Limited Warranty and Limitation of Remedies. A. PROGENICS warrants to DUPONT that all Product meets the specifications stated in Exhibit A and is free of defects in Material and manufacture at the time of shipment. If any Product is proven to be defective in material or manufacture, PROGENICS' entire liability and DUPONT's exclusive remedy will be, at PROGENICS' option, either replacement of the Product, or refund of the purchase price paid by DUPONT for the defective Product, within a reasonable time after written notification of the defect and return of the defective Product to PROGENICS. Notices of defect must be received by PROGENICS within 60 days of DUPONT's receipt of notice of a defect from the customer. B. THE WARRANTY STATED IN PARAGRAPH 6-A IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING OR OF PERFORMANCE, CUSTOM OR USAGE OF TRADE, EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENT. C. PROGENICS has no obligations under this warranty with respect to Products that have been modified or damaged through misuse, abuse, accident, neglect, improper storage or mishandling by DUPONT, or if DUPONT holds Product in storage beyond the natural age of the Product. D. PROGENICS warrants and represents that (i) Product does not constitute the subject matter of any currently pending litigation and PROGENICS is not aware as of the effective date of this Agreement of any litigation contemplated by PROGENICS or any other third party with respect to the subject matter of this Agreement and (ii) sale and use of Product will not infringe any third party patents and that any patent rights necessary for DUPONT and its customers to use and sell Product have been acquired by PROGENICS. No warranty or representation is made with respect to use of Product for purposes other than research or for use in combination with other products.
Appears in 3 contracts
Samples: Gp120 Supply Agreement (Progenics Pharmaceuticals Inc), Gp120 Supply Agreement (Progenics Pharmaceuticals Inc), Gp120 Supply Agreement (Progenics Pharmaceuticals Inc)
Limited Warranty and Limitation of Remedies. A. PROGENICS (a) PM Devices warrants to DUPONT Distributor only that all Product meets the specifications stated in Exhibit A and is free of defects in Material and manufacture Products, at the time of shipmentshipment to Distributor under this Agreement, shall be:
(1) Free from material defects in design, materials and workmanship; and
(2) In compliance with all United States laws and regulations pertaining to the design, materials and workmanship of such products. If In order to receive the exclusive remedies specified in this Section 7(a) below, claims by Distributor concerning any Product is proven to non-compliance with the above express warranties shall be defective made in material or manufacture, PROGENICS' entire liability writing and DUPONT's exclusive remedy will be, at PROGENICS' option, either replacement of the Product, or refund of the purchase price paid by DUPONT for the defective Product, within a reasonable time after written notification of the defect and return of the defective Product to PROGENICS. Notices of defect must shall be received by PROGENICS PM Devices within 60 days the stated Shelf-Life of DUPONT's receipt of notice of a defect from the customer.
B. Products by PM Devices to Distributor. THE WARRANTY STATED IN PARAGRAPH 6-A IS MADE EXPRESS WARRANTIES ABOVE ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, THE IMPLIED WARRANTY OF DURABILITY AND FITNESS FOR PURPOSE (INCLUDING FITNESS FOR A PARTICULAR PURPOSE) AND WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING. Other than the express warranties specified above and any express written warranties provided directly to end users by PM Devices, any description of the Products, whether in writing or made orally by PM Devices, and any specifications, samples, models, bulletins, drawing, diagrams, or similar material provided by PM Devices and used in connection with the Products are for the sole purpose of identifying the Products and shall not be construed as a warranty or representation in favour of Distributor. PM DEVICES AND DISTRIBUTOR SPECIFICALLY EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS TO THIS AGREEMENT AND TO THE PURCHASE AND SALE OF THE PRODUCTS HEREUNDER.DISTRIBUTOR’S EXCLUSIVE REMEDY AND PM DEVICES’ SOLE LIABILITY FOR ANY IMPLIED WARRANTY BREACH OF THE EXPRESS WARRANTIES DESCRIBED IN THIS SECTION 7.(a) SHALL BE, AT PM DEVICES’ ELECTION, REPLACEMENT OF SUCH PRODUCTS BY PM DEVICES OR A REFUND OF THE INITIAL PURCHASE PRICE RECEIVED BY PM DEVICES FOR SUCH PRODUCTS. PM DEVICES SHALL NOT BE SUBJECT TO AND EXPRESSLY DISCLAIMS ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF A COURSE BREACH OF DEALING WARRANTY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR CONTINGENT DAMAGES; AND WITHOUT LIMITING THE GENERALITY OF PERFORMANCETHE FOREGOING, CUSTOM EACH PARTY SPECIFICALLY DISCLAIMS ANY LIABILITY FOR DAMAGES FOR LOST PROFITS OR USAGE REVENUES, LOSS OF TRADE, EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENTREPUTATION OR GOODWILL OR ANY OTHER ECONOMIC LOSS.
