TERMS AND CONDITIONS
Foresite, Inc., Terms and Conditions
Updated January 2023
TERMS AND CONDITIONS OF SALE FOR LABORATORY SERVICES
Foresite, Inc. (“Company”) provides objective third party laboratory analytical services, including data collection, analysis and interpretation, and other reliability related laboratory services (the “Lab Services”) to you, (the Client), subject solely to the terms and conditions stated herein. Any services other than the Lab Services provided by Company to you are also subject solely to the terms and conditions stated herein, and such services and the Lab Services are collectively referred to as the “Services”. The terms and conditions stated herein (this “Agreement”) shall control in the event of any conflict with any other written document.
REPORTS OF SERVICES. Company shall submit reports of the Services performed indicating results of testing, interpretation, and discussion. Client understands and agrees that samples that are tested and reported by Company are representative of the sample received by Client and may not be indicative of the entire manufactured batch and/or lot. Such results are intended for use by persons having professional skill and training in the interpretation of such results. Company assumes no responsibility, and Client hereby waive all claims against Company, for interpretation of such results. Unless otherwise required by law, Company shall provide its report only to those persons or entities specifically designated in writing by Client or Client’s authorized representatives, indicated on Company provided Quote. Any report of results furnished by Company is furnished solely for Client’s benefit and Client’s authorized representatives and shall be Client’s confidential property. Any report or data provided to Client by Company shall not be reproduced, except in full; and Client shall not at any time misrepresent the content of any report of other information received from or relating to Company or its work and/or Services on Client’s behalf.
CONFIDENTIALITY. Either party (“Disclosing Party”) has or may disclose confidential information to the other party (“Receiving Party”). Confidential information means any proprietary and/or non-public materials, data, reports, plans, records, technical and other information. Company agrees to maintain in confidence all Client’s confidential information and to use such confidential information only for the purpose of performing analyses of samples and providing reports on Companies findings to Client. Client likewise agrees to maintain in strict confidence, and not to disclose or use any confidential information belonging to Company that is learned or obtained by reason of this Agreement or the performance of the Services. Confidential information does not include any information that: (a) is or becomes generally available to the public other than as a result of the Receiving Party’s breach of this Agreement; (b) is obtained by Receiving Party on a non-confidential basis from a third-party that was not legally or contractually restricted from disclosing such information; (c) Receiving Party establishes by documentary evidence, was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) Receiving Party establishes by documentary evidence, was or is independently developed by Receiving Party without using any confidential information. Each party shall protect the other party’s confidential information by using the same degree of care, but not less than a reasonable degree of care, to prevent the unauthorized use, dissemination, or publication of the confidential information as the party uses to protect its own confidential information of a like nature. Client agrees not to use Company’s name and/or any data or report provided by Company in any manner which might cause harm to Company’s reputation and/or business, including without limitation any misrepresentation of the content of such reports. Except as expressly provided under this Agreement, under no circumstances is the name of Company, or any name, symbol, trademark, or service mark presently or later established by Company, to be published or used by Client either alone or in association with that of any other party, without the prior written approval of Company.
SUBPOENAS AND INVESTIGATIONS. In any instance where Client’s confidential information is subpoenaed or must be released to a government agency, or is otherwise required to be disclosed pursuant to law or regulation, Company will be permitted to release such confidential information and, to the extent permitted by law, Client will be promptly notified prior to the release of the information. Client agrees to reimburse Company for any reasonable costs and expenses (including attorneys’ fees, if any) incurred by Company in complying with any such subpoena or other request for information or testimony (written or oral) which can be evidenced by written documentation.
