Common use of Representations and Warranties Disclaimers Clause in Contracts

Representations and Warranties Disclaimers. 11.1 Midmark warrants that: (a) the Services will substantially perform in accordance with applicable Documentation; (b) it will use commercially reasonable efforts, in accordance with industry standard practices, to protect the Services from the introduction of Malicious Code; and (c) it will perform the support services in a professional and workmanlike manner in accordance with applicable industry standards. You shall notify Midmark of any non-compliance with the foregoing warranties within 30 days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, as Your sole and exclusive remedy and Midmark’s sole obligation for a breach of the warranties in this Section 11.1, Midmark shall use commercially reasonable efforts to repair or replace any Services or reperform any support services that do not conform with the foregoing warranties. 11.2 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIDMARK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. XXXXXXX DOES NOT REPRESENT THAT THE SERVICES WILL BE COMPLETELY SECURE, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF OR ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREE, THAT ANY INFORMATION GENERATED, POSTED, MAINTAINED, OR ACCESSED WILL BE ACCURATE, TIMELY, OR COMPLETE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED.

Representations and Warranties Disclaimers. 11.1 Midmark warrants that1) SELLER DOES NOT, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, AND SELLER SHALL NOT, BY THE EXECUTION AND DELIVERY OF ANY DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION WITH CLOSING, MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WHATSOEVER, WITH RESPECT TO THE PROPERTY, AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, SELLER MAKES, AND SHALL MAKE, NO EXPRESS OR IMPLIED WARRANTY AS TO: (aI) the Services will substantially perform in accordance with applicable Documentation; MATTERS OF TITLE (b) it will use commercially reasonable efforts, in accordance with industry standard practices, to protect the Services from the introduction of Malicious Code; and (c) it will perform the support services in a professional and workmanlike manner in accordance with applicable industry standards. You shall notify Midmark of any non-compliance with the foregoing warranties within 30 days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, as Your sole and exclusive remedy and Midmark’s sole obligation for a breach of the warranties in this Section 11.1, Midmark shall use commercially reasonable efforts to repair or replace any Services or reperform any support services that do not conform with the foregoing warranties. 11.2 EXCEPT FOR THE OTHER THAN SELLER’S LIMITED WARRANTIES WARRANTY OF TITLE SET FORTH ABOVEIN THE DEED AT CLOSING), (II) ZONING, (III) TAX CONSEQUENCES, (IV) PHYSICAL OR ENVIRONMENTAL CONDITION (INCLUDING, WITHOUT LIMITATION, LAWS, RULES, REGULATIONS, ORDERS AND REQUIREMENTS PERTAINING TO THE USE, HANDLING, GENERATION, TREATMENT, STORAGE OR DISPOSAL OF ANY TOXIC OR HAZARDOUS WASTE OR TOXIC, HAZARDOUS OR REGULATED SUBSTANCE AND FURTHER INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE AND COMPENSATION AND LIABILITY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, THE CLEAN WATER ACT, THE SOLID WASTE DISPOSAL ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE OIL POLLUTION ACT, THE FEDERAL CLEAN AIR ACT, THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT, AND ANY AND ALL STATE LAWS SIMILAR TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWFOREGOING, MIDMARK DISCLAIMS EACH AS MAY BE AMENDED FROM TIME TO TIME, AND INCLUDING ANY AND ALL REGULATIONS, RULES OR POLICIES PROMULGATED THEREUNDER (HEREIN COLLECTIVELY CALLED THE “ENVIRONMENTAL LAWS”), (V) VALUATION, (VI) GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER WARRANTIESMATTER OR THING RELATING TO OR AFFECTING THE PROPERTY, EXPRESS(VII) THE USE, IMPLIEDINCOME POTENTIAL, EXPENSES, OPERATION OR CHARACTERISTICS OF THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, HABITABILITY, MERCHANTABILITY, DESIGN OR FITNESS FOR ANY SPECIFIC PURPOSE OR FOR A PARTICULAR PURPOSE, OR STATUTORYGOOD OR WORKMANLIKE CONSTRUCTION, (VIII) THE NATURE, MANNER, CONSTRUCTION, CONDITION, STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE IMPROVEMENTS, ON THE SURFACE OR SUBSURFACE THEREOF WHETHER OR NOT OBVIOUS, VISIBLE OR APPARENT, (IX) THE NATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE PROPERTY, (X) THE SOIL CONDITIONS, DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS EXISTING IN, ON OR UNDER THE PROPERTY, AND (XI) THE PRESENCE OR EXISTENCE OF MOLD OR OTHER