3NT Medical Terms and Conditions of Sale

These Terms and Conditions of Sale (“Agreement”) shall govern the sale of Products (defined below) by 3NT Medical, Inc., a Delaware corporation (“3NT” or “Company”) to a customer  (the “Customer”) pursuant to a Purchase Order (defined below) or other ordering documentation that references these agreements.  Company and Customer are collectively referred to herein as the “Parties”).  Any Purchase Order (as defined below) executed in connection with this Agreement shall be governed by the terms and conditions set forth herein. 

1.  Definitions

1.1  “Documentation” means any and all documentation and material supporting or pertaining to the Products or any part thereof, including without limitation, instructions, guides and manuals, whether in writing or any machine-readable form, that 3NT makes generally available to its customers.

1.2  “Personnel” of a party includes an employee, servant, agent, officer or director of that party.

1.3  “Product(s)” means any products to be supplied by 3NT to the Customer pursuant to a Purchase Order, which may include a disposable single-use endoscope and a video console for displaying video and images from such endoscopes (“Video Console”).

1.4  “Purchase Order” means a purchase order issued by Customer for the supply of Products.

1.5  “Warranty Period” means with respect to each Product purchased by Customer, a period of one (1) year from the date such Product was shipped by 3NT to Customer, subject to any extensions of such period due to Customer’s purchase of an extended warranty in accordance with Section 12.2 for Video Consoles.

2.   Terms of Sale; Purchase Orders

2.1  Subject to the terms and conditions set forth in this Agreement, 3NT shall furnish the Products set forth in each applicable Purchase Order. Each Purchase Order shall reflect the types and the quantities of the Products which Customer desires to purchase. Except to reference this Agreement, a Purchase Order shall not include any other terms or conditions.  

2.2  This Agreement shall apply to all purchases of Products by Customer, including sample Products provided at no charge to Customer.

2.4  All Purchase Orders are subject to the minimum quantity requirements notified to the Customer from time to time by 3NT.

2.5  3NT shall not be bound by, and specifically and expressly objects to, any terms or conditions whatsoever which are different from or in addition to the provisions of this Agreement, including any terms and conditions contained on or referenced in any Customer Purchase Order. The provisions of this Agreement shall prevail, unless 3NT and Customer enter into a written agreement signed by both parties which specifically states it is meant to override any of the provisions contained herein.

2.6  From time to time, a Purchase Order may include products or other goods supplied by a third party vendor which is resold by 3NT to Customer (“Third Party Products”).  Third Party Products shall be subject to the terms and conditions set forth in Sections 2-6 of this Agreement, but shall not otherwise be considered “Products” for purposes of this Agreement.  For the avoidance of doubt, 3NT’s representations and warranties and indemnification obligations set forth in this Agreement shall not apply to Third Party Products.  All product warranties with respect to such Third Party Products shall be provided directly by the manufacturer of such Third Party Products to Customer, and Customer shall contact such manufacturer with respect to all Third Party Product returns and warranty claims. 

3. Prices

3.1  Unless otherwise agreed in writing, Products will be invoiced in accordance with 3NT’s prevailing price list at the time the relevant Purchase Order is made, as published by 3NT from to time. 3NT may change its prices from time to time without notice.

3.2  Customer shall be responsible for all sales and use taxes due to any federal, state, or local taxing authority by virtue of this Agreement or the purchase or use of Products. Company shall only be responsible for Company’s net income taxes.

3.3  All prices are exclusive of freight costs, handling charges, storage fees and/or other costs associated with the delivery of the Products. Should 3NT be required to make any such payments for any reason whatsoever, the Customer shall reimburse 3NT upon its first demand.

4.   Payment

4.1  Payment of invoices must be made by Customer within 30 days from the date of invoice.

4.2  The Customer shall not be entitled to withhold payment of any amount due to 3NT in respect of any claim based on defective Products or any alleged breach of contract by 3NT, nor shall the Customer be entitled to any right of set-off or deduction of any kind.

