Sales Terms & Conditions
1. ACCEPTANCE AND CANCELLATION OF ORDER: Any Contract for the sale of goods made between Buyer and Seller may only be cancelled by Buyer upon the advance written consent of Seller (which it may withhold in its sole discretion). As a condition to receiving Seller’s written consent, Buyer shall pay all reasonable cancellation and restocking charges due to Buyer’s cancellation of the order. Special orders for items normally not stocked by Seller are non-cancelable and non- refundable.
2. DELIVERY: All prices quoted, and goods shipped are F.O.B. Seller’s place of shipment. Title to and risk of loss of all goods shall pass to Buyer when the goods are placed by Seller in possession of a common carrier, selected by Seller for shipment to Buyer. Unless expressly provided otherwise in the Contract, Buyer shall pay all freight, handling, delivery and insurance costs for the shipment of goods. Seller may refuse or delay any shipment if Buyer fails to satisfy fulfilling any contractual obligation to Seller, whether pursuant to this Contract or any other contract between Seller and Buyer. Seller may deliver all goods covered by this Contract at one time or in portion, from time to time, within the time for delivery provided in the order.
3. FORCE MAJEURE: Seller is excused from performance of any obligation and shall not be liable for delays in delivery or for failure to perform if its failure or delay of performance is caused by events not within Seller’s reasonable control, including without limitation, acts of God, acts of the public enemy, quarantine, restriction, expropriation or confiscation of facilities, compliance with any order of any governmental authority, industrial disturbances, blockades, insurrection, arrest and restraint of people or rulers, civil disturbances, boycotts, acts or omission of Buyer, acts or omission of civil or military authority, fire, strike, lockouts, landslide, lightning, washouts, tornadoes, hurricanes, windstorms, explosions, epidemic, flood, storm, earthquake, riot, war, breakage or accident of machinery or equipment, delays in transportation, delays of suppliers, or inability to obtain necessary labor, materials, or supplies. In the event of any delay, the contractual date of delivery, if any, shall be extended for a period equal to the time lost as a consequence of the delay without penalty to the Seller.
PAYMENT TERMS:
Buyers shall pay for goods in full, without offset or deduction, within the time frame and in the manner set forth in the Contract. For those sales that do not require payment in advance of or on delivery, if payment is not received by Seller within the period set forth in the Contract, Buyer shall pay to Seller on demand, a late payment charge of 1.5% per month of the unpaid balance or the maximum rate of interest allowed by law, whichever is less. Time is of the essence with respect to Buyer’s obligation to pay all invoices in full.
All checks are accepted subject to collection. Seller may apply any payment by Buyer to any amount owed to Seller by Buyer, whether under this or any other Contract between Buyer and Seller. Acceptance of any partial payment shall not constitute waiver of Seller’s right to payment in full of all amounts owing from Buyer to Seller.
Buyer hereby grants to Seller a security interest in the goods shipped pursuant to this Contract, including all accessions to and replacement of the goods and the proceeds thereof, to secure the due and punctual payment of the purchase price of the goods and all other amounts owing hereunder. Buyer shall execute and deliver to Seller any additional documents instruments, financing statements, or amendments that Seller deems necessary or advisable to maintain, continue and perfect the security interest created.
Goods sold by Seller are not authorized to be used in life support equipment or for application in which the failure or malfunction of goods would create a situation in which personal injury or death could occur. Any such use or sale of goods sold by Seller is at the sole risk of Buyer, and Buyer agrees to indemnify and defend Seller against and hold Seller harmless from all damages and costs arising out of such use or sale.
