Court File and Parties
COURT FILE NO.: CV-08-00365112
DATE: 20120518
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: IPEX Inc, Plaintiff / Responding Party
AND:
Lubrizol Advanced Materials Canada Inc., and Lubrizol Advanced Materials, Inc., Defendants / Moving Parties
BEFORE: Justice E. P. Belobaba
COUNSEL:
Peter E.J. Wells and Joanna Vatavu for the Moving Parties / Defendants
Benjamin Zarnett and Jessica Kimmel for the Responding Party / Plaintiff
HEARD: February 23 and May 10, 2012 and written submissions
summary judgment motion
[ 1 ] IPEX manufactures and sells thermoplastic piping systems for plumbing and heating applications. Lubrizol Advanced Materials, LZAM for short, supplied IPEX with the raw resin material used in the manufacturing process. The parties were involved in three back-to-back supply agreements, one for the year 2002, another for 2003 to 2005, and a third for 2005 to 2010. Customers began to complain about product failure. Some of them sued IPEX and IPEX, in turn, sued LZAM alleging that its raw material was defective.
[ 2 ] LZAM brings this motion for summary judgment asking that the action be dismissed. The defendants make two points: the plaintiff’s claims under the 2002 Supply Agreement are time-barred under the Limitations Act [1] and the claims under the 2003/05 and 2005/10 Supply Agreements are precluded by the liability disclaimers in these agreements.
[ 3 ] IPEX says the claims under the 2002 Supply Agreement are not time-barred and the disclaimer provision that was added to the other two agreements is not clear enough to exclude the statutory condition of fitness for purpose, the claim in negligence or the claim for contribution and indemnity. IPEX asks that the motion be dismissed and that the action proceed to trial.
[ 4 ] I agree with LZAM that, in principle, this case is amenable to summary judgment. It is primarily a case of statutory and contractual interpretation. The documentary evidence is limited and not factually contentious. There are only two witnesses. Their affidavits are short, and the transcripts of their cross-examinations are about 50 pages each in length. The record is such that a motions judge can achieve a full appreciation of the evidence and issues required to make dispositive findings.
[ 5 ] Having said this, I am not persuaded by the defendants’ submissions. For the reasons that follow, the motion for summary judgment is dismissed.
Background
[ 6 ] The parties or their predecessors have been dealing with each other, as supplier and manufacturer, for almost 20 years. When this lawsuit was launched in 2008, LZAM was supplying two kinds of raw material to IPEX for the manufacture of piping – CPVC material, used mainly in the manufacture of industrial piping, and PEX material, used in the manufacture of industrial, commercial and residential piping. [2] This action only involves the supply of the PEX material over the course of the three supply agreements noted above. However, the disclaimer provisions in question originated with the supply of the CPVC material and later were added to the 2003/05 and 2005/10 supply agreements for the PEX material. Thus, a brief overview of the corporate and contractual history is needed.
(1) The CPVC agreement
[ 7 ] Starting in 1990, and possibly earlier, B.F. Goodrich was supplying CPVC material to one of IPEX’s predecessors, Elson Thermoplastics pursuant to a CPVC Sales Contract. The terms and conditions of this Contract contained a very limited express warranty followed by an array of disclaimer provisions. I have attached a copy of these terms and conditions as an Appendix to these reasons.
[ 8 ] In 2000, IPEX acquired Elson and its contractual relationship with B.F. Goodrich, which in turn amended the CPVC Sales Contract to accommodate this change. The amendments agreed to by IPEX set out a number of product and pricing changes and then added that all other terms and conditions of the CPVC Sales Contract would remain in effect and apply to all purchases.
[ 9 ] Shortly thereafter, in either 2000 or 2001, Noveon Inc. acquired the B.F. Goodrich CPVC business and continued to supply the CPVC material to IPEX pursuant to the CPVC Sales Contract.
(2) The PEX agreement
[ 10 ] Until the end of 2001, a company called AT Plastics was the plaintiff’s PEX supplier. In December, 2001 Noveon acquired AT Plastic’s PEX business which included the commercial relationship with IPEX. Noveon continued to supply the PEX material to IPEX under what is referred to as the 2002 Supply Agreement. Both sides agree that it was Noveon Canada (based in Waterloo, Ontario) that supplied the PEX material to IPEX (based in Ontario and Quebec.) [3] It is important to note that neither the AT supply agreement nor the Noveon 2002 Supply Agreement contained any disclaimer of liability provisions.
