The following standard terms and conditions apply to all sales of hardware, software and/or accessories (collectively “Products”) by Panache Digilife Limited (PDL) to its customer (“Customer”), except as provided below or as may be set forth in a separate written agreement signed by PDL and Customer. The issuance of a purchase order to PDL constitutes the customer’s acceptance of the following terms and conditions. PDL and Customer, intending to be legally bound, agree as follows.
- SECTION 1: ENTIRE AGREEMENT
These terms and conditions (referred to herein as the “Agreement”) constitute the final, complete and exclusive agreement between the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including without limitation any prior. Standard Terms and Conditions. Published by PDL). Any term or condition in any order, confirmation or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth in this Agreement is hereby expressly rejected, and PDL’s acceptance of any offer or order of Customer is expressly made in reliance on Customer’s assent to all terms and conditions hereof.
- SECTION 2: PURCHASE OF PRODUCTS
- PRICES: The prices applicable to the Products and/or Specific Services shall be quoted by PDL to Customer. Such prices quoted by PDL do not include any excise, sales, octroi or other taxes, and therefore are subject to increase in the amount of any applicable taxes that PDL may be required to collect or pay upon the sale or delivery of the Products. In addition, such prices quoted by PDL for Products do not automatically include any Services. Quotes for Products and/or Service do not include charges for Shipping, Handling, Customs Fees and/or Insurance, all of which will be invoiced to and paid by Customer as per the payment terms for said Customer.
- PURCHASE ORDER PROCESS: Customer shall place orders for Products to be purchased hereunder by submitting one or more written purchase orders to PDL during the term of this agreement. Each such purchase order shall state the full PDL item number, the description of said item(s), quantity of item(s), billing address and shipping address, shipping method, insurance (if required), and requested delivery date. Terms and Conditions submitted by the Customer shall not be binding on PDL without express written approval by PDL, or otherwise contracted between both PDL and Customer. In addition, the delivery of Products pursuant to any purchase order submitted by Customer shall not be binding on PDL unless agreed upon in writing by PDL.
- STANDARD PRODUCTS: Unless specifically set forth by PDL in writing:
- All products shall be PDL’s standard, off-the-shelf items, and no special customized version of any Product shall be provided by PDL; and
- PDL shall have no obligation to ensure that the Products operate in conjunction with Customer’s equipment, software or other products or systems, and Customer shall be responsible for all costs it incurs in connection with any modifications it elects to make to its own equipment, software or other products or systems.
- RELATED SERVICES: The parties may agree that PDL will provide to Customer from time to time, certain services relating to Customer’s purchase of the Products, including but not limited to deployment of services and maintenance and support services. The parties agree that, in the absence of a separate written agreement covering such services, such services shall be covered by the provisions of this Agreement, including but not limited to Sections 6, 7 and 10 below, and that Customer shall be separately invoiced for all such services in accordance with Section 4 below at PDL’s then current rates for such services.
- SECTION 3: CERTAIN OBLIGATIONS OF CUSTOMER
The provisions of this Section 3 shall apply if Customer intends to resell the Products. As used in this Agreement, the term “resell”, and similar terms, shall include any resale, lease or other transfer or delivery of the Products.
- RESALE OF PRODUCTS ONLY TO PERMITTED PURCHASERS: Customer shall resell the Products only to the following persons and entities (referred to herein collectively as “Permitted Purchasers”):
- Any end user of the Products (which shall mean any person or entity that uses the Products in the conduct of its business of selling goods or providing services to the general public and does not resell the Products to any third party), provided that such end user is in the market for which PDL has provided Product pricing to Customer; and
- Any other person or entity with respect to which PDL has given its prior express written approval. If Customer resells Products to any person or entity other than a Permitted Purchaser, then (in addition to any other remedies available to PDL), PDL may invoice Customer, and Customer shall pay to PDL within thirty (30) days after the date of any such invoice, an amount equal to the difference between
- The total sum actually charged to the Customer for the Products resold to any person or entity other than a Permitted Purchaser and
- The total sum which would have been charged to Customer for such Products if such Products had been sold to Customer at PDL’s standard end-user prices (list prices) then in effect for such Products.
