WARRANTIES. Seller expressly represents and warrants that it has good and marketable title to the goods and materials covered by this Purchase Agreement and that such goods and materials will:
- conform to any and all specifications, instructions, samples and other descriptions, whether express of implied, furnished to Seller by Buyer, including, without limitation, any supplement(s) to this Purchase Agreement provided by Buyer;
- be fit and sufficient for the purpose(s) for which they were manufactured and sold, and if Seller knows or has reason to know of any other particular purpose(s) for which Buyer intends to use such goods or materials, the goods or materials will be fit for such particular purpose(s);
- be new and merchantable;
- be of good material and workmanship and free from defects, whether patent or latent; and
- be free and clear of all liens and encumbrances of any kind whatsoever.
Seller also represents and warrants that all services covered by this Purchase Agreement will conform to any and all specifications, instructions and other descriptions furnished to Seller by Buyer. These warranties shall survive any inspection, delivery, acceptance or payment by Buyer of any materials, goods or services subject to this Purchase Agreement. All warranties, express or implied, shall run to Buyer, its successors, and assigns and to all persons who purchase from Buyer or use such property, materials or parts, alone or in combination with other property, material or parts, and no limitation by Seller of its warranty liability shall be effective. Seller hereby extends any and all warranties received from its suppliers to Buyer. Upon the request of Buyer, Seller agrees promptly to replace or correct defects in any goods, materials or services not conforming to the foregoing warranties without expense to Buyer when so notified. In the event of Seller's failure to replace or correct such defective or nonconforming goods, materials or services, Buyer may, after reasonable notice to Seller, make such correction or replacement at Seller's expense and Seller hereby agrees to promptly reimburse Buyer for all expenses incurred by Buyer in making such correction or replacement. The foregoing warranties and remedies shall be in addition to any warranties and remedies of additional scope made or provided by Seller to Buyer or provided by law. The remedies herein reserved shall be cumulative and additional to any other or further remedies provided by law or equity. In addition to the foregoing, Seller shall indemnify and hold Buyer and its officers, directors, shareholders, agents, employees, successors, assigns, customers and users of its products harmless from and against any and all damages, claims, liabilities and expenses (including court costs and attorneys' fees and expenses) arising out of or relating to or resulting in any way from a breach of any warranty, whether express or implied, or from any act or omission of Seller, its officers, directors, shareholders, partners, agents, employees, subcontractors, successors and permitted assigns.
CANCELLATION. Buyer by written notice to Seller, without waiving any other legal rights it may have, reserves the right to cancel the whole or any part of this Purchase Agreement without charge or to postpone delivery of any of the goods or materials, or postpone performance of any services, covered by this Purchase Agreement if:
- Seller fails to make any delivery within the time specified in this Purchase Agreement;
- Seller fails to perform or breaches any of the terms of this Purchase Agreement or so fails to make progress as to endanger performance of this Purchase Agreement in accordance with its terms;
- Seller becomes insolvent or the subject of voluntary or involuntary bankruptcy proceedings or the subject of any proceedings under any law relating to bankruptcy or the relief of debtors or the appointment of a receiver or trustee for Seller or the execution by Seller of an assignment for the benefit of creditors, and any such proceeding, appointment or assignment is not vacated or nullified within sixty (60) days; or
- Goods or materials purchased are not in accordance with approved sample specifications, instructions or requirements or are defective in workmanship or quality, or not otherwise satisfactory to Buyer.
Buyer shall not be responsible for any costs incurred by Seller due to Buyer's cancellation hereunder in accordance with (a)-(d) above, including, but not limited to, Seller's costs for goods or materials not accepted by Buyer or goods or material in process by Seller. In the event of any such cancellation, Buyer, without prejudice to any other legal or equitable remedies available to it by law or agreement, shall have the right to:
- refuse to accept delivery of any and all goods and materials covered by this Purchase Agreement and to return such goods or materials to Seller at Seller's risk and expense;
- return to Seller any and all goods already delivered and accepted and to recover from Seller all payments made by Buyer for such returned goods;
- recover any payments made by Buyer to Seller for undelivered or returned goods or materials; and
- purchase goods or materials elsewhere and to charge Seller with any resultant losses, including, but not limited to, consequential and incidental damages.
In addition, Buyer may terminate all or part of this Purchase Agreement for its convenience and without cause upon written notice to Seller. In such event, Buyer shall pay to Seller the value of any goods or materials delivered and accepted by Buyer and/or services rendered by Seller to Buyer. Seller by written notice to Buyer shall have the right to cancel the whole or any part of this Purchase Agreement without charge if Buyer becomes insolvent or the subject of voluntary or involuntary bankruptcy proceedings or the subject of any proceedings under any law relating to bankruptcy or the relief of debtors or the appointment of a receiver or trustee for Buyer or the execution by Buyer of an assignment for the benefit of creditors, and any such proceeding, appointment or assignment is not vacated or nullified within sixty (60) days.