Exclusive Distribution Agreement Page 6
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10.
Limited Warranty
10.1
Pass Through Warranties. Distributor acknowledge that all components of the Products
are being manufactured for Developer by subcontractors or other entities other than the
Developer. Developer extends to Distributor the warranties as to such components
provided by such other entities to Developer for the length of time that such warranty
remains valid for Developer. Notwithstanding any other provision in this Agreement,
Developer shall not be held responsible for any damage which may result from a
defective part except for the replacement of such part as set forth in the warranties
provided by its subcontractors.
10.2
No Implied Warranties. THE PROVISIONS OF THE FOREGOING WARRANTIES
ARE IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESSED OR
IMPLIED, WRITTEN OR ORAL (INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE).
10.3
Modification of Products. Distributor may not customize, modify or have customized or
modified any Product unless it obtains the prior written consent of Developer, which
consent may be withheld in the sole discretion of Developer.
11.
Limitations on Liability
11.1
Limit of Liability. DEVELOPER'S LIABILITY ARISING OUT OF THE
MANUFACTURE, SALE OR SUPPLYING OF THE PRODUCTS OR THEIR USE OR
DISPOSITION, WHETHER BASED UPON WARANTY, CONTRACT, TORT OR
OTHERWISE, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE PAID BY
DISTRIBUTOR FOR THE PRODUCTS.
11.2
No Consequential Damages. IN NO EVENT SHALL DEVELOPER BE LIABLE TO
DISTRIBUTOR OR ANY OTHER PERSON OR ENTITY FOR SPECIAL,
INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT
LIMITED TO, LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES)
ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLYING OF THE
PRODUCTS, EVEN IF DEVELOPER HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES OR LOSSES.
12.
Indemnification; Insurance
12.1
By Distributor. Distributor hereby agrees to indemnify, defend and hold harmless
Developer, its affiliates and all officers, directors, employees and agents thereof
(hereinafter referred to as "Indemnitees") from all liabilities, claims, damages, losses,
costs, expenses, demands, suits and actions (including without limitation attorneys' fees,
expenses and settlement costs) (collectively, "Damages") arising out of or related to the
conduct of Distributor's operations, including without limitation Damages arising out of
or related to damage or injury to property or persons, or to any representations of
Distributor not authorized hereunder.
12.2
Insurance. During the term of this Agreement and for four (4) years thereafter,
Distributor shall maintain an insurance policy issued by a reputable insurance company,
naming Developer as an additional insured, which policy shall insure against an and all
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