- PROVISION FOR RESALE:
PDL, at its option, may provide Customer with Associated Product Materials (“APM”), to be included with the Products when such Products are resold by Customer. Customer agrees to distribute the Associated Product Materials provided with each product of PDL that includes software created by or licensed by PDL and further agrees that it shall contractually bind resellers, to whom any product of PDL containing such software is sold, to distribute such APM. APM shall include, without limitation, any Certificate of Authenticity, the Desktop Software, the End User License Agreement, and such other materials as PDL may designate from time to time. Desktop Software shall mean software provided by PDL or any PDL supplier, whether on a CD-ROM disk or otherwise, that (i) complements and is part of the Device, and (ii) if installed on an electronic device (i.e. personal computer, cell phone, pda, etc.), enables data exchange between the Device and the personal computer. Customer agrees that all such documentation shall be for the benefit of PDL and shall be enforceable directly by PDL (in PDL’s name or on behalf of Customer).
- COMPLIANCE WITH LAWS AND OTHER STANDARDS:
Customer is responsible for compliance with all import and export control laws and regulations. Customer will obtain import, export, re-export approvals, permits and licenses required for goods, transfers, services and technical data delivered and will retain documentation to support compliance with those laws and regulations. PDL will not be liable to Customer for any failure to provide goods, services, transfers or technical data as a result of government actions that impact PDL’s ability to perform, including:
- The failure to provide or the cancellation of export or re-export licenses;
- Any subsequent interpretation of applicable import, transfer or export law or regulation after the date of any order or commitment that has a material adverse effect on PDL’s performance; or
- Delays due to Customer’s failure to follow applicable import, export, transfer, or re-export laws and regulations. Customer shall not sell, transfer, export or re-export any PDL goods, services or technical data for use in activities that involve the design, development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use PDL’s goods, services or technical data in any facility which engages in activities relating to such weapons or missiles.In addition, PDL’s goods, services or technical data may not be used in connection with any activity involving nuclear fission or fusion, or any use or handling of any nuclear material until Customer, at no expense to PDL, has insurance coverage, indemnities, and waivers of liability, recourse and subrogation, acceptable to PDL and adequate in PDL’s opinion to protect PDL against any type of liability.
- INCORPORATION OF MICROSOFT PRODUCT:
Customer understands that some of the Products incorporate Microsoft products pursuant to a separate license agreement between PDL and Microsoft.Customer shall not market and shall not quote a separate price for the Microsoft and/or PDL’s binaries contained in the Products.
- SECTION 4: TERMS OF PAYMENT
PDL shall be entitled to invoice Customer at the time of each shipment of Products to Customer. Payment terms for all invoiced amounts shall bedetermined prior to any shipments being made to saidCustomer, whether it may be pre-pay (by check, certified bank check, credit card), or under net terms as approved by PDL. Customer shall make allpayments due to PDL without regard to whether Customer has made or may make any inspection of the Products delivered to Customer. Any invoiced amount which is not paid when due shall bear a late fee at the rate ofeighteen percent (18%) per annum or the maximum rate permitted by applicable law, whichever is less. If Customer fails to pay any invoicedamount when due, or if for any other reason PDL is not satisfied with the credit-worthiness of Customer, PDL shall be entitled to withhold shipments (and the provision of any services) until Customer reestablishes its credit to PDL’s satisfaction. Customer will not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from PDL.
- DELIVERY OF PRODUCTS:
- SHIPPING SCHEDULE: PDL shall use its reasonable efforts to ship Products to Customer in accordance with the shipment schedule provided to PDL by Customer. PDL reserves the right to ship Products as early as possible prior to the requested delivery date, unless agreed to in writing by PDL, in order to accommodate PDL overall delivery schedules. Notwithstanding the foregoing and without limiting the generality of Section 10 below, PDL shall not be liable for damages of any kind as a result of a delay in delivery for any reason.
