Terms & Conditions

Prepayment; Payment Terms and Late Fee. Any prepayments in accordance with the applicable SOC shall be applied to the applicable outstanding invoices.  The remainder of this Section 1 applies to the extent that Seller has offered Buyer payment terms in the applicable SOC.  The Buyer shall not retain or withhold from the Seller any sum stated on any invoice for any reason whatsoever. The Buyer’s payment obligation is in no way contingent upon the Buyer’s receipt of payment from any party. Each invoice rendered by the Seller to the Buyer shall be deemed correct and binding upon the Buyer unless the Seller shall receive a written statement of objection within ten (10) days after such invoice is rendered. Interest shall accrue on all amounts remaining unpaid after the due date at the lesser of: (a) one and one-half percent (1½%) per month, and (b) the maximum lawful rate. If the Seller refers an invoice to an attorney or other party for collection, the Buyer shall pay on demand all of the Seller’s expenses of collection including, without limitation, reasonable attorneys’ fees and costs including fees and expenses of any expert retained by the Seller. Failure to pay any invoice in full by its stated due date shall automatically cause all other invoices to the Buyers to be immediately due and payable irrespective of their terms, and the Seller may withhold all subsequent deliveries, and/or be released from its obligation to provide goods or services under existing SOCs with Buyer, until all amounts due the Seller by the Buyer have been paid in full. Acceptance by the Seller of less than full payment shall not act as a waiver of any of its rights.

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Delivery or Performance

     Unless otherwise specified on the face hereof, all deliveries are FOB point of shipment. Shipment will be made in accordance with instructions issued by Seller. Upon delivery of goods to carrier, Buyer assumes risk of all loss and damage resulting from any cause whatsoever. Shipping, delivery or performance dates are approximate and are not guaranteed. Seller will use reasonable commercial efforts to meet the delivery dates but is not liable for any direct or indirect costs resulting from late delivery. Seller reserves the right to ship and invoice for a quantity of goods which may vary up to ten percent (10%) over or under the quantity specified and Buyer agrees to accept delivery and pay for such revised quantity and consider the shipment to be complete. Partial deliveries shall be accepted by the Buyer and paid for at contract prices. Buyer shall have no right to delay the delivery or shipment date. Seller may charge storage charges for any goods which it holds for Buyer, which shall be due upon invoice.

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Force Majeure

     Seller shall not be liable for any delay or other failure of performance due to causes beyond its reasonable control, including without limitation foreign or domestic embargos, seizures, Acts of God, acts of Buyer, acts of military or civil authorities, fire or other casualty, strikes, lockouts, weather, epidemic, war, riot, delays in transportation or car shortages, inability to obtain necessary labor, materials, components, equipment, services, energy or utilities through Seller’s usual and regular sources at usual and regular prices, failure or inability of the Seller to perform or any act or event beyond the Seller’s control either of the foregoing nature or of any other kind, nature or description. In any such event, Seller may, with notice to Buyer, at any time and from time to time without further liability to Buyer (a) postpone its performance, (b) make partial performance or cancel all or any portion of this contract or (c) allocate available quantities among its customers in any manner which Seller deems reasonable. Cancellation of any part of these GTCs and the applicable SOC shall not affect Seller’s right to payment for performance of any other part hereof.

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Warranty and Remedy

     Seller warrants to Buyer, for a period of thirty (30) days from the date of shipment and/or performance of services, that the goods delivered hereunder conform to Seller’s then current technical drawings for the applicable goods (the “Current Specifications”). Materials and services furnished by Seller’s suppliers or subcontractors and supplied by Seller to Buyer are warranted by Seller only to the extent of the supplier’s or subcontractor’s express warranty to Seller and only to the extent such party honors its warranty after notification by Seller. If during such period Buyer promptly notifies Seller in writing of any breach of such warranty and complies with Seller’s applicable warranty procedures, Seller shall thereupon, at Seller’s option, re-perform services, repair or replace any defective goods at Seller’s plant or refund the original purchase price of the goods or services or part thereof which gives rise to the claim. The foregoing shall constitute the sole and exclusive remedy of Buyer and the full liability of Seller for any breach of warranty. THE FOREGOING WARRANTY IS EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL OR IMPLIED, INCLUDING ANY WARRANTY OF PERFORMANCE, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE FOREGOING WARRANTY SUPERSEDES AND EXCLUDES ANY ORAL WARRANTIES OR REPRESENTATIONS, OR WRITTEN WARRANTIES OR REPRESENTATIONS MADE OR IMPLIED INCLUDING, WITHOUT LIMITATION, IN ANY MANUAL, LITERATURE, ADVERTISING BROCHURE OR ANY OTHER MATERIALS OR BASED ON CUSTOM OR OTHERWISE. ALL IMPLIED WARRANTIES AND WARRANTIES OF PERFORMANCE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. Seller shall have no liability for any damages or claims if Buyer uses goods that do not conform to Current Specifications. If Buyer has made any repairs or alterations to any goods, Buyer will have waived all warranty claims. No warranties may be assigned to any subsequent Purchaser or user of the goods or services.

