Common use of Liability and Warranty Clause in Contracts

Liability and Warranty. 7.1 DIP shall assume all liability for any loss of Products and/or raw materials used to manufacture Products which result from DIP’s failure to manufacture Products in accordance with Specifications, including damages directly incurred by ECOC and/or its customer(s) as a result of such failure. DIP shall have no liability for performance issues or product defects which arise with respect to the Products which are manufactured in accordance with Specifications and quality control procedures and which do not result from the failure of Products to conform to these Specifications. 7.2 Except as specifically provided in this Article VII, DIP makes no warranty of any kind, express or implied, including the warranties of merchantability and fitness for a particular purpose, other than the warranty that the Products are in accordance with the specifications recited in the applicable Addendum. IN PARTICULAR, IN NO EVENT SHALL DIP BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE, OR INABILITY TO USE, THE PRODUCTS MANUFACTURED HEREUNDER, WHETHER SUCH CLAIM ALLEGES BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE AND WHETHER OR NOT DIP KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE. 7.3 ECOC shall defend and indemnify DIP against any claims from third parties which allege damage, loss or injury arising out of the use of the Products, unless the damage, loss or injury is due DIP’s breach of this Agreement or the failure of DIP to manufacture Products in conformance with applicable Specifications. 7.4 DIP agrees to defend, indemnify and hold ECOC harmless from and against any and all claims, actions, demands, damages, liability, losses, fines, penalties, costs and expenses (including reasonable attorneys’ fees) to the extent relating to or arising out of (i) a breach of this Agreement by DIP, its employees, agents, representatives, or contractors; (ii) the failure of DIP to manufacture Products in conformance with Specifications; (iii) the willful misconduct of DIP, its employees, agents, representative, or contractors; or (iv) a claim alleging that the services provided by DIP infringe and/or misappropriate another’s patent, trademark, copyright, trade dress, trade secret or other intellectual property right, expect to the extent that such claims arise from allegations that the Product itself infringes the intellectual property rights of any third party.

Liability and Warranty. 7.1 DIP 9.1 Red Badger warrants that: 9.1.1 it shall assume all supply the Services with reasonable skill and care; 9.1.2 the Services shall be supplied as set out in the Work Order and these terms and conditions; 9.1.3 it shall not infringe any third party intellectual property rights (subject to 9.2 below) in the Deliverables (except insofar as any such infringement results from use of the Client Materials) created by Red Badger. 9.2 Red Badger gives no warranty or representation in connection with any unpublished patent or any patent of which it is not and should not be reasonably aware without making specific enquiry. 9.3 Nothing in the Agreement shall exclude or limit liability for fraud or death or personal injury caused by negligence. 9.4 Subject to clause 9.3 above, the aggregate liability of Red Badger to the Client for any and all loss or damage direct or otherwise and howsoever caused whether in tort, contract or otherwise, that is not or cannot be excluded shall not exceed the level of 125% of the Fees payable to Red Badger under the Work Order. 9.5 Subject to clauses 9.3 and 9.4, Red Badger shall not be liable for and gives no warranty or representation in respect of: (a) any indirect, (b) incidental, (c) special or consequential loss or damage, (d) loss of Products and/or raw materials used to manufacture Products which result from DIP’s profits, (e) business, (f) revenue, (g) data or use, incurred by Client or any third party, whether in an action in contract or tort or otherwise; 9.6 Red Badger will not be liable in any amount for failure to manufacture Products in accordance with Specificationsperform any obligation hereunder if such is caused by the occurrence of any unforeseen contingency beyond the control or reasonable control of Red Badger including Internet, including damages directly incurred by ECOC and/or its customer(s) as a result communications and power outages, fire, flood, war or act of such failure. DIP shall have no liability for performance issues or product defects which arise with respect God. 9.7 Each of Red Badger and Client represents, warrants and undertakes to the Products which are manufactured in accordance with Specifications other that it has the requisite power and quality control procedures authority to enter into these terms and which do not result from the failure of Products conditions and a Work Order and to conform to these Specificationsperform fully its obligations hereunder. 7.2 9.8 Except as specifically provided expressly stated in this Article VIIthese terms and conditions, DIP makes no Red Badger does not give any other warranty in respect of any kindthe Services or Deliverables and all other warranties, whether express or implied, including the warranties of merchantability and fitness for a particular purpose, other than the warranty that the Products are in accordance with the specifications recited in the applicable Addendum. IN PARTICULAR, IN NO EVENT SHALL DIP BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE, OR INABILITY TO USE, THE PRODUCTS MANUFACTURED HEREUNDER, WHETHER SUCH CLAIM ALLEGES BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE AND WHETHER OR NOT DIP KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE. 7.3 ECOC shall defend and indemnify DIP against any claims from third parties which allege damage, loss or injury arising out of the use of the Products, unless the damage, loss or injury is due DIP’s breach of this Agreement or the failure of DIP to manufacture Products in conformance with applicable Specifications. 7.4 DIP agrees to defend, indemnify and hold ECOC harmless from and against any and all claims, actions, demands, damages, liability, losses, fines, penalties, costs and expenses (including reasonable attorneys’ fees) excluded to the fullest extent relating to or arising out of (i) a breach of this Agreement permitted by DIP, its employees, agents, representatives, or contractors; (ii) the failure of DIP to manufacture Products in conformance with Specifications; (iii) the willful misconduct of DIP, its employees, agents, representative, or contractors; or (iv) a claim alleging that the services provided by DIP infringe and/or misappropriate another’s patent, trademark, copyright, trade dress, trade secret or other intellectual property right, expect to the extent that such claims arise from allegations that the Product itself infringes the intellectual property rights of any third partylaw.