- CHANGES PERMITTED: Customer may change a previously requested shipment date for any standard Products (i.e., Products other than custom or made-to-order Products), provided that Customer gives PDL written notice of such change within 24 hours of receipt of order confirmation.
- CHANGES SUBJECT TO CONSENT: Except as provided in Section 5(B) above, Customer shall not be entitled to change a previously requested shipment date, or cancel an order, for any Products except with PDL’s prior express written consent, which consent shall be in PDL’s sole discretion. If PDL gives its consent pursuant to the preceding sentence but the Products involved have already been built and/or shipped to Customer, then:
- Customer shall return the Products to PDL and pay all related shipping, handling, customs and insurance charges (for both shipping the Products to Customer and returning the Products to PDL); and
- Customer may be charged by PDL a restocking fee to cover, rework and handling fees
- SHIPMENT PROCESS: All outbound shipments from PDL’s facility are shipped via or PDL approved courier unless otherwise specified in writing on customers’ purchase order. PDL shall invoice Customer for any and all shipping, handling, customs, insurance and similar charges incurred by PDL in shipping Products to Customer, and Customer shall pay such charges. PDL also reserves the right to ship Products to Customer freight collect.
- INSPECTION AND ACCEPTANCE: Unless other acceptance criteria has been agreed to by the Parties under this Agreement the Customer will inspect Equipment within a reasonable period after delivery not to exceed 5 business days. Equipment will be presumed accepted unless PDL receives written notice of rejection explaining the basis for rejection within the same timeframe. PDL will have a reasonable opportunity to repair or replace rejected Equipment, at its option. PDL assumes shipping costs in an amount not to exceed normal surface shipping charges to PDL’s Facility for the return of rejected Equipment. Following initial delivery, the party initiating shipment will bear the risk of loss or damage to Equipment in transit. If PDL reasonably determines that the rejection was improper, Customer will be responsible for all expenses caused by the improper rejection.
- SECTION 6: TITLE TO PRODUCTS
- PASSAGE TO TITLE: Title to Products, and risk of damage thereto or loss thereof, shall pass to Customer at the time PDL makes the goods available to Customer for shipment. Notwithstanding the foregoing, Customer hereby grants to PDL a security interest in all Products delivered to Customer, and in all accessions to, replacements of and proceeds from sale or lease of such Products, as security for the performance by Customer of all of Customer’s obligations arising under this Agreement.
- OWNERSHIP OF PROPRIETARY: Notwithstanding Section 6 (A) above, Customer acknowledges that the Products contain proprietary electronics, software and technical information of PDL or its licensor (collectively “Proprietary Materials”) and that (as between PDL and Customer) ownership of all patents, copyrights, mask work rights, trademarks, trade names and other intellectual property rights relating to or residing in the Products and the Proprietary Materials shall remain with PDL or its licensor. Customer understands and agrees that this Agreement does not constitute a sale of any Proprietary Materials or any such intellectual property rights; except that Customer and its customers shall have the limited right to use Proprietary Materials in the course of using the Products (subject to Section 6 (C) below). Customer shall promptly notify PDL of any actual or threatened misappropriation or infringement of PDL’s proprietary rights, which comes to Customer’s attention.
- SOFTWARE LISCENCE FOR SOFTWARE AND DOCUMENTATION:
- Certain Products may include software to collect information about how, and under what conditions, the Product is used and functions, including without limitation information describing use of the touch panel, the keyboard, docking events, system up and down time, backlighting use and peripheral utilization. This information may be used by PDL to assist with matters such as repairs, diagnostics, and quality improvement.
