More digging into the documents... Unilife deny they are liable, claim Biodel is at fault for delays nor did they have an exclusivity agreement with them. Also claim they were able to source alternative devices if necessary. Looks like Biodel can only claim up to 20% of the revenue paid to Unilife within a 12 month period prior to the claims. Anyone guesstimate what that might be?
"Section 9.5 of the Agreement limits any recovery of damages by Biodel for Count Two.
Section 9.5 provides:
LIMITATION OF LIABILITY. EXCEPT TO THE EXTENT EACH PARTY MAY BE REQUIRED TO INDEMNIFY THE OTHER UNDER SECTION 9 FOR THIRD PARTY CLAIMS, OR TO THE EXTENT RELATED TO A PARTY'S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY LINDER SECTION 1I, NEITHER PARTY NOR ITS RESPECTIVE AFFILIATES OR AGENTS SHALL BE LIABLE FOR ANY PUNITIVE, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER UNDER. ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY. EXCEPT TO THE EXTENT EACH PARTY MAY BE REQUIRED TO INDEMNIFY THE OTHER I.INDER SECTION 9 FOR THIRD PARTY CLAIMS, OR TO THE EXTENT RELATED TO A PARTY'S BREACH OF ITS OBLIGATIONS OF CONFIDENTIALITY UNDER SECTION 11, EACH PARTY'S TOTAL AGGREGATE LIABILITY TO THE OTHER PARTY FOR ANY AND ALL CLAIMS RELATED TO, OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCT (WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, By STATUTE OR OTHERV/ISE) IN ANY TWELVE (12) MONTH PERIOD SHALL BE LIMITED TO AN AMOUNT EQUAL TO 20% OF THE TOTAL REVENUE UNILIFE RECEIVED FROM BIODEL FOR THE TWELVE (12) MONTHS PRIOR TO SUCH CLAIMS.
Biodel's claim under Count Two falls within the scope of Section 9.5. Unilife has received a very limited amount in revenue from Biodel for the twelve months prior to Biodel asserting its claim under Count Two. Under Section 9.5, Biodel's damages are, at most, 20% of that revenue."
UNS Price at posting:
6.1¢ Sentiment: None Disclosure: Held
