Common use of No Consequential or Punitive Damages Clause in Contracts

No Consequential or Punitive Damages. NEITHER PARTY WILL BE LIABLE TO THE ------------------------------------ OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA - ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. PROVIDED HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE UNDER ANY INDEMNIFICATION OBLIGATION UNDER SECTION 13, EVEN IF THE DAMAGE AMOUNT AWARDED TO THE THIRD PARTY IN (AND ASSESSED AGAINST THE INDEMNIFIED PARTY), OR INCURRED IN ANY SETTLEMENT OF, THE CLAIM FOR WHICH INDEMNIFICATION IS REQUIRED UNDER THIS AGREEMENT INCLUDES INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA.

No Consequential or Punitive Damages. EXCEPT IN THE CASE OF ANY BREACH OF SECTION 2.4 OR ARTICLE VIII OR AS OTHERWISE PROVIDED BELOW, NEITHER PARTY WILL BE LIABLE TO THE ------------------------------------ OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INDIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, MILESTONES OR EXEMPLARY DAMAGES ROYALTIES, ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF ANY KIND - NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION 10.5 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER THIS AGREEMENT WITH RESPECT TO THIRD PARTY CLAIMS, OR REMEDIES TO A PARTY IN THE CASE OF INFRINGEMENT OR MISAPPROPRIATION OF ITS INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIAL INFORMATION BY THE OTHER PARTY (INCLUDING UNDER SECTION 3.1(D)), OR THE WILLFUL MISCONDUCT, INTENTIONAL BREACH OR FRAUD OF THE OTHER PARTY. NOTWITHSTANDING THE FOREGOING, IN THE [*] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended. EVENT THAT EITHER PARTY SEEKS LOST REVENUES ROYALTY DAMAGES OR PROFITS, LOSS OF BUSINESS OTHER SIMILAR DAMAGES UNDER SECTION 6.3 OR LOSS OF DATA - ARISING OUT 6.4 OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FROM THE OTHER PARTY ARISING FROM THE OTHER PARTY’S BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. PROVIDED HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE UNDER ANY INDEMNIFICATION OBLIGATION UNDER INCLUDING SECTION 13, EVEN IF THE DAMAGE AMOUNT AWARDED TO THE THIRD PARTY IN (AND ASSESSED AGAINST THE INDEMNIFIED PARTY), OR INCURRED IN ANY SETTLEMENT OF5.4, THE CLAIM FOR WHICH INDEMNIFICATION IS REQUIRED LIMITATION OF LIABILITY UNDER THIS AGREEMENT INCLUDES INCIDENTALSECTION 10.5 SHALL NOT APPLY TO SUCH DAMAGES IF THEY ARE ESTABLISHED, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATAQUANTIFIABLE AND DIRECTLY ARISE FROM SUCH BREACH.

No Consequential or Punitive Damages. EXCEPT IN THE CASE OF ANY BREACH OF SECTION 2.4 OR ARTICLE VIII OR AS OTHERWISE PROVIDED BELOW, NEITHER PARTY WILL BE LIABLE TO THE ------------------------------------ OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INDIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, MILESTONES OR EXEMPLARY DAMAGES ROYALTIES, ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF ANY KIND - NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION 10.5 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER THIS AGREEMENT WITH RESPECT TO THIRD PARTY CLAIMS, OR REMEDIES TO A PARTY IN THE CASE OF INFRINGEMENT OR MISAPPROPRIATION OF ITS INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIAL INFORMATION BY THE OTHER PARTY (INCLUDING UNDER SECTION 3.1(D)), OR THE WILLFUL MISCONDUCT, INTENTIONAL BREACH OR FRAUD OF THE OTHER PARTY. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THAT EITHER PARTY SEEKS LOST REVENUES ROYALTY DAMAGES OR PROFITS, LOSS OF BUSINESS OTHER SIMILAR DAMAGES UNDER SECTION 6.3 OR LOSS OF DATA - ARISING OUT 6.4 OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY FROM THE OTHER PARTY ARISING FROM THE OTHER PARTY’S BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. PROVIDED HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE UNDER ANY INDEMNIFICATION OBLIGATION UNDER INCLUDING SECTION 13, EVEN IF THE DAMAGE AMOUNT AWARDED TO THE THIRD PARTY IN (AND ASSESSED AGAINST THE INDEMNIFIED PARTY), OR INCURRED IN ANY SETTLEMENT OF5.4, THE CLAIM FOR WHICH INDEMNIFICATION IS REQUIRED LIMITATION OF LIABILITY UNDER THIS AGREEMENT INCLUDES INCIDENTALSECTION 10.5 SHALL NOT APPLY TO SUCH DAMAGES IF THEY ARE ESTABLISHED, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATAQUANTIFIABLE AND DIRECTLY ARISE FROM SUCH BREACH.

