TERMS AND CONDITIONS OF SALE
1. Title: Title to and risk of loss of all Products sold hereunder shall pass to Buyer upon Seller’s delivery to carrier at point of shipment whether or not Seller pays all or any part of the freight, and notwithstanding any designation in this Agreement of any other F.O.B. point, provided, however, that Seller shall retain a security interest in and a lien on such Product until payment by Buyer of all amounts due Seller from Buyer with respect to such Product.
2. Taxes: Buyer shall pay, or reimburse Seller for, all taxes, duties and other governmental charges of whatsoever kind imposed upon Seller with respect hereto or upon any transaction, goods, use of goods, production of goods, or Seller’s purchase or use of raw materials to make goods sold hereunder. Buyer shall be responsible for tax, penalty, and interest levied against Seller (pursuant to an audit or any other method of levy) and will be billed for these charges by Seller. Paying the invoice does not absolve Buyer from tax liabilities levied in the future due to instances including, but not limited to, internal/external audit, tax law changes, etc. These charges may be recovered from Buyer in a court of law. Buyer agrees to work with Seller to mitigate any tax assessments levied against either Party.
3. Price and Quantity: Price and quantity shall be separately designated by Seller for each type of goods sold hereunder. Unless otherwise stated within the Sales Agreement/invoice to which these Standard Terms of Sale apply (the Sales Agreement/invoice and these Standard Terms of Sale are collectively hereinafter the “Agreement”), all prices shall be FOB Seller’s point of manufacture or storage as selected by Seller.
4. Credit and Payment: Seller’s duty to perform and Buyer’s right to purchase hereunder is, at all times, subject to approval, and continuing approval, by Seller of Buyer’s creditworthiness. Without limiting Seller’s rights and remedies on credit issues or any other causes(s), if Buyer fails to pay any amount promptly when due hereunder or if Seller requires further assurance of Buyer’s creditworthiness, Seller may, at its sole discretion, cancel this Agreement, demand different payment terms, suspend or recall deliveries or shipments, impose different credit terms, or impose different requirements for collateral assurance of payment. ANY SUCH DEMAND MAY BE MADE ORALLY AT SELLER’S ELECTION. Seller is hereby given an express right to set-off against any amount whatsoever owing, or becoming due, to Buyer hereunder.
Unless other terms are agreed or designated by Seller, payment shall be net thirty (30) days from date of Seller’s invoice. Payments not made within agreed or designated terms shall bear interest from original due date at – (i) the rate of 18% per annum or, if this rate is prohibited by applicable law; then (ii) the highest rate allowed by applicable law.
5. Warranties and Limitations: Seller warrants only that Seller has valid and marketable title to goods covered hereby at the time of delivery to Buyer;
ALL OTHER WARRANTIES OF SELLER, EXPRESSED OR IMPLIED, AND ALL REPRESENTATIONS, GUARANTEES, INSTRUCTIONS, PROMISES, DESCRIPTIONS AND SAMPLES FROM SELLER OF, OR PERTAINING TO, PRODUCT QUALITY, COMPOSITION, CHARACTERISTICS, ENVIRONMENTAL OR HUMAN SAFETY OR HAZARD OR HEALTH AFFECTS, PERFORMANCE OR LIKE MATTERS ARE EXCLUDED. WITHOUT LIMITATION ON THE FOREGOING SENTENCE, ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY AND ALL SELLER WARRANTIES OF FREEDOM FROM PATENT INFRINGEMENT ARE EXCLUDED.
6. Acceptance/Notice of Claims: To reduce the potential of Buyer re-selling or using nonconforming goods, the following shall apply to each shipment or delivery as to the exclusive procedure of acceptance therefor: Buyer shall – (i) inspect or cause to be inspected the goods within a reasonable time after delivery to Buyer and, in any event, prior to any sale, re-sale, other transfer or use thereof by or for Buyer; (ii) promptly report to Seller any actual or potential non-conformity that Buyer does or should discover; prior to sale, re-sale, other transfer or use thereof and hold such available for Seller’s prompt inspection; and (iii) not permit any sale, re-sale, other transfer or use of the goods prior to Seller promptly inspecting the same and determining whether Seller will supply replacement goods, or otherwise remedy the non-conformity, as required by Section 8 hereof. Further, Buyer shall be responsible for, and hereby assumes, all risk for all sales, re-sales, other transfers, uses or misuses of the goods by Buyer, or by any third person or entity by, under, through or for Buyer and, further, for determining that the goods are suitable for the eventual end-use thereof by Buyer or any third person or entity by, under, through or for Buyer, including but not limited to any governmental agency or unit.
