The purchaser offers and agrees to purchase the goods described from "seller" on the following terms and conditions:
1. This offer is subject to approval and acceptance by the seller's authorized officers at seller's city and state. Such approval will cover materials and services specified in writing on this order, and no statement, promise, warranty or agreement made by any salesman, field representative or third party shall be binding upon the seller.
2. This offer is a firm offer. It will be held open and will not be revoked for 90 days.
3. This offer may be accepted by confirmation, by performance or the making of arrangements preparatory to performance, or in any other appropriate manner. The seller need not give the purchaser notice of acceptance. After acceptance this agreement cannot be modified, rescinded, waived or changed, except by a writing signed by the party to be bound thereby. Any request for cancellation must be submitted in writing to the seller and purchaser agrees to pay for any expenses incurred by seller prior to such request or cancellation.
4. The seller may ship the goods at any time convenient to the seller. In a single lot or in several lots. Subject to any shipping instructions set forth herein, the seller or its agent may pack and ship, select a carrier, make a transportation contract, and put the goods into the possession of a carrier, in any manner and on any terms the seller or its agent may see fit. The seller need not notify the buyer of any shipment.
5. This sale is made F.O.B. point of shipment. All goods are shipped at the purchaser's risk. The purchaser shall duly pay for and the seller shall have no liability for goods damaged, destroyed or lost in transit.
6. The seller reserves a security interest in the goods as security for the payment of the price and all other obligations of shipping the purchaser here under.
7. LIMITED WARRANTY: The seller warrants that the goods will at the time of delivery conform to the description on the face side hereof and that the purchaser will acquire good title to the goods. THE SELLER MAKES NO OTHER AFFIRMATIONS, PROMISES OR WARRANTIES, EXPRESS OR IMPLIED, as to the goods or the condition, quality or characteristics of the goods, or as to any other matter whatsoever. THE SELLER SPECIFICALLY DISCLAIMS AND EXCLUDES ANY WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
8. In the event of any breach of warranty made in paragraph 8, the seller will, upon reasonable notice from the purchaser, either replace the affected goods with conforming goods or refund the purchase price paid by the purchaser to the seller for the affected goods, at the sellers option. The foregoing remedies shall constitute the SOLE AND EXCLUSIVE REMEDY for any breach of warranty. This exclusive remedy shall not be deemed to have failed of its essential purpose under any circumstances. THE SELLER SHALL NOT BE LIABLE UNDER THIS AGREEMENT, OR WITH RESPECT TO THE SALE CONTEMPLATED HEREBY FOR INCIDENTAL DAMAGES, FOR CONSEQUENTIAL DAMAGES, FOR BREACH OF WARRANTY DAMAGES, OR FOR ANY OTHER DAMAGES OF ANY KIND.
9. No goods may be returned by the purchaser to the seller without the seller's prior written consent and/or seller-issued Return Authorization Number, and then only to the extent of the quantity and under the terms and conditions set forth in writing.
10. The purchaser shall pay the purchase price set forth on the face side hereof to the seller at time of order unless the due date is otherwise stated on the face of the invoice. If the purchaser fails to pay the purchase price or any part thereof, when due, the purchaser will further pay a service charge (I) at the rate of 18% per annum applied to the unpaid balance of the purchase price, if the purchaser is a corporation and (II) at the highest lawful contract rate permitted under the laws of the State of seller, applied to the unpaid balance of the purchase price, in all other cases. In addition, the purchaser agrees to pay a 25% collection fee should it become necessary for the seller to engage outside professional services in the collection of this obligation due to the purchaser's failure to duly and punctually pay the price due and/or reasonable attorney's fees with court costs.
11. The seller shall not be liable for any breach, default or delay caused by inability to obtain transportation, inability to obtain materials, delay in transit from a manufacturer or supplier or failure to make delivery by a manufacturer or supplier, shortage of fuel, failure of sources of supplies, strike, lock out, labor disputes, fire, flood, accident, invasion, war, revolution, embargo, restraint or demand of the United States or any other government, failure of a purchaser to perform its obligations with respect to this transaction, or any other cause or contingency beyond the control of the seller.
12. The purchaser will indemnify the seller, and hold the seller harmless from and against all claims, demands, liabilities and expenses, including (without limitation) claims of infringement of patent, trademark, copyright or other proprietary right, invasion of privacy, or any other matter, arising from the use of any picture, plate, advertising copy, specifications or material furnished to the seller by the purchaser or prepared by seller at purchaser's request including reasonable attorney's fees with court costs.
13. The purchaser will pay all sales, use and other taxes and impositions, except net income taxes, due or arising in connection with the sale or applicable to the goods after delivery.
14. If the purchaser shall fail to pay any indebtedness, owed to the seller, shall become insolvent, shall cease to carry on business substantially as now conducted, shall suffer the appointment of a receiver of the commencement of any proceeding under any bankruptcy or insolvency law, or if the seller shall at any time in good faith believe that any such event has occurred or that, for any other reason, the prospect of due and punctual payment of the purchaser's obligations are impaired, then the seller may immediately suspend its performance under the agreement and may demand immediate payment of all amounts due or to become due to the seller from the purchaser with respect to this transaction.
15. The purchaser acknowledges that the seller's representative has no authority to agree or accept any advances, loans, or payments.
16. This agreement sets forth the entire agreement of the parties with respect to the subject matter covered. It supersedes all prior offers and agreements. The provisions of this agreement shall govern and displace any inconsistent provisions which may be set forth in any purchase order form or other document heretofore submitted to the seller by the purchaser. The seller specifically objects to the inclusion of any terms or conditions proposed by the purchaser which are different from or additional to the terms and conditions set forth herein.