|
<br />MASTER EQUIPMENT PURCHASE
<br />AND SERVICES AGREEMENT
<br />
<br />10. DISCLAIMER OF WARRANTY. For all Equipment provided or sold by C3 to Customer, Customer shall be
<br />obligated to enter into an end-user license and warranty agreement with the Equipment manufacturer in the
<br />form as the manufacturer shall require. Customer understands and agrees that all warranties for Equipment
<br />shall be the responsibility of the Equipment manufacturer and shall be subject to the separate agreement
<br />between the Customer and the manufacturer of the Equipment. C3 will perform any Services under this
<br />Agreement as an independent contractor/consultant in a good and workmanlike manner, which term is defmed
<br />to mean utilizing reasonable care and skill in accordance and consistent with customary industry standards.
<br />This standard of care is the sole and exclusive standard of care that will be applied to measure C3' s
<br />performance of the Services. There are no other representations or warranties made by C3. In particular, but
<br />not by way of limitation, C3 makes no representation or warranty that C3' s Services will provide a perfect, or
<br />even a satisfactory, result. C3 makes no warranties, either express or implied, which in any way relate to the
<br />services or to the design, manufacture, delivery, advertising, sale and/or use of Equipment and does hereby
<br />expressly DISCLAIM AND NEGATE ANY AND ALL SUCH REPRESENTATIONS, CLAIMS OR
<br />WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED
<br />WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR THAT
<br />ANY SERVICES, EQUIPMENT, PRODUCT OR INFORMATION PROVIDED BY C3 BY OR IN
<br />CONNECTION WITH THIS AGREEMENT IS FREE FROM ANY INFRINGEMENT OF THE RIGHTS OF
<br />THIRD PARTIES.
<br />
<br />11. LIMITATION OF LIABILITY. C3 EXPRESSLY DISCLAIMS AND NEGATES ANY AND ALL
<br />RESPONSIBILITY TO CUSTOMER FOR ANY AND ALL DAMAGES (WHETHER IN CONTRACT,
<br />NEGLIGENCE, TORT OR ON ANY OTHER BASIS), INCLUDING, BUT NOT LIMITED TO: (I)
<br />INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER SIMILAR DAMAGES,
<br />WHETHER OR NOT FORESEEABLE AND WHETHER OR NOT C3 HAS BEEN ADVISED OF THE
<br />POSSIBILITY OF SUCH DAMAGES; (II) DAMAGES RESULTING FROM LOSS OF USE OF
<br />EQUIPMENT, INCLUDING LOSS OF REVENUES OR PROFITS; AND (III) ANY CLAIM, DEMAND,
<br />CAUSE OF ACTION OR SUIT BASED IN WHOLE OR IN PART ON CLAIMS ALLEGING PERSONAL
<br />INJURY, STRICT LIABILITY OR PRODUCT LIABILITY. IN NO EVENT SHALL C3'S AGGREGATE
<br />TOTAL LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID BY CUSTOMER TO C3
<br />PURSUANT TO THIS AGREEMENT. C3 SHALL NOT BE RESPONSIBLE FOR THE SELECTION OF
<br />UNSUITABLE EQUIPMENT OR EQUIPMENT BY CUSTOMER OR ANY OTHER THIRD PARTY.
<br />SUITABILITY OF EQUIPMENT SHALL BE CUSTOMER'S SOLE RESPONSIBILITY. IN THE EVENT
<br />THA T CUSTOMER BELIEVES THAT IT HAS A CLAIM AGAINST C3, CUSTOMER SHALL
<br />PROMPTLY SO NOTIFY C3. CUSTOMER SHALL THEREAFTER ENDEAVOR IN GOOD FAITH TO
<br />RESOLVE THE CLAIM WITH C3.
<br />
<br />12. INDEMNIFICATION. With respect to claims brought by third parties against C3 relating to the Services or
<br />to the Equipment or this Agreement, Customer agrees to indemnify, protect, defend, and hold harmless C3, its
<br />directors, officers, employees, and agents, from and against any and all demands, claims, suits, causes of
<br />action, liability, costs, expenses, settlements, and judgments (including, without limitation, court costs and
<br />attorneys' fees), whether arising in equity, at common law, or by statute, including any Deceptive Trade
<br />Practices or Consumer Protection Act or similar statute, or under the law of contracts, torts (including, without
<br />limitation, negligence and strict liability without regard to fault) or property, of every kind or character,
<br />(collectively, "Claims") (including, without limitation, claims for personal injury (including emotional
<br />distress), real or personal property damage, and economic loss), arising in favor of or brought by any of
<br />Customer's employees, agents, subcontractors, or representatives, or by any governmental agency or by any
<br />other third party (the "Claimant"), based upon, in connection with, relating to or arising out of the Agreement,
<br />Customer's actions or inactions under this Agreement, the Services or the Equipment, EVEN IF DUE IN
<br />PART TO C3'S CONCURRENT NEGLIGENCE OR OTHER FAULT, BREACH OF CONTRACT OR
<br />WARRANTY, VIOLATION OF ANY DECEPTIVE TRADE PRACTICES OR CONSUMER ACT OR
<br />OTHER SIMILAR STATUTE, OR STRICT LIABILITY WITHOUT REGARD TO FAULT; PROVIDED,
<br />HOWEVER, THAT CUSTOMER'S CONTRACTUAL OBLIGATION OF INDEMNIFICATION IS
<br />LIMITED TO THE PERCENTAGE OF THE CLAIMANT'S DAMAGES OR INJURIES OR SETTLEMENT
<br />AMOUNT ATTRIBUTABLE TO CUSTOMER'S NEGLIGENCE OR OTHER FAULT. In the event that
<br />both C3 and Customer are adjudicated negligent or otherwise at fault or strictly liable without regard to fault
<br />with respect to damage or injuries sustained by the third party Claimant, the contractual obligations of
<br />
<br />Page 3 of 4
<br />
|