A PARTICULAR PURPOSE.
10.4. No Other Warranties. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 10,
NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF
MERCHANTABILITY, TITLE, OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE
WARRANTIES IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION
UNDER APPLICABLE LAW. THE TERM OF ANY IMPLIED WARRANTIES THAT CANNOT BE
DISCLAIMED ARE LIMITED TO THE TERM OF THIS AGREEMENT.
11. LIMITATION OF LIABILITY; INDEMNIFICATION
11.1 EXCEPT WITH RESPECT TO A BREACH OF ARTICLES 10 OR 12, IN NO EVENT SHALL
EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY (UNDER ANY
CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY) FOR SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THE SUBJECT
MATTER OF THIS AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES OR LOSSES. EXCEPT WITH RESPECT TO A BREACH OF ARTICLES 10 OR 12,
EACH PARTY'S LIABILITY TO THE OTHER FOR DAMAGES FOR ANY CAUSE OF ACTION
WHATSOEVER ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT PAID BY
STAKTEK TO MANUFACTURER IN THE 12 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE
LIABILITY, REGARDLESS OF THE FORM OF ACTION. EACH PARTY ACKNOWLEDGES THAT THE
LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION IS REASONABLE,
# # #
Confidential treatment has been requested for portions of this exhibit.
Information for which confidential treatment has been requested has been omitted
and is noted with "***". A complete version of this exhibit has been filed
separately with the Securities and Exchange Commission.
11
EXHIBIT 10.2
CONFIDENTIAL TREATMENT REQUESTED - EDITED COPY
AND IS AN ESSENTIAL PART OF THE AGREEMENT WITHOUT WHICH NEITHER PARTY WOULD BE
WILLING TO ENTER INTO THIS AGREEMENT.
11.2 EXPRESS NEGLIGENCE AND STRICT LIABILITY. THE INDEMNIFICATION PROVISION
PROVIDED FOR IN THIS AGREEMENT HAS BEEN EXPRESSLY NEGOTIATED IN EVERY DETAIL, IS
INTENDED TO BE GIVEN FULL AND LITERAL EFFECT AND SHALL BE APPLICABLE WHETHER OR
NOT THE LIABILITIES, OBLIGATIONS, CLAIMS, JUDGMENTS, LOSSES, COSTS, EXPENSES OR
DAMAGES IN QUESTION ARISE OR AROSE SOLELY OR IN PART FROM THE GROSS, ACTIVE,
PASSIVE OR CONCURRENT NEGLIGENCE, STRICT LIABILITY OR OTHER FAULT OF EITHER
PARTY. EACH PARTY HEREBY EXPRESSLY ACKNOWLEDGES AND AGREES THAT THIS STATEMENT
COMPLIES WITH THE "EXPRESS NEGLIGENCE RULE" AND CONSTITUTES CONSPICUOUS NOTICE.
NOTHING IN THIS CONSPICUOUS NOTICE IS INTENDED TO PROVIDE OR ALTER THE RIGHTS
AND OBLIGATIONS OF THE PARTIES, ALL OF WHICH ARE SPECIFIED ELSEWHERE IN THIS
AGREEMENT.
11.3 ACKNOWLEDGEMENT. EACH PARTY ACKNOWLEDGES THAT THE LIMITATIONS OF LIABILITY
AND INDEMNITY PROVISIONS SET FORTH IN THIS SECTION 11 ARE REASONABLE, AND ARE AN
ESSENTIAL PART OF THE AGREEMENT, WITHOUT WHICH NEITHER PARTY WOULD BE WILLING TO
ENTER INTO THIS AGREEMENT.
12. INTELLECTUAL PROPERTY, CONFIDENTIALITY AND EXCLUSIVITY
12.1. Ownership Of Intellectual Property. Manufacturer understands and agrees
that:
12.1.1 Except for the limited, personal license grant in Section 12.3,
Manufacturer does not acquire any ownership or other right, title, or interest
in or to any Intellectual Property relating to