Seller warrants (i) that the products supplied hereunder will conform to the promises and affirmations of fact made in Seller’s current technical literature, (ii) that it will convey good title to the products supplied hereunder free of all liens, and (iii) that the products supplied hereunder shall be of merchantable quality. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE.
Any claim for defect or variance in quality or shortage of quantity shall be made, and Seller shall be notified and given an opportunity to inspect, within five days after products reach their destination, or discovery of such defect or variance, whichever occurs later. Failure of Buyer to observe this provision or any action by Buyer, which impedes identification of an alleged defect, shall operate as a waiver of Buyer’s rights to make any such claim. In the event that it is determined that the warranties made by Seller hereunder have been breached, the liability of Seller and the remedies available to Buyer will be limited to the repair or replacement of the products supplied by Seller or the return of the purchase price of such products, as determined by Seller in its sole discretion. SELLER’S LIABILITY FOR ANY OTHER CLAIM RELATING TO THE PRODUCTS SUPPLIED HEREUNDER, WHETHER BASED ON BREACH OF CONTRACT, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS. IN ADDITION, SELLER SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS SAVINGS, BUSINESS INTERRUPTION OR LOSS OF ANTICIPATED BENEFITS, ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Delivery and shipment dates indicated on any of Seller’s documents are estimated but not guaranteed and Seller will not be liable for any delay in delivery. Unless otherwise consented to in writing by the Seller, all shipments are made F.O.B. shipping point, and any price which includes freight is quoted solely for the Buyer’s convenience and is subject to adjustment to the extent of any increase or decrease in transportation charges.
Unless otherwise waived in writing by the Seller, the Seller reserves the right to require payment in cash before shipment of any of the products. Risk of loss and title to the products shall pass to the Buyer upon delivery by the Seller to the carrier.
If the products supplied hereunder are governed by the Federal Food, Drug and Cosmetic Act (the “Act”), Seller guarantees that on the delivery date such products will not be: (i) adulterated or misbranded within the meaning of the Act, as amended; and (ii) an article which may not, under the provisions of the Act, be introduced into interstate commerce.
The Seller certifies that any products supplied hereunder were produced in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act of 1938 as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof.
Acceptance of the Buyer’s order by the Seller is expressly made conditional upon the Buyer’s acceptance of the conditions of sale as set forth herein, and the provisions contained herein are the exclusive terms and conditions of sale, notwithstanding receipt or acknowledgement of the Buyer’s purchase order containing additional or different terms, or conflicting oral representations by any agent of the Seller. Seller objects to any additional or different terms in Buyer’s purchase order or other documents and such terms will not be binding upon Seller unless specifically agreed to in writing. No modification, waiver, or discharge hereof shall bind the Seller unless contained in a writing signed by an authorized representative of the Seller.
The sale of products hereunder shall be governed by and construed in accordance with the laws of the State of Illinois (regardless of the laws that might be applicable under principles of conflicts of laws) as to all matters. Buyer and Seller irrevocably consent to the exclusive jurisdiction of the State and Federal courts having jurisdiction over Kane County, Illinois, and the courts to which an appeal therefrom may be taken, for any matter relating to the sale of products hereunder and waive any contention that any such court is an improper venue for such matters. The failure of Seller to insist upon performance of any provision or to exercise any right or privilege granted to Seller under these terms and conditions shall not be construed as waiving such provision or privilege. The invalidity of any terms or provisions hereof shall not affect the validity of the remaining terms or provisions, and these terms and conditions shall be construed as if such invalid terms or provisions had been omitted. Seller shall not be in default of its obligations hereunder to the extent that its performance is delayed or prevented by causes beyond its reasonable control, including but not limited to acts of God, civil disorders, acts of any civil or military authority, judicial action, terrorist acts, natural disasters, shortage of raw materials and strikes and other labor problems or shortages. Upon the occurrence of any such contingency, the Seller shall have the right to suspend or reduce deliveries during the continuation thereof and any such adjustment shall not be considered wholly or exclusively within Seller’s control.