Exhibit 10.34
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*** Confidential treatment has been
requested for portions of this exhibit. The
copy filed herewith omits the information
subject to the confidentiality
request. Omissions are designated as
[****]. A complete version of this exhibit
has been filed separately with the
Securities and Exchange Commission.
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PRIVATE LABEL MANUFACTURING AND SUPPLY AGREEMENT
THIS
PRIVATE LABEL MANUFACTURING AND SUPPLY AGREEMENT (this
"Agreement")
is made as of this 13th day of November,
2003 (the "Effective Date"), by and
between Diatron Messtechnik GmbH., a
corporation organized under the laws of
Austria and having its principal place of
business at Ameisgasse 49-51/2A, 1140
Vienna ("Supplier"), and Abaxis, Inc., a
California corporation having its
principal place of business at 3240 Whipple
Road, Union City, California 94587,
USA ("Purchaser").
BACKGROUND
Supplier
is a supplier of hematology analyzers for use in the human and
veterinary blood analysis market and
Purchaser wishes to purchase Supplier's
products for use in the veterinary market.
Supplier agrees to sell to Purchaser,
and Purchaser agrees to purchase, the
products described below, subject to the
terms and conditions contained in this
Agreement, for distribution by Purchaser
under its own trademarks and
tradenames.
AGREEMENT
Supplier
and Purchaser agree as follows:
1.
Purchase and Sale Obligations.
1.1 General. Supplier hereby appoints Purchaser as Supplier's
reseller of the products specified on
Schedule A (Products) attached to this
Agreement and incorporated herein by this
reference (the "Products"). Subject to
the terms and conditions of this Agreement,
Purchaser agrees to purchase, and
Supplier agrees to sell the Products. With
respect to the HMII Hematology
Analyzer described on Schedule A (Products)
as of the Effective Date, Supplier
appoints Purchase as Supplier's exclusive
worldwide distributor. The parties may
modify the Products subject to this
Agreement from time to time by annexing a
revised Schedule A (Products) to this
Agreement. Supplier agrees that Supplier
will not (and will not permit any third
party to) distribute any other products
of Supplier which are hematology products,
in the veterinary market in the
United States, Canada, Australia, New
Zealand, Japan and/or in such other
geographic territories as the parties may
mutually agree in writing.
1.2 Minimum Purchase Commitment and Exclusivity. Purchaser agrees
to
order from Supplier for delivery during
each Contract Year during the term of
this Agreement, the minimum number of
Products, per Contract Year, as is
specified on Schedule B attached hereto and
incorporated herein (the "Minimum
Purchase Commitment"). Contract Year shall
mean each twelve (12)-month period
commencing with the date Products are first
available for
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<PAGE>
shipment to Purchaser. Supplier agrees,
subject to Purchaser's strict compliance
with the terms and conditions of this
Agreement including, without limitation,
Purchaser's compliance with the Minimum
Purchase Commitment, that it will not,
directly or indirectly, knowingly sell
products with the same form, fit and
function of the Products into the
veterinary market in competition with the
Products. The failure to meet the Minimum
Purchase Commitment shall not
constitute an Event of Default as defined
in Section 14.2 (Termination Upon
Event of Default) of this Agreement unless
and/or until the amount Purchaser
orders for delivery during any Contract
Year falls below seventy-five percent
(75%) of the then applicable Minimum
Purchase Commitment. Supplier agrees to
disclose to Purchaser any inquiries, sales
leads or information it receives from
potential purchasers of Products in
territories set forth in Section 1.1
(General).
1.3 Governmental Rules and Regulations. Supplier's obligation
to
ship orders to Purchaser under this
Agreement shall be subject to Supplier's
right and ability to make such sales and
obtain required licenses and permits,
under all applicable decrees, statutes,
rules and regulations of a government
and/or agency with competent jurisdiction
presently in effect or which may be in
effect hereafter.
2. Orders,
Payment and Delivery.
2.1 Orders. Purchaser shall order Products from Supplier under
this
Agreement by submitting to Supplier a
written purchase order specifying the
Products, quantities and requested delivery
dates required to enable Supplier to
fill the order. Each purchase order
submitted to Supplier is subject to
acceptance by Supplier at its offices to
which such order was submitted.
