DRY ICE CONTAINER AND RETURN. (a) The dry ice containers furnished to BUYER by CCPI (the “Containers”) are and shall remain the exclusive property of CCPI, BUYER shall promptly return all Containers to CCPI’s possession. CCPI shall charge BUYER for each Container delivered to BUYER on a per Container per day basis for all Containers that are not made available to CCPI’s delivery personnel or returned to CCPI by BUYER within twenty one (21) days of BUYER’s receipt. Such Container demurrage charge shall continue until the Container is returned to CCPI’s possession, or if lost, the date that BUYER pays CCPI for the Container’s replacement cost. If BUYER damages a Container, BUYER shall pay CCPI the cost incurred to place the Container in good repair, condition and working order. If CCPI determines that the Container was destroyed or damaged beyond repair, BUYER shall pay CCPI the full replacement cost for the Container.
INDEMNITY. BUYER SHALL INDEMNIFY AND DEFEND CCPI AND HOLD IT AND ITS OFFICERS, DIRECTORS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS (INCLUDING, BUT NOT LIMITED TO, ALL COSTS, EXPENSES, LOSSES, DAMAGES, LIABILITIES AND REASONABLE ATTORNEYS’ FEES) ARISING AS A RESULT OF OR OTHERWISE CONNECTED TO BUYER’S ACTS OR OMISSIONS RELATED TO THIS AGREEMENT OR BUYER’S USE OR POSSESSION OF THE PRODUCT.
REPRESENTATIONS AND WARRANTIES. CCPI WARRANTS ONLY THAT THE PRODUCT SOLD HEREUNDER SHALL COMPLY WITH ITS STANDARD COMMERCIAL SPECIFICATIONS. CCPI MAKES NO WARRANTIES, EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED HEREIN. CCPI DOES NOT WARRANT THAT THE PRODUCT SOLD UNDER THIS AGREEMENT IS FIT FOR ANY PARTICULAR PURPOSE OR IS MERCHANTABLE. BUYER’S SOLE AND EXCLUSIVE REMEDY FOR THE WARRANTIES IN THIS SECTION, REGARDLESS WHETHER SUCH FAILURE WAS CAUSED IN WHOLE OR IN PART BY ANY NEGLIGENT ACT OR OMISSIONOF CCPI, SHALL BE TO OBTAIN FROM CCPI A QUANTITY EQUAL TO THE QUANTITY OF NONCONFORMING PRODUCT. ANY CLAIM BY BUYER REGARDING THE PRODUCT SOLD OR DELIVERED (OR NOT DELIVERED) BY CCPI MUST BE MADE IN WRITING AND RECEIVED BY CCPI WITHIN TWO (2) BUSINESS DAYS AFTER THE DATE WH
LIMITATIONS OF LIABILITY. CCPI SHALL NOT BE LIABLE TO BUYER FOR CONSEQUENTIAL INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES UNDER ANY CIRCUMSTANCES INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL DAMAGES CAUSED BY OR ARISING OUT OF, IN WHOLE OR IN PART, ANY NEGLIGENT ACT OR OMISSION OR ANY STATUTORY, JUDICIAL OR OTHER TYPE OF STRICT LIABILITY. EXCEPT FOR BODILY INJURY OR DEATH CAUSED SOLELY AND DIRECTLY BY CCPI’S NEGLIGENCE OR WILLFUL MISCONDUCT, CCPI’S AGGREGATE LIABILITY FOR ANY DAMAGES HOWSOEVER OCCURRING, WHETHER BASED IN TORT, WARRANTY, STRICT LIABILITY, CONTRACT, NEGLIGENCE OR ANY OTHER THEORY OF LAW SHALL BE LIMITED TO AND NOT EXCEED THE PAYMENT, IF ANY, RECEIVED BY CCPI FOR THE QUANTITY OF PRODUCT, WHICH IS THE SUBJECT OF SUCH CLAIM OR DISPUTE, EVEN IF A TERM OF THE AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE. BUYER AGREES THAT THE FOREGOING EXCLUSION AND LIMITATION IS A REASONABLE ALLOCATION OF RISK.
BUYER acknowledges that there are hazards associated with the use and storage of the Product, and BUYER shall be responsible for warning, training and protecting (as appropriate) BUYER’S employees, customers and others who may be exposed to such hazards due to BUYER’S storage and use of Product. BUYER assumes all risk of loss and liability for damage, or injury to persons or to property of BUYER or others arising out of the delivery, storage and/or use of the Product. CCPI shall make available to BUYER the Safety Data Sheet for the Product (“SDS”) and, upon BUYER’s written request, provide the SDS to BUYER directly. BUYER is aware that OSHA regulations may require BUYER to develop and implement a written chemical hazard communications programs for BUYER’s employees with respect to the Product. BUYER understands that the Product must not be used without first consulting the SDS. BUYER shall provide all persons who might become exposed to the Product with copies of the SDS.
This Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the internal laws of the State of Texas, including its statutes of limitations and without regard to its choice of law principles. The parties agree to consent to the exclusive jurisdiction of the appropriate state or Federal courts located in Dallas County in the State of Texas and waive all objections to the personal jurisdiction of such courts. (d) Each Party affirmatively and forever waives its rights to request mediation, arbitration, or a trial by jury. If CCPI is the prevailing party in a legal action to enforce its rights under this Agreement, it shall be entitled to recover all of the costs and expenses incurred, including reasonable attorneys’ fees, court expenses, and collection costs.
CAUTION! DRY ICE (Solid Carbon Dioxide)
* DRY ICE IS EXTREMELY COLD (-109 F) (-78.5 C)
* DO NOT EAT OR PUT INTO DRINKS.
* USE HEAVY GLOVES WHEN HANDLING.
* KEEP OUT OF REACH OF CHILDREN.
* DO NOT SEAL IN GLASS OR OTHER CLOSED CONTAINERS.
* DO NOT ENTER AREAS WHERE USED OR STORED UNTIL PROPERLY VENTILATED.
* AVOID CONTACT WITH SKIN, EYES, MOUTH AND CLOTHING – MAY CAUSE COLD BURNS.
* ASPHYXIANT – LIBERATES HEAVY GAS WHICH MAY CAUSE SUFFOCATION.