- Without limiting the generality of Section 6 (B) above, the parties acknowledge that (as between PDL and Customer) PDL owns all rights (including without limitation all copyrights) in any software provided by PDL at any time (whether contained in a Product, provided on a diskette or other media, downloaded remotely or otherwise transferred) and in any documentation provided by PDL at any time. The terms “sell” and “buy,” and similar terms, as used in this Agreement with respect to any such software and/or documentation shall mean the grant to Customer of a non-exclusive, non-transferable limited license:
- to use such software (in object code form only) and/or documentation together with Products provided by PDL in India for the sole purpose of using such Products, subject to the provisions in any separate license agreement or other document (relating to such software and/or documentation) supplied by PDL to Customer, and
- in connection with any resale of Products provided by PDL, to grant to the purchaser thereof a sublicense to use such software (in object code form only) and/or documentation solely as provided in the foregoing clause “(1)” (subject to the restrictions imposed in Section 6 (D) below). Customer agrees that all such sublicenses shall be for the benefit of PDL and shall be enforceable directly by PDL (in PDL’s name or on behalf of Customer). Customer shall have no right to market, distribute or otherwise transfer such software and/or documentation except as expressly provided in Section 6 (C).
- FURTHER RESTRICTIONS: Customer shall not reverse engineer, decompile, disassemble, translate, copy modify, alter or otherwise change any Product, or part thereof (including without limitation any Proprietary Materials, or any software or documentation provided by PDL), without the prior express written consent of PDL.
- TRADEMARKS: Customer shall not remove from the Products (or their packaging or documentation), or alter, any of PDL’s trademarks, trade names, logos, patent or copyright notices, or other notices or markings, or add any other notices or markings to the Products (or their packaging or documentation), without the prior express written consent of PDL. PDL hereby grants to Customer a non-exclusive, non-transferable limited license to use PDL’s trademarks relating to the Products during the term of this Agreement; provided, however, that
- Customer shall use such marks only in connection with advertising or promotion of the Products to denote their origin,
- Customer shall clearly designate that such marks are owned by PDL, and
- Customer shall otherwise comply with PDL’s then current policies for use of its marks. Any use of PDL’s trademarks by customer
- Shall be in capital letters
- If they are registered in India and Trademark Office, shall be accompanied by the “®” symbol,
- if they are not registered in India and Trademark Office, shall be accompanied by the “TM” symbol, and
- Shall be followed by a common descriptive name for the products. Customer shall not, by virtue of the foregoing license, acquire any right, title or interest in PDL’s trademarks; and Customer shall not contest or otherwise challenge the right, title and interest of PDL in its trademarks or the registration thereof. Customer’s use of PDL’s trademarks shall accrue to the benefit of PDL.
- SECTION 7: CONFIDENTIAL INFORMATION
- Unless otherwise provided, all information exchanged between PDL and Customer is non-confidential. If either PDL or Customer requires the exchange of confidential information, the exchange will be made under a separately signed confidentiality agreement between the parties. Neither PDL nor Customer will publicize the terms of this Agreement or the relationship between PDL and Customer in any advertising, marketing or promotional materials without the prior express written consent of PDL.
- Customer shall not publicly announce or discuss, or cause any third party to announce or discuss, the products of PDL without having received, in advance, PDL’s express written consent or notice. Customer shall also contractually obligate its reseller purchasers to refrain from publicly announcing or discussing, or causing any third party to publicly announce or discuss, the products of PDL without having received, in advance, express written consent or notice therefor.
- SECTION 8: PATENT, COPYRIGHT AND TRADEMARK INDEMNITY
- INDEMNITY: Subject to the provisions of this Section 8 and Section 10 below, PDL shall at its expense defend any action against Customer to the extent such action is based on a claim that a Product infringes an Indian patent, copyright or trademark (except to the extent such action or claim is based on any software or software component provided by PDL at any time whether contained in a Product provided on a diskette or media, downloaded remotely or otherwise transferred), and PDL shall pay those damages and costs finally awarded against Customer in such action which are specifically attributable to such claim, provided that Customer notifies PDL promptly in writing of such action, Customer gives PDL sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and Customer cooperates in the defense of PDL’s expense. If any Product (excluding any software or software component provided by PDL) becomes, or in PDL’s opinion is likely to become, the subject of a claim of infringement, then Customer shall permit PDL, at its option and expense, either
- Procure the right to continue using such Product,
- Replace or modify such Product so that it becomes non-infringing, or
- Accept return of such Product and give Customer a credit therefor, less depreciation for use, damage and obsolescence thereof to be determined at PDL’s sole discretion. Customer shall not incur any costs or expenses for PDL under or pursuant to this Section 8 without PDL’s express written consent. THE FOREGOING STATES THE ENTIRE LIABILITY OF PDL FOR INFRINGEMENT CLAIMS AND ACTIONS.
