Common use of No Consequential or Punitive Damages Clause in Contracts

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 FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, MILESTONES OR ROYALTIES, ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF ANY 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 ROYALTY DAMAGES OR OTHER SIMILAR DAMAGES UNDER SECTION 6.3 OR 6.4 OF THIS AGREEMENT FROM THE OTHER PARTY ARISING FROM THE OTHER PARTY’S BREACH OF THIS AGREEMENT, INCLUDING SECTION 5.4, THE LIMITATION OF LIABILITY UNDER THIS SECTION 10.5 SHALL NOT APPLY TO SUCH DAMAGES IF THEY ARE ESTABLISHED, QUANTIFIABLE 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 INCIDENTAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY OR PUNITIVE DAMAGES, DAMAGES OF ANY KIND - INCLUDING LOST REVENUES OR PROFITS, MILESTONES LOSS OF BUSINESS OR ROYALTIES, LOSS OF DATA - ARISING FROM OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION AS A RESULT OF ANY BREACH OF ANY WARRANTY OR RELATING TO 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 NOTICE OF SUCH DAMAGES. NOTHING INDEMNIFICATION OBLIGATION UNDER SECTION 13, EVEN IF THE DAMAGE AMOUNT AWARDED TO THE THIRD PARTY IN THIS SECTION 10.5 (AND ASSESSED AGAINST THE INDEMNIFIED PARTY), OR INCURRED IN ANY SETTLEMENT OF, THE CLAIM FOR WHICH INDEMNIFICATION IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY REQUIRED UNDER THIS AGREEMENT WITH RESPECT TO THIRD PARTY CLAIMSINCLUDES INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR REMEDIES TO A PARTY IN THE CASE EXEMPLARY DAMAGES OF INFRINGEMENT ANY KIND - INCLUDING LOST REVENUES OR MISAPPROPRIATION PROFITS, LOSS OF ITS INTELLECTUAL PROPERTY RIGHTS BUSINESS OR CONFIDENTIAL INFORMATION BY THE OTHER PARTY (INCLUDING UNDER SECTION 3.1(D)), OR THE WILLFUL MISCONDUCT, INTENTIONAL BREACH OR FRAUD LOSS 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 ROYALTY DAMAGES OR OTHER SIMILAR DAMAGES UNDER SECTION 6.3 OR 6.4 OF THIS AGREEMENT FROM THE OTHER PARTY ARISING FROM THE OTHER PARTY’S BREACH OF THIS AGREEMENT, INCLUDING SECTION 5.4, THE LIMITATION OF LIABILITY UNDER THIS SECTION 10.5 SHALL NOT APPLY TO SUCH DAMAGES IF THEY ARE ESTABLISHED, QUANTIFIABLE AND DIRECTLY ARISE FROM SUCH BREACHDATA.

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 HERETO WILL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING INCLUDING, WITHOUT LIMITATION, LOST PROFITS, MILESTONES OR ROYALTIES, ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF ANY NOTICE OF SUCH DAMAGES. EXCEPT AS SET FORTH BELOW WITH RESPECT TO THE CAP, NOTHING IN THIS SECTION 10.5 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 REMEDIES EITHER PARTY’S LIABILITY WITH RESPECT TO A PARTY IN THE CASE INFRINGEMENT, MISAPPROPRIATION OR UNAUTHORIZED USE OR DISCLOSURE OF INFRINGEMENT OR MISAPPROPRIATION OF ITS THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIAL INFORMATION BY INFORMATION. IN NO EVENT SHALL THE OTHER PARTY COLLECTIVE, AGGREGATE LIABILITY (INCLUDING WITHOUT LIMITATION, CONTRACT, NEGLIGENCE AND TORT LIABILITY) OF EACH PARTY UNDER THIS AGREEMENT EXCEED THE AMOUNT OF FEES ACTUALLY RECEIVED BY ACUCELA FROM OTSUKA UNDER THE PROJECT (THE “CAP”); PROVIDED THAT OTSUKA’S LIABILITY 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 ROYALTY DAMAGES OR OTHER SIMILAR DAMAGES UNDER SECTION 6.3 OR 6.4 10.1 OF THIS AGREEMENT FROM THE OTHER PARTY ARISING FROM THE OTHER PARTY’S BREACH OF THIS AGREEMENT, INCLUDING SECTION 5.4, THE LIMITATION OF LIABILITY UNDER THIS SECTION 10.5 SHALL NOT APPLY BE SUBJECT TO SUCH DAMAGES IF THEY ARE ESTABLISHEDTHE CAP; PROVIDED FURTHER THAT ANY LIABILITY CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EITHER PARTY SHALL NOT BE SUBJECT TO THE CAP. IN WITNESS WHEREOF, QUANTIFIABLE AND DIRECTLY ARISE FROM SUCH BREACHthe Parties have signed this Agreement as of the Effective Date. By: /s/ Ryo Kubota By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ Name: Dr. Ryo Kubota Name: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇ Title: Chairman, President and CEO Title: Representative Director and President By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇▇▇▇▇ ▇▇▇▇▇ Title: General Manager and Operating Officer, Division of Dermatologicals & Ophthalmologicals For Otsuka Pharmaceutical Co., Ltd. For Acucela Inc. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Public Relations Department Investor Relations ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇ +▇-▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇▇@▇▇▇▇▇▇▇.▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ Media +▇-▇▇▇-▇▇▇-▇▇▇▇ ▇▇▇▇▇.▇▇▇▇▇@▇▇-▇▇.▇▇▇ BOTHELL, WA and TOKYO, JAPAN (September 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), Otsuka’s proprietary compound for the treatment of dry eye which is currently in Phase III clinical development in the United States. Under the agreement, the parties will collaborate in the clinical development efforts for Rebamipide in the United States, with Acucela spearheading the regulatory strategy to gain approval for the product in the United States. Upon regulatory approval of Rebamipide, the 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. “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 ▇▇▇▇ ▇▇▇▇▇▇▇, Ph.D., president and representative director of Otsuka Pharmaceutical Co., Ltd. “With this strategic collaboration, Otsuka and Acucela will further expand their commitment to improve the treatment for the millions of patients that suffer from dry eye symptoms,” added ▇▇. ▇▇▇▇▇▇▇. “We are excited to broaden our strategic relationship with Otsuka through our work on this promising Phase III product,” commented Ryo Kubota, M.D., Ph.D., chief 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, ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ providing legal counsel to the company.

