Gaumard Sales Terms and Conditions | 57
S405.100 & S406.100
|
USER GUIDE
does not warrant that use of the Products will be uninterrupted or error-free, or that the Products will operate with non-Gaumard authorized third-
party products. THE FOREGOING WARRANTIES ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED
BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SUCH LIMITED WARRANTY IS GIVEN SOLELY TO THE ORIGINAL CUSTOMER AND IS NOT
GIVEN TO ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, SUBSEQUENT PURCHASERS OR USERS OF THE PRODUCTS OR CUSTOMERS
OF THE CUSTOMER. THIS WARRANTY IS VOID UPON TRANSFER OF PRODUCT BY CUSTOMER TO ANY OTHER ENTITY. SOME STATES DO NOT
ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. These warranties do not apply
to any Products that are supplied on a pre- release or “as-is” basis.
8.
Warranty Claims and Remedies. In the event of any warranty claim, Gaumard will replace with new or repaired items any Product part or
component that is in breach of the above limited warranties. Alternatively, Gaumard may elect to repay or credit to Customer an amount equal to the
purchase price of the defective Product. Items replaced sHAL®l become Gaumard property. All claims sHAL®l be initiated by contacting Gaumard
within the applicable Warranty Period and within thirty (30) days after discovery of the non- conformity. If Customer has failed to notify Gaumard
within the Warranty Period, then Customer sHAL®l be barred from instituting any action thereafter. Customer sHAL®l not return the Product to
Gaumard without prior authorization from Gaumard. If the necessary repairs to the Product are covered by this limited warranty, then Customer will
pay only the incidental expenses associated with the repair, including any shipping, handling, and related costs for sending the product to Gaumard
and for sending the product back to the first purchaser. However, if the repairs are not covered by this limited warranty, then Customer will be liable
for all repair costs in addition to costs of shipping and handling. Upon request, Gaumard must be given access to and an opportunity to inspect the
Product and any working areas and storage areas. These remedies sHAL®l comprise Gaumard’s entire liability and Customer’s exclusive remedy for
breach of warranty and are in lieu of any other remedies at law or equity.
9.
LIMIT OF LIABILITY. GAUMARD SHAL®L NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL
LOSSES, DAMAGES, OR EXPENSES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, DATA, OR USE), DIRECTLY OR INDIRECTLY ARISING FROM
THE SALE, HANDLING, SERVICE, OR USE OF PRODUCT OR SERVICES ORDERED OR FURNISHED, OR FROM ANY CAUSE RELATING THERETO.
EXCEPT FOR PERSONAL INJURY OR DEATH TO THE EXTENT RESULTING FROM GAUMARD’S NEGLIGENT OR INTENTIONALLY WRONGFUL ACTS
OR OMISSIONS, IN NO EVENT SHAL®L GAUMARD BE LIABLE UNDER ANY LEGAL THEORY OR FOR ANY CAUSE RELATED TO A PRODUCT OR
SERVICE, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR OTHER THEORY, EVEN IF ADVISED OF THE POSSIBILITY
THEREOF, FOR ANY AMOUNT IN EXCESS OF THE PRICE, FEE, OR CHARGE RECEIVED BY GAUMARD FOR SUCH PRODUCT OR SERVICE.
10.
Governmental Authorizations. Customer is responsible for compliance and costs associated with all required licenses, permits, or other
governmental authorizations, including but not limited to, any license or certification needed for Customer to use the Product, and any export or
import license, exchange permit, or the like (“Licenses”), even if applied for by Gaumard on Customer’s beHAL®f. If any authorization is delayed,
denied, revoked, restricted, or not renewed, Gaumard sHAL®l not be liable, and Customer is not relieved of its obligations. Customer represents and
agrees that it will handle all Product and technical data related to the Licenses so that it conforms to all applicable U.S. laws and regulations, including
U.S. export licensing laws and the U.S. Foreign Corrupt Practices Act. Customer sHAL®l not trans-ship, divert, re-export or otherwise dispose of any
U.S. origin goods or technology obtained from Gaumard except as U.S. laws and regulations expressly permit.
11. Indemnity.
a.
Gaumard agrees to indemnify, defend and hold Customer, its officers, directors, employees, agents and contractors harmless from and
against all loss, damage, liability, cost and expense (including reasonable attorneys’ fees and expenses) by reason of any claims or actions by
third parties against Customer for (1) bodily injury or death, and damage, loss or destruction of any real or tangible personal property, which third
party claims arise out of or relate to Gaumard’s gross negligence or willful misconduct or (2) infringement or misappropriation by Gaumard of any
intellectual property rights under this Agreement.
b.
Customer agrees to indemnify, defend and hold Gaumard, its officers, directors, employees, agents and contractors harmless from and
against all loss, damage, liability, cost and expense (including reasonable attorneys’ fees and expenses) by reason of any claims or actions by third
parties against Gaumard for (1) bodily injury or death or damage, loss or destruction of any real or tangible personal property, which third party claims
arise out of or relate to Customer’s gross negligence or willful misconduct; (2) infringement or misappropriation by Customer of any intellectual
property rights; or
(3) Customer’s or its customer’s use of the Products or Services, including without limitation, defamation, libel, slander, obscenity, pornography, or
violation of the rights of privacy or publicity, or spamming or any other tortious or illegal conduct.
12.
Software License. For purposes of these Terms, the term “Software” includes all Gaumard computer software, firmware, and associated
documentation, whether in printed or machine-readable form, supplied by reason of this Agreement or for use in connection with Equipment or
Services. To the extent the Product includes Software, Customer’s use of the Software is governed by the Gaumard End User License Agreement
attached as Exhibit A to these Terms.
13.
Confidential Information. Customer sHAL®l maintain the confidentiality of any information provided or disclosed by Gaumard relating to
the Software (as defined above), business or customers of Gaumard, as well as this Agreement and its terms (including the pricing and other financial
terms under which the Customer will be obtaining the Services hereunder). Customer sHAL®l use reasonable care to protect the confidentiality of
Gaumard’s information disclosed, but no less than the degree of care it would use to protect its own confidential information, and sHAL®l only disclose
Gaumard’s confidential information to its employees and agents having a need to know this information and who are subject to confidentiality
agreements having terms at least as restrictive as those contained herein. The obligations of confidentiality set forth herein sHAL®l not apply to any
information in the public domain at the time of disclosure.
14.
Intended Uses. Products are only intended for the uses described in the applicable user’s manual or instructions for use. Customer assumes
all risks associated with non-listed uses of Products and hereby indemnifies and holds Gaumard harmless from any claim associated with such non-
listed uses.
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