C. PROGENICS has (b) The cumulative aggregate liability of PM Devices to Distributor for all claims relating to the Products or otherwise in respect of this Agreement or any transactions contemplated by this Agreement, shall in no event exceed the lesser of:
(1) the total proven direct damages actually suffered by Distributor which PM Devices is liable for hereunder; or
(2) the sum of $2,000,000 (Cdn. Funds). The above limitation on liability applies regardless of the cause of action, including contract (including fundamental breach), tort (including negligence), product liability, strict liability, infringement of third party intellectual property rights or other third party claims against Distributor. PM Devices shall not be liable to Distributor for any Products damaged, mishandled or improperly shipped or stored by Distributor or any person acting under direction or authorization of Distributor, or for any Products tampered with or to which Distributor or any person acting under direction or authorization of Distributor made changes in fabrication, assembly or otherwise.
(c) Subject as set out in Section 7(b), PM Devices shall defend and hold Distributor and its affiliates harmless from any and all claims, demands, actions, liabilities, damages, judgments, liens, costs, losses and expenses (including reasonable legal expenses) (collectively “Claims”) which may be suffered or incurred by Distributor or its affiliates arising from or related to any non-frivolous investigation or proceeding made by a third party (including any governmental authority) alleging any defect in the Products, including its design, materials or workmanship, any breach of warranty made by PM Devices to Distributor or to a third party or any material failure of PM Devices to perform and observe its obligations under this warranty with respect to Products Agreement, provided that have been modified or damaged through misuse, abuse, accident, neglect, improper storage or mishandling by DUPONT, or if DUPONT holds Product in storage beyond the natural age Distributor gives PM Devices written notice of the Product.
D. PROGENICS warrants Claim with sufficient promptness to avoid any adverse effect on PM Devices’ ability to defend the Claim; allows PM Devices to assume control of the defence and represents that (i) Product settlement of the Claim; reasonably assists and cooperates with PM Devices in connection with the defence and settlement of the Claim at PM Devices’ expense; and does not constitute settle the subject matter Claim without PM Devices’ prior written consent. This paragraph shall not apply to any Claims arising out of:
(1) any intentional wrongful act or omission or gross negligence of any currently pending litigation and PROGENICS is not aware as of the effective date of this Agreement of any litigation contemplated by PROGENICS Distributor or any third party; (2) any failure to transport, store, install, use, operate or maintain the Products in accordance with the reasonable applicable specifications, instructions, manuals and other third party documentation provided by PM Devices or any Products damaged, tampered with respect to the subject matter of this Agreement and (ii) sale and use of Product will not infringe or changed in fabrication or assembly or otherwise by any third party patents and that any patent rights necessary for DUPONT and its customers to use and sell Product have been acquired by PROGENICS. No warranty or representation is made with respect to use of Product for purposes person other than research PM Devices or for use in combination any person doing so with other products.the express authorization of PM Devices ; or
Appears in 1 contract
Samples: Distribution Agreement (Neovasc Inc)
Limited Warranty and Limitation of Remedies. A. PROGENICS (a) PM Devices warrants to DUPONT Distributor only that all Product meets the specifications stated in Exhibit A and is free of defects in Material and manufacture Products, at the time of shipmentshipment to Distributor under this Agreement, shall be:
(1) Free from material defects in design, materials and workmanship; and
(2) In compliance with all United States laws and regulations pertaining to the design, materials and workmanship of such products. If In order to receive the exclusive remedies specified in this Section 7(a) below, claims by Distributor concerning any Product is proven to non-compliance with the above express warranties shall be defective made in material or manufacture, PROGENICS' entire liability writing and DUPONT's exclusive remedy will be, at PROGENICS' option, either replacement of the Product, or refund of the purchase price paid by DUPONT for the defective Product, within a reasonable time after written notification of the defect and return of the defective Product to PROGENICS. Notices of defect must shall be received by PROGENICS PM Devices within 60 days the stated Shelf-Life of DUPONT's receipt of notice of a defect from the customer.
