WHOLLY-OWNED OR MAJORITY OWNED SUBSIDIARIES. EACH
PARTY FURTHER AGREES TO USE THE SAME DEGREE OF CARE TO AVOID PUBLICATION OR
DISSEMINATION OF THE CONFIDENTIAL INFORMATION DISCLOSED TO SUCH PARTY UNDER THIS
HSC and Buyer Confidential
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
4
AGREEMENT AS IT EMPLOYS WITH RESPECT TO ITS OWN CONFIDENTIAL INFORMATION, BUT AT
ALL TIMES SHALL USE AT LEAST REASONABLE CARE TO PROTECT AGAINST DISCLOSURE.
CONFIDENTIAL INFORMATION DOES NOT AND SHALL NOT INCLUDE INFORMATION THAT:
(A)
WAS ALREADY KNOWN TO THE RECEIVING PARTY AT
THE TIME SUCH INFORMATION IS DISCLOSED BY THE OTHER PARTY;
(B)
WAS OR BECAME PUBLICLY KNOWN THROUGH NO
WRONGFUL ACT OF THE RECEIVING PARTY;
(C)
WAS RIGHTFULLY RECEIVED FROM A THIRD PARTY
WITHOUT RESTRICTION;
(D)
WAS INDEPENDENTLY DEVELOPED BY THE RECEIVING
PARTY;
(E)
WAS APPROVED FOR RELEASE BY WRITTEN
AUTHORIZATION OF THE PARTY DISCLOSING SUCH INFORMATION UNDER THIS AGREEMENT; OR
(F)
WAS REQUIRED BY LEGAL OR FINANCIAL
REPORTING PURPOSES TO BE DISCLOSED; PROVIDED, HOWEVER, THAT THE PARTY BEING
REQUIRED TO DISCLOSE SHALL, IF CIRCUMSTANCES PERMIT, PROVIDE ADVANCED NOTICE TO
THE OTHER PARTY AND SHALL ALLOW THE OTHER PARTY A REASONABLE OPPORTUNITY TO
OPPOSE SUCH DISCLOSURE, IF APPROPRIATE.
12.
LIMITED WARRANTY. HSC WARRANTS ONLY THAT,
UPON DELIVERY, THE PRODUCTS WILL MEET THE HSC PRODUCT SPECIFICATIONS, AS SET
FORTH IN EXHIBIT A (II) THE PRODUCTS WILL BE DELIVERED FREE FROM ANY SECURITY
INTEREST, LIEN OR ENCUMBRANCE; AND (III) HSC WILL CONVEY GOOD TITLE TO THE
PRODUCTS.
13.
WARRANTY DISCLAIMER. THIS LIMITED WARRANTY
IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT
LIMITATION, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE, SAID WARRANTIES BEING EXPRESSLY DISCLAIMED.
14.
LIMITED REMEDY. HSC SHALL BE GIVEN
REASONABLE AND PROMPT OPPORTUNITY TO EXAMINE ANY CLAIM OF DEFECT BY BUYER. BUYER
AGREES THAT ITS SOLE AND EXCLUSIVE REMEDY AGAINST HSC SHALL BE LIMITED TO
EITHER, AT HSC'S SOLE DISCRETION, (I) THE REVISION, REPAIR OR REPLACEMENT OF
NON-CONFORMING OR DEFECTIVE PRODUCTS OR (II) PAYMENT NOT TO EXCEED THE PURCHASE
PRICE OF THE SPECIFIC PRODUCTS FOR WHICH DAMAGES ARE CLAIMED. THIS EXCLUSIVE
REMEDY SHALL NOT BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE SO LONG AS
HSC IS WILLING TO REVISE, REPAIR OR REPLACE THE DEFECTIVE PRODUCTS, OR MAKE THE
PAYMENT DESCRIBED IN THIS SECTION 14.
15.
DAMAGES LIMITATION. EXCEPT FOR SITUATIONS
INVOLVING (I) A DELAY IN COMPLETION OF THE MANUFACTURING FACILITY AS DESCRIBED
IN SECTION 9 OF THIS AGREEMENT, OR (II) FOR FAILURE TO DELIVER PRODUCTS TO WHICH
THE ADVANCE PAYMENTS RELATE, AS DESCRIBED IN SECTION 9 OF THIS AGREEMENT, HSC
SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE, OR INJURY RESULTING FROM DELAY IN
DELIVERY OF THE PRODUCTS, OR FOR ANY FAILURE TO PERFORM
HSC and Buyer Confidential
***
CONFIDENTIAL MATERIAL REDACTED AND SEPARATELY
FILED WITH THE SECURITIES AND EXCHANGE COMMISSION
5
WHICH IS DUE TO A FORCE MAJEURE EVENT (AS DEFINED IN SECTION 19).
EXCEPT FOR
HSC'S INDEMNIFICATION OBLIGATIONS UNDER SECTION 16 AND FOR EITHER PARTY'S