51
(iii)
By purchasing any Product, PURCHASER acknowledges and agrees that COMPANY has made no
representations or warranties, express or implied, to or for the benefit of PURCHASER which
contradict any of the foregoing.
4.
PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND LIMITATIONS ON LIABILITY
.
a)
Sole and Exclusive Remedy
. All warranty claims must be made by PURCHASER within the Warranty Period
for the applicable Product, and are subject to verification by COMPANY. In the event of any breach of
warranty, COMPANY will, at COMPANY’s option and expense, repair or replac
e the Product. This remedy
is intended to be the sole and exclusive remedy of the buyer under this contract. Should this Sole and
Exclusive Remedy fail of its essential purpose, however, COMPANY will return the purchase price of the
Product to PURCHASER minus the shipping costs for return of the Product to COMPANY. PURCHASER and
COMPANY further agree that, regardless of the failure of the Sole and Exclusive Remedy, COMPANY will
not be liable for any consequential damages of any kind or nature whatsoever, including but not limited
to the loss of grapes, or dissatisfaction with the quality of wine produced using any of the Products.
b)
Limitations on Liability
. IN NO EVENT SHALL COMPANY OR ITS PRINCIPALS, OFFICERS, EMPLOYEES, OR
REPRESENTATIVES (“COMPANY’S RELATED PERSONS”) BE LIABLE TO PURCHASER OR ANY OTHER PERSON
FOR ANY LOST PROFITS, LOST BUSINESS OPPORTUNITY, LOSS OF PRODUCT OR PRODUCTION, LOSS OF
GOOD WILL, OR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGE
INCURRED BY PURCHASER ARISING
OUT OF OR RELATED TO THIS AGREEMENT OR TO PURCHASER’S USE
OR MISUSE OF, OR INABILITY TO USE, ANY PRODUCT. THESE LIMITATIONS SHALL APPLY REGARDLESS OF
WHETHER COMPANY OR ITS RELATED PERSONS WERE ADVISED, KNEW, OR SHOULD HAVE KNOWN OF
THE POSSIBILITY OF SUCH DAMAGE.
c)
Intention of the Parties to Exclude Consequential Damages.
The Parties intend the exclusion of
consequential damages in Sections 4.a and 4.b above as independent agreements apart from the Sole and
Exclusive Remedy provided herein.
5.
ASSUMPTION OF RISK and RELEASE AND WAIVER
.
a)
Assumption of Risk
. PURCHASER acknowledges that the Products are currently experimental in nature
and assumes any and all risks and liabilities associated with the use or misuse of, or inability to use, any of
the Products, whether or not such risks are now known to PURCHASER.
b)
Release and Waiver
. In consideration of being permitted to purchase any of the Products, PURCHASER,
on behalf of him/herself and his/her personal representatives, guardians, heirs, successors, assigns, and
a
ny other person claiming through PURCHASER (“PURCHASER’s Related Persons”), hereby releases,
waives, and discharges COMPANY and COMPANY’s Related Persons from any and all claims, demands,
losses, expenses, and damages of any kind or nature whatsoever, and covenants not to sue COMPANY or
COMPANY’s Related Persons in connection therewith.
c)
Indemnification
. PURCHASER, on behalf of him/herself and PURCHASER’s Related Persons shall and
hereby does indemnify and hold harmless COMPANY and COMPANY’s Related Persons
from and against
any and all claims, demands, losses, expenses, and damages of any kind or nature whatsoever (i) resulting
from or arising out of the use, misuse or inability to use any of the Products, or (ii) resulting from any
claim, demand, lawsuit, or
action by PURCHASER or PURCHASER’s Related Persons that would constitute a
breach of any obligation, covenant or promise by PURCHASER in this Agreement.
6.
Non-Applicability of United Nations Convention on Contracts for the International Sale of Goods
. The Parties
hereby agree that the United Nations Convention on Contracts for the International Sale of Goods shall not
apply to this Agreement.
7.
Governing Law and Exclusive Venue
. Any and all matters of dispute between the Parties, whether arising out
of or related to this Agreement or from alleged extra-contractual dealings, interactions, or facts prior to or
subsequent to the purchase of any Product, including, without limitation, claims for fraud, misrepresentation,
negligence, or any other alleged tort or vio
lation of contract (collectively, “Claims”), shall be governed by and
construed, interpreted and resolved in accordance with the laws of the
State of New Jersey
, regardless of the
