Limited Warranty. (a) ICN warrants that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)). (b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product. (c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION. (d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 6 contracts
Samples: Exclusive License and Supply Agreement (Icn Pharmaceuticals Inc), Exclusive License and Supply Agreement (Ribapharm Inc), Exclusive License and Supply Agreement (Icn Pharmaceuticals Inc)
Limited Warranty. 3.1 Progress warrants that, for a period of ninety (a90) ICN warrants days from either the date of the initial shipment or availability for download from a Progress website of the Product, whichever occurs first (the “Warranty Period”), (i) the Product will conform in all material respects to the Documentation and (ii) the media, if any, on which the Product is recorded will be free from defects in materials and that each shipment the Product is properly recorded on the media. As the sole and exclusive remedy for physically defective media (such as the diskettes, cartridges, CD-ROMs, DVDs or magnetic tapes), Progress will replace it free of charge if claimed during the Warranty Period. As the sole and exclusive remedy for any failure of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall materially conform to the Documentation, Progress shall repair or replace the Product Specificationsif such failure is reported during the Warranty Period or, if Progress, at its discretion, reasonably determines that such remedy is not economically or technically feasible, this Agreement and the licenses granted hereunder will terminate and Progress or its supplier (as applicable) shall be manufactured by ICN and supplied provide a full refund of the license fee paid with respect to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territoryparticular Product. The above warranties do not cover Updates, including, without limitationgeneric non-configured solution packs, any current Good Manufacturing Practices requirementsProduct provided on an evaluation basis, and shall be of substantially equivalent quality as or defects to the Product produced due to accident, abuse, service, alteration, modification or improper installation or configuration by ICN Licensee, its personnel or any third party.
3.2 Progress does not warrant that the functions of the Product will meet Licensee’s requirements or that operation of the Product will be uninterrupted or error free. Licensee assumes responsibility for selecting the Product to achieve its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical intended results and specifications of for the batchuse and results obtained from the Product.
3.3 THE LIMITED WARRANTY SPECIFIED IN SECTION 3.1 SETS FORTH ALL WARRANTIES AND REPRESENTATIONS PROVIDED TO LICENSEE WITH RESPECT TO THE PRODUCT AND ANY SERVICES AND UPDATES PROVIDED HEREUNDER, AND SUCH LIMITED WARRANTY IS PROVIDED SOLELY BY PROGRESS AND NOT ITS LICENSORS. THE WARRANTY PROVIDED FOR EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8.4(a) IS EXCLUSIVE AGREEMENT, PROGRESS, ITS LICENSORS AND IN LIEU OF ALL OTHER WARRANTIESTHEIR RESPECTIVE SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING RELATING TO THE PRODUCT, OR ANY SERVICES OR UPDATES PROVIDED UNDER THIS AGREEMENT. ANY UPDATES OR SERVICES DELIVERED HEREUNDER ARE DELIVERED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALL OTHER IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCTPRODUCT, OR USAGE OR TRADEANY SERVICES AND UPDATES PROVIDED UNDER THIS AGREEMENT ARE DISCLAIMED. Further, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any the Product is shown to be not fault tolerant and is not designed, manufactured or intended for use in breach hazardous environments requiring fail-safe performance (including, without limitation, the design, construction, operation or maintenance of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(aany nuclear facility; direct life support machines; weapon systems; or control of aircraft, air traffic, aircraft navigation or aircraft communications), Schering's exclusive remedy shall be in which the failure of the Product could lead directly or indirectly to return to ICN death, personal injury or severe physical or environmental damage. Without limiting the Non-Conforming Product scope of the disclaimers set forth herein, Progress for itself and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder on behalf of its licensors and their respective suppliers, disclaims any express or implied warranty of fitness for any such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Producthigh risk uses.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 4 contracts
Samples: End User License Agreement, End User License Agreement, End User License Agreement
Limited Warranty. 3.1 Progress warrants that, for a period of ninety (a90) ICN warrants that each days from either the date of the initial shipment or availability for download from a Progress website of the Product supplied whichever occurs first (the “Warranty Period”), (i) the Product will conform in all material respects to Schering pursuant the Documentation and (ii) the media, if any, on which the Product is recorded will be free from defects in materials and that the Product is properly recorded on the media. As the sole and exclusive remedy for physically defective media (such as the diskettes, cartridges, CD-ROMs, DVDs or magnetic tapes), Progress will replace it free of charge if claimed during the Warranty Period. As the sole and exclusive remedy for any failure of the Product to this Agreement, when shipped from the ICN Facility, shall materially conform to the Documentation, Progress shall repair or replace the Product Specificationsif such failure is reported during the Warranty Period or, if Progress, at its discretion, reasonably determines that such remedy is not economically or technically feasible, this Agreement and the licenses granted hereunder will terminate and Progress or its supplier (as applicable) shall be manufactured by ICN and supplied provide a full refund of the license fee paid with respect to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territoryparticular Product. The above warranties do not cover Updates, including, without limitationgeneric non-configured solution packs, any current Good Manufacturing Practices requirementsProduct provided on an evaluation basis, and shall be of substantially equivalent quality as or defects to the Product produced due to accident, abuse, service, alteration, modification or improper installation or configuration by ICN Licensee, its personnel or any third party.
3.2 Progress does not warrant that the functions of the Product will meet Licensee’s requirements or that operation of the Product will be uninterrupted or error free. Licensee assumes responsibility for selecting the Product to achieve its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical intended results and specifications of for the batchuse and results obtained from the Product.
3.3 THE LIMITED WARRANTY SPECIFIED IN SECTION 3.1 SETS FORTH ALL WARRANTIES AND REPRESENTATIONS PROVIDED TO LICENSEE WITH RESPECT TO THE PRODUCT AND ANY SERVICES AND UPDATES PROVIDED HEREUNDER, AND SUCH LIMITED WARRANTY IS PROVIDED SOLELY BY PROGRESS AND NOT ITS LICENSORS. THE WARRANTY PROVIDED FOR EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 8.4(a) IS EXCLUSIVE AGREEMENT, PROGRESS, ITS LICENSORS AND IN LIEU OF ALL OTHER WARRANTIESTHEIR RESPECTIVE SUPPLIERS MAKE NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, INCLUDING RELATING TO THE PRODUCT, OR ANY SERVICES OR UPDATES PROVIDED UNDER THIS AGREEMENT. ANY UPDATES OR SERVICES DELIVERED HEREUNDER ARE DELIVERED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW ALL OTHER IMPLIED WARRANTIES AND REPRESENTATIONS INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TITLE AND NON-INFRINGEMENT WITH RESPECT TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCTPRODUCT, OR USAGE OR TRADEANY SERVICES AND UPDATES PROVIDED UNDER THIS AGREEMENT ARE DISCLAIMED. Further, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any the Product is shown to be not fault tolerant and is not designed, manufactured or intended for use in breach hazardous environments requiring fail-safe performance (including, without limitation, the design, construction, operation or maintenance of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(aany nuclear facility; direct life support machines; weapon systems; or control of aircraft, air traffic, aircraft navigation or aircraft communications), Schering's exclusive remedy shall be in which the failure of the Product could lead directly or indirectly to return to ICN death, personal injury or severe physical or environmental damage. Without limiting the Non-Conforming Product scope of the disclaimers set forth herein, Progress for itself and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder on behalf of its licensors and their respective suppliers, disclaims any express or implied warranty of fitness for any such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Producthigh risk uses.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 4 contracts
Samples: End User License Agreement, End User License Agreement, End User License Agreement
Limited Warranty. (Assays designed outside of published design specifications are not expected to conform to published performance specifications. Actual Assay performance will be affected if any of the following apply: a) ICN warrants that each shipment failure to provide a suitable storage, use, or operating environment; b) use of non-recommended reagents; c) use of the Product supplied to Schering pursuant to this AgreementAssays for a purpose or in a manner other than that for which they were designed; d) modifications or repairs done by Customer; or e) any other abuse, when shipped from misuse, or neglect of the ICN FacilityAssays, shall conform to including without limitation the Product Specifications, shall use of the Assay with any item other than Fluidigm chips and Assays (except as may be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law set forth in the country then current applicable Fluidigm protocol for use of manufacture an Assay, with associated standard laboratory tools and any other applicable regulatory legal requirements in the Territoryequipment ancillary to use of such Assay). Fluidigm has optimized its Assays for use with certain Fluidigm protocols, including, without limitation, any current Good Manufacturing Practices requirementsFluidigm Products, and shall be authorized third party Fluidigm Products. Accordingly, Fluidigm recommends that Customer not use any Assays provided hereunder in combination with any protocols, non-standard conditions, or Fluidigm Products which are not either: (i) provided by Fluidigm, or (ii) from a source authorized by Fluidigm. Customer acknowledges that failure to comply with any restriction of substantially equivalent quality as use set forth herein (including without limitation the Product produced by ICN for its own usepreceding sentence) will (i) constitute a breach of these Terms and Conditions, and (ii) may constitute a violation or infringement of Fluidigm’s and/or a third party’s intellectual property rights. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. TO THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE EXTENT PERMITTED BY APPLICABLE LAW, FLUIDIGM, ITS SUPPLIERS AND IN LIEU OF ITS REPRESENTATIVES DISCLAIM ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO FLUIDIGM PRODUCTS AND SERVICES, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND MERCHANTABILITY, SATISFACTORY QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 3 contracts
Samples: Sales Contracts, Sales Contracts, Sales Contracts
Limited Warranty. Seller warrants only that, at the time of delivery of the Product, that (ai) ICN warrants that each shipment the Product meets Seller's current written specif ications for the specific Product sold under this Agreement; (ii) the Product has been manufactured in accordance with all federal and state laws and regulations applicable to the Product and Seller's sale of the Product supplied to Schering pursuant to under this Agreement; and (iii) it shall transfer ownership of the Product free and clear of any liens or encumbrances. Seller makes no warranties against infringement of intellectual property of any kind (including patent, when shipped trade secret or trademark) due to the use of the Product alone or in combination with other products, the manufacture, use, sale, offer for sale or importation of the Product alone or in conjunction with other products, or the use of materials during any process. Buyer assumes all risks and liability for the results obtained from the ICN FacilityUse (as such term is defined in Section 6) of the Product, shall conform to whether used alone or in combination with other substances or in any process. Seller may discontinue delivery of the Product Specifications, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirementsProduct, and shall be the manufacture, sale, offer for sale, use or importation which, in its opinion, involves infringement of substantially equivalent quality as the Product produced by ICN for its own useany patent. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY EXCEPT AS PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF SECTION, SELLER EXPRESSLY EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAWOPERATION OF LAW OR OTHERWISE, CUSTOMINCLUDING WITHOUT LIMITATION, CONDUCTTHOSE OF MERCHANTABILITY, MERCHANTABILITY, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE AND ANY USAGE OF TRADE OR TRADETRADE USAGE. ANY DETERMINATION THAT THE PRODUCT IS SUITABLE FOR THE USE CONTEMPLATED BY THE PURCHASER IS THE SOLE RESPONSIBILITY OF THE PURCHASER. Seller makes no warranties or representations to Buyer or its affiliates or subsidiaries, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject or any third party with respect to Section 3.7(b) if any Product is shown its ability or the ability of others to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) act properly in the amount paid event of a failure of a computer or device to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) accurately store, process, provide or receive data relating to have ICN replace such Non-Conforming Productthis Agreement.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 3 contracts
Samples: Terms and Conditions of Sale, Terms and Conditions of Sale, Terms and Conditions of Sale
Limited Warranty. (a) ICN Seller will transfer to Buyer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Seller warrants to Buyer that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall Products purchased hereunder will conform to the Product Specificationsapplicable manufacturer’s specifications for such products and that any value-added work performed by Seller on such Products will conform to applicable Buyer’s specifications. If Seller breaches this warranty, shall Xxxxx’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Production (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be manufactured by ICN and supplied returned to Schering in accordance Seller, along with the requirements acceptable evidence of applicable law in the country purchase, within 20 days from date of manufacture and any other applicable regulatory legal requirements in the Territorydelivery, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as transportation charges prepaid. No warranty will apply if the Product produced by ICN for its own usehas been subject to misuse, static discharge, neglect, accident or modification, or has been soldered. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY SAVE AS EXPRESSLY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE THESE TERMS AND IN LIEU OF CONDITIONS, ALL OTHER IMPLIED WARRANTIES, EXPRESS TERMS AND CONDITIONS (WHETHER STATUTORY OR IMPLIEDOTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, INCLUDING WARRANTIES SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF MERCHANTABILITY AND THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR A ANY PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))WARRANTIES AGAINST LATENT DEFECTS.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 3 contracts
Samples: Terms and Conditions of Sale, Terms and Conditions of Sale, Standard Terms and Conditions of Sale
Limited Warranty. a. Integra warrants to SeaSpine that (ai) ICN warrants that each shipment of it will convey good title to all Microfib Products delivered to SeaSpine, free from any security interest, liens or other encumbrances, and (ii) the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, Microfib Products manufactured hereunder shall be manufactured by ICN and supplied to Schering in accordance compliance with the requirements then-current Specifications at the time of applicable law shipment from Integra’s facilities. Except as set forth in Section 8.6, SeaSpine’s sole remedy, and Integra’s sole obligation, in the country event of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced a breach by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications Integra of the batchwarranty set forth in clause (ii) above is as set forth in Section 5.9(c).
