1. APPLICABLE CONDITIONS: The terms and conditions stated on Seller’s
invoice, quotation or confirmation of an order for the purchase of its
goods and the terms set forth below constitute the complete and exclusive
agreement of the parties concerning the sale of Seller’s goods and
shall also put Buyer on notice of the Terms and Conditions for future
sales. No other terms or conditions shall be part of or amend or modify
the agreement between Buyer and Seller concerning the goods or the order
for them unless contained in a formal written agreement signed by Seller
and Buyer, and any additional or different terms not agreed to in a writing
signed by Seller, whether contained in Buyer’s purchase order, acknowledgment,
or other document or communication concerning the goods or the order are
rejected and do not become part of the terms of sale.
2. DELIVERY/FORCE MAJEURE: Any delivery date for the goods acknowledged by Seller is a desired and not a promised date. Seller will make reasonable efforts to meet the delivery schedules but shall not be liable for failure to do so. Seller shall not be liable for any damage to or loss of the goods or any delay in or failure to deliver, service, repair or replace the goods arising from shortage of raw materials, failure of suppliers to make timely delivery, labor difficulties of any kind, fire, windstorm, flood, theft, war, embargoes, criminal or terrorist acts, governmental acts or rulings, loss or damage or delays in carriage, failure or disruption of communication facilities, acts of God, or any other circumstances reasonably beyond Seller's control. Goods stored at the request of Buyer or because Buyer refuses or delays shipment shall be at the risk and expense of Buyer..
3. WARRANTY: SELLER MAKES NO WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY SELLER AND EXCLUDED FROM THIS AGREEMENT. All claims for damages, shortages or other nonconformities of shipments must be reported to Seller in writing within ten days after discovery and in any event no later than the earlier of ten days after receipt of each shipment of the goods in the case of defects, damages or nonconformities which could be discovered by inspection of the goods and in all other cases, no later than thirty days after each shipment. Goods are shipped at Buyer’s risk and expense from Seller’s factory or warehouse. Under no circumstances shall Seller be liable for damages or losses for goods or parts thereof not properly handled or stored or subject to misuse, contamination, moisture, improper environment or damage after their delivery to a carrier.
4. BUYER’S ASSUMPTION OF RISKS: Buyer assumes all risk and liability for loss or damage resulting from the shipment, handling, use, or application of the goods and their containers. Seller assumes no obligation or liability for any technical or other advice given about the goods or the results to be obtained from them, whether alone or in combination with other materials. Buyer is not entitled to rely on Seller and must independently make its own evaluation of any advice given and the suitability, use, qualities and proper application of the goods ordered. Buyer agrees to familiarize itself with and keep informed (without reliance on Seller) of any hazards to persons and/or property involved in handling and use of and applications for the goods, their proper labeling, storage and packaging, and the containers in which the goods are shipped. Buyer shall advise and warn its employees, customers, independent contractors, and others who handle and use or can be expected to handle, use or otherwise come in contact with the goods of their hazards and proper use and storage.
5. INDEMNITY: Except where Seller is proven to be negligent, Buyer hereby assumes and agrees to defend, indemnify and hold Seller harmless from all liability arising from claims by Buyer and any third parties, including without limitation Buyer’s employees and customers, for damages and costs (including Seller’s attorneys fees) resulting from the use of the goods delivered hereunder whether or not they are used in combination with other articles or substances or are used in any manufacturing process.
6. LIMITATIONS OF SELLER’S LIABILITY: Seller shall not be liable for loss of profits, loss of production, or special, incidental, punitive, speculative or consequential damages, regardless of Seller’s negligence or fault and regardless of the type of claim or cause of action asserted. Seller’s liability and Buyer’s exclusive remedy for any cause of action arising out of the sale, use or non-delivery of the goods is expressly limited at Seller’s option to replacement of non-conforming goods Seller’s shipping point or payment not to exceed the purchase price of the goods for which damages are claimed.
7. GOVERNING LAW/WAIVER OF JURY TRIAL: This contract will be interpreted and the rights, obligations and liabilities of the parties determined in accordance with the laws of the State of Rhode Island. No cause of action for breach or other failure by Seller in respect of the goods or the order for them shall be brought after one year from the date of shipment, or if the goods are not shipped, more than one year after the date scheduled for their shipment. The parties knowingly and voluntarily waive trial by jury in any proceeding involving any dispute between them, including these terms, any order for Seller’s goods, or any claims pertaining to them.
8. PAYMENT: Payment shall be as provided on the face hereof. Payments not made within the terms and conditions indicated are subject to a delinquency charge of 1 and 1⁄2% of the amount due per month, compounded monthly. Seller may, at its option, demand return from Buyer of any goods for which payment has not been made. In the event of default, Buyer agrees to pay Seller’s reasonable expenses, including, but not limited to, reasonable attorney’s fees incurred by Seller for collection of any indebtedness created hereby.