Common use of Warranties and Remedies Clause in Contracts

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENT. SELLER SHALL NOT, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLER.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the ProductsAll CONSUMER REPORTS ARE PROVIDED “AS IS”. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER FAESC MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY , AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCTIMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE WITH RESPECT TO THE ACCURACY, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACTVALIDITY, OR COMPLETENESS OF ANY OTHER THEORY OF RECOVERYCONSUMER REPORT, SHALL THAT WILL MEET END-USER’S NEEDS, OR THAT WILL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENTON AN UNINTERRUPTED BASIS, AND FAESC EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. SELLER SHALL NOT, IN ANY CASE, FAESC WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES FOR LOSS OF PROFITS, WHETHER INCURRED AS A RESULT OF NEGLIGENCE OR OTHERWISE, EVEN IF FAESC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, FAESC AGREES TO BE RESPONSIBLE FOR ACTUAL DAMAGES TO THE EXTENT OF AND MAXIMUM STATED HEREIN FOR THIRD PARTY CLAIMS DIRECTLY RESULTING FROM FAESC’S SOLE NEGLIGENCE IN ASSEMBLING THE CONSUMER REPORT. FAESC’s maximum aggregate liability for damages in connection with Consumer Reports will not exceed an amount equal to the price paid by End-User to FAESC for such Consumer Report at issue. End-User shall indemnify, defend and hold harmless FAESC from and against any and all claims, suits, proceedings, damages, costs, expenses (including, Client Initials: /s/ PSK without limitation, reasonable attorneys’ fees and court costs) brought against, or suffered by, any third party arising or resulting from, or otherwise in connection with End-User’s: i) SPECIALuse of the Consumer Reports, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSONbreach of any of its representations, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLERwarranties, WHICH ARE INCONSISTENT HEREWITHor agreements as stated herein, SHALL NOT BE BINDING UPON SELLERand/or iii) NEGLIGENCE or WILLFUL misconduct.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, BUYER ACKNOWLEDGES THAT COMPANY IS NOT A MANUFACTURER OF THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT EQUIPMENT AND THAT COMPANY HAS MADE NO REPRESENTATIONS OF ANY NATURE WHATSOEVER PERTAINING TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVEREQUIPMENT OR ITS PERFORMANCE, EITHER EXPRESS OR IMPLIED, INCLUDING THE INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR ANY A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED WARRANTIES RELATING TO THE REMEDIES PROVIDED IN SECTION 12 DESIGN, CONDITION, QUALITY, CAPACITY, MATERIAL OR WORKMANSHIP OF THE AGREEMENTEQUIPMENT OR ITS PERFORMANCE, OR ANY WARRANTY OR AUTHORITY WITH RESPECT TO PATENT RIGHTS IF ANY, PERTAINING TO THE EQUIPMENT. SELLER SHALL NOTCOMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, OR DAMAGES OF ANY NATURE WHATSOEVER, RESULTING FROM THE DELIVERY, INSTALLATION, MAINTENANCE, OPERATIONS, SERVICE OR USE OF ANY EQUIPMENT OR OTHERWISE. Company warrants that (i) it is the lawful owner of the Equipment, (ii) that it has not caused any lawful liens or encumbrances to be placed upon the Equipment, and (iii) that Company has the right to sell the Equipment. USED EQUIPMENT IS SOLD "AS IS" AND "WHERE IS." NEW AND REMANUFACTURED EQUIPMENT IS SOLD "AS IS." For new Equipment, Company will pass through any manufactures' limited warranties, but such limited warranties are not otherwise transferable or assignable without the written approval of the manufacturer. If Company installs the Equipment, then in addition to any remedies provided under the manufacturer's warranties that may be available to Customer, Company will repair or replace any Equipment that malfunctions due to a defect in manufacturing or installation that occurs within 30 days from the date of installation of the Equipment by Company in accordance with Company's standard service policy, provided the Equipment is being used to dispense products of Company. Any use, abuse, alteration or neglect of the Equipment in violation of the operating instructions or the provisions of this Agreement will render this limited warranty null and void. This limited warranty will not apply to any accidental damage to the Equipment. IN ANY CASENO EVENT WILL COMPANY, ITS SUBSIDIARIES OR AFFILIATES BE LIABLE FOR ANY DAMAGES RESULTING FROM THE BREACH OF SUCH LIMITED WARRANTY. COMPANY WILL NOT BE RESPONSIBLE FOR ANY LOSS OF PROFITS, ANY DIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES, OR DAMAGES OF ANY NATURE WHATSOEVER, REGARDLESS OF CAUSE. After inspection by Company or its authorized repair agent, Company at its option will (i) SPECIALrepair a component that is found to be defective, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR or (ii) replace the component with a new or rebuilt component. Claims must be handled promptly by Customer. CLAIMS WILL BE DEEMED WAIVED UNLESS WRITTEN NOTICE OF SUCH CLAIM IS GIVEN TO COMPANY WITHIN 60 DAYS AFTER THE DATE ON WHICH THE CLAIMED DEFECT IS DISCOVERED. IN NO EVENT WILL ANY CLAIM OF ANY KIND BE GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH SUCH DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLERCLAIMED.

Warranties and Remedies. (a) Seller warrants that Products delivered ----------------------- hereunder will(i) it has title to Coke sold and purchased pursuant to this Agreement; (ii) Coke, in at the time of sale, will be free from all material respectsliens, security interests, and encumbrances; and (iii) all Coke sold to Buyer will conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDERSpecifications. SELLER MAKES NO OTHER WARRANTY WARRANTIES OF ANY KIND WHATSOEVERKIND, EXPRESS EITHER EXPRESSED OR IMPLIED, AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENT. SELLER SHALL NOT, IN ANY CASE, BE LIABLE FOR . (b) In the event Coke exceeds any applicable minimum or maximum amounts indicated in the column entitled “Reject” as set forth on Exhibit A (“Non-Conforming Coke”): (i) SPECIALBuyer may reject and refuse delivery of Non-Conforming Coke, INDIRECTin which case Seller shall accept all risk of loss, OR CONSEQUENTIAL DAMAGESdamage, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIESor destruction of such Non-Conforming Coke. In the event Buyer rejects and refuses delivery of any Non-Conforming Coke pursuant to this Section 7(b)(i), DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR Buyer shall not be required to pay Seller for such Non-Conforming Coke as set forth in Section 6, Seller shall be required to remove such Non-Conforming Coke from Buyer’s facility, and Seller shall be responsible for all removal costs connected therewith Alternatively, if Seller does not promptly remove any Non-Conforming Coke rejected by Buyer, Buyer may dispose of such Non-Conforming Coke at Seller’s expense, including all freight charges incurred by Buyer, in accordance with Seller’s written instructions. (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGENotwithstanding any actions taken by Buyer pursuant to Section 7(b)(i), if Seller is unable to provide substitute conforming Coke in a timely fashion, Buyer may purchase replacement Coke in the open market from one or more other suppliers and invoice Seller for an amount equal to the difference between: (a) all reasonable costs (including the cost of the Coke, administrative costs to “cover” and excess freight) incurred by Buyer to purchase such replacement Coke and (b) the aggregate price that Buyer would have paid to Seller for Seller’s Coke had it been conforming. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSONFor the applicable contract year, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLERthe minimum purchase requirement set forth in Section 2 shall be reduced by the total quantity of Coke that Buyer is required to purchase from alternative supplier(s) in order to ensure that Buyer can cover the shortfall created as a result of Seller’s failure to supply conforming Coke. (c) Except as otherwise specifically provided herein, WHICH ARE INCONSISTENT HEREWITHneither party shall be liable to the other for special, SHALL NOT BE BINDING UPON SELLERincidental, indirect, or consequential damages or for “opportunity costs” arising from a party’s inability to perform under this Agreement. “Opportunity costs” include, but are not limited to, lost profits or revenues, processing costs, or any indirect costs a party may incur.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder willTHE LICENSED MATERIALS CONTAIN OR ARE BASED UPON CONTENT THAT IS AN UPDATED PERIODIC REFERENCE. RESELLER AND ITS LICENSORS RECEIVE DATA AND INFORMATION FROM MANY INDEPENDENT SOURCES, in all material respectsINCLUDING DRUG MANUFACTURERS AND GOVERNMENT AGENCIES. RESELLER AND ITS LICENSORS CANNOT, conform to the quality specifications set forth in Section 12 of the AgreementAND DO NOT, and that it shall deliver good and clear title to the ProductsINDEPENDENTLY REVIEW, VERIFY, TEST, INVESTIGATE OR SUBSTANTIATE ANY OF THE LICENSED MATERIALS DESCRIPTIONS OR OTHER CONTENT IN THE LICENSED MATERIALS FOR CORRECTNESS, ACCURACY, TIMELINESS OR COMPLETENESS, INCLUDING WITH RESPECT TO ANY LICENSED MATERIALS DESCRIPTIONS, PRICES, OR INFORMATION CONCERNING MEDICAL DEVICES, AND DISCLAIM ALL RESPONSIBILITY FOR ANY ERRORS THEREIN AND FOR ANY ADVERSE CONSEQUENCES RESULTING THEREFROM. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENTADDITION, THE FOREGOING SHALL LICENSED MATERIALS MAY NOT NECESSARILY COVER ALL POSSIBLE USES, DIAGNOSES, TREATMENT OPTIONS, DIRECTIONS, PRECAUTIONS, DRUG INTERACTIONS, DOSAGE LIMITATIONS, LOCAL PRACTICES, OR ADVERSE EFFECTS APPLICABLE TO A PARTICULAR DRUG OR TREATMENT OR A PARTICULAR PATIENT. ALTHOUGH THE LICENSED MATERIALS MAY COVER A WIDE RANGE OF PRESCRIPTION AND NON-PRESCRIPTION DRUGS, THE LICENSED MATERIALS DO NOT INCLUDE ALL DRUGS, VACCINES, DEVICES, AND DIAGNOSTIC AGENTS. ACCORDINGLY, AND WITHOUT LIMITING THE FOREGOING, THE ABSENCE OF A WARNING FOR A GIVEN DRUG OR DRUG COMBINATION IS NOT AN INDICATION THAT THE DRUG, DOSAGE, OR DRUG COMBINATION IS SAFE, APPROPRIATE, OR EFFECTIVE FOR ANY PARTICULAR PATIENT. MOREOVER, THE LICENSED MATERIALS THAT MAY BE SELLER'S SOLE WARRANTY PROVIDED TO CUSTOMER MAY PROVIDE USEFUL INFORMATION ABOUT MEDICATIONS, BUT THE LICENSED MATERIALS ARE LIMITED AND MAY BE CONFUSING TO CERTAIN PATIENTS WHEN NOT INTERPRETED BY A HEALTHCARE PROFESSIONAL. THE LICENSED MATERIALS ARE NOT INTENDED, AND CUSTOMER AGREES NOT TO RELY ON THE LICENSED MATERIALS, AS A SUBSTITUTE FOR THE KNOWLEDGE, EXPERTISE, SKILL, VERBAL COUNSELING, PHYSICAL DEMONSTRATION OF AN ADMINISTRATION TECHNIQUE, OR JUDGMENT OF PHARMACISTS, PHYSICIANS, OR OTHER HEALTHCARE PROFESSIONALS IN PATIENT CARE. RESELLER AND ITS LICENSORS AND THEIR AFFILIATES MAKE AND CUSTOMER RECEIVES NO WARRANTY, CONDITION, OR REPRESENTATION WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVERLICENSED MATERIALS, WHETHER EXPRESS OR IMPLIED, INCLUDING ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY RESELLER AND ITS LICENSORS, OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF COMPREHENSIVENESS, SATISFACTORY QUALITY, SUITABILITY, AVAILABILITY, PERFORMANCE, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). RESELLER AND ITS LICENSORS MAKE NO WARRANTY THAT THE LICENSED MATERIALS SATISFY GOVERNMENT REGULATIONS REQUIRING DISCLOSURE ABOUT PRESCRIPTION DRUG CONTENT OR THAT ANY CODES, PRICES, OR OTHER DATA CONTAINED IN THE LICENSED MATERIALS ARE ACCURATE, IT BEING UNDERSTOOD THAT THE INFORMATION REFLECTING PRICES IS NOT QUOTATION OR AN OFFER TO SELL OR PURCHASE AND DOES NOT NECESSARILY REPRESENT THE ACTUAL PRICES CHARGED OR PAID IN A SINGLE TRANSACTION OR GROUP OF TRANSACTIONS. NO EMPLOYEE, CONSULTANT, REPRESENTATIVE OR AGENT OF RESELLER OR ITS LICENSORS IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES AND LIMITATIONS CONTAINED IN THIS AGREEMENT. RESELLER AND ITS LICENSORS DO NOT ASSUME, AND EXPRESSLY DISCLAIM, ANY OBLIGATION TO OBTAIN AND INCLUDE ANY INFORMATION OTHER THAN THAT PROVIDED IN THE LICENSED MATERIALS. BY MAKING THE LICENSED MATERIALS AVAILABLE, RESELLER AND ITS LICENSORS ARE NOT ENDORSING OR ADVOCATING THE USE OF MERCHANTABILITY ANY CONTENT OR INFORMATION DESCRIBED IN THE LICENSED MATERIALS, NOR ARE THEY RESPONSIBLE FOR MISUSE OF LICENSED MATERIALS DUE TO, OR OTHER CONSEQUENCE OF, ANY TYPOGRAPHICAL ERROR OR OTHER INACCURACY. ADDITIONAL INFORMATION ON ANY LICENSED MATERIALS MAY BE OBTAINED FROM THE MANUFACTURER. RESELLER AND FITNESS ITS LICENSORS DO NOT WARRANT THAT THE LICENSED MATERIALS (OR ANY SERVICES) WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. FURTHERMORE, RESELLER AND ITS LICENSORS DO NOT WARRANT OR MAKE ANY REPRESENTATION REGARDING THE USE OR THE RESULTS OF THE USE OF THE LICENSED MATERIALS. LICENSED MATERIALS MAY BE PROVIDED WITH THIRD PARTY PLUG-INS OR OTHER THIRD PARTY SOFTWARE, OR MAY BE PROVIDED AS A PLUG-IN FOR, OR OTHERWISE IN ASSOCIATION WITH, THIRD PARTY SOFTWARE. USE OF ANY SUCH THIRD PARTY SOFTWARE WILL BE GOVERNED BY THE APPLICABLE LICENSE AGREEMENT, IF ANY, WITH SUCH THIRD PARTY. RESELLER AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY PARTICULAR PURPOSETHIRD PARTY SOFTWARE AND WILL HAVE NO LIABILITY OF ANY KIND FOR CUSTOMER'S OR AUTHORIZED USERS' USE OF SUCH SOFTWARE AND MAKE NO WARRANTIES WITH RESPECT THERETO. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, SHALL BE LIMITED CUSTOMER ACKNOWLEDGES THAT ACCESS TO THE REMEDIES PROVIDED LICENSED MATERIALS MAY BE SUBJECT TO DELAYS, LATENCY ISSUES, AND LIMITATIONS INHERENT IN SECTION 12 THE USE OF THE AGREEMENTINTERNET AND ELECTRONIC COMMUNICATIONS, AND THAT RESELLER AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY OF THE FOREGOING ISSUES. SELLER SHALL NOTAT TIMES, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECT, ACTIONS OR CONSEQUENTIAL DAMAGESINACTIONS BY THIRD PARTIES PROVIDING INTERNET SERVICE, INCLUDING CLAIMS FOR LOST PROFITS HOSTING COMPANIES ENGAGED BY RESELLER AND ITS LICENSORS, MAY AFFECT IMPAIR OR LOST BUSINESS OPPORTUNITIESDISRUPT INTERNET CONNECTIONS AND THE SITE ON WHICH THE LICENSED MATERIALS MAY BE MADE AVAILABLE. RESELLER AND ITS LICENSORS DO NOT GUARANTY THAT SUCH EVENTS WILL NOT OCCUR AND DISCLAIM ANY AND ALL LIABILITY RESULTING FROM SUCH EVENTS, DOWNTIME USE OF OR CLAIMS ACCESS TO THE LICENSED MATERIALS OR THAT USE OF THE LICENSED MATERIALS WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS ONCE THE LICENSED MATERIALS LEAVE THE CONTROL OF RESELLER AND ITS LICENSORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES OR LIABILITIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY, AND CUSTOMER MAY HAVE OTHER LEGAL RIGHTS RELATED TO THIS AGREEMENT THAT MAY VARY BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLERJURISDICTION.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the Products. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MES MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVERWARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES WHETHER IN TORT, CONTRACT, BY STATUTE OR OTHERWISE, AND PARTICULARLY MAKES NO WARRANTY OF MERCHANTABILITY AND OR FITNESS FOR ANY PARTICULAR PURPOSEPURPOSE WHATSOEVER, IN REGARD TO ANY WORK SOLD BY MES. SELLER'S SOLE LIABILITY IF WITHIN 15 DAYS FROM THE DATE OF DELIVERY OF THE WORK, PURCHASER GIVES WRITTEN NOTICE TO MES THAT SUCH WORK MATERIALLY FAILS TO MEET ANY WRITTEN AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCTMUTUALLY-AGREED SPECIFICATION, WHETHER BASED UPON NEGLIGENCEMES MAY, STRICT LIABILITYAT THE ITS OPTION, BREACH OF CONTRACTREPLACE THE WORK, REFUND THE PURCHASE PRICE TO PURCHASER, OR REDO THE WORK, WHICH SHALL BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY HEREUNDER. PURCHASER HEREBY WAIVES ANY OTHER THEORY OF RECOVERYREMEDIES AVAILABLE AT LAW, SHALL BE INCLUDING BUT NOT LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 ANY CLAIMS FOR OTHER LOSS OR DAMAGE OF THE AGREEMENT. SELLER SHALL NOTANY TYPE, IN INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS OR REVENUE, DOWN TIME, DEMURRAGE, DETENTION, LABOR COSTS, REPAIR COSTS, INSTALLATION OF REPLACEMENT MATERIAL, INCONVENIENCE, COST OF RENTAL OR REPLACEMENT EQUIPMENT, FAILURE OF MARINE OR OTHER EQUIPMENT TO OPERATE FOR ANY CASEPERIOD OF TIME, BE LIABLE FOR (i) OTHER ECONOMIC OR COMMERCIAL LOSS, OR DIRECT, IMMEDIATE, SPECIAL, INDIRECTINCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLER.

Warranties and Remedies. Seller ‌ a) Each party represents that it has validly entered into this Agreement with full power and authority. b) Xxxx warrants to the Customer that Products delivered ----------------------- hereunder will, during the Subscription Term (i) the Customer’s production instance shall conform in all material respectsrespects with the Documentation, conform to and (ii) Xxxx shall perform any Professional Services in a competent and workmanlike manner consistent with industry standards (the quality specifications set forth foregoing clauses (i) and (ii), collectively, the “Xxxx Warranty”). In the event the Services are not performed as warranted, Customer must notify Xxxx in Section 12 writing of the Agreementissue with the Services within thirty (30) days providing a description of the deficiency. c) XXXX DOES NOT WARRANT THE SERVICES WILL BE PERFORMED WITHOUT ERROR OR WITHOUT INTERRUPTION, and that it shall deliver good and clear title to the ProductsTHAT THE SERVICES WILL MEET THE CUSTOMERS EXPECTATIONS OR REQUIREMENTS OR THAT XXXX WILL CORRECT ALL ERRORS. XXXX SHALL NOT BE RESPONSIBLE FOR DEFICIENCIES OR ISSUES RELATED TO THE OPERATION, PERFORMANCE, OR SECURITY OF THE SERVICES ARISING FROM SERVICES PROVIDED BY THIRD PARTIES OR FROM THE CUSTOMER DATA. d) IN THE EVENT OF A BREACH OF THE XXXX WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND CORA’S ENTIRE LIABILITY SHALL BE AT CORA’S OPTION EITHER (i) CORRECTION OF THE DEFICIENCY THAT CAUSED THE BREACH OF WARRANTY, OR (ii) IF THIS IS NOT COMMERCIALLY PRACTICABLE IN CORA’S OPINION, EITHER PARTY MAY END THE DEFICIENT SERVICES, IN WHICH CASE XXXX SHALL PROVIDE A REFUND OF PREPAID AND UNUSED FEES FOR THE PERIOD FOLLOWING THE DATE OF TERMINATION. e) EXCEPT AS OTHERWISE FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENTCLAUSE 18, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO EXTENT PERMITTED BY LAW, XXXX EXPRESSLY DISCLAIMS ALL OTHER WARRANTY OF ANY KIND WHATSOEVERWARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND (WITHOUT LIMITATION) FOR SOFTWARE, NETWORKS OR ENVIRONMENTS, SYSTEMS, FITNESS FOR ANY A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCESATISFACTORY QUALITY, STRICT LIABILITYTHAT THE SAAS WILL MEET SPECIFIC REQUIREMENTS, BREACH OF CONTRACTMERCHANTABILITY, THAT THE SERVICES WILL BE UNINTERRUPTED, FREE FROM SOFTWARE ERRORS, COMPLETELY SECURE, OR ANY OTHER THEORY OF RECOVERY, SHALL THAT DEFECTS AND DEFICIENCIES IN THE SAAS OR SERVICES WILL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENT. SELLER SHALL NOT, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLERCORRECTED.

Warranties and Remedies. Seller a) Each party represents that it has validly entered into this Agreement with full power and authority. b) Xxxx warrants to the Customer that Products delivered ----------------------- hereunder will, during the Subscription Term (i) the customers production instance shall conform in all material respectsrespects with the Documentation, conform to and (ii) Xxxx shall perform any Professional Services in a competent and workmanlike manner consistent with industry standards (the quality specifications set forth foregoing clauses (i) and (ii), collectively, the “Xxxx Warranty”). In the event the Services are not performed as warranted, Customer must notify Xxxx in Section 12 writing of the Agreementissue with the Services within thirty (30) days providing a description of the deficiency. c) XXXX DOES NOT WARRANT THE SERVICES WILL BE PERFORMED WITHOUT ERROR OR WITHOUT INTERRUPTION, and that it shall deliver good and clear title to the ProductsTHAT THE SERVICES WILL MEET THE CUSTOMERS EXPECTATIONS OR REQUIREMENTS OR THAT XXXX WILL CORRECT ALL ERRORS. XXXX SHALL NOT BE RESPONSIBLE FOR DEFICIENCIES OR ISSUES RELATED TO THE OPERATION, PERFORMANCE, OR SECURITY OF THE SERVICES ARISING FROM SERVICES PROVIDED BY THIRD PARTIES OR FROM THE CUSTOMER DATA. d) IN THE EVENT OF A BREACH OF THE XXXX WARRANTY, CUSTOMER’S EXCLUSIVE REMEDY AND CORA’S ENTIRE LIABILITY SHALL BE AT CORA’S OPTION EITHER (i) CORRECTION OF THE DEFICIENCY THAT CAUSED THE BREACH OF WARRANTY, OR (ii) IF THIS IS NOT COMMERCIALLY PRACTICABLE IN CORA’S OPINION, EITHER PARTY MAY END THE DEFICIENT SERVICES, IN WHICH CASE XXXX SHALL PROVIDE A REFUND OF PREPAID AND UNUSED FEES FOR THE PERIOD FOLLOWING THE DATE OF TERMINATION. e) EXCEPT AS OTHERWISE FOR THE EXPRESS WARRANTIES PROVIDED IN THIS AGREEMENTCLAUSE 19, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER MAKES NO EXTENT PERMITTED BY LAW, XXXX EXPRESSLY DISCLAIMS ALL OTHER WARRANTY OF ANY KIND WHATSOEVERWARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND (WITHOUT LIMITATION) FOR SOFTWARE, NETWORKS OR ENVIRONMENTS, SYSTEMS, FITNESS FOR ANY A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCT, WHETHER BASED UPON NEGLIGENCESATISFACTORY QUALITY, STRICT LIABILITYTHAT THE SAAS WILL MEET SPECIFIC REQUIREMENTS, BREACH OF CONTRACTMERCHANTABILITY, THAT THE SERVICES WILL BE UNINTERRUPTED, FREE FROM SOFTWARE ERRORS, COMPLETELY SECURE, OR ANY OTHER THEORY OF RECOVERY, SHALL THAT DEFECTS AND DEFICIENCIES IN THE SAAS OR SERVICES WILL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENT. SELLER SHALL NOT, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLERCORRECTED.

Warranties and Remedies. Seller A. Xxxxxxx expressly warrants that Products delivered ----------------------- hereunder will, in all material respects, to BNSF that: (1) the Wood Preservative shall conform to the quality specifications set forth in Section 12 Appendix B; (2) Koppers shall convey the Wood Preservative to BNSF free from any lien, encumbrance or claim of title thereto; (3) the Agreement, Wood Treatment Services shall be performed in accordance with the specifications set forth in Appendix B; and that it (4) the treated Cross Ties or Equivalents shall deliver good and clear title conform to the Productsspecifications set forth in Appendix A. These warranties are expressly in lieu of all other warranties, express or implied. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY KOPPERS MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE WITH RESPECT TO THE PRODUCTS MATERIALS SUPPLIED HEREUNDER. SELLER MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIEDIN CONNECTION WITH THIS AGREEMENT, INCLUDING THE WOOD PRESERVATIVE, OR WITH RESPECT TO THE WOOD TREATING SERVICES OR THE TREATED CROSS TIES OR EQUIVALENTS, WHETHER ANY ARE USED ALONE OR IN COMBINATION WITH OTHER MATERIALS AND HEREBY DISCLAIMS ANY OTHER REPRESENTATIONS OR WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY A PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY . B. AS BETWEEN BNSF AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCTKOPPERS, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACT, OR ANY OTHER THEORY OF RECOVERY, NEITHER PARTY SHALL BE LIMITED LIABLE TO THE REMEDIES PROVIDED OTHER FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR FOR ANY LOSS OF PROFIT OR REVENUE, EXCEPT TO THE EXTENT: (A) RESULTING FROM A “CLAIM” (AS HEREINAFTER DEFINED); (B) BROUGHT BY A THIRD PARTY; (C) IF AND TO THE EXTENT SUCH “CLAIM” IS ENCOMPASSED WITHIN AN INDEMNITY OBLIGATION SET FORTH IN SECTION 12 13 OF THE THIS AGREEMENT. SELLER SHALL NOT, IN ANY CASE, BE LIABLE FOR (i) SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSON, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLER, WHICH ARE INCONSISTENT HEREWITH, SHALL NOT BE BINDING UPON SELLER.

Warranties and Remedies. Seller warrants that Products delivered ----------------------- hereunder will, in all material respects, conform to the quality specifications set forth in Section 12 of the Agreement, and that it shall deliver good and clear title to the ProductsAll CONSUMER REPORTS ARE PROVIDED “AS IS”. EXCEPT AS OTHERWISE PROVIDED IN THIS AGREEMENT, THE FOREGOING SHALL BE SELLER'S SOLE WARRANTY WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER. SELLER BEFORE U XXXX.XXX MAKES NO OTHER REPRESENTATION OR WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING THE INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER'S SOLE LIABILITY , AND BUYER'S SOLE REMEDY FOR NONCONFORMING PRODUCTIMPLIED WARRANTIES ARISING FROM THE COURSE OF DEALING OR A COURSE OF PERFORMANCE WITH RESPECT TO THE ACCURACY, WHETHER BASED UPON NEGLIGENCE, STRICT LIABILITY, BREACH OF CONTRACTVALIDITY, OR COMPLETENESS OF ANY OTHER THEORY OF RECOVERYCONSUMER REPORT, SHALL THAT WILL MEET MEMBER’S NEEDS, OR THAT WILL BE LIMITED TO THE REMEDIES PROVIDED IN SECTION 12 OF THE AGREEMENTON AN UNINTERRUPTED BASIS, AND BEFORE U XXXX.XXX EXPRESSLY DISCLAIMS ALL SUCH REPRESENTATIONS AND WARRANTIES. SELLER SHALL NOT, IN ANY CASE, BEFORE U XXXX.XXX WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES FOR LOSS OF PROFITS, WHETHER INCURRED AS A RESULT OF NEGLIGENCE OR OTHERWISE, EVEN IF BEFORE U XXXX.XXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, XXXXXXXXXXX.XXX AGREES TO BE RESPONSIBLE FOR ACTUAL DAMAGES TO THE EXTENT OF AND MAXIMUM STATED HEREIN FOR THIRD PARTY CLAIMS DIRECTLY RESULTING FROM BEFORE U XXXX.XXX’S SOLE NEGLIGENCE IN ASSEMBLING THE CONSUMER REPORT. Before U Xxxx.xxx’s maximum aggregate liability for damages in connection with Consumer Reports will not exceed an amount equal to the price paid by Member to Before U Xxxx.xxx for such Consumer Report at issue. Member shall indemnify, defend and hold harmless Before U Xxxx.xxx from and against any and all claims, suits, proceedings, damages, costs, expenses (including, without limitation, reasonable attorneys’ fees and court costs) brought against, or suffered by, any third party arising or resulting from, or otherwise in connection with Member’s: i) SPECIALuse of the Consumer Reports, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING CLAIMS FOR LOST PROFITS OR LOST BUSINESS OPPORTUNITIES, DOWNTIME OR CLAIMS BY BUYER'S CUSTOMERS OR (ii) DAMAGES FOR BODILY INJURY OR PROPERTY DAMAGE. ANY REPRESENTATIONS OR WARRANTIES MADE BY ANY PERSONbreach of any of its representations, INCLUDING EMPLOYEES OR REPRESENTATIVES OF SELLERwarranties, WHICH ARE INCONSISTENT HEREWITHor agreements as stated herein, SHALL NOT BE BINDING UPON SELLERand/or iii) NEGLIGENCE or WILLFUL misconduct.