TERMS AND CONDITIONS OF SALE
If an order is accepted and Buyer's order form is used for the purpose, it is expressly understood and agreed that the terms and conditions herein set forth shall prevail insofar as the same may in any way conflict with the terms and conditions set forth in such order form, and the issuance of such order by Buyer shall be deemed to note Buyer's assent to the foregoing.
Government Contracts. If a government contract number is shown on the reverse side, clauses contained in the ASPR, and which the government makes mandatory for a contractor under a government contract to include in its subcontracts hereunder, will apply to this order.
Rejection. If Buyer wrongfully rejects the goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole contract, then also with respect to the whole undelivered balance, Seller may withhold delivery of such goods, stop delivery of such goods in possession of a carrier or other bailee, and recover damages for non-acceptance or repudiation. The measure of damages shall be the difference between the market price at the time and place for tender and the unpaid contract price, together with any incidental damages but less expenses saved in consequence of Buyer's breach.
Defects. All materials made by Seller are to be inspected before shipment, and should any of such materials prove defective due to faults in manufacture, or fail to meet the written specifications accepted by Seller, Buyer shall not return the goods, but shall notify Seller immediately, stating full particulars in support of their claim, and Seller will either replace goods upon return of the defective or unsatisfactory material or adjust the matter fairly and promptly, but under no circumstances shall Seller be liable for incidental, consequential or other damages, losses, or expenses in connection with or by reason of the use of or inability to use materials purchased for any purpose.
Claims for defective merchandise, shortages, delays, or failures in shipment or delivery, or for any other cause, shall be deemed waived and released by Buyer, unless made in writing within ten days after arrival of the merchandise. Buyer expressly waives any rights Buyer may have to revoke acceptance after such ten-day period.
Returned Goods. Materials may be returned to Seller with prior written consent. Of course, all returned goods must be in unused and resalable condition and will be credited less a 15% re-handling charge and all transportation costs. In the event we cannot accept the material, we will make every effort to have it returned to the manufacturer.
Warranties. Each manufacturer of the goods subject to this contract is responsible for all warranties as represented in such manufacturer's catalogs. For all purposes, Seller shall be considered a product distributor as defined under the appropriate state or federal statute to which this contract may be subject.
The Buyer acknowledges that they are not relying on the Seller's skill or judgment to select or furnish goods suitable for any particular purpose and that there are no warranties which extend beyond the description on the face hereof. Seller shall in no event be liable for any breach of warranty in an amount exceeding the purchase price of the goods.
The manufacturer's warranty and the obligations and liabilities of manufacturer hereunder are exclusive and in lieu of and Buyer hereby waives all other remedies, warranties, guaranties or liabilities, express or implied, arising by law or otherwise (including without limitation any obligations of the Seller with respect to fitness for a particular purpose, merchantability and incidental and consequential damages) except when occasioned by Seller's gross negligence. This warranty shall not be extended, altered or varied except by a written instrument signed by Seller and Buyer.
Without limiting the generality of the foregoing, this exclusion from liability embraces the Buyer's expenses for downtime or for making up downtime, damages for which the Buyer may be liable to other persons, damages to property, and injury to or death of any persons. Seller neither assumes nor authorizes any person to assume for it any liability in connection with the sale or use of products sold by Seller, and there are no oral agreements or warranties collateral to or affecting this agreement.
The maximum measure of Buyer's damages under this contract shall be the difference at the time and place of acceptance between the value of the goods accepted and the value they would have had if they had been as warranted. No claim shall be made for proximate damages of a different amount, nor may any recovery be had for incidental or consequential damages.
Acceptance. Acceptance of this offer is expressly limited to the exact terms contained herein and any attempt to alter or omit any of such terms shall be deemed a rejection and a counteroffer.
Miscellaneous Provisions. Buyer acknowledges that it is a "merchant" as the word is used pursuant to the Uniform Commercial Code and that the goods purchased from Seller are intended to be used in Buyer's business and will not be used in personal, consumer or household use by the Buyer. This writing is intended by the parties as a final expression of their agreement and as a complete and exclusive statement of the terms thereof. No course or prior dealings between the parties shall be relevant to supplement or explain any of its terms. The validity, construction and performance of this agreement shall be governed by the laws of the state or federal statute to which this contract may be subject.