B. Products by PM Devices to Distributor. THE WARRANTY STATED IN PARAGRAPH 6-A IS MADE EXPRESS WARRANTIES ABOVE ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, THE IMPLIED WARRANTY OF DURABILITY AND FITNESS FOR PURPOSE (INCLUDING FITNESS FOR A PARTICULAR PURPOSE) AND WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING. Other than the express warranties specified above and any express written warranties provided directly to end users by PM Devices, any description of the Products, whether in writing or made orally by PM Devices, and any specifications, samples, models, bulletins, drawing, diagrams, or similar material provided by PM Devices and used in connection with the Products are for the sole purpose of identifying the Products and shall not be construed as a warranty or representation in favour of Distributor. PM DEVICES AND DISTRIBUTOR SPECIFICALLY EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS TO THIS AGREEMENT AND TO THE PURCHASE AND SALE OF THE PRODUCTS HEREUNDER.DISTRIBUTOR’S EXCLUSIVE REMEDY AND PM DEVICES’ SOLE LIABILITY FOR ANY IMPLIED WARRANTY BREACH OF THE EXPRESS WARRANTIES DESCRIBED IN THIS SECTION 7.(a) SHALL BE, AT PM DEVICES’ ELECTION, REPLACEMENT OF SUCH PRODUCTS BY PM DEVICES OR A REFUND OF THE INITIAL PURCHASE PRICE RECEIVED BY PM DEVICES FOR SUCH PRODUCTS. PM DEVICES SHALL NOT BE SUBJECT TO AND EXPRESSLY DISCLAIMS ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF A COURSE BREACH OF DEALING WARRANTY. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR CONTINGENT DAMAGES; AND WITHOUT LIMITING THE GENERALITY OF PERFORMANCETHE FOREGOING, CUSTOM EACH PARTY SPECIFICALLY DISCLAIMS ANY LIABILITY FOR DAMAGES FOR LOST PROFITS OR USAGE REVENUES, LOSS OF TRADEREPUTATION OR GOODWILL OR ANY OTHER ECONOMIC LOSS. (b) The cumulative aggregate liability of PM Devices to Distributor for all claims relating to the Products or otherwise in respect of this Agreement or any transactions contemplated by this Agreement, EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENTshall in no event exceed the lesser of:
(1) the total proven direct damages actually suffered by Distributor which PM Devices is liable for hereunder; or
(2) the sum of $2,000,000 (Cdn. Funds). The above limitation on liability applies regardless of the cause of action, including contract (including fundamental breach), tort (including negligence), product liability, strict liability, infringement of third party intellectual property rights or other third party claims against Distributor. PM Devices shall not be liable to Distributor for any Products damaged, mishandled or improperly shipped or stored by Distributor or any person acting under direction or authorization of Distributor, or for any Products tampered with or to which Distributor or any person acting under direction or authorization of Distributor made changes in fabrication, assembly or otherwise.