ORGANISMS, LEAD BASED PAINT OR WATER PENETRATION IN OR ABOUT THE IMPROVEMENTS (HEREIN COLLECTIVELY CALLED THE “DISCLAIMED MATTERS”). BUYER AGREES THAT, WITH RESPECT TO THE PROPERTY, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER. BUYER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITION THEREOF) AND RELY UPON SAME AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMED MATTERS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INSPECTIONS AND INVESTIGATIONS. SUCH INSPECTIONS AND INVESTIGATIONS OF BUYER SHALL BE DEEMED TO INCLUDE AN ENVIRONMENTAL AUDIT OF THE PROPERTY, AN INSPECTION OF THE PHYSICAL COMPONENTS AND GENERAL CONDITION OF ALL PORTIONS OF THE PROPERTY, SUCH STATE OF FACTS AS AN ACCURATE SURVEY AND INSPECTION OF THE PROPERTY WOULD SHOW, PRESENT AND FUTURE ZONING AND LAND USE ORDINANCES, RESOLUTIONS AND REGULATIONS OF THE CITY, COUNTY AND STATE WHERE THE PROPERTY IS LOCATED AND THE VALUE AND MARKETABILITY OF THE PROPERTY. SELLER SHALL SELL AND CONVEY TO BUYER, AND BUYER SHALL ACCEPT, THE PROPERTY “AS IS”, “WHERE IS”, AND WITH ALL FAULTS, AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER OR ANY THIRD PARTY. WITHOUT IN ANY WAY LIMITING ANY PROVISION OF THIS PARAGRAPH 11, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT IT HEREBY WAIVES, RELEASES AND DISCHARGES ANY CLAIM IT HAS, MIGHT HAVE HAD OR MAY HAVE AGAINST SELLER WITH RESPECT TO: (i) THE DISCLAIMED MATTERS; (ii) THE CONDITION OF THE PROPERTY, EITHER PATENT OR LATENT; (iii) THE PAST, PRESENT OR FUTURE CONDITION OR COMPLIANCE OF THE PROPERTY WITH REGARD TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS ENVIRONMENTAL LAWS; AND (iv) ANY OTHER STATE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. XXXXXXX DOES NOT REPRESENT FACTS THAT THE SERVICES WILL BE COMPLETELY SECURE, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF OR ACCESS EXISTS WITH RESPECT TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREEPROPERTY. (b) Buyer hereby makes the following representations, THAT ANY INFORMATION GENERATEDwarranties and covenants for the benefit of Seller as of the date hereof and the Closing Date: (i) Buyer is a limited partnership duly organized and validly existing and in good standing under the laws of the State of Texas. (ii) Buyer has full power and authority to enter into and perform this Agreement, POSTEDthe documents and certificates to be executed and delivered by Buyer pursuant hereto, MAINTAINEDand each and all of the transactions contemplated hereby and thereby in accordance with the terms hereof and thereof. Buyer has by all necessary action, OR ACCESSED WILL BE ACCURATEvalidly authorized the execution, TIMELYdelivery and performance of this Agreement, OR COMPLETEthe documents and certificates to be executed and delivered by Buyer in connection herewith and the transactions contemplated hereby and thereby in accordance with the terms hereof and thereof, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTEDand the performance and assumption by Buyer of each and all of Buyer’s covenants, obligations, liabilities and duties under and with respect to the Leases and Service Agreements pursuant hereto in accordance with the respective terms thereof. The individual(s) executing this Agreement, and each of the other documents and certificates to be executed and delivered in connection herewith, on behalf of Buyer (herein called “Authorized Signatories”) is(are) competent, duly appointed and authorized officer(s) and/or agents of, with full legal capacity, power and authority, acting alone, to act on behalf of and bind Buyer in all respects. (iii) This Agreement and each of the documents and certificates executed or to be executed and delivered by Buyer, and/or the Authorized Signatories in connection herewith are, or will be when executed and delivered, the legal, valid and binding obligations of and enforceable against Buyer in accordance with the terms hereof and thereof. (iv) Buyer has no actual knowledge of any action, proceeding, investigation or Insolvency Proceeding pending or threatened in writing against Buyer or any of the other Buyer Parties before any Governmental Authority which would affect or impair in any respect Buyer’s ability to consummate the transactions contemplated hereby. (v) The execution, delivery and performance by Buyer of this Agreement and each of the documents and certificates to be executed and delivered by Buyer pursuant hereto do not violate any of the terms, conditions or provisions of any judgment, order, injunction or decree of any Governmental Authority to which Buyer is subject. No consent, waiver or approval of any Person or Affiliate, which has not already been obtained, is required in connection with the execution, delivery