I purchased and read the MSA. In section 9.3 belo
Post# of 154684
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Posted On: 11/03/2022 2:22:28 PM
I purchased and read the MSA. In section 9.3 below, it makes is VERY clear that Amarex is NOT responsible for any consequential, indirect or special damages as a result of Amarex's failure to perform the Services. Further, Amarex is only liable for an amount up to what CYDY had paid them. HOWEVER, this limitation does not apply in the case of Amarex's gross negligence or willful misconduct.
Please also note that arbitration is BINDING which means they cannot sue if they don't like what the arbitrator says.
Now I know that most here will jump up and down that clearly there was gross negligence and/or willful misconduct, but I would caution you that there are always 2 sides to every story, and it could take months to determine if there was gross negligence or willful misconduct by Amarex. Given CYDY's current financial situation, they may opt to just take what they paid Amarex and move forward instead of engaging in further costly legal battles in which they may not prevail. Again, we don't know Amarex's side of the story.
I have also included section 15.4 Dispute Resolution below.
9.3 Limitation of Liability and Damage. Except with respect to its indemnification obligations under Section 8, under no circumstances shall Amarex be liable to the CytoDyn or any third party claiming by or through CytoDyn as a result of Amarex's failure to perform the Services, for any consequential, indirect, or special damages, and the warranty set forth in Section 9.1 is in lieu of any and all other warranties relating to the Services, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, or for non-infringement of intellectual property rights. In no event shall Amarex be responsible or liable for an aggregate damage total in excess of the value paid by CytoDyn for the Services under the applicable Project Work Order giving rise to damages; provided, however, that this limitation does not apply in the event of Amarex's gross negligence or willful misconduct or in the event of Amarex's material breach of the confidentiality provisions of this Agreement.
15.4 Dispute Resolution. The parties will make a reasonable effort to resolve any claims which they may have against each other by good faith negotiation. A party's failure to make such an effort, however, will not be a prerequisite to its right to arbitrate. All claims arising under or relating to this Agreement, including any claims created by statutory law,
will be decided by final and binding arbitration. The arbitration will be held in Baltimore, Maryland, and will be conducted according to the applicable rules of Commercial Arbitration Rules of the American Arbitration Association, using a panel of one arbitrator who will be selected in accordance with such rules. This provision will provide the exclusive means for dispute resolution, provided, however, that neither party will be
prohibited from proceeding in a court to seek injunctive relief or other equitable remedies pending arbitration. The parties will share equally in the costs of any arbitration, but a prevailing party will be entitled to receive, as a part of the award, its reasonable arbitrator and attorney fees incurred in connection with the arbitration as provided in Section 15.5.
Judgment on an arbitration award may be entered by any court having jurisdiction.
Please also note that arbitration is BINDING which means they cannot sue if they don't like what the arbitrator says.
Now I know that most here will jump up and down that clearly there was gross negligence and/or willful misconduct, but I would caution you that there are always 2 sides to every story, and it could take months to determine if there was gross negligence or willful misconduct by Amarex. Given CYDY's current financial situation, they may opt to just take what they paid Amarex and move forward instead of engaging in further costly legal battles in which they may not prevail. Again, we don't know Amarex's side of the story.
I have also included section 15.4 Dispute Resolution below.
9.3 Limitation of Liability and Damage. Except with respect to its indemnification obligations under Section 8, under no circumstances shall Amarex be liable to the CytoDyn or any third party claiming by or through CytoDyn as a result of Amarex's failure to perform the Services, for any consequential, indirect, or special damages, and the warranty set forth in Section 9.1 is in lieu of any and all other warranties relating to the Services, express or implied, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, or for non-infringement of intellectual property rights. In no event shall Amarex be responsible or liable for an aggregate damage total in excess of the value paid by CytoDyn for the Services under the applicable Project Work Order giving rise to damages; provided, however, that this limitation does not apply in the event of Amarex's gross negligence or willful misconduct or in the event of Amarex's material breach of the confidentiality provisions of this Agreement.
15.4 Dispute Resolution. The parties will make a reasonable effort to resolve any claims which they may have against each other by good faith negotiation. A party's failure to make such an effort, however, will not be a prerequisite to its right to arbitrate. All claims arising under or relating to this Agreement, including any claims created by statutory law,
will be decided by final and binding arbitration. The arbitration will be held in Baltimore, Maryland, and will be conducted according to the applicable rules of Commercial Arbitration Rules of the American Arbitration Association, using a panel of one arbitrator who will be selected in accordance with such rules. This provision will provide the exclusive means for dispute resolution, provided, however, that neither party will be
prohibited from proceeding in a court to seek injunctive relief or other equitable remedies pending arbitration. The parties will share equally in the costs of any arbitration, but a prevailing party will be entitled to receive, as a part of the award, its reasonable arbitrator and attorney fees incurred in connection with the arbitration as provided in Section 15.5.
Judgment on an arbitration award may be entered by any court having jurisdiction.
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