I. COMPANY, PRODUCT
Seller is an importer and distributor of goods intended for general purposes.
Seller’s products, which may change from time to time, are defined as Face Masks and N95 Respirators Not Intended for a Medical Purpose as established by the Enforcement Policy for Face Masks and Respirators During the Coronavirus Disease (COVID-19) Public Health Emergency - Guidance for Industry and Food and Drug Administration Staff . The intended use of Seller’s products is for Personal Protective Equipment (PPE) for the general public.
II. TERMS OF PAYMENT
Invoices are payable as described on Sales Order Form.
III. PAYMENT, PRICE, TRANSPORTATION
Production commencement, production readiness and/or delivery of goods, will take effect upon Seller’s confirmation of funds received.
All prices quoted by Seller are subject to change at any time and to any addition which may be necessary to cover any tax or charge now existing or hereafter imposed by Federal, State or Municipal Authorities upon products or services sold by Seller for the production, sale, distribution or delivery thereof, or upon any feature of this transaction. Seller reserves the right to correct all typographical or clerical errors, which may be present in Seller's prices or specifications.
Taxes: Any sales tax applicable to the sale and any tax, impost, levy, duty or other charge hereafter imposed by any government or other authority upon the production, use or sale of any goods or upon the materials, methods or machines for producing the same and any increase in cost to Seller in manufacturing, processing or delivering any goods resulting directly from government supervision, regulation, or control, now or hereafter prescribed by law or in force, and affecting Seller's performance of its obligations, will be added to the purchase price as herein noted or any revisions thereof, will be paid by Buyer.
Seller will not assume any responsibility for any damage resulting from any delays beyond its control. Further, no goods may be returned to Seller as all sales are final.
When applicable, upon due tender of goods for delivery at the F.O.B. point all risk of loss or damage and other incident of ownership pass to Buyer, but Seller retains a security interest in the goods until purchase price is paid.
Seller warrants that goods sold hereunder are merchantable UNLESS manufactured in conformance with Buyer’s particular specification, and that Seller conveys good title thereto. IN NO EVENT WILL SELLER BE LIABLE FOR CONSEQUENTIAL DAMAGES EVEN IF CUSTOMER HAS NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR THE EXPRESS WARRANTY STATED IN THIS PARAGRAPH IV, SELLER GRANTS NO WARRANTIES, EITHER EXPRESS OR IMPLIED HEREIN, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THIS STATED EXPRESS WARRANTY IS IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF SELLER FOR DAMAGES INCLUDING BUT NOT LIMITED TO, CONSEQUENTIAL DAMAGES OCCURRING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF ANY
GOODS SOLD HEREUNDER. Seller specifically does not warrant the accuracy of sufficiency of any advice or recommendations given to Buyer in connection with the sale of goods hereunder.
Limit of Seller's Liability Buyer's Remedy: IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, INCLUDING WITHOUT LIMITATION DAMAGES FOR INJURY TO PERSON OR PROPERTY, LOST PROFITS OR REVENUE, LOST SALES OR LOSS OF USE OF ANY PRODUCT. BUYER'S SOLE AND EXCLUSIVE REMEDY AGAINST SELLER SHALL BE THE REPLACEMENT OF NONCONFORMING GOODS AS PROVIDED HEREIN. SELLER'S LIABILITY ON ANY CLAIM, WHETHER IN CONTRACT, TORT, REFLUENCE, STRICT LIABILITY OR OTHERWISE, OR ANY LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH BUYER'S ORDER, SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE ORDER. THE SOLE PURPOSE OF THE STIPULATION OF THE EXCLUSIVE REMEDY PROVIDED FOR HEREIN SHALL BE TO PROVIDE BUYER WITH REPLACEMENT OF NONCONFORMING GOODS IN THE MANNER PROVIDED HEREIN. SUCH REMEDY SHALL NOT BE DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE SO LONG AS SELLER IS WILLING AND ABLE TO REPLACE NONCONFORMING GOODS IN THE PRESCRIBED MANNER.
Buyer understands that all sales are final. Buyer acknowledges that any deposit made to Seller is intended for the production of the goods. Therefore in the event that Buyer defaults on order, Seller’s damages shall be the contract price of the goods.
VII. FORCE MAJEURE
Seller shall not be liable for any damages resulting from: any delay or failure of performance arising from any cause not reasonably within Seller’s control; accidents to, breakdowns or mechanical failure of machinery or equipment, however caused; strikes or other labor troubles, shortage of labor, transportation, raw materials, energy sources, or failure of unusual means of supply; fire; flood; war, declared or undeclared; insurrection; riots; acts of God or the public enemy; or priorities, allocations or limitations or other acts required or requested by Federal, State or local governments or any of their sub-divisions, bureaus or agencies. Seller may, at its option, cancel this Agreement or delay performance hereunder for any period reasonably necessary due to any of the foregoing, during which time this Agreement shall remain in full force and effect. Seller shall have the further right to then allocate its available goods between its own uses and its customers in such manner as Seller may consider equitable.
