WHEN PRODUCTS ARE RECEIVED BY
PURCHASER.
(C)
SUPPLIER HEREBY REPRESENTS AND WARRANTS TO
PURCHASER THAT ALL PRODUCTS SOLD PURSUANT TO THIS SUPPLY AGREEMENT WILL CONFORM
TO THE PRODUCT SPECIFICATIONS SET FORTH ON SCHEDULE 1 ATTACHED HERETO.
ALL
CLAIMS FOR NONCONFORMITY TO SUCH REPRESENTATION AND WARRANTY SHALL BE MADE IN
WRITING TO SUPPLIER WITHIN FORTY-FIVE (45) DAYS AFTER DELIVERY THEREOF.
SUPPLIER SHALL PROMPTLY REPLACE DEFECTIVE PRODUCTS WITH PRODUCT THAT MEETS THE
PRODUCT SPECIFICATIONS.
PURCHASER AGREES TO COOPERATE WITH SUPPLIER IN
CONNECTION WITH REMEDYING ANY NONCONFORMITY AND FOR THE RETURN ON SUPPLIER'S
INSTRUCTIONS AND AT SUPPLIER'S EXPENSE OF ANY DEFECTIVE PRODUCTS.
THE WARRANTY
SHALL BE VOIDED IF ANY OF THE PRODUCTS IS DAMAGED OR ALTERED BY PURCHASER BEFORE
CORRECTION OF ANY PRODUCT DEFECTS.
(D)
SUPPLIER MAKES NO OTHER WARRANTY, EXPRESS OR
IMPLIED, OF OR WITH RESPECT TO THE PRODUCTS OR THE DESIGN, MANUFACTURE OR
PERFORMANCE THEREOF, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE
HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED.
5.
FORCE MAJURE;
NO CONSEQUENTIAL DAMAGES
(A)
APART FROM ANY SPECIFIC PROVISIONS IN THIS
AGREEMENT EXCUSING ANY PARTY'S PERFORMANCE OR LIMITING ITS LIABILITY:
(I)
SUPPLIER SHALL BE EXCUSED FROM ANY
FAILURE OR DELAY IN PERFORMANCE TO THE EXTENT DIRECTLY OR INDIRECTLY CAUSED IN
WHOLE OR IN PART BY OR OTHERWISE RESULTING FROM UNAVAILABILITY OF RAW MATERIALS,
PARTS OR COMPONENTS FROM USUAL SOURCES OF SUPPLY, UNFORESEEN SHORTAGES OR
UNAVAILABILITY OF FUEL, TRANSPORTATION FAILURES OR DELAYS, LABOR DISPUTES OR
OTHER LABOR-RELATED PROBLEMS, GOVERNMENTAL ORDERS OR RESTRICTIONS, INABILITY TO
OBTAIN OR DELAY IN OBTAINING NECESSARY EQUIPMENT OR GOVERNMENTAL APPROVALS,
PERMITS, LICENSES OR ALLOCATIONS, FIRES, FLOODS, EARTHQUAKES OR OTHER ACTS OF
NATURE, ACCIDENTS, ACTS OF TERRORISM, CIVIL DISTURBANCE OR UNREST, WAR OR ANY
OTHER CIRCUMSTANCES OR EVENTS BEYOND ITS REASONABLE CONTROL, PROVIDED THAT
SUPPLIER GIVES PURCHASER WRITTEN NOTICE OF THE APPLICABLE SITUATION, ATTEMPTS TO
CONTINUE TO PERFORM IN PART TO THE EXTENT IT IS ABLE, AND MAKES REASONABLE
EFFORTS TO ALLEVIATE THE SITUATION SO AS TO RESUME FULL PERFORMANCE
3
HEREUNDER.
UNDER ANY SUCH CIRCUMSTANCES, THE AFFECTED PARTY SHALL HAVE THE
ADDITIONAL TIME NEEDED TO PERFORM UNDER THIS AGREEMENT, UNLESS PERFORMANCE
BECOMES IMPOSSIBLE, IN WHICH CASE THE NONPERFORMING PARTY AGREES TO SO NOTIFY
THE PARTY WHO IS TO RECEIVE THE PERFORMANCE AS SOON AS REASONABLY POSSIBLE.
IN
THE EVENT OF ANY SUCH CONDITIONS, SUPPLIER SHALL HAVE THE RIGHT TO ALLOCATE ITS
AVAILABLE SUPPLY AS DETERMINED IN SUPPLIER'S REASONABLE JUDGMENT AND PURCHASER
SHALL HAVE THE RIGHT TO PURCHASE PRODUCTS FROM OTHER SOURCES DURING THE
CONTINUATION OF SUCH CONDITIONS IF ITS REQUIREMENTS FOR PRODUCTS ARE NOT MET BY
SUPPLIER.
(II)
NEITHER SUPPLIER, ON THE ONE HAND, NOR
PURCHASER, ON THE OTHER HAND, SHALL BE LIABLE TO THE OTHER PARTY FOR ANY
INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SPECIAL DAMAGES IN CONNECTION WITH ANY
MATTERS RELATING DIRECTLY OR INDIRECTLY TO THIS AGREEMENT OR OTHERWISE RELATING
TO THE BUSINESS RELATIONSHIP OF THE PARTIES, EVEN THOUGH SUCH PARTY MAY HAVE
BEEN ADVISED BY THE OTHER PARTY OF THE POSSIBILITY OF SUCH DAMAGES.
(III)