and performance by Buyer of this Agreement and each of the documents and instruments to be executed and delivered by Buyer pursuant hereto and neither the execution nor the delivery of this Agreement, nor the consummation of the purchase and sale contemplated hereby, nor the fulfillment of or compliance with the terms and conditions of this Agreement conflict with or will result in the breach of any of the terms, conditions, or provisions of any agreement or instrument to which Buyer, or any Affiliate, is a party or by which Buyer, any partner or Affiliate of Buyer, or any of Buyer’s assets is bound. Neither Buyer nor any partner or Affiliate of Buyer is in any way affiliated with Seller. (vi) Buyer is not Insolvent and will not become Insolvent as a result of entering into and consummating this Agreement and the purchase of the Property, including the Leases and Service Agreements, and the Obligations in accordance with the terms hereof, nor are the transfers to be made hereunder or obligations incurred in connection herewith made or incurred by Buyer with any intent to hinder, delay or defraud any creditors to which Buyer is or becomes indebted. Buyer is not engaged in business or any transactions, including the transactions contemplated hereunder, or about to engage in any business or transactions, for which any remaining property of Buyer is unreasonably small capital, nor does Buyer intend to incur or believe that it will incur, debts that would be beyond its ability to pay as such debts matured. Buyer acknowledges that it is receiving new, fair, reasonably equivalent value in exchange for the transfers and obligations contemplated by this Agreement, and affirmatively represents that its entry into this Agreement and consummation of the transactions contemplated hereby does not constitute a fraudulent conveyance or preferential transfer under the Bankruptcy Code or any other federal, state or local laws affecting the rights of creditors generally. (vii) Buyer will (A) do such further acts as may be necessary, desirable or proper to carry out more effectively the purposes of this Agreement, and (B) not interfere with or hinder the ownership, use, maintenance or operation of the Property or the surrounding property or any part thereof prior to the delivery of title thereof to Buyer. Buyer shall and hereby does indemnify each of the Seller Parties and hold each of the Seller Parties harmless from any and all liabilities, damages, losses, costs and expenses (including attorneys’ fees and expenses) paid or incurred by any of the Seller Parties by reason of any breach of any of the representations, warranties, covenants or agreements made by Buyer. Buyer has no knowledge of any facts or circumstances which, if known to Seller, would make its representations and warranties to Seller as set forth in this paragraph 11(b) incorrect, untrue or misleading in any manner. Buyer’s representations and warranties set forth in this paragraph 11(b) shall not survive the Closing or termination of this Agreement. Buyer’s representations and warranties contained herein must be true and correct through the Closing Date, and Buyer’s failure to notify Seller prior to the Closing Date of any inaccuracies shall be a default by Buyer under this Agreement. (c) Seller hereby makes the following representations and warranties for the benefit of Buyer as of the date hereof and the Closing Date: (i) Seller is a limited liability company duly organized and validly existing and in good standing under the laws of the State of Delaware. (ii) Seller has the power, right and authority to enter into and perform all of the obligations required of Seller under this Agreement and the instruments and documents referenced herein, and to consummate the transaction contemplated hereby. (iii) Seller has provided or made available to Buyer copies of all Existing Leases and Service Agreements in Seller’s possession. The representations and warranties by Seller set forth in this paragraph 11(c) shall not survive Closing of this transaction, and no action or claim may be brought against Seller by Buyer or any affiliate of Buyer with respect to a breach of such representations or warranties or any action, suit or other proceedings commenced or pursued, for or in respect of any breach of any representation or warranty made by Seller in this Agreement from and after the Closing. Notwithstanding anything herein to the contrary, if Buyer discovers prior to Closing that one or more of the representations and warranties under the provisions of this paragraph 11(c), are false or untrue as of the Closing Date, Buyer’s sole remedy will be to exercise its rights under the provisions of paragraph 14(b).

