1. Complete Agreement

The terms and provisions of Barden's Order Acknowledgement form constitute the complete and entire agreement between the parties.  NO REPRESENTATIONS, WARRANTIES OR MODIFICATIONS OF THIS AGREEMENT SHALL BE BINDING ON SELLER UNLESS IN WRITING AND SIGNED BY ITS DULY AUTHORIZED OFFICER(S).  BUYER AGREES THAT THIS PURCHASE IS NOT MADE IN RELIANCE UPON ANY REPRESENTATIONS OR WARRANTIES EXCEPT THOSE HEREIN CONTAINED.  Any different terms or conditions, or any qualifications entered by Buyer upon the form of receipt for delivery of goods shall not be deemed a waiver of anything contained herein or a modification of any of the terms of this contract; such receipt shall however be evidence of delivery and acceptance of such goods pursuant to the terms of this contract. 

2. Shipping

Shipments will be F.O.B.: Sellers factory.  Unless definite shipping instructions accompany the order, shipments will be routed at the discretion of Seller’s traffic department.  Risk of loss shall pass to Buyer upon delivery of goods to Buyer or Buyer’s agent, whichever occurs first.  All carriers shall be deemed agents of Buyer.  Buyer alone shall bear the risk of any loss, deterioration or damage to the goods upon delivery to Buyer or Buyer’s agent.  Shipping dates, where stated, are approximate and not guaranteed.  Seller shall not be liable for any non-delivery or delay in delivering any of the goods hereunder if such non-delivery or delay shall be due to any causes beyond the reasonable control of Seller. 

3. Installments

Each shipment shall be treated as a separate and distinct contract, paid for in accordance with the terms hereof.  Upon refusal of Buyer to accept any installment or to pay for any installment in accordance with terms of the invoice of this contract, Seller may, at its option, treat such refusal or failure to pay as a breach of the entire contract.

4. Changes in Prices

Once an order is placed, Seller may increase the price of undelivered portions of orders by giving Buyer thirty (30) days written notice of such increase and unless Buyer shall within such period notify the Seller in writing that it does not consent, the increased price shall be paid on all goods shipped after such 30-day period.  IF Buyer shall notify Seller in writing of its dissent, Seller shall have the right, upon written notice to Buyer, to cancel this contract and any related purchase orders without any liability whatsoever to Buyer.

5. Payment

Payments shall be made in funds bankable at par at any place of collection designated by Seller and are due net 30 days after the date of the invoice.  Subject to any legal limitation, a late fee on overdue payments shall be paid at a rate per annum equal to two (2%) percent above the rate for prime commercial loans of 90-day maturities as in effect at the time such payments shall become overdue and shall be computed monthly from the date of the invoice until the date payment is received.

6. Shortages and Defects

Buyer agrees that delivery of goods not in accordance with this contract or defective in quality shall entitle Buyer only to refuse to accept such nonconforming goods.  Seller shall not be liable for any shortages in shipment unless Buyer shall make a written claim to Seller within ten (10) days after receipt by Buyer of such nonconforming shipment, which written claim shall be accompanied by Sellers packing list.  Orders will be considered complete upon shipment of goods within 10%+/- of the total quantity ordered for such shipment.  Buyer’s sole remedy for shortages in shipments shall be to require seller to make up the shortage within a reasonable period after Seller’s receipt of the notice described above.

If Buyer claims goods are not in accordance with this contract, they must be properly and promptly offered to Seller for examination, and if Buyer fails to make such goods available for examination, Buyer shall not be entitled to any allowance or claim as to such goods.  No returns will be accepted without Seller’s prior written authorization. Claims of any kind or nature are specifically barred unless made in writing by registered mail within thirty (30) days after receipt of the nonconforming goods.  Seller may, within sixty (60) days after receipt of such notice from Buyer, remedy any claimed defect in the goods, replace any goods which are not in accordance with this contract or refund the price thereof, and, in such event, no other claim may be made by the Buyer. The liability of the Seller, if any, for non-delivery shall be exclusively limited to the difference, if any, between the contract price and the fair market price on the contract date of delivery of the goods to be delivered.  SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM THE POSSESSION OR USE OF GOODS BY THE BUYER OR ITS AGENT, AND SHALL NOT IN ANY EVENT BE LIABLE UNDER THIS CONTRACT FOR CONSEQUENTIAL, SPECIAL OR INCIDENTAL DAMAGES. 

7. Buyer's Default

Notwithstanding anything to the contrary contained herein, if Buyer fails to take delivery or defaults in any provision of this or any other contract with Seller or if Buyer has manifested an intention not to perform in accordance with the provisions hereof, all goods contracted for, finished or unfinished, and appropriated to the contract shall, at Sellers option, be billed at the contract date of delivery at the contract price and be payable according to the terms and conditions thereof, and the goods shall be held for Buyer’s account and risk, or Seller may cancel this and any other contract with Buyer without further liability to Buyer, all in addition to any other remedies provided to Seller by law or in this contract.  In case Buyer shall fail to pay any amount due to Seller under this or any other contract, at the option of Seller, all amounts owing to Seller under this and all other contracts shall immediately become due and payable, irrespective of the terms of payment set forth in such contracts. 

8. Patents

Buyer shall, at its expense, defend Seller and hold it harmless from, and release and not make claim or suit against Seller because of , any suits, claims, losses, or other liability made against, or suffered by, Buyer arising from any claim of infringement of patent, copyright, trademark, or other proprietary right, or claim of unfair trade or of unfair competition, resulting from, or occasioned by, Buyers use, possession, sale or delivery of the goods sold to Buyer by Seller hereunder. 

9. Buyer's Insolvency

If Buyer shall become insolvent, call a meeting of its creditors, make an assignment for the benefit of its creditors, or is a bankruptcy, insolvency, reorganization or arrangement proceeding shall be commenced by or against Buyer or if a receiver shall be appointed for Buyer, Seller may cancel this and/or any other contracts with Buyer, without any liability or obligation of Seller and Buyer shall be considered in default hereunder.

10. Taxes

There shall be added to the purchase price and Buyer assumes and agrees to pay Seller as part of the purchase price hereof, any excise, franchise, sales or similar tax, including Connecticut State and Use tax, when applicable, or any other tax or assessment imposed by or under the authority of any federal, state or local law, rule regulation with respect to the goods sold hereunder or the manufacture of sale thereof.  Should Seller pay any such taxes or assessments, Buyer agrees that the same is without prejudice to Seller and Buyer agrees to reimburse Seller therefore upon demand. 

11. Cancellation

Orders are not subject to cancellation without Sellers prior written consent.

12. Non-Waiver of Terms

Failure of Seller to insist upon strict performance of any of the terms and conditions herein shall not be deemed a waiver of any rights or remedies that Seller shall have and shall not be deemed a waiver of any subsequent breach of terms and conditions hereof.  No waiver by Seller of any provision of this contract or of any breach or default by Buyer shall constitute a continuing waiver or a waiver of any other provision of this contract or any other breach or default by Buyer.

13. Construction of Contract

This contract shall be construed and interpreted in accordance with the laws of the State of Connecticut.  If any provision of this contract is or becomes at any time unenforceable or invalid, no other provision of this contract shall be affected thereby and the remaining provision of this contract shall continue in effect.  No local, general or trade custom or usage or course or prior dealings between the parties shall be relevant to supplement or explain any term used herein.