Common use of Limited Warranty; Indemnification Clause in Contracts

Limited Warranty; Indemnification. 7.1 Partnership warrants title and that the Products shall conform to the specifications set forth on Exhibit A attached hereto. Subject to the preceding sentence and except as otherwise expressly provided herein, PARTNERSHIP MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS, WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER MATERIAL. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM A DELAY OR FAILURE OF PERFORMANCE OR ANY OTHER DEFAULT HEREUNDER EXCEPT FOR ANY DAMAGE ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LIABLE PARTY. 7.2 Rhodia may reject Products not conforming to the corresponding specifications set forth on Exhibit A attached hereto by delivering notice to Partnership within 75 calendar days of the delivery of such Products to Rhodia. Failure to give notice within 75 calendar days after receipt by Rhodia of Products shall constitute acceptance of such Products. Partnership shall have the right to inspect the Products so rejected for the purpose of confirming their nonconformance to the corresponding specifications set forth on Exhibit A attached hereto. If Rhodia and Partnership agree that such Products conform to the corresponding specifications set forth on Exhibit A attached hereto, Rhodia shall revoke its rejection of, and shall accept, such Products. If Rhodia and Partnership are unable to agree as to whether such Products are nonconforming or not, they shall select an independent laboratory to analyze the Products, whose determination shall be conclusive. All analyses conducted pursuant to this Section shall be conducted in accordance with the analysis procedures listed on Exhibit B attached hereto. 7.3 If (i) Products delivered to Rhodia fail to meet the corresponding specifications set forth on Exhibit A attached hereto, (ii) Rhodia notifies Partnership of such nonconformance within 60 calendar days of delivery and (iii) Rhodia nevertheless accepts such Products, then Rhodia and Partnership shall negotiate in good faith to adjust the price to be paid by Rhodia for such Products.

Limited Warranty; Indemnification. 7.1 Partnership The College Board warrants title to Licensee that the ACCUPLACER System is free from material defects in materials and workmanship and that the Products shall conform ACCUPLACER System, under normal use and operation, will operate in accordance with the descriptions contained in the manuals supplied to Licensee with the specifications set forth on Exhibit A attached heretoACCUPLACER System. Subject to the preceding sentence and except as otherwise expressly provided hereinTHE COLLEGE BOARD DOES NOT WARRANT THAT THE OPERATION OF THE ACCUPLACER SYSTEM WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. FURTHERMORE, PARTNERSHIP MAKES COLLEGE BOARD DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF THE ACCUPLACER SYSTEM OR THE RESULTS OBTAINED THEREFROM OR THAT THE ACCUPLACER SYSTEM WILL SATISFY CLIENTs REQUIREMENTS. THE COLLEGE BOARD WILL NOT BE LIABLE IN CONNECTION WITH HOW LICENSEE USES THE TEST SCORES GENERATED FROM LICENSEEs USE OF THE ACCUPLACER SYSTEM. THE COLLEGE BOARD 'S TOTAL LIABILITY WITH RESPECT TO THIS WARRANTY AND LICENSEE'S SOLE REMEDY FOR BREACH OF THIS WARRANTY SHALL BE LIMITED TO SCORE CORRECTION OR TEST RETAKE AT NO REPRESENTATION OR WARRANTY OF ANY KINDADDITIONAL CHARGE TO LICENSEE. NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISESHALL APPLY, AS TO MERCHANTABILITYINCLUDING, BUT NOT LIMITED TO, FITNESS FOR A PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS, WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER MATERIALPURPOSE AND MERCHANTABILITY. IN NO EVENT EVENT, HOWEVER, SHALL EITHER PARTY THE COLLEGE BOARD BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, PUNITIVE INDIRECT OR CONSEQUENTIAL DAMAGES RESULTING FROM A DELAY OR FAILURE OF PERFORMANCE OR ANY OTHER DEFAULT HEREUNDER EXCEPT FOR ANY DAMAGE ARISING OUT OF OR IN CONNECTION WITH THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT USE OF THE LIABLE PARTY. 7.2 Rhodia ACCUPLACER SYSTEM. (Some state laws do not allow the exclusion or limitation of implied warranties or liability for incidental or consequential damages, so portions of this Paragraph may reject Products not conforming apply to the corresponding specifications set forth on Exhibit A attached hereto license granted hereunder.) To the extent permitted by delivering notice law, Licensee will indemnify, hold harmless and defend the College Board from and against all liabilities, demands, claims, and fines, including reasonable attorney's fees and other costs and expenses of defense and settlement, which the College Board may incur as a result of damages claimed by third parties in connection with this Agreement (collectively, "Damages") provided, however, that Licensee will not be obligated to Partnership within 75 calendar days indemnify the College Board to the extent Damages are caused directly by the negligence