4.3  If the Customer fails to pay any amount on the due date, all amounts then owing to 3NT immediately and automatically will become due and payable. 3NT shall have the right to cancel any Purchase Order or other contract made with the Customer and/or to suspend deliveries. Overdue payments may be subject to an interest charge equal to the lesser of one and a half percent (1.5%) per month or the maximum amount permitted under applicable law. The Customer shall indemnify 3NT and keep it indemnified in respect of all costs (including legal fees) reasonably incurred in attempting to recover all overdue amounts.

5. Delivery, Transfer of Title, Risk of Loss

5.1  Unless otherwise provided for in the Purchase Order, all deliveries shall be made DAP [Incoterms 2010]. If the Customer requests express delivery of Products or any non-standard form of delivery or if Customer requests that delivery be made by a carrier selected by Customer, then delivery shall be made EXW 3NT’s facility [Incoterms 2010].

5.2  Customer shall bear the risk of loss from the time and location of delivery of the Products into Customer’s possession.

5.3  Shipment schedules quoted by 3NT are approximate and while 3NT shall use commercially reasonable efforts to complete each shipment as indicated in the respective Purchase Order, 3NT shall not be liable for any delays.

5.4  3NT may make partial deliveries or deliveries by instalments in any amount it may determine in which case each installment shall constitute a separate order.

5.5  The Customer must notify 3NT within seven (7) days of delivery of any shortfall in or loss or damage to Products delivered or it will be deemed to have accepted the Products.

6.   Cancellation

6.1  3NT may cancel the acceptance of any Purchase Order for Products at any time before delivery, in which case the relevant Purchase Order shall be deemed terminated without 3NT incurring any liability.

6.2  A Purchase Order may not be cancelled by Customer following signing of such Purchase Order by 3NT or dispatch of the relevant Products, without the written consent of 3NT.

7.   Returns

7.1  3NT will accept the return of defective Products within thirty (30) days of delivery, if there is any defect in the Products or Products are damaged in transit prior to delivery (“Defective Products”). 3NT will replace Defective Products, and such replacement will be Customer’s sole and exclusive remedy with respect to Defective Products. For any defects discovered after such thirty (30) day period, the Product Warranty set forth in Section 12.2 shall apply.

7.2  Customer shall coordinate with 3NT the return of defective Products and shall follow the return process and shipping instructions set forth in Sections 12.2(d) and 12.2(e); provided, however, 3NT shall be responsible for all freight charges associated with shipping Product returns to 3NT. Delivery of replacement Products shall be at the expense of 3NT.

7.4  The return procedures in this Section 7 shall also apply to any recalled products in accordance with 3NT’s recall policy as may be in effect from time to time.

8.   Storage, Handling and Use of Products

8.1 It is the Customer’s responsibility: (a) to ensure that all applicable health and safety regulations and therapeutic goods requirements are observed and other appropriate steps taken in relation to the storage, handling and the use of the Products once they are delivered to the Customer; Customer shall manage the Product inventory in compliance with ‘First Expiry – First Out’ (FEFO) principle; and (b) where information is supplied to the Customer on potential hazards relating to the Products, to bring such information to the attention of its Personnel, sub-contractors, visitors and patients.

8.2  Customer acknowledges and agrees to the following restrictions regarding the use of the Products: (a) Products shall be purchased only for Customer’s internal use and not for resale to any third party; (b) Products shall not be used for any uses which have not been cleared by the U.S. Food and Drug Administration (i.e., no “off label” use is permitted); (c) in the event of any complaint regarding the Products, Customer shall notify 3NT in writing promptly upon becoming aware of such complaint and shall provide 3NT all information available to it (or which subsequently becomes available in connection with such complaint); and (d) Customer may only install and use the Products in accordance with the Documentation and warnings provided by 3NT.

9.   Software Updates and Upgrades

9.1  During the Warranty Period applicable to each Video Console, 3NT will provide Customer with software updates and hardware upgrades that it makes generally available to its other customers.  