FEES AND PAYMENT TERMS. Quotations are available on request. Where quotations are requested, Company may delay initiating the testing until a signed copy of the quotation is received by Company. Where quotations are not requested, Client shall pay Company then current fees and applicable expenses and charges for the Services performed. Company will submit an invoice upon completion of stated work provided in the Quotation. Company standard terms are net 30 days, after which time a 1 1/2% per month interest charge or the maximum amount permitted by law (if less) may be added to all unpaid balances. Any deviation in payment terms must be agreed to in writing. If Client cancels a Service after testing commences, Client shall be responsible for all fees and expenses in respect of such Service. All fees and expenses are charged and payable only in US($) dollars, unless otherwise agreed by the parties. Company has the right to ask for payment in advance, or cease all Services, if the established payment terms are not adhered to. If Client defaults in payment for Services rendered, Client is responsible for reasonable collection and/or legal fees incurred by Company to enforce the payment obligations under this Agreement. Company further reserves the right to hold reports.
BILLING. All fees are charged or billed directly to Client. The billing of a third party will not be accepted without a statement, signed by the third party, which acknowledges and accepts payment responsibility. Billing of a third party will not relieve Client of payment responsibility and liability in the event the third party defaults in payment for Services rendered.
PERSONNEL. All of the Services will be performed by employees of Company, Company affiliates or contracted personnel retained by Company or Company affiliate(s) on a temporary and/or part-time basis. Company or Company affiliate(s) (as applicable) will be solely responsible for the negligent acts, errors and omissions of their respective employees, agents, representatives, subcontractors, and any other person performing Services under this Agreement.
RUSH ANALYSES. A surcharge is usually added to the list fee if rush analysis is requested. The surcharge will depend upon the analysis to be performed. Rush analysis service is offered contingent upon availability and pre-arrangement with Company.
DELIVERY OF SAMPLES. Upon timely delivery of samples, Company will use commercially reasonable efforts in meeting standard turnaround times. The risk of loss or damage to the sample during shipment remains with Client. Company will advise Client of samples which are missing or received in damaged, contaminated, or improperly preserved condition. The risk of loss or damage to the sample will be assumed by Company at the time possession of the sample is delivered to an employee of Company; however, Company’s sole responsibility in the event of such loss or damage shall be to pay for the cost of delivering a substitute sample. Company reserves the right to refuse to accept or to rescind acceptance of any sample, which in the judgment of Company is likely to pose any unreasonable risk in handling and/or analysis. Client represents and warrant that any sample containing any hazardous substance which is to be delivered to Company will be packaged, labeled, transported, and delivered in accordance with applicable laws.
QUALITY ASSURANCE. Company will perform the Lab Services consistent with its laboratory quality assurance standard operating procedures. It shall be Client’s exclusive responsibility to confirm that Company’s standard practices will meet Client’s needs prior to placing an order for work. If Client desires an alternative to these standard practices, such request must be made in writing and agreed to in writing by Company prior to sample acceptance.
RETENTION OF SAMPLES. After the analytical results have been reported, samples are routinely retained in our storage facilities for 7-14 days, after which the samples may be destroyed. Prior arrangements must be made if samples are to be held for longer periods or returned to Client. Company may charge a monthly fee for long-term storage.
OBLIGATION TO PROVIDE SERVICES. Company shall only be obligated to perform those Services for which it has accepted an order submitted by Client, subject to Company’s right to cease performing the Services due to failure to pay invoices when due.
RETENTION OF REPORTS. Company ordinarily retains hard copies of analytical reports for a period of 3 years and electronic copies for a period of 7 years, after which time the reports may be destroyed.
SERVICES AND REVIEWS. To the extent that Client engages Company to perform Services, such Services shall be described on a Quote. It is necessary for us to assume that the paperwork, including Sample Submission form, submitted with a sample describes the testing protocol desired. Any changes to this protocol must be submitted to Company in writing. Client is responsible for determining whether the testing protocol requested by Client complies with any and all applicable federal, state and local laws, rules and regulations governing Client’s business and/or products; and Client agrees to hold Company harmless from and against any demand, claim, cause of action, judgment, liability, damage, cost or expense (including attorney’s fees) suffered by Client, Company or any third party arising from or related to Company’s performance of the testing protocol requested. Company makes no representation or warranty that the testing protocol requested by client is effective and/or suitable for the purpose for which the tests will be performed, and Company takes no responsibility for client’s regulatory compliance and reporting. To the extent that Client engages Company to perform a review of Client’s facilities or operations, a Quote shall set forth the specific area or matter which Client desires Company to review (“Project Quote”). Client shall allow Company access to Client’s facilities as necessary to perform the quoted assessment, and shall provide a safe work place and working conditions for Company. Company will perform the review, applying its expertise and know-how, to identify deficiencies, areas of improvements and to make recommendations to improve Client’s product reliability (“Deficiencies and Recommendations”). Company shall have no obligation to review or bring to Client’s attention matters and concerns that are outside of the quoted assessment, even if such matters are brought to the attention of Company incident to performing the review. At the conclusion of the review, Company will provide a written report setting out the Deficiencies and Recommendations, if any. Company does not represent or warrant that Company will identify all existing deficiencies and areas of improvement, nor does it represent or warrant that its recommendations, if adopted, will ensure the reliability of Client’s products.
