| 1. |
Seller
warrants that the products (or materials)
delivered hereunder meet Seller’s
standard specifications for the products
or such other specifications as may have
been expressly agreed to herein. SELLER
MAKES NO WARRANTIES OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE, OR ANY
OTHER EXPRESS OR IMPLIED WARRANTY, EXCEPT
AS PROVIDED IN CONDITIONS 3 AND 4 HEREIN.
Buyer assumes all risk and liability resulting
from use of the products delivered hereunder,
whether used singly or in combination with
other products. |
| 2. |
No claim of any kind,
whether as to products (or materials) delivered
or for non-delivery of products, and whether
or not based on negligence, shall be greater
in amount than the purchase price of the
products in respect of which damages are
claimed; and failure to give notice of claim
within ninety (90) days (or such other period
as may be provided in the Special Conditions
of Sale referred to in Condition 14 hereof)
from date of delivery, or the date fixed
for delivery (in the case of non-delivery),
shall constitute a waiver by Buyer of all
claims in respect of such products. No charge
or expense incident to any claims will be
allowed unless approved by an authorized
representative of Seller. Products shall
not be returned to Seller without Seller’s
prior permission, and then only in the manner
prescribed by Seller. The remedy hereby
provided shall be the exclusive and sole
remedy of buyer, and in no event shall either
party be liable for special, indirect or
consequential damages, whether or not caused
by or resulting from the negligence of such
party. |
| 3. |
Seller warrants that
the use or sale of the products (or materials)
delivered hereunder will not infringe the
claims of any United States patent covering
the products themselves; but does not warrant
against infringement by reason of the use
thereof in combination with other products
or in the operation of any process. |
| 4. |
Seller warrants that all
products (or materials) delivered hereunder
were produced in compliance with the requirements
of the Fair Labor Standards Act of 1938,
as amended. |
| 5. |
No liability shall result
from delay in performance or non-performance,
directly or indirectly caused by circumstances
beyond the control of the party affected,
including, but not limited to, Act of God,
fire, explosion, flood, war, act of or authorized
by any Government, accident, labor trouble
or shortage, inability to obtain material,
equipment or transportation. Quantities
so affected may be eliminated from the agreement
without liability, but the agreement shall
remain otherwise unaffected. Seller shall
have no obligation to purchase supplies
of the products (or materials) specified
herein to enable it to perform this agreement. |
| 6. |
It is further understood
and agreed between Buyer and Seller that
if this agreement covers products (or materials)
that must necessarily be manufactured especially
for Buyer and is suspended or terminated
for any reason, Buyer will take delivery
of and make payment for such products as
have been completed and such as are in process
on the date notice of suspension or termination
is received by Seller; provided, that if
Buyer for any reason cannot accept delivery
of such products, he will make payment therefore
as though deliver had been made and Seller
will store such products for Buyer’s
account and at Buyer’s expense. |
| 7. |
If for any reason Seller
is unable to supply the total demand for
products (or materials) specified herein,
Seller may distribute its available supply
among any or all purchasers, as well as
departments and divisions of Seller, on
such basis as it may deem fair and practical,
without liability for any failure of performance
which may result therefrom. |
| 8. |
If any Government actions
should place or continue limitations on
the price provided for in this agreement
such that it would be illegal or against
public or Government policy for Seller to
charge, assess or receive the full amount
of or to increase such prices as determined
by this agreement, then Seller shall have
the option (1) to continue to perform under
this agreement subject to such adjustments
in prices that Seller may deem necessary
to comply with such Government action, (2)
to revise this agreement, subject to Buyer’s
approval, in order to most nearly accomplish
the original intent of this agreement, or
(3) to terminate performance of the affected
portions of the agreement without liability
for any damages. |
| 9. |
At Buyer’s request,
Seller may furnish such technical assistance
and information as it has available with
respect to the use of the products (or materials)
covered by this agreement. Unless otherwise
agreed in writing, all such technical assistance
and information will be provided gratis,
and Buyer assumes sole responsibility for
results obtained in reliance thereon. |
| 10. |
Buyer acknowledges that it
has received and is familiar with Seller’s
labeling and literature concerning the products
(or materials) sold hereunder and will forward
such information to its employees who handle,
process or sell such products and customers
of such products, if any. |
| 11. |
The Buyer shall reimburse
the Seller for all taxes, excises or other
charges which the Seller may be required
to pay to any Government (National, State,
or Local) upon the sale, production or transportation
of the products sold hereunder. |
| 12. |
In the event Buyer fails
to fulfill Seller’s terms of payment,
or in case Seller shall have any doubt at
any time as to Buyer’s financial responsibility,
Seller may decline to make further deliveries
except upon receipt of cash or satisfactory
security. |
| 13. |
This agreement is not assignable
or transferable by either party, in whole
or in part, except with the prior written
consent of the other party. |
| 14. |
In addition to the Commercial
Terms and Conditions set forth herein, any
Special Conditions of Sale set forth in
the current price list (or attached hereto)
for the products (or materials) covered
by this agreement shall apply and are incorporated
by reference herein. |
| 15. |
This document contains all
of the terms and conditions with respect
to the sale and purchase of the products
(or materials) sold hereunder. These terms
and conditions supersede any of previous
date and no modification thereof shall be
binding on Seller unless separately contracted
in writing and agreed to by a duly authorized
representative of Seller. No modification
shall be affected by the acknowledgment
or acceptance of purchase order forms stipulating
different conditions. Unless Buyer shall
notify Seller in writing to the contrary
as soon as practicable after receipt of
this document by Buyer, acceptance of the
terms and conditions hereof by Buyer shall
be indicated and, in the absence of such
notification, the Buyer’s acceptance
of the products shall be equivalent to Buyer’s
assent to the terms and conditions hereof.
Waiver of the either party to any default
by the other hereunder shall not be deemed
a waiver by such party of any default by
the other which may thereafter occur. |