[ 11 ] Noveon was now supplying both CPVC and PEX material to IPEX.
(3) The CPVC disclaimer provisions are added to the PEX agreement
[ 12 ] In 2003, Noveon and IPEX agreed to extend both the CPVC Sales Contract and the 2002 PEX Supply Agreement to the end of 2005 and add the terms and conditions in the CPVC agreement to the PEX agreement: “ all purchases of PEX products shall be subject to Noveon’s terms and conditions as previously agreed upon and as stated in CPVC Sales Contract.”
[ 13 ] In 2004, the defendants LZAM acquired Noveon and continued to supply IPEX with both CPVC and PEX material. In 2005, the two supply agreements were extended a second time to last until 2010. Noveon and IPEX agreed, again, that “all purchases of PEX products shall be subject to Noveon’s terms and conditions as previously agreed upon and as stated in CPVC Sales Contract.” [4]
[ 14 ] IPEX began receiving claims and complaints alleging piping system failures. In its opinion, the cause of these failures was defective PEX material. In August, 2006 IPEX sued AT Plastics for damages relating to the piping that was manufactured before 2002 using the raw material supplied by AT Plastics. In October, 2008 IPEX sued LZAM for damages relating to the piping that was manufactured after 2001 using the raw material supplied by Noveon/LZAM.
Analysis
(1) The limitations argument
[ 15 ] The defendants’ limitations argument only applies to the claims related to the 2002 Supply Agreement. LZAM argues that because the raw material that it supplied to IPEX after 2001was the same as AT Plastic’s (Noveon simply stepped into AT’s shoes, so to speak), it should have been obvious to IPEX as soon as it began to receive claims about the pre-2002 product that it would soon be receiving similar claims about the post-2001 product.
[ 16 ] It is true that when IPEX sued AT Plastics in 2006, it was having internal discussions about the possibility that similar complaints might soon be made about post-2001 piping and that IPEX might also have to sue LZAM. However, it was not until March, 2008, says IPEX, that it discovered the first claim that was actually traceable to the post-2001 supply of PEX material and hence to the defendants. The plaintiff commenced this action in October, 2008.
[ 17 ] LZAM says the action is time-barred because IPEX was aware by February, 2006 (and there are intra-company emails documenting this point) that the claims and complaints that were being made about pre-2001 products may soon be made about post-2001 products and that the plaintiff may have to sue the defendants. The defendants say that the limitations clock started running in February, 2006 and this October, 2008 action is therefore time-barred by the two-year limitation period.
[ 18 ] There are two answers to this submission - one short, the other a bit longer.
[ 19 ] The short answer is found in s. 18 of the Limitations Act, which deals with claims of contribution and indemnity, whether in tort “or otherwise.” [5] The plaintiff’s action, although based in contract and tort, is primarily a claim for indemnity. Section 18 makes clear that the limitation period begins to run on the day on which the first alleged wrongdoer (IPEX) was served with the claim in respect of which contribution and indemnity is sought. Here, the plaintiff was served with the Washington-based Jensen class action claim in the fall of 2007. In March, 2008 it determined that the piping in the Jensen residence was manufactured with post-2001 material supplied by the defendants. Seven months later, in October, 2008 it commenced this action. Even if the plaintiff should have come to this conclusion in the fall of 2007 when it was first served with the Jensen claim, the filing of this lawsuit a year later was not in breach of the limitations period. [6]
[ 20 ] The longer answer to LZAM’s limitations argument goes to the core of limitations law and policy. LZAM argues that the two-year limitation period begins to run not when someone actually incurs a loss but when that person first realizes that he or she may incur a loss. In my view, this is contrary to the plain language of the Limitations Act.
[ 21 ] Sections 4 and 5 of the Limitations Act provide that the limitations clock starts to run when ‘the person with the claim’ first knew or should have known that an injury, loss or damage has occurred, that it was caused by the defendant, and that a legal proceeding would be an appropriate remedy. “Claim” is defined in section 1 of the Act as “ a claim to remedy an injury, loss or damage that occurred as a result of an act or omission.”
