1. Controlling Terms and Conditions

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The Seller objects to, and shall not be bound by, any term or condition on the Buyer’s order that is different from or in addition to the Seller’s terms and conditions. Any additional or different terms or conditions proposed by the Buyer are hereby expressly rejected, whether or not contained in any of the Buyer’s business forms or website, and whether or not required as ‘click-through’ acceptance or EDI system. No terms, conditions, description, price, quantity, specifications, or delivery schedule shall be changed, and no agreement or understanding in addition to or different from the terms and conditions stated herein shall be binding upon the Seller without written authority from the Seller’s authorized representative.

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2. Proposal/Quotations

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Proposals/quotations made by the Seller are only valid in writing and for thirty (30) days from the date of the quotation unless otherwise set forth in the Seller’s quote. All proposals/quotations are subject to change or withdrawal without prior written notice to the Buyer before acceptance by the Buyer, unless otherwise specifically stated in the quotation. Quotations are made subject to approval by the Seller of the Buyer’s credit.

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3. Price

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Unless otherwise specifically agreed to in writing by the Seller, all prices are exclusive of any freight costs and any sales, use, value-added, excise, gross receipts, business and occupation, or similar present or future taxes imposed by any governmental body on the sale, delivery, use, or other handling of the goods or in connection with any transactions contemplated herein. Prices assume order quantities sufficient to meet the Seller’s standard minimum order requirements for applicable products. Unless otherwise agreed in writing, any variation in quantities shipped over or under the quantities ordered (not to exceed 10%) shall constitute compliance with the Buyer’s order, and the stated price per item will continue to apply. All orders are accepted subject to the Seller’s price. All prices are F.O.B. Seller’s shipping point unless stated otherwise in a written price quotation.

 

4. Payment

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Unless otherwise specifically agreed to in writing by the Seller, terms are Cash in Advance. The Seller shall have the right, in its sole discretion, to appoint a third party to receive the full payment of the invoice.

 

5. Separate Sale

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Each delivery hereunder shall be deemed a separate sale, and failure of the Seller to make delivery hereunder shall not affect this contract with respect to any other delivery hereunder.

 

6. Delivery

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Unless otherwise specifically agreed to in writing by the Seller, title, and all risk of loss or damage to goods shall, unless otherwise agreed to in writing by the parties, pass from the Seller to the Buyer upon delivery of goods to the carrier for delivery, F.O.B. Seller’s shipping point. Any claims for shortages or damages suffered in transit shall be submitted by the Buyer directly to the carrier within ten days of delivery. While the Seller will use all reasonable commercial efforts to maintain the delivery date(s), all shipping dates are approximate. The Seller reserves the right to make partial shipments. The Seller, at its option, shall not be bound to tender delivery of any goods for which the Buyer has not provided shipping instructions. If the shipment of the goods is postponed or delayed by the Buyer for any reason, the Buyer agrees to reimburse the Seller for any and all storage costs and other additional expenses resulting therefrom, including spoilage or obsolescence. Delivery times shall be agreed between the Seller and the Buyer at the time of each order but shall, in any event, be subject to the Seller’s customary lead times.

 

7. Warranties

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The Seller warrants that the products delivered hereunder shall:

• (A) Conform to their specifications as previously communicated to the Buyer by the Seller,

• (B) Be conveyed free and clear of any lien, security interest, or encumbrance created by the Seller,

• (C) Be free from substantial defects in material and workmanship,

• (D) Not be adulterated or misbranded within the meaning of those terms under the Federal Food, Drug, and Cosmetic Act, and

• (E) Be produced according to current “good manufacturing practices”.

The Seller makes NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. The Buyer assumes all risks incurred in the use of any material delivered hereunder.

 

8. Inspection/Non-Conforming Shipments

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The Buyer must notify the Seller of any products that do not conform to the terms applicable to their sale within fifteen days of delivery and must afford the Seller a reasonable opportunity to inspect such products and cure any non-conformity. Failure to provide notice within such a fifteen-day period shall be deemed acceptable by the Buyer. Returns must be made in accordance with the Seller’s return policies in effect.

 

9. Force Majeure

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The Seller shall not be liable for failure to make any delivery hereunder caused by or resulting from events or circumstances beyond the Seller’s reasonable control, including strikes, fires, floods, wars, riots, loss, destruction or unavailability of raw materials, nonavailability of transportation facilities, disruption of utilities, delays of carriers, embargoes, accidents, restrictions imposed by any government or government authority. The time of the Seller to make delivery hereunder shall be extended during any period in which such delivery shall be prevented or delayed by reason of any of the foregoing causes, provided that if any delivery hereunder be so prevented or delayed for more than two (2) months, either party shall have the right to cancel this Order with respect to such delivery by written notice to the other. The Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of products, services, and resources among itself and its customers in such manner as the Seller, in its sole judgment, deems fair and equitable and/or eliminate any/all quantities of product(s) affected from this contract without liability.

