Please pay from this Invoice. Amounts not paid by the due date shall bear interest at the rate of one and one-third percent (1.33%) per month or the highest permissible rate under applicable law, whichever is less, until paid in full. There is a minimum finance charge of Zero and 50/100 Dollars ($0.50) per month. All orders submitted are subject to acceptance by Blackburn in its sole and absolute discretion. Orders that are cancelled by customer may be subject to a cancellation fee. Customer is responsible for the payment of the Invoice and this responsibility shall not be released due to customer rejecting said order, refusing to accept shipment, “stop payment” on their check, changing the nature of the order, or otherwise. Customer shall promptly inspect all goods received, and shall notify Blackburn in writing of any alleged defects within seven (7) days following receipt.
The goods sold hereunder will be delivered within a reasonable time after receipt of Buyer’s purchase order. Delivery shall be made FOB Shipping Point. Blackburn shall not be liable for any delays, loss or damage in transit.
Blackburn represents and warrants that: (a) it has the power and authority to sell the goods referenced in this Invoice; and (b) its performance hereunder shall comply with all applicable laws and be performed in a good and workmanlike manner. Customer represents and warrants that: (a) it has the power and authority to enter into and perform its obligations hereunder; (b) it will comply with all applicable laws in connection with its use of the goods purchased; and (c) it shall be responsible for all damages, claims, losses and expenses arising as a result of Customer’s use of the products. Customer acknowledges that the goods serve as temporary marking devices with a short and limited lifespan, depending on use, weather and other environmental factors. Customer agrees to monitor its use of the goods to ensure they are acceptable and in good condition.
EXCEPT FOR THE EXPRESS WARRANTIES REFERENCED ABOVE, BLACKBURN DOES NOT MAKE ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER AND EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND PROPERNESS. BLACKBURN IS NOT RESPONSIBLE FOR ANY FAILURES, DEFICIENCIES OR OTHER DAMAGE RESULTING FROM THE GOODS SOLD HEREUNDER, UNLESS IT IS CAUSED BY BLACKBURN’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
ANY CLAIM OR CAUSE OF ACTION ARISING FROM OR OTHERWISE RELATED TO THE GOODS REFERENCED IN THIS INVOICE MUST BE COMMENCED WITHIN ONE (1) YEAR FROM THE TIME IT FIRST ACCRUED, OR WILL BE FOREVER BARRED.
NOTWITHSTANDING ANY TERM HEREIN TO THE CONTRARY, IN NO EVENT AND UNDER NO CIRCUMSTANCES SHALL BLACKBURN BE LIABLE TO THE CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE GOODS SOLD HEREUNDER, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, EVEN IF BLACKBURN IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. THE REPAIR OR REPLACEMENT OR REFUND, ALL AT BLACKBURN’S OPTION AND ELECTION, SHALL SERVE AS CUSTOMER’S EXCLUSIVE REMEDY. BLACKBURN’S AGGREGATE LIABILITY TO THE CUSTOMER SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY THE CUSTOMER TO BLACKBURN UNDER THIS INVOICE, REGARDLESS OF THE FORM OF THE ACTION AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED IN CONTRACT, STATUTE, TORT, OR OTHERWISE.
EACH PROVISION THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY, OR EXCLUSION OF DAMAGES IS PROVIDED TO ALLOCATE THE RISKS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY BLACKBURN AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THE REMEDIES HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
The relationship of Blackburn and the customer is that of independent contractors, and nothing shall be construed to give either party the power to act as an agent of the other.
Blackburn will not be liable for, or be considered to be in breach of or in default on account of any delay or failure to perform as a result of any cause or condition beyond Blackburn’s reasonable control.
This Invoice will be interpreted, construed, and enforced in all respects in accordance with the substantive laws of the State of Nebraska, without reference to its choice of law rules. The waiver by either party of any breach of any provision does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation will not be a waiver of such party’s right to demand strict compliance in the future.
This Invoice contains the entire agreement and understanding of the parties and supersedes all previous agreements and negotiations (whether written or oral) regarding the subject matter hereof. Customer disclaims reliance on any oral representation or course of dealing. No course of dealing or usage of trade shall be applicable. No terms that are additional to or different from the terms of this Invoice (including, without limitation, the terms of a purchase order of customer, or an acceptance, acknowledgement or other document issued by customer) shall be binding on either party hereto. This Invoice may not be altered, modified, or otherwise amended except by a written instrument executed by authorized representatives of Blackburn and customer.
All litigation involving any claim (whether legal or equitable and whether sounding in contract, tort or statute) which relates to or arises from the subject matter of this Invoice shall be brought exclusively in the appropriate state or federal courts located in Antelope County, Nebraska. EACH PARTY HEREBY WAIVES ITS RIGHT TO A JURY TRIAL FOR ALL CLAIMS, INCLUDING COUNTERCLAIMS AND TORT CLAIMS, WHICH RELATE TO THE SUBJECT MATTER OF THIS INVOICE.