b. The limited warranty set forth in Section 9.1(a) is the sole warranty Integra makes regarding the Microfib Products. THE THIS WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF INTEGRA HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING WARRANTIES WITHOUT LIMITATION, (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY AND MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSEPURPOSE OR APPLICATION, WHETHER PERTAINING TO OR WARRANTY OF QUALITY, OTHER THAN THOSE EXPRESSLY SET FORTH IN THE PRODUCT AND WHETHER ATTACHED WARRANTY, OR (II) ANY IMPLIED WARRANTY ARISING BY LAWFROM COURSE OF PERFORMANCE, CUSTOM, CONDUCTCOURSE OF DEALING, OR USAGE OF TRADE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b(III) ARE EXCLUSIVE AND IN LIEU WARRANTIES OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVEINFRINGEMENT. SEASPINE UNDERSTANDS THAT NO EMPLOYEE, ICN SHALL NOT BE LIABLE TO SCHERING FOROFFICER, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL AGENT OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH REPRESENTATIVE OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED INTEGRA IS AUTHORIZED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT MAKE ANY STATEMENT TO SECTIONS 11.2(a)(iiTHE CONTRARY WHICH SHALL BE BINDING ON INTEGRA OR TO ASSUME FOR INTEGRA ANY OTHER LIABILITY IN CONNECTION WITH THE MICROFIB PRODUCTS.
c. The warranty set forth in Section 9.1(a)(ii) AND 11.2(b)shall not apply to, and Integra shall not be responsible for, any loss or damages arising in connection with the purchase or use of any Microfib Product (i) which has been modified by anyone other than an authorized service representative of Integra, or (ii) which has been altered in any way so as, in Integra’s judgment, to affect its stability or reliability, or which has been subject to misuse, negligence or accident, or (iii) which has been subject to improper or negligent installation, storage or handling, or (iv) which has been subject to improper cleaning, sterilization or maintenance, or (v) which has been subject to accidental damage arising from acts of God, electrical power damage, equipment malfunction, unusual stress, unreasonable operating procedures or abnormal or extreme operating conditions or (vi) which has been used otherwise than in accordance with the instructions furnished by Integra.
Appears in 2 contracts
Samples: Supply Agreement (SeaSpine Holdings Corp), Supply Agreement (SeaSpine Holdings Corp)
Limited Warranty. (a) ICN Seller will transfer to Buyer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Seller warrants to Buyer that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall Products purchased hereunder will conform to the Product Specificationsapplicable manufacturer’s specifications for such products and that any value- added work performed by Seller on such Products will conform to applicable Buyer’s specifications. If Seller breaches this warranty, shall Xxxxx’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Production (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be manufactured by ICN and supplied returned to Schering in accordance Seller, along with the requirements acceptable evidence of applicable law in the country purchase, within 20 days from date of manufacture and any other applicable regulatory legal requirements in the Territorydelivery, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as transportation charges prepaid. No warranty will apply if the Product produced by ICN for its own usehas been subject to misuse, static discharge, neglect, accident or modification, or has been soldered. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY SAVE AS EXPRESSLY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE THESE TERMS AND IN LIEU OF CONDITIONS, ALL OTHER IMPLIED WARRANTIES, EXPRESS TERMS AND CONDITIONS (WHETHER STATUTORY OR IMPLIEDOTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, INCLUDING WARRANTIES SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF MERCHANTABILITY AND THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR A ANY PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))WARRANTIES AGAINST LATENT DEFECTS.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 2 contracts
Samples: Terms and Conditions of Sale, Standard Terms and Conditions of Sale
Limited Warranty. Seller warrants that all Products (including associated firmware) sold by Seller under the terms of this Agreement, for a period of *** from delivery will be (a) ICN warrants that each shipment of free from defects in workmanship and materials and (b) conform to the Specifications under normal use and service. If any Product supplied or part thereof contains a material defect in materials or workmanship, or otherwise fails to Schering conform to the Specifications, during the warranty period, Seller shall at its expense correct any such defect by repairing such defective Product or part or, at Seller's option, by delivering to Buyer an equivalent Product or part replacing such defective Product or part. Seller shall process warranty claims made pursuant to this AgreementAgreement according to the following schedule, when shipped commencing from receipt of the ICN Facilityapplicable component by Seller, (i) deliver a report regarding the warranty claim in a form mutually agreed upon by Buyer and Seller within *** days, (ii) repair the applicable component within *** days, and (iii) if necessary, refurbish the applicable component within *** days. Seller shall waive any expedite charges to Buyer in order to effect earliest reasonable replacement of such defective Products. Seller acknowledges and agrees that the above warranty shall be transferable to customers of Buyer. Seller, in the exercise of its reasonable discretion, shall determine whether a Product has failed to conform to the Product Specificationsabove warranty, unless such determination is disputed by Buyer. In such case, Buyer and Seller agree to meet and confer in good faith to discuss the appropriate evaluation of such Product, and, if the parties are unable to agree following such meeting, agree to appoint a third party to make the determination as to the cause of the alleged defect. Warranty return shipments shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality same as the Product produced by ICN process for its own useshipments of new Products, as set forth elsewhere in this Agreement. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))*** Confidential treatment requested.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 2 contracts
Samples: Oem Purchase and Development Agreement (Global Eagle Entertainment Inc.), Oem Purchase and Development Agreement (Global Eagle Entertainment Inc.)
Limited Warranty. (a) ICN Seller will transfer to Buyer any Product warranties and indemnities authorized by the manufacturer, including any transferable warranties and indemnities for intellectual property infringement. Seller warrants to Buyer that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall Products purchased hereunder will conform to the Product Specificationsapplicable manufacturer’s specifications for such products and that any value- added work performed by Seller on such Products will conform to applicable Buyer’s specifications. If Seller breaches this warranty, shall Xxxxx’s remedy is limited to (at Seller’s election) (1) refund of Buyer’s purchase price for such Production (without interest), (2) repair of such Products, or (3) replacement of such Products; provided that such Products must be manufactured by ICN and supplied returned to Schering in accordance Seller, along with the requirements acceptable evidence of applicable law in the country purchase, within 12 months from date of manufacture and any other applicable regulatory legal requirements in the Territorydelivery, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as transportation charges prepaid. No warranty will apply if the Product produced by ICN for its own usehas been subject to misuse, static discharge, neglect, accident or modification, or has been soldered. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY SAVE AS EXPRESSLY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE THESE TERMS AND IN LIEU OF CONDITIONS, ALL OTHER IMPLIED WARRANTIES, EXPRESS TERMS AND CONDITIONS (WHETHER STATUTORY OR IMPLIEDOTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, INCLUDING WARRANTIES SELLER MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF MERCHANTABILITY AND THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR A ANY PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))WARRANTIES AGAINST LATENT DEFECTS.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 2 contracts
Samples: Standard Terms and Conditions of Sale, Standard Terms and Conditions of Sale
Limited Warranty. (a) ICN FYTERTECH warrants that each shipment the Products will be free from defects in material and workmanship for a period of one (1) year from the date of delivery. In the event of an alleged breach of this limited warranty, Customer shall notify FYTERTECH in writing within five (5) days of receipt of the Product supplied to Schering pursuant to this AgreementProducts, when shipped from the ICN Facility, shall conform to the Product Specifications, and any claim shall be manufactured deemed waived by ICN Customer if not made in writing within such five (5) day period. NOTWITHSTANDING ANYTHING CONTAINED IN THESE TERMS TO THE CONTRARY, THE SOLE AND EXCLUSIVE REMEDY OF CUSTOMER UNDER THIS LIMITED WARRANTY SHALL BE REPLACEMENT OF THE PRODUCTS WITHOUT CHARGE TO CUSTOMER. This limited warranty shall be void and supplied unenforceable, and FYTERTECH shall have no obligation to Schering in accordance with the requirements of applicable law Customer under this limited warranty, in the country of manufacture event Customer: (i) uses, combines or comingles the Products with other products; or (ii) fails to comply with all applicable federal, state and any other applicable regulatory legal requirements in local laws, ordinances, rules and regulations regarding the Territoryuse, includingtransport, without limitationstorage and handling, any current Good Manufacturing Practices requirementsas applicable, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batchProducts. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FYTERTECH AND CUSTOMER AGREE THAT THE LIMITED WARRANTY PROVIDED SET FORTH ABOVE IS THE EXCLUSIVE WARRANTY GIVEN BY FYTERTECH AND FYTERTECH DISCLAIMS, AND CUSTOMER HEREBY WAIVES, ALL IMPLIED WARRANTIES FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIEDTHE PRODUCTS, INCLUDING WARRANTIES ANY IMPLIED WARRANTY OF MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE, ; WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING EXPRESS OR IMPLIED BY LAW, CUSTOMCOURSE OF DEALING, CONDUCTCOURSE OF PERFORMANCE, USAGE OF TRADE OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))OTHERWISE.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Terms and Conditions of Sale
Limited Warranty. (a) ICN Echoflex warrants to Buyer that each for a period of 5 years from the date of shipment of the Product supplied to Schering pursuant to this AgreementGoods (”Warranty Period”), when shipped from the ICN Facility, shall that such Goods will materially conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering specifications set forth in accordance with the requirements of applicable law Echoflex’s published specifications in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality effect as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))date of shipment and will be free from defects in material and workmanship.
(b) Subject Echoflex warrants to Section 3.7(b) if any Product is shown Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Productmeet its obligations under this Agreement.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS THE WARRANTIES SET FORTH IN SECTION 8.4(b10(a) ABOVEAND 10(b), ICN SHALL NOT BE LIABLE ECHOFLEX MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGESTHE GOODS OR SERVICES, INCLUDING SPECIALANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, INDIRECTCOURSE OF DEALING, CONSEQUENTIAL COURSE OF PERFORMANCE, USAGE OF TRADE OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONOTHERWISE.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN Products manufactured by a third party (”Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, ECHOFLEX MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WITH RESPECT TO ANY WAY TO LIMIT SCHERING'S THIRD PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(iiA THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(e) AND 11.2(b)Echoflex shall not be liable for a breach of the warranties set forth in Section 10(a) and Section 10(b) unless: (i) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Echoflex within 5 days of the time when Buyer discovers or ought to have discovered the defect;
Appears in 1 contract
Samples: Terms and Conditions
Limited Warranty. (a) ICN warrants We warrant to you that each for a period of [NUMBER] [month[s]/year[s]] from the date of shipment (”Warranty Period”), the products purchased through the Site will [[materially] conform to our published specifications in effect as of the Product supplied to Schering pursuant to this Agreement, when shipped date of [manufacture/shipment]] [[and] be free from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN [material] defects in material and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))workmanship].
