2. Purchasers
Representations, Warranties and Responsibilities to Warn.
(a) PURCHASER
REPRESENTS AND WARRANTS THAT IT UNDERSTANDS THE NATURE AND CHARACTERISTICS OF
EACH SURPLUS MATERIAL, IS AWARE THAT SURPLUS MATERIALS MAY BE, BEAR OR CONTAIN
HAZARDOUS MATERIALS AND IS FAMILIAR WITH ANY HEALTH, SAFETY AND/OR
ENVIRONMENTAL HAZARDS ARISING OUT OF OR RESULTING FROM THE POSSESSION, USE,
STORAGE, TRANSPORTATION, MAINTENANCE, HANDLING, TREATMENT AND DISPOSAL OF SUCH
MATERIALS OR SURPLUS MATERIAL.
(b) PURCHASER
REPRESENTS AND WARRANTS THAT IT IS ACCUSTOMED TO HANDLING ITEMS SIMILAR TO
SURPLUS MATERIAL AND TO HANDLING MATERIALS BEARING OR CONTAINING HAZARDOUS
MATERIALS AND THAT IT HAS THE NECESSARY EXPERTISE, EQUIPMENT AND FACILITIES TO
SAFELY AND LAWFULLY CONDUCT ALL OF PURCHASERS ACTIVITIES INVOLVING SURPLUS
MATERIALS, INCLUDING, TRANSPORTATION, HANDLING, STORAGE, DISPOSAL, TREATMENT
AND USE, AND WILL SO CONDUCT SUCH ACTIVITIES.
(c) PURCHASER
REPRESENTS AND WARRANTS THAT IT HAS READ AND UNDERSTANDS ALL INFORMATION
RELATING TO SURPLUS MATERIALS LISTED ABOVE WHICH IS CONTAINED IN ANY MATERIAL
SAFETY DATA SHEETS AND OTHER DOCUMENTS WHICH ARE ATTACHED HERETO AND MADE A
PART HEREOF. PURCHASER AGREES TO PROVIDE ALL INFORMATION SUPPLIED TO IT BY
SELLER WITH RESPECT TO ANY SURPLUS MATERIAL SOLD HEREUNDER TO ANY SUBSEQUENT
PURCHASERS OF SUCH SURPLUS MATERIAL, IF ANY SURPLUS MATERIALS TO WHICH THIS
AGREEMENT APPLIES ARE TO BE RELABELED BY PURCHASER, SUCH RELABEL MUST INCLUDE,
AS A MINIMUM, ALL THE SAFETY INFORMATION ON SELLERS LABEL AND BE LABELED IN
ACCORDANCE WITH ALL APPLICABLE LOCAL, STATE AND FEDERAL LAWS AND REGULATIONS.
(d) PURCHASER
REPRESENTS AND WARRANTS THAT SURPLUS MATERIALS ARE BEING PURCHASED FOR
COMMERCIAL USE ONLY AND WILL NOT BE RESOLD, DONATED OR OTHERWISE MADE AVAILABLE
TO INDIVIDUALS FOR PERSONAL USE.
(e) PURCHASER
AGREES TO WARN ALL PERSONS (INCLUDING, BUT NOT LIMITED, TO PURCHASERS
EMPLOYEES, SUBCONTRACTORS AND CUSTOMERS) WHO MAY BECOME EXPOSED TO SURPLUS
MATERIAL, OF THE HAZARDS ASSOCIATED THEREWITH (INCLUDING, BUT NOT LIMITED TO,
ANY HAZARDS INDICATED IN THE DOCUMENTS REFERENCED HEREIN OR ATTACHED HERETO),
AND PURCHASER AGREES TO TAKE ALL ACTION NECESSARY TO PROTECT SUCH PERSONS FROM
SAID HAZARDS.
3. Claims. Purchasers receipt, or receipt by Purchasers
agent or carrier, of Surplus Materials delivered hereunder shall be an
unqualified acceptance of, and a waiver by Purchaser of its rights to make any
claim with respect to, such Surplus Materials, unless Purchaser gives Seller
written notice of any claim within thirty (30) days of any such receipt. Purchaser
assumes all risks with respect to the use of Surplus Materials after delivery
by Seller to Purchaser or its contracted representative or its carrier. Title to, and risk of loss of, Surplus Materials delivered hereunder shall pass to Purchaser upon such delivery. No claim of any kind, whether or not as
to Surplus Materials delivered or for non-delivery of Surplus Materials, and
whether or not based on negligence or otherwise, shall be greater in amount
than the price of the claimed portion of the Surplus Materials plus any
transportation paid by Purchaser in respect of which such claim is made. In no
event shall Seller be liable for special, indirect, punitive or consequential
damages, howsoever arising and whether or not caused by or resulting from the
negligence of Seller.
