(c) any disputes or claims involving the subscribers for Buyer's
programming services, or (d) any assertion that Buyer has been involved
in, that Buyer's conduct of subscription involves, or that Buyer's use of
the System involves, any unfair competition or violations of laws, rules
or regulations.
(b) In the event of a third-party claim, with respect to which a party
is entitled to indemnification hereunder, a party (the "Indemnified
Party") shall notify the other party (the "Indemnifying Party") in writing
as soon as practicable, but in no event later than ______ days after
receipt of such claims. The Indemnified Party's failure to provide such
notice shall not preclude it from seeking indemnification hereunder unless
such failure has materially prejudiced the Indemnifying Party's ability to
defend such claim. The Indemnifying Party shall promptly defend such claim
(with counsel of its own choosing) and the Indemnified Party shall
cooperate with the Indemnifying Party in the defense of such claim,
including the settlement of the matter on the basis stipulated by the
Indemnifying Party (with the Indemnifying Party being responsible for all
costs and expenses of such settlement). If the Indemnifying Party within a
reasonable time after notice of a claim fails to defend the Indemnified
Party, the Indemnified Party shall be entitled to undertake the defense,
compromise or settlement of such claim at the expense of the Indemnifying
Party. Upon the assumption of the defense of such claim, the Indemnifying
Party may settle, compromise or defend as it sees fit.
Notwithstanding anything to the contrary set forth in this Section,
Seller will defend any suit, claim, action or proceeding brought against
Buyer to the extent that such suit, claim, action or proceeding is based
on a claim that goods manufactured and sold by Seller to Buyer infringe
patent, copyright, mask work, trademark, trade secret or any other
intellectual property rights of any third party and Seller shall pay all
damages and costs awarded by final judgment (from which no appeal may be
taken) against Buyer, as well as its actual expenses and costs, on
condition that Seller (i) is promptly informed and furnished a copy of
each communication, notice or other action relating to the alleged
infringement, (ii) is given sole control of the defense (including the
right to select counsel), and the sole right to compromise and settle such
suit or proceeding; provided however, that Seller's liability hereunder,
if any, shall be strictly and solely limited to the amount of royalties
which would be payable in respect of revenues derived by Seller from Buyer
from sales of the infringing goods. Seller shall not be obligated to
defend or be liable for costs and damages if the infringement arises out
of a combination with, an addition to, or modification of the goods after
delivery by Seller, or from use of the goods, or any part thereof, in the
practice of a process.
If any goods manufactured and supplied by Seller to Buyer are held to
infringe any valid patent and Buyer is enjoined from using the same, or if
Seller believes such infringement is likely, Seller will exert all
reasonable efforts at its option and expense (i) to procure for Buyer the
right to use such goods free of any liability for such infringement, or
(ii) replace or modify such goods with a noninfringing substitute
otherwise complying substantially with all the requirements of this
Contract, or (iii) upon return of the goods, refund the purchase price and
the transportation costs of such goods (less reasonable allowance for
their use and benefit derived therefrom for the period of time from
delivery to Buyer, such allowance being based on a straight-line
depreciation period of _______ years from the date of shipment by Seller).
If the infringement is alleged prior to completion of delivery of the
goods, Seller has the right to decline to make further shipments without
being in breach of contract. If Seller has not been enjoined from selling
such goods to Buyer, Seller may (at Seller's sole election), at Buyer's
request, supply such goods to Buyer, in which event Buyer shall be deemed
to extend to Seller the same patent indemnity hereinabove stated.
The same patent indemnity shall be deemed to be extended to Seller by
Buyer if any suit or proceeding is brought against Seller based on a claim
that the goods manufactured by Seller in compliance with Buyer's
specifications infringe any valid patent.
Buyer shall promptly notify Seller of any infringement by a third
party of intellectual property rights licensed to Buyer under this
Contract. In the event that a third party infringes such intellectual
property rights, the Parties shall cooperate with one another to take
appropriate action to cause such infringement to cease.