(b) Subject We warrant to Section 3.7(b) if any Product is shown you that we shall perform the services purchased through the Site using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Productmeet our obligations under these Terms.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS THE WARRANTIES SET FORTH IN SECTION 8.4(b6(a) ABOVEAND SECTION 6(b), ICN SHALL NOT BE LIABLE WE MAKE NO WARRANTY WHATSOEVER WITH RESPECT TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGESTHE PRODUCTS OR SERVICES PURCHASED THROUGH THE SITE, INCLUDING SPECIALANY (i) WARRANTY OF MERCHANTABILITY; [OR] (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; [OR (iii) WARRANTY OF TITLE;] [OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY;] WHETHER EXPRESS OR IMPLIED BY LAW, INDIRECTCOURSE OF DEALING, CONSEQUENTIAL OR INCIDENTAL DAMAGESCOURSE OF PERFORMANCE, WHICH MAY BE CAUSED BYUSAGE OF TRADE, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONOTHERWISE.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN [Products manufactured by a third party (”Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the products. Third Party Products are not covered by the warranty in Section 6(a). For the avoidance of doubt, WE MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY WAY TO LIMIT SCHERING'S THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(iiA THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.]
(e) AND 11.2(b)We shall not be liable for a breach of the warranties set forth in Section 6(a) and Section 6(b) unless: (i) you give written notice of the defective products or services, as the case may be, reasonably described, to us within [NUMBER] days of the time when you discover or ought to have discovered the defect; (ii) if applicable, we are given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 6(a) to examine such products and you (if we so request) return such products to our place of business at your cost for the examination to take place there; and (iii) we reasonably verify your claim that the products or services are defective.
(f) We shall not be liable for a breach of the warranty set forth in Section 6(a) or Section 6(b) if: (i) you make any further use of such products after you give such notice; (ii) the defect arises because you failed to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the products; or
Appears in 1 contract
Samples: Terms and Conditions for Online Sale of Goods and Services
Limited Warranty. ArthroCare hereby represents and warrants to BSC that:
(a) ICN warrants on the date of shipment, all ArthroCare Products will be new, of good and merchantable quality, suitable for use as Controllers for Revascularization Procedures in the Field, and will comply with the Specifications for such Products;
(b) all ArthroCare Products shall be free from any defects in material or workmanship; provided, however, that each such warranty shall apply only for [*****] from the date of ArthroCare's shipment of such Product in the case of a defect which does not result in any personal injury or damage, or in any field action, or retrieval or recall action;
(c) ArthroCare shall ensure that all ArthroCare Products shall: (i) conform in all respects with the requirements of this Agreement and the applicable Order; (ii) meet all standards and Specifications established by BSC; and (ii) comply with all applicable international, federal, state and local laws and regulations, including those relating to manufacturing, packaging, labeling and sale of the Products, Good Manufacturing Practices and ISO 9001 standards;
(d) title to all ArthroCare Products shall pass to BSC free and clear of any security interest, lien or other encumbrance, or any other defect in title;
(e) the ArthroCare Products shall have been manufactured, packaged and stored in facilities which are approved by the FDA and/or other applicable regulatory authorities at the time of such manufacture, packaging and storage to the extent such approval is required by law;
(f) the ArthroCare Products shall have been manufactured in accordance with "Good Manufacturing Practices" as required by any regulatory authority, ISO 9001 standards, and all other applicable international, federal, state, and other laws, rules and regulations, including without limitation the Fair Labor Standards Act and all regulations and orders issued thereunder; and
(g) the Controllers sold by ArthroCare hereunder shall operate fully and without interruption, [*****], without significant repair or maintenance expense, in the case of [*****] of such Controllers; provided, however, that if the Controllers do not meet such standards [*****] of the time: (i) ArthroCare shall pay the costs of such repair and maintenance; or (ii) if less than [*****] of such Controllers meet such standards, BSC may declare a breach of this Agreement as a ground for termination of this Agreement under Section 11.2.A., in addition to other remedies which may be available. The foregoing representations and warranties shall survive inspection, delivery, and payment of the applicable Products, and shall be for the benefit of BSC and its customers. The above limited warranty is contingent on proper use of the Products in the applications in which they are intended as indicated in the Product supplied label claims. The above limited warranty does not apply to Schering pursuant to this Agreementany product that has been, when shipped after dispatch from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering F.O.B. shipping point: (1) altered; (2) not maintained in accordance with the requirements handling, storage or transportation instructions supplied by ArthroCare; (3) damaged by negligence or accident; or (4) damaged by acts of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territorynature, includingvandalism, without limitationburglary, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))neglect or misuse.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Limited Warranty. General: Celeno warrants to Buyer that (ai) ICN warrants that each shipment for a period of the Product supplied to Schering pursuant to this Agreement, when shipped sixty (60) days from the ICN Facilitydate of Product shipment from Celeno,
(i) the Software shall operate substantially in conformance with its then-current Celeno published specifications, shall conform to and (ii) the Product Specifications, Product’s hardware shall be manufactured by ICN free of defects in material and supplied to Schering workmanship and operate substantially in accordance with the requirements then-current Celeno published specifications. Celeno’s sole obligation to Buyer under this limited warranty shall be, at Celeno's option, to either repair or replace the nonconforming Product, provided (a) Celeno has received written notice of applicable law in any nonconformity during the country 60-day warranty period, (b) after Celeno's written authorization to do so, Buyer has returned the nonconforming Product to Celeno, freight prepaid; and (c) Celeno has determined that the Product is non confirming and that such non conformity is not a result of manufacture Buyer's conduct. The foregoing are Buyer’s sole and exclusive remedies for breach of the foregoing Product warranty. This limited warranty shall not apply to Product or any other applicable regulatory legal requirements in the Territorypart thereof that is defective due to Buyer’s unauthorized or improper installation, including, without limitationalteration or repair, any current Good Manufacturing Practices requirementsmodification, combination with other components or products or the result of misuse, abuse, neglect, accident, misapplication or excessive physical or electrical stress. The limited warranty hereunder shall apply to the Products which are sold by Celeno to Buyer and shall be of substantially equivalent quality as in no event apply to Buyer's products, components, features or otherwise, into which the Product produced by ICN for its own useProducts are integrated. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE WARRANTY PRODUCTS ARE PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE “AS IS”, AND IN LIEU OF ALL NO OTHER WARRANTIES, EXPRESS EITHER EXPRESSED OR IMPLIED, INCLUDING WRITTEN OR ORAL ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO PURPOSE AND NON-INFRINGMENT. CELENO DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, WILL BE UNINTERRUPTED OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))ERROR-FREE.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Terms and Conditions of Sale
Limited Warranty. (a) ICN SCOLR represents and warrants that each shipment to ADM as follows:
(i) SCOLR possesses the full legal right, authority and power to enter into this Agreement and to grant the licenses to ADM set forth herein;
(ii) SCOLR is not aware of any existing or threatened litigation against SCOLR concerning the Product supplied Licensed Patent or Improvements;
(iii) SCOLR’s rights in the Licensed Patent are genuine and valid;
(iv) SCOLR has not granted any licenses to Schering pursuant the Licensed Patent in the Licensed Field of Use (except for such licenses granted to ADM under the Existing Agreement, which are being amended and restated as set forth in this Agreement);
(v) the Licensed Patent is SCOLR’s only patent relating to Licensed Products, when shipped from or SCOLR is the ICN Facilityexclusive licensee or owner of patents and patent applications, shall conform relating to the Product SpecificationsLicensed Products; and
(vi) SCOLR has no actual knowledge of any material safety concerns with respect to the Licensed Products. SCOLR DOES NOT MAKE ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER CONCERNING THE LICENSED PRODUCTS, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the TerritoryTHE IMPROVEMENTS, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own useOR THE LICENSED PATENT. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF SCOLR HEREBY SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject ADM represents and warrants to Section 3.7(bSCOLR as follows:
(i) if any Product is shown ADM possesses the full legal right, authority and power to be in breach of ICN's warranty enter into this Agreement and to consummate the transactions contemplated hereby; and
("Non-Conforming Product"ii) contained in Section 8.4(aExcept as set forth on Schedule I attached hereto (the “Disclosed Litigation”), Schering's exclusive remedy shall be to return the Knowledge of ADM, there is no existing or threatened litigation concerning the Licensed Patent or Improvements or the products, inventions, patents and licenses granted to ICN ADM under the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in terms of the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming ProductExisting Agreement.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Exclusive Patent License Agreement (SCOLR Pharma, Inc.)
Limited Warranty. (a) ICN Subject to Section 6, seller warrants to buyer that each shipment of Part delivered to Buyer hereunder will conform to its general description (excluding its condition code) set forth on the Product supplied reverse side hereof or in the attachment hereto. Seller shall promptly replace without charge to Schering pursuant to this Agreement, when shipped from Buyer if any part at the ICN Facility, shall time is received by Buyer does not conform to the Product Specificationsforegoing limited warranty, but only if Buyer notifies Seller within the three (3) day period specified in Section 4 of such nonconformity and Buyer does not remove the Parts' seals or otherwise open the Parts' casings (tampering with the Parts in any way as seen by the Seller). Buyer shall promptly return the nonconformity Part to Seller's facility or other designated location using a carrier approved by seller in as good condition as it was when it was delivered or shipped to Buyer, except that Seller, in its sole discretion, by notifying Buyer before such return may reasonably delay the Part's return in order to inspect the Part at Buyer's facility. Any replaced Part shall become the property of Seller. Such replacement of the nonconforming Part with a conforming Part shall fully satisfy Seller's obligation to Buyer for any breach of Seller's warranty under this Section 5. Except as set forth in this section 5, the parts are sold to buyer "as-is". Seller makes no warranty, agreement or representation, expressed or implied, as to the Quality, identification, condition, value, serviceability or utility of the parts, including but not limited to any implied warranty of merchantability or fitness for a particular purpose, and seller and its shareholders, directors, employees agents and affiliates entities (collectively "related parties") shall have no liability in contract, tort (including for negligence or strict liability of seller or any related party) or otherwise for any loss, damage, expense or injury resulting from or arising out of any defect in or nonconformity of the parts purchased hereunder if buyer attempts to repair any nonconforming part by removing the part's seal or opening its casing, buyer shall do so at its own risk and all warranties under this sale transaction shall be manufactured by ICN null and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))void.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Terms and Conditions of Sale
Limited Warranty. (a) ICN Degussa warrants that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall API delivered hereunder will (i) be manufactured by ICN and supplied to Schering in accordance with Legal Requirements, (ii) be manufactured in accordance with the requirements of applicable law agreed-upon manufacturing procedures described in the country master batch records supplied to GSL in accordance with the provisions of manufacture Section 7, as may be modified and any other disclosed to GSL in accordance with the provisions of Section 7, and (iii) be manufactured in accordance with and comply with the then-applicable regulatory legal requirements Specifications as set forth in the TerritoryRAAs, including, without limitation, any current Good Manufacturing Practices requirementsas amended, and shall the Contract Manufacturing Manual. These warranties are the only warranties made by Degussa with respect to API delivered hereunder, and may only be modified or amended by a written instrument signed by a duly authorized officer of substantially equivalent quality as the Product produced [ ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, IS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED Degussa and accepted by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batchGSL. THE WARRANTY PROVIDED FOR EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8.4(a) IS 13 ARE THE EXCLUSIVE AND WARRANTIES MADE BY DEGUSSA UNDER THIS AGREEMENT OR ANY PURCHASE ORDER GOVERNED BY THIS AGREEMENT, IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)). Nothing in this Section 13 is intended as a limitation of GSL’s or Degussa’s defense and indemnification obligations under Sections 17 and 18 or the recall obligations under Section 19.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Limited Warranty. (a) ICN warrants that each shipment All engineering, total design and function of supplied equipment is the sole responsibility of the Product supplied buyer. Seller has relied on Buyer for all information as we have not been involved in an application like this. This project is a design-build with Buyer designing and Seller responding to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))Xxxxx’s direction.
