Common use of Warranties and Remedies Clause in Contracts

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENT. SELLER SHALL NOT, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLER.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, BUYER ACKNOWLEDGES THAT COMPANY IS NOT A MANUFACTURER OF THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT EQUIPMENT AND THAT COMPANY HAS MADE NO REPRESENTATIONS OF ANY NATURE WHATSOEVER PERTAINING TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVEREQUIPMENT OR ITS PERFORMANCE, EITHER EXPRESS OR IMPLIED, INCLUDING THE INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR ANY A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED WARRANTIES RELATING TO THE REMEDIES PROVIDED IN SECTION 12 DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP OF THE AGREEMENTEQUIPMENT OR ITS PERFORMANCE, OR ANY WARRANTY OR AUTHORITY WITH RESPECT TO PATENT RIGHTS IF ANY, PERTAINING TO THE EQUIPMENT. SELLER SHALL NOTCOMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, OR DAMAGES OF ANY NATURE WHATSOEVER, RESULTING FROM THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATIONS, SERVICE OR USE OF ANY EQUIPMENT OR OTHERWISE. Company warrants that (i) it is the lawful owner of the Equipment, (ii) that it has not caused any lawful liens or encumbrances to be placed upon the Equipment, and (iii) that Company has the right to sell the Equipment. USED EQUIPMENT IS SOLD "AS IS" AND "WHERE IS." NEW AND REMANUFACTURED EQUIPMENT IS SOLD "AS IS." For new Equipment, Company will pass through any manufactures' limited warranties, but such limited warranties are not otherwise transferable or assignable without the written approval of the manufacturer. If Company installs the Equipment, then in addition to any remedies provided under the manufacturer's warranties that may be available to Customer, Company will repair or replace any Equipment that malfunctions due to a defect in manufacturing or installation that occurs within 30 days from the date of installation of the Equipment by Company in accordance with Company's standard service policy, provided the Equipment is being used to dispense products of Company. Any use, abuse, alteration or neglect of the Equipment in violation of the operating instructions or the provisions of this Agreement will render this limited warranty null and void. This limited warranty will not apply to any accidental damage to the Equipment. IN ANY CASENO EVENT WILL COMPANY, ITS SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY DAMAGES RESULTING FROM THE BREACH OF SUCH LIMITED WARRANTY. COMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, OR DAMAGES OF ANY NATURE WHATSOEVER, REGARDLESS OF CAUSE. After inspection by Company or its authorized repair agent, Company at its option will (i) SPECIALrepair a component that is found to be defective, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR or (ii) replace the component with a new or rebuilt component. Claims must be handled promptly by Customer. CLAIMS WILL BE DEEMED WAIVED UNLESS WRITTEN NOTICE OF SUCH CLAIM IS GIVEN TO COMPANY WITHIN 60 DAYS AFTER THE DATE ON WHICH THE CLAIMED DEFECT IS DISCOVERED. IN NO EVENT WILL ANY CLAIM OF ANY KIND BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH SUCH DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLERCLAIMED.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder willTHE LICENSED MATERIALS CONTAIN OR ARE BASED UPON CONTENT THAT IS AN UPDATED PERIODIC REFERENCE. RESELLER AND ITS LICENSORS RECEIVE DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, in all material respectsINCLUDING DRUG MANUFACTURERS AND GOVERNMENT AGENCIES. RESELLER AND ITS LICENSORS CANNOT, conform to the quality specifications set forth in Section 12 of the AgreementAND DO NOT, and that it shall deliver good and clear title to the ProductsINDEPENDENTLY REVIEW, VERIFY, TEST, INVESTIGATE OR SUBSTANTIATE ANY OF THE LICENSED MATERIALS DESCRIPTIONS OR OTHER CONTENT IN THE LICENSED MATERIALS FOR CORRECTNESS, ACCURACY, TIMELINESS OR COMPLETENESS, INCLUDING WITH RESPECT TO ANY LICENSED MATERIALS DESCRIPTIONS, PRICES, OR INFORMATION CONCERNING MEDICAL DEVICES, AND DISCLAIM ALL RESPONSIBILITY FOR ANY ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENTADDITION, THE FOREGOING SHALL LICENSED MATERIALS MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES, OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE LICENSED MATERIALS MAY COVER A WIDE RANGE OF PRESCRIPTION AND NON-PRESCRIPTION DRUGS, THE LICENSED MATERIALS DO NOT INCLUDE ALL DRUGS, VACCINES, DEVICES, AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION IS NOT AN INDICATION THAT THE DRUG, DOSAGE, OR DRUG COMBINATION IS SAFE, APPROPRIATE, OR EFFECTIVE FOR ANY PARTICULAR PATIENT. MOREOVER, THE LICENSED MATERIALS THAT MAY BE SELLER'S SOLE WARRANTY PROVIDED TO CUSTOMER MAY PROVIDE USEFUL INFORMATION ABOUT MEDICATIONS, BUT THE LICENSED MATERIALS ARE LIMITED AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE LICENSED MATERIALS ARE NOT INTENDED, AND CUSTOMER AGREES NOT TO RELY ON THE LICENSED MATERIALS, AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE. RESELLER AND ITS LICENSORS AND THEIR AFFILIATES MAKE AND CUSTOMER RECEIVES NO WARRANTY, CONDITION, OR REPRESENTATION WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVERLICENSED MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY RESELLER AND ITS LICENSORS, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF COMPREHENSIVENESS, SATISFACTORY QUALITY, SUITABILITY, AVAILABILITY, PERFORMANCE, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). RESELLER AND ITS LICENSORS MAKE NO WARRANTY THAT THE LICENSED MATERIALS SATISFY GOVERNMENT REGULATIONS REQUIRING DISCLOSURE ABOUT PRESCRIPTION DRUG CONTENT OR THAT ANY CODES, PRICES, OR OTHER DATA CONTAINED IN THE LICENSED MATERIALS ARE ACCURATE, IT BEING UNDERSTOOD THAT THE INFORMATION REFLECTING PRICES IS NOT QUOTATION OR AN OFFER TO SELL OR PURCHASE AND DOES NOT NECESSARILY REPRESENT THE ACTUAL PRICES CHARGED OR PAID IN A SINGLE TRANSACTION OR GROUP OF TRANSACTIONS. NO EMPLOYEE, CONSULTANT, REPRESENTATIVE OR AGENT OF RESELLER OR ITS LICENSORS IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES AND LIMITATIONS CONTAINED IN THIS AGREEMENT. RESELLER AND ITS LICENSORS DO NOT ASSUME, AND EXPRESSLY DISCLAIM, ANY OBLIGATION TO OBTAIN AND INCLUDE ANY INFORMATION OTHER THAN THAT PROVIDED IN THE LICENSED MATERIALS. BY MAKING THE LICENSED MATERIALS AVAILABLE, RESELLER AND ITS LICENSORS ARE NOT ENDORSING OR ADVOCATING THE USE OF MERCHANTABILITY ANY CONTENT OR INFORMATION DESCRIBED IN THE LICENSED MATERIALS, NOR ARE THEY RESPONSIBLE FOR MISUSE OF LICENSED MATERIALS DUE TO, OR OTHER CONSEQUENCE OF, ANY TYPOGRAPHICAL ERROR OR OTHER INACCURACY. ADDITIONAL INFORMATION ON ANY LICENSED MATERIALS MAY BE OBTAINED FROM THE MANUFACTURER. RESELLER AND FITNESS ITS LICENSORS DO NOT WARRANT THAT THE LICENSED MATERIALS (OR ANY SERVICES) WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. FURTHERMORE, RESELLER AND ITS LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSED MATERIALS. LICENSED MATERIALS MAY BE PROVIDED WITH THIRD PARTY PLUG-INS OR OTHER THIRD PARTY SOFTWARE, OR MAY BE PROVIDED AS A PLUG-IN FOR, OR OTHERWISE IN ASSOCIATION WITH, THIRD PARTY SOFTWARE. USE OF ANY SUCH THIRD PARTY SOFTWARE WILL BE GOVERNED BY THE APPLICABLE LICENSE AGREEMENT, IF ANY, WITH SUCH THIRD PARTY. RESELLER AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY PARTICULAR PURPOSETHIRD PARTY SOFTWARE AND WILL HAVE NO LIABILITY OF ANY KIND FOR CUSTOMER'S OR AUTHORIZED USERS' USE OF SUCH SOFTWARE AND MAKE NO WARRANTIES WITH RESPECT THERETO. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED CUSTOMER ACKNOWLEDGES THAT ACCESS TO THE REMEDIES PROVIDED LICENSED MATERIALS MAY BE SUBJECT TO DELAYS, LATENCY ISSUES, AND LIMITATIONS INHERENT IN SECTION 12 THE USE OF THE AGREEMENTINTERNET AND ELECTRONIC COMMUNICATIONS, AND THAT RESELLER AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY OF THE FOREGOING ISSUES. SELLER SHALL NOTAT TIMES, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECT, ACTIONS OR CONSEQUENTIAL DAMAGESINACTIONS BY THIRD PARTIES PROVIDING INTERNET SERVICE, INCLUDING CLAIMS FOR LOST PROFITS HOSTING COMPANIES ENGAGED BY RESELLER AND ITS LICENSORS, MAY AFFECT IMPAIR OR LOST BUSINESS OPPORTUNITIESDISRUPT INTERNET CONNECTIONS AND THE SITE ON WHICH THE LICENSED MATERIALS MAY BE MADE AVAILABLE. RESELLER AND ITS LICENSORS DO NOT GUARANTY THAT SUCH EVENTS WILL NOT OCCUR AND DISCLAIM ANY AND ALL LIABILITY RESULTING FROM SUCH EVENTS, DOWNTIME USE OF OR CLAIMS ACCESS TO THE LICENSED MATERIALS OR THAT USE OF THE LICENSED MATERIALS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS ONCE THE LICENSED MATERIALS LEAVE THE CONTROL OF RESELLER AND ITS LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY, AND CUSTOMER MAY HAVE OTHER LEGAL RIGHTS RELATED TO THIS AGREEMENT THAT MAY VARY BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLERJURISDICTION.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder willthat, at the time of delivery, the goods covered hereby are new, and free of defects in material and workmanship, but makes no other warranty with respect to such products. Seller agrees, as Seller shall elect, to credit the account of Buyer or replace without charge to Buyer all goods which at the time of delivery are not in such condition, but only if Buyer returns such goods within six (6) months from the date of delivery, in all material respectsoriginal package and condition of delivery, conform without their numbers or any part thereof altered, defaced, or removed, to the quality specifications set forth Seller’s plant of shipment, accompanied by a specification in Section 12 writing of the Agreementdefects involved. In no event shall Seller’s liability hereunder exceed the Buyer’s purchase price. Buyer shall notify Seller in each instance when Xxxxx intends to return goods which Xxxxx believes are not in accordance with such original condition and Seller shall be entitled to examine such goods at Buyer’s facilities prior to their return. Final inspections and conclusive determination whether goods are in accordance with such original condition shall be made at Seller’s plant, and that it shall deliver good and clear title to or may be based upon the Productsmanufacturer’s actual test report. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SELLER’S SOLE LIABILITY SHALL BE SELLER'S SOLE WARRANTY TO CREDIT THE ACCOUNT OF BUYER OR TO REPLACE GOODS WHICH ARE NOT IN ACCORDANCE WITH RESPECT TO SUCH ORIGINAL CONDITION IN ACCORDANCE WITH THE PRODUCTS SUPPLIED HEREUNDERTERMS HEREOF. SELLER MAKES The foregoing remedy as provided herein shall be the sole and exclusive remedy of the Buyer. THERE ARE NO OTHER WARRANTY OF ANY KIND WHATSOEVERWARRANTIES, EXPRESS OR IMPLIEDIMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), INCLUDING THE WARRANTIES WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND OR OF FITNESS FOR ANY PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY , WHICH EXTEND BEYOND THOSE EXPRESSLY PROVIDED FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED TO ON THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENTFACE HEREOF. SELLER SHALL NOT, IN ANY CASE, NOT BE LIABLE FOR (i) SPECIALANY DAMAGES DUE TO DELAY IN DELIVERIES, INDIRECTSERVICE, USE OF EQUIPMENT OR OTHER PERFORMANCE AS SPECIFIED IN THIS AGREEMENT AND SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL OR CONSEQUENTIAL OR OTHER DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLER.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN PLANSOURCE WARRANTS THAT DURING THE TERM OF THIS AGREEMENT, IT SHALL PERFORM THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDERSERVICES UNDER THIS AGREEMENT USING COMMERCIALLY REASONABLE EFFORT. SELLER MAKES NO PLANSOURCE SPECIFICALLY DISCLAIMS AND EXCLUDES ALL OTHER WARRANTY OF ANY KIND WHATSOEVERWARRANTIES, EXPRESS OR IMPLIED, INCLUDING INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY CUSTOMER UNDERSTANDS AND BUYER'S SOLE REMEDY AGREES THAT THE USE OF THE SOFTWARE MAY FROM TIME TO TIME BE INTERRUPTED AND PLANSOURCE AND ITS LICENSORS MAKES NO WARRANTY OR REPRESENTATION TO CUSTOMER THAT THE SOFTWARE SHALL BE FUNCTIONAL AND AVAILABLE AT ALL TIMES. NOTWITHSTANDING THE FOREGOING, SCHEDULED MAINTENANCE MAY OCCUR FROM TIME TO TIME, OF WHICH PLANSOURCE SHALL NOTIFY CUSTOMER DIRECTLY OR THROUGH CUSTOMERS AGENT AT LEAST FORTY-EIGHT (48) HOURS IN ADVANCE. THE PLANSOURCE SOLUTION SHALL BE OPERATIONAL 98.00%. “DOWNTIME PERIOD” SHALL NOT INCLUDE INTERMITTENT DOWNTIME FOR NONCONFORMING PRODUCTPERIODS OF LESS THAN TEN (10) CONSECUTIVE MINUTES, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACTSERVICE SUSPENSION, OR SOLUTION ACCESS FOR REASONS BEYOND PLANSOURCE’S REASONABLE CONTROL INCLUDING, BUT NOT LIMITED TO, ACTS OF ANY GOVERNMENTAL BODY, WAR, INSURRECTION, TERRORIST ATTACKS OR ACTIVITY, SABOTAGE, EMBARGO, FIRE, HURRICANE, FLOOD, STRIKE