SHIPMENT OF
NON-CONFIRMING PRODUCT OR ANY OTHER BREACH BY SELLER BREACH OF THIS AGREEMENT
SHALL BE LIMITED TO, AT SELLER'S SOLE OPTION, EITHER REPLACEMENT OF THE
NON-CONFORMING PRODUCT OR A REFUND OF THE PURCHASE PRICE PAID. ALL CLAIMS
ARISING OUT OF THIS AGREEMENT OR MADE WITH RESPECT TO THE PRODUCT SHALL BE
DEEMED WAIVED BY BUYER UNLESS MADE IN WRITING AND RECEIVED BY SELLER WITHIN
SIXTY (60) DAYS OF DELIVERY. BUYER MUST MAKE ANY CLAIM FOR NON-COMFORMING
PRODUCT, BREACH OF WARRANTY, OR ANY CLAIM OF ANY NATURE WHATSOEVER WITH RESPECT
TO THE PRODUCTS SOLD HEREUNDER IN WRITING WITHIN SIXTY (60) DAYS AFTER BUYER'S
RECEIPT OF PRODUCS. BUYER IRREVOCABLY WAIVES AND RELEASES ALL CLAIMS THAT ARE
NOT PROPERLY MADE WITIN SAID PERIOD.
10. LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE
PARTIES WAIVE AND RELINQUISH ANY CLAIMS, DEMANDS, AND CAUSES OF ACTION OR
RECOVERIES FOR PUNITIVE DAMAGES, EXEMPLARY DAMAGES, OR STATUTORY DAMAGES.
IN NO
EVENT WILL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO
THE SALE OF THE PRODUCTS, INCLUDING ANY LOST REVENUES OR PROFITS, CONSEQUENTIAL
AND/OR INCIDENTAL DAMAGES, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS
REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED,
INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. NOTWITHSTANDING THE TERMS OF
ANY LIMITED WARRANTY, AND/OR IN THE EVENT ANY LIMITED WARRANTY PROVIDED TO BUYER
FAILS OF ITS ESSENTIAL PURPOSE, IN NO EVENT WILL SELLER'S ENTIRE LIABILITY TO
BUYER (IN TORT, CONTRACT, FOR INTELLECTUAL PROPERTY INFRINGEMENT, OR OTHERWISE)
EXCEED THE PURCHASE PRICE ACTUALLY PAID BY BUYER FOR THE PRODUCTS IN DISPUTE, OR
ANY DEFECTIVE OR NONCONFORMING PORTION THEREOF, WHICHEVER IS THE LESSER AMOUNT.
BOTH PARTIES UNDERSTAND AND AGREE THAT THIS LIMITATION OF LIABILITY ALLOCATES
RISK OF NONCONFORMING GOODS BETWEEN THE PARTIES AS AUTHORIZED BY THE UNIFORM
COMMERCIAL CODE AND OTHER APPLICABLE LAW.
THE PRICES SET FORTH HEREIN REFLECTS
THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY, INCLUDING THE
EXCLUSION OF SPECIAL, INDIRECT, CONSEQUENTIAL AND INCIDENTAL DAMAGES, IN THIS
AGREEMENT.
11.
Default. The failure of either party to perform any obligation hereunder,
the failure to materially perform any other agreements between Buyer and Seller,
or either party's bankruptcy, insolvency, fraud or inability to pay its debts as
they mature, shall constitute a default under this Agreement and shall, in
addition to any other remedies at law or in equity, afford the other party,
among other remedies, all of the remedies of a secured party under the
applicable Uniform Commercial Code. In the event of such default, the
non-defaulting party may, in addition to pursuing any of the remedies provided
by law, equity or as set forth in this Agreement, (i) in the case of Seller,
refuse to provide any applicable warranty or other service and/or deliver
Products under this or any service agreement relating to the Products, (ii) in
the case of Buyer, refuse to pay under this or any service agreement relating to
the Products, or (iii) in