A. “Affiliates” means, with respect to the referenced party, any other entity directly or indirectly controlling, controlled by, or under common control with such party;
B. “Buyer” means the party purchasing or renting goods or services from EXACT, and its Affiliates;
C. “EXACT” means EXACT Technology Corporation and/or any of its subsidiaries, including EXACT Technology USA Corporation ( “Seller”);
D. “Specifications” means the specifications delivered to Buyer with or in a product and/or published on EXACT’s website for the applicable version of the product.
E. “Variables” includes operator skills, non-EXACT equipment used with the products, and environmental and climatic conditions.
Unless superseded by individual product warranty terms set forth in the Specifications, a warranty section of EXACT’s website at www.exacttechnology.com, or in a written agreement, SELLER WARRANTS THAT FROM THE DATE OF DELIVERY AND FOR A PERIOD OF TWO YEARS IN THE CASE OF PURCHASED GOODS, OR FOR THE RENTAL TERM IN THE CASE OF RENTED GOODS, THE PRODUCTS WILL CONFORM IN ALL MATERIAL RESPECTS TO ITS SPECIFICATIONS AT THE TIME OF SALE OR INITIAL RENTAL AND BE FREE FROM MATERIAL DEFECTS UNDER PROPER USE AND SERVICE IN ACCORDANCE WITH THE SPECIFICATIONS. Buyer agrees that Specifications and other warranty information may be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation. This limited warranty extends only to Buyer and is not transferable to any other party, and any transfer made in violation of this provision shall be void. The warranty applies only to the unmodified portion of the products. Buyer is responsible for the results obtained from the use of the products. Buyer’s sole remedy, and Seller’s sole liability, for any breach of the foregoing warranty shall be to replace or repair any part or parts (or redliever services) which were delivered in breach of the foregoing warranty.
SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE (EVEN IF BUYER HAS NOTIFIED SELLER OF ITS INTENDED USE FOR THE PRODUCTS). SELLER FURTHER EXPRESSLY DISCLAIMS ANY WARRANTY OF THE PRODUCTS WHERE THE ALLEGED NONCONFORMITY IS DUE TO NORMAL WEAR AND TEAR, ALTERATION, MODIFICATION, REPAIR, ATTEMPTED REPAIR, IMPROPER USE OR STORAGE, IMPROPER MAINTENANCE, NEGLECT, ABUSE, FAILURE TO FOLLOW ANY PRODUCT INSTRUCTIONS, DAMAGE (WHETHER CAUSED BY ACCIDENT OR OTHERWISE), VARIABLES OUTSIDE THE CONTROL OF EXACT, OR ANY OTHER IMPROPER CARE OR HANDLING OF THE PRODUCTS CAUSED BY ANYONE OTHER THAN SELLER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO BUYER. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. BUYER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
BUYER UNDERSTANDS AND AGREES THAT IT IS BUYER’S SOLE RESPONSIBILITY TO ENSURE THAT BUYER USES EXACT’S HARDWARE AND SOFTWARE CORRECTLY. To the extent that Buyer’s use of Seller’s goods or services outputs data or information, Buyer agrees that, to the extent Buyer relies on such data or information, IT DOES SO ENTIRELY AT ITS OWN RISK.
In no event shall either Buyer or Seller be liable for anticipated profits or for incidental or consequential damages arising out of their agreement or failure to perform thereunder. Buyer’s liability on any claim of any kind or for any loss or damage arising out of or in connection with an order shall in no case exceed that portion of the order price allocable to the goods or services or portion thereof which gives rise to the claim. Any action by Buyer against Seller arising from an order including Seller’s breach thereof must be commenced within one year after the cause of action has occurred or shall be deemed waived.
Regardless of the basis on which Buyer is entitled to claim damages from EXACT (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), EXACT’s entire liability for all claims in the aggregate arising from or related to each product purchased by Buyer, or otherwise arising, under their agreement will not exceed the amount of actual direct damages up to the total amounts paid by Buyer to EXACT for the product that is the subject of the claim. This limit also applies to EXACT, all of EXACT’s Affiliates and suppliers and is the maximum for which EXACT, its Affiliates and suppliers are collectively responsible. UNDER NO CIRCUMSTANCES SHALL EXACT, ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: DAMAGES CLAIMS BY ANY THIRD PARTY, WHETHER OR NOT THE CLAIMS ARE BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE; LOSS OF, OR DAMAGE TO, DATA; SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. The limitations and exclusions in this Section apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver. Nothing in this agreement affects any statutory rights of consumers that cannot be waived or limited by contract. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, Buyer shall not bring a legal action, regardless of form, for any claim arising out of, or related to this agreement more than two years after the cause of action arose; and, upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse. Buyer acknowledges and agrees that Seller has set its prices and entered into this agreement in reliance upon the disclaimers of warranty and the limitations of liability set forth herein, that the same reflect an allocation of risk between the parties (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between the parties.