LIMITED WARRANTY AND LIMITS OF LIABILITY; INDEMNITY. Company warrants that it will perform the Lab Services consistent with its laboratory quality assurance standard operating procedures. Company warrants that it will perform the requested test, for the sample as submitted, and will either (i) follow all procedures consistent with a validated method per ISO or industry specification/test method and the manufacturer of the test equipment, or (ii) if directed by Client, follow the specific procedures specified by Client. THE PARTIES RECOGNIZE THAT IT IS POSSIBLE FOR A TEST TO PRODUCE AN INACCURATE RESULT EVEN IF ALL PROCEDURES ARE PROPERLY FOLLOWED, AND THEREFORE Company DOES NOT WARRANT THAT THE TEST WILL PRODUCE ACCURATE RESULTS WHEN ALL PROCEDURES ARE PROPERLY FOLLOWED. THE FOREGOING EXPRESS LIMITED WARRANTY IS EXCLUSIVE AND IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED. With respect to any and all Services, Company AND ITS AFFILIATES DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR OF MERCHANTABILITY. THERE ARE NO REPRESENTATIONS OR GUARANTEES UNDER THIS AGREEMENT, OR IN ANY OTHER AGREEMENT OR COMMUNICATION, CONCERNING SERVICES, OR THE QUALITY, ACCURACY, OR FITNESS OF THE SERVICES, OR THAT THE SERVICES SHALL INSURE THE RELIABILITY OF ANY PRODUCT ASSOCIATED WITH THE SERVICES. Client agrees to defend, indemnify and hold Company and its officers, directors, employees and shareholders from and against any and all damages, liabilities, costs and expenses (including reasonable attorneys’ fees) (“Liabilities”) incurred by Company as a result of any claim, demand, action or lawsuit asserted against Company arising out of or relating to Client’s negligent acts and omissions, or arising out of any violation of Client’s obligations set forth in this Agreement. IN NO EVENT SHALL COMPANY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING (BUT NOT LIMITED TO) DAMAGES FOR LOSS OF PROFIT OR GOODWILL REGARDLESS OF (A) THE NEGLIGENCE (EITHER SOLE OR CONCURRENT) OF COMPANY AND/OR (B) WHETHER COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. Company’s total liability to Client in connection with the Services for any and all injuries, losses, expenses, demands, claims or damages whatsoever arising out of or in any way related to such Services, from any cause or causes, shall not exceed an amount equal to the lesser of (a) damages suffered by Client as the direct result thereof, or (b) the total amount paid by Client or owing by Client for the Services provided under the specific scope of work or sample submission form submitted by Client, out of which the damages arose. We accept no legal responsibility for the purposes for which Client uses the Lab Services test results. Nothing herein shall be construed as a recommendation for use or distribution of the samples or products tested. Results contained in any report relate only to the items tested and described in any report.
TERMINATION. The Services and/or this Agreement may be terminated by either party upon notice to the other party. If the Services and/or this Agreement is terminated by either party for any reason, Company shall be paid in full for all Services that have been fully or partially performed through the termination date, and Client shall be provided with a report of any Services conducted prior to termination.
