Common use of Limitation of Liability and Exclusion of Damages Clause in Contracts

Limitation of Liability and Exclusion of Damages. IN NO EVENT SHALL NEKTAR AL’S LIABILITY ARISING OUT OF THE DEVELOPMENT, MANUFACTURE, SUPPLY, USE OR SALE OF SELECTED REAGENT OR SELECTED PRODUCT EXCEED THE AMOUNT NEKTAR AL IS PAID BY COMPANY PURSUANT TO SECTION 6.4 FOR THE QUANTITY OF SELECTED REAGENT GIVING RISE TO THE LIABILITY OR THE AMOUNT OF SELECTED REAGENT USED BY COMPANY TO MANUFACTURE SUCH QUANTITY OF SELECTED PRODUCT. EXCEPT IN THE CASE OF LIQUIDATED DAMAGES PAYABLE UNDER SECTION 15.4 OR A BREACH OF THE OBLIGATIONS IN ARTICLE 9, AND WITHOUT LIMITING THE PARTIES’ OBLIGATIONS UNDER ARTICLE 12, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OR LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO A PARTY’S PERFORMANCE OR NON-PERFORMANCE HEREUNDER. NOTWITHSTANDING, THE FOREGOING LIMITATIONS ON LIABILITY AND DAMAGES SHALL NOT APPLY TO THE EXTENT SUCH DAMAGES WERE CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL OR INTENTIONAL BREACH OF A MATERIAL TERM OF THIS AGREEMENT. The limitation on liability and exclusion of damages under this AGREEMENT: (i) apply even if a PARTY had or should have had knowledge, actual or constructive, of the possibility of such damages; (ii) are a fundamental element of the basis of the bargain between the PARTIES and this AGREEMENT would not be entered into without such limitations and exclusions and (iii) shall apply whether a claim is based on breach of contract, breach of warranty, tort (including negligence), product liability, strict liability or otherwise, and notwithstanding any failure of essential purpose of any limited remedy herein. Moreover, the remedies under this AGREEMENT are intended to be exclusive where so stated, and the limitation on liability and exclusion of damages under this AGREEMENT are intended to apply even if there is a total and fundamental breach of this AGREEMENT, and the essential purpose of these provisions is to limit the PARTIES’ respective liabilities hereunder.

Limitation of Liability and Exclusion of Damages. WITHOUT LIMITING EITHER PARTY'S OBLIGATIONS UNDER [*], IN NO EVENT SHALL NEKTAR AL’S 'S LIABILITY ARISING OUT OF THE DEVELOPMENT, MANUFACTURE, SUPPLY, USE SUPPLY OR SALE OF THE SELECTED REAGENT OR SELECTED PRODUCT EXCEED THE AMOUNT NEKTAR AL IS PAID BY COMPANY PURSUANT TO SECTION 6.4 FOR THE QUANTITY OF SELECTED REAGENT GIVING RISE TO THE LIABILITY OR THE AMOUNT OF SELECTED REAGENT USED BY COMPANY TO MANUFACTURE SUCH QUANTITY OF SELECTED PRODUCT[*]. EXCEPT IN THE CASE OF LIQUIDATED DAMAGES PAYABLE UNDER SECTION 15.4 OR A BREACH OF ARTICLE 8, OR INFRINGEMENT OR MISAPPROPRIATION BY A PARTY OF CONFIDENTIAL [*] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE OBLIGATIONS IN ARTICLE 9SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. THIRD PARTY PATENTS OR OTHER INTELLECTUAL PROPERTY RIGHTS, AND WITHOUT LIMITING THE PARTIES’ ' OBLIGATIONS UNDER ARTICLE 12[*], NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION, DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OR LOSS OF BUSINESS OR OTHER ECONOMIC LOSS) ARISING OUT OF THIS AGREEMENT OR WITH RESPECT TO A PARTY’S 'S PERFORMANCE OR NON-PERFORMANCE HEREUNDER. NOTWITHSTANDING, THE FOREGOING LIMITATIONS ON LIABILITY AND DAMAGES SHALL NOT APPLY TO THE EXTENT SUCH DAMAGES WERE CAUSED BY A PARTY’S GROSS NEGLIGENCE OR WILLFUL OR NEGLIGENCE, INTENTIONAL BREACH OF A MATERIAL TERM OR WILLFUL MISCONDUCT OF THIS AGREEMENTA PARTY. The foregoing limitation on liability and exclusion of damages under this AGREEMENT: (ia) apply even if a PARTY had or should have had knowledge, actual or constructive, of the possibility of such damages; (iib) are a fundamental element of the basis of the bargain between the PARTIES and this AGREEMENT would not be entered into without such limitations and exclusions and (iiic) shall apply whether a claim is based on breach of contract, breach of warranty, tort (including negligence), product liability, strict liability or otherwise, and notwithstanding any failure of essential purpose of any limited remedy herein. Moreover, the remedies under this AGREEMENT are intended to be exclusive where so stated, and the limitation on liability and exclusion of damages under this AGREEMENT are intended to apply even if there is a total and fundamental breach of this AGREEMENT, and the essential purpose of these provisions is to limit the PARTIES’ respective liabilities hereunder.