No Consequential or Punitive Damages. NEITHER PARTY HERETO WILL BE LIABLE TO THE ------------------------------------ OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INDIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING FROM OR EXEMPLARY DAMAGES RELATING TO THIS AGREEMENT, REGARDLESS OF ANY KIND - NOTICE OF SUCH DAMAGES. EXCEPT AS SET FORTH BELOW WITH RESPECT TO THE CAP, NOTHING IN THIS SECTION 13.12 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER THIS AGREEMENT WITH RESPECT TO THIRD PARTY CLAIMS, OR EITHER PARTY’S LIABILITY WITH RESPECT TO THE INFRINGEMENT, MISAPPROPRIATION OR UNAUTHORIZED USE OR DISCLOSURE OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIAL INFORMATION. IN NO EVENT SHALL THE COLLECTIVE, AGGREGATE LIABILITY (INCLUDING LOST REVENUES OR PROFITSWITHOUT LIMITATION, LOSS CONTRACT, NEGLIGENCE AND TORT LIABILITY) OF BUSINESS OR LOSS EACH PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF DATA - ARISING OUT FEES ACTUALLY RECEIVED BY ACUCELA FROM OTSUKA UNDER THE PROJECT (THE “CAP”); PROVIDED THAT OTSUKA’S LIABILITY UNDER SECTION 10.1 OF THIS AGREEMENT SHALL NOT BE SUBJECT TO THE CAP; PROVIDED FURTHER THAT ANY LIABILITY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY SHALL NOT BE SUBJECT TO THE CAP. [Remainder of page intentionally left blank.] IN WITNESS WHEREOF, the Parties have signed this Agreement as of the Effective Date. ACUCELA INC. OTSUKA PHARMACEUTICAL CO., LTD. By: /s/ Ryo Kubota By: /s/ Xxxx Xxxxxxx Name: Dr. Ryo Kubota Name: Xx. Xxxx Xxxxxxx Title: Chairman, President and CEO Title: Representative Director and President OTSUKA PHARMACEUTICAL CO., LTD. By: /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: General Manager and Operating Officer, Division of Dermatologicals & Ophthalmologicals Execution Copy September 4, 2008 EXHIBIT A PRESS RELEASE For Immediate Release Acucela and Otsuka Pharmaceutical Enter Co-Development Agreement for Rebamipide Ophthalmic Suspension for Dry Eye Contact: For Otsuka Pharmaceutical Co., Ltd. For Acucela Inc. Xxxxxx Xxxxxx Xxxxxx Xxxxxxxx Public Relations Department Investor Relations xxxxxx@xxxxxx.xx +0-000-000-0000 xxxxxx@xxxxxxx.xxx Xxxxx Xxxxx Media +0-000-000-0000 xxxxx.xxxxx@x0-xx.xxx BOTHELL, WA and TOKYO, JAPAN (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENTSeptember 4, 2008) — Acucela Inc. and Otsuka Pharmaceutical Co., Ltd. today announced that they have entered into a definitive agreement to co-develop Rebamipide ophthalmic suspension (hereinafter, Rebamipide), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISEDOtsuka’s proprietary compound for the treatment of dry eye which is currently in Phase III clinical development in the United States. Under the agreement, HAD OTHER REASON TO KNOWthe parties will collaborate in the clinical development efforts for Rebamipide in the United States, OR IN FACT KNEW OF THE POSSIBILITY THEREOFwith Acucela spearheading the regulatory strategy to gain approval for the product in the United States. PROVIDED HOWEVERUpon regulatory approval of Rebamipide, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE UNDER ANY INDEMNIFICATION OBLIGATION UNDER SECTION 13the parties may negotiate the terms under which Acucela may co-promote Rebamipide with Otsuka in the United States. Otsuka shall pay Acucela a cash upfront payment as well as clinical development milestones and a royalty on sales of the product. Otsuka shall be responsible for all clinical development and commercialization expenses. Execution Copy September 4, EVEN IF THE DAMAGE AMOUNT AWARDED TO THE THIRD PARTY IN (AND ASSESSED AGAINST THE INDEMNIFIED PARTY)2008 “We are delighted to enter into co-development of Rebamipide ophthalmic suspension with Acucela. Acucela is widely known for its expertise and innovation in the field of ophthalmology,” commented Xxxx Xxxxxxx, OR INCURRED IN ANY SETTLEMENT OFPh.D., THE CLAIM FOR WHICH INDEMNIFICATION IS REQUIRED UNDER THIS AGREEMENT INCLUDES INCIDENTALpresident and representative director of Otsuka Pharmaceutical Co., INDIRECTLtd. “With this strategic collaboration, CONSEQUENTIALOtsuka and Acucela will further expand their commitment to improve the treatment for the millions of patients that suffer from dry eye symptoms,” added Xx. Xxxxxxx. “We are excited to broaden our strategic relationship with Otsuka through our work on this promising Phase III product,” commented Ryo Kubota, SPECIALM.D., PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITSPh.D., LOSS OF BUSINESS OR LOSS OF DATAchief executive officer of Acucela. “Rebamipide has shown promising clinical activity in clinical trials to date and we believe the product has exceptional potential as a new therapy for the treatment of dry eye, one of the most common problems treated by optometrists,” added Dr. Kubota. Acucela was advised in the transaction by Posada & Associates, Inc, with Wilson, Sonsini, Xxxxxxxx and Xxxxxx providing legal counsel to the company.

