Buddy: This limitation of liability clause is very
Post# of 154115
(Total Views: 506)
Posted On: 11/02/2022 4:21:28 PM
Re: Buddyboy20 #130023
Buddy: This limitation of liability clause is very bad for us. The gross negligence language applies to "aggregate damages" in excess of what CYDY paid for the services, but "under no circumstances" can "Amarex be liable to Cytodyn" for "any consequential" or "special damages" related to Amarex's "failure to perform the Services."
It's not clear to me what damages could be aggregated under the gross negligence standard, but any fees paid by CYDY plus attorneys fees/costs would make sense since attorneys fees are normally only recoverable pursuant to specific contractual agreement or as authorized by a statute. What CYDY wants to recover here are consequential damages (those occurring in consequence of Amarex's breach of performance under the MSA) and special (punitive) damages, but both appear problematic given the language Rantes has cited.
My guess would be that Nader simply signed the the standard boiler plate Amarex services agreement (prepared by Amarex's lawyers to protect Amarex) without negotiating a "gross negligence" exception to the no consequential or special damages language.
My comments above are based on the assumption that Rantes has accurately published the pertinent language from the MSA and that other pertinent language in the MSA covering this issue does not exist. It's possible, of course, that SA has developed some viable theory to overcome the problematic language, but I suspect that doing so will prove a daunting task.
It's not clear to me what damages could be aggregated under the gross negligence standard, but any fees paid by CYDY plus attorneys fees/costs would make sense since attorneys fees are normally only recoverable pursuant to specific contractual agreement or as authorized by a statute. What CYDY wants to recover here are consequential damages (those occurring in consequence of Amarex's breach of performance under the MSA) and special (punitive) damages, but both appear problematic given the language Rantes has cited.
My guess would be that Nader simply signed the the standard boiler plate Amarex services agreement (prepared by Amarex's lawyers to protect Amarex) without negotiating a "gross negligence" exception to the no consequential or special damages language.
My comments above are based on the assumption that Rantes has accurately published the pertinent language from the MSA and that other pertinent language in the MSA covering this issue does not exist. It's possible, of course, that SA has developed some viable theory to overcome the problematic language, but I suspect that doing so will prove a daunting task.
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