Buyer agrees that there is no warranty by seller in fact or in law that the merchandise which is the subject of this sale is suitable for any particular use or purpose, or for any particular type, style, design or construction of clothing, and that suitability of the merchandise for the use contemplated by buyer is the sole responsibility of the buyer in all respects. Warranty of merchantability is limited only to merchandise sold as first quality, and to such warranties as may be contained on the face hereof. Seller shall not be liable for normal manufacturing or finishing defects nor for customary variations from quantities or specifications. The physical characteristics or qualities are not guaranteed unless and except to the extent specifically provided herein. We will not guarantee shade or fastness of color unless a sample shall have been submitted by us and approved by Buyer prior to first shipment and in any event we guarantee only that shade and fastness of color which correspond as nearly as commercially practicable to such sample, making due allowance for any variation in yarns. Seller shall not be responsible for normal variations in finish or shade. Seller makes no warranty on rubber or spandex thread used in any merchandise which is the subject of this sale and the attachment of metal parts to any such merchandise is the sole risk and responsibility of the Buyer.
Seller disclaims any warranty whatsoever, whether express or implied, with respect to the flammability of goods specified in this contract, and will be liable in no event unless said fabric shall be classified as dangerous under test procedures authorized by the Federal Flammable Fabrics Act.
SECONDS: On any order for goods manufactured, converted, finished, or applicable only, to the special requirements of the Buyer, Seller may, at its discretion, apply up to 10 percent seconds at the contract price less 10 percent.
Representatives of Seller or Seller’s Agent upon Buyer’s request may furnish technical advice with reference to the merchandise sold hereunder, if and to such extent as said representative has such advice conveniently available, but it is expressly agreed that there is no obligation to furnish any such advice and that if any advice or assistance is furnished it will be without charge and shall be given and accepted at Buyer’s risk. Neither the said representative nor Seller or Seller’s Agent shall be responsible or liable for the advice or assistance given or the results thereof.
All claims of whatever kind, nature or description are barred and waived unless made in writing by the Buyer to the Seller and Buyer shall be deemed to have accepted the merchandise and his right to cancel, reject or claim damages for breach of warranty or otherwise shall expire unless his written claim is received by the Seller (A) fifteen days after invoice date for shortages and for patent (apparent) defects, or defects visible under reasonable examination and (B) thirty days after invoice date for latent (not fairly visible or detectable under reasonable examination) defects. Notwithstanding the foregoing extensions of time within which Buyer may make written claim, the cutting (in the case of fabric) or the weaving or knitting (in the case of yarns), or the processing or in any manner changing the form of the merchandise after receipt by Buyer constitutes complete acceptance of the same and an absolute waiver of any claim for defect. If, within the extensions of the time herein noted and before the merchandise has been cut, woven or knitted or processed or changed in any manner Buyer notifies Seller in writing of a claimed defect, then Buyer shall, together with his notice of claim, offer Seller in writing prompt opportunity to examine the goods at no cost or charge to Seller. Failure to do so constitutes acceptance and waiver of all claims for defect. If Seller determines claim to be valid, he may replace defective merchandise within a reasonable time. If not so replaced, the limit of liability of Seller for defective merchandise shall be the difference in value on the contract date of delivery between the merchandise specified and the merchandise actually delivered and the limit of liability of Seller for late delivery or non-delivery shall be the difference, if any, between the contract price and the fair market price on the contract date of delivery of the merchandise to be delivered. Buyer shall not be entitled to damages for late delivery or non-delivery. In no event shall Buyer be entitled to claim against or receive from Seller any damages or any consequential, indirect and/or special damages of any nature for defective goods or late delivery or non-delivery or otherwise, and in no instance may damages include loss of profit or contemplated use or profit of any description.
In sales or merchandise designated on the face hereof as made subject to the provisions of Specification F.F., F.S., G. or P. of the Worth Street Rules, the express published provision of the designated Specification at the contract date shall govern the sale to the extent provided in such published provisions, with all other remaining terms and conditions of this contract to be binding upon the parties. Under any circumstances, no deductions may be made against a non-disputed invoice as an offset against another invoice which is in dispute unless a Credit Memo is received from the Seller.