Thermo Scientific AquaSensors
™
AquaTrace
™
Trace DO System User Guide
31
provisions set forth herein shall not apply to software
products owned by third parties and provided hereunder.
16. LIMITATION OF LIABILITY. NOTWITHSTANDING
ANYTHING TO THE CONTRARY CONTAINED HEREIN,
THE LIABILITY OF SELLER UNDER THESE TERMS AND
CONDITIONS (WHETHER BY REASON OF BREACH OF
CONTRACT, TORT, INDEMNIFICATION, OR
OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER
FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR
WHICH SHALL BE AS PROVIDED UNDER SECTION 13
ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO
THE LESSER OF (A) THE TOTAL PURCHASE PRICE
THERETOFORE PAID BY BUYER TO SELLER WITH
RESPECT TO THE PRODUCT(s) GIVING RISE TO SUCH
LIABILITY OR (B) ONE HUNDRED THOUSAND DOLLARS
($100,000). NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL
SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL,
CONSEQUENTIAL OR INCIDENTAL DAMAGES
(INCLUDING WITHOUT LIMITATION DAMAGES FOR
LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS
OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR
LOSS OF GOODWILL), REGARDLESS OF WHETHER
SELLER (a) HAS BEEN INFORMED OF THE POSSIBILITY
OF SUCH DAMAGES OR (b) IS NEGLIGENT.
17. EXPORT RESTRICTIONS. Buyer acknowledges that
each Product and any related software and technology,
including technical information supplied by Seller or
contained in documents (collectively “Items”), is subject to
export controls of the U.S. government. The export controls
may include, but are not limited to, those of the Export
Administration Regulations of the U.S. Department of
Commerce (the “EAR”), which may restrict or require
licenses for the export of Items from the United States and
their re-export from other countries.Buyer shall comply with
the EAR and all other applicable laws, regulations, laws,
treaties, and agreements relating to the export, re-export,
and import of any Item. Buyer shall not, without first
obtaining the required license to do so from the appropriate
U.S. government agency; (i) export or re-export any Item, or
(ii) export, re-export, distribute or supply any Item to any
restricted or embargoed country or to a person or entity
whose privilege to participate in exports has been denied or
restricted by the U.S. government. Buyer shall cooperate
fully with Seller in any official or unofficial audit or inspection
related to applicable export or import control laws or
regulations, and shall indemnify and hold Seller harmless
from, or in connection with, any violation of this Section by
Buyer or its employees, consultants, agents, or customers.
18. HAZARDOUS MATERIALS. Some Products may
require special labeling and handling. Carriers may add
additional freight charges for handling/transporting these
materials. Consolidating such material with other products
may be prohibited. Additional freight charges will be billed
per Seller's shipping terms. Be sure to advise Seller of
shipping instructions for these hazardous materials to
reduce your freight costs.
19. MISCELLANEOUS. (a) Buyer may not delegate any
duties nor assign any rights or claims hereunder without
Seller's prior written consent, and any such attempted
delegation or assignment shall be void. (b) The rights and
obligations of the parties hereunder shall be governed by
and construed in accordance with the laws of the
Commonwealth of Massachusetts, without reference to its
choice of law provisions. Each party hereby irrevocably
consents to the exclusive jurisdiction of the state and federal
courts located in Suffolk County, Massachusetts, in any
action arising out of or relating to this Agreement and waives
any other venue to which it may be entitled by domicile or
otherwise. (c) In the event of any legal proceeding between
the Seller and Buyer relating to this Agreement, neither
party may claim the right to a trial by jury, and both parties
waive any right they may have under applicable law or
otherwise to a right to a trial by jury. Any action arising under
this Agreement must be brought within one (1) year from the
date that the cause of action arose. (d) The application to
this Agreement of the U.N. Convention on Contracts for the
International Sale of Goods is hereby expressly excluded.
(e) In the event that any one or more provisions contained
herein shall be held by a court of competent jurisdiction to
be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining
provisions contained herein shall remain in full force and
effect, unless the revision materially changes the bargain.
(f) Seller's failure to enforce, or Seller's waiver of a breach
of, any provision contained herein shall not constitute a
waiver of any other breach or of such provision. (g) Any
notice or communication required or permitted hereunder
shall be in writing and shall be deemed received when
personally delivered or three (3) business days after being
sent by certified mail, postage prepaid, to a party at the
address specified herein or at such other address as either
party may from time to time to designate to the other.