Seller shall defend and hold Buyer harmless for any action against Seller based in a claim that Buyer’s sale or use of goods normally offered for sale by Seller, supplied by Seller hereunder, and while in the form, state or conditions supplies constitutes infringement of any United States letters patent; provided Seller shall receive prompt written notice of the claim or action, and Buyer shall give Seller authority, information and assistance at Seller’s expense. Buyer shall defend and hold Seller harmless for any action against Seller or its suppliers based in a claim that the manufacture or sale of goods hereunder constitutes infringement of any United States letters patent, if such goods were manufactured pursuant to Buyer’s designs, specifications and /or formulae, and were not normally offered for sale by Seller; provided Buyer shall receive prompt written notice of the claim or action and Seller shall give Buyer authority, information and assistance at Buyer’s expense. Buyer and Seller agree that the foregoing constitutes the parties’ entire liability for claims or actions based on patent infringement.
The Buyer will indemnify the Seller against and hold harmless from any and all claims, actions, proceedings, expenses, damages, liabilities, penalties, liens, costs and expenses, including attorney's fees (including any of the foregoing arising or imposed without Seller's fault or negligence or under the doctrine of strict liability) arising in connection with the goods. Buyer agrees that upon written notice by Seller of the assertion of any of the foregoing against Seller, Buyer will assume full responsibility for the defense thereof. All claims by Buyer against Seller must be made in writing to Seller within 10 days after the receipt of the goods and prior utilization of the goods by Buyer. Failure to give such notice within such time will constitute a waiver by Buyer of all claims wish respect to such goods.
IX. WAIVER, MISTAKE
Seller’s waiver of any provision herein or any breach thereof, shall not constitute a waiver of any subsequent breach thereof, nor of any other provision herein. Seller may correct any errors herein, on any invoice issued to Buyer, or on its published price sheets, and such correction shall operate to amend this Agreement.
X. CHOICE OF LAW, ATTORNEY FEES
Governing law. This Agreement shall be construed under and governed by the laws of the State of Florida. This Agreement shall be interpreted under and governed by the laws of the State of Florida determined by a judge sitting without a jury. The exclusive venue of any action brought under this Agreement shall be Miami-Dade County, Florida. Buyer and Seller expressly agree this Agreement is to be governed by the Uniform Commercial Code as enacted and construed in State of Florida.
Attorney's fees. If legal proceedings are brought to enforce this Agreement, the prevailing party shall be entitled to recover its or his/her reasonable attorney's fees (including appellate attorney's fees) and the other reasonable costs incurred by it or her in connection with such proceedings. For purposes of this Paragraph, "prevailing party" is defined as the person or entity who prevails in a judgment or other disposition. Settlements are excluded from this fee-shifting provision unless the applicable settlement agreement expressly provides for the payment of attorneys' fees.
XI. CONFLICTING PROVISIONS
Buyer expressly WAIVES all provisions contained in any of Buyer’s correspondence or forms involved in this sale which negate, limit, extend or conflict with provisions herein and agrees that this Agreement constitutes the entire contract between Buyer and Seller except as expressly negated, limited or extended by Seller IN WRITING and signed by an officer of Seller.
XII. ARBITRATION FOR CLAIMS EXCEEDING $2,000.00
Any and all disputes relating to this Agreement or its breach in which the amount in controversy exceeds Two Thousand ($2,000.00) Dollars shall be settled by arbitration in Florida in accordance with the then current rules of the American Arbitration Association, and judgement upon the award entered by the arbitrator may be entered in any Court having jurisdiction hereof. Costs of arbitration, including reasonable attorney’s fees incurred in arbitration as determined by the arbitrator, together with any reasonable attorney’s fees incurred by prevailing party in Court enforcement of the arbitration award after it is rendered by the arbitrator, shall be paid to the prevailing party by the party designated by the arbitrator or Court. The arbitrator is directed to strictly apply the law of the State of Florida.
Should one party either dismiss or abandon its claim or counter-claim before hearing thereon, the other party shall be deemed the "prevailing party" pursuant to this Agreement. Should both parties receive judgement or award on their respective claim, the party in whose favor the larger judgement or award on their respective claim is rendered shall be deemed the "prevailing party" pursuant to this agreement.
This provision shall in no way effect or limit any rights Seller may have to enforce any security granted by law including but not limited to statutory right to repossession, garageman’s lien, mechanic’s liens, stop notices, or suit on payment bonds.
XIII. Additional Terms
The goods are destined solely for the ultimate consignee and are not to be diverted to any other party. The values listed may be used for customs purposes only and may not reflect the actual cost to the buyer.
Serviceability: No provision of these terms and conditions which may be deemed invalid or enforceable against the parties or their successors or assigns, will in any way invalidate or make enforceable any other provisions of these terms and conditions, all of which will remain in full force and effect.