REMEDY FOR BREACH OF WARRANTY 3.1. Subject to the exclusions and limitations set out above, if the Product fails to comply with the Limited Warranty in clauses 1.2 or 1.3, BYD will repair or replace the non-conforming Product or parts thereof within the warranty term at no charge (or provide a partial refund) on the following conditions.
3.2. Whether to repair or replace the Product will be determined by BYD in its sole discretion.
3.3. The Product or any of its parts to be replaced will have the same performance and reliability as the original Product. If the Production of the relevant type of the Product or any of its parts has been discontinued, withdrawn from the market, or are otherwise unavailable, BYD may replace the Product or parts with a similar Product or part (which may include previously used parts that are equivalent to new in performance and reliability).
3.4. If BYD does not repair or replace the defective Product or parts, BYD will refund You an amount of money calculated as follows:
a) If the Product fails to comply with the Limited Performance Warranty in clause 1.3, BYD may calculate the refund using one of the two refund formulas below:
i) Refund = maximum claim amount* x (warranted Minimum Throughput Energy - output energy of the Product recorded in the control module of the Product)/ warranted Minimum Throughput Energy; or
ii) Refund = maximum claim amount* x (warranted remaining Useable Energy - remaining Useable Energy)/ warranted Usable Energy; and
b) If the Product cannot be operated, BYD will calculate the refund as follows: Refund = (maximum claim amount*/120) x (120 - number of months since Warranty Start Date). *The maximum claim amount is the market value of the Product (or an equivalent Product) determined by BYD if it were purchased new with no defects.
3.5. The remedies as set out above are the sole and exclusive obligations of BYD to You under this Limited Warranty, and BYD will have no other liability to You if the Product fails to comply with the Limited Warranty.
Indemnification Survival (a) From and after the date hereof, Warrantholder will indemnify and hold harmless CSC and CSC’s officers, directors, employees and agents against any and all liability, damage, deficiency, loss, cost or expense (including reasonable attorneys’ fees and expenses) that are based upon or that arise out of any misrepresentation or breach of any warranty or agreement made by Warrantholder in this Agreement.
(b) From and after the date hereof, CSC will indemnify and hold harmless Warrantholder and Warrantholder’s employees and agents against any and all liability, damage, deficiency, loss, cost r expense (including reasonable attorneys’ fees and expenses) that are based upon or that arise out of any misrepresentation or breach of any warranty or agreement made by CSC in this Agreement.
(c) Each party (the “Indemnified Party”) entitled to indemnification under this Agreement shall give prompt notice to the party (the “Indemnifying Party”) required to provide indemnification under this Agreement after such Indemnified Party has received actual knowledge of any third-party claim as to which indemnity may be sought, and shall permit the Indemnifying Party (at Indemnifying Party’s expense) to assume the defense of any claim or any litigation resulting therefrom; provided, that counsel for the Indemnifying Party who shall conduct the defense of such claim or litigation, shall be reasonably satisfactory to the Indemnified Party, and the Indemnified Party may participate in such defense, but only at such Indemnified Party’s expense; and provided, further, that the omission by any Indemnified Party to give prompt notice as provided herein shall not relieve the Indemnifying Party of its indemnification obligations under this Agreement, except to the extent that the omission results in a failure of actual prompt notice to the Indemnifying Party and such Indemnifying Party is damaged as a result of the failure to give prompt notice. No Indemnifying Party, in the defense of the such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to such Indemnified Party of a release from all liability with respect to such claim or litigation. In the event that the Indemnifying Party does not accept the defense of any matter as above provided, the Indemnified Party shall have the full right to defend against any such claim or demand and shall be entitled to settle or agree to pay in full such claim or demand in the Indemnified Party’s sole and reasonable discretion, all at the Indemnifying Party’s expense. In any event, Warrantholder and CSC shall cooperate in the defense of any such action and the records of each shall be available to the other with respect to such defense.
(d) Any notice of a claim by reason of any of the representations, warranties and agreements contained in this Agreement, shall state specifically the representation, warranty, covenant or agreement with respect to which the claim is made and the amount of liability asserted against the other party by reason of the claim. The representations, warranties, covenants, agreements and indemnities contained in this Agreement shall survive the execution and delivery of this Agreement, any examination on behalf of such parties, the Closing and the completion of the transactions contemplated herein.
Non-Survival The representations and warranties made herein shall not survive the termination of this Agreement.
Breach of Warranties In the event of any breach, or reasonably anticipated breach, of any of the foregoing warranties, in addition to any other remedies available at law or in equity, Exodus will have the right immediately, in Exodus' sole discretion, to suspend any related Internet Data Center Services if deemed reasonably necessary by Exodus to prevent any harm to Exodus and its business.
Indemnification and Survival Without limitation on any other obligations of the Guarantor or remedies of the Agent and the Lenders under this Guaranty, the Guarantor shall, to the fullest extent permitted by law, indemnify, defend and save and hold harmless the Agent and the Lenders from and against, and shall pay on demand, any and all damages, losses, liabilities and expenses (including reasonable attorneys’ fees and expenses and the allocated cost and disbursements of internal legal counsel) that may be suffered or incurred by the Agent and the Lenders in connection with or as a result of any failure of any Guaranteed Obligations to be the legal, valid and binding obligations of the Borrower enforceable against the Borrower in accordance with their terms. The obligations of the Guarantor under this paragraph shall survive the payment in full of the Guaranteed Obligations and termination of this Guaranty.
Breach of Specific Covenants Borrower shall fail or neglect to perform, keep or observe any covenant contained in Sections 5.2, 5.3, 6.1.1, 6.1.2, 6.2.5, 6.2.6, 8.1, 8.2 or 8.3 hereof on the date that Borrower is required to perform, keep or observe such covenant.
Breach Waiver Any waiver by the Client of a breach of any section of this Agreement by the Contractor shall not operate or be construed as a waiver of any subsequent breach by the Contractor.
Survival of Warranties and Indemnifications All warranties and indemnifications will survive the termination of this Agreement.
Non-exclusive Remedy; Survival The indemnification and contribution provided for under this Agreement shall be in addition to any other rights to indemnification or contribution that any indemnified party may have pursuant to law or contract and shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling Person of such indemnified party and shall survive the transfer of Registrable Securities and the termination or expiration of this Agreement.
Breach of Warranty Any representation or warranty made at any time by any of the Loan Parties herein or by any of the Loan Parties in any other Loan Document, or in any certificate, other instrument or statement furnished pursuant to the provisions hereof or thereof, shall prove to have been false or misleading in any material respect as of the time it was made or furnished;
