1. ACCEPTANCE: If the terms and conditions of the Buyer’s order differ in any way from the terms and conditions of this quotation, the Buyer’s order shall be construed as a counteroffer and shall not be effective unless and until the Seller asserts in writing to the terms and conditions contained therein. No additions or modifications of any of the terms and conditions hereof shall be effective unless made in writing and signed by both parties.
2. TERMS OF PAYMENT: Terms of payment are Net 30 Days upon credit approval by Seller’s credit department unless otherwise specified in the quotation. If in the judgment of the Seller, the financial condition of the Buyer at any time does not justify continuance of production or shipment on the terms agreed upon, the Seller may require full or partial payment in advance or acceptance by the buyer of C.O.D, delivery.
3. TITLE, DELIVERY, AND ACCEPTANCE: Unless otherwise specified on the face of the order, the goods shall be delivered F.O.B, Seller’s plant and title thereto and liability for loss or damage in transit or thereafter shall pass to Buyer upon Seller’s delivery of the goods to a common Garner 1 or shipment to Buyer. All goods shipped by Seller shall be deemed accepted by Buyer if Buyer does not give Seller written notice of rejection and the reasons therefore within (30) thirty days after receipt of products by the Buyer.
4. PRICES: Quoted prices apply only to the specific quantities stated in this quotation, and do not exceed those quoted to any government agency or commercial concern or like quantities under like conditions. All prices quoted are firm. Prices do not include special packaging, etc. not specified in the quotation. Prices do not include Federal, State or local taxes now or hereafter enacted. Seller requires a minimum purchase order of $750.00.
5. DELAYS/FAILURE TO DELIVER: Seller shall not be liable for delays or failure to deliver if such failure is due to labor stoppages and difficulties, production curtailment due to economic conditions, casualties, accidents, acts of nature, acts of government, failure or curtailment of Seller’s source of materials, supplies or transportation, or any other cause beyond reasonable control of the Seller.
6. QUANTITY VARIATIONS: Productions runs and special material are subject to overruns or under-runs of up to (10%) ten percent of the total quantity ordered. Such overruns or under-runs will be shipped and invoiced on a pro-rata basis in satisfaction of the order.
7. CANCELLATIONS: The Seller reserves the right to recover any and all costs incurred as a result of a cancellation, including, but not limited to, goods/raw materials on hand or in the process of being procured as w ell as applicable overhead and G&A expenses. The Buyer agrees to reimburse the Seller for all cancellation costs with in 30 days after written notification. Cancellation and changes to orders will only be accepted on terms indemnifying the Seller against any losses as a result thereof.
8. INDEMNIFICATION: Buyer agrees to indemnify, save and hold harmless 55 Industries (Seller), its officers, directors, employees and agents, from any and all claims, losses, costs, expenses (including reasonable attorney’s fees), damage or injuries, including personal injury, death and property damage, arising directly or indirectly out of Buyer’s purchase, use, application and/or sale of Seller’s products including resale and subsequent use thereof whether sounding in contract, tort , or otherwise Including strict liability and except in case of willful misconduct or gross negligence on the part of the Seller.
9. LIMITED WARRANTY: Seller warrants that all goods covered hereby will be free from defects in material and workmanship and shall conform to the specifications, drawings and samples, if any, for a period of 90 days from the date of shipment by the Seller. The Seller shall offer warranties for all overhauled, refurbished and repaired goods on a case-by-case basis. No person other than Buyer shall be entitled to any right, claim or benefit under this limited warranty. Seller’s obligations under this limited warranty are limited to repairing or replacing any defective product sold by Seller. Seller shall have no obligation under this limited warranty unless product is promptly returned to Seller, transportation charges prepaid by Buyer, providing that the Buyer has been assigned a Return of Material Authorization (RMA) number from Seller prior to return, and Seller determines the applicability of this limited warranty by examination of such product within a reasonable time after such return of the product to Seller. The Buyer shall bear the costs of reshipment of the product to Buyer if Seller determines the product is beyond the warranty period or otherwise not entitled to the benefits of this limited warranty. No labor or other costs for removal of any product sold by Seller from Buyer’s end item in which it is installed or re-installation thereof will be provide d or allowance given therefore under the provisions of this limited warranty or otherwise. The provisions of this limited warranty shall not apply to any product sold by the Seller which has been subject to misuse, negligence, alteration, accident or improper installation, application or storage. This limited warranty is the only warranty applicable to the products sold and is expressly in lieu of any other warranties or indemnification, express or implied, including any implied warrants of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE and any liabilities to Buyer, Buyer’s customers or any other person for personal injury or property damage or any other product liabilities based up on alleged negligence or breach of express or implied warranty or strict liability otherwise, and seller neither assumes nor authorizes any other person to assume for it any other obligation or liability in connection with such products.
10. GOVERNING LAW: The terms of this agreement and all rights and obligations here under shall be governed by the laws of the State of Florida, U.S. Federal laws, statutes and applicable international laws.
11. DISPUTES: The parties agree to exercise their best efforts to settle all disputes arising under this Agreement. Any and all disputes arising out of or in connection with negotiation, execution, interpretation and performance of either party under this Agreement, which cannot be settled by the parties themselves, shall be settled by the American Arbitration Association, The cost of arbitration shall be borne by each party with respect to each party’s interest in the dispute. The decision of the American Arbitration Association will prove to be final.