LIMITATION OF WARRANTY AND LIABILITY (Cont.)
Exclusive Remedy: User’s Exclusive Remedy and Rupp Seeds’ sole liability for any claim or loss, including, without limitation, claims resulting from breach of warranty, breach of contract, tort, fiduciary obligation, strict liability, or negligence resulting from the use of the Seed is limited to a refund of the price paid for the Seed and will not include incidental, consequential, or exemplary damages, such as loss of yield or lost profits. User agrees that Rupp Seeds’ refund of the price paid for the Seed will not cause this Agreement to fail of its essential purpose. Allocation of risk between Rupp Seeds and User is reflected in the purchase price.
Immediate Notice: User must give Rupp Seeds immediate notice (no later than 15 days upon discovery) when User believes a Breach of Warranty exists, and User will fully cooperate with Rupp Seeds in any investigation.
Notice of Required Arbitration/Conciliation/Mediation Required by Various States: Under the seed laws of many states, arbitration, conciliation or mediation is required as a prerequisite to maintaining a legal action based upon the failure of seed to which this notice is attached to produce as represented. The User must file a complaint (sworn in some states) along with the required filing fee (where applicable) with the Commissioner or Secretary of Agriculture of the State within such time as to permit inspection of the crops, plants, or trees by the designated agency and the seedsmen from whom the seed was purchased. A copy of the complaint must be sent to Rupp Seeds by certified or registered mail, or as otherwise provided by statute in such State.
Technical Advice: Any technical advice regarding the use of the Seed by Rupp Seeds or any representative shall be with no warranty of results and Rupp Seeds expressly disclaims any warranty and liability for any technical advice or recommendation.
Product Data Limitations: Product data and ratings are based on averages of results from various test locations. They are a summary of past results and not a prediction of future performance. Performance will vary depending on the actual environment, pathogen strain and management conditions in your field. Product data and ratings are the result of favorable growing conditions and identical results are not guaranteed, and Rupp Seeds make no warranty regarding the performance of the Seed in the User’s field.
Use Restriction: The Seed is owned by, or licensed to, Rupp Seeds and Rupp Seeds strictly limits the sale and possession of the Seed to a grant to User of a non-exclusive right to use the Seed for the sole purpose of growing a single crop of plant parts for sale or use as a vegetable product. User shall not export, reproduce, multiply or breed the Seed, and shall not genetically analyze or manipulate in any way the Seed for any plants or plant parts produced from the Seed. User shall include this Agreement with any transfer of the Seed.
Jurisdiction and Venue: This Agreement is governed by and shall be construed in accordance with the laws of the State of Ohio. User agrees that all disputes arising out of or in connection with this Agreement must be resolved by a Court of competent jurisdiction in the County of Fulton, State of Ohio. User irrevocably submits to the exclusive jurisdiction of such Court for the purpose of litigating any and all such claims or disputes.
Severability: If any term of this Agreement is held to be unenforceable, all remaining terms will remain in effect and will be fully enforceable.
Entire Agreement: This Agreement is the entire Agreement between Rupp Seeds and User regarding warranties, liabilities and limitations on warranties and liabilities.