AND ATTEMPT TO
CORRECT ANY NON-CONFORMANCE ITSELF OR THROUGH A THIRD PARTY AT CLIENT'S SOLE
EXPENSE.
(C)
CLIENT'S SOLE REMEDY AND FUTURA'S ENTIRE LIABILITY IN
CONNECTION WITH NON-CONFORMING DELIVERABLES OR SERVICE AND/OR TERMINATION OF AN
SOW SHALL BE AS STATED IN THIS SECTION 6.3 AND SHALL BE LIMITED TO THE AMOUNT OF
FEES PAID UNDER THE APPLICABLE SOW THAT RESULT IN LIABILITY.
6.4
RISK OF LOSS.
EXCEPT AS OTHERWISE PROVIDED FOR IN THIS AGREEMENT,
FUTURA AGREES TO BEAR ALL RISK OF LOSS FOR THE SERVICES DEFINED BY THE AGREEMENT
AND ALL SOWS THERETO, INCLUDING, BUT NOT LIMITED TO, ALL COSTS RELATED TO:
(a)
Warranty, extended warranty and call center services, as further
defined in all related SOWS attached to this Agreement and made a part thereof,
which are sold by Client to its customers and accepted in such SOWs by Futura;
(b)
Post and Pre production completion of kitting, imaging and shipments to
Client customers as specified in the related SOWs; and
(c)
Futura shall not be liable for any acts or omissions occurring prior to
the delivery of any product or service to the Client customer site that are
covered by a related third party warranty program sold by Client or any third
party warranty provided for by the manufacturer of such product.
6.5 SPARE POOLS.
FUTURA SHALL PURCHASE FROM SUPPLIERS REASONABLY ACCEPTABLE TO
FUTURA AND SHALL MAINTAIN AT FUTURA'S OWN COST AND EXPENSE DURING THE TERM OF
THE AGREEMENT, SPARE POOLS INVENTORY ADEQUATE IN AMOUNTS AS DETERMINED BY FUTURA
TO FULFILL PRODUCT WARRANTY REQUIREMENTS, AS DEFINED IN THE RELATED SOWS.
9
7.
LIMITATION OF LIABILITY AND REMEDIES
7.1
LIMIT ON DAMAGES.
WITHOUT LIMITING THE RESTRICTIONS OF SECTIONS 1.2, 5.1
AND 6.3, AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
FUTURA'S LIABILITY IN THE AGGREGATE UNDER AND WITH RESPECT TO THIS AGREEMENT AND
THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT AND ANY DELIVERABLES OR
OTHER ITEMS UNDER THIS AGREEMENT (WHETHER IN TORT, CONTRACT OR OTHERWISE AND
NOTWITHSTANDING ANY FAULT OR NEGLIGENCE) SHALL IN NO EVENT EXCEED, AS TO ANY
CLAIM, IN THE AGGREGATE, THE AMOUNT OF THE COMPENSATION ACTUALLY RECEIVED BY
FUTURA UNDER THE APPLICABLE SOW.
7.2
NO CONSEQUENTIAL DAMAGES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS
AGREEMENT, IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR LOSS OF
PROFITS, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING
TO THE DELIVERABLES OR THIS AGREEMENT
OR RELATED SOWS EVEN IF ADVISED OF THE
POSSIBILITY THEREOF.
7.3
EXCEPTIONS TO LIMITATIONS.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, THE LIMITATIONS ON DAMAGES AND LIABILITY SET FORTH HEREIN SHALL NOT
APPLY TO:
(I) LIABILITY ARISING FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT
OF FUTURA, (II) LIABILITY UNDER SECTION 5, AND (III) TO THE EXTENT CONTRARY TO
APPLICABLE LAWS OF ANY STATE HAVING JURISDICTION.
8.
EMPLOYEES
8.1
NO EMPLOYEE RELATIONSHIP.
FUTURA'S EMPLOYEES ARE NOT AND SHALL NOT BE
DEEMED TO BE EMPLOYEES OF CLIENT.
FUTURA SHALL BE SOLELY RESPONSIBLE FOR THE
PAYMENT OF ALL COMPENSATION TO ITS EMPLOYEES, INCLUDING