or willful misconduct of the delivery of such Products to Rhodia. Failure to give notice within 75 calendar days after receipt by Rhodia of Products shall constitute acceptance of such Products. Partnership shall have the right to inspect the Products so rejected for the purpose of confirming their nonconformance to the corresponding specifications set forth on Exhibit A attached hereto. If Rhodia and Partnership agree that such Products conform to the corresponding specifications set forth on Exhibit A attached hereto, Rhodia shall revoke its rejection of, and shall accept, such Products. If Rhodia and Partnership are unable to agree as to whether such Products are nonconforming or not, they shall select an independent laboratory to analyze the Products, whose determination shall be conclusive. All analyses conducted pursuant to this Section shall be conducted in accordance with the analysis procedures listed on Exhibit B attached heretoCollege Board. 7.3 If (i) Products delivered to Rhodia fail to meet the corresponding specifications set forth on Exhibit A attached hereto, (ii) Rhodia notifies Partnership of such nonconformance within 60 calendar days of delivery and (iii) Rhodia nevertheless accepts such Products, then Rhodia and Partnership shall negotiate in good faith to adjust the price to be paid by Rhodia for such Products.

Limited Warranty; Indemnification. 7.1 Partnership Supplier warrants title and that the Products Product shall conform to the specifications set forth on Exhibit A attached hereto. Subject to the preceding sentence and except as otherwise expressly provided herein, PARTNERSHIP SUPPLIER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTSPRODUCT, WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER MATERIAL. EXCEPT FOR LIQUIDATED DAMAGES SET FORTH IN SECTIONS 4.6, 4.7 AND 4.9, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM A DELAY OR FAILURE OF PERFORMANCE OR ANY OTHER DEFAULT HEREUNDER EXCEPT FOR ANY DAMAGE ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LIABLE PARTY. 7.2 Rhodia Supplier shall test the Product prior to release to confirm it complies with the Specifications. Supplier shall, in respect of each shipment of Product, (a) retain a sample of the Product (the “Retained Sample”) and (b) provide a certificate of analysis accompanying each shipment of Product to Innophos confirming the Product meets the Specifications. Unless prior to such shipment Innophos agrees in writing otherwise, Supplier shall not release Product unless Supplier has first tested the Product and confirmed that it complies with the Specifications. Innophos shall test the Product for compliance with the Specifications prior to unloading the Product. Innophos may reject Products Product not conforming to the corresponding specifications set forth on Exhibit A attached hereto by delivering notice to Partnership within 75 calendar days of the delivery of such Products to RhodiaSpecifications. Failure to give notice within 75 calendar days after receipt by Rhodia of Products shall constitute acceptance of such Products. Partnership Supplier shall have the right to inspect the Products Product so rejected for the purpose of confirming validating their nonconformance to the corresponding specifications set forth on Exhibit A attached heretoSpecifications. If Rhodia Innophos and Partnership Supplier mutually agree that such Products conform to Product do not meet the corresponding specifications set forth on Exhibit A attached heretoSpecifications, Rhodia then Supplier shall accept Innophos’ rejection of the Product. If Innophos and Supplier mutually agree that such Product meet the Specifications, Innophos shall revoke its rejection of, and shall accept, such ProductsProduct. If Rhodia Innophos and Partnership Supplier are unable to agree as to whether such Products Product are nonconforming or not, they shall shall, within three Business Days of such disagreement, select an independent laboratory to analyze the ProductsRetained Sample and refer such determination to such laboratory, whose determination of the Retained Sample shall be conclusive. All analyses conducted pursuant to this Section Any payment obligation for the subject Product shall be conducted tolled pending such laboratory’s determination). 7.3 With respect to any Product that are rejected in accordance with the analysis procedures listed on Exhibit B attached hereto. 7.3 If protocol set forth in Section 7.2, Supplier shall be solely responsible for any transportation and disposal costs and shall promptly supply replacement Product to Innophos (iat no additional cost to Innophos) Products delivered to Rhodia fail to that meet the corresponding specifications set forth on Exhibit A attached hereto, (ii) Rhodia notifies Partnership of such nonconformance within 60 calendar days of delivery and (iii) Rhodia nevertheless accepts such Products, then Rhodia and Partnership shall negotiate in good faith to adjust the price to be paid by Rhodia for such ProductsSpecifications.