[ 22 ] In my view, it is self-evident that the injury, loss or damage that “has occurred” must be injury, loss or damage that was sustained by the person with the claim. It is also, in my view, a self-evident proposition of modern limitations law that the clock begins to run with actual harm (known or discoverable) and not just the possibility of future harm. The latter proposition doesn’t make any sense either in terms of public policy or otherwise. [7]
[ 23 ] The first time that the plaintiff knew or should have known that customer claims about defective piping were attributable to products supplied by the defendants was in March, 2008 or, at the earliest, in the fall of 2007. The commencement of this action in October, 2008 was well within the two-year limitation period. The action is not time-barred. The limitations argument does not succeed.
[ 24 ] The claims relating to the 2002 Supply Agreement should proceed to trial.
(2) The disclaimer clause argument
[ 25 ] The defendants’ disclaimer clause argument applies to material supplied under the 2003/05 and 2005/10 Supply Agreements. As already noted, the terms and conditions of the CPVC Sales Contract (which in essence consisted of a limited express warranty followed by an array of liability disclaimers) were added to the 2002 Supply Agreement when the latter was extended in 2003 and, again, when it was extended in 2005. I have attached a copy in the Appendix.
[ 26 ] The objective of these terms and conditions is to provide a very specific and limited express warranty and then disclaim liability for literally everything else. Whether or not this objective succeeds to preclude the plaintiff’s claims relating to the 2003/05 and 2005/10 Supply Agreements will be discussed shortly. Before doing so, however, it may be useful to provide an overview of the key provisions:
• First, there is the specific and limited express warranty: that the product meets the seller’s published specifications (para. 1);
• All other warranties expressed or implied are excluded, including any implied warranties of merchantability or fitness for purpose (para. 1);
• The seller’s liability for damages “under this contract or otherwise” is expressly limited to a return of the purchase price (para. 1);
• There are several provisions that attempt to make clear that absolutely no further risks or liabilities will be assumed by the seller – for example:
➢ In no event shall the seller be liable for any incidental, consequential or special damages (para. 1);
➢ Seller’s liability for damages under this contract or otherwise shall in no event exceed [the purchase price] ... (para. 1.);
➢ Buyer assumes all risks and liability for results arising out of ... handling and use of the product (para. 8);
➢ Seller shall have no liability for the failure of ... materials used by buyer, whether or not supplied by seller (para. 8);
➢ In no event shall seller be liable for any special, consequential, incidental or indirect losses or damages attributable to the sale of product under the contract or any other matter arising out of or in connection with this contract (para. 15);
• Another paragraph of the Sales Contract requires the buyer to indemnify the seller for all damages and judgments and other losses arising out of the buyer’s use, sale and further processing of the product [8] (para. 9);
• There is an entire-agreement clause and a further provision that prohibits any amendment or modification of any of these terms unless the change is in writing, is agreed to in writing by the other party, and specifically states that it is an amendment to the contract (para. 14).
[ 27 ] The CPVC Sales Contract appears to have originated in 1990 with CPVC-supplier, B.F.Goodrich, based in Ohio. The initial sales agreement was with Elson Thermoplastics, based in North Carolina. This explains the American content – for example, the reference in para. 8 to “federal and state” laws, and the use of the word “warranties” with no mention of “conditions.”
[ 28 ] I suggested to counsel that the CPVC Sales Contract was likely subject to American sales law, both initially and today. Under American sales law, ‘warranties’ are akin to Anglo-Canadian ‘conditions’ because one can rescind the contract and reject the goods for breach of warranty. [9] Counsel on both sides quite properly responded by noting that no issues of foreign law had been pleaded or argued and that I should decide this motion on the basis that both the CPVC and PEX agreements at issue are Ontario agreements, or at least are agreements that should be interpreted using Ontario law.
[ 29 ] I am, of course, bound to do so. [10] Only Ontario law will be considered and applied.
[ 30 ] LZAM argues that the limited warranty and disclaimer provisions could not be any clearer and that any and all liability in tort and contract has been excluded (other than the return of the purchase price if the limited warranty was breached.) IPEX submits that under Ontario law the disclaimer provisions, although wordy, are insufficient to exclude liability for negligence, breach of the implied condition of fitness for purpose and the claim for contribution and indemnity.
[ 31 ] In my view, and applying Ontario law as I am required to do, I find that liability for negligence has been sufficiently excluded but not liability for breach of the statutorily-implied condition of fitness for purpose. I will explain each of these points each in turn.