- CERTAIN EXCEPTIONS:PDL shall have no liability to Customer under this Section 8 or otherwise for any action or claim alleging infringement based upon any conduct involving
- the use of any Product in a manner other than as specified by PDL,
- the use of any Product in combination with other products, equipment, devices or software not supplied by PDL (including without limitation any application software produced by Customer for use with such Product), or
- the alteration, modification or customization of any Product by any person other than PDL , or by PDL based on Customer’s specifications or otherwise at Customer’s direction (regardless of whether such alteration, modification or customization occurs before or after the Product is originally shipped by PDL to Customer). In the event of an infringement action or claim against PDL which is based on any conduct described in the preceding sentence, Customer shall at its own expense defend such action or claim, and Customer shall pay any and all damages and costs finally awarded against PDL in connection with such action or claim, provided that PDL notifies Customer promptly in writing of such action or claim, PDL gives Customer sole control of the defense thereof (and any negotiations for settlement or compromise thereof), and PDL cooperates in the defense thereof at Customer’s expense. Notwithstanding the absence of any such obligation(s), PDL reserves the option, in its sole discretion and at its expense, to assume at any time defense of any such claim.
- SECTION 9: LIMITED WARRANTY
- WARRANTY TERMS: Subject to the provisions of this Section 9 and Section 10 below, with respect to each Product sold by PDL hereunder (excluding software or software components), PDL warrants that, for the period of time that is published for each Product by PDL from time to time commencing on the date such Product is shipped from PDL’s facility or the date title to such Product passes to Customer, whichever date is earlier (such period referred to herein as the “Warranty Period”) all components of such Product, except software and software components, shall be free from faulty workmanship and defective materials. The software and software components, including any documentation designated by PDL for use with such software or software components, is provided “AS IS” and with all faults. The entire risk as to satisfactory quality, performance, accuracy and effort is with the Customer. PDL makes no warranties implied or actual regarding any of its software components or any of its accompanying documentation. The warranties provided by PDL in this Section 9 (A) are only the warranties provided PDL with respect to the Products sold hereunder, and may be modified or amended only by a written instrument signed by PDL and accepted by Customer. The warranties do not apply if, in the sole opinion of PDL, the product has been damaged by accident, misuse, neglect, and/or improper shipping and handling. Since the products are sensitive to static, the responsibility to protect them from static damage is solely that of Customer and user. This warranty is valid only if the product has not been tampered with or serviced by any party not authorized by PDL as a repair facility. Customer’s remedies and PDL aggregate liability with respect to the warranties provided by PDL in this Section 9 (A) are set forth in and are limited by this Section 9 and Section 10 below.
- If, during the applicable Warranty Period for a Product sold by PDL hereunder, it is determined that any component of such Product, except software components, is defective due to faulty workmanship or defective materials, or it is determined that any software component of such Product fails to substantially conform to the written documentation designated by PDL for use with such software component, then such Product shall be returned to PDL, it being agreed that PDL shall not bear the expense of shipping such Product to PDL except as otherwise agreed by PDL. Upon receipt of any such Product during the applicable Warranty Period, PDL shall, at its expense
- In PDL’s sole discretion, repair or replace such Product, and
- Any such product to return it to its original location. PDL’s obligations hereunder shall arise only if PDL’s examination of the Product in question discloses to PDL’s satisfaction that the claimed defect or nonconformity actually exists and was not caused by any improper installation, testing or use, any misuse or neglect, any failure of electrical power, air conditioning or humidity control, or any act of God, accident, fire or other hazard. Repair or replacement of a Product (or any part thereof) does not extend the Warranty Period for such Product.