Limited Warranty; Indemnification. 7.1 Partnership Supplier warrants title and that the Products shall conform to the specifications set forth on Exhibit A attached hereto. Subject to the preceding sentence and except as otherwise expressly provided herein, PARTNERSHIP SUPPLIER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE PRODUCTS, WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER MATERIAL. EXCEPT FOR LIQUIDATED DAMGAGES SET FORTH IN SECTIONS 4.6 AND 4.7, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RESULTING FROM A DELAY OR FAILURE OF PERFORMANCE OR ANY OTHER DEFAULT HEREUNDER EXCEPT FOR ANY DAMAGE ARISING OUT OF THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE LIABLE PARTY. 7.2 Rhodia Supplier shall test the Product prior to release to confirm it complies with the Specifications. Supplier shall, in respect of each shipment of Product, (a) retain a sample of the Product (the “Retained Sample”) and (b) provide a certificate of analysis accompanying each shipment of Product to Innophos confirming the Product meets the Specifications. Unless prior to such shipment Innophos agrees in writing otherwise, Supplier shall not release Product unless Supplier has first tested the Product and confirmed that it complies with the Specifications. Innophos shall test the Product for compliance with the Specifications prior to unloading the Product. Innophos may reject Products Product not conforming to the corresponding specifications set forth on Exhibit A attached hereto by delivering notice to Partnership within 75 calendar days of the delivery of such Products to RhodiaSpecifications. Failure to give notice within 75 calendar days after receipt by Rhodia of Products shall constitute acceptance of such Products. Partnership Supplier shall have the right to inspect the Products so rejected for the purpose of confirming validating their nonconformance to the corresponding specifications set forth on Exhibit A attached heretoSpecifications. If Rhodia Innophos and Partnership Supplier mutually agree that such Products conform to do not meet the corresponding specifications set forth on Exhibit A attached heretoSpecifications, Rhodia then Supplier shall accept Innophos’ rejection of the Products. If Innophos and Supplier mutually agree that such Products meet the Specifications, Innophos shall revoke its rejection of, and shall accept, such Products. If Rhodia Innophos and Partnership Supplier are unable to agree as to whether such Products are nonconforming or not, they shall shall, within three Business Days of such disagreement, select an independent laboratory to analyze the ProductsRetained Sample and refer such determination to such laboratory, whose determination of the Retained Sample shall be conclusive. Any payment obligation for the subject Products shall be tolled pending such laboratory’s determination). All analyses conducted pursuant to this Section 7.2 shall be conducted in accordance with the analysis procedures listed on Exhibit B attached hereto. 7.3 If With respect to any Products that are rejected in accordance with the protocol set forth in Section 7.2, Supplier shall be solely responsible for any transportation and disposal costs and shall promptly supply replacement Products to Innophos (iat no additional cost to Innophos) Products delivered to Rhodia fail to that meet the corresponding specifications set forth on Exhibit A attached hereto, (ii) Rhodia notifies Partnership of such nonconformance within 60 calendar days of delivery and (iii) Rhodia nevertheless accepts such Products, then Rhodia and Partnership shall negotiate in good faith to adjust the price to be paid by Rhodia for such ProductsSpecifications.