Negligence
[ 32 ] First, liability for negligence. The case law is clear that the question is not whether the actual word “negligence” is used in the exemption clause (this is not necessary) [11] but “what in all relevant circumstances the parties intended the alleged exemption clause to mean” [12] and whether the intention to exclude liability for negligence is adequately expressed. [13]
[ 33 ] When I consider the language used herein, I don’t know what more the supplier could have said to make it clear that apart from the limited warranty and the return of the purchase price, no further or other risks or liabilities of any kind are assumed. I set out again the relevant clauses:
➢ The seller’s liability for damages “under this contract or otherwise” is expressly limited to a return of the purchase price (para. 1);
➢ In no event shall the seller be liable for any incidental, consequential or special damages (para. 1);
➢ Seller’s liability for damages under this contract or otherwise shall in no event exceed [the purchase price] ... (para. 1.);
➢ Buyer assumes all risks and liability for results arising out of ... handling and use of the product (para. 8);
➢ Seller shall have no liability for the failure of ... materials used by Buyer, whether or not supplied by Seller (para. 8);
➢ In no event, shall Seller be liable for any special, consequential, incidental or indirect losses or damages attributable to the sale of product under the contract or any other matter arising out of or in connection with this contract (para. 15);
[ 34 ] This is not a consumer sales transaction. Here the various parties to the CPVC Sales Contract were all sophisticated commercial players with ready access to legal counsel, including the current parties LZAM and IPEX. There is no suggestion of unconscionability or inequality of bargaining power. There is no good reason, public policy or otherwise, why the terms and conditions contained in this agreement should not be construed on the basis of their plain meaning.
[ 35 ] In my view, the meaning in paras. 1, 8 and 15 as set out above, could not be any plainer. LZAM (and its predecessors) are providing the buyer with a limited warranty and remedy, and nothing more. All other risks of loss or damage, including “the failure of materials ... used by the buyer” and all other liability, whether in contract or otherwise, is plainly and repeatedly excluded. If, in the face of this explicit language, a court were to rule otherwise and find that liability for negligence had not been excluded, it would be a triumph of formalism over plain-meaning and common sense.
Negligence - indemnity
[ 36 ] Next, the claim for contribution and indemnity as it relates to the negligence claim. Given my finding that liability for negligence has been excluded by the clear language in the limited warranty provisions, it is not open to IPEX to seek contribution or indemnity from LZAM on this basis. As the Supreme Court noted in Bow Valley, “ [ a] contractor which has protected itself against liability cannot be said to have contributed to any actionable loss suffered by the plaintiff”. [14]
[ 37 ] I note that LZAM also argues that, in any event, under paragraph 9 of the CPVC terms and conditions, the buyer is required to indemnify the seller for all damages and judgments and other losses arising out of the buyer’s use and sale and further processing of the product. LZAM says this is an express contractual provision that precludes the IPEX claim for contribution and indemnity under s. 1 of the Negligence Act . [15] I do not have to decide this issue given the finding that was just made. However, if I had concluded otherwise and found that the disclaimer provisions in question did not exclude liability for negligence, I would have also found that the language in paragraph 9 was insufficient to contract out of the application of s. 1 of the Negligence Act .
Implied condition of fitness for purpose
[ 38 ] I have already alluded to the fact that if I could take judicial notice of American sales law, I would likely find that the language used in the CPVC limited warranty and disclaimer provisions and, in particular, the disclaimer in paragraph 1 of “any implied warranties of merchantability and fitness for purpose” is sufficient to exclude the statutorily-implied condition of fitness for purpose. I would then have to deal with the interaction between the CPVC Sales Contract, which is subject to American sales law, and the PEX Supply Agreement which, as already noted, is subject to Ontario sales law. I would probably rule that because IPEX agreed to, and is bound by, the American sales law meaning of the word “warranty” in its CPVC supply agreement, it could not in good faith argue a totally different meaning when the same provisions with the same language are added to its PEX supply agreement. However, I am unable to take judicial notice of foreign law so this scenario does not arise.
[ 39 ] As already noted, I am required to apply Ontario sales law to both the CPVC and PEX supply agreements. I must ignore the American sales law context completely and construe and interpret the CPVC and PEX agreements as if they were made in Ontario under Ontario sales law, where ‘warranties’ and ‘conditions’ have very different meanings.
