Buyer acknowledges and agrees that it is purchasing the products subject to this purchase order on an “as is,” “where is” basis, and, accordingly, the Seller makes no representation or warranty of any nature or kind, and expressly disclaims any representation or warranty, whether express or implied, by operation of law or otherwise, for the use of its products, regarding suitability, merchantability or fitness for a particular purpose. In the event of a claimed defect in the product purchased, Seller, in its sole discretion, shall have the option of replacing, or refunding the purchase price paid for the product purchased. In no event shall Seller be liable for any loss of profit or any other damage or loss, including, but not limited to, special, incidental, punitive, consequential or other direct or indirect damages under any cause of action arising out of, or relating to, the sale or use of products by end-users or any third party or arising out of, or relating to, said products, including, without limitation, claims arising from any use or defects in the product. In addition to the foregoing, Seller shall not be responsible for any direct or indirect damages of any nature or kind under any cause of action arising out of, or relating to, any negligence in the use or installation by Buyer of all or any portion of the products subject to this purchase order on the part of Seller or any of its employees, agents, representatives, subcontractors, affiliates, successors and/or assigns. In all events, Seller’s maximum liability hereunder is expressly limited to the amount paid by purchaser and shall be purchaser’s sole and exclusive remedy at law or in equity.
THE PARTIES ACKNOWLEDGE THAT SELLER HAS SET ITS PRICES IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE PARTIES AGREE THAT THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED HEREIN WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
Prices are F.O.B. Seller’s distribution facility, unless otherwise specified in writing by Seller. Payment of Seller’s invoices shall be made in U.S. funds by check drawn on a U.S. bank. Checks received from or for the account of Buyer, regardless of writings, legends or notations on such checks, may be applied by Seller against amounts owing by Buyer at the sole discretion of Seller. In the event Seller instructs Buyer to make remittances directly to a specific financial institution, Buyer agrees to promptly comply with such instructions. Subject to Seller’s right to stoppage in transit, delivery of merchandise to a carrier under a commercial bill of lading shall constitute delivery to Buyer, and risk of loss, as between Buyer and Seller, shall thereupon pass to and is assumed by Buyer. Until such payment or shipment, Buyer shall have no right to sell, transfer, hypothecate, or otherwise dispose of said goods to any third party. Goods invoiced and held by Seller for any reason shall be at Buyer’s sole risk and expense.
Seller shall not be responsible for freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges except as may be specified by the Seller herein. If such charges are by the terms of the sale hereunder included in the price, any increase in rates becoming effective after the date hereof shall be for the cost and account of Buyer.
Seller shall not be responsible for delays in delivery or any failure to deliver due to causes beyond Seller’s reasonable control, including but not limited to acts of God, war, mobilization, civil commotion, riots, embargoes, domestic or foreign governmental regulations or orders, fires, floods, strikes, lockouts and other labor difficulties, or shortage of or inability to obtain shipping space, transportation and/or component or raw materials. Buyer’s acceptance of goods shall constitute a waiver of any claim for late deliveries, and goods shall not be returned nor allowance made after goods have been changed, installed, modified, used, or altered from their original condition.
This purchase order may not be modified or terminated orally. No claimed modification, termination or waiver or any of its provisions shall be valid unless and until such is in writing signed by Seller. No rights of Buyer hereunder or arising out of this purchase order may be assigned without the express written consent of Seller, which may be denied in Seller’s sole discretion.
The products subject to this purchase order are reclaimed after prior use, and therefore, all or some portion of such products may have minor knicks, scratches, and in general, wear and tear that would be generally consistent with a reclaimed product. For example, all or some portion of such products may have a broken corner, a hole no larger than ¼” in diameter, or a piece of material broken away from the side no larger than ½ to 3-1/2” (approx.)
For sales made within the Commonwealth of Massachusetts, a 6.25% sales tax shall apply for the product shipped or picked up, exclusive of delivery costs and shall be collected from Buyer by Seller. Sales where the Buyer accepts title to and possession of products outside of the Commonwealth of Massachusetts generally are exempt from the aforementioned sales tax, provided, however, the Buyer may be required to pay a use tax or another type of assessment to the state in which the delivery takes place. The Buyer is solely responsible to determine whether Buyer will be obligated to pay any use, sale or other tax or assessment under any applicable federal, state or local sale or use tax law arising from or as a result of the consummation of the transaction described on this purchase order.