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the property of Seller. Shipment to Buyer of repaired or replacement Products shall be made in accordance with the Delivery provisions of the
<br />Seller's Terms and Conditions of Sale. Consumables are expressly excluded from this warranty. If Seller elects to repair defective device
<br />instruments, Seller may, in its sole discretion, provide a replacement loaner instrument to Buyer as necessary for use while the instruments are
<br />being repaired. Notwithstanding the foregoing, Products supplied by Seller that are obtained by Seller from an original manufacturer or third
<br />party supplier are not warranted by Seller, but Seller agrees to assign to Buyer any warranty rights in such Product that Seller may have from
<br />the original manufacturer or third party supplier, to the extent such assignment is allowed by such original manufacturer or third party supplier. In
<br />no event shall Seller have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal
<br />wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Buyer, (iv) use of the Products in a
<br />manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power
<br />surges, (vi) improper storage and handling of the Products or (vii) use of the Products in combination with equipment or software not supplied by
<br />Seller. If Seller determines that Products for which Buyer has requested warranty services are not covered by the warranty hereunder, Buyer
<br />shall pay or reimburse Seller for all costs of investigating and responding to such request at Seller's then prevailing time and materials rates. If
<br />Seller provides repair services or replacement parts that are not covered by this Warranty shall pay Seller therefor at Seller's then prevailing
<br />time and materials rates.
<br />ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH,
<br />THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN SELLER WITHOUT SELLER'S PRIOR WRITTEN APPROVAL,
<br />OR ANY USE OF REPLACEMENT PARTS NOT SUPPLIED BY SELLER, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES
<br />WITH RESPECT TO THE AFFECTED PRODUCTS. THE OBLIGATIONS CREATED BY THIS WARRANTY STATEMENT TO REPAIR OR
<br />REPLACE A DEFECTIVE PRODUCT SHALL BE THE SOLE REMEDY OF BUYER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT
<br />AS EXPRESSLY PROVIDED IN THIS WARRANTY STATEMENT, SELLER DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS
<br />OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED
<br />WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE
<br />PRODUCTS ARE ERROR -FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT,
<br />9.1. By Selle. Seller agrees to indemnify, defend and save Buyer, its officer, directors, and employees from and against any and all
<br />damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable
<br />attorney's fees) ("Indemnified Items") for (i) injury to or death of persons or damage to property to the extent caused by the negligence or
<br />willful misconduct of Seller, its employees, agents or representatives or contractors in connection with the performance of services at
<br />Buyer's premises under this Agreement and (ii) claims that a Product infringes any valid United States patent, copyright or trade secret;
<br />provided, however, Seller shall have no liability under this Section to the extent any such Indemnified Items are caused by either (i) the
<br />negligence or willful misconduct of Buyer, its employees, agents or representatives or contractors, (ii) by any third party, (iii) use of a
<br />Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) compliance
<br />with Buyer's designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed
<br />or (vi) modifications of the Product by anyone other than Seller without Seller's prior written approval. Buyer shall provide Seller prompt
<br />written notice of any third party claim covered by Seller's indemnification obligations hereunder. Seller shall have the right to assume
<br />exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably
<br />with Seller in connection with the performance by Seller of its obligations in this Section.
<br />Notwithstanding the above, Seller's infringement related indemnification obligations shall be extinguished and relieved if Seller, at its
<br />discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b)
<br />replaces or modifies the Product so that it becomes non -infringing, provided the modification or replacement does not adversely affect the
<br />specifications of the Product; or (c) in the event(a) and (b) are not practical, refund to Buyer the amortized amounts paid by Buyer with
<br />respect thereto, based on a five (5) year amortization schedule. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER'S
<br />ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN.
<br />9.2. By Buyer. Buyer shall indemnify, defend with competent and experienced counsel and hold harmless Seller, its parent, subsidiaries,
<br />affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages,
<br />liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys'
<br />fees and disbursements and court costs) to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer,
<br />its agents, employees, representatives or contractors; (ii) use of a Product in combination with equipment or software not supplied by
<br />Seller where the Product itself would not be infringing; (iii) Seller's compliance with designs, specifications or instructions supplied to
<br />Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by
<br />anyone other than Seller without Seller's prior written approval
<br />10. SOFTWARE. With respect to any software products incorporated in or forming a part of the Products hereunder, Seller and Buyer intend
<br />and agree that such software products are being licensed and not sold, and that the words "purchase", "sell" or similar or derivative words are
<br />understood and agreed to mean "license", and that the word "Buyer" or similar or derivative words are understood and agreed to mean
<br />"licensee". Notwithstanding anything to the contrary contained herein, Seller or its licensor, as the case may be, retains all rights and interest in
<br />software products provided hereunder. Seller hereby grants to Buyer a royalty -free, non-exclusive, nontransferable license, without power to
<br />sublicense, to use software provided hereunder solely for Buyer's own internal business purposes on the hardware products provided
<br />hereunder and to use the related documentation solely for Buyer's own internal business purposes. This license terminates when Buyer's lawful
<br />possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Buyer agrees to hold in
<br />confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related
<br />documentation provided hereunder. Buyer may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or
<br />supplement the software products provided hereunder without Seller's prior written consent. Seller will be entitled to terminate this license if
<br />Buyer falls to comply with any term or condition herein„ Buyer agrees, upon termination of this license, immediately to return to Seller all
<br />software products and related documentation provided hereunder and all copies and portions thereof
<br />11. LIMITATION OF LIABI' I) Y,,. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER
<br />UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR
<br />OTHERWISE, BUT EXCLUDING LIABILITY OF SELLER FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS
<br />PROVIDED UNDER SECTION 8 ABOVE)) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE LESSER OF (A) THE TOTAL PURCHASE
<br />PRICE THERETOFORE PAID BY BUYER TO SELLER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY OR (B)
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