Supplier shall have no liability to
Purchaser with respect to orders which are
not accepted by Supplier; provided,
however, that Supplier will not unreasonably
reject any orders for Products which do not
require any modifications or
additions, other than the modifications of
Supplier's products specified in
Section 3.1 (Customization for the
Veterinary Market) hereto. Subject to the
foregoing, Supplier may reject, in its sole
discretion, any order for customized
Products. In the event Supplier has not
given Purchaser notice of acceptance or
rejection of a purchase order within ten
(10) business days of receipt thereof,
such order shall be deemed accepted. The
purpose of the purchase order to be
issued under this Agreement is for
specifying the Products, quantities and
requested delivery dates only; no terms and
conditions of Purchaser's purchase
orders, Supplier's order acknowledgment or
any other document or instrument of
Purchaser or Supplier shall be binding upon
the other party or amend or modify
this Agreement in any manner.
2.2 Prices. The purchase price for Products sold under this
Agreement shall be determined in accordance
with Schedule A (Products) hereto
from the date hereof until the end of the
first Contract Year. After the first
Contract Year, Supplier may modify the
prices for Products, upon notice to the
Purchaser; provided such prices do not
increase more than five percent (5%) in
any one Contract Year, unless justified by
cost increases incurred by Supplier
from third-party suppliers. Supplier agrees
to provide Purchaser with ninety
(90) days prior written notice of any price
change and Supplier agrees to honor
the price in effect prior to any notice
with respect to orders (i) placed prior
to the price change effective date and (ii)
not modified or canceled by
Purchaser. All sales are F.O.B. Vienna or
Budapest (Incoterms 2000). Purchaser
agrees to separately pay all expenses
incurred by Supplier in the shipment and
delivery
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of ordered Products, including without
limitation freight charges, import duties
and insurance premiums. Purchaser shall
determine, in its sole discretion, the
price at which Purchaser resells Products
to Purchaser's customers.
2.3 Shipment and Delivery. Shipments will be made to the
warehouse
facilities of Purchaser in Union City,
California, USA or Darmstadt, Germany, as
designated by Purchaser in advance of each
shipment. Shipments will be made by
air to Union City and by truck to
Darmstadt. In the event Purchaser requests
express delivery or shipment by air instead
of by truck or by courier service,
Purchaser agrees to pay all additional
expenses required by such request.
Supplier will use commercially reasonable
efforts to meet Purchaser's requested
delivery schedules for Products. For
Supplier's first purchase order, the latest
shipment date shall be 90 days after
receipt of purchase order. In any other
event, Supplier agrees to ship the ordered
quantity of Products within thirty
(30) days after receipt of the applicable
purchase order, unless the quantity of
Products ordered in such purchase order
exceeds the number of products
forecasted (pursuant to Section 2.6
(Forecasts)) by twenty-five percent (25%) or
greater, in which case, Supplier agrees to
ship those Products ordered in excess
of the forecast within ninety (90) days
after receipt of such purchase order.
Should orders for Products exceed
Supplier's available inventory, Supplier will
allocate its available inventory and make
deliveries on such basis as Supplier
deems equitable, as agreed to by both
parties. Unless otherwise specified in
Purchaser's purchase order, Supplier shall
be authorized to make deliveries in
installments. Purchaser shall make any
claims for shortage or damage of Products
with the common carrier promptly upon
receipt of the order and provide Supplier
with written notice of such a claim. Except
in the case of negligence on the
part of Supplier or Supplier's failure to
package Products as set forth below,
Supplier will not have responsibility for
Products damaged in shipment and
Purchaser must handle all claims for damage
with the carrier. As between
Supplier and Purchaser, Products shall be
deemed accepted by Purchaser unless,
within ninety (90) days of delivery of the
Products, Purchaser affirmatively
rejects the Products, by written notice
detailing the reasons for rejections.
The parties acknowledge that they may
mutually agree in writing in the future
that the foregoing period of time be
reduced. Such reasons for rejection may be
non-conformance of the Products to the
technical specifications described on
Schedule A (Products), damage in connection
with bodily injury and property
damage arising out of any defect in the
Products made intentionally,
unintentionally or negligently by Supplier
during manufacturing and packaging,
and the breach of any material provision of
this agreement by Supplier. If no
such notice of rejection is received,
Purchaser shall be deemed to have accepted
delivery provided, however, the acceptance
of delivery shall in no way diminish
or affect the product warranty given by
Supplier in Section 6 (Warranty and
Repairs). If Purchaser rejects a shipment,
Purchaser shall promptly return a
sample of the defective Product to Supplier
in accordance with Supplier's
instructions, to enable Supplier to, within
thirty (30) days, inspect and
determine whether the Product is defective;
provided that Purchaser shall retain
the rest of the Products pending such
determination. It is Purchaser's
responsibility to properly store and handle
all Products pending inspection
and/or return. If rejection was timely
effected and Supplier determines the
Products to be defective, Supplier agrees
to repair or replace the Products or
cancel an unpaid invoice or refund the
amounts paid with respect to such
defective Product which is returned to
Supplier, at Supplier's option.
