This limitation of liability clause is very bad fo

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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

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The way I read it gross negligence is an exception to the cap on damages. From what we know of prior FDA interactions and the RTF letter gross negligence was par for the course. It wasn't a failure to perform it was performing in a manner that lacked any diligence, care or in some cases knowledge of it's duties.

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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.

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