TERMS AND CONDITIONS.
DELIVERY; SHIPMENT.
Delivery of Goods. Purchaser agrees that Company may deliver or otherwise tender Goods in partial shipments. If full delivery of the Goods is not made in the quantities and on the delivery date or dates specified, Purchaser’s remedies shall be limited to the right to cancel the order by written notice effective when received by Company as to Goods not yet shipped. The foregoing notwithstanding, in the event Company has made a good faith effort to comply with the delivery date set forth in the order, if the delay in delivery is caused by a reason beyond Company’s control and Company can cure within a reasonable time from the delivery date, Purchaser shall extend the delivery date accordingly.
Shipping. All Goods required to be shipped, as mutually decided by the Parties, shall be shipped in the manner mutually agreed-upon by the Parties. If Purchaser does not specify the manner of shipment, route or carrier, Company shall ship the Goods at the lowest possible transportation rates, consistent with Company's obligation to meet the agreed-upon delivery schedule.
CANCELLATION. Purchaser may cancel its order up to twenty-four (24) hours after its final payment is received by the Company and must submit its notice of cancellation to the Company in writing. Restocking fees will apply to any and all cancellations.
REJECTION; INSPECTION. Purchaser shall have the right, but not the obligation, to inspect the Goods and to reject any of the Goods which, in Purchaser's commercially reasonable judgment, are defective. Goods so rejected may be returned to the Company at Purchaser’s expense. Purchaser expressly acknowledges and agrees that Company does not provide cash reimbursement for rejected Goods. Credit for properly rejected, non-confirming Goods shall be applied to Purchaser’s next order. In the event Purchaser does not provide notice of any defects to Company within five (5) business days of the date the Goods are delivered to Purchaser, all Goods shall be deemed accepted by Purchaser. If Company fails to correct defects in or replace non-conforming Goods within twenty (25) days from the date the Purchaser notifies Company of the defect or defects, Purchaser may, upon ten (10) days prior written notice to Company, revoke its acceptance of the non-confirming Goods and request that Company issue a credit note to Purchaser for said Goods.
INVOICES; PAYMENT. Invoices shall contain the order number, description of Goods, quantities, unit prices, and total purchase price. All taxes shall be stated separately. Payment shall be made on the terms specified by the Parties at the time the order is placed. If payment for any order shall become overdue for a period in excess of ten (10) days, in addition to such payment, Company may, in its sole discretion, impose a late charge in the amount of _five_(5%) percent of such overdue payment, which shall be paid by Purchaser to Company for the purpose of defraying the expenses incident to handling such delinquent payments. In the event Purchaser shall fail to pay the purchase price by the date established by the Parties at the time the order is placed, and such failure shall continue for thirty (30) days, then, in addition to Company’s rights herein, interest shall accrue thereon at the rate of __three__ (3%) percent per annum from the thirty-first day after the due date until the date of payment. Lost or stolen goods will result in $25 replacement cost.
CHANGE ORDERS. No order modification (“Change Order”) shall be effective without Purchaser's and Company’s prior written consent. Purchaser may, subject to availability and Company’s sole discretion, change (i) the place of delivery, (ii) the time of delivery, or (iii) the quantity purchased, subject to payment for additional costs incurred by Company, which shall be invoiced to Purchaser prior to executing any Change Order.
INTELLECTUAL PROPERTY. Purchaser shall not use the Company’s trademarks, insignia, products, subsidiary names or facsimile for any purpose, including but not limited to advertising, marketing, or referencing, without prior, written authorization of the Company. Purchaser hereby acknowledges and agrees that Company retains all ownership and intellectual property rights in the Company’s trademarks, insignia, products, subsidiary names or facsimile and that no provision found in this Agreement shall grant Purchaser any other right, title or interest therein.
CONFIDENTIALITY. Purchaser acknowledges that as a result of this Agreement, Purchaser has been or may become familiar with information not generally known or released to the public, whether disclosed orally or in writing, regarding: (i) the identity, personnel, present and anticipated future requirements of the Company and its customers, prospective customers, vendors or suppliers; (ii) financial and cost information regarding the Company and its customers, vendors and suppliers; (iii) pricing, terms and conditions of contracts and transactions between the Company and its customers, vendors and suppliers; (iv) patents, trademarks, copyrights, inventions, products, specifications, computer programs, processes, designs, ideas, prototypes, models, drawings, discoveries, concepts, trade secrets, formulas, systems and other technical information used by the Company that relate to the Company’s business which are not a matter of public record (“Trade Secrets”); and (v) business plans of the Company (all such information collectively referred to as "Confidential Information"). Purchaser acknowledges that (i) Confidential Information constitutes valuable information relating to the Company’s business from which the Company shall derive economic benefit; (ii) the disclosure of such Confidential Information would cause substantial loss of goodwill and financial injury to the Company; and (iii) Purchaser shall not, at any time during the term of this agreement or after the expiration or termination of this Agreement, disclose such Confidential Information to any third parties without the express, written authorization of the Company. Upon the termination or expiration of this Agreement for any reason, or upon the Company’s earlier request, Purchaser shall (i) deliver all tangible documents and materials containing, reflecting, incorporating or based on any Confidential Information; (ii) permanently erase all Confidential Information from its computer systems; and (iii) certify compliance therewith to the Company in writing.