[ 40 ] Ontario sales law is clear that if a party means to exclude the statutorily-implied condition of fitness for purpose, it must do so explicitly:
• Words excluding implied warranties are sufficient only to exclude implied warranties and do not also exclude implied conditions; [16]
• A vendor may exclude the implied conditions contained in the Sale of Goods Act , but he must use explicit language to do so. [17]
• Clear and unambiguous language is required to oust an implied statutory condition whether in a consumer or commercial context. According to the Supreme Court, the following provision was sufficiently explicit to oust the statutorily-implied condition of fitness for purpose: “The provisions of this paragraph represent the only warranty of the seller and no other warranty or condition, statutory or otherwise, shall be implied.” [18]
[ 41 ] Given that I am bound by these appellate decisions, I have no alternative but to conclude that the language used in the CPVC disclaimer provisions herein – which only refers to express and implied warranties - is insufficient to exclude the statutorily-implied condition of fitness for purpose. The defendants’ submission that this statutorily-implied condition is contractually excluded under Ontario sales law does not succeed.
The section 15(1) trade-name proviso
[ 42 ] Section 15(1) contains an exception, referred to in the case law as the “proviso”, which stipulates that: “in the case of a contract for the sale of a specified article under its patent or other trade-name there is no implied condition as to its fitness for any particular purpose.”
[ 43 ] LZAM did not make the ‘trade-name’ argument in its Notice of Motion or factum, but at the hearing it argued, in the alternative, that the statutorily-implied condition of fitness for purpose does not apply because the PEX material was referred to in contracts or invoices by its “TempRite” trade-name : TempRite250, TempRite280, TempRite280N, TempRite771 and TempRite2200.
[ 44 ] The mere fact that a sales contract describes an article by its trade-name does not make it a sale under a trade-name for the purpose of the proviso in s. 15(1). Under Ontario law, the proviso only applies where the buyer specified the article under its trade-name “in such a way as to indicate that he is satisfied, rightly or wrongly, that it will answer his purpose, and that he is not relying on the skill or judgment of the seller, however great that skill or judgment might be.” [19]
[ 45 ] I agree with IPEX that the transactions between the parties do not fall within the ‘trade-name’ proviso. There is no evidence that IPEX ordered the TempRite product in such a way as to indicate that it was not relying on LZAM’s skill and knowledge. To the contrary, the evidence of the defendants’ own affiant was that LZAM worked with IPEX to develop products that would be suitable for IPEX’s intended uses and advised IPEX as to the suitability of the TempRite product in its various formulations. The evidence on this point is, frankly, overwhelming. Accordingly, following Baldry v Marshall and the Ontario case law that has adopted it, the ‘trade-name’ exception to s. 15(1) does not apply.
[ 46 ] The claims relating to the 2003/05 and 2005/10 PEX supply agreements should proceed to trial.
(3) Post-contractual conduct
[ 47 ] There is one more reason why the claims relating to the 2003/05 and 2005/10 supply agreements should proceed to trial. IPEX submits that even if the limited warranty and disclaimer provisions were added to the 2003/05 and 2005/10 supply agreements, the parties did not conduct their business in accordance with these terms and conditions. They never mentioned them or referred to them, even during significant disputes about product quality. Rather, says IPEX, as the resolution of the problems at the Charlotte plant shows, the parties co-operated to resolve the dispute and LZAM compensated IPEX for damage caused by its products.
[ 48 ] The plaintiff’s uncontradicted evidence about the Charlotte plant problem was as follows. In 2009, certain performance issues relating to Corzan 3212 material were identified by IPEX during the manufacturing process. After an exchange of correspondence and inspections, the dispute was settled in 2010 with LZAM providing IPEX with $82,500 in credit to cover the full cost of the defective product supplied, lost production time and other additional costs. The settlement agreement required that IPEX release and discharge LZAM “from any and all claims of any nature that IPEX now has or may have regarding the [Corzan 3212] performance issues.” LZAM never referred to the CPVC terms and conditions and the limitations of liability contained therein.
