4.4 Feedback and Performance Data. In the event Purchaser performs any evaluation or testing of the Products, Purchaser will share such test data with CHEM. Purchaser hereby grants to CHEM a perpetual, irrevocable, non-terminable, non-cancelable, nonexclusive, royalty free license, with full rights to use, market, modify, distribute, sell, transfer, assign and sublicense, any and all intellectual property rights contained in any test data, comments, feedback or suggestions for modifications and adaptations to the Products.
5. Repair and Maintenance of Products. Purchaser will not perform repairs, maintenance or other servicing of the Products unless (a) an operations manual for the Products expressly authorizes Purchaser to perform such repairs, maintenance or other servicing of the Products or (b) CHEM has trained Purchaser to perform such repairs, maintenance or other servicing of the Products. All other repairs, maintenance or other servicing of the Products will only be performed by CHEM or an authorized representative of CHEM. Without limiting the generality of the foregoing sentences, Purchaser will not use any replacement part or accessory for the Products unless such replacement part or accessory is provided by CHEM or expressly approved in advance by CHEM. In addition to any other remedy available to CHEM by contract, at law or in equity (including, without limitation, injunctive relief, specific performance and recovery of damages), any repairs, maintenance and servicing performed outside the scope of this Section 5 will void the warranties set forth in Section 6.1.
6. Warranty; Limitations.
6.1 Warranty as to Specifications. CHEM warrants that the Products will be free from defects in workmanship and materials and conform to the Specifications; provided, however, that if the Sales Quote specifies that any of the Products are development models, such Products will meet the general intention of the mechanical and operational Specifications but need not be in strict compliance with the Specifications. CHEM’s warranty is limited to a period of one (1) year from the date of shipment by CHEM, unless a different period is specifically described in the Sales Quote.
6.2 Warranty Disclaimers. THE WARRANTIES SPECIFIED IN SECTION 6.1 WILL BE IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY WARRANTY OTHERWISE PROVIDED BY STATUTE.
6.3 Exclusive Remedy for Warranty Claim. If Purchaser believes warranty service is required, Purchaser will notify CHEM in writing of the nature of the problem and that warranty service is requested. Unless otherwise agreed, Purchaser will ship, at Purchaser’s expense, the applicable Products to CHEM for inspection. If CHEM’s inspection reveals that Purchaser has made a valid warranty claim within the applicable warranty period and Purchaser has paid all amounts then due and payable to CHEM under the Terms of Sale, CHEM will, AS THE EXCLUSIVE REMEDY AVAILABLE TO PURCHASER UNDER THE TERMS OF SALE, do one of the following, in CHEM’s sole discretion: (a) repair or replace the applicable Products; or (b) cancel in whole or in part the applicable Order and refund to Purchaser any amounts already paid to CHEM in connection with the cancelled portion of the Order. If CHEM elects to repair or replace any Products, CHEM will repair or replace such Products within sixty (60) working days after CHEM’s inspection and such repaired or replacement Products will be shipped to Purchaser at CHEM’s expense. If CHEM’s inspection reveals that Purchaser has not made a valid warranty claim within the applicable warranty period (e.g., Purchaser is not properly operating the Products), CHEM will ship, at Purchaser’s expense, the applicable Products back to Purchaser without repair or replacement and provide Purchaser with an explanation as to why a warranty claim is not available.
6.4 Limitation of CHEM’s Liability. PURCHASER AND CHEM AGREE THAT CHEM WILL NOT BE LIABLE TO PURCHASER, ITS CUSTOMERS OR ANY OTHER THIRD PARTY FOR ANY INJURY OR DAMAGE TO PERSONS OR PROPERTY UNLESS CAUSED BY CHEM’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR FOR ANY LOSS OF OR INJURY TO BUSINESS, EARNINGS, PROFITS OR GOODWILL SUFFERED BY ANY PERSON, INCLUDING PURCHASER AND ITS CUSTOMERS, CAUSED DIRECTLY OR INDIRECTLY BY THE PRODUCTS SOLD PURSUANT TO THE TERMS OF SALE; AND IN NO EVENT WILL CHEM BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES SUFFERED BY PURCHASER, ITS CUSTOMERS OR ANY OTHER THIRD PARTY, EVEN IF CHEM WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. WITHOUT LIMITING THE FOREGOING SENTENCE, IN NO EVENT WILL THE LIABILITY OF CHEM ARISING IN CONNECTION WITH ANY PRODUCTS EXCEED IN THE AGGREGATE THE ACTUAL AMOUNT PAID BY PURCHASER TO CHEM FOR THE PRODUCTS.