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All
shipments shall be accompanied by a quality control release
report
(the form and contents of which shall be
mutually agreed upon by the parties)
for each unit of Product shipped by
Supplier. Unless Purchaser requests
otherwise, all Products ordered by
Purchaser shall be packed for shipment and
storage in accordance with Schedule A
(Products). It is Purchaser's obligation
to notify Supplier of any special packaging
requirements (which shall be at
Purchaser's expense).
2.4 Payment. Purchaser agrees to pay amounts invoiced by
Supplier
for Products without offset or deduction
for any reason whatsoever except as
otherwise provided in Section 2.3 (Shipment
and Delivery), within thirty (30)
days from the date of invoice payable in
Euro. If Purchaser fails to pay any
amount when due, Purchaser agrees to pay
all costs and expenses, including
without limitation reasonable attorney's
fees, incurred by Supplier in
collecting such overdue amounts, together
with interest on such unpaid amount at
the lesser of one and one-half percent
(1-1/2%) per month or the greatest amount
permitted by applicable law. Supplier
reserves the right at any time after
Purchaser fails to make any payment within
sixty (60) days after the due date,
to require payment for all Products
delivered hereunder to be made by
irrevocable letter of credit. If Supplier
elects to have payment made by letter
of credit, Purchaser shall select the
issuing bank, which must be acceptable to
Supplier. Any such letter of credit shall
be governed by Uniform Customs and
Practice for Documentary Credits (UPC)
500.
2.5 Title and Risk of Loss. Title to and risk of loss of the
Products shall pass to Purchaser upon the
earlier of delivery of the Products to
Purchaser or to a carrier at Supplier's
point of shipment.
2.6 Forecasts. Purchaser shall submit a rolling twelve
(12)-month
sales forecast to Supplier every three (3)
months on the first day of each
calendar quarter first following the
Effective Date of this Agreement (or, if
the Effective Date of this Agreement is
within thirty (30) days before any of
such dates, commencing on the second such
date after the Effective Date of this
Agreement). Such sales forecast shall
include expected sales quantities per
month, order dates, shipping dates and
Product requirements. If the most recent
forecast becomes materially inaccurate at
any time, Purchaser shall promptly
provide Supplier with updated information.
The forecast information for months
four (4) through twelve (12) of the sales
forecast shall be for planning
purposes only and Purchaser is not required
to purchase the Products projected
to be sold on the sales forecast. The
Purchaser shall issue a purchase order and
purchase the Products included in the first
three (3) months of each forecast,
in accordance with the provisions of
Section 2.1 (Orders).
3.
Substitutions and Modifications; Discontinued Products; Quality
Assurance.
3.1 Customization for the Veterinary Market. Supplier agrees to
modify Supplier's product in accordance
with the technical specifications set
forth on Schedule A (Products). It is
anticipated that this work will include
modifications to the embedded software
and/or the keypad and/or the interface.
Supplier and Purchaser shall collaborate to
ensure the proper interface,
connection and interoperability between the
software of Supplier's product and
that of the VetScan, a product of
Purchaser. Technical specifications of the
interfaces of Supplier's products and their
modifications according to
Purchaser's requirements for the
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<PAGE>
Products are set forth on Schedule D
(Interface). Purchaser agrees to assist
Supplier in the translations, revisions and
editing work to provide an operating
manual in English for the Products.
3.2 Reagents for Products. Purchaser shall be responsible for
producing or procuring from third parties
reagents for use in the Products.
Supplier shall assist Purchaser in the
procurement of reagents as well as inform
Purchaser in writing of any changes in the
performance of the Products that
affect the specifications of the
then-current reagent used on the Products with
at least ninety (90) days prior notice.
