Section 4. Confidentiality. All confidential or proprietary information disclosed by one Party to the other (or by or to any of their respective affiliates, officers, directors, employees, representatives and agents) in connection with this Letter Agreement, Definitive Agreement, and/or Services, the fact that the Parties are contemplating shall be deemed to be Confidential Information as defined in, and shall be subject to the terms of, the Mutual Confidentiality Agreement dated as of [***] by and between Samsung and Vir (the CDA). In addition, a Recipient may disclose Disclosers Confidential Information to its actual and potential investors, acquirors, licensees and collaboration partners, in each case, who have a need to know such Confidential Information and who are bound by written obligations of confidentiality and non-use at least as restrictive as those contained in the CDA. Recipient will be responsible for any breach or threatened breach of the CDA by any such actual and potential investors, acquirors, licensees and collaboration partners. The CDA is attached hereto as Exhibit C.
Section 5. Termination. This Letter Agreement shall terminate as follows: (1) upon completion and signing of the Definitive Agreement; or (2) upon mutual written agreement by the Parties. Virs obligations pursuant to Sections 2 and 3 of this Letter Agreement shall survive termination of this Letter Agreement. In the event this Letter Agreement is terminated without signing of the Definitive Agreement, the Capacity Reservation Shortfall shall immediately become due.
Section 6. Limitation of Liability. NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, PUNITIVE, EXEMPLARY, MULTIPLIED, SPECIAL, INCIDENTAL, LOST PROFITS OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH THIS Letter Agreement AND EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO SEEK SUCH DAMAGES. Vir and Samsung (each, an Indemnifying Party) shall indemnify and hold harmless the other Party (the Indemnified Party) and its officers, directors, employees or agents from and against any losses, costs, or other damages (Damages) arising or resulting from any third party claims to the extent such Damages are relating to, arising out of, in connection with, or resulting from claims, demands or actions based upon (i) gross negligence or willful misconduct of the Indemnifying Party or its officers, directors, employees or agents, or (ii) any claim alleging infringement of a third partys intellectual property rights. [***].
Section 7. Assignment. No Party shall be entitled to assign, transfer or convey this Letter Agreement or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of the other Party, and any attempt to do so without such consent shall be void. Notwithstanding the foregoing, Vir may assign this Agreement to its collaboration partner with respect to the Product, and each party will have the right to assign this Agreement to any successor in interest to all or substantially all of such partys business or assets to which this Agreement relates whether through asset or stock acquisition, merger, consolidation, or otherwise, in one or a series of transactions. Nothing shall relieve the assigning Party of any of its responsibilities or obligations hereunder and, as a condition of such assignment, the assignee shall agree in writing to be bound by all obligations of the assigning Party hereunder. This Agreement shall be binding upon the successors and permitted assigns of the Parties.
Section 8. General. To the extent not conflicting with or superseded by the terms of this Letter Agreement, the applicable terms of the CDA shall apply to this Letter Agreement, mutatis mutandis.
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