7. Indemnification; Purchase Money Security Interest.
7.1 Indemnification. Purchaser agrees to indemnify and to hold CHEM, its agents, officers, directors, and employees harmless from all damages, losses and expenses including, but not limited to attorney fees, and to defend all claims, proceedings, lawsuits and judgments arising out of the Purchaser’s performance or failure to perform under the Terms of Sale.
7.2 Purchase Money Security Interest. If all or any part of the Price is, pursuant to the Order, not payable on or before the delivery of any Products, Purchaser, as security for the proper and timely payment of the Price and any other amounts payable by Purchaser under the Terms of Sale, hereby grants, conveys, and assigns to CHEM, and its successors and assigns, a purchase-money security interest in the Products and all proceeds (as defined in Revised Article 9 of the Uniform Commercial Code as adopted in Taiwan (the “UCC Article 9”)) of the Products (collectively, the “Collateral”). The parties acknowledge and agree that under UCC Article 9 the Products are “purchase-money collateral” and the Price is a “purchase-money obligation.” By accepting the Offer in writing, Purchaser authenticates a “security agreement” under UCC Article 9 and thereby authorizes the filing of an initial financing statement, and any amendments thereto, covering the Collateral. Purchaser represents and warrants to the Seller that the Sales Quote accurately and completely sets forth Purchaser’s name, address, entity type (if applicable) and state of organization (if applicable). While any portion of the Price remains unpaid, Purchaser will not change its name or state of organization (by merger or otherwise) without sending CHEM written notice of such change at least thirty (30) days prior to such change becoming effective. Purchaser will maintain adequate insurance against all risks, physical damage, casualty loss, fire and/or theft of the Products for so long as the security interest is in effect. If Purchaser is in breach of the Terms of Sale, then CHEM may, in addition to any other rights or remedies available to CHEM (including, without limitation, remedies available under the UCC Article 9 or any other applicable law), at any time enter Purchaser’s premises and repossess any Products as to which CHEM retains title or with respect to which CHEM has a security interest and may thereafter sell or dispose of such Products and apply the proceeds first to its expenses incurred in repossessing and selling said Products and then to the outstanding balance on Purchaser’s unpaid and past due accounts or deficiencies.
8. Miscellaneous.
8.1 Force Majeure. If the performance of the Terms of Sale or any obligation hereunder, except the making of payments, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident, strikes or labor dispute, inability to procure parts, supplies or power, any act of war, terrorism or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency, or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected will take all reasonable steps to avoid or remove such causes of nonperformance and will resume performance hereunder with dispatch whenever such causes are removed.
8.2 Choice of Law; Jurisdiction; Dispute Resolution. The Terms of Sale will be governed by the laws of the Taiwan, without reference to its conflict of laws rules. Purchaser and CHEM agree that their rights and obligations under the Terms of Sale are not governed by the United Nations Convention on Contracts for the International Sale of Goods. Any and all claims or causes of action which cannot be mutually settled and agreed to by the parties, will and must be brought or asserted by Purchaser only in a district court in Taipei, Taiwan, and Purchaser hereby expressly agrees, consents and stipulates to the exercise of personal jurisdiction over it, and subject matter jurisdiction over any such controversy, with respect to such claims or actions being only with either such court; provided, however, that CHEM may in its sole discretion elect to bring an action to enforce or protect any right or obligation created hereunder against Purchaser in any competent court CHEM might choose. If for any reason this stipulation covering both jurisdiction and venue will be determined by a competent court of law to be invalid or unenforceable, then the parties hereby agree, consent and stipulate that all such claims or causes of action will be submitted to and resolved by arbitration under the rules of the Taiwan Arbitration Association, with such arbitration to take place in Taipei, Taiwan.
