WITH THIS
AGREEMENT AS SET FORTH IN SECTION 2.1 ABOVE.
6.
SHIPMENTS.
ALL SHIPMENTS WILL BE MADE F.O.B. RECAPTURE'S
DISTRIBUTION CENTER IN BLANDING, UTAH.
DELIVERY WILL BE DEEMED COMPLETE AND
RISK OF LOSS OR DAMAGE TO THE GALLIUM WILL PASS TO THE COMPANY UPON DELIVERY TO
THE CARRIER.
7.
ACCEPTANCE.
THE GALLIUM SHALL BE DEEMED ACCEPTED BY THE COMPANY
UNLESS NOTICE OF DEFECT IS RECEIVED WITHIN THIRTY (30) DAYS OF SHIPPING THEREOF
AND THE GALLIUM IS RETURNED TO RECAPTURE WITHIN SIXTY (60) DAYS OF SHIPPING.
IN
THE EVENT OF DISCOVERY OF GALLIUM THAT DOES NOT QUALIFY AS 7N, THE COMPANY'S
SOLE REMEDY SHALL BE TO EXCHANGE SUCH GALLIUM FOR A NEW SHIPMENT OF GALLIUM.
8.
WARRANTIES.
8.1
LIMITED WARRANTY.
RECAPTURE WARRANTS TO COMPANY THAT THE GALLIUM
WILL BE 7N GALLIUM.
RECAPTURE'S EXCLUSIVE OBLIGATION WITH RESPECT TO
NON-CONFORMING GALLIUM SHALL BE (A) TO REPLACE THAT GALLIUM WITH GALLIUM THAT
CONFORMS TO THE SPECIFICATIONS, OR (B) TO REFUND TO COMPANY THE PURCHASE PRICE
PAID FOR THE GALLIUM.
THE COMPANY SHALL NOTIFY RECAPTURE OF ANY NONCONFORMANCE
DURING THE WARRANTY PERIOD, OBTAIN A RETURN AUTHORIZATION FOR THE NONCONFORMING
GALLIUM FROM RECAPTURE, AND RETURN THE NONCONFORMING GALLIUM TO RECAPTURE'S
DESIGNATED FACILITY, FREIGHT PREPAID, WITH A STATEMENT DESCRIBING THE
NONCONFORMITY.
THE FOREGOING IS COMPANY'S SOLE AND EXCLUSIVE REMEDY FOR BREACH
OF WARRANTY BY RECAPTURE.
8.2
RECAPTURE WARRANTS THAT ALL GALLIUM SUPPLIED PURSUANT TO THIS
AGREEMENT WILL HAVE BEEN PRODUCED AND SUPPLIED IN COMPLIANCE WITH ALL APPLICABLE
FEDERAL, STATE, FOREIGN, AND LOCAL LAWS, ORDERS, RULES AND REGULATIONS,
INCLUDING ANY LAWS RELATING TO THE PRODUCTION, SALE, STORAGE OR SHIPMENT OF
HAZARDOUS MATERIALS, TOXIC SUBSTANCES, OR OTHER ENVIRONMENTAL REGULATIONS.
RECAPTURE SHALL INDEMNIFY THE COMPANY AGAINST ANY LIABILITY CAUSED BY ANY
NON-COMPLIANCE WITH THIS PROVISION.
8.3
DISCLAIMER OF WARRANTIES.
THE FOREGOING WARRANTIES ARE THE SOLE
WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY RECAPTURE IN CONNECTION WITH THE
GALLIUM AND RECAPTURE DISCLAIMS ALL OTHER WARRANTIES, INCLUDING WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD
PARTY RIGHTS.
9.
RECAPTURE'S INDEMNIFICATION.
9.1
SCOPE OF WARRANTY.
RECAPTURE AGREES TO INDEMNIFY AND HOLD
HARMLESS THE COMPANY, AND ITS SUBSIDIARIES, AND ALL OF THEIR OFFICERS, DIRECTORS
AND EMPLOYEES AGAINST ANY CLAIMS, ACTIONS OR DEMANDS ALLEGING THAT THE
MANUFACTURE OR DISTRIBUTION OF THE GALLIUM INFRINGES ANY COPYRIGHTS, PATENTS,
TRADE SECRETS OR MASK WORKS RIGHTS OF ANY THIRD PARTIES ARISING UNDER UNITED
STATES LAW.
TO TERMINATE SUCH OBLIGATION, RECAPTURE MAY, AT ITS OPTION,
(A) REPLACE OR MODIFY THE GALLIUM WITH PRODUCT THAT IS FUNCTIONALLY EQUIVALENT
AND NON-INFRINGING, (B) OBTAIN A LICENSE FOR THE COMPANY TO CONTINUE THE USE AND
DISTRIBUTION OF THE GALLIUM OR (C) ACCEPT THE RETURN OF THE GALLIUM HELD BY
COMPANY AND RETURN THE PURCHASE PRICE PAID BY COMPANY FOR THE GALLIUM.
3
9.2
CONTINGENCIES.
THIS OBLIGATION IS CONTINGENT UPON (A) THE COMPANY
GIVING PROMPT WRITTEN NOTICE TO RECAPTURE OF ANY SUCH CLAIM, ACTION OR DEMAND,
(B) THE COMPANY ALLOWING RECAPTURE TO CONTROL THE DEFENSE AND RELATED SETTLEMENT
NEGOTIATIONS AND (C) THE COMPANY FULLY ASSISTING, AT RECAPTURE'S EXPENSE, IN THE
DEFENSE.