3.3 Product Changes. Except with respect to Products ordered
pursuant to a purchase order which has been
accepted by Supplier as described in
Section 2.1 (Orders) Supplier shall have
the right, at any time and from time to
time, to make substitutions and
modifications to the Products (including
software improvements); provided, however,
that Supplier agrees to consider that
Purchaser's use of the Products is in the
veterinary market in making any such
substitutions or modifications. In the
event that any proposed substitution or
modification affects, in Supplier's
reasonable judgment, the form, fit or
function of a Product, Supplier shall give
Purchaser written notice of such
proposed substitution or modification at
least thirty (30) days prior to its
taking effect and Purchaser shall have the
right, during such thirty (30)-day
period, to order Products without such
substitution or modification for delivery
within fifteen (15) days after the
expiration of such thirty (30)-day period.
Any changes that affect the Product
performance, operation or documentation
shall be provided to the Purchaser in
writing with no less than ninety (90) days
notice. Purchaser shall have the right, at
any time and from time to time to
request substitution and/or modification to
the Products. In the event of such
request Supplier agrees to review and
consider the requested modifications and
notify Purchaser whether it is feasible
and/or practical to make the
modifications requested. In the event
Supplier notifies Purchaser the
modifications are feasible and practical,
it will also notify Purchaser of the
estimated modification costs and estimated
time for manufacturing the modified
Product. All work requested by Purchaser,
other than that set forth in Sections
3.1 (Customizations for the Veterinary
Market), 6 (Warranty and Repairs) and 8.1
(Clinical Studies), will be charged on a
time and materials basis, at an initial
rate of fifty Euros ((euro)50) per employee
per hour, for a minimum of 3.5 hours
for each request (or as may be otherwise
mutually agreed upon by the parties).
3.4 Discontinued Products. Supplier agrees to notify Purchaser
in
writing not less than one (1) year in
advance of the discontinuance of any
Product. In the event Supplier is unable to
manufacture the Products for
Purchaser (due to bankruptcy, fire, or
other event of force majeure), then
Purchaser will have the right to
manufacture the Products (or have the Products
manufactured for Purchaser), and, in
exchange, pay a reasonable royalty or
license fee for such right. The parties
will establish an escrow account
providing for the deposit of updated copies
of all information reasonably
necessary for the manufacture of the
Products with a third party (to be agreed
upon by the parties) under terms to be
agreed upon in good faith between the
parties and such third party. Purchaser
agrees to cover the costs for
establishing and maintaining of said escrow
account. Supplier will deposit in
the escrow account all information
reasonably necessary for the manufacture of
the Products prior to shipment of the first
order of Products.
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The conditions for the transfer of know-how
related to such manufacture shall be
agreed upon separately in good faith by the
parties.
3.5
Quality Assurance. The Product shall be manufactured in
accordance with ISO 9001 standards.
Purchaser shall be permitted to inspect
facilities in which the Products are
developed and produced upon reasonable
advance written notice to Supplier, during
business hours at times reasonably
convenient to both parties; provided,
however, that Purchaser acknowledges that
all information obtained in the course of
any such inspection shall be deemed
proprietary information pursuant to Section
4 (Confidentiality) of this
Agreement. Supplier shall be permitted to
inspect Purchaser's storage and
handling procedures of the Product upon
reasonable advance written notice to
Purchaser during business hours at times
reasonably convenient to both parties;
provided, however, that Supplier
acknowledges that all information obtained in
the course of any such inspection shall be
deemed proprietary information
pursuant to Section 4 (Confidentiality) of
this Agreement.
4.
Confidentiality. Supplier and Purchaser agree that certain
information
supplied by each to the other during the
term of this Agreement, including,
without limitation, the Products, the
documentation and the intellectual
property and technology underlying the
Products, the information for
customization pursuant to Section 3.1
(Customization for the Veterinary Market)
and information contained on purchase
orders or regarding Purchaser's ordering
or delivery patterns is proprietary,
secret, confidential or non-public. All
such information shall be held in
confidence by the receiving party, shall be
used only for the purposes of this
Agreement and shall not be disclosed to any
person other than an employee with a need
to know the information in order to
fulfill the obligations of the receiving
party hereunder. Information shall not
be subject to the provisions of this
Section 4 (Confidentiality) if shown by
recipient's records to be: (i) in the
public domain at the time of disclosure or
thereafter through no fault of the
recipient; (ii) known to the receiving party
at the time of disclosure; (iii) disclosed
to the receiving party without an
obligation of confidentiality by a third
party with the legal right to make such
free disclosure; (iv) developed
independently by the receiving party by
personnel without access to or knowledge of
the information disclosed; or (v)
clinical studies set forth in Section 8.1
(Clinical Studies) and other
developments and improvements of products,
parts, programs and interfaces which
are not specifically proprietary or
confidential information of Purchaser or any
third party. The receiving party may
disclose information to the extent
requested or required by a governmental or
judicial entity, provided such
disclosure is limited to the fullest extent
permitted by applicable law.
