Such defense or settlement shall be at Seller’s sole expense, and Seller shall pay all damages and costs finally awarded against Buyer as a result of any such suit or proceeding.
Seller agrees to indemnify and hold Buyer harmless from and in respect of any damages, losses or expenses which Buyer may suffer or incur (including reasonable attorneys’ fees) arising out of, relating to or concerning any claim, action or allegation that any of the Materials (or the use of same in an intended manner) infringes any patent or intellectual property rights claimed by any third party provided that Buyer shall notify Seller in writing of any such claim, act or allegation promptly after learning of the same and shall assist and cooperate in the defense or settlement thereof. Seller agrees to indemnify and hold Buyer harmless from and against any and all liabilities, costs, losses or expenses, including reasonable attorneys’ fees, incurred or suffered by Buyer as a result of or in connection with Seller’s breach of any of its obligations hereunder. If seller cannot deliver digital goods within 24 hours, seller agrees to refund the buyer in full. If there is an error in the digital transfer of goods, seller agrees to deliver as soon as is possible. Seller agrees to sell, transfer and deliver the Materials to Buyer for the purchase price set forth in the Order immediately. Buyer hereby expressly objects to and rejects any such additional or different provisions, and none of such provisions shall be deemed to be a part of this Agreement unless specifically agreed to in writing by Buyer.Ģ. Seller shall be deemed to have accepted this offer by commencement of performance called for in the Order, by delivery of the Materials to Buyer, by written acceptance or confirmation of this Agreement, or by any other act or communication constituting legal acceptance, whether or not any such acceptance or confirmation purports to state terms additional to or different from those stated herein. This offer shall become an “Agreement” upon acceptance by Seller. Acceptance of any shipment of the Materials shall not be construed as an acceptance of any such previous offer or proposal or an acceptance of any different or additional terms proposed by Seller. This offer is not an acceptance or a confirmation of any previous offer or proposal from Seller, and this offer shall be deemed to be a rejection and counteroffer with respect to any previous offer or proposal from Seller. These terms and conditions, together with the Order, constitute an offer by Buyer to purchase the Materials from Seller pursuant to the terms and conditions described herein. “Order” means the purchase order issued by Buyer for the supply of Materials, which may be an oral communication or a written or electronic document, and may also include particular shipping instructions and/or other specifications required by Buyer for the Materials. “Materials” means all the products and/or services to be supplied by Seller under the Order. “Seller” means the person, firm or company to whom the Order is addressed. “Buyer” means the entity issuing the Order, and any affiliates, subsidiaries, successors or assigns thereof.
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