OR OTHER THEORY LABOR DISTURBANCE, UNAVAILABILITY OF RECOVERYINTERRUPTION OF OR DELAY IN TELECOMMUNICATIONS OR THIRD PARTY SERVICES, SHALL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 ACTIONS OR INACTIONS OF THE AGREEMENT. SELLER SHALL NOTCUSTOMER, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECTPERFORMANCE ISSUES RESULTING FROM CUSTOMER’S EQUIPMENT AND/OR THIRD PARTY EQUIPMENT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGEFAILURE OF THIRD PARTY SOFTWARE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, CUSTOMER SHALL NOT BE BINDING UPON SELLERENTITLED TO RECOVER FOR ANY LOSSES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, WHICH MAY RESULT FROM SUCH INTERRUPTION OF AVAILABILITY OF THE SOFTWARE.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the ProductsAll CONSUMER REPORTS ARE PROVIDED “AS IS”. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER FAESC MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY , AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCTIMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE WITH RESPECT TO THE ACCURACY, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACTVALIDITY, OR COMPLETENESS OF ANY OTHER THEORY OF RECOVERYCONSUMER REPORT, SHALL THAT WILL MEET END-USER’S NEEDS, OR THAT WILL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENTON AN UNINTERRUPTED BASIS, AND FAESC EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. SELLER SHALL NOT, IN ANY CASE, FAESC WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES FOR LOSS OF PROFITS, WHETHER INCURRED AS A RESULT OF NEGLIGENCE OR OTHERWISE, EVEN IF FAESC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, FAESC AGREES TO BE RESPONSIBLE FOR ACTUAL DAMAGES TO THE EXTENT OF AND MAXIMUM STATED HEREIN FOR THIRD PARTY CLAIMS DIRECTLY RESULTING FROM FAESC’S SOLE NEGLIGENCE IN ASSEMBLING THE CONSUMER REPORT. FAESC’s maximum aggregate liability for damages in connection with Consumer Reports will not exceed an amount equal to the price paid by End-User to FAESC for such Consumer Report at issue. End-User shall indemnify, defend and hold harmless FAESC from and against any and all claims, suits, proceedings, damages, costs, expenses (including, Client Initials: /s/ PSK without limitation, reasonable attorneys’ fees and court costs) brought against, or suffered by, any third party arising or resulting from, or otherwise in connection with End-User’s: i) SPECIALuse of the Consumer Reports, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSONbreach of any of its representations, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLERwarranties, WHICH ARE INCONSISTENT HEREWITHor agreements as stated herein, SHALL NOT BE BINDING UPON SELLERand/or iii) NEGLIGENCE or WILLFUL misconduct.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MES MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVERWARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES WHETHER IN TORT, CONTRACT, BY STATUTE OR OTHERWISE, AND PARTICULARLY MAKES NO WARRANTY OF MERCHANTABILITY AND OR FITNESS FOR ANY PARTICULAR PURPOSEPURPOSE WHATSOEVER, IN REGARD TO ANY WORK SOLD BY MES. SELLER'S SOLE LIABILITY IF WITHIN 15 DAYS FROM THE DATE OF DELIVERY OF THE WORK, PURCHASER GIVES WRITTEN NOTICE TO MES THAT SUCH WORK MATERIALLY FAILS TO MEET ANY WRITTEN AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCTMUTUALLY-AGREED SPECIFICATION, WHETHER BASED UPON NEGLIGENCEMES MAY, STRICT LIABILITYAT THE ITS OPTION, BREACH OF CONTRACTREPLACE THE WORK, REFUND THE PURCHASE PRICE TO PURCHASER, OR REDO THE WORK, WHICH SHALL BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER. PURCHASER HEREBY WAIVES ANY OTHER THEORY OF RECOVERYREMEDIES AVAILABLE AT LAW, SHALL BE INCLUDING BUT NOT LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 ANY CLAIMS FOR OTHER LOSS OR DAMAGE OF THE AGREEMENT. SELLER SHALL NOTANY TYPE, IN INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, DOWN TIME, DEMURRAGE, DETENTION, LABOR COSTS, REPAIR COSTS, INSTALLATION OF REPLACEMENT MATERIAL, INCONVENIENCE, COST OF RENTAL OR REPLACEMENT EQUIPMENT, FAILURE OF MARINE OR OTHER EQUIPMENT TO OPERATE FOR ANY CASEPERIOD OF TIME, BE LIABLE FOR (i) OTHER ECONOMIC OR COMMERCIAL LOSS, OR DIRECT, IMMEDIATE, SPECIAL, INDIRECTINCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLER.