Common use of Warranties; Product Defects Clause in Contracts

Warranties; Product Defects. Bollore shall ship and deliver all Products in saleable condition, and Bollore represents and warrants that all Products are merchantable, but makes no other representation or warranty express or implied regarding the condition of the Products. The Distributor is not authorized to extend or modify any warranty or guaranty on behalf of Bollore. All Products received by the Distributor will be inspected promptly upon receipt for damage, but in no event later than 15 days after receipt. If any Products are materially damaged, defective and not usable or saleable in the ordinary course of the Distributor's business ("Defective Products"), then the Distributor's sole and exclusive remedy (subject to the fourth paragraph of this Section 2) shall be rejection of the Defective Products with a right to a refund of the payment for such Defective Products if they have been paid for (as provided below) and without obligation to pay for such rejected portion if they have not been paid for. Except as provided below, if Bollore does not receive a written rejection from the Distributor of a shipment, or part thereof, within 15 days after delivery of such shipment, the Distributor shall be deemed irrevocably to have accepted such shipment. If the Distributor timely notifies Bollore that it rejects all or part of a shipment, Bollore, at its sole expense, shall have 30 days after receipt of such notice (a) to cure any defect by providing substitute Products or causing the Defective Products to meet its customary quality standards, or (b) to provide a credit to the Distributor for the amount due Bollore for such Defective Products or refund such amount if previously paid. Bollore shall supply either a return authorization number and return shipping instructions or instructions to destroy the Defective Products and shall ship replacement merchandise as soon as possible. Nothing herein shall prevent the Distributor from returning to Bollore for refund of the purchase price paid therefor any Product found to be manufactured defectively which is discovered by the Distributor subsequent to such inspection for damage. Notwithstanding the foregoing, if Bollore disputes the Distributor's claim that any Product does not meet Bollore's customary quality standards or is otherwise a Defective Product, the parties shall cooperate in good faith to settle the dispute amicably. If they fail to agree, the parties shall submit samples of the Product to a mutually agreed upon independent laboratory or industry expert (which or who has no prior dealings and is unaffiliated with either party) (an "Independent Evaluator") for testing and such Independent Evaluator's determination shall be final and binding. If the parties fail to agree upon an Independent Evaluator within 10 days, each party shall select an Independent Evaluator and the two appointed Independent Evaluators shall agree upon a third Independent Evaluator, whose determination shall be final and binding. The losing party shall pay the costs of submitting the samples and testing by the Independent Evaluator. Except for the remedies set forth in this Section, Bollore shall not be liable to the Distributor or any other party by reason of supplying defective or otherwise non-conforming Product; except that nothing herein shall affect Bollore's liability, if any, as a matter of law, to third parties for defective product nor Bollore's liability to the Distributor arising from third party claims relating to defective Product, but Bollore shall have no liability to the Distributor for damages to Distributor arising from lost profits or lost opportunities of the Distributor. To the extent requested by the Distributor, Bollore shall modify the Products to the extent reasonably necessary to comply with applicable laws in the Territory; provided, however, that if such modification increases Bollore's costs, the parties shall negotiate in good faith for 30 days for a mutually agreed upon purchase price adjustment to reflect such additional costs. If after such 30 day period the parties, acting in good faith, have been unable to agree, the parties shall submit the dispute to binding arbitration in accordance with Section 12(d); provided, however, that during such 30 day period and/or arbitration, the previously established prices shall apply to all transactions and corresponding patent schedules of Bollore and the Distributor. Notwithstanding the proviso contained in the previous sentence, if after such 30 day period and/or arbitration a new price is established, such new price shall apply retroactively to the parties and the Distributor shall pay, within 10 business days of the final determination of the new price, to Bollore, the amount equal to the difference between the amount that would have been paid over such period if the new price had been in effect and the amount that was actually paid.

