Terms & Conditions
All sales and quotations made by Seller are expressly subject to each of the following Terms and Conditions that shall replace all terms and conditions of Buyer’s order and of any proposal or quotation to Buyer not agreed to by Buyer and Seller in writing prior to the date hereof. Seller specifically objects to all terms and conditions that may be contained on Buyer’s order, or any other document provided to Seller by Buyer.
This acknowledgment includes the following terms and conditions, and unless written notice of objection to any of such terms and conditions (including inconsistencies between Buyer's purchase order and this acceptance) is given by Buyer to Seller promptly on receipt hereof, Buyer agrees that the following terms and conditions shall become part of the contract between Buyer and Seller. This acknowledgment operates as Seller's acceptance of Buyer's purchase order, but such acceptance is made expressly conditional on assent by Buyer to the terms and conditions included in this acknowledgment. Buyer and Seller agree that this acknowledgment, including the following terms and conditions, shall constitute the complete and final agreement between Buyer and Seller in respect of this order and that such terms and conditions and the rights and duties of Buyer and Seller shall be governed by the laws of the State of Florida. Any disputes between the parties shall be resolved by a court of competent jurisdiction in Boca Raton, Florida. None of the terms and conditions contained in this acknowledgment may be added to, modified, superseded or otherwise altered except by a written instrument signed by an authorized representative of Seller and delivered by Seller to Buyer, and the products received by Buyer from Seller shall be deemed to be delivered only upon the terms and conditions contained in this acknowledgment, except as they may be so added to, modified, superseded or otherwise altered, in a signed writing. This contract may not be assigned, in whole or in part, by either party except with the prior written consent of the other party, except that (1) Seller may assign any of its rights to received payment from Buyer hereunder and (2) Seller may subcontract the performance of any of its obligations hereunder.
TERMS AND CONDITIONS
1. Prices; Payment Terms. Prices are subject to change without notice. All orders are accepted subject to Seller's price in effect at time of shipment. All changes in freight rates or transportation charges used by Seller in computing prices and charges shown on this acknowledgment occurring after the date of this acknowledgment will be for the Buyer's account. Seller shall not be liable for any transportation charges incurred at destination such as spotting, switching, drayage, demurrage, pier unloading charges, etc. Standard terms net 30 days with approved credit, unless otherwise specified by Seller. Applicable sales tax will be added unless a current resale certificate is on file.
Buyer grants Seller a purchase money security interest in goods Seller sells to Buyer and Buyer agrees that Seller may take actions in Buyer’s name to perfect that interest as Buyer’s attorney in fact.
2. Taxes. Seller reserves the right to charge Buyer with the amount of any taxes which Seller may be required to pay or collect under any existing or future law upon or with respect to the sale, purchase, delivery, storage, processing, use, consumption, servicing or transportation of any of the products sold.
3. Delivery. Articles sold hereunder shall be deemed delivered, and title hereto shall pass to Buyer, (a) in the case of shipments by Seller’s trucks upon delivery at Buyer’s plant(s) or, (b) in the case of shipments by public or contract carrier by delivering the same to such carrier at loading points at Seller’s plant. Any delivery dates Seller quotes are estimates. Seller cannot guarantee delivery on a specific date
Manufacture, shipment or delivery will be subject to any prohibition, restriction or regulation imposed by the federal government or any state government or any subdivision or agency thereof, and Seller shall not be liable for any delay or failure to perform, in whole or in part cause by any such prohibition, restriction or regulation or other causes beyond Seller's control.
4. Inspection by Buyer. Where mill inspection is made by Buyer, Buyer's inspector(s) shall be deemed the agent(s) of Buyer to accept products on Buyer's behalf with authority to waive specified tests or details of test procedure, and to accept products which may deviate from formal specifications.
5. Permissible Variations. Unless otherwise agreed upon in writing, all products shall be furnished subject to Seller's standard manufacturing variations and practices and within limits and sizes Seller produces. Products purchased are subject to customary quantity variations recognized by trade practice.
6. Cancellation. The Contract resulting from the acknowledgment and acceptance of Buyer's order cannot be cancelled, terminated or modified by Buyer in whole or in part except with Seller's consent in writing and then only upon terms and conditions then to be agreed upon which shall include protection of Seller against all loss.
7. Risk of Loss; Loss or Damage in Transit. Terms of shipment shall be F.O.B. Seller's plant. Risk of loss shall pass to Buyer when the products are delivered to the carrier, or to Buyer or Buyer's agent, whichever first occurs. In case of loss or damage in transit or failure to receive shipment within a reasonable time, Buyer must immediately notify in writing carrier's agent at destination and Seller. This action is necessary in order to preserve the right to damages from the carrier and to substantiate a formal claim when presented. Seller shall not be liable for any damage, loss or expense resulting from anything occurring during, or attributable to, transportation.
8. Claims; Disclaimer of Warranties. Products may not be returned except by written permission of Seller. Buyer assumes all risk and liability for loss, damages or injury to person or to the property of the Buyer or others arising out of the use or presence of the materials purchased hereunder. Buyer agrees to indemnify and hold harmless Seller against any liability, damages, losses, costs and expenses in connection with any suit or claim; including but not limited to, any loss of use, loss of profits, damage or injuries to persons or property arising out of or relating to any use of materials purchased by Buyer herein, whether such claim is made by Buyer, Buyer’s customers, or other third parties.
