a party,
or any Law to which JDS or any Affiliate is subject and (b) no consents or
agreements of any third party (including governmental bodies) is necessary for
the performance by JDS of its obligations under this Agreement.
3.3 Limitations. (a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS
AGREEMENT, THE PARTIES AGREE THAT SOLVAY MAKES NO REPRESENTATIONS OR WARRANTIES
OF ANY KIND, EXPRESS, IMPLIED OR OTHERWISE, AND SPECIFICALLY DISCLAIMS AND SHALL
NOT BE LIABLE TO JDS OR OTHERS IN RESPECT OF:
(i) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCT, WHETHER USED ALONE OR IN
COMBINATION WITH OTHER SUBSTANCES OR MATERIALS;
(ii) ANY LIABILITY FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(OTHER THAN TO THE EXTENT REASONABLY FORESEEABLE IN LIGHT OF THE OBJECTIVES OF
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT AND THE ASSET PURCHASE
AGREEMENT, BUT SUBJECT TO THE FURTHER LIMITATIONS IN SECTION 3.3(C) BELOW),
WHETHER ARISING OUT OF A BREACH OF THE REPRESENTATIONS AND WARRANTIES CONTAINED
HEREIN OR OTHERWISE AND WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR
OTHERWISE; AND
(iii) ANY LIABILITY TO THE EXTENT ARISING AS A RESULT OF PRODUCT:
(I) HAVING BEEN TAMPERED WITH OTHER THAN BY SOLVAY OR ITS AGENTS, (II) HAVING
BEEN SUBJECT TO MISUSE, NEGLIGENCE OR ACCIDENT OTHER THAN BY SOLVAY OR ITS
AGENTS, (III) HAVING BEEN STORED, HANDLED OR USED OTHER THAN BY SOLVAY OR ITS
AGENTS IN A MANNER CONTRARY TO REGULATORY STANDARDS OR THE INSTRUCTIONS
CONTAINED ON LABELING, OR (IV) HAVING EXCEEDED ITS STATED EXPIRATION.
(b) IN NO EVENT SHALL SOLVAY'S LIABLITY FOR REASONABLY FORSEEABLE
CONSEQUENTIAL DAMAGES EXCEED THE ORIGINAL PRINCIPAL AMOUNT OF THE NOTE AND ANY
SUCH LIABILITY SHALL BE SATISFIED SOLELY BY OFFSET
9
AGAINST THE PAYMENTS OF INTEREST AND PRINCIPAL UNDER THE NOTE (UNLESS THE NOTE
HAS BEEN PREPAID BY JDS, IN WHICH CASE SOLVAY'S LIABLITY FOR REASONABLY
FORSEEABLE CONSEQUENTIAL DAMAGES SHALL NOT EXCEED AN AMOUNT EQUAL TO THE
PRINCIPAL AND INTEREST THAT WOULD HAVE BEEN OUTSTANDING (ASSUMING TIMELY
AMORTIZATION OF THE NOTE) AT THE TIME OF THE RELEVANT CLAIM HAD THE NOTE NOT
BEEN PREPAID).
(c) THE MAXIMUM AGGREGATE LIABILITY OF SOLVAY UNDER THIS AGREEMENT,
WHEN AGGREGATED WITH ANY LIABILITY UNDER THE ASSET PURCHASE AGREEMENT, SHALL NOT
IN ANY EVENT EXCEED *** (BUT THIS LIMITATION SHALL NOT AFFECT JDS'S RIGHT TO
BRING ANY CLAIM UNDER THE ASSET PURCHASE AGREEMENT WHICH IS NOT SUBJECT TO A
MAXIMUM THEREUNDER).
(d) NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, NONE OF THE
LIMITATIONS ON LIABILITY SET FORTH IN THIS SECTION SHALL APPLY TO ACTS OR
OMISSIONS OF SOLVAY TAKEN OR OMITTED TO BE TAKEN WITH INTENT TO BREACH THE
REPRESENTATIONS, WARRANTIES OR OBLIGATIONS OF SOLVAY UNDER THIS AGREEMENT.
ARTICLE IV
TERM AND TERMINATION
4.1 Term. The term of this Agreement shall commence on the date hereof and
shall continue for a period of five years, unless terminated earlier pursuant to
Section 4.2 or Section 4.3 hereof. This Agreement may be renewed for such
additional period and upon such other terms as the parties