9.2  Unless otherwise instructed by 3NT, Video Consoles must be shipped to 3NT in accordance with the requirements set forth in Section 12.2(d) in order to receive such updates and upgrades.  

10. Proprietary Technology; Confidentiality

10.1 It is expressly understood and agreed by Customer that the Products incorporate highly confidential knowledge, technology, and trade secrets (all of which, whether or not copyrighted or patented, are hereafter referred to as “Technology”). The Technology includes technology incorporated in the Products themselves, Documentation (whether marked confidential or not), and oral information provided to Customer by 3NT on a confidential basis. The Technology is, and shall always remain, the exclusive property of 3NT. Customer shall have a continuing obligation to maintain the confidentiality of the Technology until such time that it becomes publicly known through no fault of Customer. During such time, Customer will take reasonable measures to ensure the confidentiality of the Technology, using procedures at least as secure as those Customer uses to protect its own confidential or proprietary technology. Customer shall not replicate, reproduce, alter, modify, disassemble, decompile, reverse engineer, create derivative works from, transfer or disclose to third parties, any part of the Technology for any purpose whatsoever. Customer shall not remove any proprietary notice, labels, or marks on the Products. Customer acknowledges that any violation of this Section will result in irreparable harm to 3NT and that 3NT may enforce its rights hereunder by injunction against any threatened or continuing violation, or in an action for damages, or both.

11. Indemnity

11.1 By 3NT. 3NT shall indemnify Customer, its affiliates, and its and their Personnel (collectively, the “Customer Indemnities”) against any and all cost, expense, damage, judgment, liability or losses incurred arising in connection with third-party claim alleging that the Products infringe, violate or misappropriate any United States intellectual property right of such third party.  

11.2 Exclusions from Indemnification. Notwithstanding the foregoing, Company shall have no obligation to indemnify Customer Indemnitees if such claim results from: (a) Customer’s failure to follow the Documentation; (b) modifications, alterations or repairs to the Products made other than by 3NT or at the direction of 3NT; (c) Customer’s misuse, negligence, or improper operation of the Products; or (d) use of the Product in combination with any third-party devices or products that have not been provided or authorized by Company (collectively, subsections (a)–(d), “Excluded Claims”).

11.3 By Customer. Customer shall indemnify 3NT, its affiliates, and its and their Personnel against any and all cost, expense, damage, judgment, liability or losses incurred directly or indirectly as a result of or in connection with any claim, demand or cause of action asserted or brought by a third party in relation to or arising from (a) any negligent act or omission, unlawful conduct or other misconduct by the Customer or its Personnel relating to the use of the Products by Customer other than as prescribed in the Documentation, or (b) any Excluded Claims.

11.4 Process. Such defense and payments are subject to the conditions that the indemnified Party (a) gives the indemnifying Party prompt written notice of such claim, (b) tenders to the indemnifying Party sole control of the defense and settlement of the claim, and (c) reasonably cooperates with the indemnifying Party when requested in connection with the defense and settlement of the claim. If the indemnified Party fails to meet its obligations in this Section 11.4, the indemnifying Party is excused from its obligation to defend and indemnify, but only to the extent prejudiced by the indemnified Party’s failure to comply.

12. Warranties and Disclaimers

12.1 General. As of the date of this Agreement, 3NT warrants that (i) it has full right, title and authority to enter into and perform this Agreement, (ii) it holds good and marketable title to the Products at the time of their sale to Customer, (iii) each Product is manufactured, tested, packaged, labeled, priced, shipped, sold or provided in compliance with all applicable laws, (for example, the Product is approved by the United States Food and Drug Administration (“FDA”), and does not violate the Federal Food, Drug and Cosmetic Act, or any other federal, state or local law, regulation, or ordinance); and (iv) it has not received any written notice to the effect that the Products infringe any third party intellectual property rights and to its actual knowledge the distribution, sale or use of Products does not infringe any third party intellectual property rights.

