TERMS AND CONDITIONS
I I. Sellers Terms and Conditions. The terms and conditions as herein written shall supersede all previous communications, agreements or contracts written or verbal and no understanding, agreement term, condition, or trade custom at variance herewith shall be binding on Seller. No waiver or modification of the terms and conditions hereof shall be effective unless in writing and signed by both parties. Any term contained in any purchase order or other document which is different from, inconsistent with, or additional to Seller’s terms and conditions shall be void.
2 Credit and Terms of Payment. Unless otherwise specified, terms are payment are CIA (cash in advance). In the event any invoice is not paid within 30 days after the date thereof, the Buyer shall pay a late payment fee on the unpaid amounts at the rate of one and one-half percent (1.5%) per month. Buyer shall also pay all collection costs of Seller on any delinquent amounts including, but not limited to, court costs and attorney fees. In the event that Seller, in its sole and absolute discretion, shall deem Buyer’s financial condition to be unsatisfactory, Seller shall have the right to (a) limit the amount of credit which Seller may extend to Buyer for the purchase of goods hereunder, and delay manufacture or shipment of Buyer’s orders based upon said limitations (b) require full or partial payment in advance, (c) ship goods to Buyer C.O.D., or require payment to be secured by letters of credit; (d) require written guarantees of payment satisfactory to Seller; or (e) cancel or refuse to accept or fulfill any order from Buyer then outstanding or thereafter placed.
3. Security Interest. Seller retains, and Buyer hereby grants, a security interest, pledge and/or mortgage, or like interest in all goods sold to Buyer hereunder for the unpaid balance of the price thereof. Seller shall have the right to file this Contract as a financing statement, and Buyer agrees to execute any documents required by Seller to evidence and perfect such security interest including individual or blanket financing statements, chattel mortgages, or similar instruments for filing in appropriate jurisdictions. Seller shall have all of the rights of a secured creditor under the Uniform Commercial Code or any similar law that may be applicable, including the right of repossession for non-payment.
4. Price. Published prices and the prices at which Buyer’s order is accepted are subject to adjustment at any time prior to delivery.
5. Taxes. Prices do not include sales, use, excise or similar taxes applicable to the sale of goods hereunder, or their use by Buyer or Buyer’s customers If Seller should be required to pay the same, the prices will be increased accordingly.
6. Shipments. All shipments of goods hereunder shall be made at Buyer’s sole expense and, unless otherwise provided herein, shall be made by Seller FOB point of shipment Title and risk of damage to or loss of goods shall pass to Buyer upon delivery by Seller to the carrier. This Contract is based on current freight charges and the price for goods is subject to adjustment in the event that a change in such rates affects Seller’s cost of performance hereunder. Prices quoted are for furnishing and shipping complete, or in accordance with the delivery schedule specified therewith, the quantity or quantities listed for each item. Should shipping releases or schedules be changed therefrom for any reason beyond Seller s control Seller reserves the right to invoice according to quantities or parts shipped.
7. Time of Shipment. Customer orders shall be processed in order of their acceptance by Seller, and Seller shall use its reasonable efforts to ship goods specified in accepted customer orders in accordance with its manufacturing schedule. Shipment dates are acknowledged to be estimates only, and Seller shall not be liable for failure to ship or for delays in shipment occasioned by contingencies set forth in Section 17 below.
8. Allocation of Goods. In the event of shortages of goods for any reason, Seller shall have the right to allocate available goods in a fair and reasonable manner among its customers in such manner as Seller, in its sole and absolute discretion, may deem appropriate.
9. Unloading and Demurrage. All unloading shall be done by Buyer. All demurrage for delays in unloading and responsibility for damages to persons or property result in a from such unloading shall be for Buyer’s account.
10. Examination of Material. Buyer shall examine goods promptly upon receipt of delivery from the transportation company. Buyer shall advise the transportation company of any damage or shortage thereof prior to acceptance of goods from the carrier and, except for any latent defects, shall advise Seller of any claim with respect to shortages or damages within ten days after receipt thereof. Failure to so advise the transportation company and the Seller shall relieve Seller from any claim by Buyer for shortages or damages and shall constitute a waiver by Buyer of all claims with respect to said goods.