(b) Subject to Section 3.7(bthe provisions in these Terms and in the Sales Documents, Seller warrants that:
(i) if when Products are delivered to Buyer, Products will materially comply with Seller's published specifications for such Products and the Products will be free from material defects in materials and workmanship; and (ii) when Services are performed, Services will have been performed in a workmanlike manner ("Limited Warranty”). Buyer must make (i) any Product is shown to be in breach of ICN's warranty Warranty Claim ("Non-Conforming Product") contained defined in Section 8.4(a8(a) below) within twelve (12) months after the delivery of a Product or (ii) any Services Warranty Claim (defined in Section 8(b)below) within ten (10) days after Buyer is notified that Services are completed (each, a "Warranty Period"). The Limited Warranty is conditioned upon Buyer following the claims process then in effect, Scheringwhich Seller may change from time to time. The Limited Warranty is limited to the Buyer only and is non-transferable. Buyer is solely responsible for proper selection of Products and their use and application, and Buyer has tested Products or otherwise determined their suitability for Buyer's exclusive remedy intended use. SELLER does not warrant products, accessories or equipment manufactured by others, and such products, accessories or equipment manufactured by others shall be subject to return the warranty and limitations of warranties of the manufacturer of such products, accessories or equipment. At the request of Xxxxx, Seller shall use reasonable efforts to ICN secure an assignment or transfer of any warranties to Buyer upon the Non-Conforming Product and written request of Buyer to receive a credit (with ICN paying related transportation costs) in Seller within the amount paid to ICN hereunder time period of such manufacturer for such Non-Conforming Product and related transportation costs (including costs any transfer or registration of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Productthe warranty.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVEAny depictions, ICN SHALL NOT BE LIABLE TO SCHERING FORprojections, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FORdiagrams, ALL DAMAGESillustrations and other descriptions or other information from Seller or its affiliates, INCLUDING SPECIALapplicable to Products, INDIRECTServices or a Contract, CONSEQUENTIAL OR INCIDENTAL DAMAGESwhether included in catalogs or otherwise, WHICH MAY BE CAUSED BYare descriptions or approximations only, OR IN ANY WAY RESULT FROMand do not constitute any specifications, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENTrepresentations, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERYwarranties, OR FAILURE TO DELIVERor guarantees, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONimplicitly or explicitly.
(d) NOTHING EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY PROVIDED IN THIS SECTION SHALL BE DEEMED IN ANY WAY 6(a) ABOVE, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO LIMIT SCHERING'S RIGHTS PRODUCTS OR SERVICES AND SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(iiMERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERVVISE.
(e) AND 11.2(b)No employee, dealer, distributor, sales representative, or any other person or entity is authorized to offer any different or additional warranties or remedies, or to change the Limited Warranty, without the signature of an authorized officer of Seller.
Appears in 1 contract
Samples: Terms and Conditions of Sale
Limited Warranty. 8.1 TAGARNO warrants to Buyer that for a period of twenty-four (24) months from the date of receipt of TAGARNO’s invoice for the Products ("Warranty Period"), that such Products will conform to the specifications in effect as of the date of delivery and will be free from material defects in material and workmanship.
8.2 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 8.1, TAGARNO MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) ICN warrants that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall be WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY
8.3 Products manufactured by ICN and supplied a third party (a “Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to Schering or packaged together with, the Goods. Third Party Products are not covered by the warranty in accordance with Section 8.1. For the requirements avoidance of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territorydoubt, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS TAGARNO MAKES NO REPRESENTATIONS OR IMPLIEDWARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING WARRANTIES ANY (a) WARRANTY OF MERCHANTABILITY AND MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING EXPRESS OR IMPLIED BY LAW, CUSTOMCOURSE OF DEALING, CONDUCTCOURSE OF PERFORMANCE, USAGE OF TRADE OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))OTHERWISE.
(b) Subject to Section 3.7(b) if any Product is shown to 8.4 TAGARNO shall not be in liable for a breach of ICN's warranty ("Non-Conforming Product") contained the warranties set forth in Section 8.4(a)9.1 unless: (i) the Products were packed, Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product shipped, handled, delivered and to receive a credit (transported with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)reasonable care;
Appears in 1 contract
Samples: General Terms & Conditions
Limited Warranty. (a) ICN DEVOLUTIONS warrants and represents to LICENSEE that each shipment it has the right to grant the License to LICENSEE and its End Users. In the event the Software infringes the intellectual property rights of a third party, LICENSEE and End Users shall immediately stop using the Software following DEVOLUTIONS’ written request and DEVOLUTIONS shall, at its own expense, promptly take any of the Product supplied following actions at its sole option: (i) secure LICENSEE’s and End Users’ right to Schering pursuant continue using the Software; (ii) replace or modify the Software to make it non-infringing, provided such modification or replacement does not materially degrade any functionality set forth in the Documentation; and/or (iii) to the extent LICENSEE and its End Users are required to cease using the Software within the Limited Warranty period (as provided in Subsection 13(b) below), refund the last License fees paid by LICENSEE for the remaining of such Limited Warranty period (prorated on a daily basis and calculated from the date on which LICENSEE and its End Users were requested to cease using the Software). This paragraph shall not apply to the extent the infringement arises out of any of the conditions listed in Subsection 14(b) below. The foregoing remedies are DEVOLUTIONS’ sole and exclusive liability and LICENSEE’s sole and exclusive remedies for any potential or actual intellectual property infringement by the Software, together with the intellectual property indemnity provided in Subsection 14(b) below.
(b) Except as provided below and Section 4 of this Agreement, when shipped from DEVOLUTIONS further warrants to LICENSEE that the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering Software will perform materially in accordance with the requirements specifications, features and operations described in the Documentation for a period of one (1) year following the issuance of applicable law License key(s) to LICENSEE by DEVOLUTIONS (the “Limited Warranty”). The Limited Warranty shall not apply (and LICENSEE hereby waives any related right or claim against DEVOLUTIONS) if the warranty default occurs by reason or in the country course of manufacture and any of the following situations: (i) LICENSEE’s or End Users’ Computers deficiencies; (ii) malfunctions, defects, or failures resulting from misuse, abuse, accident, neglect, improper installation, operation or maintenance, theft, vandalism, acts of God, acts of terrorism, power failures or surges, battery failures, wi-fi failures or insufficient wi-fi network, non-permitted alterations, modifications or repairs; (iii) any acts or omissions by LICENSEE, End Users or third parties, including hacking or other wrongful, malicious or illegal acts, or any other applicable regulatory legal requirements causes beyond DEVOLUTIONS’ reasonable control; (iv) any defect not made known by LICENSEE or an End User to DEVOLUTIONS as soon as practical after the defect first appears or within the Limited Warranty period; (v) malfunction caused by defective hardware or other software components installed on LICENSEE’s or End Users’ Computers; (vi) the Software is not installed, updated or used in accordance with the Documentation, this Agreement or any recommendation issued by DEVOLUTIONS to LICENSEE or an End User; or (vii) LICENSEE or any of its End Users uses the Software with incompatible or non-supported technologies, hardware or software. LICENSEE acknowledges, accepts and agrees that LICENSEE and its End Users are responsible for performing frequent back-ups of their data, to test such back-ups on a regular basis and to apply up-to-date virus detection and prevention tools. Minor discrepancies in the TerritoryDocumentation shall not be treated as errors in the Software.
(c) DEVOLUTIONS’ sole liability and LICENSEE’s sole and exclusive remedies for a breach of the Limited Warranty shall be, includingat DEVOLUTIONS’ exclusive option, without limitationto either (i) use reasonable commercial efforts to make such corrections, additions, modifications or adjustments to the Software as may be necessary to ensure that it will perform in accordance with the specifications, features and operations described in the Documentation, in which case LICENSEE and its End Users agree to provide DEVOLUTIONS with any current Good Manufacturing Practices requirementsrequested information to correct the defect, and including access to LICENSEE’s or End Users’ Computers and/or software environment or configuration if necessary; the corrected Software shall then be warranted for the remainder of the original Limited Warranty period or a period of 30 days, whichever is longer; (ii) replace the defective Software with a software of substantially similar functionality, in which case such new software shall be of substantially equivalent quality as warranted for the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications remainder of the batchoriginal Limited Warranty period or a period of 30 days, whichever is longer; or (iii) if the above remedies do not succeed after 45 days (or cannot possibly succeed within such period in DEVOLUTIONS’ reasonable opinion), refund the last License fees paid by LICENSEE for the remaining of such Limited Warranty period (prorated on a daily basis and calculated from the date on which LICENSEE (or its End User) reported the warranty breach to DEVOLUTIONS). DEVOLUTIONS does not guarantee that all errors or defects reported by LICENSEE or an End User will be corrected within a specific time period or at all.
(d) DEVOLUTIONS does not represent or warrant that the Software supports and integrates (or that it will support and integrate) all technologies, tools, connections, protocols, VPNs, cloud consoles and data source types or that it is (or will be) compatible or interoperable with all third-party software or applications used or installed on LICENSEE’s or End Users’ Computers (other than those specifically mentioned in the Documentation). Subject to the Limited Warranty above, LICENSEE and each End User acknowledge and agree that DEVOLUTIONS may at any time cease or suspend the support or integration of a specific technology, tool, protocol, software or application through or by the Software without liability to LICENSEE or any End User to the extent it is legally required to do so or if the technology, tool or protocol is outdated or no longer available or used.
(e) EXCEPT FOR THE EXPRESS LIMITED WARRANTY SPECIFIED ABOVE, THE SOFTWARE IS PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE “AS IS” AND IN LIEU OF DEVOLUTIONS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED (WHETHER ARISING BY STATUTE, COMMON LAW, CUSTOM, USAGE OR OTHERWISE) AS TO ANY MATTER, INCLUDING, WITHOUT LIMITATION, WARRANTY OF TITLE OR NONINFRINGEMENT OF THIRD PARTY RIGHTS (INCLUDING INTELLECTUAL PROPERTY RIGHTS), IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, INTEGRATION, OR FITNESS FOR A PARTICULAR PURPOSE, IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. YOU ASSUME THE ENTIRE RISK AND RESPONSIBILITY AS TO PERFORMANCE AND FOR SELECTING THE SOFTWARE TO ACHIEVE YOUR INTENDED RESULTS. WITHOUT LIMITING THE FOREGOING PROVISIONS, DEVOLUTIONS MAKES NO REPRESENTATION AND GIVES NO WARRANTY THAT THE SOFTWARE WILL BE ERROR-FREE, VIRUS-FREE OR FREE FROM INTERRUPTIONS OR OTHER FAILURES OR THAT THE SOFTWARE WILL MEET ANY OR ALL YOUR REQUIREMENTS, GOALS AND OBJECTIVES (INCLUDING ANTICIPATED REVENUES OR PROFITS DERIVED FROM THE USE OF THE SOFTWARE), WHETHER OR NOT DISCLOSED TO DEVOLUTIONS. DEVOLUTIONS PROVIDES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES WITH REGARD TO THIRD-PARTY COMPONENTS INCORPORATED INTO OR INTERACTING WITH THE SOFTWARE AND WILL NOT BE LIABLE FOR ANY FAILURE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSEANY SUCH THIRD-PARTY COMPONENTS TO FUNCTION AS EXPECTED OR INTENDED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WHETHER PERTAINING DEVOLUTIONS HAS NO OBLIGATION TO DEFEND LICENSEE OR ANY END USER AGAINST CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADEFOREGOING WARRANTY DISCLAIMERS ARE IN ADDITION TO, AND THE RIGHTS AND REMEDIES PROVIDED NOT IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL REPLACEMENT OF, ANY OTHER RIGHTS AND REMEDIES (EXCEPT WARRANTY DISCLAIMER APPLYING TO OPEN SOURCE SOFTWARE AS PROVIDED IN SECTION 8.4(d)APPLICABLE PUBLIC LICENSES, WHICH DISCLAIMERS ARE INCORPORATED INTO THIS AGREEMENT BY REFERENCE AND ARE DEEMED TO APPLY TO LICENSEE AND EACH END USER FOR THE BENEFIT OF DEVOLUTIONS AND ALL OPEN SOURCE SOFTWARE CONTRIBUTORS (AS APPLICABLE).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: End User License Agreement
Limited Warranty. (a) ICN AMI warrants that Products produced by AMI will conform to AMI’s Product specifications in effect at the time of delivery. If Buyer raises timely claims of a Product defect, AMI and Buyer shall designate a mutually acceptable independent testing company to investigate and in such case said testing company's findings shall be conclusive and binding on the parties (the expense of which examination shall be borne by AMI with respect to each shipment item found not to conform to specification and by Buyer with respect to each item found to conform to specifications). AMI’s exclusive liability, and Buyer’s exclusive remedy, for nonconforming Products is limited, at AMI’s option, to: (i) replacement of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications defective Products or (ii) refund of the batchpurchase price of such Products. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))Products may not be returned without AMI’s permission and transportation for return will not be paid by AMI unless authorized in advance.
