Envirco BSC - Manual (Page 36)

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charges, court costs, and legal or other expenses caused solely by the willful misconduct or negligent misconduct of a Seller
Indemnities or otherwise covered by Seller’s obligations under Section 11.
11. INFRINGEMENT: Seller will defend at its own expense any action against Buyer brought by a third party to the extent that the
action is based upon a claim that the Goods infringe any U.S. patents or copyrights or misappropriate any trade secrets of a
third party, and Seller will pay those costs and damages finally awarded against Buyer in any such action that are specifically
attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. The foregoing
obligations are conditioned on Buyer (a) notifying Seller promptly in writing of such action, (b) making no admission of liability
and giving Seller sole control of the defense thereof and any related settlement negotiations, and (c) cooperating and, at
Seller’s request and expense, assisting in such defense. If the Goods become, or in Seller’s opinion are likely to become, the
subject of an infringement claim, Seller may, at its option and expense, either (i) procure for Buyer the right to continue using
such Goods, (ii) replace or modify such Goods so that they become non-infringing, or (iii) accept return of such Goods and
refund Buyer the amounts actually paid by Buyer to Seller for such Goods. Notwithstanding the foregoing, Seller will have no
obligation under this Section 11 or otherwise with respect to any infringement claim based upon (A) any use of the Goods not in
accordance with these Terms and Conditions of Sale or Seller’s instructions, (B) any use of the Goods in combination with other
materials, goods, products or services not intended by Seller to be used with the Goods, (C) failure of Buyer to implement any
update provided by Seller that would have prevented the claim, (D) any modification of the Goods by any person other than
Seller or its authorized agents or subcontractors, or (E) any Goods made or performed to Buyer’s specifications or designs.
THIS SECTION 11 STATES SELLER’S ENTIRE LIABILITY AND BUY’ER’S EXCLUSIVE REMEDY FOR INFRINGEMENT
CLAIMS AND ACTIONS.
12. LIMITATION OF LIABILITY: IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST DATA, LOST PROFITS
AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, REGARDLESS OF THE FORM OF ACTION,
WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES. SELLER’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF OR RELATING TO ANY GOODS
SHALL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE
FOR THE GOODS GIVING RISE TO THE CLAIM.
13. DESIGN CHANGES: Seller reserves the right to alter, modify, or redesign its products without any obligation to replace
previous shipments to Buyer.
14. NO LICENSE: The sale of Goods shall not confer upon Buyer any license, express or implied, under any patents, trademarks,
trade names, or other proprietary rights owned or controlled by Seller, its subsidiaries, affiliates, or suppliers; it being
specifically understood and agreed that all such rights are reserved to Seller, its subsidiaries, affiliates, or suppliers. Without
limiting the foregoing, Buyer will not, without Seller’s prior written consent, use any trademark or trade name of Seller in
connection with any Goods, other than with respect to the resale of Goods pre-marked or packaged by or on behalf of Seller.
15. FORCE MAJEURE: Seller shall not be liable for any failures or delays caused by strikes, differences with workers, or any
causes beyond the reasonable control of Seller, including but not limited to, fires, floods, accidents, action of any governmental
authority, war, insurrection or riots, or shortages of labor, energy, raw materials, production facilities, or transportation. Where