All
documentation with respect to the Products (except information
contained in or for use in manuals,
promotional materials or educational
materials to be provided to Purchaser's
customers), are furnished solely for
Purchaser's internal use. Purchaser may
make copies of such documentation to
satisfy its internal requirements, provided
that all such copies include
appropriate copyright and proprietary
information notices. No other copies or
use of such documentation, or any portion
thereof, shall be made without the
prior written approval of Supplier. From
time to time, Purchaser shall provide
Supplier with feedback, comments or
suggestions regarding the Products
(collectively, "Feedback"). Feedback, if
any, will be the property of the
Supplier and may be freely used by Supplier
in Supplier's business. Feedback
specifically excludes any proprietary or
Confidential Information of Purchaser.
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Upon
termination of this Agreement, Purchaser shall return or, at
Supplier's request, destroy all
confidential, proprietary or secret information
of Supplier in Purchaser's possession. The
obligations of the parties pursuant
to this Section 4 (Confidentiality) shall
survive the expiration or earlier
termination of this Agreement for a period
of five (5) years.
5. Product
Trademarks and Copyrights.
5.1 Trademark Usage. Purchaser agrees that the Products
purchased
and/or licensed hereunder shall be sold or
leased by Purchaser only under the
trademarks, tradenames or logos
(collectively the "Purchaser Marks") of
Purchaser.
5.2 Notices. Purchaser shall not alter or remove any copyright,
trademark, trade secret, proprietary and/or
other legal notices of Supplier or
third parties contained on or in the
Products. The existence of any such
copyright notice shall not be construed as
an admission, or be deemed to create
a presumption, that any publication of such
Products has occurred.
5.3 Logos. Supplier shall label all Products with Product
serial
numbers, Product electrical data, Purchaser
Marks and such other label
information as may be specified by
Purchaser. Purchaser shall provide Supplier
with camera-ready artwork necessary for the
labeling of the Products, which
shall include, without limitation:
Purchaser Marks, Product serial numbers,
electrical data label information, and such
additional information as may be
specified by Purchaser. Supplier shall be
responsible for the costs of such
labeling. Supplier shall be responsible for
ensuring that the Products and all
labeling conform to applicable rules and
regulations with respect to electrical
standards established by Underwriter's
Laboratories ("UL") for the United States
and Canada and by Conformite Europeen
("CE"). Purchaser shall be responsible for
the costs of registration. The parties will
discuss in good faith the
apportionment of costs for ensuring
conformity of the Products to rules of other
applicable standard setting organizations
in the applicable jurisdictions.
Purchaser shall be responsible for the
costs of registration with such other
standard setting organizations in the
applicable jurisdictions.
5.4 Trademark License. Purchaser hereby grants to Supplier a
non-exclusive, non-transferable right to
use the Purchaser Marks solely on the
Products ordered by Purchaser hereunder and
associated packaging. Supplier
agrees to the following:
(a) to comply with Purchaser's guidelines and instructions
regarding use of the Purchaser Marks as
communicated to Supplier from time to
time;
(b) in the event Purchaser notifies Supplier that such use is
not in conformance with Purchaser's
guidelines and instructions, to promptly
bring such use into conformance;
(c) to ensure that all use of the Purchaser Marks will not
reflect adversely upon the good name or
good will of Purchaser and that all
Products in connection with which the
Purchaser Marks are used are of high
standard and workmanship and of such
nature,
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style, appearance and quality as shall be
adequate and suited to the protection
of the Purchaser Marks and the goodwill
associated therewith;
(d) not to use the Purchaser Marks (or any part thereof) as
part of, or in combination with, any other
names or trademarks without
Purchaser's prior written approval;
(e) not to register (or aid any third party in registering)
the Purchaser Marks (or confusingly similar
mark) or take any action
inconsistent with Purchaser's ownership of
the Purchaser Marks in any
jurisdiction; and
(f) that all usage of the Purchaser Marks will be on behalf
of, and inure to the benefit of,
Purchaser.