4.4 回饋資訊和效能資料。在買方執行任何評估或測試的產品,買方將分享的事件這種測試資料與化學買方特此授予 CHEM 永久、 不可撤銷、 非可終止、 不可撤銷的非獨佔、 免版稅的許可證,擁有充分的權利來使用、 市場、 修改、 分發、 出售、 轉讓、 分配和發放從屬許可,任何測試資料、 評論、 回饋或建議的修改和適應產品中所載的任何和所有智慧財產權權利。5.維修和維護的產品。買方不會執行修理,維修或其他提供服務的產品,除非產品 (a) 操作手冊明確授權買方履行這種修理、 維護或其他服務的產品或 (b) 化學培養了買方履行這種修理、 維護或其他服務產品。其他所有的修理、 維護或其他維修產品只將執行由化學或化學授權的代表在不限制前述規定的概括性原則下,買方將不使用任何替換部件或配件產品除非這種更換部件或附件是由化學或明確事先核准的化學除了任何其他的補救辦法 CHEM 的合同,在法律或衡平法 (包括但不限於,禁令救濟,具體表現和恢復的損害賠償),任何修理、 維護和服務這五條範圍以外進行將保修 6.1 節所述。6.在保修期內;限制。6.1 保證規格。CHEM 權證產品將免于在工藝和材料的缺陷,並符合規格;提供,然而,那如果銷售報價指定的任何產品的發展模式,這類產品將滿足機械和操作規範的意向,但不是需要嚴格遵守規範。化學的保修是有限到一個 1 年期從裝運日期的化學,除非一個不同的時期是專門介紹銷售報價。6.2 免責聲明。在 6.1 節中指定的各項保證將代替所有其他陳述和擔保,無論是明示、 暗示或法定的包括,沒有限制,任何陳述或保證適售性、 適合於任何特定用途的非侵權性、 或任何擔保,否則為提供的規約。6.3 Exclusive Remedy for Warranty Claim. If Purchaser believes warranty service is required, Purchaser will notify CHEM in writing of the nature of the problem and that warranty service is requested. Unless otherwise agreed, Purchaser will ship, at Purchaser’s expense, the applicable Products to CHEM for inspection. If CHEM’s inspection reveals that Purchaser has made a valid warranty claim within the applicable warranty period and Purchaser has paid all amounts then due and payable to CHEM under the Terms of Sale, CHEM will, AS THE EXCLUSIVE REMEDY AVAILABLE TO PURCHASER UNDER THE TERMS OF SALE, do one of the following, in CHEM’s sole discretion: (a) repair or replace the applicable Products; or (b) cancel in whole or in part the applicable Order and refund to Purchaser any amounts already paid to CHEM in connection with the cancelled portion of the Order. If CHEM elects to repair or replace any Products, CHEM will repair or replace such Products within sixty (60) working days after CHEM’s inspection and such repaired or replacement Products will be shipped to Purchaser at CHEM’s expense. If CHEM’s inspection reveals that Purchaser has not made a valid warranty claim within the applicable warranty period (e.g., Purchaser is not properly operating the Products), CHEM will ship, at Purchaser’s expense, the applicable Products back to Purchaser without repair or replacement and provide Purchaser with an explanation as to why a warranty claim is not available.6.4 Limitation of CHEM’s Liability. PURCHASER AND CHEM AGREE THAT CHEM WILL NOT BE LIABLE TO PURCHASER, ITS CUSTOMERS OR ANY OTHER THIRD PARTY FOR ANY INJURY OR DAMAGE TO PERSONS OR PROPERTY UNLESS CAUSED BY CHEM’S WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, OR FOR ANY LOSS OF OR INJURY TO BUSINESS, EARNINGS, PROFITS OR GOODWILL SUFFERED BY ANY PERSON, INCLUDING PURCHASER AND ITS CUSTOMERS, CAUSED DIRECTLY OR INDIRECTLY BY THE PRODUCTS SOLD PURSUANT TO THE TERMS OF SALE; AND IN NO EVENT WILL CHEM BE LIABLE FOR ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES SUFFERED BY PURCHASER, ITS CUSTOMERS OR ANY OTHER THIRD PARTY, EVEN IF CHEM WILL HAVE BEEN ADVISED OF THE POSSIBILITY OF THE SAME. WITHOUT LIMITING THE FOREGOING SENTENCE, IN NO EVENT WILL THE LIABILITY OF CHEM ARISING IN CONNECTION WITH ANY PRODUCTS EXCEED IN THE AGGREGATE THE ACTUAL AMOUNT PAID BY PURCHASER TO CHEM FOR THE PRODUCTS.7. Indemnification; Purchase Money Security Interest. 7.1 Indemnification. Purchaser agrees to indemnify and to hold CHEM, its agents, officers, directors, and employees harmless from all damages, losses and expenses including, but not limited to attorney fees, and to defend all claims, proceedings, lawsuits and judgments arising out of the Purchaser’s performance or failure to perform under the Terms of Sale.7.2 Purchase Money Security Interest. If all or any part of the Price is, pursuant to the Order, not payable on or before the delivery of any Products, Purchaser, as security for the proper and timely payment of the Price and any other amounts payable by Purchaser under the Terms of Sale, hereby grants, conveys, and assigns to CHEM, and its successors and assigns, a purchase-money security interest in the