SELLER SHALL NOT BE LIABLE FOR ANY CLAIMS, LOSSES, LABOR, EXPENSES OR DAMAGES, DIRECT, INDIRECT, SPECIAL OR CONSEQUENTIAL, RESULTING DIRECTLY OR INDIRECTLY FROM ANY CLAIM WHATSOEVER, WHETHER BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY, EVEN IF SELLER IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION CLAIMS IN CONNECTION WITH THE USE OF, OR INABILITY TO USE, THE PRODUCTS SOLD HEREUNDER, CLAIMS OF LOSS OF PROFITS BECAUSE OF INCREASED OPERATING COSTS, LOSS OF PRODUCTION OR SHUTDOWN OF OPERATION OR OTHERWISE AND LIABILITIES, CLAIMS AND EXPENSES IN RESPECT OF THIRD PARTIES. THERE ARE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE HEREOF. FURTHERMORE, DAMAGES SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE PARTICULAR QUANTITY DELIVERED WITH RESPECT TO WHICH SUCH DAMAGES ARE CLAIMED. In lieu of any warranty, whether expressed or implied by operation of law or otherwise, products proving defective in material and/or workmanship in the hands of the Buyer will be replaced or, at Seller's option, credit will be allowed for the original price thereof, provided (i) a written claim in respect of such products (specifying the claimed defect or nonconformity) is made by Buyer with reasonable promptness after delivery thereof but in no event more than 5 days after such delivery, (ii) use of such products is promptly discontinued and (iii) such products are returned to Seller with reasonable promptness after delivery. Claims for latent defects are barred unless presented within 90 days after the date of invoice.
TECHNICAL ADVICE AND OTHER SERVICES. Buyer is responsible for the design, processing, testing and labeling of any product that Buyer makes using products Buyer buys from Seller and Buyer will not rely on anything on Seller’s web site or any statement by Seller about the suitability of products or services Seller provides. Buyer has tested and investigated products sold by Seller enough to form an independent judgment concerning their suitability for the use, conversion or processing intended by Buyer and will not make any claim against Seller based on Seller’s advice, statements, information, services or recommendations.
(a) Any payment due from Buyer and not timely made shall be subject to a service charge equal to 1.5% per month or, if less, the maximum amount permitted by applicable law, until paid. In case Buyer shall fail to make payments in accordance with the terms as set forth in this acknowledgment, Seller in addition to its other rights and remedies may at its option defer further shipments until such payments are made, or may terminate the contract, and Buyer shall not have any cause of action or be entitled to any off-set, counterclaim or recoupment against Seller by reason of any such action.
(b) If, in Seller’s sole judgment, Buyer’s credit shall become impaired at any time, Seller shall forthwith have the right to decline to make deliveries hereunder except for cash until such time as said credit has been re-established to Seller’s satisfaction, or, in Seller’s sole discretion, and in addition to any other rights or remedies available to it, to immediately terminate this Contract without any liability to Buyer.
(c) If Buyer fails to pay any amount when due or is otherwise in default with respect to any of the terms or conditions of this or any other Contract with the Seller, Seller may, at its option, without prejudice to any other legal remedy or remedies, defer making further deliveries hereunder until such default is remedied and/or may declare the obligation of the Buyer for all articles already delivered, and all loss and damage with respect to any articles remaining to be delivered, to be due forthwith.
10. Force Majeure. Failure of Seller to make any deliveries hereunder when due, if caused by any reason beyond its control, including, but not limited to Acts of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riots, sabotage, accident, embargo, government priority, requisition or allocation or other action of any governmental authority, inability of Seller to obtain raw materials or to obtain from its regular source of supply any product covered by this Contract which it does not manufacture, regardless of reason, or any circumstance of like or different character beyond the reasonable control of Seller, or by interruption of or delay in transportation, shortage or failure of supplies of material / equipment, labor trouble, or by compliance with order or request of the U.S. Government or any officer, department, agency or committee thereof, or by compliance with request of any manufacturer of material for purposes of producing articles for national defense, shall not subject Seller to any liability to Buyer.
11. Waiver. Failure on the part of Seller to enforce at any time, or for any period of time, any of the provisions of this Contract shall not be deemed or construed to be a waiver of such provision or of the right of Seller to thereafter enforce each and every such provision.
12. Legal Fees. In the event Seller must initiate legal proceedings or retain a collection agency in order to secure its rights hereunder, Seller shall be entitled, in addition to all other remedies available at law and/or equity, to recover from Buyer its fees associated therewith including, but not limited to, reasonable attorneys’ fees, collection fees, expert witness costs and court costs.
13. If any provision of this Contract is or becomes or is deemed invalid, illegal or unenforceable in any jurisdiction, (a) such provision shall be construed or deemed amended to conform to applicable laws so as to be valid and enforceable, or, if it cannot be so construed or deemed amended without materially altering the intention of the parties, it shall be stricken, (b) the validity, legality and enforceability of such provision will not in any way be affected or impaired by it in any other jurisdiction, and (c) the remainder of this Contract shall remain in full force and effect.
14. The relationship between Seller and Buyer shall be that of independent contracting parties and Buyer shall make no representation to the contrary.