No Consequential or Punitive Damages. NEITHER NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT, EACH OF THE SELLERS AND NBP AND NBILP AGREE THAT THE RECOVERY BY ANY PARTY WILL HERETO OF ANY DAMAGES SUFFERED OR INCURRED BY IT AS A RESULT OF ANY BREACH BY THE OTHER PARTY OF ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS OR ANY OTHER MATTER OR CLAIM UNDER THIS AGREEMENT SHALL BE LIMITED TO THE ACTUAL DAMAGES SUFFERED OR INCURRED BY THE INDEMNIFIED PARTY AS A RESULT OF THE BREACH BY THE BREACHING PARTY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR OBLIGATIONS HEREUNDER, AND IN NO EVENT SHALL THE INDEMNIFYING PARTY BE LIABLE TO THE ------------------------------------ OTHER INDEMNIFIED PARTY (NOR TO FOR ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, EXCEPT TO THE EXTENT THEY CONSTITUTE PART OF A THIRD PARTY CLAIM SUFFERED OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA - ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION INCURRED BY THE INDEMNIFIED PARTY AS A RESULT OF ANY THE BREACH OR OTHER ACTION OR MATTER BY THE INDEMNIFYING PARTY OF ANY WARRANTY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR OTHER TERM OF THIS AGREEMENT), REGARDLESS OF WHETHER THE PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF. PROVIDED HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE UNDER ANY INDEMNIFICATION OBLIGATION UNDER SECTION 13, EVEN IF THE DAMAGE AMOUNT AWARDED TO THE THIRD PARTY IN (AND ASSESSED AGAINST THE INDEMNIFIED PARTY), OR INCURRED IN ANY SETTLEMENT OF, THE CLAIM FOR WHICH INDEMNIFICATION IS REQUIRED UNDER THIS AGREEMENT INCLUDES INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATAOBLIGATIONS HEREUNDER.

No Consequential or Punitive Damages. NEITHER PARTY HERETO WILL BE LIABLE TO THE ------------------------------------ OTHER PARTY (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM THE OTHER PARTY'S RIGHTS) FOR INDIRECT, INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR EXEMPLARY MULTIPLE DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA - ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION OR THE EXERCISE OF ITS RIGHTS HEREUNDER, OR, EXCEPT AS A RESULT OF SET FORTH IN SECTION 6.1(b), FOR LOST PROFITS ARISING FROM OR RELATING TO ANY BREACH OF ANY WARRANTY OR OTHER TERM OF THIS AGREEMENT), AGREEMENT REGARDLESS OF WHETHER ANY NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION 14.13 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY LIABLE OR ALLEGEDLY LIABLE WAS ADVISED, HAD OTHER REASON WITH RESPECT TO KNOW, OR IN FACT KNEW RECOVERY OF THE POSSIBILITY THEREOF. PROVIDED HOWEVER, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO DENY OR LIMIT A PARTY'S RIGHT TO BE MADE WHOLE UNDER ANY INDEMNIFICATION OBLIGATION UNDER SECTION 13, EVEN IF THE DAMAGE AMOUNT DAMAGES AWARDED TO THE THIRD PARTY CLAIMANTS (OTHER THAN AN INDEMNITEE) IN (AND ASSESSED AGAINST THE INDEMNIFIED PARTY), OR INCURRED IN ANY SETTLEMENT OF, THE CLAIM THIRD PARTY CLAIMS FOR WHICH INDEMNIFICATION IS REQUIRED SOUGHT UNDER THIS AGREEMENT INCLUDES INCIDENTALARTICLE 12, INDIRECTOR DAMAGES AVAILABLE FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS IN ARTICLE 10. IN NO EVENT SHALL A PARTY BE ENTITLED TO THE REFUND, CONSEQUENTIAL, SPECIAL, PUNITIVE RETURN OR EXEMPLARY DAMAGES RECOVERY OF ANY KIND - INCLUDING LOST REVENUES OR PROFITSAMOUNTS PREVIOUSLY PAID TO THE OTHER PARTY AND ITS AFFILIATES PURSUANT TO AND IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT; PROVIDED THAT THE FOREGOING SHALL NOT BE CONSTRUED TO PRECLUDE A PARTY FROM ARGUING, LOSS IN CONNECTION WITH A CLAIM FOR DIRECT DAMAGES, THAT AMOUNTS PREVIOUSLY PAID BY SUCH PARTY CONSTITUTE AN APPROPRIATE MEASURE OF BUSINESS OR LOSS OF DATASUCH DAMAGES.