PRODUCTS. THE OBLIGATIONS CREATED BY THIS
SECTION TO REPAIR OR REPLACE A DEFECTIVE
PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN
THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS
EXPRESSLY PROVIDED IN THIS SECTION 8, SELLER
DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR
IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE
PRODUCTS, INCLUDING WITHOUT LIMITATION ALL
IMPLIED WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE.
REPRESENTATIONS AND WARRANTIES MADE BY ANY
PERSON, INCLUDING SELLER'S AUTHORIZED
DEALERS, REPRESENTATIVES AND EMPLOYEES
WHICH ALTER OR ARE IN ADDITION TO THE TERMS OF
THIS WARRANTY SHALL NOT BE BINDING UPON
SELLER UNLESS AGREED UPON IN WRITING AND
SIGNED BY ONE OF SELLER'S OFFICERS. SELLER
DOES NOT WARRANT THAT THE PRODUCTS ARE
ERROR-FREE OR WILL ACCOMPLISH ANY
PARTICULAR RESULT.
14. INDEMNIFICATION.
14.1 By Seller. Seller agrees to indemnify, defend and
save Buyer, its officer, directors, and employees from and
against any and all damages, liabilities, actions, causes of
action, suits, claims, demands, losses, costs and expenses
(including without limitation reasonable attorney's fees)
(“Indemnified Items”) for (i) injury to or death of persons or
damage to property to the extent caused by the negligence
or willful misconduct of Seller, its employees, agents or
representatives or contractors in connection with the
performance of services at Buyer's premises under this
Agreement and (ii) claims that a Product infringes any valid
United States patent, copyright or trade secret; provided,
however, Seller shall have no liability under this Section to
the extent any such Indemnified Items are caused by either
(i) the negligence or willful misconduct of Buyer, its
employees, agents or representatives or contractors, (ii) by
any third party, (iii) use of a Product in combination with
equipment or software not supplied by Seller where the
Product would not itself be infringing, (iv) compliance with
Buyer's designs, specifications or instructions, (v) use of the
Product in an application or environment for which it was not
designed or (vi) modifications of the Product by anyone
other than Seller without Seller's prior written approval.
Buyer shall provide Seller prompt written notice of any third
party claim covered by Seller's indemnification obligations
hereunder. Seller shall have the right to assume exclusive
control of the defense of such claim or, at the option of the
Seller, to settle the same. Buyer agrees to cooperate
reasonably with Seller in connection with the performance
by Seller of its obligations in this Section.
Notwithstanding the above, Seller's infringement related
indemnification obligations shall be extinguished and
relieved if Seller, at its discretion and at its own expense (a)
procures for Buyer the right, at no additional expense to
Buyer, to continue using the Product; (b) replaces or
modifies the Product so that it becomes non-infringing,
provided the modification or replacement does not adversely
affect the specifications of the Product; or (c) in the event (a)
and (b) are not practical, refund to Buyer the amortized
amounts paid by Buyer with respect thereto, based on a five
(5) year amortization schedule. THE FOREGOING
INDEMNIFICATION PROVISION STATES SELLER'S
ENTIRE LIABILITY TO BUYER FOR THE CLAIMS
DESCRIBED HEREIN.
14.2 By Buyer. Buyer shall indemnify, defend with
competent and experienced counsel and hold harmless
Seller, its parent, subsidiaries, affiliates and divisions, and
their respective officers, directors, shareholders and
employees, from and against any and all damages,
liabilities, actions, causes of action, suits, claims, demands,
losses, costs and expenses (including without limitation
reasonable attorneys' fees and disbursements and court
costs) to the extent arising from or in connection with (i) the
negligence or willful misconduct of Buyer, its agents,
employees, representatives or contractors; (ii) use of a
Product in combination with equipment or software not
supplied by Seller where the Product itself would not be
infringing; (iii) Seller's compliance with designs,
specifications or instructions supplied to Seller by Buyer; (iv)
use of a Product in an application or environment for which it
was not designed; or (v) modifications of a Product by
anyone other than Seller without Seller's prior written
approval.
15. SOFTWARE. With respect to any software products
incorporated in or forming a part of the Products hereunder,
Seller and Buyer intend and agree that such software
products are being licensed and not sold, and that the words
"purchase", "sell" or similar or derivative words are
understood and agreed to mean "license", and that the word
"Buyer" or similar or derivative words are understood and
agreed to mean "licensee". Notwithstanding anything to the
contrary contained herein, Seller or its licensor, as the case
may be, retains all rights and interest in software products
provided hereunder. Seller hereby grants to Buyer a
royalty-free, non-exclusive, nontransferable license, without
power to sublicense, to use software provided hereunder
solely for Buyer's own internal business purposes on the
hardware products provided hereunder and to use the
related documentation solely for Buyer's own internal
business purposes. This license terminates when Buyer's
lawful possession of the hardware products provided
hereunder ceases, unless earlier terminated as provided
herein. Buyer agrees to hold in confidence and not to sell,
transfer, license, loan or otherwise make available in any
form to third parties the software products and related
documentation provided hereunder. Buyer may not
disassemble, decompile or reverse engineer, copy, modify,
enhance or otherwise change or supplement the software
products provided hereunder without Seller's prior written
consent. Seller will be entitled to terminate this license if
Buyer fails to comply with any term or condition herein.
Buyer agrees, upon termination of this license, immediately
to return to Seller all software products and related
documentation provided hereunder and all copies and
portions thereof. Certain of the software products provided
by Seller may be owned by one or more third parties and
licensed to Seller.Accordingly, Seller and Buyer agree that
such third parties retain ownership of and title to such
software products. The warranty and indemnification
Thermo Scientific AquaSensors
™
AquaTrace
™
Trace DO System User Guide
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