Buyer’s exclusive remedy under this Contract shall be for damages and Seller’s total liability for any and all losses or damages resulting from any cause whatsoever, including, without limitation, defects in or defective performance of the Product, or negligence, shall in no event exceed the purchase price of the Product in respect to which a claim is made, or at the election of Seller, the replacement of such Product, F.O.B. Seller’s factory. Seller shall not be liable for, and Buyer assumes responsibility for, all personal injury and property damage resulting from the possession, use, handling, operation or resale of the Product by Buyer, in no event shall Seller be liable for incidental or consequential damages, whether Buyer’s claim is in contract, negligence or otherwise. Any Product replacement required of Seller under this Contract may be undertaken after return of a portion or all of the Product to Seller’s shop at Buyer’s expense, should Seller deem it necessary.
Subject to the limitations of Paragraph 6 and except as otherwise provided herein, Seller warrants title to the Product sold hereunder that said
Product is not subject to any encumbrance and that it shall conform to Seller’s specifications therefor. Seller further warrants that the Product will be free from defects due to materials or workmanship until the expiration of the earlier of twelve (6) months from the date of initial receipt or eighteen (12) months from the date of shipment if, within thirty (30) days after Buyer’s discovery of any such defects. Buyer notifies Seller thereof in writing. Seller shall, at its option, promptly replace that portion of the Product found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period specified above shall be deemed an absolute and unconditional waiver of Buyer’s claim for such defects.
The shipment of Product hereunder will be made in accordance with Buyer’s detailed shipping instructions, which Buyer agrees to provide to Seller reasonably in advance of the estimated shipping date(s) set forth on the face hereof or, in the alternative, as has been mutually agreed to by the parties. Seller shall not be bound to tender delivery of any Product for which Buyer has not provided such shipping instructions, if the shipment is postponed or delayed by Buyer for any reason. Buyer agrees to reimburse Seller for any and all storage costs or other additional expenses resulting therefrom.
Seller agrees that Buyer or its designated representative, if Buyer wishes, may inspect the Product hereunder upon completion and again after packing provided that Buyer may not delay packing or shipment. The type of inspection shall be mutually agreed upon in advance by Buyer and Seller.
Should Buyer’s financial responsibility become unsatisfactory to Seller, advance payments or adequate security may be required by Seller for all deliveries hereunder, including Product theretofore delivered. Seller reserves the absolute right among other remedies, to terminate this Contract or suspend further performance hereunder in the event Buyer fails to fully comply with the terms and conditions of this Contract (including failure to pay for any one shipment when same becomes due), or if at any time Buyer becomes bankrupt or insolvent, or if Buyer fails to promptly provide the cash payments or adequate security as required above. In the event of such a termination, Seller shall be entitled, upon demand, to indemnification or all costs and expenses already incurred or commitments made by Seller in its performance hereunder, plus reasonable amounts for overhead and profit. In the event Buyer fails to pay Seller as due, and Seller must seek the help of an attorney to collect such sums as are due, Buyer agrees to pay the costs of collection including a reasonable attorneys’ fee.
Deliveries may be suspended by either party in the event of Act of God, war, riot, fire, explosion, accident, flood, sabotage, inability to obtain fuel, power, raw materials, labor, containers, or manufacturing or transportation facilities, governmental laws, regulations, orders or action, breakage or failure of manufacturing machinery or apparatus, or any other event beyond the reasonable control of Seller.