FORCE MAJEURE. Except for payment of amounts due, neither party will be liable for any delay, failure in performance, loss or damage due to causes beyond such party’s reasonable control, such as fire; flood; lightning; earthquakes; power failures or blackouts; severe weather; explosions; wars or armed conflicts; national, state or local emergencies; governmental authority or action; epidemics; pandemics; civil disobedience; shortage of labor or materials; labor disputes; strikes, or other concerted acts of workers; embargoes; acts of God; acts of terrorism, or acts of vandalism or acts otherwise known as “Force Majeure”.
LAW AND VENUE. This Agreement is governed by the laws of the State of Indiana. The parties agree that the exclusive venue for any dispute between the parties under this Agreement shall be the state or federal courts located in Kokomo, Indiana and the parties agree to submit to the personal jurisdiction in such courts.
ENTIRE AGREEMENT; AMENDMENT. This Agreement represents the entire agreement between Client and Company and supersedes all prior negotiations and agreements with respect to the subject matter hereof. This Agreement may be amended only by a written agreement signed by an authorized representative from each party hereto; provided, however, that no purchase order or other order for work shall be accepted by Company which includes any conditions that vary from the above described Standard Terms and Conditions, and Company hereby rejects any conflicting terms contained in any acceptance or order submitted by Client. 20.
ASSIGNMENT. Client may not assign any of Client’s rights or delegate the performance of any of Client’s obligations under this Agreement without the prior written consent of Company.
ACCEPTANCE. Any conduct by Client which recognizes the existence of a contract pertaining to the subject matter hereof, including but not limited to providing samples to Company and/or performance of any service by Company for Client’s benefit or on Client’s behalf shall constitute acceptance by Client of this Agreement and all of its terms and conditions.
TERMS AND CONDITIONS OF SALE FOR PRODUCTS AND SUPPORT SERVICES
GENERAL. ("Seller") hereby offers for sale to the buyer named on the face hereof ("Buyer") the products ("Products") and billable services (“Technical/Consulting Support”) [Technical/Consulting Support may be referred to as “Services”] as listed on the face hereof on the express condition that Buyer agrees to accept and be bound by the terms and conditions set forth herein (“Agreement”). Any new or different provisions contained in any document issued by Buyer in response to this offer are expressly rejected; and if Buyer’s response is deemed to be an offer, this document is a rejection of Buyer’s offer and a counter offer by Seller and shall not constitute acceptance of any proposal by Buyer. Buyer’s receipt of Products or Seller’s commencement of Services hereunder will constitute Buyer’s acceptance of this Agreement. This is the final, complete and exclusive statement of the contract between Seller and Buyer with respect to Buyer's purchase of Products and Services specified herein, which terms may not be altered in any way by Buyer’s purchase order terms. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding upon Seller unless agreed in writing and signed by Seller. Seller's failure to object to additional or different terms contained in any subsequent communication from Buyer will not be a waiver or modification of the terms set forth herein and all such proposals contained in Buyer’s order are subject to acceptance in writing by an authorized representative of Seller.
PRICE. All prices published by Seller or Seller's representatives may be changed at any time without notice. All prices quoted by Seller or Seller’s representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products or Services will be as specified by Seller or, if no price has been specified or quoted, will be Seller's standard prices in effect at the time of shipment of Products or delivery of Services. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions that are not part of Seller's original quotation. Unless otherwise stated in the quotation, the quoted rate for Technical/Consulting Support includes Work Time, Travel Time and Standby Time.
TAXES AND OTHER CHARGES. Prices for the Products and Services exclude all sales, use, value added, and other taxes and duties imposed with respect to the sale, delivery, or use of any Products or Services covered hereby, all of which taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.
TERMS OF PAYMENT. Seller may invoice Buyer immediately for the single lump sum amount equal to the total charges upon shipment of Products or upon completion of Services for the price and all other charges payable by Buyer in accordance with the terms on the face hereof. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. International Services may require payment in advance. Buyer will grant a security interest in the Products sold under this Agreement until payment of the full purchase price to Seller in accordance with Article 9-103 of Uniform Commercial Code-Secured Transactions. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at the greater of a periodic rate of one and one-half percent (1.5%) per month or the highest rate stipulated by applicable law, together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller's rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Seller, at any time that Seller believes in good faith that Buyer's financial condition does not justify the terms of payment specified. All payments shall be made in U.S. Dollars unless otherwise specified in Seller’s invoice.