(b) Subject Buyer acknowledges that AMI may also act as a distributor for Products that are manufactured or produced by third parties (“Resale Products”) and matters relating to Section 3.7(b) if the quality of the Resale Products are not within AMI’s control. Accordingly, Buyer shall have the benefit of any Product is shown to be in breach warranty extended directly by the applicable manufacturer of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming ProductResale Products. AMI MAKES NO WARRANTIES WHATSOEVER CONCERNING RESALE PRODUCTS.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT Except as expressly set forth herein, all Products are sold “AS SET FORTH IS”. THE FOREGOING WARRANTIES (AND RELATED REMEDIES) ARE IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FORLIEU OF, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FORAMI EXPRESSLY DISCLAIMS, ALL DAMAGESOTHER WARRANTIES, INCLUDING SPECIALGUARANTEES OR REPRESENTATIONS WHATSOEVER, INDIRECTINCLUDING, CONSEQUENTIAL WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR INCIDENTAL DAMAGES, WHICH WARRANTIES PROVIDED IN ARTICLE 2-312(3) OF THE UNIFORM COMMERCIAL CODE AND/OR ANY SIMILAR LAW THAT GOVERNS THE SALE OF PRODUCTS HEREUNDER. NO WARRANTY OR ASSUMPTION BY AMI OF ANY LIABILITY IN CONNECTION WITH THE SALE OF THE PRODUCTS (OTHER THAN THOSE CONTAINED HEREIN) MAY BE CAUSED BY, OR MADE UNLESS IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH WRITING AND SIGNED BY AN OFFICER OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONAMI.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Terms and Conditions of Sale
Limited Warranty. (a) ICN Vitronic warrants that each shipment of the Product supplied to Schering pursuant to this AgreementProduct, when shipped from the ICN Facility, shall conform to the Product Specificationsif properly used, shall be manufactured free from defects in material or workmanship for a period of one (1) year from the date of its shipment by ICN Vitronic (the "Warranty Period"). Vitronic's sole and supplied exclusive liability under this warranty (the "Limited Warranty") will be, at Vitronic's option, to Schering in accordance provide to Distributor the parts to repair or replace, or credit Distributor with the requirements price paid for, any Product which fails during the Warranty Period provided (i) Distributor has in writing reported same to Vitronic with an description of applicable law the deficiency, (ii) Vitronic has reasonably determined such component to be defective and under warranty and (iii) if applicable, such Product, or component, is returned to Vitronic under the procedures set forth in the country Schedule. This warranty does not cover Products or parts of manufacture and any other applicable regulatory legal requirements in Products (i) which have been subjected to unusual physical or electrical stress, (ii) on which the Territoryoriginal identification marks have been removed or altered, includingor (iii) which are damaged due to accident, without limitationmisuse, any current Good Manufacturing Practices requirementsneglect, and shall be of substantially equivalent quality as the Product produced alteration, repair, improper installation or testing or unauthorized modification unless caused or approved by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batchVitronic. THE WARRANTY PROVIDED FOR RIGHTS CONTAINED IN THIS SECTION 8.4(aPARAGRAPHS V(A) IS and V(B) EXTEND ONLY TO DISTRIBUTOR. THESE RIGHTS ARE DISTRIBUTOR'S SOLE AND EXCLUSIVE REMEDY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, AND THEY ARE IN LIEU OF OF, AND VITRONIC HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, NON-INTERFERENCE WITH ENJOYMENT, ACCURACY, MERCHANTABILITY AND OR FITNESS FOR A ANY PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT PURPOSE AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, ALL WARRANTIES IMPLIED FROM ANY COURSE OF DEALING OR USAGE OR OF TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (. DISTRIBUTOR ACKNOWLEDGES THAT EXCEPT AS EXPRESSLY PROVIDED IN SECTION 8.4(d))HEREIN NO OTHER WARRANTIES HAVE BEEN MADE TO DISTRIBUTOR BY OR ON BEHALF OF VITRONIC OR OTHERWISE FORM THE BASIS FOR THE BARGAIN BETWEEN THE PARTIES.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Limited Warranty. (a) ICN RMI represents and warrants that during the Warranty Period (i) the Products, when shipped, will be new and unused, (ii) it shall convey good and clear title to the Products, free and clear of all liens and encumbrances, (iii) at the Effective Date and on the date each shipment Product is first shipped to Purchaser, RMI is not aware of any material claims for infringement of Intellectual Property rights with respect to any of the Products, (iv) the Products will comply in all respects with the applicable Specifications and applicable ULA or CSA requirements, (v) the Products, as used in accordance with industry standards and any written instructions provided by RMI to Purchaser are safe for normal use, are non-toxic and present no abnormal hazards to persons or the environment, provided however, that for so long as RMI is RoHS 5 of 6 compliant, the presence of lead and other toxic substances in the Products shall not be deemed a violation of the limited warranty set forth in this clause (v), and (vi) the Products will be free from defects in materials, design and workmanship. The Warranty Period for a Product shall be one (1) year following the date of delivery to Purchaser. During the Warranty Period, at Purchaser’s option, RMI shall either refund the purchase price in full or RMI will, at its expense, replace with new and unused Products all Products not conforming to the requirements of this Section 10.3 which are returned to RMI in accordance with RMI’s established RMA process, transportation charges prepaid, and which are, after examination, disclosed to the satisfaction of RMI to be defective. All shipping and insurance charges for return of non-conforming Product shall be at RMI’s expense, provided, however, that if the returned Product is reasonably demonstrated by RMI to be conforming, then Purchaser will reimburse RMI for the actual and reasonable shipping charges and all purchase price refunds, as applicable. Replacement Product shall meet all Specifications and be functionally equal to or better than the returned unit. Product replacements effected during the warranty period shall be warranted, as provided below, for the remainder of the Product supplied to Schering pursuant to this Agreement, when shipped warranty or for one (1) year from the ICN Facilitydate of replacement, shall conform to whichever is longer. Any Product which has been replaced by RMI under the Product Specifications, terms of this limited warranty shall be manufactured shipped to a location designated by ICN and supplied to Schering in accordance with the requirements Purchaser or Purchaser CMs as soon as practicable after receipt of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN Purchaser’s request for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))replacement.
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Limited Warranty. CyDex covenants and warrants solely to Company that:
(a) ICN warrants that each shipment of the Product supplied All Captisol sold to Schering Company pursuant to this Agreement, when shipped from the ICN Facility, Agreement shall conform to the Product Specificationsrespective Specifications (as applicable for Clinical Grade Captisol or Commercial Grade Captisol), shall be manufactured by ICN the DMF, the Minimum Remaining Shelf Life and supplied to Schering in accordance with all applicable laws, including GMP, at the requirements time of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, delivery and shall not, before the 180th day after actual or deemed acceptance, be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide subject to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).any Latent Defects;
(b) Subject All Captisol sold to Section 3.7(b) if Company pursuant to this Agreement shall, to CyDex’s knowledge, not infringe any Product is shown to be in breach patent or other proprietary right of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.any Third Party;
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NONCyDex, its Affiliates and its Third-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(bParty Manufacturers are not a debarred entity and have not used and will not use in any capacity the services of any individual or entity debarred under 21 U.S.C. §335(a) ABOVEor (b) of the Federal Food, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.Drug and Cosmetic Act in connection with its obligations hereunder;
(d) NOTHING IN To CyDex’s knowledge, CyDex, its Affiliates and its Third-Party Manufacturers hold, and are operating in material compliance with, all permits, licenses, franchises, authorizations and clearances of the FDA and/or any other Major Market regulatory authority (including without limitation all applicable health, safety and environmental permits) related to Captisol and the manufacture and sale thereof, necessary for CyDex to carry out its obligations and for Company to exercise its rights under this Agreement and the License Agreement, except where the CERTAIN CONFIDENTIAL PORTIONS OF THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS EXHIBIT WERE OMITTED AND REPLACED WITH “[***]”. A COMPLETE VERSION OF INDEMNIFICATION THIS EXHIBIT HAS BEEN FILED SEPARATELY WITH THE SECRETARY OF THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO SECTIONS 11.2(a)(iiAN APPLICATION REQUESTING CONFIDENTIAL TREATMENT PURSUANT TO RULE 24B-2 PROMULGATED UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. failure to so hold or be so operating does not have and would not reasonably be expected to have a material adverse effect on (i) AND 11.2(b)CyDex and/or its ability to supply Captisol to Company hereunder and/or (ii) Company and/or its ability to obtain Captisol hereunder and/or exploit Licensed Products; and
(e) CyDex does not know of any actual or threatened enforcement actions relating to the manufacture and/or supply of Captisol against CyDex, its Affiliates or its Third-Party Manufacturers by the FDA or any other federal, state or Major Market regulatory authority.
