEMENT OR OTHERWISE, IN NO EVENT SHALL MICRUS BE LIABLE TO DISTRIBUTOR OR ANY
OTHER PERSON OR ENTITY WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT
UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE
THEORY FOR (A) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, (B) ANY SPECIAL,
CONSEQUENTIAL, PUNITIVE. INDIRECT OR INCIDENTAL DAMAGES OR (C) LOST PROFITS OR
LOST BUSINESS; EVEN IF THE REMEDIES PROVIDED FOR IN THIS AGREEMENT FAIL OF THEIR
ESSENTIAL PURPOSE AND EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES; PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL RELIEVE MICRUS
FROM ANY PRODUCT LIABILITY CLAIM, AS SET FORTH IN ARTICLE 9 HERETO.
8.4 Ownership. Distributor acknowledges and agrees that as between
Distributor and Micrus, Micrus owns all right, title and interest in and to all
clinical, technical, product, sales, marketing, and customer information and
data with respect to the Product (including, without limitation, any and all
modifications, design changes or improvements relating thereto), and all
industrial and intellectual property rights of any kind in relation to the
Product (including, without limitation, any and all modifications, design
changes or improvements relating thereto) or any of the foregoing, including,
without limitation, the right to patents, registered or other designs,
trademarks, trade names, inventions, copyright, know-how and any other
confidential information. Nothing contained in this Agreement shall be effective
to give Distributor any rights of ownership in or to any of the foregoing. To
the extent Distributor owns any rights, title or interest in or to the
foregoing, Distributor hereby assigns all of such rights to Micrus. The
provision of Product technical information to Distributor under this Agreement