PRODUCT DELIVERY AND CANCELLATION OR CHANGES BY BUYER.
PRODUCT DELIVERY. All Products will be shipped to the destination specified by Buyer, EXW (INCOTERMS 2010) at OEM/Seller shipping point as applicable. Notwithstanding specified INCOTERMS, Buyer shall select carrier and Buyer agrees to arrange transportation of Products to Buyer’s destination, and to act as the importer of record to clear the Products through customs. Seller may, at its election, make partial shipments of the Products and invoice each shipment separately. Seller reserves the right to withhold shipments in whole or in part and/or terminate any Services, if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. Seller’s termination of Services will not relieve Buyer’s obligation to pay all amounts due for Services provided by Seller prior to the termination date. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay.
CANCELLATION OR CHANGES BY BUYER. If Buyer requests that Seller delay delivery of Products for any reason, Seller may place Products in storage at Buyer's risk and expense and for Buyer's account. Orders in process may be cancelled only with Seller's written consent and upon payment of Seller's cancellation charges. Orders in process may not be changed except with Seller's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price, therefore. Credit will not be allowed for Products returned without the prior written consent of Seller. Before returning any item, contact Seller's Customer Service Department for a Return Material Authorization (RMA) number. If authorized by Seller, Buyer must return items to Seller in their original or equivalent packaging, prepay shipping charges, and insure the shipment or accept the risk if the item is lost or damaged in shipment. In addition, Seller reserves the right to charge the Buyer the list price for missing components or subassemblies when incomplete items are returned to Seller. Authorized returns of any unused items which are free from material defects to Seller, in its sole discretion, may be subject to a fifteen percent (15%) restocking charge. Requests by Buyer to delay, postpone or suspend on-site Services, due to no fault of Seller, shall be subject to Seller’s ability to recall its service representatives and to cancel and/or reschedule of any of their travel arrangements; and provided that, Buyer pays any and all additional costs (including, Travel Time and expenses) incurred by Seller as a result of the Services being postponed or suspended by Buyer. Cancellation of scheduled Services may be subject to a cancellation fee of twenty percent (20%) if Seller is notified less than 7 business days prior to the scheduled date of service.
DELIVERY OF SERVICES. Except as otherwise stated on the face hereof, all Services will be provided by Seller or its agent between the hours of 8:00 a.m. and 5:00 p.m. local standard time, Monday through Friday, excluding Seller’s holidays, either at Seller’s principal offices or, at Seller’s option, at Buyer’s installation address. If Seller advises Buyer that Services should be performed at Seller’s facility, Buyer will properly package the Products to prevent damage, clearly mark the RMA number on the outer packaging, and ship it, via postage/freight prepaid, to the address set forth on the face hereof or such different address as Seller may from time to time provide to Buyer. After Seller completes the Services, or has made a determination that the products are beyond repair, Seller may, at its option, either advise Buyer to scrap the Products or to have the Products shipped, postage/freight prepaid, back to Buyer’s ship to address stated on the Buyer’s purchase order, or to such other address as Buyer requests. In the event Buyer requires expedited delivery, such delivery will be made at Buyer’s expense. If Seller advises Buyer that Services should be performed at Buyer’s site, Buyer will use its best efforts to provide Seller with all requested diagnostic information for any products requiring Services; and subject to compliance with Buyer’s reasonable security requirements, will allow Seller free access to all relevant equipment, documentation and records. In addition, Buyer will cooperate with Seller’s efforts to perform the Services and will provide such additional assistance as Seller may reasonably request.