FORCE MAJEURE. Neither Purchaser nor Company shall be deemed to have breached this Agreement as a result of delays in performance where such delays result from occurrences that are beyond the control, and without the fault, of the Party seeking excuse hereunder. Neither Party shall be liable for delays caused by the other Party. Any party seeking excuse shall notify the other Party in writing of the cause of the delay within ten (10) days of its delay and take all reasonable steps to mitigate the effect of such delay on the other Party. The time of any affected performance provided hereunder shall be extended by a period of time equal to the length of any such excused delay, or, at the election of Purchaser, Purchaser may terminate for convenience its requirements with respect to all or part of the order. Purchaser's obligation to make any payments hereunder shall be suspended for the duration of any excused delay hereunder. Notwithstanding the above, in the event of an excused delay in Company's performance beyond sixty (60) days from the date the delay begins, Purchaser has the right to terminate this Agreement, and such termination shall be treated as a termination for convenience.
INDEMNIFICATION; LIMITATION OF LIABILITY. To the fullest extent permitted by law, Purchaser shall indemnify and hold harmless Company and its officers, directors, shareholders, employees, agents, attorneys, agents and representatives (collectively, “Indemnitees”) and, upon request, shall defend Company from and against any or all claims, demands, litigation or proceedings of any kind, whether based in whole or in part upon willful misconduct, any negligent act or omission, breach of express or implied warranty, strict liability or any other theory, and from and against all direct, indirect, special, exemplary, incidental or consequential damages of every kind whatsoever, arising out of, by reason of, or in any way connected with this Agreement. Purchaser further covenants to pay, in advance, for any and all expenses or disbursements of any nature (including all attorneys’ fees and costs) incurred by the Company and its Indemnitees for any loss or damage suffered as a result of or in connection with any claims, judgments or proceedings established against Purchaser by any person in connection with anything done to fulfill the purposes and obligations under this Agreement or arising from the fulfillment of the purposes and obligations under this Agreement. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT BE GREATER THAN THE AMOUNT PAID BY PURCHASER FOR THE GOODS. TO THE MAXIMUM EXTENT ALLOWABLE UNDER APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE UNDER THIS AGREEMENT FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES EVEN IF PURCHASER HAS NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
COMPANY’S LIABILITY SHALL FURTHER BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW. THIS PROVISION SHALL HAVE NO EFFECT ON COMPANY’S CHOICE OF LAW PROVISION SET FORTH HEREIN.
DISCLAIMER. BY ENTERING INTO THIS AGREEMENT, YOU AGREE THAT ANY GOODS YOU PURCHASE ARE PURCHASED AT YOUR SOLE RISK. THE GOODS ARE PROVIDED BY COMPANY "AS IS", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, COMPANY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, LEGALITY OF ANY PURPOSE FOR WHICH THE GOODS ARE USED, INTENDED TO BE USED OR REPRESENTED TO BE FIT FOR, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COMPANY MAKES NO WARRANTY AS TO THE QUALITY OF THE MATERIAL AND WORKMANSHIP OF THE GOODS AND MAKES NO WARRANTY THAT THE GOODS WILL MEET YOUR REQUIREMENTS, WILL BE SUFFICIENT FOR THE PURPOSE INTENDED, OR WILL BE FREE FROM DEFECT. THE COMPANY IS MERELY THE SELLER OF THE GOODS AND IN NO WAY REVIEWS, ENDORSES OR IS RESPONSIBLE FOR ANY AGREEMENTS OR REPRESENTATIONS MADE BY PURCHASER TO ANY THIRD PARTY WITH REGARD TO THE GOODS. THE COMPANY IS NOT A LAW FIRM, TAX OR FINANCE PROFESSIONAL AND DOES NOT—AND WILL NOT—PERFORM SERVICES PERFORMED BY SUCH PROFESSIONALS.