Representations and Warranties Disclaimers. 11.1 Midmark Diversa warrants that: that each lot of Diversa Enzymes made available for shipping hereunder shall, at such time, meet the Specifications, and each shipment shall be accompanied by a Certificate of Analysis (a“Certificate of Analysis”) attesting that the Services will substantially perform in accordance with applicable Documentation; (b) it will use commercially reasonable efforts, in accordance with industry standard practices, to protect lot of Diversa Enzymes meets the Services from the introduction of Malicious Code; and (c) it will perform the support services in a professional and workmanlike manner in accordance with applicable industry standards. You shall notify Midmark of any non-compliance with the foregoing warranties within 30 days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, as Your sole and exclusive remedy and Midmark’s sole obligation for a breach of the warranties in this Section 11.1, Midmark shall use commercially reasonable efforts to repair or replace any Services or reperform any support services that do not conform with the foregoing warrantiesSpecifications. 11.2 Diversa warrants to VRi that all Diversa Enzymes made available for shipping hereunder will be free and clear of any Third Party lien or encumbrance, and that Diversa has good title thereto and all necessary authority to ship such Diversa Enzymes. Diversa further warrants to VRi that the instructions for handling and use of the Diversa Enzymes provided by Diversa to VRi hereunder as part of the Specifications shall be appropriate for allowing the safe and proper handling and use of the Diversa Enzymes. 11.3 EXCEPT FOR THE LIMITED WARRANTIES AS EXPRESSLY SET FORTH ABOVEHEREIN, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWDIVERSA MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, MIDMARK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, EXPRESS OR IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY AS TO ANY IMPLIED WARRANTIES, DUTIES THE MERCHANTABILITY OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PURPOSE OR NON-INFRINGEMENTINFRINGEMENT WITH RESPECT TO THE DIVERSA ENZYMES, RELIABILITY REFORMULATED ENZYMES, DIVERSA PATENT RIGHTS AND DIVERSA TRADEMARKS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DIVERSA EXPRESSLY DISCLAIMS ANY REPRESENTATION OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. XXXXXXX DOES NOT REPRESENT WARRANTY THAT THE SERVICES WILL BE COMPLETELY SECUREDISTRIBUTION, MARKETING OR SALE OF ANY DIVERSA ENZYME OR REFORMULATED ENZYME BY VRI, OR THE USE OF ANY DIVERSA ENZYME OR REFORMULATED ENZYME BY ANY CUSTOMER OF VRI, WILL MEET YOUR REQUIREMENTSNOT INFRINGE THE PATENT RIGHTS OF ANY THIRD PARTY. 11.4 Except as expressly provided in Section 2.1, THAT THE OPERATION OF OR ACCESS TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREEnothing in this Agreement shall be construed as conferring on VRi any express or implied license or option to license the Diversa Enzymes, THAT ANY INFORMATION GENERATEDthe Diversa Patent Rights, POSTEDthe Diversa Trademarks, MAINTAINEDor any other intellectual property owned or controlled by Diversa, 11.5 As of the Effective Date, OR ACCESSED WILL BE ACCURATEDiversa has not received any written notice alleging that the manufacture, TIMELYuse or sale of the Diversa Enzymes infringes the patent rights of any Third Party. During the term of this Agreement, OR COMPLETEDiversa shall provide VRi with written notice within five (5) business days of its receipt of any such written notice. 11.6 In reselling Diversa Enzymes, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTEDVRi shall not make, extend, or provide to any user thereof any warranty or representation (express or implied) with respect thereto.

Representations and Warranties Disclaimers. 11.1 Midmark warrants that: (a) the Services will substantially perform in accordance with applicable Documentation; (b) it will use commercially reasonable efforts, in accordance with industry standard practices, to protect the Services from the introduction of Malicious Code; and (c) it will perform the support services in a professional and workmanlike manner in accordance with applicable industry standards. You shall notify Midmark of any non-compliance with the foregoing warranties within 30 days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, as Your sole and exclusive remedy and Midmark’s sole obligation for a breach of the warranties in this Section 11.1, Midmark shall use commercially reasonable efforts to repair or replace any Services or reperform any support services that do not conform with the foregoing warranties. 11.2 EXCEPT FOR THE LIMITED SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH ABOVEIN PARAGRAPH 11(D) BELOW OR IN ANY DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED BY SELLER TO BUYER IN CONNECTION WITH CLOSING (EACH A “CLOSING DOCUMENT”), SELLER DOES NOT, BY THE EXECUTION AND DELIVERY OF THIS AGREEMENT, AND SELLER SHALL NOT, BY THE EXECUTION AND DELIVERY OF ANY DOCUMENT OR INSTRUMENT EXECUTED AND DELIVERED IN CONNECTION WITH CLOSING, MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, OF ANY KIND OR NATURE WHATSOEVER, WITH RESPECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWPROPERTY, MIDMARK DISCLAIMS AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING PROVISIONS, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 11(D) BELOW OR IN ANY CLOSING DOCUMENT, SELLER MAKES, AND SHALL MAKE, NO EXPRESS OR IMPLIED WARRANTY AS TO: (I) MATTERS OF TITLE, (II) ZONING, (III) TAX CONSEQUENCES, (IV) PHYSICAL OR ENVIRONMENTAL CONDITION (INCLUDING, WITHOUT LIMITATION, LAWS, RULES, REGULATIONS, ORDERS AND REQUIREMENTS PERTAINING TO THE USE, HANDLING, GENERATION, TREATMENT, STORAGE OR DISPOSAL OF ANY TOXIC OR HAZARDOUS WASTE OR TOXIC, HAZARDOUS OR REGULATED SUBSTANCE AND FURTHER INCLUDING, WITHOUT LIMITATION, THE COMPREHENSIVE ENVIRONMENTAL RESPONSE AND COMPENSATION AND LIABILITY ACT, THE RESOURCE CONSERVATION AND RECOVERY ACT, THE CLEAN WATER ACT, THE SOLID WASTE DISPOSAL ACT, THE FEDERAL WATER POLLUTION CONTROL ACT, THE OIL POLLUTION ACT, THE FEDERAL CLEAN AIR ACT, THE FEDERAL INSECTICIDE, FUNGICIDE AND RODENTICIDE ACT, AND ANY AND ALL STATE LAWS SIMILAR TO THE FOREGOING, EACH AS MAY BE AMENDED FROM TIME TO TIME, AND INCLUDING ANY AND ALL REGULATIONS, RULES OR POLICIES PROMULGATED THEREUNDER (HEREIN COLLECTIVELY CALLED THE “ENVIRONMENTAL LAWS”), (V) VALUATION, (VI) GOVERNMENTAL APPROVALS, GOVERNMENTAL REGULATIONS OR ANY OTHER WARRANTIESMATTER OR THING RELATING TO OR AFFECTING THE PROPERTY, EXPRESS(VII) THE USE, IMPLIEDINCOME POTENTIAL, EXPENSES, OPERATION OR CHARACTERISTICS OF THE PROPERTY OR ANY PORTION THEREOF, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF SUITABILITY, HABITABILITY, MERCHANTABILITY, DESIGN OR FITNESS FOR ANY SPECIFIC PURPOSE OR FOR A PARTICULAR PURPOSE, OR STATUTORYGOOD OR WORKMANLIKE CONSTRUCTION, (VIII) THE NATURE, MANNER, CONSTRUCTION, CONDITION, STATE OF REPAIR OR LACK OF REPAIR OF ANY OF THE IMPROVEMENTS, ON THE SURFACE OR SUBSURFACE THEREOF WHETHER OR NOT OBVIOUS, VISIBLE OR APPARENT, (IX) THE NATURE OR QUALITY OF CONSTRUCTION, STRUCTURAL DESIGN OR ENGINEERING OF THE PROPERTY, (X) THE SOIL CONDITIONS, DRAINAGE, FLOODING CHARACTERISTICS, UTILITIES OR OTHER CONDITIONS EXISTING IN, ON OR UNDER THE PROPERTY, AND (XI) THE PRESENCE OR EXISTENCE OF MOLD OR OTHER ORGANISMS, LEAD BASED PAINT OR WATER PENETRATION IN OR ABOUT THE IMPROVEMENTS (HEREIN COLLECTIVELY CALLED THE “DISCLAIMED MATTERS”). BUYER AGREES THAT, EXCEPT