No Consequential or Punitive Damages. EXCEPT NOTWITHSTANDING ANYTHING CONTAINED TO THE CONTRARY IN ANY OTHER PROVISION OF THIS AGREEMENT, EACH OF THE CASE SELLERS AND NBP AND NBILP AGREE THAT THE RECOVERY BY ANY PARTY HERETO OF ANY DAMAGES SUFFERED OR INCURRED BY IT AS A RESULT OF ANY BREACH BY THE OTHER PARTY OF SECTION 2.4 ANY OF ITS REPRESENTATIONS, WARRANTIES, COVENANTS OR ARTICLE VIII 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 OTHERWISE PROVIDED BELOWA RESULT OF THE BREACH BY THE BREACHING PARTY OF ITS REPRESENTATIONS, NEITHER WARRANTIES, COVENANTS OR OBLIGATIONS HEREUNDER, AND IN NO EVENT SHALL THE INDEMNIFYING PARTY WILL BE LIABLE TO THE INDEMNIFIED PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, MILESTONES EXCEPT TO THE EXTENT THEY CONSTITUTE PART OF A THIRD PARTY CLAIM SUFFERED OR ROYALTIES, ARISING FROM INCURRED BY THE INDEMNIFIED PARTY AS A RESULT OF THE BREACH OR RELATING TO THIS AGREEMENT, REGARDLESS OTHER ACTION OR MATTER BY THE INDEMNIFYING PARTY OF ANY NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION 10.5 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS ITS REPRESENTATIONS, WARRANTIES, COVENANTS 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 ROYALTY DAMAGES OR OTHER SIMILAR DAMAGES UNDER SECTION 6.3 OR 6.4 OF THIS AGREEMENT FROM THE OTHER PARTY ARISING FROM THE OTHER PARTY’S BREACH OF THIS AGREEMENT, INCLUDING SECTION 5.4, THE LIMITATION OF LIABILITY UNDER THIS SECTION 10.5 SHALL NOT APPLY TO SUCH DAMAGES IF THEY ARE ESTABLISHED, QUANTIFIABLE AND DIRECTLY ARISE FROM SUCH BREACHHEREUNDER.

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 HERETO WILL BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY EXEMPLARY, PUNITIVE OR PUNITIVE DAMAGESMULTIPLE DAMAGES ARISING OUT OF THIS AGREEMENT OR THE EXERCISE OF ITS RIGHTS HEREUNDER, INCLUDING OR, EXCEPT AS SET FORTH IN SECTION 6.1(b), FOR LOST PROFITS, MILESTONES OR ROYALTIES, PROFITS ARISING FROM OR RELATING TO ANY BREACH OF THIS AGREEMENT, AGREEMENT REGARDLESS OF ANY NOTICE OF SUCH DAMAGES. NOTHING IN THIS SECTION 10.5 14.13 IS INTENDED TO LIMIT OR RESTRICT THE INDEMNIFICATION RIGHTS OR OBLIGATIONS OF EITHER PARTY UNDER THIS AGREEMENT WITH RESPECT TO RECOVERY OF DAMAGES AWARDED TO THIRD PARTY CLAIMSCLAIMANTS (OTHER THAN AN INDEMNITEE) IN THIRD PARTY CLAIMS FOR WHICH INDEMNIFICATION IS SOUGHT UNDER ARTICLE 12, OR REMEDIES TO DAMAGES AVAILABLE FOR BREACHES OF CONFIDENTIALITY OBLIGATIONS IN ARTICLE 10. IN NO EVENT SHALL A PARTY IN BE ENTITLED TO THE CASE REFUND, RETURN OR RECOVERY OF INFRINGEMENT OR MISAPPROPRIATION OF ITS INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIAL INFORMATION BY ANY AMOUNTS PREVIOUSLY PAID TO THE OTHER PARTY (INCLUDING UNDER SECTION 3.1(D)), OR AND ITS AFFILIATES PURSUANT TO AND IN ACCORDANCE WITH 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 ROYALTY DAMAGES OR OTHER SIMILAR DAMAGES UNDER SECTION 6.3 OR 6.4 OF THIS AGREEMENT FROM THE OTHER PARTY ARISING FROM THE OTHER PARTY’S BREACH TERMS OF THIS AGREEMENT, INCLUDING SECTION 5.4, ; PROVIDED THAT THE LIMITATION OF LIABILITY UNDER THIS SECTION 10.5 FOREGOING SHALL NOT APPLY BE CONSTRUED TO PRECLUDE A PARTY FROM ARGUING, IN CONNECTION WITH A CLAIM FOR DIRECT DAMAGES, THAT AMOUNTS PREVIOUSLY PAID BY SUCH DAMAGES IF THEY ARE ESTABLISHED, QUANTIFIABLE AND DIRECTLY ARISE FROM PARTY CONSTITUTE AN APPROPRIATE MEASURE OF SUCH BREACHDAMAGES.