12.2 Product Warranty. 

1. Product Warranty. For the Warranty Period applicable to each Product, 3NT warrants that each Product is free from material defects and material imperfections in design, material, and workmanship and will operate in accordance with the specifications provided in the Documentation and on the Product label or insert (the “Product Warranty”).  
2. 3NT  will, at its option, repair or replace this product, which may include serviceable used and tested parts, at no additional charge, if it should fail to meet the Product Warranty at any time during the Warranty Period.  3NT reserves the right to substitute functionally equivalent new or serviceable used components.
3. Extended Product Warranty. Customer may extend the Warranty Period of each Video Console Product Warranty by purchasing an extended warranty from 3NT, and such extended warranty shall be provided pursuant to the terms and conditions set forth on Exhibit A.
4. Product Warranty Return Process. If a Product fails to meet the Product Warranty, Customer must promptly contact 3NT’s  customer support at customerservice@3ntmedical.com and 917-338-3377 during the applicable Warranty Period to coordinate the repair or replacement of such Product.  As a condition of such repair or replacement, Customer must provide 3NT with all information reasonably requested by 3NT, including the Product’s serial number or lot number and other specific information regarding the Video Console.  Upon receiving all such information, 3NT will issue Customer a Return Material Authorization (RMA) number or Complaint Number (CN).  An RMA or CN number must accompany each defective Product that is returned to 3NT.  3NT will not accept warranty returns without an RMA or CN number nor any warranty claims for Video Consoles that are not properly packaged and shipped in accordance with Section 12.2(d).  
5. Packaging and Shipping Video Consoles. Warranty returns of Video Consoles must be packaged appropriately so that no further damage to the Video Console shall occur.  Improperly packaged items that are damaged will be refused, and the warranty will be null and void.  Each returned Video Console must include the following information in a packaging sleeve: (i) the RMA number, (ii) the shipping date, (iii) a detailed description of defect or problem, (iv) the 3NT serial number, (v) Customer’s account name, (vi) Customer’s contact name, (vii) Customer’s complete return address, and (viii) Customer’s telephone number.  The RMA or CN number must also be clearly written on the outside of the packaging.  Customer is responsible for paying all freight charges for returning the Product to 3NT, and 3NT will pay the freight charges to ship the repaired or replacement Video Console back to Customer. Deliveries are only accepted between the hours of 8:30 am and 4:30 pm Monday through Friday (Eastern Time).
6. Additional Terms. The Video Console or its components will be repaired or replaced on an exchange basis only. Title to all Video Consoles returned to 3NT for repair remains with the Customer; provided, however, a replaced Video Console and/or components become the property of 3NT.  Customer will not receive any credit on their account for any Products returned for repair.  

12.3 Exclusions.  The warranties set forth in this Section 12 (including the Product Warranty, whether or not extended) will not apply to the extent any breach thereof results from: (a) Customer’s failure to follow 3NT’s specifications, including those set forth in the Documentation; (b) modifications, alterations or repairs to the Products made other than by 3NT or at 3NT’s direction; (c) Customer’s misuse, negligence, or improper operation or handling of the Products; (d) any failure by Customer or a third party to comply with environmental and storage requirements for the Product specified by 3NT, including, without limitation, temperature or humidity ranges; or (e) use of the Product in combination with any third-party devices or products that have not been indicated for use with the Product.

12.4 Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN SECTIONS 12.1 AND 12.2 (INCLUDING ANY EXTENDED PRODUCT WARRANTY PURCHASED BY CUSTOMER, IF APPLICABLE), 3NT DISCLAIMS ALL OTHER WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS (STATUTORY, EXPRESS, IMPLIED OR OTHERWISE) AS TO QUALITY, CONDITION, DESCRIPTION, MERCHANTABILITY, FITNESS FOR PURPOSE OR NON-INFRINGEMENT ARE HEREBY EXPRESSLY EXCLUDED. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, 3NT HEREBY EXPRESSLY DISCLAIMS, AND CUSTOMER HEREBY EXPRESSLY WAIVES, ANY WARRANTY REGARDING RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS.