TITLE AND RISK OF LOSS. Notwithstanding the transport terms indicated above, title to and risk of loss of the Products will pass to Buyer upon possession of the Products by Seller to the carrier at the time and place of shipment; provided, however, that title to any software incorporated within or forming a part of the Products will at all times remain with Seller or the licensor(s) thereof, as the case may be. All risk of loss or damage to Buyer’s products being transported for Services shall remain with Buyer during shipment to and from the Buyer’s site and during Seller’s performance of Services hereunder.
WARRANTIES. Seller’s sole obligation with respect to the Services is to provide the quoted Services in a workmanlike manner and if Buyer provides notice of defect in Service within ninety (90) days of completion of such Services, Seller will, at its sole option, either re-perform the Services without charge to Buyer or grant Buyer a credit for the amount paid by Buyer with respect to such Service. Seller warrants that the Products will operate or perform substantially in conformance with Seller's published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for the period of time set forth in the Product documentation, published specifications or package inserts (the "Warranty Period"). If a Warranty Period is not specified in Seller’s Product documentation, published specifications, or package inserts, the Warranty Period for new instruments is twelve (12) months from the date of shipment to Buyer; and for all other Products is sixty (60) days from the date of shipment. During the Warranty Period, Seller agrees to repair or replace, at Seller's option, defective Products so as to cause the same to operate in substantial conformance with Seller’s published specifications; provided that Buyer (a) promptly notifies Seller in writing upon the discovery of any covered defect in the Products, including the Product model and serial number (if applicable) and details of the warranty claim; and (b) after Seller’s review, Seller will provide Buyer with an RMA number and services data, which may include Product-specific handling instructions. Then, if applicable, Buyer may return the defective Products to Seller with all costs prepaid by Buyer. Replacement parts may be new or refurbished, at the election of Seller. All replaced parts shall become the property of Seller. Shipment to Buyer of repaired or replacement Products will be made in accordance with the Delivery clause of this Agreement. Except for new consumable items manufactured and sold by Seller, this warranty expressly excludes all other consumable parts or components (e.g., bulbs, belts, cartridges, etc.) in the Products. If Seller elects to repair defective instruments, Seller may, in its sole discretion, provide a replacement loaner instrument to Buyer as necessary for use while the instruments are being repaired.
Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third party supplier are not warranted by Seller; but Seller agrees to assign to Buyer any warranty rights in such Product that Seller may have from the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier.
In no event shall Seller have any obligation to make repairs, replacements or corrections under the Warranty, in whole or in part, as the result of or with respect to: (a) use of the Products in a manner for which they were not designed; (b) improper storage and handling of the Products; (c) use of the Products in combination with equipment or software not supplied by Seller (d) shipping damage incurred en route to Buyer’s site or because of moving equipment, in which case Seller will promptly provide a cost estimate for Technical Support to the consignee for filing claims to carriers for shipping damage; (e) flood, lightning, earthquake, tornado, hurricane or fire, bombing, armed conflict, malicious mischief, sabotage or other natural or man-made disasters; (f) normal wear and tear, physical abuse, misuse, sprinkler damage, electrical surge or abnormal power variation; (g) repairs, maintenance, or modifications made by anyone other than Seller trained personnel or without Seller’s supervision and/or approval; (h) relocation and reinstallation of equipment; although upon request Seller will supervise the removing, crating, relocation and reinstallation of the Products at Seller’s current Services rates; (i) maintenance or replacement of media (i.e., software) whatever the reason for loss, failure or damage; (j) beta-site support; (k) operator training; or (l) repairing Product malfunctions if the fault is not with the equipment. If Seller determines that Products for which Buyer requested warranty services are not covered by this warranty, Buyer will pay or reimburse Seller for all costs of investigating and responding to such request at Seller's then prevailing time and materials rates. If Seller provides Services or replacement parts that are not covered by this warranty, Buyer shall pay Seller therefore at Seller's then prevailing time and materials rates.
ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS AND/OR SERVICES. THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT FOR SELLER TO REPAIR OR REPLACE A DEFECTIVE PRODUCT OR TO RE-PERFORM OR CREDIT THE PRICE OF DEFECTIVE SERVICES SHALL BE THE SOLE REMEDY OF BUYER FOR SUCH DEFECTIVE PRODUCTS OR SERVICES UNDER THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NONINFRINGEMENT. SELLER DOES NOT WARRANT THAT THE PRODUCTS OR SERVICES ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.INDEMNIFICATION.