The foregoing states the sole and exclusive liability of the parties
hereto for infringement of patents, copyrights, mask works, trade secrets
trademarks, and other proprietary rights, whether direct or contributory,
and is in lieu of all warranties, express, implied or statutory, in regard
thereto, including, without limitation, the warranty against infringement
specified in the uniform commercial code.
21. Limitation of Liability
Buyer agrees that in no event shall Seller be liable for damages
hereunder, or for any claim of any kind as to any System or System
components delivered or for nondelivery of such System or components,
regardless of the form of the action, in an amount greater than the
purchase price of the System or components in respect of which such claim
is made.
In no event shall Seller be liable for any loss of profits, loss of
use, interruption of business, or indirect, special or consequential
damages of any kind.
22. Force Majeure
The term "Force Majeure" means acts of God, fire, casualty, flood,
earthquake, strikes or lockouts, riots, insurrections or civil disorders,
embargoes, war, any future law, order, regulation, or other act of
government, and other delays beyond Seller's reasonable control. If
Seller's performance of this Contract is prevented, restricted, delayed or
interfered with by reason of Force Majeure, Seller's performance shall be
excused to the extent delayed or prevented by Force Majeure, provided,
however, that Seller take reasonable steps to avoid or remove such causes
of nonperformance and shall continue performance whenever and to the
extent such causes are removed.
If, due to a Force Majeure event, the Buyer and/or Seller cannot
accomplish its contractual obligations for a period of _______ consecutive
months, the Buyer and Seller shall meet and come to an agreement within
the shortest possible period of time upon the conditions on which they
could continue the execution of this contract.
Should the Buyer and Seller fail to agree on the conditions of such
continuation, the matter shall be referred to arbitration in accordance
with Article 26 hereof.
23. Termination
(a) Buyer or Seller shall have the right to terminate this Contract if
the other makes an assignment for the benefit of creditors, or a receiver,
trustee in bankruptcy or similar officer is appointed to take charge of
all or any part of the party's property or business or is adjudicated a
bankrupt.
(b) Seller shall have the right to terminate this Contract if Buyer
neglects or fails to make payment in accordance with the terms hereof and
such condition is not remedied within ____________ business days after
written notice to Buyer. Seller may, at Seller' s option, extend the time
for Buyer's cure.
24. Nonwaiver of Rights
Neither the waiver by a party hereto of a breach of, or a default
under, any of the provisions of this Contract, nor the failure of a party
on one or more occasions, to enforce any of the provisions of this
Contract or to exercise any right or privilege hereunder shall thereafter
be construed as a waiver of any subsequent breach or default, or as a
waiver of any of such provisions, rights or privileges hereunder.
25. Notices
All notices, requests, or other communications which may be sent by
either party to the other party pursuant to this Contract shall be in
writing and shall be addressed as follows:
If to Seller: If to Buyer:
All communications between the parties in the course of the present
Contract shall be made in ___________ language by registered airmail
letter sent to the addresses set forth herein or by facsimile. The date of
receipt of notice shall be deemed to be _______ days after its postmark in
the case of registered mail or the date of dispatch of a facsimile.
26. Applicable Law and Resolution of Disputes
This Contract is made in accordance with the Foreign Economic Contract
Law of the People's Republic of China and the laws of ___________
(country). The laws of ____________ (country) shall be applied to the
settlement of any disputes arising from this Contract.
(a) Consultations. In the event any dispute arises in connection with
the validity, interpretation, or implementation of this Contract or any of
its annexes, the Parties shall attempt in the first instance to resolve
such dispute through friendly consultations. If the dispute is not
resolved in this manner within ______ days after the date on which one
Party has served written notice on the other Party for the commencement of
consultations, then either party may refer the dispute to arbitration in
accordance with the provisions of this Section 26.
(b) Arbitration. (sketch)
27. Binding Effect
These terms and conditions shall be binding upon and inure to the
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