FOR SELLER’S EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN PARAGRAPH 11(D) BELOW OR IN ANY CLOSING DOCUMENT, WITH RESPECT TO THE PROPERTY, BUYER HAS NOT RELIED UPON AND WILL NOT RELY UPON, EITHER DIRECTLY OR INDIRECTLY, ANY REPRESENTATION OR WARRANTY OF SELLER. BUYER WILL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE PROPERTY (INCLUDING, BUT NOT LIMITED TO, THE PHYSICAL AND ENVIRONMENTAL CONDITION THEREOF) AND RELY UPON SAME AND, UPON CLOSING, SHALL ASSUME THE RISK THAT ADVERSE MATTERS, INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMED MATTERS, MAY NOT HAVE BEEN REVEALED BY BUYER’S INSPECTIONS AND INVESTIGATIONS. SUCH INSPECTIONS AND INVESTIGATIONS OF BUYER SHALL BE DEEMED TO INCLUDE AN ENVIRONMENTAL AUDIT OF THE PROPERTY, AN INSPECTION OF THE PHYSICAL COMPONENTS AND GENERAL CONDITION OF ALL PORTIONS OF THE PROPERTY, SUCH STATE OF FACTS AS AN ACCURATE SURVEY AND INSPECTION OF THE PROPERTY WOULD SHOW, PRESENT AND FUTURE ZONING AND LAND USE ORDINANCES, RESOLUTIONS AND REGULATIONS OF THE CITY, COUNTY AND STATE WHERE THE PROPERTY IS LOCATED AND THE VALUE AND MARKETABILITY OF THE PROPERTY. SELLER SHALL SELL AND CONVEY TO BUYER, AND BUYER SHALL ACCEPT, THE PROPERTY “AS IS”, “WHERE IS”, AND WITH ALL FAULTS, AND THERE ARE NO ORAL AGREEMENTS, WARRANTIES OR REPRESENTATIONS, COLLATERAL TO OR AFFECTING THE PROPERTY BY SELLER OR ANY THIRD PARTY. WITHOUT IN ANY WAY LIMITING ANY PROVISION OF THIS PARAGRAPH 11, BUYER SPECIFICALLY ACKNOWLEDGES AND AGREES THAT IT HEREBY WAIVES, RELEASES AND DISCHARGES ANY CLAIM IT HAS, MIGHT HAVE HAD OR MAY HAVE AGAINST SELLER WITH RESPECT TO: (i) THE DISCLAIMED MATTERS; (ii) THE CONDITION OF THE PROPERTY, EITHER PATENT OR LATENT; (iii) THE PAST, PRESENT OR FUTURE CONDITION OR COMPLIANCE OF THE PROPERTY WITH REGARD TO ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS ENVIRONMENTAL LAWS; AND (iv) ANY OTHER STATE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. XXXXXXX DOES NOT REPRESENT FACTS THAT THE SERVICES WILL BE COMPLETELY SECURE, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF OR ACCESS EXISTS WITH RESPECT TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR- FREEPROPERTY. Notwithstanding the foregoing or anything to the contrary set forth in this Agreement, THAT ANY INFORMATION GENERATEDbut subject to any express limitation of Seller’s liability set forth in this Agreement (including, POSTEDwithout limitation, MAINTAINEDparagraphs 11(d), OR ACCESSED WILL BE ACCURATE12(b) and 14(b) and 19 hereof), TIMELYBuyer does not release Seller from, OR COMPLETEand the provisions of this paragraph 11(a) and paragraph 11(b) below shall not extend to, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTED(x) any damages, claims, liabilities or obligations arising out of or in connection with a breach of any covenant, representation or warranty of Seller expressly set forth in this Agreement or any Closing Document, (y) Seller’s fraud, or (z) any claims or actions Buyer may have against Seller that may arise from third party claims asserted against Buyer with respect to actions or occurrences arising prior to Closing to the extent such claims survive Closing. (b) Buyer, for itself and on behalf of each of the Related Parties, expressly waives the provisions of Section 1542 of the California Civil Code which provides: This release by Buyer shall constitute a complete defense to any claim, cause of action, defense, contract, liability, indebtedness or obligation released pursuant to this release. Nothing in this release shall be construed as (or shall be admissible in any legal action or proceeding as) an admission by Seller or any other released party that any defense, indebtedness, obligation, liability, claim or cause of action exists which is within the scope of those hereby released.