Additionally, any and all claims related to any transaction between Buyer and Seller must be submitted in writing to Seller within forty-five (45) days of Buyer’s receipt of Products. Buyer acknowledges and agrees that all claims not made in writing by Buyer and received by Seller within such forty-five (45) day period shall be deemed to be waived by Buyer.
7. Excused Performance:
(a) Force Majeure – The Parties shall be excused from their respective performance hereunder if performance has been prohibited or delayed by any cause(s) beyond the reasonable control of the Party claiming an excuse. Such excused performance shall include, without limitation, any failure of mechanical or chemical function or equipment normally used by Seller or its manufacturer for receipt, manufacturing, handling, or delivering of goods and shortages at or failure of any expected or normal source of supply of goods or raw materials from which goods are derived or manufactured. Promptly after a Party determines to claim excuse of performance, the Party shall notify the other in writing of the circumstances and consequences claimed and shall use reasonable means to remove the cause(s) in question. But in no event shall either Party be obligated to settle any demands of, or disputes with laborers, nor shall either Party be excused from paying monies due nor shall Buyer be excused from complying with credit terms of Seller. Quantities affected by such cause(s) shall be dropped from this Agreement, but this Agreement shall otherwise continue in force and effect. In periods of shortage of goods due to such cause(s), Seller shall be entitled to allocate available supply among its customers, Buyer included.
(b) Impracticability – Seller shall have the right to cancel this Agreement without liability if for any reason Seller or its manufacturer ceases selling the product line of which the goods are a part or shuts down the units in, or the plant at, which the goods are made or if a change in circumstances (whether foreseeable or unforeseeable) causes Seller to incur a loss on a full cost basis at any time on the sale of the goods hereunder.
8. Limited Remedies: Buyer shall not be entitled to recover incidental, special or consequential damages for any losses, costs, expenses, liabilities and damages (including but not limited to, loss of profits, expenses of operation, down time, all liabilities of Buyer to its customers or third parties) whether direct or indirect and whether or not resulting from or contributed to by the default or negligence of Seller, its agents, employees, or subcontractors, which might be claimed as the result of the use or failure of the goods delivered hereunder. SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ARISING OUT OF THIS AGREEMENT IS EXPRESSLY LIMITED, AT SELLER’S OPTION, TO REPLACEMENT OF THE GOODS AT THE F.O.B. POINT STATED HEREUNDER OR PAYMENT NOT TO EXCEED THE PURCHASE PRICE OF THE GOODS AT SUCH F.O.B. POINT FOR WHICH DAMAGES ARE CLAIMED.
9. Indemnity: Buyer shall indemnify and defend Seller from and against any breach of this Agreement by Buyer and from and against any liability, of whatever nature or kind, to which Seller might become subject resulting from Buyer’s handling, storage, sales, transportation, use, misuse or disposal of goods purchased hereunder including but not limited to liability for environmental violations and employee or consumer health or safety. Buyer agrees without limitation to promptly and properly provide to its employees, customer and community representatives, as appropriate, any information provided by Seller relating to hazards, human health, or human or environmental safety on the goods sold hereunder.
10. Law and Jurisdiction: This Agreement shall be governed by the laws of the State of Florida, including any statute of limitation laws but excluding rules of conflict of law. Exclusive jurisdiction and venue is agreed to by the state or federal courts within the State of Florida.
11. Waivers: Waiver by either Party of any breach of the terms and conditions contained herein shall not be construed as a waiver of any other or continuing breach.
12. Assignment: The rights and duties under this Agreement are not assignable or transferable by Buyer, in whole or in part, by operation of law or otherwise, without the express written consent of Seller. Any assignment or attempted assignment in contravention of the foregoing shall be null and void, shall be considered a breach of this Agreement and shall permit Seller, in addition to any other rights which it may have, to terminate this Agreement. Notwithstanding any other provision herein, the rights and duties under this Agreement may be assigned or transferred by Seller, in whole or in part, at Seller’s sole discretion.
13. Claims: If claims or legal proceedings are asserted or instituted by Seller to enforce its rights or remedies hereunder or related hereto, Seller shall, in addition to any legal remedy awarded it, be entitled to recover from Buyer all court costs, reasonable attorney’s fees and expenses incurred by Seller incident to such.