 

10. Limitation on Damages

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The SELLER SHALL NOT BE LIABLE TO THE BUYER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (including loss of anticipated profits, business interruption, loss of use or revenue, cost of capital, or loss or damage to property or equipment) arising in any way from the relationship of the parties or the production, sale, or delivery of the goods by the Seller. The Seller’s liability to the Buyer shall, in all cases, be limited to the price paid by the Buyer for goods or services provided by the Seller relating to the claims for damages. The Seller will not be liable to the Buyer for any loss, damage, or injury to persons or property resulting from the handling, storage, transportation, resale, or use of its products after delivery or from the design of products to the extent provided by the Buyer. The Buyer may not set off any payments due hereunder against any other amounts the Seller or its affiliate may owe to the Buyer.

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11. Intellectual Property

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All drawings, know-how, inventions, devices, developments, processes, copyrights, trademarks, patents and applications thereof, and other information or intellectual property disclosed or otherwise provided to the Buyer by the Seller, including intellectual property developed by the Seller as a part of its relationship with the Buyer, and all rights therein, will remain the property of the Seller and will be kept confidential by the Buyer in accordance with these terms and conditions. The Buyer shall have no claim to, nor ownership interest in, any intellectual property, and such information, in whatever form and any copies thereof, shall be promptly returned to the Seller upon written request. The Buyer shall indemnify and hold the Seller harmless against any and all claims, demands, suits, and/or costs whatsoever arising out of or relating to any violation or infringement, or any alleged violation or infringement, of any patent, trademark, or copyright in relation to any product manufactured in accordance with any designs and/or specifications provided by the Buyer.

 

12. Termination

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The Seller shall have the right, in its sole discretion, by notice given to the Buyer, to terminate any order upon the occurrence of any direct or indirect, voluntary or involuntary, sale, lease, transfer, assignment, merger, consolidation, or other disposition of the Buyer’s assets, it being understood that in the event such shall occur (and without prejudice to the termination remedy specified), (x) the Buyer shall remain fully liable for its obligations under this Agreement, and (y) the transferee of such assets or such facility shall also be liable for all obligations of the Buyer under this Agreement. In addition, the Seller may cancel any purchase order or releases thereunder that are not scheduled for shipment within the succeeding thirty days. If the Buyer notifies the Seller of their intention not to fulfill any obligation under a purchase order, the Buyer shall be liable to the Seller for all finished goods, work in process, and unique or surplus raw materials and supplies produced or ordered in reliance on such purchase order. Any and all purchase orders for tooling, fixtures, and equipment shall be paid for at the contract price, regardless of the stage of completion.

 

13. Liquidation

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Without limiting any other rights that may be available to the Liquidating Party, in the event (each, a “Default”) that a party hereto (the “Defaulting Party”) is the subject of a bankruptcy, insolvency, reorganization, or other similar proceeding, or fails to pay its debts generally as they become due, or otherwise is bankrupt or insolvent, then the other party (the “Liquidating Party”) shall have the right to liquidate an undelivered, unpaid transaction for material(s), cancel any outstanding orders and/or to liquidate any or all other agreements between the parties for the purchase and sale of material(s) or swaps with respect to the prices thereof or options on any of the foregoing then outstanding that relate in any way to goods to be produced under the order.

 

14. Confidential Information

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All information furnished or made available by the Seller to the Buyer in connection with the subject matter of these terms and conditions, the Seller’s quotation, or the Buyer’s purchase order shall be held in confidence by the Buyer. The Buyer agrees not to use such information or disclose such information to others without the Seller’s prior written consent. The obligations in this paragraph will not apply to any information in the public domain, which the Buyer can show by written records was in the Buyer’s possession prior to disclosure by the Seller, or any information which is legally made available to the Buyer by or through a third party having no direct or indirect confidentiality obligation to the Seller with respect to such information.

 

15. Entire Agreement

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This order contains the entire agreement between the parties and supersedes any prior oral or written agreements or communications between them relating to the subject matter hereof.

 

16. No Assignment; Waiver

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The Buyer may not transfer, assign, pledge, or otherwise dispose of this order, or any interest or right hereunder, without the express written consent of the Seller. Waiver by the Seller of the operation of any provision of these terms or of any breach by the Buyer shall not constitute a continuing waiver.

 

17. Severability

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If any provision herein shall be held to be unlawful or unenforceable, the remaining provisions herein shall remain in full force and effect.

 

18. Choice of Law

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This Order shall be governed by and construed in accordance with the laws of the State of Florida without regard to conflicts of laws. Any controversy or claim arising out of or relating to this Order shall be submitted to arbitration in Miami, Florida, in accordance with the Commercial Arbitration Rules of the American Arbitration Association.

 

19. Exclusion of UN Convention

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Unless otherwise agreed by the Buyer and Seller in writing, the application of the United Nations Convention on Contracts for the International Sales of Goods is excluded from this sale.