By Seller. Seller will indemnify, defend and save Buyer, its officers, directors, and employees from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees) (“Indemnified Items”) asserted by another party against Buyer for (i) bodily injury to or death of persons or damage to tangible property to the extent caused by the negligence or willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of Services at Buyer’s premises under this Agreement; and (ii) claims that a Product infringes any U.S. patent, copyright or trade secret; provided, however, Seller’s liability under this Section does not extend to any such Indemnified Items caused by either (a) the negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (b) by any third party, (c) use of a Product in combination with equipment or software not supplied by Seller where the Product alone would not be infringing, (d) Seller’s compliance with Buyer's designs, specifications or instructions, (e) use of the Product in an application or environment for which it was not designed, or (f) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer will promptly notify Seller in writing of any claim covered by Seller’s indemnification obligations hereunder. Seller may assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section.
Notwithstanding the above, Seller’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product; or (c) in the event (a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S ENTIRE LIABILITY TO BUYER FOR, AND BUYER’S SOLE AND EXCLUSIVE REMEMDY IN RESPECT OF, THE CLAIMS DESCRIBED HEREIN.By Buyer. Buyer will indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer, its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product alone would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller without Seller's prior written approval.
SOFTWARE. With respect to any software products incorporated in or forming a part of the Products hereunder (i.e., firmware), Seller and Buyer intend and agree that such software products are being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are understood and agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and agreed to mean "licensee". Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains all rights and interest in software products provided hereunder. Seller hereby grants to Buyer a royalty-free, non-exclusive, nontransferable license, without power to sublicense, to use software licensed hereunder solely for Buyer's own internal business purposes on its hardware Products and to use the related documentation solely for Buyer's own internal business purposes. This license terminates when Buyer's lawful possession of the hardware Products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Seller's prior written consent. Seller will be entitled to terminate this license if Buyer fails to comply with any term or condition herein. Buyer agrees, upon termination of this license, to immediately stop using all software products and related documentation provided hereunder and all copies and portions thereof.
Certain of the software products provided by Seller may be owned by one or more third parties and licensed to Seller or may be stand-alone software products, which Buyer hereby agrees are subject to a separate browse-wrap, shrink-wrap or click-thru end user license agreement (EULA). Accordingly, the warranty and indemnification provisions herein do not apply to such software, which are exclusively provided in the applicable EULA.LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH IS PROVIDED UNDER THE PRODUCT AND SERVICES WARRANTIES HEREIN) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) OR SERVICES GIVING RISE TO SUCH LIABILITY OR (B) ONE MILLION DOLLARS ($1,000,000). NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER SELLER (a) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (b) IS NEGLIGENT.
EXPORT RESTRICTIONS. Buyer acknowledges that each Product and any related services, software and technology, including technical information supplied by Seller or contained in documents (collectively “Items”), may be subject to export controls of the U.S. government and/or other governments. Such export controls may include, but are not limited to, the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the U.S. and their re-export from other countries and all other applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Item. Buyer shall not export, re-export, distribute or supply any Item, directly or indirectly, to (i) any country, person or entity, in each case, without first obtaining from the U.S. government and/or other appropriate government agency any license required to do so lawfully; (ii) any person or organization in Cuba, Iran, North Korea, Sudan, Syria, or other country then the subject of a U.S. embargo, or any person or entity considered a part of the government of any such country; or (iii) any person or entity who is involved in improper development or use of nuclear weapons, or of chemical/biological weapons (CBW) or missiles, or in terrorist activities. Buyer shall cooperate fully with Seller in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in connection with, any violation of this Section by Buyer or its employees, consultants, agents and/or representatives.
