Common use of Apportionment of Damages Clause in Contracts

Apportionment of Damages. In the event that any liability, damage, loss, cost or expense (including reasonable attorney's fees) as aforesaid cannot be established (with respect to final judgments of a court of competent jurisdiction from which no appeal is or can be taken as well as settlements made prior to, during or following termination of litigation to which the parties have expressly agreed in writing) to have resulted solely from the actions or failures to act of LipoMatrix or Distributor or their affiliates, responsibility for payment of such liability, damage, loss, cost or expense (including reasonable attorney's fees) will be apportioned between LipoMatrix and Distributor according to the contribution of either party to the damage; and if such allocation is not mutually agreed, then it will be determined by mandatory binding arbitration.