Appears in 1 contract
Limited Warranty. (a) ICN PharmaChem warrants that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall delivered hereunder will (i) be manufactured by ICN and supplied to Schering in accordance with Legal Requirements, (ii) be manufactured in accordance with the requirements of applicable law agreed-upon manufacturing procedures described in the country master batch records supplied to GWM in accordance with the provisions of manufacture Section 7, as may be modified and any other [ * ] = CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 24B-2 OF THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED. disclosed to GWM in accordance with the provisions of Section 7, (iii) be manufactured in accordance with and conform to the then-applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirementsSpecifications, and shall (iv) meet the requirements for pharmaceutical commercial use as set forth in all Legal Requirements. GWM’s remedies and PharmaChem’s liability with respect to this warranty are set forth in Sections 3(e), 3(f), 12(a), 14, 16 and 17. These warranties are the only warranties made by PharmaChem with respect to Product delivered hereunder, and may only be modified or amended by a written instrument signed by a duly authorized officer of substantially equivalent quality as the Product produced PharmaChem and accepted by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batchGWM. THE WARRANTY PROVIDED FOR EXPRESS WARRANTIES SET FORTH IN THIS SECTION 8.4(a) IS 13 ARE THE EXCLUSIVE AND WARRANTIES MADE BY PHARMACHEM UNDER THIS AGREEMENT OR ANY PURCHASE ORDER GOVERNED BY THIS AGREEMENT, IN LIEU OF ALL OTHER EXPRESS OR IMPLIED WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING . IF ANY PRODUCT FAILS TO CONFORM TO THE PRODUCT WARRANTIES IN THIS SECTION 13, PHARMACHEM’S EXCLUSIVE OBLIGATION AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, GWM’S (OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(bGWM’S AFFILIATES’) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES REMEDY (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(aSUBJECT TO SECTIONS 3(E), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs3(F), 12(A), 16 AND 17) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT SHALL BE AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION14. Nothing in this Section 13 is intended as a limitation of PharmaChem’s defense and indemnification obligations pursuant to Section 16 or the recall obligations of PharmaChem under Section 17.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Manufacturing Supply Agreement (Gilead Sciences Inc)
Limited Warranty. (a) ICN warrants that each shipment Upon the issuance of the Product supplied to Schering pursuant to this Agreementa Certificate of Compliance, when shipped from the ICN Facility, shall conform to the Product Specifications, MOLECULAR MEDICINE shall be manufactured by ICN and supplied deemed to Schering warrant only that: (i) it has performed the Project with due care in accordance with the requirements Scope of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the TerritoryWork, including, without limitation, any current Good Manufacturing Practices requirementsPractices, and all applicable federal and state laws, rules and regulations, and (ii) the Product conforms to the Technical Specifications reported in the Certificate of Compliance. This limited warranty is specific to SPONSOR and does not extend to any licensee or sublicensee under Section 5 above, or to any other party. Any claim by SPONSOR for a breach of such warranty shall be of substantially equivalent quality as made in writing to MOLECULAR MEDICINE on or before the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications first anniversary of the batchdate that SPONSOR is notified that Product is complete. The sole remedy of SPONSOR for breach of this warranty shall be for MOLECULAR MEDICINE to perform the Project again, or (if practicable) to perform again such portions of the Project as maybe required to correct the deficiency. MOLECULAR MEDICINE SHALL NOT BE RESPONSIBLE FOR GENETIC ALTERATIONS, INCLUDING THE FORMATION OF REPLICATION-COMPETENT VIRUSES (SUCH AS REPLICATION-COMPETENT ADENOVIRUS OR REPLICATION-COMPETENT RETROVIRUS) THAT OCCUR DURING PRODUCTION OF THE PRODUCT. SUCH GENETIC ALTERATIONS SHALL NOT BE THE BASIS FOR A WARRANTY CLAIM BY SPONSOR. UNDER NO CIRCUMSTANCES SHALL MOLECULAR MEDICINE BE LIABLE UNDER THIS LIMITED WARRANTY TO SPONSOR OR ANY THIRD PARTY CLAIMING BY OR THROUGH SPONSOR FOR ANY CONSEQUENTIAL, SPECIAL, OR OTHER DAMAGES, AND THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) SET FORTH HEREIN IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS WHETHER EXPLICIT OR IMPLIED, INCLUDING INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING . MOLECULAR MEDICINE’S LIABILITY TO SPONSOR FOR DAMAGES OR LOSSES CAUSED TO SPONSOR AS A RESULT OF THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONTERMS AND CONDITIONS CONTAINED HEREIN (INCLUDING ANY EXHIBITS) SHALL IN NO EVENT EXCEED THE FEE PAID BY SPONSOR TO MOLECULAR MEDICINE IN CONNECTION WITH THE PROJECT.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Production Service Agreement (Cardium Therapeutics, Inc.)
Limited Warranty. (a) ICN warrants that each shipment of the Product supplied to Schering pursuant to this AgreementExcept as specified below, when shipped products sold hereunder shall be free from the ICN Facility, defects in materials and workmanship and shall conform to Valco’s published specifications or other specifications accepted in writing by Valco for one year from the Product Specificationsdate of shipment or its useful life, whichever is less. The foregoing warranty does not apply to any products which have been subject to misuse, neglect, accident or modification or which have been altered or soldered such that they are not capable of being tested under normal test conditions. Valco's sole obligation for products failing to comply with this warranty shall be manufactured by ICN be, at Xxxxx's discretion, to either replace the nonconforming product or issue Buyer credit for the purchase price of the nonconforming product where, within the warranty period and supplied to Schering in accordance with Valcos return procedures: (1) Valco has received Buyer's request for an Return Merchandise Authorization (“RMA”) for the requirements return of applicable law nonconforming product; (2) where Valco has issued Buyer an RMA; (3) Buyer has returned the nonconforming product to Valco in accordance with Valco 's return procedures; and (4) Valco has determined that the country product is nonconforming and such nonconformity is not the result of manufacture and any improper installation, repair or other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batchmisuse. THE FOREGOING WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS AND REMEDIES ARE EXCLUSIVE AND IN LIEU OF VALCO HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS EXPRESSED, IMPLIED OR IMPLIEDOTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY AND MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. XXXXX DOES NOT ASSUME OR AUTHORIZE ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN SECTION 8.4(b) ABOVE, ICN CONNECTION WITH ITS PRODUCTS. IN NO EVENT SHALL NOT VALCO BE LIABLE TO SCHERING FORBUYER, AND SCHERING WAIVES OR ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGESSUBSEQUENT PURCHASER OF ANY PRODUCTS FURNISHED TO BUYER, INCLUDING THE ULTIMATE END-USER, IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY, OR OTHERWISE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, THE COST OF LABOR, REQUALIFICATION, DELAY, LOSS OF PROFITS OR GOODWILL, EVEN IF THE EXCLUSIVE REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE AND EVEN IF VALCO IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSIVE REMEDY OF BUYER IS THE REPAIR OR REPLACEMENT OF NONCONFORMING GOODS OR THE ISSUANCE TO BUYER OF CREDIT OR REFUND FOR THE PURCHASE PRICE OF THE NONCONFORMING GOODS, AT VALCO’S DISCRETION. IN THE EVENT OF BREACH OR REPUDIATION OF THE CONTRACT BY VALCO, BUYER SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL OR INCIDENTAL EXEMPLARY DAMAGES. IT IS THE INTENT OF THE PARTIES THAT THIS REMEDY PROVIDED HEREIN IS THE SOLE REMEDY AVAILABLE TO BUYER AND IS NOT CUMULATIVE OF THOSE PROVIDED BY COMMON LAW OR STATUTE. IN NO EVENT SHALL VALCO BE LIABLE TO BUYER, WHICH MAY BE CAUSED BYITS AGENTS, OFFICERS, EMPLOYEES, SUBSIDIARIES OR AFFILIATES FOR MORE THAN THE PURCHASE PRICE OF THE GOODS SOLD BY VALCO TO BUYER. XXXXX UNDERSTANDS AND ACKNOWLEDGES THAT VALCO RELIED ON THIS PROVISION IN ANY WAY RESULT FROMPRICING ITS GOODS. All sales shall be governed and construed by the laws of the State of Texas in the United States of America, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENTexcept that conflict of law rules shall be disregarded. Furthermore, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERYthe exclusive venue for resolving any dispute between the parties shall lie in Houston, OR FAILURE TO DELIVERXxxxxx County, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONTexas.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Standard Conditions of Sale
Limited Warranty. (a) ICN XXXX warrants that each shipment for a period of six months after [installation] that: the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, product(s) and service(s) furnished hereunder shall conform to the Product Specifications, specifications set forth in this Contract; and the products when properly used and maintained will be free from defects in material and workmanship. Buyer shall be manufactured by ICN and supplied to Schering promptly notify XXXX in accordance with the requirements writing of applicable law in the country any breach of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, XXXX’x warranties and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batchsatisfactory proof thereof. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING FOREGOING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF OF, AND XXXX EXPRESSLY DISCLAIMS, ALL OTHER RIGHTS WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OR ANY OTHER MATTER SHALL NOT APPLY AND XXXX DISCLAIMS ALL REPRESENTATIONS OR WARRANTIES WITH RESPECT TO TITLE, NON- INFRINGEMENT, VALIDITY AND ENFORCEABILITY. BUYER REMEDIES (EXCEPT ARE SOLELY AND EXCLUSIVELY AS PROVIDED IN SECTION 8.4(d))STATED HEREIN.
(b) Subject XXXX’x warranties do not extend to Section 3.7(b(i) if any Product is shown damages or losses due to be in breach of ICN's warranty misuse, accident, disaster, abuse, neglect, normal wear and tear, improper maintenance or operation or damage or losses due to work not performed by XXXX or its subcontractors; ("Non-Conforming Product"ii) contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product parts not supplied by XXXX or its subcontractors; (iii) damage or loss caused by equipment or any part thereof which has been repaired or altered by Buyer or any third party; (iv) reasonable and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.necessary maintenance; or
(cv) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVEdefects or nonconformity arising out of incorrect or insufficient data, ICN SHALL NOT BE LIABLE TO SCHERING FORdrawings, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONspecifications or instructions furnished by Buyer whether with respect to the performance of the equipment or material or the conditions under which such performance is required or otherwise.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Terms and Conditions of Sale
Limited Warranty. (a) ICN Company warrants that each shipment of it will provide its reasonable efforts to perform the Product supplied to Schering pursuant to Services specified in this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall and that such efforts will be manufactured by ICN and supplied to Schering provided in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. workmanlike manner.
(b) EXCEPT FOR THE WARRANTY PROVIDED FOR SET FORTH IN THIS SECTION 8.4(a7(a) IS EXCLUSIVE ABOVE, COMPANY MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, AND IN LIEU DISCLAIMS ANY SUCH OTHER WARRANTY INCLUDING ANY (1) WARRANTY OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES MERCHANTABILITY; (2) WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ; (3) WARRANTY OF TITLE; (4) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; (4) WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING EXPRESS OR IMPLIED BY LAW, CUSTOMCOURSE OF DEALING, CONDUCTCOURSE OF PERFORMANCE, USAGE OF TRADE OR USAGE OTHERWISE; (5) WARRANTY OF CONFORMITY OF THE TRIBUTE OR TRADE, AND VIRTUAL TOUR TO SAMPLE PICTORIAL REPRESENTATIONS PROVIDED ON THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming ProductWEBSITE.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(bThe Company shall not be liable for a breach of the warranty set forth in 7(a) ABOVEabove unless: (i) Customer gives written notice of the defect, ICN SHALL NOT BE LIABLE TO SCHERING FORreasonably described, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FORto Company within three days of the date scheduled for placement of the Tribute in the Order, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONand (ii) Company reasonably verifies Customer’s claim that the Services are defective.
(d) NOTHING Subject to Section 7 (b) and Section 7(c) above, with respect to any such defective Services found by Company to be defective, Company shall, in its sole discretion, either: (i) reperform the Services (or the defective part) or (ii) credit or refund the price of such Services.
(e) THE REMEDIES SET FORTH IN THIS SECTION 7(d) SHALL BE DEEMED THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND COMPANY'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(bSECTION 7(a).
Appears in 1 contract
Samples: Service Agreement
Limited Warranty. (a) ICN Seller warrants to Buyer that each from the date of shipment of the Product supplied to Schering pursuant to this AgreementGoods until the dates specified below (in each case, when shipped from the ICN Facility"Warranty Period"), shall that such Goods will materially conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering specifications set forth in accordance with the requirements of applicable law Seller's published specifications in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality effect as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batchdate of shipment and will be free from material defects in material and workmanship as follows:
i. the V-Sign™ Sensor 2, model VS-A/P/N, excluding the cable, for the period of eighteen (18) months after purchase by Buyer;
ii. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(athe OxiVenT™ Sensor, model OV-A/P/N, excluding the cable, for the earliest of a period of twelve (12) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIESmonths after purchase by Buyer; or 4320 hours usage time;
iii. the SenTec Digital Monitor and electric or electronic accessories except cables for the earlier of twenty-four (24) months after purchase by Xxxxx;
iv. the perishable and disposable products, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))until the expiration date printed on the label.