Representations and Warranties Disclaimers. 11.1 Midmark warrants that: THE SITE AND ALL COMPANY IP ARE PROVIDED “AS IS” AND “AS AVAILABLE.” THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY COMPANY (a) the Services will substantially perform in accordance with applicable Documentation; (b) it will use commercially reasonable effortsOR ANY MEMBER, in accordance with industry standard practicesOFFICER, to protect the Services from the introduction of Malicious Code; and (c) it will perform the support services in a professional and workmanlike manner in accordance with applicable industry standards. You shall notify Midmark of any non-compliance with the foregoing warranties within 30 days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claimEMPLOYEE OR AGENT THEREOF), as Your sole and exclusive remedy and Midmark’s sole obligation for a breach of the warranties in this Section 11.1EITHER EXPRESS OR IMPLIED, Midmark shall use commercially reasonable efforts to repair or replace any Services or reperform any support services that do not conform with the foregoing warranties. 11.2 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, AND WITH RESPECT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIDMARK DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, SITE OR STATUTORYANY COMPANY IP, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIESTO, DUTIES OR CONDITIONS WARRANTIES OF QUALITY, PERFORMANCE, NON-INFRINGEMENT, MERCHANTABILITY, TITLE OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENTNOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, RELIABILITY COURSE OF PERFORMANCE, OR AVAILABILITYTRADE USAGE. THE INFORMATION AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE OR SERVICES MAY INCLUDE INACCURACIES OR TYPOGRAPHICAL ERRORS. COMPANY (OR ANY MEMBER, ACCURACY OFFICER, EMPLOYEE OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. XXXXXXX AGENT THEREOF) DOES NOT REPRESENT WARRANT THAT (A) THE SERVICES WILL BE COMPLETELY SECURE, SITE OR OTHER COMPANY IP WILL MEET YOUR REQUIREMENTSNEEDS, THAT (B) THE OPERATION OF SITE OR ACCESS TO THE SERVICES OTHER COMPANY IP WILL BE UNINTERRUPTED ERROR-FREE OR ERROR- FREEACCESSIBLE AT ALL TIMES, THAT ANY INFORMATION GENERATED, POSTED, MAINTAINED, OR ACCESSED WILL BE ACCURATE, TIMELY, OR COMPLETE, OR THAT (C) DEFECTS IN THE SERVICES WILL BE CORRECTED, (D) THE SITE OR THE SERVER THAT MAKES THE SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR (E) THE USE OR THE RESULTS OF THE USE OF THE SITE OR THE CONTENT MADE AVAILABLE AS PART OF THE SITE WILL BE CORRECT, ACCURATE, TIMELY OR OTHERWISE RELIABLE. YOU ASSUME ALL RESPONSIBILITY FOR SELECTION AND USE OF CONTENT AND ALL OTHER COMPANY IP.

Representations and Warranties Disclaimers. 11.1 Midmark Each of Seller and WOFC warrants that: that it has the right to enter into this Agreement and perform its obligations under this Agreement. Seller represents and warrants that it has the right to provide the Used Vehicles to WOFC for disposition and that Seller has good, clean and marketable title to each Used Vehicle. WOFC does NOT make, and expressly disclaims, any representation or warranty (ai) with respect to the title, merchantability or condition of any Used Vehicle, (ii) regarding the repair or appearance reconditioning or any such related service provided by a Participating Auction, (iii) that any Used Vehicle will be sold, (ii) the Services price at which any Used Vehicle will substantially perform in accordance with applicable Documentation; be sold, or (biii) it that the Used Vehicles will use commercially reasonable effortsmeet any potential buyer’s requirements or expectations for sale. THE SERVICES TO BE PROVIDED BY WOFC PURSUANT TO THIS AGREEMENT ARE ON AN "AS IS" BASIS, in accordance with industry standard practices, to protect the Services from the introduction of Malicious Code; and (c) it will perform the support services in a professional and workmanlike manner in accordance with applicable industry standardsWITHOUT WARRANTIES OF ANY KIND. You shall notify Midmark of any non-compliance with the foregoing warranties within 30 days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, as Your sole and exclusive remedy and Midmark’s sole obligation for a breach of the warranties in this Section 11.1, Midmark shall use commercially reasonable efforts to repair or replace any Services or reperform any support services that do not conform with the foregoing warranties. 11.2 EXCEPT FOR THE LIMITED WARRANTIES AS EXPRESSLY SET FORTH ABOVEHEREIN, WOFC MAKES NO WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIDMARK EXPRESSLY DISCLAIMS ANY AND ALL OTHER IMPLIED WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO ANY TO, THE IMPLIED WARRANTIES, DUTIES OR CONDITIONS WARRANTIES OF MERCHANTABILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE THEFT, NON-INFRINGEMENTCONVERSION, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. XXXXXXX DOES NOT REPRESENT THAT THE SERVICES WILL BE COMPLETELY SECURE, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION LOSS OF OR ACCESS DAMAGE TO ANY USED VEHICLE IS WITH SELLER, EXCEPT TO THE SERVICES EXTENT ANY SUCH THEFT, CONVERSION, LOSS OR DAMAGE IS CAUSED DIRECTLY AND SOLELY BY AN INTENTIONAL ACT OR OMISSION OF WOFC. IN NO EVENT WILL WOFC BE UNINTERRUPTED RESPONSIBLE FOR (I) ANY ACT OR ERROR- FREEOMISSION OF ANY PARTICIPATING AUCTION OR ANY OF ITS EMPLOYEES, THAT AGENTS OR CONTRACTORS OR (II) FOR ANY INFORMATION GENERATEDLOSSES, POSTEDCOSTS OR DAMAGES DUE TO OR CAUSED BY EVENTS BEYOND WOFC’S REASONABLE CONTROL, MAINTAINEDINCLUDING WITHOUT LIMITATION, NATURAL CATASTROPHES, WEATHER, STORMS, FLOODS, HAIL, LIGHTNING, ACTS OF GOD, FIRE, WIND, WAR, CIVIL DISTURBANCES OR ACCESSED WILL BE ACCURATE, TIMELY, OR COMPLETE, OR THAT DEFECTS IN RIOTS. SELLER EXPRESSLY ASSUMES ALL OF THE SERVICES WILL BE CORRECTEDABOVE RISKS.