THE COMPANY MAKES NO WARRANTY REGARDING THE QUALITY, LEGALITY OR SPECIFICATIONS OF ANY SERVICES OR CONTENT PRESENTED IN RELATION TO THE GOODS. THE COMPANY MAKES NO WARRANTY REGARDING THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE GOODS. THE COMPANY MAKES NO WARRANTY AS TO WHETHER THE USE OF ANY INFORMATION, LANGUAGE, IMAGES OR OTHER CONTENT PRESENTED IN CONNECTION WITH THE GOODS CONSTITUTES LEGAL USE UNDER APPLICABLE LAWS.
WARRANTIES AND COVENANTS. Each Party represents and warrants that (i) it has the full power and authority to negotiate and enter into this Agreement, to grant the rights granted herein and to perform fully all of its obligations as set forth in this Agreement; (ii) there are no outstanding obligations or agreements to which that Party is bound that are inconsistent or in conflict with the execution or performance of the activities described in this Agreement; (iii) it shall perform its obligations under this Agreement in a professional and timely manner; and (iv) it shall perform its obligations under this Agreement in compliance with all applicable federal, state and local laws and regulations.
COVENANT NOT TO DISCLOSE. Except as required by an order of a court of competent jurisdiction, the nature and the details of this Agreement, Confidential Information and Trade Secrets shall not be disclosed to any person other than the Parties and their respective counsel, accountants, and other persons or entities for which disclosure is absolutely necessary.
SEVERABILITY. In the event any term or provision of this Agreement shall be held illegal, unenforceable or inoperative as a matter of law, the remaining terms and provisions of this Agreement shall not be affected thereby, but each such term and provision shall be valid and shall remain in full force and effect.
MODIFICATION. No modifications or amendments to this Agreement, of any kind whatsoever, shall be made or claimed by any Party hereto, and no notices of extension, change, modification or amendment made or claimed by any Party hereto shall have any force or effect whatsoever unless the same shall be endorsed in writing and fully signed by the Party against whom enforcement is sought.
CAPTIONS. Captions and Article headings contained in this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement nor the intent of any provision hereof.
FURTHER ASSURANCES. The Parties hereto agree to take all such action as may be reasonably required by any Party to effectuate the terms and provisions of this Agreement and the transactions contemplated herein.
LITIGATION; MEDIATION. In the event of any dispute or litigation between the Parties relating to or arising out of this Agreement, the prevailing Party shall be entitled to an award of reasonable attorneys’ fees and costs at the pretrial, trial and appellate levels or in bankruptcy court, whether such proceedings are brought in the instant action or some other subsequent action. In the event of a dispute, prior to any filings, the Parties agree to submit to non-binding mediation by a certified mediator agreed upon by both parties.
GOVERNING LAW; VENUE. This Agreement and all questions of interpretation, construction and enforcement hereof, and all controversies arising hereunder, shall be governed by the applicable statutory and common law of the State of Florida. Venue for any legal proceedings shall be in Miami-Dade County, Florida.
NO ASSIGNMENT. Unless otherwise agreed to by both Parties in writing, this Agreement is not assignable or transferable. Any attempt to do so shall be void ab initio.
FACSIMILE AS ORIGINAL. Facsimile copies of this Agreement, signed and initialed in counterparts, shall be considered for all purposes as originals.
TIME OF THE ESSENCE. The Parties acknowledge and agree that time is of the essence regarding the execution of this Agreement and the payment of all funds contemplated hereby.
CONSTRUCTION. In giving meaning to this Agreement, the singular shall be held to include the plural, the plural shall be held to include the singular, and the use of any gender shall be held to include every other and all genders.
CONSIDERATION. The Parties hereto acknowledge and agree that each is foregoing certain rights and assuming certain duties and obligations, which, but for this Agreement, would not have been foregone or assumed. Accordingly, the Parties agree that this Agreement is fully and adequately supported by consideration and is fair and reasonable in all of its terms.
WAIVER. No delay or failure by Company in the exercise of any right or remedy shall affect any such right or remedy and no action taken or omitted by Company shall be deemed to be a waiver of any such right or remedy. No waiver of any provisions of this Agreement shall be valid unless in writing and signed by the Party against whom charged.
NOTICES. Any notice, request, instruction, or other communication required or permitted hereunder shall be deemed to be properly given when deposited in the United States Mail, certified mail, return receipt requested, sent hand delivery or by federal express or similar courier, or electronic mail followed with written notice in the form and manner of any of the foregoing mediums, addressed to the Parties as indicated on page 1 of this Agreement.