C. PROGENICS has no (c) Subject as set out in Section 7(b), PM Devices shall defend and hold Distributor and its affiliates harmless from any and all claims, demands, actions, liabilities, damages, judgments, liens, costs, losses and expenses (including reasonable legal expenses) (collectively “Claims”) which may be suffered or incurred by Distributor or its affiliates arising from or related to any non-frivolous investigation or proceeding made by a third party (including any governmental authority) alleging any defect in the Products, including its design, materials or workmanship, any breach of warranty made by PM Devices to Distributor or to a third party or any material failure of PM Devices to perform and observe its obligations under this Agreement, provided that Distributor gives PM Devices written notice of the Claim with sufficient promptness to avoid any adverse effect on PM Devices’ ability to defend the Claim; allows PM Devices to assume control of the defence and settlement of the Claim; reasonably assists and cooperates with PM Devices in connection with the defence and settlement of the Claim at PM Devices’ expense; and does not settle the Claim without PM Devices’ prior written consent. This paragraph shall not apply to any Claims arising out of:
(1) any intentional wrongful act or omission or gross negligence of Distributor or any third party;
(2) any failure to transport, store, install, use, operate or maintain the Products in accordance with the reasonable applicable specifications, instructions, manuals and other documentation provided by PM Devices or any Products damaged, tampered with or changed in fabrication or assembly or otherwise by any person other than PM Devices or any person doing so with the express authorization of PM Devices ; or
(3) any representation or warranty made by Distributor or any employee, agent or other representative (e.g., any sales representative, service representative, dealer or distributor) of Distributor with respect to Products any Products, which representation or warranty is not within the scope of PM Devices’ warranties set forth in any applicable documentation, promotional literature and other materials published by PM Devices or incorporated from such materials. PM Devices shall, during the term of this Agreement, maintain at its own expense a reasonably sufficient amount of general commercial and product liability insurance, and PM Devices shall request that have been modified or damaged through misuse, abuse, accident, neglect, improper storage or mishandling by DUPONT, or if DUPONT holds Product in storage beyond the natural age of the Productits insurer add Distributor as an “additional insured” to its policies as its interest may appear.
D. PROGENICS warrants and represents that (id) Product does Distributor shall not constitute make any oral or written representations, warranties, conditions or guarantees which vary from the subject matter of any currently pending litigation and PROGENICS is not aware as of the effective date of this Agreement of any litigation contemplated written representations, warranties, conditions or guarantees given or made by PROGENICS PM Devices to Distributor or any other third party Distributor’s employees with respect to the subject matter Products. Subject as set out in Section 7(f), Distributor shall defend and hold harmless PM Devices and its affiliates from and against any and all Claims which may be suffered or incurred by PM Devices or its affiliates arising from or related to any non-frivolous investigation or proceeding made by a third party (including any governmental authority) based upon any allegation of wrongdoing by Distributor in the importation, storage, transport, handling, use, marketing, advertising, sale and distribution of the Products by Distributor, any unauthorised warranty made by Distributor to a third party or any material failure of Distributor to perform and observe its obligations under this Agreement; provided that PM Devices gives Distributor written notice of the Claim with sufficient promptness to avoid any adverse effect on Distributor’s ability to defend the Claim; allows Distributor to assume control of the defence and settlement of the Claim; reasonably assists and cooperates with Distributor in connection with the defence and settlement of the Claim at Distributor’s expense; and does not settle the Claim without Distributor’s prior written consent. This paragraph shall not apply to any Claim arising out of the intentional wrongful act or omission or gross negligence of PM Devices or any third party. Distributor shall, during the term of this Agreement, maintain at its own expense a reasonably sufficient amount of general commercial and product liability insurance and shall request that its insurer add PM Devices as an “additional insured” to its policies as its interest may appear.
(e) The cumulative aggregate liability of Distributor to PM Devices for all claims in respect of this Agreement and or any transactions contemplated by this Agreement shall in no event exceed the lesser of:
(ii1) sale and use the total proven direct damages actually suffered by PM Devices which Distributor is liable for hereunder; or
(2) the sum of Product will not infringe any $2,000,000 (Cdn. Funds). The above limitation on liability applies regardless of the cause of action, including contract (including fundamental breach), tort (including negligence), product liability, strict liability, infringement of third party patents and that intellectual property rights or other third party claims against PM Devices. Distributor shall not be liable to PM Devices for any patent rights necessary for DUPONT and its customers to use and sell Product have been acquired by PROGENICS. No warranty or representation is made Products not in compliance with respect to use of Product for purposes other than research or for use the express warranties in combination with other productsparagraph 7(a) above.