- OTHER LIMITATIONS: The express warranties of PDL stated In section 9 (a) above do not apply to products not manufactured by PDL, software not developed by PDL, consumable items (e.g. stylus’, batteries), spare parts or services, and do not apply to products, or components thereof (including without limitation of any software component), which have been altered, modified, repaired or serviced in any respect except by PDL or its representatives. In addition, the express warranties of PDL stated in section 9 (a) above do not apply to any software component of a product which is sold or licensed subject to a separate license agreement or other document relating to such software component (including without limitation a “shrink wrap” license agreement); the warranties applicable to any such software component shall be solely as stated in such other license agreement or document. PDL makes no warranties that the software components of any product will operate in conjunction with any other software or with any equipment other than the products.
- DISCLAIMER: The express warranties of PDL stated in section 9 (a) above are in lieu of all other warranties, express or implied, including without limitation the implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party Except as provided in section 8 above
- The express obligation of PDL stated in section 9 (b) above is in lieu of any other liability or obligation of PDL, including without limitation any liability or obligation for damage, loss or injury (whether direct, indirect, exemplary, special, consequential or incidental) arising out of or in connection with the delivery, use or performance of the products, and
- Repair or replacement (at PDL’s option) is customer’s sole remedy for any such damage, loss or injury.
- SECTION 10: LIMITATION OF LIABILITY
Notwithstanding anything to the contrary contained in this agreement:
- PDL’s aggregate liability in connection with this agreement and the sale of products and provisions of services to customer, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), and including any liability under sections 8 and 9 above, shall not exceed the aggregate purchase price for products in question paid by customer to PDL under this agreement;
- PDL shall not be liable for any exemplary, special, indirect, consequential or incidental damages of any kind (including without limitation lost profits), even if PDL has been advised of the possibility of such damages; and (c) except as provided in sections 8 (a) and 9 (b) above (but only to the extent and subject to the limitations set forth in sections 8 and 9 and clauses “(a)” and “(b)” of this section 10), PDL shall not be liable for any claims of third parties relating to the products, and customer shall defend PDL from, and indemnify and hold PDL harmless against, all such claims. The parties expressly agree that the products are not considered to be goods for use primarily for personal, family or household purposes or consumer goods, for purposes of the uniform commercial code or otherwise. The foregoing states the entire liability of PDL with regard to this agreement and the products. The limitations of liability contained in sections 8 and 9 above and this section 10 are a fundamental part of the basis of PDL’s bargain hereunder, and PDL would not enter into this agreement absent such limitations.
- SECTION 11: INDIAN GOVERNMENT RESTRICTED RIGHTS
If the goods are acquired under the terms of a Indian Government contract, use, duplication and disclosure are subject to the restrictions contained in the Rights in Technical Data and Computer Software clause as applicable.
- SECTION 12: GENERAL
- FURTHER ASSURANCES: At any time upon request of PDL, Customer shall promptly and duly execute and deliver any such further instruments and documents and take such further action, as PDL may reasonably deem desirable to obtain the full benefits of this Agreement. Customer hereby irrevocably appoints PDL as its attorney-in-fact (which appointment is coupled with an interest) for the purpose of executing any documents necessary to perfect or to continue the security interest granted in Section 6(A) above. Customer authorizes PDL to file a carbon, photographic or other reproduction of this Agreement as a financing statement.
- GOVERNING LAW: This Agreement shall for all purposes be governed by and interpreted in accordance with the laws of India, without regard to conflicts of law principles. PDL and Customer expressly agree to exclude from the Agreement the United Nations Convention on Contracts for the International Sale of Goods, 1980, and any successors thereto. The Courts located within India will have exclusive jurisdiction to adjudicate any dispute arising out of or related to this Agreement.
