|STEREOTAXIS, INC. filed this Form S-1/A on 05/12/2004|
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8.2 Design Updates
Seller will have the right to change the manufacture and/or design of its
Products if, in the judgment of Seller, such change does not alter the general
function of the Products.
9. FORCE MAJEURE
Seller will make every effort to complete shipment, and installation where
indicated, but will not be liable for any loss or damage for delay in delivery,
inability to install or any other failure to perform due to causes beyond its
reasonable control including, but not limited to, acts of government or
compliance with any governmental rules or regulations, acts of God or the
public, war, civil commotion, blockades, embargos, calamities, floods, fires,
earthquakes, explosions, storms, strikes, lockouts, labor disputes, or
unavailability of labor, raw materials, power or supplies. Should such a delay
occur, Seller may reasonably extend delivery or production schedules or, at its
option, cancel the order in whole or part without liability other than to return
any unearned deposit or prepayment.
10.1 Seller warrants that the Products manufactured by Seller and sold
hereunder will be free from defects in material or workmanship under normal use
and service for the period a period of one year following completion of
installation in accordance with 12.6 hereof, which date will be confirmed in
writing by Seller. Seller makes no warranty for any Products made by persons
other than Seller, or its affiliates, and Purchaser's sole warranty therefore,
if any, is the original manufacturer's warranty, which Seller agrees to pass on
it Purchaser, as applicable.
10.2 No warranty extended by Seller will apply to any Products which have
been damaged by accident, misuse, abuse, negligence, improper application or
alteration or by a force majeure occurrence as described in Section 9 hereof or
by the Purchaser's failure to operate the Products in accordance with the
manufacturer's instructions or to maintain the recommended operating environment
and line conditions; which are defective due to unauthorized attempts to repair,
relocate, maintain, service, add to or modify the Products by the Purchaser or
any third party or due to the attachment and/or use of non-Seller supplied
equipment without Seller's prior written approval; which failed due to causes
from the use of operating supplies or consumable parts not approved by Seller.
In addition and without limitation, no warranty extended by Seller will apply to
any failure to comply with Section 1.3 or any failure due to events such as
cracking from high impact drops, cable rupture from rolling equipment over
cables, or delamination from cleaning with inappropriate solutions. Seller's
obligation under this warranty is limited to the repair or replacement, at
Seller's option, of defective parts. Seller may effectuate such repair at
Purchaser's facility, and Purchaser will furnish Seller safe and sufficient
access for such repair. Repair or replacement may be with parts or products that
are new, used or refurbished. Repairs or replacements will not interrupt, extend
or prolong the term of the warranty. Purchaser will pay seller its normal
charges for service and parts for any inspection, repair or replacement that is
not, in Seller's sole judgment, required by noncompliance with the warranty set
forth in Section 10.1. Seller's warranty does not apply to consumable materials,
except as specifically stated in writing, nor to products or parts thereof
supplied by Purchaser.
10.3 This warranty is made on condition that immediate written notice of any
noncompliance is given to Seller and Seller's inspection reveals that the
Purchaser's claim is valid under the terms of the warranty (i.e. that the
noncompliance is due to traceable defects in original materials and/or
10.4 Warranty service will be provided without charge during Seller's
regular working hours (8:30 - 5:00), Monday through Friday, except Seller's
recognized holidays. If Purchaser requires that service be performed other than
during these times, such service can be made available at an additional charge,
at Seller's then current rates. Seller may utilize sub-contractors for purposes
of carrying out warranty service.
SELLER MAKES NO WARRANTY OTHER THAN THE ONE SET FORTH HEREIN, WHICH WARRANTY IS
IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
TO ANY EXPRESS OR IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR
PURPOSES, AND SUCH CONSTITUTES THE ONLY WARRANTY MADE WITH RESPECT TO THE
PRODUCTS AND ANY PRODUCT, SERVICE OR OTHER ITEM FURNISHED UNDER THIS AGREEMENT.
11. LIMITATION OF LIABILITY
11.1 In no event will Seller's liability hereunder exceed the actual loss or
damage sustained by Purchaser, up to the purchase price of the Products.
11.2 SELLER SHALL NOT BE LIABLE FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED
PROFITS, LOSS OF STORED, TRANSMITTED OR RECORDED DATA, OR FOR ANY INCIDENTAL,
UNFORESEEN, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN
CONNECTION WITH THIS AGREEMENT OR THE SALE OR USE OF THE PRODUCTS. This
provision does not affect third party claims for personal injury arising as a
result of Seller's negligence or product defect. THE FOREGOING IS A SEPARATE,
ESSENTIAL TERM OF THIS AGREEMENT AND SHALL BE EFFECTIVE UPON THE FAILURE OF ANY
REMEDY, EXCLUSIVE OR NOT.
Unless otherwise expressly stipulated in writing, the Products covered hereby
will be installed (where applicable) by and at the expense of Seller.
12.2 Installation bv Seller.
Subject to fulfillment of the obligations set forth in 12.4 below, Seller will
install the Products covered hereby and connect same to the requisite safety
switches and power lines to be installed by Purchaser. Except as otherwise
specified below, if such installation and connection are performed by Seller's
technical personnel, prices shown include the cost thereof, provided that the
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