Company shall not have any liability or responsibility for the
failure to effect any sale of Products or Distributor Services to a prospective
Customer or to determine the creditworthiness or to otherwise investigate any
Customer purchasing the Products or the Distributor Services from Distributor or
to collect any accounts arising from such purchases. All credit risk related to
the sales of Products or Distributor Services to such Customers shall be the
sole risk and responsibility of Distributor. NOTWITHSTANDING ANY OTHER PROVISION
OF THIS AGREEMENT TO THE CONTRARY (EXCEPT TO THE EXTENT OF THE COMPANY'S
INDEMNIFICATION OBLIGATIONS PURSUANT TO SECTION 9.1 HEREOF), IN NO EVENT SHALL
THE COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A FAILURE TO
PROVIDE COMPANY SERVICES AS ABOVE REQUIRED, WHETHER IN CONTRACT, TORT OR UNDER
ANY OTHER THEORY OF LIABILITY, EXCEED AMOUNTS ACTUALLY PAID BY AND DUE FROM
DISTRIBUTOR FOR THE COMPANY SERVICES DURING THE ONE (1) YEAR PERIOD IMMEDIATELY
PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
5.17
No Agency or Employment Relationship. Each party is and at all times
shall be an independent contractor in all matters relating to this Agreement and
shall be considered as
**** Certain confidential information contained in this document, marked with
four asterisks, has been omitted and filed separately with the Securities and
Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of
1934, as amended.
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independent contractors under any and all laws of any jurisdiction whatsoever.
Each party and their officers, directors, employees, representatives and agents
are not and shall not be deemed an employee, agent, partner, or joint venturer
of the other party for any purpose whatsoever. Distributor is not authorized by
the Company to incur obligations in the name of or on behalf of the Company, or
to make any promise, warranty or representation with respect to the Products or
the Company Services, and shall not hold itself out as being so authorized.
Except to the extent expressly set forth in this Section 5, the Company is not
authorized by Distributor to incur obligations in the name of or on behalf of
Distributor, or to make any promise, warranty or representation with respect to
the Products or the Distributor Services (other than Warranty or Extended
Service Contracts), and shall not hold itself out as being so authorized.
Subject to the terms as stated in this Section 5.17 and the provisions of
Section 7, Distributor may state Distributor is an authorized distributor of the
Company during the Term hereof.
5.18
Employees and Agents of the Parties. All of the Distributor Services
shall be performed by employees of Distributor; provided, however, Distributor
may retain independent contractors to perform the Distributor Services with the
Company's prior consent, such consent not to be unreasonably withheld (such
employees and approved independent contractors collectively, "Distributor
Personnel"). Any contracts made by Distributor with Distributor Personnel shall
provide that they are employees or agents of Distributor, and the Company shall
have no obligation with respect to their employment or