(b) Subject Seller warrants to Section 3.7(b) if any Product is shown Buyer that it shall perform Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Productmeet its obligations under this Agreement.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS THE WARRANTIES SET FORTH IN SECTION 8.4(bSECTIONS 13(A) ABOVE, ICN SHALL NOT BE LIABLE AND (B),] SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGESTHE GOODS OR SERVICES, INCLUDING SPECIALANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, INDIRECTCOURSE OF DEALING, CONSEQUENTIAL OR INCIDENTAL DAMAGESCOURSE OF PERFORMANCE, WHICH MAY BE CAUSED BYUSAGE OF TRADE, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONOTHERWISE.
(d) NOTHING Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 13(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(e) The Seller shall not be liable for a breach of the warranties set forth in Section 13(a) and Section 13(b) unless during the applicable Warranty Period:
(i) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within one (1) day of the time when Xxxxx discovers or ought to have discovered the defect except for Xxxxx’s five (5) day period to inspect Goods upon delivery; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 13(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods or Services are defective.
(f) The Seller shall not be liable for a breach of the warranty set forth in Section 13(a) or Section 13(b) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; or (iii) Buyer attempts to alter or repair such Goods without the prior written consent of Seller.
(g) Subject to Section 13(e) and Section 13(f) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.
(h) Subject to Section 13(e) and Section 13(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 13(b), Seller shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
(i) THE REMEDIES SET FORTH IN THIS SECTION 13(G) AND (H) SHALL BE DEEMED THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii13(A) AND 11.2(b(B), RESPECTIVELY.
Appears in 1 contract
Samples: General Terms and Conditions
Limited Warranty. (a) ICN Echoflex warrants to Buyer that each for a period of five (5) years from the date of shipment of the Product supplied to Schering pursuant to this AgreementGoods (”Warranty Period”), when shipped from the ICN Facility, shall that such Goods will materially conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering specifications set forth in accordance with the requirements of applicable law Echoflex’s published specifications in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality effect as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d))date of shipment and will be free from defects in material and workmanship.
(b) Subject Echoflex warrants to Section 3.7(b) if any Product is shown Buyer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Productmeet its obligations under this Agreement.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS THE WARRANTIES SET FORTH IN SECTION 8.4(b10(a) ABOVEAND 10(b), ICN SHALL NOT BE LIABLE ECHOFLEX MAKES NO CONDITION OR WARRANTY WHATSOEVER WITH RESPECT TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGESTHE GOODS OR SERVICES, INCLUDING SPECIALANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; OR (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, INDIRECTCOURSE OF DEALING, CONSEQUENTIAL COURSE OF PERFORMANCE, USAGE OF TRADE OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONOTHERWISE.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN Products manufactured by a third party (”Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 10(a). For the avoidance of doubt, ECHOFLEX MAKES NO REPRESENTATIONS, CONDITIONS OR WARRANTIES WITH RESPECT TO ANY WAY TO LIMIT SCHERING'S THIRD PARTY PRODUCT, INCLUDING ANY (a) CONDITION OR WARRANTY OF MERCHANTABILITY; (b) CONDITION OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) CONDITION OR WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(iiA THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(e) AND 11.2(b)Echoflex shall not be liable for a breach of the warranties set forth in Section 10(a) and Section 10(b) unless: (i) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Echoflex within five (5) days of the time when Buyer discovers or ought to have discovered the defect;
Appears in 1 contract
Samples: Terms and Conditions
Limited Warranty. (a) ICN warrants that each shipment of the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY 34 41 PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Exclusive License and Supply Agreement (Ribapharm Inc)
Limited Warranty. (a) ICN Unless otherwise provided in the Order Form, Netradyne warrants to Customer that each for a period of twelve (12) months from the date of shipment of the Product supplied to Schering pursuant to this AgreementHardware ("Warranty Period"), when shipped from the ICN Facility, shall such Hardware will materially conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering Netradyne's published specifications in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality effect as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).date of the applicable accepted Order Form and such Hardware will be free from material defects in material and workmanship.
(b) Subject Netradyne warrants to Section 3.7(bCustomer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement. Any concerns or claims should be directed to xxxxxxx@xxxxxxxxx.xxx or 0-000-XXX-XXXX. You can expect a response within one (1) if any Product business day. Please note that Netradyne is shown not responsible for factors outside of Netradyne’s reasonable control (such as your inability to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(aaccess the internet), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product . Please visit xxx.xxxxxxxxx.xxx/xxx for additional terms and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.conditions.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS THE WARRANTIES SET FORTH IN SECTION 8.4(bSECTIONS 11(a) ABOVEAND (b), ICN SHALL NOT BE LIABLE NETRADYNE MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO SCHERING FORTHE HARDWARE, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGESFIRMWARE OR SERVICES, INCLUDING SPECIALANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, INDIRECTCOURSE OF DEALING, CONSEQUENTIAL OR INCIDENTAL DAMAGESCOURSE OF PERFORMANCE, WHICH MAY BE CAUSED BYUSAGE OF TRADE, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONOTHERWISE.
(d) NOTHING Products manufactured by a third-party ("Third-Party Products") and other Third-Party Materials may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Hardware. Third-Party Products and Third-Party Materials are not covered by the warranty in Section 11(a). For the avoidance of doubt, NETRADYNE MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD- PARTY PRODUCT OR THIRD-PARTY MATERIALS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD- PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(e) Netradyne shall not be liable for a breach of the warranties set forth in Section 11(a) and Section 11(b) unless: (i) Customer gives written notice of the defective Hardware, Firmware or Services, as the case may be, reasonably described, to Netradyne within ten (10) days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, Netradyne is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 11(a) to examine such Hardware and Customer (if requested to do so by Netradyne) returns such Hardware to Netradyne's place of business at Netradyne's cost for the examination to take place there; and (iii) Netradyne reasonably verifies Customer's claim that the Hardware, Firmware or Services are defective.
(f) Netradyne shall not be liable for a breach of the warranties set forth in Section 11(a) or Section 11(b) if: (i) Customer makes any further use of such Hardware, Firmware or Services after giving such notice (except that Customer may continue to use the Driveri Services after giving such notice); (ii) the defect arises because Customer failed to follow Netradyne's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Hardware or the use of the Firmware or Services; (iii) Customer alters or repairs such Hardware or Firmware without the prior written consent of Netradyne.
(g) Subject to Section 11(e) and Section 11(f) above, with respect to any such Hardware during the Warranty Period, Netradyne shall, in its sole discretion, either: (i) repair or replace such Hardware (or the defective part) or (ii) credit or refund the price of such Hardware at the pro rata contract rate provided that, if Netradyne so requests, Customer shall, at Netradyne's expense, return such Hardware to Netradyne.
(h) Subject to Section 11(e) and Section 11(f) above, with respect to any Services subject to a claim under the warranty set forth in Section 11(b), Netradyne shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
(i) THE REMEDIES SET FORTH IN THIS SECTION 11(g) AND (h) SHALL BE DEEMED THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND NETRADYNE'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii11(a) AND 11.2(b(b), RESPECTIVELY.
Appears in 1 contract
Limited Warranty. (a) ICN Zibrio hereby warrants that each shipment to Franchisee, during the term of this Agreement and so long as the Product supplied to Schering pursuant to is used in the correct manner as described in the user manual, that Products purchased under this AgreementAgreement (i) will accurately measure the weight of adults between 85 pounds and 350 pounds and (ii) will also accurately provide outputs that, when shipped from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering analysed in accordance with the requirements user manual, can be used to measure adults’ postural stability and risk of applicable law falling.
(b) If a Product purchased pursuant to this Agreement does not comply with the foregoing warranty during the term of this Agreement, Franchisee may return the non- compliant Product to Zibrio and Zibrio will promptly correct such defect or error, or replace the defective Product with a new Product, at no cost to Franchisee, and ship the repaired or replaced Product to Franchisee in the country of manufacture contiguous United States at Zibrio’s cost.
(c) The warranties set forth herein do not apply to any Product which has (i) been subjected to abuse, misuse, neglect, accident, or mishandling, (ii) been opened, repaired, modified, or altered by anyone other than Zibrio, (iii) been used for or subjected to applications, environments, or physical or electrical stress or conditions other than as intended and any recommended by Zibrio, (iv) been improperly stored, transported, installed, or used, (v) had its serial number or other applicable regulatory legal requirements identification markings altered or removed, or (vi) not been used in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for accordance with its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. user manual.
(d) THE WARRANTY PROVIDED FOR WARRANTIES SPECIFICALLY SET FORTH IN THIS SECTION 8.4(a3(a) IS EXCLUSIVE ABOVE ARE THE ONLY WARRANTIES GIVEN BY ZIBRIO WITH RESPECT TO THE PRODUCTS AND THE REST OF THE FITNESS BUNDLE AND ARE GIVEN IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR WHETHER EXPRESS, IMPLIED, STATUTORY, OR ARISING BY CUSTOM, TRADE USAGE, OR COURSE OF DEALING, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ZIBRIO HEREBY DISCLAIMS ANY AND ALL CLAIMS AGAINST ICN FOROTHER WARRANTIES TO THE MAXIMUM EXTENT PERMITTED BY LAW. To the extent an implied warranty cannot be excluded, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONsuch warranty is limited in duration to the term of this Agreement. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Franchise Agreement
Limited Warranty. (a) ICN Subject to the limitations set forth in this Section 8 and in Section 9 below, Miltenyi warrants to Customer that each shipment its Products and Services deliverables (“Deliverables”) shall substantially conform to Miltenyi’s published specifications for such Products and Deliverables in effect at the time of order acceptance.
(b) Promptly upon receipt of Products or Deliverables hereunder, Customer shall examine such Products or Deliverables for any defect or damage, including non-conformity to the warranty set forth in Section 8(a). All claims, including without limitation for non- conforming Products or Service deliverables, shortage or any other cause whatsoever, shall be deemed waived unless made in writing and received by Miltenyi within 10 business days after Customer’s receipt of the Products or Service deliverables. Customer’s failure to give notice of any claim within such period shall be deemed an irrevocable and unconditional waiver of such claim.
(c) As Miltenyi’s sole liability, and Customer’s sole and exclusive remedy, for the failure of any Product supplied or Deliverable provided under the Agreement to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform to the warranty set forth in Section 8(a), Miltenyi shall, at Miltenyi’s option: (i) as applicable, replace such non-conforming Product Specificationsand/or re-perform the Services that resulted in such non-conforming Deliverables at no additional cost to Customer within a reasonable period of time; or (ii) refund the price paid by Customer for such non-conforming Product or the Services that resulted in such non-conforming Deliverable.
(d) This warranty does not apply to any non-Miltenyi manufactured products, shall be even if packaged or sold with Miltenyi Products or provided through Miltenyi Services. Such other manufacturers may provide their own warranties or guarantees to Customer. Miltenyi only sells its Products and Services subject to the limited warranty set forth herein. As to any products or parts not manufactured by ICN Miltenyi, Miltenyi will undertake, when possible, to pass on to Customer the benefit of any other manufacturer’s warranty or guarantee provided to Customer or Miltenyi but Miltenyi shall not be responsible for ensuring the satisfaction of any such warranty or guarantee.