II. Warranties to Buyer.
11.1 Defects. Seller warrants to Buyer that all goods sold to Buyer hereunder shall be free from defects in material and workmanship for a period of one year from the date of shipment This warranty shall not apply to any of the goods which have been repaired or altered outside of Seller’s factory, or in any way, in Seller’s judgement to affect their stability, nor which have been subject to misuse, negligence, accident or improper storage or handling, nor which have been put to other than normal use and service. Seller is not responsible for the selection or suitability of the goods by or for the Buyer or its customers. Seller makes no representation, warranty, or guaranty as to the suitability of any goods for any particular purpose and/or as to Buyer’s success or prospects for success in marketing or selling the goods to Buyer’s customers.
11.2 Remedy. Seller’s sole obligation, and Buyer’s sole remedy, under the warranties set forth above shall be the repair or, at Seller’s sole option, the replacement of any goods which may be determined by Seller to be defective, provided that Buyer shall have notified Seller in writing of such defects within the warranty period set forth above and, provided further, that Buyer shall ship such goods to Seller’s offices for repair or replacement, if necessary, in accordance with Section 11.3 below.
11.3 Costs. Buyer shall pay all freight, insurance, taxes and other costs incurred in the return of goods to Seller’s plant for repair or replacement, and Seller shall pay all such costs incurred in the return shipment of such goods from Sellers plant to Buyer, provided that, in the event Seller shall determine that, in its sole judgement, the goods were not defective when returned or were not otherwise covered by the warranties contained herein, Buyer shall pay all such costs.
11.4 Exclusions. Seller shall not be responsible for the failure of or defects in the goods and the foregoing warranties shall not apply, if such failure or defect is attributable to improper use of goods, accident (including damage during shipment), neglect, misuse or abuse, or exposure of goods to conditions beyond the environmental power of operating constraints specified
11.5 Restocking Charges. In the event Seller agrees to accept goods in return from Buyer, Buyer will have to pay unconditionally a restocking charge of 15% calculated on the invoiced price to Buyer.
12. Limitation of Warranties.
THE WARRANTIES SET FORTH IN SECTION 11 OF THIS CONTRACT ARE THE SOLE AND EXCLUSIVE WARRANTIES AND ARE MADE IN LIEU OF ALL OTHER WARRANTIES. THERE ARE NO OTHER WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE FOR ANY PRODUCTS SERVICES OR OTHER ITEMS SOLD OR FURNISHED UNDER THIS AGREEMENT, AND SELLER DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANT LIABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.1 Seller further warrants that products manufactured by Seller will be tested by the manufacturer during the manufacturing process. All material testing will be performed by Hortomallas Corporation laboratory, with record thereof maintained according to standard Hortomallas Corporation QCQA. Copy of the standard QCQA results are available to Buyer. Seller has no objections to tests by independent laboratories at Buyer cost; however, all results are subject to confirmation by Hortomallas Corporation, the manufacturer. In the event of a discrepancy in the laboratory’s test result, when using the test standards identified in the Hortomallas specification, all parties agree that any dispute will be resolved by the method for settling disputes identified in the applicable standard.
13, Limitation of Liability.
IN NO EVENT SHALL SELLER, ITS SUBSIDIARIES, AFFILIATES, AGENTS OR EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT, OR THE SALE OR FURNISHING OF ANY GOODS, SERVICES OR OTHER ITEMS HEREUNDER OR ANY THIRD-PARTY’S OWNERSHIP, MAINTENANCE OR USE OF ANY GOODS, SERVICES OR OTHER ITEMS FURNISHED HEREUNDER INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR REVENUES, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED GOODS, DAMAGE TO ASSOCIATED GOODS, COSTS OF CAPITAL, COSTS OF SUBSTITUTE GOODS, OR CLAIMS OF CUSTOMERS FOR SUCH DAMAGES. BUYER’S SOLE REMEDY FOR ANY LIABILITY OF SELLER OF ANY KIND, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, WITH RESPECT TO ANY PRODUCT, SERVICE OR OTHER ITEM OR SERVICE FURNISHED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE REMEDY SET
IN SECTION 11.2 OF THIS AGREEMENT. SELLER WILL NOT BE RESPONSIBLE FOR MEETING ANY FEDERAL, STATE. LOCAL OR MUNICIPAL CODE OR SPECIFICATION (WHETHER STATUTORY, REGULATORY OR CONTRACTUAL), INCLUDING SPECIAL BUILDING OR CONSTRUCTION CODES, UNLESS BUYER SO SPECIFIES IN WRITING ATTHE TIME OF ORDER AND SELLER AGREES THERETO IN WRITING.