6.
Warranty and Repairs.
6.1 Warranty. Supplier warrants that the Products manufactured
and
sold by it will be free from defects in
material and workmanship, and will
substantially conform to the technical
specifications described in Schedule A
(Products), in normal use and service for a
period and under the terms set forth
in Schedule C (Warranty Terms), annexed
hereto and made a part hereof. The
warranty set forth in this Section 6.1
(Warranty) shall be void to the extent of
(i) any modification of a Product (except
for repairs made by Purchaser) by any
person or entity other than Supplier, (ii)
misuse or abuse of a Product or
documentation by Purchaser or Purchaser's
customers or end users, (iii)
negligence or wrongdoing of Purchaser or
Purchaser's customers or end users,
(iv) accident, disaster or event of force
majeure, (v) use of a Product or
documentation in any manner inconsistent
with this Agreement, (vi) causes
external to a Product such as, but not
limited to, power failure or electrical
power surges, (vii) improper storage of a
Product, (vii) use of a Product in
combination with products, equipment or
software not supplied by Supplier or by
Purchaser or (viii) use of a Product in
combination with products, equipment or
software supplied by Purchaser without
Supplier's technical approval. Purchaser
shall pay Supplier for services performed
by Supplier not covered by this
Section 6.1 (Warranty) at Supplier's then
current time and materials rates.
6.2 Repairs. Purchaser shall be responsible for proper
installation,
service, maintenance and repair of the
Products as well as for coordinating
repair requests from Purchaser's customers
or end users and for resolution of
such repair requests. If Purchaser cannot
resolve a repair request through
Purchaser's technical support personnel or
by providing spare parts, Purchaser
shall first coordinate with Supplier's
technical support personnel for
resolution of such repair request. In
exceptional cases and after thorough
troubleshooting Purchaser shall ask for
written authorization to return Products
to Supplier for repair. It is Supplier's
option to choose the carrier when
Supplier is responsible for transportation
costs. Except for rejected Products
set forth in Section 2.3 (Shipment and
Delivery) and for Products covered by the
warranty in Section 6.1 (Warranty) which
are returned within the one (1)-year
warranty period, Purchaser shall be
responsible for (a) paying the cost of
mailing the Products to repair facilities
designated by Supplier, (b) paying
Supplier for its labor costs at Supplier's
then current time rates and (c)
providing replacement Products on a loan
basis to Purchaser's customers or end
users. Supplier shall return repaired
Products to Purchaser within thirty (30)
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days of receipt of such Products and pay
the cost or return mailing for Products
received prior to the end of the one
(1)-year warranty period; otherwise
Purchaser shall be responsible for paying
the cost of return mailing for
Products received after the one (1)-year
warranty period as well as paying
Supplier for its services at Supplier's
then current time and materials rates.
If any Product is returned to an authorized
Supplier service location specified
by Supplier within the warranty period set
forth above, and upon examination
Supplier determines to its satisfaction
that such Product is covered by the
warranty in Section 6.1 (Warranty), within
the warranty period set forth herein,
Supplier will, at its option and as
Purchaser's sole and exclusive remedy for a
breach of this warranty, repair or replace
the Product or the defective part
hereof or refund the original purchase
price of the Product to the Purchaser
within thirty (30) days after receipt of
the defective Product. Purchaser agrees
to purchase an adequate stock of spare
parts for the Products and Products to be
loaned to Purchaser's customers of the
Products, for use during servicing of
Products under warranty repair.
6.3 Disclaimer. Except for the warranty set forth in this Section
6
(Warranty and Repairs) and Section 11
(Representations and Warranties), Supplier
disclaims all warranties, whether express
or implied, oral or written, with
respect to the Products, including without
limitation, all implied warranties of
merchantability or fitness for any
particular purpose. Laws from time to time in
force in certain jurisdictions may imply
warranties that cannot be excluded or
can only be excluded to a limited extent,
and this Agreement shall be read and
construed subject to any such statutory
provisions. Purchaser shall be
responsible for any warranty it extends,
either directly or indirectly,
expressly or by operation of law, beyond
the warranty expressly granted in this
Section 6 (Warranty and Repairs). Supplier
is not responsible for (i) damages
caused by Purchaser's failure