(e) This warranty shall not apply: (i) to any defect or damage caused by force majeure or other outside impact not attributable to Miltenyi; (ii) any non-conformance resulting from inappropriate treatment, excess usage, misuse, neglect, improper storage, disregard of operating and supplied safety procedures or recommended maintenance intervals, or normal wear and tear; and in particular if the non- conforming Products or Deliverables have been handled, used or operated by untrained users, submitted to Schering in accordance with the requirements of applicable law abnormal conditions (including, but not limited to, mechanical, electrical or thermal) during storage, installation or use, or serviced, repaired or altered except as set forth in the country user manual or otherwise expressly authorized by Miltenyi, or otherwise interfered with by the Customer and/or by unauthorized third parties; (iii) if the non-conformance results from the use of manufacture and any replacement parts, consumables, accessories and/or expendable materials (in particular, reagents) other applicable regulatory legal requirements than those expressly approved by Miltenyi (e.g., in the Territoryuser manual or otherwise in writing); or (iv) to Products and Deliverables supplied at Customer’s request which Miltenyi has indicated may not conform to applicable specifications or which constitute experimental, includingdevelopmental or, without limitationsubgrade, any current Good Manufacturing Practices requirementssample, and shall be beta testing, prototype, pre-production and/or non- qualified products; or (v) if a defect results from the design, specifications or instructions of substantially equivalent quality as Customer and/or its representatives, or a third party supplier of Customer, for such Products or Deliverables, or utilizing the Product produced by ICN for intellectual property of Customer and/or its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. affiliates, or such third party supplier, including process and/or product technology.
(f) THE LIMITED WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a8(a) ABOVE IS EXCLUSIVE AND EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY GRANTED IN SECTION 8(a) ABOVE, MILTENYI HEREBY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITH RESPECT TO PRODUCTS DELIVERED AND SERVICES PERFORMED UNDER THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO NON-INFRINGEMENT OF THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCTINTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR USAGE OR TRADEARISING FROM A COURSE OF DEALING, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BYUSAGE, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONTRADE PRACTICES.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
Samples: Terms and Conditions of Sale
Limited Warranty. (a) ICN RMI represents and warrants that during the Warranty Period (i) the Products, when shipped, will be new and unused, (ii) it shall convey good and clear title to the Products, free and clear of all liens and encumbrances, (iii) at the Effective Date and on the date each shipment Product is first shipped to Purchaser, RMI is not aware of any material claims for infringement of Intellectual Property rights with respect to any of the Products, (iv) the Products will comply in all respects with the applicable Specifications and applicable ULA or CSA requirements, (v) the Products, as used in accordance with industry standards and any written instructions provided by RMI to Purchaser are safe for normal use, are non-toxic and present no abnormal hazards to persons or the environment, provided however, that for so long as RMI is RoHS 5 of 6 compliant, the presence of lead and other toxic substances in the Products shall not be deemed a violation of the limited warranty set forth in this clause (v), and (vi) the Products will be free from defects in materials, design and workmanship. The Warranty Period for a Product shall be one (1) year following the date of delivery to Purchaser. During the Warranty Period, at Purchaser’s option, RMI shall either refund the purchase price in full or RMI will, at its expense, replace with new and unused Products all Products not conforming to the requirements of this Section 10.3 which are returned to RMI in accordance with RMI’s established RMA process, transportation charges prepaid, and which are, after examination, disclosed to the satisfaction of RMI to be defective. All shipping and insurance charges for return of non-conforming Product shall be at RMI’s expense, provided, however, that if the returned Product is reasonably demonstrated by RMI to be conforming, then Purchaser will reimburse RMI for the actual and reasonable shipping charges and all purchase price refunds, as applicable. Replacement Product shall meet all Specifications and be functionally equal to or better than the returned unit. Product replacements effected during the warranty period shall be warranted, as provided below, for the remainder of the Product supplied to Schering pursuant to this Agreement, when shipped warranty or for one (1) year from the ICN Facilitydate of replacement, shall conform to whichever is longer. Any Product which has been replaced by RMI under the Product Specifications, terms of this limited warranty shall be manufactured shipped to a location designated by ICN and supplied to Schering in accordance with the requirements Purchaser or Purchaser CMs as soon as practicable after receipt of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN Purchaser’s request for its own usereplacement. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER PERTAINING TO THE PRODUCT AND WHETHER ARISING BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTION.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)10.3.2
Appears in 1 contract
Samples: Master Purchase Agreement
Limited Warranty. (a) ICN warrants that each shipment In performing the Services, RPP shall employ methods, procedures and utilities of the Product supplied a quality at least equal to Schering pursuant those employed by it with respect to its own business and affairs. Except as otherwise provided in this Agreement, when shipped from the ICN Facility, shall conform to the Product Specifications, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territory, including, without limitation, any current Good Manufacturing Practices requirements, and shall be of substantially equivalent quality as the Product produced by ICN for its own use. ICN shall provide to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(aRPP EXPRESSLY DISCLAIMS (i) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES WITHOUT LIMITATION, THOSE OF MERCHANTABILITY AND MERCHANTABILITY, WORKMANSHIP, DESIGN, FITNESS FOR A PARTICULAR PURPOSEPURPOSE AND INFRINGEMENT; AND (ii) THAT THE SERVICES PROVIDED HEREUNDER WILL YIELD ANY GIVEN OR STATED ECONOMIC, WHETHER PERTAINING FINANCIAL, PROFIT OR BUSINESS RESULT TO RSM OR WILL RESULT IN RSM HAVING ANY GIVEN STANDING OR POSITION IN ANY BUSINESS, MARKET OR PRODUCT. NEITHER PARTY SHALL HAVE LIABILITY TO THE PRODUCT OTHER FOR ANY PUNITIVE DAMAGES OF ANY TYPE OR KIND. BOOKS AND WHETHER ARISING BY LAWRECORDS
8.1 RPP shall keep, CUSTOMand make available to RSM and its representatives, CONDUCTcomplete and accurate records and accounts, OR USAGE OR TRADEin accordance with RPP’s normal practices, AND THE RIGHTS AND REMEDIES PROVIDED IN SECTION 8.4(bof all material transactions pertaining to the Services, and shall preserve them for the longer of (a) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER RIGHTS AND REMEDIES a period of two (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
2) years following the end of the fiscal year to which they pertain, (b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (period consistent with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) RPP’s retention policies or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVEupon prior written notice by RSM to RPP, ICN SHALL NOT BE LIABLE TO SCHERING FORsuch period indicated in such notice as may be necessary to enable RSM to comply with provisions of applicable law. After the expiration of such period referred to in this Article 9.1, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH OF WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OF ACTIONRPP shall have no further duty to retain any of such books and records or to notify RSM before the disposition or destruction thereof. RSM may review these books and records upon reasonable advance notice during normal business hours.
8.2 RPP shall provide a list of any such books and records which have become eligible for destruction to RSM for review before disposal takes place. RSM shall provide the name of the reviewing party to RPP and reviews shall occur and be completed within sixty (d60) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)days of presenting the list of records eligible for destruction. If RSM does not respond to RPP within 60 days, such books and records may be destroyed or shipped to RSM for disposition.
8.3 Notwithstanding the expiration or earlier termination of this Agreement, the Parties’ obligations to each other under this Article 9 regarding events or obligations occurring or arising during the Term shall survive such expiration or earlier termination until fulfilled.
Appears in 1 contract
Limited Warranty. Derma warrants and guarantees that: (ai) ICN warrants that each shipment of upon delivery by Derma the Product supplied to Schering pursuant to this Agreement, when shipped from the ICN Facility, shall conform Products will comply with all specifications provided by Derma relative to the Product SpecificationsProducts and will be of comparable quality to all samples delivered to Merit; (ii) the Products will not be altered or misbranded; (iii) the Products do not and will not infringe upon or violate any patent, shall be manufactured by ICN and supplied to Schering in accordance with the requirements of applicable law in the country of manufacture and any other applicable regulatory legal requirements in the Territorycopyright, includingtrademark, tradename or, without limitation, any current Good Manufacturing Practices requirementsother intellectual property rights belonging to others; (iv) all weights, measures, sizes, legends, or descriptions printed, stamped, attached or otherwise indicated by Derma with regard to the Products are true and shall correct; and (v) the Products are not knowingly in violation of any other laws, ordinances, statutes, rules, or regulations of the United States or any state or local government or any subdivision or agency thereof. Except as expressly stated in this Section 4.7 and except as may be of substantially equivalent quality as expressly stated by Derma on the Product produced by ICN for its own use. ICN shall provide or on Derma's packaging or in Derma's information accompanying the Products at the time of shipment to Schering concurrently with each shipment of Product a Certificate of Analysis which contains analytical results and specifications of the batch. Merit hereunder, DERMA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE WARRANTY PROVIDED FOR IN THIS SECTION 8.4(a) IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIESPRODUCTS, EXPRESS OR IMPLIED, INCLUDING WARRANTIES ANY IMPLIED WARRANTY OF MERCHANTABILITY AND OR FITNESS FOR A PARTICULAR PURPOSE. DERMA NEITHER ASSUMES NOR AUTHORIZES ANYONE TO ASSUME FOR IT ANY OBLIGATION OR LIABILITY IN CONNECTION WITH THE PRODUCTS. Merit shall not make any representation or warranty with respect to the Products that is more extensive than, WHETHER PERTAINING TO or inconsistent with, the limited warranty set forth in this Section 4.7 or that is inconsistent with the policies or publications of Derma relating to the Products. MERIT'S EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER IS THE PRODUCT AND WHETHER ARISING DELIVERY BY LAW, CUSTOM, CONDUCT, OR USAGE OR TRADE, AND DERMA OF ADDITIONAL QUANTITIES OF THE RIGHTS AND REMEDIES PROVIDED PRODUCTS IN SECTION 8.4(b) ARE EXCLUSIVE AND IN LIEU REPLACEMENT OF ALL OTHER RIGHTS AND REMEDIES (EXCEPT AS PROVIDED IN SECTION 8.4(d)).
(b) Subject to Section 3.7(b) if any Product is shown to be in breach of ICN's warranty ("Non-Conforming Product") contained in Section 8.4(a), Schering's exclusive remedy shall be to return to ICN the Non-Conforming Product and to receive a credit (with ICN paying related transportation costs) in the amount paid to ICN hereunder for such Non-Conforming Product and related transportation costs (including costs of returning such Non-Conforming Product) or to have ICN replace such Non-Conforming Product.
(c) EXCEPT FOR ICN'S OBLIGATION TO REFUND OR REPLACE THE NON-CONFORMING PRODUCT AS SET FORTH IN SECTION 8.4(b) ABOVE, ICN SHALL NOT BE LIABLE TO SCHERING FOR, AND SCHERING WAIVES ANY AND ALL CLAIMS AGAINST ICN FOR, ALL DAMAGES, INCLUDING SPECIAL, INDIRECT, CONSEQUENTIAL PRODUCTS OR INCIDENTAL DAMAGES, WHICH MAY BE CAUSED BY, OR IN ANY WAY RESULT FROM, THE PRODUCT OR THEIR DELIVERY UNDER THIS AGREEMENT, INCLUDING DAMAGES RESULTING FROM DELAYS IN DELIVERY, OR FAILURE TO DELIVER, ANY PRODUCT WHETHER BASED ON BREACH REFUND OF THE CONTRACT PRICE FOR THE PRODUCTS THAT ARE COVERED BY THE WARRANTY, STRICT AT MERIT'S OPTION. DERMA SHALL HAVE NO OTHER OBLIGATION OR LIABILITY FOR DAMAGES TO MERIT OR ANY OTHER CAUSE PERSON, INCLUDING, BUT NOT LIMITED TO, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF ACTIONPROFITS OR OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY OTHER LOSS, DAMAGE OR EXPENSE, ARISING OUT OF OR IN CONNECTION WITH THE SALE, USE, LOSS OF USE, NONPERFORMANCE OR REPLACEMENT OF THE PRODUCTS.
(d) NOTHING IN THIS SECTION SHALL BE DEEMED IN ANY WAY TO LIMIT SCHERING'S RIGHTS OF INDEMNIFICATION PURSUANT TO SECTIONS 11.2(a)(ii) AND 11.2(b)
Appears in 1 contract