12.5 Remedies.  3NT will immediately notify Customer if a Product fails to meet any warranty set forth in this Section 12, and 3NT shall, at its option, either (i) repair or replace the defective Product in accordance with Section 12.2, or (ii) issue Customer a refund for the defective Product. 3NT will immediately notify Customer in writing if any Product fails to comply with FDA standards, or if FDA approval is withdrawn for any Product. THE REMEDIES SET FORTH IN THIS SECTION 12.5 AND 3NT’S INDEMNIFICATION OBLIGATIONS  SHALL BE THE SOLE AND EXCLUSIVE REMEDIES FOR ANY PRODUCTS THAT FAIL TO CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION 12.

12.4 Limitation of Liability TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW: (A) EACH PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE PURCHASE AND SALE OF PRODUCTS HEREUNDER, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, WARRANTY OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), WILL NOT EXCEED THE AGGREGATE PURCHASE PRICE FOR PRODUCTS PAID BY CUSTOMER TO COMPANY IN THE PRECEDING TWELVE-MONTH PERIOD GIVING RISE TO THE ACTION; AND (B) NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCTS, EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, 3NT HEREBY EXPRESSLY DISCLAIMS LIABILITY FOR ANY DAMAGE RESULTING FROM THE USE OF THE PRODUCTS OTHER THAN IN STRICT COMPLIANCE WITH ANY DOCUMENTATION, INFORMATION OR INSTRUCTIONS PROVIDED OR OTHERWISE MADE AVAILABLE TO THE CUSTOMER.

13. Force Majeure

If performance of any obligation, except for the payments, is prevented, restricted, or interfered with because of fire, natural disaster, labor disputes, law, order, regulation or governmental requirement, epidemic or pandemic, war, civil disorder, other violence or any other act or condition, whether foreseeable or not, beyond the reasonable control of the affected party, the affected party shall be excused from such performance to the extent of such prevention, restriction, or interference. The affected party shall give prompt notice and shall resume performance immediately whenever such causes are removed. The affected party shall take reasonable steps to avoid or remove such cause at the earliest possible time, but in any event within ninety (90) days. The other party’s only remedy for this non-performance shall be to terminate this Agreement following such ninety (90) day period.

14. General Provisions

14.1 The relationship between the Parties is non-exclusive. The Parties are independent contractors, and this Agreement does not constitute  and must not be construed to create  a partnership, agency, joint venture, or employment relationship. Nothing in this Agreement gives one Party the right, power, or authority to bind the other. Unless it states otherwise, this Agreement does not create any right in, or inure to the benefit of, any third parties.

14.2 Customer may not assign its rights or obligations under any Purchase Order or this Agreement without the prior written consent of 3NT. Any attempted assignment in violation of this provision shall be null and void ab initio. 3NT may assign its rights and obligations under any Purchase Order and/or this Agreement.

15.3 This Agreement, together with all Purchase Orders shall be governed by the laws of the State of New York, excluding its conflict-of-law or choice-of-law principles.  With respect to any disputes arising out of this Agreement, Customer submit to the exclusive jurisdiction of the State and Federal courts of New York City, New York. 3NT and Customer hereby waive all rights they have to a trial by jury.

15.4 If a dispute arises between the parties in connection with any Purchase Order, the parties undertake in good faith to use all reasonable endeavors to settle the dispute by way of good faith negotiation (including escalating the dispute to executive level).

15.5 Each notice under this Agreement must be in writing, addressed to the appropriate party as set forth on the cover page of this Agreement, and delivered to the other Party by email and by either overnight courier or first class U.S. Mail (postage prepaid and return receipt requested).

