1. The terms and conditions set forth herein shall constitute the entire agreement between ResMart LLC (sometimes referred to as “Seller”) and Buyer and supercede all other agreements and understandings, whether written or oral, between the parties with respect to the subject matter hereof. Acceptance by ResMart LLC of Buyer’s offer shall not alter, vary, or add to the terms and conditions set forth herein, and any conflicting or additional terms and conditions in Buyer’s offer shall be deemed rejected, unless expressly agreed to by RESMART LLC in writing.
2. Orders will be invoiced at price in effect at the time of shipment, unless otherwise agreed by Seller.
3. Seller warrants the material to be free from defects in material and workmanship. Buyer must notify Seller in writing, claiming defects within 30 days of delivery or upon use of the goods whichever occurs first. Absence of such notice constitutes a waiver by Buyer on all claims for defect. Defective material may not be returned until inspected by Seller and upon specific instructions given by Seller. Material so returned will be replaced or credited at Seller’s option, but Seller will not be liable for loss, damage, or expense directly or indirectly arising from the use of the material or from any other cause, Seller’s liability being expressly limited to the replacement or credit for the value of the defective material. This Limited Warranty constitutes Seller’s sole warranty. SELLER MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. None of ResMart LLC materials have been determined by ResMart LLC, the U.S. Food and Drug Administration or any other governmental or scientific agency as safe to use in articles to be implanted in the human body or to be in contact with internal bodily fluids or tissues. Persons proposing to use ResMart LLC materials in such articles must rely on their own technical, legal and medical judgment without reliance on any representation by ResMart LLC. BUYER AGREES AND REPRESENTS THAT, UNLESS OTHERWISE EXPRESSLY AGREED TO IN WRITING BY RESMART LLC IN ACCORDANCE WITH THE RESMART LLC COMPANY POLICY REGARDING MEDICAL APPLICATIONS, THE MATERIALS PURCHASED HEREUNDER SHALL NOT BE USED IN ARTICLES TO BE IMPLANTED IN A HUMAN BODY, OR TO BE IN CONTACT WITH INTERNAL BODILY FLUIDS OR TISSUES. RESMART LLC MAKES NO WARRANTY, PROMISE OR REPRESENTATION WHATSOEVER WITH RESPECT TO ANY SUCH USE OF ITS MATERIALS, AND DISCLAIMS ALL LIABILITY FOR ANY LOSS OR DAMAGE IN ANY WAY ARISING OUT OF OR RELATING TO SUCH USE OF ITS MATERIALS. BUYER TAKES FULL RESPONSIBILITY FOR SUCH USE OF RESMART LLC MATERIALS, AND AGREES TO INDEMNIFY RESMART LLC WITH RESPECT TO ALL LIABILITY OF RESMART LLC RESULTING FROM OR RELATED TO SUCH USE OF RESMART LLC MATERIALS.
4. Seller shall not be liable for any loss or damage resulting from the handling or use of the material shipped, whether in manufacturing process or otherwise.
5. All sales are subject to and expressly limited to, the terms and conditions stated herein and all different or additional terms and conditions proposed by Buyer are expressly rejected. In the absence of written acceptance of these terms and conditions by Buyer, an acceptance of any material covered by the order shall constitute acceptance of these terms and conditions. Seller’s failure to object to provisions contained in customer’s orders, or other communications, shall not be deemed a waiver of the terms and conditions hereof.
6. Specifications applicable to goods sold hereunder shall be limited solely to those furnished by Seller or expressly agreed to in writing by Seller.
7. Title to materials and risk of damage or loss shall pass to Buyer FOB Seller’s dock upon delivery of goods by Seller to common carrier or other means of transportation. Seller will ship best way overland if Buyer’s order does not specify method of shipment. Terms shall be net 30 days, FOB Seller’s dock, subject to credit approval. Freight charges may be added to invoice or billed separately. Insurance is responsibility of Buyer, unless otherwise provided on face hereof, in which case Seller may add charges to invoice or bill separately. Each shipment hereunder shall constitute a separate sale. Failure to make one or more deliveries shall not constitute cause for cancellation hereof by Buyer. Seller reserves the right to determine where goods are manufactured and from where they are shipped.
8. Shipments in an amount 10% greater or 10% less than the ordered amount shall be accepted by Buyer as fulfillment of the purchase order, to be invoiced and paid based upon actual amount shipped.
9. If Seller does not agree to specific shipping date, Seller shall not be responsible for any delays in filling orders and shall not be liable for any loss or damages resulting from such delays. Whether or not Seller agrees to a specific shipping date, Seller shall not be liable for delay or failure to deliver due to wars, civil disturbances, strikes, accidents, fires, floods, storms, Acts of God, the inability to obtain necessary labor, energy, water, raw or finished materials or facilities, government priorities or allocations, delays in transportation or other causes beyond Seller’s control.
10. No order can be cancelled by Buyer without Seller’s written consent and only upon payment to Seller of all losses and expenses, including lost profits for the entire order. Seller may cancel this order if Buyer’s payments are in default on this or any other order, or Buyer breaches any other material provision hereunder, substantial changes occur in the availability of raw materials or components provided by third party vendors, events beyond Seller’s reasonable control make it impossible to assure shipment, or Seller has reasonable belief that Buyer is insolvent or will not pay in accordance with the terms herein.
11. All applicable state and local taxes including, but not limited to, use, occupation, privilege, excise and sales taxes, shall be in addition to the purchase price and shall be paid by Buyer to Seller, or in lieu thereof Buyer shall provide Seller with a tax exemption certificate acceptable to all applicable taxing authorities. This obligation shall survive Buyer’s payment.
12. Seller’s failure to insist in any one or more instances upon the performance of any of the terms or conditions herein, or to exercise any right hereunder, shall not be construed as a waiver of any other terms or conditions herein nor of the future performance of any term or condition of the future exercise of any such rights.
13. Clerical errors are subject to correction.
14. EXCEPT AS OTHERWISE PROVIDED HEREIN FOR A BREACH OF WARRANTY, SELLER’S LIABILITY HEREUNDER SHALL BE LIMITED TO SELLER’S INVOICED PRICE FOR THE GOODS. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES RESULTING FROM THE USE OF OR INABILITY TO USE THE GOODS COVERED HEREBY, WHETHER ARISING FROM BREACH OF WARRANTY, SELLER’S NEGLIGENCE OR STRICT LIABILITY, OR OTHERWISE. ANY ACTION HEREUNDER MUST BE COMMENCED WITHIN ONE YEAR OF ACCRUAL OF CAUSE OF ACTION. NO INFORMATION SUPPLIED BY RESMART LLC CONSTITUTES A WARRANTY REGARDING PRODUCT PERFORMANCE OR USE. ANY INFORMATION REGARDING PERFORMANCE OR USE IS ONLY OFFERED AS SUGGESTION FOR INVESTIGATION FOR USE, AND BUYER IS RESPONSIBLE FOR PERFORMING APPROPRIATE TESTING AND EVALUATION. PROPERTIES MAY BE MATERIALLY AFFECTED BY THE MOLDING TECHNIQUES APPLIED AND BY THE SIZE AND SHAPE OF THE ITEM MOLDED. NO ASSURANCE CAN BE IMPLIED THAT ALL MOLDED ARTICLES WILL HAVE THE SAME PROPERTIES AS THOSE LISTED.
15. This contract shall be governed by the substantive laws of the State of Texas.