[ 49 ] IPEX submits that the law is clear that where the parties have by their subsequent course of conduct amended the written agreement so that it no longer represents the intentions of the parties, the court will refuse to enforce the written agreement. This is so even in the face of an “entire agreement” or “no waiver” clause such as the one found at paragraph (e) of the terms and conditions. [20] LZAM in reply points to paragraph (e) and the requirement that all amendments must be in writing. However, this does not address the decision of the Court of Appeal in Shelanu and the proposition that post-contractual conduct can amend written agreements even in the face of language such as that contained in paragraph (e).
[ 50 ] I am inclined to agree with IPEX that the issue of post-contractual conduct is a genuine issue for trial. I am also supported in this regard by the proposition advanced by Madam Justice Pepall in Canadian Premier Life [21] - that the issue of amendment of a contract by conduct should not be resolved summarily. [22] What happened, what the parties intended and whether the written agreement was indeed amended by post-contractual conduct are questions that should generally go to trial, all the more so in this case where a satisfactory level of evidence is lacking. [23]
Conclusion
[ 51 ] The limitations argument does not succeed with respect to the claims relating to the 2002 Supply Agreement. The disclaimer clause argument succeeds with regard to the plaintiff’s negligence claim but does not succeed with regard to the s. 15(1) fitness for purpose claim. The s. 15(1) trade-name proviso does not apply. The issue of post-contractual conduct is a genuine issue requiring a trial.
[ 52 ] In sum, the motion for summary judgment is dismissed.
[ 53 ] The parties have not asked for any specific directions under Rule 20.05(2) and none are provided.
[ 54 ] If the parties are unable to agree on costs, I will be pleased to receive brief written submissions from IPEX within 14 days and from LZAM within 10 days thereafter.
[ 55 ] I am obliged to counsel on both sides for their co-operation and assistance. The additional written submissions were particularly helpful.
Belobaba J.
Date: May 18, 2012
APPENDIX
CPVC Sales Contract’s terms and conditions (relevant excerpts)
Seller warrants that at the time of shipment the product covered by this contract meets Seller’s published specifications, if any, or as may be otherwise stated in this contract. Recommendations of Seller, if any, for the use of the product sold hereunder are based upon standard laboratory tests believed to be reliable, but Seller makes no warranty of any results Buyer might obtain in any particular application. THE ABOVE WARRANTIES ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES EITHER EXPRESSED OR IMPLIED. SELLER DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES. SELLER’S LIABILITY FOR DAMAGES UNDER THIS CONTRACT OR OTHERWISE SHALL IN NO EVENT EXCEED THAT PART OF THE PURCHASE PRICE APPLICABLE TO THE PRODUCT WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED. Buyer must give Seller written notice of any claim of breach of warranty within 10 days after the occurrence of the event upon which such claim is founded; the failure of Buyer to give such written notice shall be a waiver of all claims. Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the product in combination with other substances or in the operation of any process. The above warranties extend only to the Buyer.
Title to and risk of loss of all product sold hereunder shall pass to Buyer upon Seller’s delivery to carrier at point of shipment whether or not Seller pays all or any part of the freight.
Buyer assumes all risks and liability for results arising out of unloading, discharge, storage, handling and use of the product, or arising out of compliance or non-compliance with federal, state, municipal or local laws and regulations with reference thereto. Seller shall have no liability for the failure of discharge or unloading equipment or materials used by Buyer, whether or not supplied by Seller.
9 . Unless product sold hereunder fails to meet the express warranties set forth in paragraph (1) above, Buyer shall indemnify, defend and hold Seller harmless from all costs, expenses, damages, judgments or other loss, including costs of investigation, litigation and reasonable attorney’s fees, arising out of Buyer’s selection, use, sale and further processing of the product sold hereunder.
No statement or agreements, oral or written, made before or at the signing of this contract shall vary or modify the written terms hereof, and neither party shall claim any amendment, modification or release from any provision hereof unless such change is in writing signed by the other party and specifically stating it as an amendment to this contract. No modification or addition to this contract shall be effected by the acknowledgment or acceptance by Seller of Purchase Order, Acknowledgment, Release or other forms submitted by Buyer containing additional or different terms or conditions, and Seller hereby gives Buyer notice of the rejection of such additional terms and conditions.
In no event shall Seller be liable to for any special, consequential, incidental, or indirect losses or damages attributable to the sale of product under the contract or any other matter arising out of or in connection with this contract.