INSURANCE. For the provision of on-site Services purchased hereunder, as applicable, Seller agrees to maintain and carry liability insurance in amounts set forth below with insurance companies rated B+ or better by “BEST” rating services. Insurance includes (a) commercial general liability insurance for a limit of US$2,000,000 (two million) for each occurrence and US$4,000,000 (four million) in the aggregate, (b) Statutory workers’ compensation and employer’s liability insurance for a limit of US$1,000,000 (one million), (c) Automobile liability of US$2,000,000 (two million) and (d) Umbrella coverage of US$5,000,000 (five million). No policy will include a waiver of subrogation. Upon request from Buyer related to applicable Services, Seller will provide to Buyer a certificate of insurance using the standard ACORD form to evidence the insurance coverage required herein.
MISCELLANEOUS. (a) Buyer may not delegate any duties or assign any rights or claims hereunder without Seller's prior written consent, and any such attempted delegation or assignment shall be void, (b) The rights and obligations of the parties hereunder shall be governed by and construed in accordance with the laws of the State of Indiana, U.S.A. without reference to its choice of law provisions. Each party hereby irrevocably consents to the exclusive jurisdiction of the state and federal courts located in the County of Howard, Indiana U.S.A. for any action arising out of or relating to this Agreement. Each party hereby waives any other venue to which it may be entitled by domicile or otherwise, (c) In the event of any legal proceeding between the Seller and Buyer relating to this Agreement, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury. Any action arising under this Agreement must be brought within one (1) year from the date that the cause of action arose, (d) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain, (e) Seller's failure to enforce, or Seller's waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision, (f) Seller agrees not to knowingly disclose any confidential information or data obtained by it during the performance of Services when such information or data is clearly identified in writing by Buyer as confidential. Buyer agrees that all pricing, discounts, and technical information that Seller provides to Buyer are the confidential and proprietary information of Seller. The parties agree to keep such information confidential and not disclose each other’s confidential information to any third party for one (1) year hereafter, and to use such information solely for Buyer’s internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public, (g) Any notice or communication required or permitted hereunder must be in writing and shall be deemed received when personally delivered, upon delivery by any internationally recognized carrier such as Federal Express or similar overnight delivery service, or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other, (h) Seller may, in its sole discretion, provide applicable Product training to Buyer or its employees, (i) Seller hereby rejects and disclaims any rights of Buyer contained, or obligations imposed upon Seller, in any document provided, referenced or otherwise submitted by Buyer, in each case, that Seller has not expressly included in this Agreement or a writing manually executed by Seller (including, without limitation, any rights of Buyer in respect of designs, specifications, source code or intellectual property, owned, created, developed or licensed, by Seller; any rights to items or services not specifically identified in Seller’s quotation; any audit rights or financial offset rights of Buyer; any penalties or liquidated damages imposed upon Seller; any obligation by Seller to comply with Health Insurance Portability and Accountability Act of 1996 (as amended), Current Good Manufacturing Practice regulations (as amended), the requirements, as amended, of the Customs-Trade Partnership Against Terrorism or any code of conduct, quality program, information security program, background or drug screening program or other guidelines, programs or policies, in each case, promulgated or required by Buyer; any obligation that Seller comply with any law that, under law, would not otherwise apply to Seller in respect of the transaction(s) contemplated hereby; any right of Buyer to withhold all, or any portion, of the purchase price of any products or services provided hereunder for any period of time; any right of Buyer, itself or through any third party, to remediate any defects in, replace or re-perform, any products or services provided hereunder at Seller’s cost or expense; any obligation of Seller to waive, or require its insurers to waive, any rights of subrogation; any obligation of Seller that would impair, restrict or prohibit Seller’s ability to freely conduct any business with any person or in any geography or market; any early-payment, or other, discount; any obligation of Seller to maintain a supply of spares, or otherwise make any services available, for any particular period of time; any representation, warranty or other obligation of Seller to provide pricing comparable to, or more favorable than, the pricing that Seller provides to others; any restriction of, or prohibition on, Seller’s ability to modify, change or discontinue any of its products, processes or services; or any waiver by Seller of any right to enforce any of the terms hereof).