Warranties; Product Defects. Bollore shall ship and deliver all Products in saleable condition, and Bollore represents and warrants that all Products are merchantable, but makes no other representation or warranty express or implied regarding the condition of the Products. The Distributor is not authorized to extend or modify any warranty or guaranty on behalf of Bollore. All Products received by the Distributor will be inspected promptly upon receipt for damage, but in no event later than 15 days after receipt. If any Products are materially damaged, defective and not usable or saleable in the ordinary course of the Distributor's business ("Defective Products"), then the Distributor's sole and exclusive remedy (subject to the fourth paragraph of this Section 2) shall be rejection of the Defective Products with a right to a refund of the payment for such Defective Products if they have been paid for (as provided below) and without obligation to pay for such rejected portion if they have not been paid for. Except as provided below, if Bollore does not receive a written rejection from the Distributor of a shipment, or part thereof, within 15 days after delivery of such shipment, the Distributor shall be deemed irrevocably to have accepted such shipment. If the Distributor timely notifies Bollore that it rejects all or part of a shipment, Bollore, at its sole expense, shall have 30 days after receipt of such notice (a) to cure any defect by providing substitute Products or causing the Defective Products to meet its customary quality standards, or (b) to provide a credit to the Distributor for the amount due Bollore for such Defective Products or refund such amount if previously paid. Bollore shall supply either a return authorization number and return shipping instructions or instructions to destroy the Defective Products and shall ship replacement merchandise as soon as possible. Nothing herein shall prevent the Distributor from returning to Bollore for refund of the purchase price paid therefor any Product found to be manufactured defectively which is discovered by the Distributor subsequent to such inspection for damage. Notwithstanding the foregoing, if Bollore disputes the Distributor's claim that any Product does not meet Bollore's customary quality standards or is otherwise a Defective Product, the parties shall cooperate in good faith to settle the dispute amicably. If they fail to agree, the parties shall submit samples of the Product to a mutually agreed upon independent laboratory or industry expert (which or who has no prior dealings and is unaffiliated with either party) (an "Independent Evaluator") for testing and such Independent Evaluator's determination shall be final and binding. If the parties fail to agree upon an Independent Evaluator within 10 days, each party shall select an Independent Evaluator and the two appointed Independent Evaluators shall agree upon a third Independent Evaluator, whose determination shall be final and binding. The losing party shall pay the costs of submitting the samples and testing by the Independent Evaluator. Except for the remedies set forth in this Section, Bollore shall not be liable to the Distributor or any other party by reason of supplying defective or otherwise non-conforming Product; except that nothing herein shall affect Bollore's liability, if any, as a matter of law, to third parties for defective product nor Bollore's liability to the Distributor arising from third party claims relating to defective Product, but Bollore shall have no liability to the Distributor for damages to Distributor arising from lost profits or lost opportunities of the Distributor. To the extent requested by the Distributor, Bollore shall modify the Products to the extent reasonably necessary to comply with applicable laws in the Territory; provided, however, that if such modification increases Bollore's costs, the parties shall negotiate in good faith for 30 days for a mutually agreed upon purchase price adjustment to reflect such additional costs. If after such 30 day period the parties, acting in good faith, have been unable to agree, the parties shall submit the dispute to binding arbitration in accordance with Section 12(d14(d); provided, however, that during such 30 day period and/or arbitration, the previously established prices shall apply to all transactions and corresponding patent payment schedules of Bollore and the Distributor. Notwithstanding the proviso contained in the previous sentence, if after such 30 day period and/or arbitration a new price is established, such new price shall apply retroactively to the parties and the Distributor shall pay, within 10 business days of the final determination of the new price, to Bollore, the amount equal to the difference between the amount that would have been paid over such period if the new price had been in effect and the amount that was actually paid.

Warranties; Product Defects. Bollore shall ship and deliver all Products in saleable condition, and Bollore represents and warrants that all Products are merchantable, but makes no other representation or warranty express or implied regarding the condition of the Products. The Distributor is not authorized to extend or modify any warranty or guaranty on behalf of Bollore. All Products received by the Distributor will be inspected promptly upon receipt for damage, but in no event later than 15 days after receipt. If any Products are materially damaged, defective and not usable or saleable in the ordinary course of the Distributor's business ("Defective Products"), then the Distributor's sole and exclusive remedy (subject to the fourth paragraph of this Section 2) shall be rejection of the Defective Products with a right to a refund of the payment for such Defective Products if they have been paid for (as provided below) and without obligation to pay for such rejected portion if they have not been paid for. Except as provided below, if Bollore does not receive a written rejection from the Distributor of a shipment, or part thereof, within 15 days after delivery of such shipment, the Distributor shall be deemed irrevocably to have accepted such shipment. If the Distributor timely notifies Bollore that it rejects all or part of a shipment, Bollore, at its sole expense, shall have 30 days after receipt of such notice (a) to cure any defect by providing substitute Products or causing the Defective Products to meet its customary quality standards, or (b) to provide a credit to the Distributor for the amount due Bollore for such Defective Products or refund such amount if previously paid. Bollore shall supply either a return authorization number and return shipping instructions or instructions to destroy the Defective Products and shall ship replacement merchandise as soon as possible. Nothing herein shall prevent the Distributor from returning to Bollore for refund of the purchase price paid therefor any Product product found to be manufactured defectively which is discovered by the Distributor subsequent to such inspection for damage. Notwithstanding the foregoing, if Bollore disputes the Distributor's claim that any Product does not meet Bollore's customary quality standards or is otherwise a Defective Product, the parties shall cooperate in good faith to settle the dispute amicably. If they fail to agree, the parties shall submit samples of the Product to a mutually agreed upon independent laboratory or industry expert (which or who has no prior dealings and is unaffiliated with either party) (an "Independent Evaluator") for testing and such Independent Evaluator's determination shall be final and binding. If the parties fail to agree upon an Independent Evaluator within 10 days, each party shall select an Independent Evaluator and the two appointed Independent Evaluators shall agree upon a third Independent Evaluator, whose determination shall be final and binding. The losing party shall pay the costs of submitting the samples and testing by the Independent Evaluator. Except for the remedies set forth in this Section, Bollore shall not be liable to the Distributor or any other party by reason of supplying defective or otherwise non-conforming Product; except that nothing herein shall affect Bollore's liability, if any, as a matter of law, to third parties for defective product nor Bollore's liability to the Distributor arising from third party claims relating to defective Product, but Bollore shall have no liability to the Distributor for damages to Distributor arising from lost profits or lost opportunities of the Distributor. To the extent requested by the Distributor, Bollore shall modify the Products to the extent reasonably necessary to comply with applicable laws in the Territory; provided, however, that if is such modification increases Bollore's costs, the parties shall negotiate in good faith for 30 days for a mutually agreed upon purchase price adjustment to reflect such additional costs. If after such 30 day period the parties, acting in good faith, have been unable to agree, the parties shall submit the dispute to binding arbitration in accordance with Section 12(d); provided, however, that during such 30 day period and/or arbitration, the previously established prices shall apply to all transactions and corresponding patent payment schedules of Bollore and the Distributor. Notwithstanding the proviso contained in the previous sentence, if after such 30 day period and/or arbitration a new price is established, such new price shall apply retroactively to the parties and the Distributor shall pay, within 10 business days of the final determination of the new price, to Bollore, the amount equal to the difference between the amount that would have been paid over such period if the new price had been in effect and the amount that was actually paid.