4. LIMITED WARRANTY: Seller warrants that it has title to the goods and that the goods generally conform to the descriptions, if any, in the Contract. THE FOREGOING WARRANTIES ARE SELLER’S EXCLUSIVE WARRANTIES, AND THE GOODS SOLD UNDER THIS AGREEMENT ARE SOLD “AS IS” AND “WITH ALL FAULTS”, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE GOODS, INCLUDING WITHOUT LIMITATION, THE DESIGN AND CONDITION OF THE GOODS OR THEIR QUALITY, CAPACITY, SUITABILITY, CONSTRUCTION, PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR ANY PARTICULAR PURPOSE. Buyer acknowledges that Seller is acting solely as the third-party distributor of the goods covered by the Contract and that the licensee or the manufacturer of the goods shall be solely responsible to Seller and any third-parties for all liability, claims, damages, obligations, and costs and expenses related to the goods distributed by the Seller. Buyer agrees to look solely to the manufacturer for compliance with the manufacturer’s warranty and for any maintenance, support, or repairs of the goods. Seller assigns to Buyer any warranty delivered to Seller by a manufacturer or other vendor to the extent the assignment is permitted by the terms thereof. Seller makes no representation, covenant, or warranty with respect to the extent or enforceability of the manufacturer’s warranty. No repair or replacement of goods by Seller or manufacturer shall extend that warranty period of the manufacturer. Seller neither assumes nor authorizes Buyer or any other person to assume on behalf of Seller any other liabilities in connection with the use, sale or resale of the goods.
5. LIMITATION OF LIABILITY:
Within 14 days of the invoice date, Buyer shall have the right to examine and test the goods to determine if there is any damage, defect, or shortage. All claims for any damages, defects, or shortage, or for any cause whatsoever (whether the claim is based in contract, negligence, strict liability, other tort, or otherwise) shall be deemed waived unless made in writing and received by Seller within 14 days of the invoice date. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of the claim regardless of whether the facts giving rise to the claim shall have been discovered or whether processing, further manufacture, other use, or resale of goods shall have then taken place.
BUYER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES AND SELLER’S TOTAL LIABILITY FOR ANY AND ALL LOSSES AND DAMAGES ARISING OUT OF ANY CLAIM WHATSOEVER, WHETHER THE CLAIM IS BASED ON BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, AND SHALL, IN NO EVENT, EXCEED THE PURCHASE PRICE OF THE GOODS IN RESPECT TO WHICH THE CLAIM ARISES, OR AT SELLER’S OPTION, THE REPAIR OR REPLACEMENT OF THE GOODS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES RESULTING FROM ANY CLAIM (INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, BUSINESS LOSSES, DAMAGE TO PROPERTY, OR ANY LIABILITY OF BUYER TO ITS CUSTOMER OR THIRD PARTIES). Seller shall not be liable for, and Buyer assumes full liability for, all personal injury and property damage connected with the handling, transportation, possession, processing, repackaging, further manufacture, or other use or resale of goods, whether the goods are used alone or in combination with any other material. Buyer will defend, indemnify and hold harmless Seller and its subsidiaries, affiliates, successors, and assigns and their respective directors, officers, shareholders and employees from and against any claims arising out of or occurring in connection with the negligence or willful misconduct of Buyer, its employees or agents.
6. RETURNS: Buyer may return to Seller any goods that are damaged or defective by obtaining a Return Material Authorization (RMA) from Seller within 14 days of the invoice date. Buyer must return to Seller the damaged or defective goods within a period set forth in the RMA. The RMA number must be listed on all packaging containing goods returned to Sender. If Buyer does not request from Seller an RMA within 14 days of the invoice date, or requests an RMA for goods that are not damaged or defective, Seller may, at its sole discretion, refuse to issue an RMA for return of the goods, or may require that the Buyer pay to Seller a reasonable restocking fee as a condition of issuing to Buyer the RMA.
SELLER’S RIGHT TO INCREASE PRICES: Seller reserves the right to increase the price of the goods covered by this Contract to reflect any increase in Seller’s cost for those goods caused by an increase in the price charged by the Seller’s supplier, and Buyer agrees to pay to Seller any such increased price according to the terms of this Contract.
TAXES: Seller’s prices do not include sales, use, excise, or other similar taxes. Accordingly, Buyer shall pay, in additional to the prices specified by Seller, all local, state, and federal taxes, including all sales tax, use, excise or other similar tax, payable with respect to the goods or the transaction contemplated herein, or, alternately, provide Seller with a tax exemption certificate acceptable to the applicable taxing authorities.
INTELLECTUAL PROPERTY: Seller disclaims any warranty against infringement with respect to the goods sold pursuant to this Contract, and the packaging relating to such goods. Seller is not liable with respect to any actual or alleged infringement of any United States or foreign patent, trademark, copyright, mask work right, trade dress, trade secret, or similar property rights.