Appears in 1 contract
Samples: Distribution Agreement (Neovasc Inc)
Limited Warranty and Limitation of Remedies. A. PROGENICS a) PM Devices warrants to DUPONT Distributor only that all Product meets the specifications stated in Exhibit A and is free of defects in Material and manufacture Products, at the time of shipmentshipment to Distributor under this Agreement, shall be:
(1) Free from material defects in design, materials and workmanship; and
(2) In compliance with all United States laws and regulations pertaining to the design, materials and workmanship of such products. If In order to receive the exclusive remedies specified in this Section 7(a) below, claims by Distributor concerning any Product is proven to non-compliance with the above express warranties shall be defective made in material or manufacture, PROGENICS' entire liability writing and DUPONT's exclusive remedy will be, at PROGENICS' option, either replacement of the Product, or refund of the purchase price paid by DUPONT for the defective Product, within a reasonable time after written notification of the defect and return of the defective Product to PROGENICS. Notices of defect must shall be received by PROGENICS PM Devices within 60 days the stated Shelf-Life of DUPONT's receipt of notice of a defect from the customer.
B. Products by PM Devices to Distributor. THE WARRANTY STATED IN PARAGRAPH 6-A IS MADE EXPRESS WARRANTIES ABOVE ARE EXCLUSIVE AND ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, GUARANTEES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTY STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, THE IMPLIED WARRANTY OF DURABILITY AND FITNESS FOR PURPOSE (INCLUDING FITNESS FOR A PARTICULAR PURPOSE) AND WARRANTIES ARISING FROM USAGE OF TRADE OR COURSE OF DEALING. Other than the express warranties specified above and any express written warranties provided directly to end users by PM Devices, any description of the Products, whether in writing or made orally by PM Devices, and any specifications, samples, models, bulletins, drawing, diagrams, or similar material provided by PM Devices and used in connection with the Products are for the sole purpose of identifying the Products and shall not be construed as a warranty or representation in favour of Distributor. PM DEVICES AND DISTRIBUTOR SPECIFICALLY EXCLUDE THE APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS TO THIS AGREEMENT AND TO THE PURCHASE AND SALE OF THE PRODUCTS HEREUNDER.DISTRIBUTOR’S EXCLUSIVE REMEDY AND PM DEVICES’ SOLE LIABILITY FOR ANY IMPLIED WARRANTY BREACH OF THE EXPRESS WARRANTIES DESCRIBED IN THIS SECTION 7.(a) SHALL BE, AT PM DEVICES’ ELECTION, REPLACEMENT OF SUCH PRODUCTS BY PM DEVICES OR A REFUND OF THE INITIAL PURCHASE PRICE RECEIVED BY PM DEVICES FOR SUCH PRODUCTS. PM DEVICES SHALL NOT BE SUBJECT TO AND EXPRESSLY DISCLAIMS ANY OTHER OBLIGATIONS OR LIABILITIES ARISING OUT OF A COURSE BREACH OF DEALING OR OF PERFORMANCE, CUSTOM OR USAGE OF TRADE, EXCEPT OF TITLE AND AGAINST PATENT INFRINGEMENTWARRANTY.
C. PROGENICS has no obligations under this warranty with respect to Products that have been modified or damaged through misuse, abuse, accident, neglect, improper storage or mishandling by DUPONT, or if DUPONT holds Product in storage beyond the natural age of the Product.
D. PROGENICS warrants and represents that (i) Product does not constitute the subject matter of any currently pending litigation and PROGENICS is not aware as of the effective date of this Agreement of any litigation contemplated by PROGENICS or any other third party with respect to the subject matter of this Agreement and (ii) sale and use of Product will not infringe any third party patents and that any patent rights necessary for DUPONT and its customers to use and sell Product have been acquired by PROGENICS. No warranty or representation is made with respect to use of Product for purposes other than research or for use in combination with other products.
Appears in 1 contract
Samples: Distribution Agreement (Neovasc Inc)