- SERVERABILITY: If any provision of this Agreement is held by a court of competent jurisdiction to unenforceable for any reason, the remaining provisions hereof shall be unaffected and remain in full force and effect.
- MODIFICATIONS: PDL may unilaterally modify, amend, supplement or otherwise change this Agreement without prior written notice to Customer at PDL’s sole discretion. Any such future modification, amendment, supplement or other change (a “Change”) shall apply only with respect to orders accepted after the effective date of such Change. As used herein, the term “Agreement” shall include any such future Change. Without limiting the generality of the foregoing, PDL may establish terms and conditions which apply to one or more particular Products (including without limitation “shrink wrap” license agreements for software products), and in this event, such terms and conditions shall, with respect to the Products addressed therein, supersede this Agreement.
- ASSIGNMENTS: No right or obligation of Customer under this Agreement shall be assigned, delegated or otherwise transferred, whether by agreement, operation of law or otherwise, without the prior express written consent of PDL, and any attempt to assign, delegate or otherwise transfer any of Customer’s rights or obligations hereunder, without such consent, shall be void. Either party may assign this agreement in connection with the sale or transfer of all or substantially all of the assets of the business to which it pertains. Subject to the preceding, this Agreement shall bind Customer and its permitted successors and assigns. Notwithstanding anything to the contrary herein, PDL may engage subcontractors to perform any of its obligations under this agreement.
- WAIVERS: All waivers must be in writing. The failure of either party to insist upon strict performance of any provision of this Agreement, or to exercise any right provided for herein, shall not be deemed to be a waiver for the future of such provision or right, and no waiver of any provision or right shall affect the right of the waiving party to enforce any other provision or right herein.
- EQUITABLE REMEDIES: The parties agree that any breach of Section 6 or 7 above would cause irreparable injury to PDL for which no adequate remedy at law exists; therefore, the parties agree that equitable remedies, including without limitation injunctive relief and specific performance, are appropriate remedies to redress any breach or threatened breach of Section 6 or 7 above, in addition to all other remedies available to the parties.
- RIGHTS AND REMEDIES: All rights and remedies hereunder shall be cumulative, may be exercised singularly or concurrently, and shall not be deemed exclusive except as provided in Sections 8 and 9 above. If any legal action is brought to enforce any obligations hereunder, the prevailing party shall be entitled to receive its attorneys’ fees, court costs and other collection expenses, in addition to any other relief it may receive. This Agreement is not intended to provide any rights or remedies to any person or entity other than PDL and Customer and their respective permitted successors and assigns (if any).
- FORCE MAJEURE: PDL shall not be responsible for any failure to fulfill its obligations hereunder due to causes beyond its reasonable control, including without limitation acts or omissions of government or military authority, acts of God, shortages of materials, transportation delays, fires, floods, labor disturbances, riots or wars.
- CONSTRUCTION AND SURVIVAL: The headings and subheadings contained herein shall not be considered a part of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, Sections 1, 2(A), 2(C), 2(D), 3, 4, 5(D), 6, 7, 8, 9, 10, 11 and 12 of this Agreement shall survive the purchase and sale of the Products hereunder and/or any expiration or termination of this Agreement.
- NOTICES: Any notice or communication permitted or required hereunder shall be in writing and shall be delivered in person by courier, or mailed by certified or registered mail, postage prepaid, return receipt requested. If notice is given in person or by courier it shall be effective upon receipt; and if notice is given by mail, it shall be effective three (3) business days after deposit in the mail.
RELATIONSHIP BETWEEN THE PARTIES: Nothing contained in this Agreement shall be construed to constitute either party hereto as the partner, joint ventures, employee, agent or other representative or the other party hereto, except as provided in Section 12(A) above. Furthermore, nothing contained in this Agreement shall be construed to constitute Customer as an exclusive purchaser or distributor of the Products in any respect.