14. Loading and Transporting Conditions:
(a) Right to Reject Transport Vehicles and Refuse to Load/Transfer Under Unsafe Conditions:
(i) Seller reserves the sole right to reject any rail cars, trucks, transports, barges, vessels or containers presented for loading which Seller reasonably believes would present an unsafe or potentially unsafe situation or condition; and (ii) Seller reserves the right, in its sole discretion, to refuse to load goods under any condition Seller deems unsafe, which is caused by, including but not limited to, drivers, personnel, equipment, procedures and/or weather conditions.
(b) Compliance with Seller designated policies and procedures: Buyer agrees that it, including its contractors, agents and employees will comply with all of Seller’s safety regulations and rules when such contractor’s agents or employees are on Seller’s premises in connection with the performance of this Agreement.
(c) Compliance with Hazmat Laws: If and to the extent, Buyer loads, unloads or ships hazardous materials (as listed in the Tables of 49 C.F.R. 172.101 and 172.102 as amended from time to time) pursuant to this Agreement, Buyer hereby warrants that all hazardous materials shall be prepared for shipment, loaded, shipped and unloaded in compliance with all applicable federal, state, and local laws, rules and regulations regarding the handling and transportation of hazardous materials and Buyer shall indemnify and defend Seller from all liability, of whatever nature, to which Seller may become subject as a result of Buyer’s failure to comply therewith.
(d) Accident reporting and emergency response: If a release occurs after the goods have left Seller’s shipping point and as between Seller and Buyer, Buyer shall make all release notifications and reportings that are legally required and shall provide Seller with written notice of such release notifications and reportings within three (3) business days of making such notifications and reportings. Further, as between Seller and Buyer, Buyer shall be responsible for and shall clean up all releases that occur after the goods have left Seller’s shipping point pursuant to applicable governmental standards and agency directives.
(a) Buyer further agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the Treasury Department’s Office of Foreign Assets control, and the International Traffic in Arms Regulation maintained by the Department of State. Specifically, Buyer covenants that it shall not, directly or indirectly, sell, export, transfer, divert, or otherwise dispose of any goods or technology (including goods derived from or based on such technology) received from Seller under this Agreement to any destination, entity, or person prohibited by laws or regulations of the United States, without obtaining prior authorization from the competent governmental authorities as required by those laws and regulations. Representative and/or Buyer agrees to indemnify, to the fullest extent permitted by law, Seller from and against any fines or penalties that may arise as a result of Representative’s and/or Buyer’s breach of this provision. This export control clause shall survive termination or cancellation of this Agreement.
(b) Compliance with Antiboycott Law. Despite any other provision of this Agreement, no Party shall be required to take or refrain from taking any action inconsistent with or penalized under the laws of the United States or any applicable foreign jurisdiction, including without limitation the antiboycott laws administered by the U.S. Commerce and Treasury Departments.
16. Miscellaneous: This Agreement constitutes the entire agreement and contract of the Parties and shall control over any other terms except that, to the limited extent that any separate writing of the Parties – (i) relates expressly and directly hereto; (ii) is mutually executed by respective officers of Seller and Buyer; and (iii) is intended by the Parties to replace or supersede rather than to supplement a specific portion of these terms herein, then such specific, replacing or superseding term shall control over the term hereof in question but not otherwise.
IF BUYER DOES NOT ACCEPT THESE STANDARD TERMS OF SALE BY EXECUTION HEREON OR OTHERWISE IN WRITING WITHOUT ALTERATION HEREOF OR ADDITION HERETO, THEN BUYER SHALL BE DEEMED TO HAVE ACCEPTED THESE STANDARD TERMS OF SALE BY PURCHASING OR TAKING DELIVERY OF, GOODS FROM SELLER. ANY ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS AND CONDITIONS EXCEPT SUCH AS MEETS THE REQUIREMENTS OF THE FIRST PARAGRAPH OF THIS SECTION. Without limitation on Seller’s rights, no term in Buyer’s purchase order or any other document, correspondence, or communication from Buyer which conflicts with the terms of this Agreement is, or shall be, accepted by Seller except in a separate written agreement executed by an officer of Seller. Headings are provided for convenience, and are not part of the Agreement of the Parties. Seller’s rights and remedies hereunder are in addition to, and not in lieu of, Seller’s other rights and remedies.
These Standard Terms and Conditions can be located online at https://www.arrmaz.com/terms-and-conditions. ArrMaz maintains its right to modify these terms at any time without notice to Buyer. Buyer acknowledges and accepts its responsibility to regularly review ArrMaz’s Standard Terms and Conditions at the above referenced web address.
These ArrMaz Standard Terms and Conditions are updated as of March 1, 2015.