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Limitation of Seller’s Liability

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   Seller’s liability on any claim of any kind, including, without limitation, negligence, with respect to goods or services shall in no case exceed the original purchase price set forth in the applicable SOC of the good or service or part thereof which gives rise to the claim. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR SIMILAR DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR ECONOMIC DAMAGES), OR FOR DAMAGES IN THE NATURE OF PENALTIES.

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Buyer’s Use

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    Buyer assumes sole responsibility for analyzing and determining the suitability of any services and goods supplied by Seller including all parts and components and Buyer agrees that it is not relying on Seller in making such determination even if Seller provided technical advice, assistance, guidance or design services. Seller assumes no obligation or liability for such advice, assistance, guidance or design services, or results obtained, and Buyer assumes full responsibility for any particular use or purpose. Buyer will not order or use any goods or services unless it is satisfied that the goods and services are suitable for Buyer’s use and conform to all of its requirements. Buyer agrees to store and use all goods and services in a safe manner. Seller is cautioning Buyer that not all products are compatible with plastic, glass, metal or the other goods and Buyer agrees not to use any goods with any abrasive, caustic or acid solutions or any other substance which may cause injury to persons or property.

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Limitation of Actions

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     Any action against Seller with respect to the goods or services which are the subject of this contract will be forever barred and waived and released by Buyer if it is not commenced by Buyer within one (1) year from the date of delivery of the particular good or service which gives rise to the claim.

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Indemnification and Waiver

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     Buyer shall, notwithstanding any termination of these GTCs or any applicable SOC, defend, indemnify and hold harmless Seller, its officers, directors, employees, parent, subsidiaries, divisions, affiliates, successors and assigns, to the fullest extent permitted by applicable law, from and against any cost, loss, liability, liability, or damage, including attorneys’ fees (“Losses”), arising out of or relating to:

(a) failure of Buyer, its agents, employees or customers to follow specifications, instructions, warnings or recommendations furnished by Seller.

(b) failure of Buyer, its agents, employees or customers to comply with all applicable laws and regulations, including, but not limited to any applicable Federal, state and local laws and regulations governing hazardous materials or safety, all as they may be amended or supplemented from time to time.

(c) misuse of the goods by Buyer, its agents, employees or customers including use of goods with any substance that causes injury to person or property.

(d) misrepresentation by Buyer, its agents, employees or customers.

(e) the sole or contributing negligence of Buyer, its agents, employees or customers.

(f) alleged infringement of any patent, trademark or copyright as a result of Seller’s performance in accordance with Buyer’s designs, plans, specifications or directions.

(g) any and all Losses arising on account of the manufacture, use, storage, maintenance or repair of any of Seller’s goods regardless of by whomever manufactured, used, operated, maintained or stored and/or arising as a result of claims based upon strict liability imposed upon Seller except for claims directly resulting from Seller’s willful misconduct or gross negligence.

(h) Buyer’s breach of these GTCs and any applicable SOC. Buyer hereby waives and releases Seller from all rights of contribution or indemnity to which it may otherwise be entitled.

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Cancellation by Buyer

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     Buyer may cancel this contract only upon Seller’s written agreement and payment of reasonable cancellation charges including at Seller’s sole discretion and without limitation, (a) the price for goods, services and raw materials completed or ordered prior to Seller’s receipt of such notice together with reasonable profit thereon, (b) all costs previously incurred in connection with uncompleted goods or services together with reasonable profit thereon, and (c) all other expenses incurred by Seller by reason of such cancellation.

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Returns for Credit

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     In no event are goods to be returned without in each instance obtaining the Sellers’s prior written permission. The Seller reserves the right to refuse any goods returned for credit without such prior written permission. Unless otherwise indicated by the Seller, all goods shall be returned FOB point of delivery and all risk of loss or damage in transit shall not pass to the Seller until delivery thereto. The amount of the credit given to the Buyer shall be fixed by the Seller in its sole discretion.

Taxes

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All taxes and other charges imposed by federal, state, local or foreign governments on the manufacture, sale, shipment, import, export, VAT, excise, use of the goods (other than income taxes on the Seller), or any other tax, are not included in the price and shall be paid by Buyer. Buyer shall defend, indemnify and hold harmless Seller from and against all liabilities for such taxes or charges and attorneys’ fees or costs incurred by Seller in connection therewith. If applicable, Buyer shall provide Seller with a tax exemption certificate from the taxing authorities.

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Buyer’s Materials

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     All of Buyer’s tooling, goods, and other property in Seller’s possession shall be fully insured by Buyer and Buyer releases Seller from all liability for loss or damage to such material caused by Seller’s negligence or otherwise. Whenever one (1) year has elapsed since the completion of any order from Buyer requiring the use of such materials, Seller may make any use or disposition of such materials without any liability to Buyer.

