20. Indemnification
（a） Each party shall indemnify and hold harmless the other party， its shareholders， directors， officers， employees， agents， designees and assignees， or any of them， from and against all losses， damages，liabilities， expenses， costs， claims， suits， demands， actions， causes of actions， proceedings， judgments， assessments， deficiencies and charges（collectively， “Damages”） caused by， relating to or arising from the performance by such party in accordance with this Contract of its obligations hereunder， and Buyer shall also indemnify Seller， without limiting the foregoing， for any such item caused by， relating to or arising from （a） the programming services which are authorized for viewing using the System， including any assertion that any such programming service involves copyright infringement， （b） any disputes between Buyer and any of its program distributors or other distributors or affiliates，（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 benefit of the parties hereto， their successors and permitted assigns.
28. Entire Contract
The terms and conditions incorporated herein contain the entire agreement and understanding between the parties with respect to the subject matter hereof and merge and supersede all prior agreements，understandings and representations. No additions or modifications shall be effective unless in writing signed by the parties hereto. The present Contract shall be made in __________ Language in four （4） originals， two（2） for each party. In witness whereof， the parties have duly executed this Contract on the date first above written. SELLER： BUYER：
By： By：
Annex A System Components （sketch）
来源:考试大-建筑工程类考试责编:xx 纠错
 |