Products and all proceeds (as defined in Revised Article 9 of the Uniform Commercial Code as adopted in Taiwan (the “UCC Article 9”)) of the Products (collectively, the “Collateral”). The parties acknowledge and agree that under UCC Article 9 the Products are “purchase-money collateral” and the Price is a “purchase-money obligation.” By accepting the Offer in writing, Purchaser authenticates a “security agreement” under UCC Article 9 and thereby authorizes the filing of an initial financing statement, and any amendments thereto, covering the Collateral. Purchaser represents and warrants to the Seller that the Sales Quote accurately and completely sets forth Purchaser’s name, address, entity type (if applicable) and state of organization (if applicable). While any portion of the Price remains unpaid, Purchaser will not change its name or state of organization (by merger or otherwise) without sending CHEM written notice of such change at least thirty (30) days prior to such change becoming effective. Purchaser will maintain adequate insurance against all risks, physical damage, casualty loss, fire and/or theft of the Products for so long as the security interest is in effect. If Purchaser is in breach of the Terms of Sale, then CHEM may, in addition to any other rights or remedies available to CHEM (including, without limitation, remedies available under the UCC Article 9 or any other applicable law), at any time enter Purchaser’s premises and repossess any Products as to which CHEM retains title or with respect to which CHEM has a security interest and may thereafter sell or dispose of such Products and apply the proceeds first to its expenses incurred in repossessing and selling said Products and then to the outstanding balance on Purchaser’s unpaid and past due accounts or deficiencies.
8. Miscellaneous.
8.1 Force Majeure. If the performance of the Terms of Sale or any obligation hereunder, except the making of payments, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident, strikes or labor dispute, inability to procure parts, supplies or power, any act of war, terrorism or other violence, any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency, or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, will be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected will take all reasonable steps to avoid or remove such causes of nonperformance and will resume performance hereunder with dispatch whenever such causes are removed.
8.2 Choice of Law; Jurisdiction; Dispute Resolution. The Terms of Sale will be governed by the laws of the Taiwan, without reference to its conflict of laws rules. Purchaser and CHEM agree that their rights and obligations under the Terms of Sale are not governed by the United Nations Convention on Contracts for the International Sale of Goods. Any and all claims or causes of action which cannot be mutually settled and agreed to by the parties, will and must be brought or asserted by Purchaser only in a district court in Taipei, Taiwan, and Purchaser hereby expressly agrees, consents and stipulates to the exercise of personal jurisdiction over it, and subject matter jurisdiction over any such controversy, with respect to such claims or actions being only with either such court; provided, however, that CHEM may in its sole discretion elect to bring an action to enforce or protect any right or obligation created hereunder against Purchaser in any competent court CHEM might choose. If for any reason this stipulation covering both jurisdiction and venue will be determined by a competent court of law to be invalid or unenforceable, then the parties hereby agree, consent and stipulate that all such claims or causes of action will be submitted to and resolved by arbitration under the rules of the Taiwan Arbitration Association, with such arbitration to take place in Taipei, Taiwan.
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