Seller’s Proprietary Rights. Seller shall be the sole owner of all drawings, inventions, tooling and improvements made by or for Seller in connection with the performance of these GTCs and the applicable SOC. Buyer shall not reproduce any drawing furnished by Seller. The Seller may disclose to the Buyer confidential business information of the Seller, including but not limited to prices of goods or services and the names of the Seller’s suppliers of goods or services. Buyer shall not use or disclose any of Seller’s trade secrets perpetually or use or disclose Seller’s confidential information for a period of three (3) years from the effective date of the applicable SOC, whether or not designated as such, except, in the case of confidential information, as required in connection with the use or resale of the goods or services covered by these GTCs and any applicable SOC and pursuant to these GTCs and any applicable SOC.

Title 

    Title to goods shall remain in Seller until payment in full is received by Seller in accordance with these GTCs and the applicable SOC.

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Credit and Collection

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      To the fullest extent permitted by law, the Seller reserves the right at any time to suspend credit or to change the payment or credit terms provided herein or elsewhere when, in the Seller’s sole determination, the financial condition or business prospects of the Buyer so warrant. In such a case, in addition to any other rights herein or by law provided, adequate assurances of the Buyer’s ability to perform its obligations to the Seller, such as cash payment by the Buyer or satisfactory security from the Buyer, may be required by the Seller before shipment. Without precluding the use of other forms of assurances, the Seller may accelerate the due date of payment under any invoice or order, withhold performance, change payment terms and/or repossess goods previously delivered, defer shipments under any SOC from Buyer which Seller has accepted until adequate assurances are received, or cancel and any SOC from Buyer which Seller has accepted and recover damages. In extending any credit under this Section 15, Buyer shall pay to Seller interest on the unpaid amount at the maximum annual rate permitted by law or one and one-half percent (1½%) per month, whichever is less and if Buyer fails to pay according to the terms of these GTCs and the applicable SOC, Seller may make such charges and may also collect the amount unpaid with Buyer being liable to Seller for all costs of collection including attorney’s fees and court costs.

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Assignment

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     No SOC or right of the Buyer thereunder or elsewhere, or any obligation of the Buyer to the Seller, may be assigned in whole or in part by the Buyer without obtaining the Sellers’s prior written consent in each instance, which consent may be withheld in the Seller’s sole discretion. The Seller may assign its rights and obligations hereunder in whole or in part on one or more occasions without obtaining the consent of or giving notice to the Buyer.

Miscellaneous

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     These GTCs and the applicable SOC constitute the entire agreement between Buyer and Seller relating to the goods or services which are the subject hereof. No modifications shall be binding upon the Seller unless in writing signed by Seller’s duly authorized representative. If any term or provision of these GTCs or the applicable SOC shall to any extent be invalid or unenforceable, such provision will be enforced to the maximum extent permitted by applicable law and the remainder of the agreement shall not be affected thereby, and each term and provision of the agreement shall continue to be valid and enforced to the fullest extent permitted by law. No waiver by either party of default shall be deemed a waiver of any subsequent default. The captions used herein shall have no substantive significance.

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Disputes and Governing Law

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     Any dispute or controversy arising under these GTCs and the applicable SOC shall be settled by arbitration under the commercial arbitration rules of the American Arbitration Association (“AAA”) by a single Arbitrator selected from a list of proposed Arbitrators submitted by the AAA. Any award in such arbitration may be entered in and enforced by a court of competent jurisdiction.  Such arbitration shall take place in Florida within two (2) months after the Arbitrator is selected.  The Arbitrator shall determine which party’s legal position in any controversy or claim is the more substantially correct (the “Prevailing Party”) and shall include in the award a requirement that the non-prevailing party pay to such Prevailing Party the AAA fees, the Arbitrator’s fees and expenses and the reasonable counsel fees and expenses of the Prevailing Party. These GTCs and the applicable SOC and the transactions contemplated by this agreement shall be construed under the internal laws of the State of Florida without regard to principles of conflicts of laws.

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Attorneys’ Fees

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    If Seller pursues any legal action to enforce any of its rights, Seller shall be entitled to recover from Buyer all reasonable attorneys’ fees and all other costs and expenses incurred by Seller in connection with such action.

Survival.  

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Section 1: (Payment Terms and Late Fee)

Section 2: (Delivery and Performance), Section 4 (Warranty and Remedy)

Section 5: (Limitation of Seller’s Liability)

Section 7: (Limitation of Actions)

Section 8: (Indemnification and Waiver)

Section 11: (Taxes)

Section 13: (Sellers Proprietary Rights)

Section 16: (Assignment)

Section 17: (Miscellaneous)

Section 18: (Disputes and Governing Law)

Section 19: (Attorneys’ Fees) shall survive termination of these GTCs and the applicable SOCs.