4. Force Majeure. Neither Purchaser nor Seller shall
be liable for its failure to perform hereunder if said performance is made
impracticable due to any occurrence beyond its reasonable control, including
act of God, fires, floods, wars, sabotage, accidents, labor disputes or
shortages, governmental laws, ordinances, rules and regulations, whether valid
or invalid, and any other similar or different occurrence. In no event shall Seller
be obligated to purchase or manufacture/generate Surplus Materials or other
materials in order to enable it to deliver Surplus Materials to Purchaser.
5. Warranty. Purchaser understands and agrees
that Seller sells Surplus Materials AS IS and WHERE IS. THERE ARE NO
EXPRESS WARRANTIES OTHER THAN SELLERS WARRANTY OF TITLE. NO WARRANTIES,
INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE, SHALL BE IMPLIED.
6. Non-Waiver. Failure of Seller to exercise any
right under this Agreement upon one occasion shall not waive the right to
exercise the same on another occasion.
7. Compliance with Laws.
(a) All
permits, licenses and governmental approvals of whatever nature relating to the
purchase, possession, transportation, storage, processing, maintenance,
handling, labeling, use and/or disposition of Surplus Materials after delivery
to Purchaser shall be obtained by Purchaser, at its own expense, and Purchaser
hereby represents that it has obtained and will maintain all such permits,
licenses and governmental approvals and will furnish copies of same to Seller
upon request.
(b) Purchaser
shall comply with all laws and ordinances and all governmental orders, rules
and regulations relating in any way to its purchase, possession,
transportation, storage, processing, maintenance, handling, labeling, use
and/or disposition of Surplus Materials; to the labor, equipment and facilities
used in connection therewith; and to the protection of the public health, safety
or environment with respect to its transportation, handling, use or disposition
of Surplus Materials. Purchaser shall indemnify and hold harmless Seller
against all fines, penalties, assessments, damages and other liability of
whatever nature arising out of or resulting from Purchasers failure to comply
with this paragraph 7.
8. Indemnity. Purchaser shall indemnify, defend
and save harmless Seller, its affiliates, employees and agents, from and
against all claims, liabilities, losses, damages, fines, penalties and expense
of every character whatsoever (including, but not limited to, liability for
pollution, environmental damage or restoration, nuisance, bodily injury,
sickness and/or disease, including death, and loss of or damage to property),
which are caused by, or arise out of or relate in any way, directly or
indirectly, to Surplus Materials, after delivery to Purchaser of Surplus
Materials at Place of Delivery, whether such liability is based on contract,
WARRANTY, tort (including negligence and strict liability), statute, or
otherwise. Purchaser understands and intends that this indemnity provision
includes all such claims, damages, losses and expenses, including reasonable
attorneys fees, regardless of whose actions, omissions or negligence may have
caused the incident and includes incidents caused partly or wholly by any
failure, omission or negligence of Seller.
9.
Miscellaneous.
(a)
The
validity, interpretation and performance of this Agreement with respect to Surplus
Materials delivered or to be delivered hereunder shall be governed by the laws
of the state of New York. This Agreement contains all of the representations
and agreements of the parties hereto pertaining to the subject matter hereof,
and there are no oral understandings, representations or warranties affecting
it. This Agreement shall be binding upon and endure to the benefit of the
respective successors and assigns of each of the parties hereto, but any
assignment hereof by Purchaser without the prior written consent of Seller shall
be void. No modifications of this Agreement or waiver of the terms or
conditions hereof shall be binding upon Purchaser or Seller unless approved in
writing by an authorized representative, or shall be effected by the
acknowledgment or acceptance of purchase order forms containing other or
different terms or conditions whether or not signed by an authorized
representative of Purchaser or Seller. Neither course of performance nor course
of dealing nor usage of trade shall be used to interpret, construe, qualify,
explain or supplement any of the terms of this Agreement.
(b)
The
Additional Terms attached hereto, together with any Riders listed below, are
part of this Agreement as effectively as though they preceded the signatures of
Purchaser and Seller. In case of conflict between the terms of this Agreement
and any additional terms the terms in this Agreement shall prevail.
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