14. Use of Names and Marks. Buyer represents, warrants and covenants that it shall not use, make reference to, publish, copy or otherwise designate, either orally or in writing, any logo, trademark, servicemark or tradename of Seller (“Mark(s)”) without prior written consent of Seller. Whenever Buyer may be permitted to use any Mark in any form of printed material, buyer shall place an asterisk immediately after and slightly above the first use of the Mark which shall correspond to a footnote reading “Trademark [Tradename or Servicemark] of Hortomallas Corporation.” Upon termination of this Agreement, Buyer shall discontinue the use of all legends adopted in accordance with this Section 14. Buyer further agrees to leave in place all designations of Marks on the goods.
15. Proprietary Information and Confidentiality. Buyer shall hold in confidence and shall not disclose, divulge or publish to any person, or use or copy any trade secret, process, record, plan, projection, information pertaining to customers or prospective customers, financial information, marketing strategies or any other confidential or proprietary information of Seller (including tne terms and conditions of this Contract or any other agreement between Buyer and Seller) acquired hereunder or in connection herewith, or disclosed or transmitted by Seller or any of its agents, employees or affiliates, except as authorized in writing by Seller, and Buyer shall keep, and shall require its officers, directors, employees and agents to keep, such information confidential. Upon termination of this Agreement, Buyer shall surrender all written and descriptive matters including, but not limited to, descriptions, manuals or other papers or documents (and all copies thereof) which contain any confidential or proprietary information. The obligation to keep such information confidential shall continue in effect alter the termination of this Agreement for any reason.
16. Infringement. Seller shall defend or, at its sole option, settle any suit or proceeding brought against Buyer based upon a claim that any product manufactured or assembled by Seller infringes upon any United States patent, provided Seller is notified promptly and given all authority, information and prompt assistance necessary for the defense of the same. Seller shall indemnify and hold Buyer harmless from and against any final judgement that any good sold hereunder infringes upon a Unites States patent, but only to the extent of the amount paid by Buyer for such good. The foregoing states the entire liability of Seller for infringement by any good. In the event any such claim for infringement shall be made, Seller shall have the option to immediately terminate this Agreement with respect to any alleged infringing good and any unfulfilled orders for the same. IN NO EVENT SHALL SELLER BE LIABLE FOR THE INFRINGEMENT OF ANY PATENTS CAUSED BY THE USE OF ANY GOODS IN COMBINATION WITH OTHER ARTICLES OR MATERIALS OR FOR INFRINGEMENT OF ANY PROCESS.
17. Excusable Delays. Seller’s shipping dates are approximate. Seller will not be responsible for loss or damage arising from delays caused by lack of correct or complete dates from Buyer. The obligations of Seller are contingent upon acts of God, floods, fires, storms, strikes or similar occurrences, as well as government restrictions, prohibitions and regulations or other interferences beyond the parties’ reasonable control, to the extent that the same prevent or delay the performance of the obligations herein contained. This section shall in no event be construed to relieve Buyer from the obligation to pay for goods shipped by Seller.
18. Indemnification. Buyer shall be solely responsible for all investments made or expenses incurred in connection with the establishment or operation of its business. Buyer shall indemnify and hold Seller, its officers, directors, employees, agents, stockholders, affiliates, successors and assigns harmless from and against all claims, liabilities, losses, damages, costs and expenses sustained by them (including attorney s fees) arising out of, or in any way connected with, acts or omissions of Buyer or its affiliates, employees, officers, directors or agents, whether or not caused or claimed to have been caused by negligence or other breach of duty.
19. Assignment. This contract shall be binding upon and inure to the benefit of the parties, their successors and assigns, provided that Buyer may not assign the contract without prior written consent of Seller.
20. Law Applicable. This contract shall be construed according to the laws of the District of Columbia, and the invalidity of any provision of this contract under the laws applicable hereto shall not invalidate the remaining provisions of this contract.