Liability and Warranty. 7.1 DIP 16.1 All TiO2 sold by Huntsman Tioxide to ICI pursuant to this Agreement shall assume conform in all liability for any loss respects to its specification at the time of Products and/or raw materials used to manufacture Products which result from DIP’s failure to manufacture Products in accordance with Specifications, including damages directly incurred by ECOC and/or its customer(s) as a result of such failuredelivery. DIP shall have no liability for performance issues or product defects which arise with respect to the Products which are manufactured in accordance with Specifications and quality control procedures and which do not result from the failure of Products to conform to these Specifications. 7.2 Except as specifically provided in this Article VII, DIP Huntsman Tioxide makes no other representation or warranty of any kind, express or implied, including the warranties of as to reasonable quality, merchantability and or fitness for a particular purposepurpose or any other matter with respect to TiO2 sold pursuant to this Agreement. 16.2 Any claim by ICI which is based on the failure of TiO2 delivered under this Agreement to correspond with its specification shall (whether or not delivery is refused by ICI) be notified to Huntsman Tioxide within 90 days from the date of usage. If delivery is not refused, other than the warranty that the Products are and ICI does not notify Huntsman Tioxide in accordance with this Clause 16.2, ICI shall not be entitled to reject the specifications recited goods and Huntsman Tioxide shall have no liability, and ICI shall be bound to pay the price as if the goods had been delivered in the applicable Addendum. IN PARTICULAR, IN NO EVENT SHALL DIP BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES ARISING OUT OF THE USE, OR INABILITY TO USE, THE PRODUCTS MANUFACTURED HEREUNDER, WHETHER SUCH CLAIM ALLEGES BREACH OF WARRANTY, NEGLIGENCE OR ANY OTHER CAUSE AND WHETHER OR NOT DIP KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGEaccordance with this Agreement. 7.3 ECOC 16.3 Other than as expressly set out in Clauses 16.1 and 16.2 above and except in respect of death or personal injury caused by Huntsman Tioxide's negligence, Huntsman Tioxide shall defend and indemnify DIP against not be liable to ICI by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law for any costs, expenses or other claims from third parties for compensation whatsoever (whether caused by negligence of Huntsman Tioxide, its employees or agents or otherwise) which allege damage, loss or injury arising arise out of or in connection with the supply of TiO2 or their use or resale by ICI, and the entire liability of the Products, unless the damage, loss Huntsman Tioxide under or injury is due DIP’s breach of in connection with this Agreement or the failure shall not exceed [+++++] for each incident giving rise to a [CONFIDENTIAL TREATMENT REQUESTED] claim and shall in any event not exceed [+++++] aggregate in respect of DIP to manufacture Products incidents occurring in conformance with applicable Specificationsany Contract Year. 7.4 DIP agrees to defend16.4 Each party acknowledges that, indemnify in entering into this Agreement, it does not do so on the basis of or rely on any representation, warranty or other provision except as expressly provided in this Agreement, and hold ECOC harmless from and against any and accordingly all claimsconditions, actions, demands, damages, liability, losses, fines, penalties, costs and expenses (including reasonable attorneys’ fees) warranties or other terms implied by Statute or Common Law are hereby excluded to the fullest extent relating to or arising out of (i) a breach of this Agreement permitted by DIP, its employees, agents, representatives, or contractors; (ii) the failure of DIP to manufacture Products in conformance with Specifications; (iii) the willful misconduct of DIP, its employees, agents, representative, or contractors; or (iv) a claim alleging that the services provided by DIP infringe and/or misappropriate another’s patent, trademark, copyright, trade dress, trade secret or other intellectual property right, expect to the extent that such claims arise from allegations that the Product itself infringes the intellectual property rights of any third partylaw.