INSTALLATION: Buyer is solely responsible for the installation and operation of goods, including without limitation, obtaining all permits, licenses, or certificates required for the installation or use of the goods.
TECHNICAL ADVICE AND DATA: Any technical advice offered or given in connection with the use of any goods is an accommodation to Buyer without charge, and Seller is not liable or responsible whatsoever for the content or use of that advice. Without Seller’s prior written consent, Buyer shall not use, duplicate, or disclose any technical data delivered or disclosed by Seller to Buyer for purposes other than for the installation, operation, or maintenance of the goods purchased by Buyer from Seller.
BREACH: In the event of a breach by the Buyer, Seller shall have all the remedies provided by the State of Florida, which shall be cumulative with one another and with any other remedies that Seller might have at law, in equity, under any agreement of any type, or otherwise, without limitation. The waiver by Seller of any breach hereof or default in any payment shall not constitute a waiver of any succeeding breach or default. The exercise or failure to exercise any remedy shall not preclude the exercise of the remedy at another time or any other remedy at any other time. Buyer shall pay to Seller, on demand, all costs incurred by Seller in enforcing, prosecuting, or defending any provision of this Contract. For purposes of this contract, “costs” refer to fees, costs, and expenses of experts, attorneys, witnesses, arbitrators, collection agencies, and supersedeas bonds, whether incurred before or after demand or commencement of legal proceedings, and whether incurred pursuant to trial, appellate, mediation, bankruptcy, arbitration, administrative, or judgment execution proceedings.
INTEGRATION AND ASSIGNMENT: This Contract records the final, complete and exclusive agreement between parties with regard to the subjects addressed in it and supersedes any and all prior or contemporaneous oral or written agreements between them regarding the same. Buyer agrees that it has not relied upon any statements made on or behalf of Seller that are not expressly stated in this Contract. No course of prior dealings between the parties and no usage of the trade is relevant to supplement or explain any term used in this Contract. Acceptance or acquiescence in a course of performance rendered under this Contract is not relevant to determining the meaning of this Contract even though the accepting or acquiescing party had knowledge of the nature of performance and opportunity for objection. An amendment or modification of this Contract will be valid and effective only if it is in writing and signed by both Buyer and Seller. Any assignment by Buyer of this Contract or any rights in it, without the Seller’s advance written consent, shall be void.
BUYER’S TERMS AND CONDITIONS: Goods furnished and services rendered by Seller to Buyer are sold only on terms and conditions stated herein. Notwithstanding any terms or conditions on any document of Buyer, the information and conditions on this document are controlling over Buyer and Seller. Any different or additional terms or conditions contained on Buyer’s purchase order, invoice, confirmation or any other Buyer-generated document, are specifically objected to by the Seller. Seller’s performance of any Contract is expressly made conditional on Buyer’s agreement to Seller’s terms and conditions as contained in this Contract. Commencement of performance or delivery shall be for Buyer’s convenience only and shall not constitute acceptance by Seller of Buyer’s terms and conditions. If a Contract is not earlier formed by mutual agreement between Buyer and Seller, acceptance of any goods or services by Buyer shall constitute acceptance by Buyer of the terms and conditions stated herein.
LEGAL PROCEEDINGS: The validity, enforcement, instruction and interpretation of this Contract are governed by the laws of the State of Florida, and the federal laws of the United States of America. Excluding the laws of those jurisdictions pertaining to the resolution of conflicts with laws of other jurisdictions. The parties expressly exclude the applicability of the United Nations Convention on Contracts for the International Sale of Goods. Seller and Buyer (a) consent to the personal jurisdiction of the state and federal courts having jurisdiction over Broward County, Florida, (b) stipulate that the proper, exclusive, and convenient venues for all legal proceedings arising out of the Contract are proceeding, and (c) waive any defense, whether asserted by motion or pleading that Broward County, Florida is an improper or inconvenient venue.
GENERAL: All agreements, covenants, conditions, and provisions contained herein shall apply to and bind the assignees and successors in interest of the Buyer. If any provision of this Contract is held to be invalid, illegal, unconscionable, or unenforceable, that provision will be considered separable from the remaining provisions of this Contract, will be reformed and enforced to the extent that it is valid and lawful, and will not affect the validity, legality, or enforceability of any other provisions of this Contract. The captions used herein are for the convenience of the parties only and shall not affect the constructions or interpretation hereof. Nothing in this Contract, whether expressed or implied, is intended or should be construed to confer upon, or grant to, any person, except Buyer and Seller, any claim, right, or remedy under it.
Limited Warranty and Special Sales Terms for Open Market, Gray Market, and Excess Inventory sales.
When the product comes from the open Market, Gray Market or Excess Inventory THIS SHALL BE COMMUNICATED TO THE BUYER EITHER BY PHONE, VIA EMAIL OR ON THE QUOTATION. THE PRODUCT IS SOLD WITHOUT ANY WARRANTY. IT IS PROVIDED “AS IS” WITHOUT WARRANTY OR ASSURANCES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ORIGIN, AND FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE QUALITY, PERFORMANCE, AUTHENTICITY, PACKAGE, LABELS, OF THE PRODUCTS, IS WITH THE BUYER. BUYER HAS GIVEN SELLER THE AUTHORITY TO ACT ON BUYER’S BEHALF AND SELLER IS ONLY ACTING AS A THIRD-PARTY AGENT. SELLER HAS MADE NO ASSURANCES OF ANY KIND IN WRITING OR VERBALLY ABOUT THE CONDITION, AUTHENTICITY, ORIGIN OF ANY PRODUCT COMING FROM THESE SOURCES KNOWN AS THE OPEN MARKET, GRAY MARKET, EXCESS INVENTORY OR FROM ANY NON-AUTHORIZED DISTRIBUTOR, BROKER OR DEALER. Seller is acting solely on Buyer’s behalf as an authorized third-party BROKER JUST TO PURCHASE SOLELY ON BUYER’S BEHALF. BUYER AGREES TO ASSUME ALL THE RESPONSIBILITIES THAT CAN ARISE FROM THE PURCHASE AND SALE OF ANY AND ALL THE PRODUCT COMING FROM THE OPEN MARKET, GRAY MARKET OR EXCESS INVENTORIES. SHOULD THE PRODUCT PROVE DEFECTIVE OR HAVE ANY OTHER CLAIM WHATSOEVER, BUYER ASSUMESTHE COST OF ALL NECESSARY SERVICING, REPAIR, CORRECTION, AND RETURNS. IN NO EVENT IS SELLER LIABLE FOR DAMAGES, INCLUDING ANY GENERAL, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS (INCLUDING BUT NOT LIMITED TO ANY TYPE OF LOSS). ALSO, BUYER AGREES NOT TO HOLD SELLER RESPONSIBLE FOR ANY TYPE OF RESPONSIBILITY WITHIN BUYER’S COMPANY. BUYER AGREES NOT TO SLANDER, BLACKLIST, BLOCK OR KEEP ANY TYPE OF NEGATIVE SCORE OR NOTES WITHIN BUYER’S SYSTEM ARISING FROM THE SPECIAL SALE TERMS OF THIS ORDER. SELLER DOES NOT ENDORSE, REPRESENT OR WARRANT THE ACCURACY OR RELIABILITY OF ANY OF THE INFORMATION, CONTENT, ADVERTISEMENTS OR OTHER MATERIALS CONTAINED, DISTRIBUTED THROUGH, OR LINKED, DOWNLOADED OR ACCESSED FROM SELLER. SELLER DOES NOT ENDORSE, REPRESENT OR WARRANT THE SERVICE, SECURITY OR PRACTICES OF ANY OF THE VENDORS WHOSE PRODUCTS OR SERVICES ARE INCLUDED ON THE SERVICE/SALE. ANY RELIANCE UPON ANY INFORMATION, CONTENT, ADVERTISEMENTS, MATERIALS, PRODUCTS SERVICES OR VENDORS INCLUDED ON OR FOUND THROUGH THE SERVICE/SALE SHALL BE AT THE BUYER’S, SOLE RISK. BUYER HAS 14 DAYS OF THE INVOICE DATE TO MAKE ANY CLAIMS.
This Agreement shall supersede and replace all prior agreements and understandings, oral or written, between the Buyer and Seller. There are no warranties, representations, covenants or agreements, expressed or implied, between the parties except those expressly set forth in this agreement.