Representations and Warranties Disclaimers. 11.1 Midmark warrants that: (a) the Services Availability Tebra will substantially perform in accordance with applicable Documentation; (b) it will use commercially reasonable efforts, in accordance with industry standard practices, to protect the Services from the introduction of Malicious Code; and (c) it will perform the support services in a professional and workmanlike manner in accordance with applicable industry standards. You shall notify Midmark of any non-compliance with the foregoing warranties within 30 days after the event giving rise to the breach of warranty occurs. Upon receipt of a timely breach of warranty claim, as Your sole and exclusive remedy and Midmark’s sole obligation for a breach of the warranties in this Section 11.1, Midmark shall use make commercially reasonable efforts to repair or replace maintain uptime of 99% excluding any Services or reperform any support scheduled downtime, force majeure issues and third party services that do not conform with the foregoing warranties(see Support Policy for additional details). 11.2 EXCEPT FOR THE LIMITED WARRANTIES SET FORTH ABOVE, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MIDMARK b) Mutual Representations and Warranties i. the Customer Agreement has been duly entered into and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; ii. no authorization or approval from any third party is required in connection with such party’s entering into or performance of the Customer Agreement; and iii. the entering into and performance of the Customer Agreement does not and will not violate the laws of any jurisdiction or the terms or conditions of any other agreement to which it is a party or by which it is otherwise bound. c) DISCLAIMERS • TEBRA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, BUT NOT LIMITED TO WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE, OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES, DUTIES OR CONDITIONS WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. • WHILE XXXXX TAKES REASONABLE PHYSICAL, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSESTECHNICAL, AND LACK OF NEGLIGENCE. XXXXXXX ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, TEBRA DOES NOT REPRESENT GUARANTEE THAT THE SERVICES WILL SERVICE CANNOT BE COMPLETELY SECURECOMPROMISED. XXXXX DISCLAIMS ANY WARRANTY REGARDING ANY PERCENTAGE OF COLLECTION OF CLAIMS FOR CUSTOMER. • FROM TIME TO TIME, WILL MEET YOUR REQUIREMENTS, CUSTOMER MAY REQUEST THE ADDITION OF CERTAIN CODE AND/OR FUNCTIONALITIES TO BE ADDED TO CUSTOMER’S WEBSITE OR OTHER PLATFORM. TEBRA SHALL NOT BE RESPONSIBLE FOR ENSURING THAT THE OPERATION OF REQUESTED CODE AND/OR ACCESS FUNCTIONALITIES COMPLY(IES) WITH ANY AND ALL APPLICABLE LAWS AND REGULATIONS PERTAINING TO THE SERVICES WILL CUSTOMER’S BUSINESS. CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT CUSTOMER ALONE SHALL BE UNINTERRUPTED OR ERROR- FREERESPONSIBLE FOR ENSURING THAT CUSTOMER’S WEBSITE AND SERVICE OFFERINGS, THAT ANY INFORMATION GENERATEDEVEN IF SUPPORTED BY TEBRA, POSTED, MAINTAINED, OR ACCESSED WILL BE ACCURATE, TIMELY, OR COMPLETE, OR THAT DEFECTS IN THE SERVICES WILL BE CORRECTEDCOMPLY WITH APPLICABLE LAWS AND REGULATIONS.