15.6 This Agreement, together with the relevant Purchase Order, represent the entire agreement between the parties regarding the subject matter, superseding and replacing any additional or inconsistent terms and conditions contained on the face or reverse side of Customer’s purchase orders or other standard forms of Customer of whatever date and cancels all prior understandings, written or oral. No amendment, waiver, or cancellation of any part of this Agreement shall be valid unless pre-approved in writing with reference to this Agreement and signed by an authorized officer of each of Customer and 3NT.

15.7 Omission by 3NT to remedy a default or enforce rights reserved to it, or to require performance of any of the terms hereof, shall not be a waiver, nor shall it affect the right of 3NT to enforce such provisions thereafter.

15.8 Any term or provision of this Agreement that is held by a court of competent jurisdiction or arbitrator to be invalid, void or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the invalid, void or unenforceable term or provision in any other situation or in any other jurisdiction and any such term or provision, where held to be invalid, void or unenforceable, shall be deemed modified to the extent necessary to render such term or provision enforceable, and the rights and obligations of 3NT and Customer shall be construed and enforced accordingly, preserving to the fullest permissible extent, the intent and agreements of 3NT and Customer set forth herein.

15.9 The Parties may sign this Agreement in any number of counterparts, each of which when signed and delivered will be deemed an original, and all of which together will constitute one and the same instrument. The Parties may sign and deliver this Agreement by facsimile or other electronic means, such as e-mail.

15.10 Each section heading in this Agreement is for convenience only and does not modify or restrict any term of this Agreement.

15.11 A duly authorized representative of each Party will sign this Agreement, and each signature constitutes conclusive proof of that person’s authority to bind the Party represented by that person.

EXHIBIT A

Extended Product Warranty Terms and Conditions

For each Video Console purchased by Customer, Customer may extend the applicable Warranty Period by purchasing an extended warranty from 3NT on the terms and conditions set forth below:  

1. Product Warranty. Customer’s purchase of an extended Product Warranty shall result in an extension of the Warranty Period for the Product Warranty of the applicable Video Console.  The period of such extension shall be set forth on the extended Product Warranty Purchase Order.  The extended Product Warranty shall be subject to terms and conditions set forth in Section 12 of the Agreement, including, without limitation, (a) the requirements for return or replacement set forth in Section 12.2 and (b) the exclusions set forth in Section 12.3.  
2. Updates and Upgrades.  3NT will continue to provide Customer with software updates and hardware upgrades during the extended Warranty Period for each applicable Video Console, subject to the terms and conditions set forth in Section 9 of the Agreement.   
3. Transferability. Except where prohibited by applicable law, this limited warranty is nontransferable and is limited to the original purchaser/end-user and the country in which the product was purchased.  
4. Exclusion of Warranties. By providing this extended Product Warranty, 3NT makes no other representations or warranties, express, statutory or implied, to Customer or to any other person with respect to any Products provided by 3NT pursuant to this extended Product Warranty, including without limitation, any warranties regarding ownership, merchantability, suitability, capacity, originality, fitness for a particular or other purpose (regardless of any previous course of dealings between the parties or custom or usage of trade) or results to be derived from the use of services, and these warranties are expressly disclaimed. There are no warranties which extend beyond the description set forth in this Exhibit A.
5. Limitation on Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH IN THE AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, (A) EACH PARTY’S AGGREGATE LIABILITY IN CONNECTION WITH THIS EXTENDED PRODUCT WARRANTY, REGARDLESS OF THE FORM OF ACTION GIVING RISE TO SUCH LIABILITY (WHETHER IN CONTRACT, WARRANTY OR TORT, INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY OR PRODUCT LIABILITY), WILL NOT EXCEED THE PURCHASE PRICE FOR THE EXTENDED WARRANTY FOR THE APPLICABLE VIDEO CONSOLE GIVING RISE TO THE ACTION; AND (B) 3NT WILL NOT BE LIABLE TO CUSTOMER FOR ANY SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), OR THE COSTS OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF THE USE OR PERFORMANCE OF THE PRODUCTS, EVEN IF SUCH PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES.