Terms & Conditions
1. Acceptance. This quotation is expressly limited to and made conditional upon the terms and conditions contained herein. Any additional terms and conditions from those contained herein which are not separately agreed to in writing by Seller (except additional provisions specifying quantity, character of the products ordered and in shipping instructions are hereby objected to and shall be of no effect. Objection to any terms and conditions contained herein shall be deemed to have been waived if written notice of such objection is not received by Seller within ten (10) days of the date of this acknowledgment. Buyer will in any event be deemed to have assented to all terms and conditions contained herein if any part of the products described herein is accepted. Notwithstanding anything to the contrary contained herein, Seller’s acceptance is at all times subject to future availability of the products covered by each order.
2. End Use. Determination of the suitability of the products described on the face hereof for the use contemplated by Buyer or Buyer’s customers is the sole responsibility of Buyer or Buyer’s customers, whichever the case may be, and Seller shall have no responsibility in connection therewith. Buyer assumes all risk and liability for loss, damage, or injury to property of Buyer or others, and injury to third persons or personnel of Buyer, arising out of the use or possession of the products furnished hereunder.
3. Limited Warranty. (a) Seller warrants only that the products supplied hereunder shall meet and conform to the descriptions or specification stated or referred to herein for such material and not to any other description or specification unless the same is submitted in writing by Buyer and agreed to in writing by Seller; (b) the foregoing warranty is in lieu of all other written, or unwritten, express or implied, warranties, and Seller hereby disclaims any other express warranties and all implied warranties as to the quality of any goods, including implied warranties of merchantability and/or fitness for a particular purpose, supplied hereunder; (c) Buyer shall notify Seller promptly in writing of any claim of breach of warranty and shall provide Seller with the opportunity to inspect and verify each product claimed to be defective.
4. Buyer’s Remedies, Notice and Limitations. Buyer’s exclusive remedy and Seller’s sole liability hereunder is expressly limited to (a) replacement of the products shown to be other than as warranted, or (b) refund of the purchase price to the original Buyer, at Seller’s option. Buyer shall have no right to cover by procuring substitute products. In no event shall Seller be liable for any labor claims or special, indirect, incidental or consequential damages, lost profits, or for any claim or demand against Buyer by any other party, whether based upon lost goodwill, lost resale profits, work-stoppage, impairment of other goods or otherwise and whether arising out of or under breach of any warranty, express or implied, breach of contract, negligence, or otherwise except only in .the case of personal injury where applicable law requires such liability. Seller’s liability for damages under this contract shall in no event exceed the purchase price. Such refund or replacement under this contract is conditional on Buyer giving Seller written notice with thirty (30) days from the date of shipment by Seller that such products are other than as warranted. Failure by Buyer to give such notice within the thirty (30) days’ period shall constitute an irrevocable acceptance of the products and an admission they fully comply with all terms, conditions, warranties, and specifications of this contract. Any action concerning this contract shall be brought within one (1) year after the cause of action has accrued.
5. 5; Changes and Terminations for Convenience. Modifications other than as set forth in this contract may only be made in writing signed by both parties. If Buyer desires to terminate this contract, Buyer may do so only after accepting delivery of the quantity previously scheduled for the following 6 week period. Such quantities shall be calculated, based upon maximum quantities requested during the previous 48 day period. Buyer shall obtain approval from Seller prior to implementation of a quantity scheduled.
6. Validity of Contract. If any provisions of this contract shall be held to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7. Entire· Contract and Headings. The above terms and conditions represent the entire contract between Seller and Buyer with respect to the sale of products supplied hereunder and supersedes all proposals, oral or written, and all other communications between the parties relating to the subject matter of this contract. Headings to paragraphs have been included for convenience only and shall not affect the interpretation or construction of this contract.
8. Governing Law. The above terms and conditions of acceptance shall be governed by and construed and enforced in accordance with the laws of the State of California.