Terms and Conditions
TERMS AND CONDITIONS OF SALE
The sales quote and/or sales order (the “Order”), together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Agreement”), constitutes the entire and exclusive agreement between ALYX LLC (“Seller”) and the buyer identified in the Order, hereinafter referred to as “Buyer”, regarding the sale of goods, materials and/or services hereunder (“Goods”).
All Seller proposals are conditioned upon Buyer acceptance of these terms and conditions, unless otherwise expressly agreed in writing by Seller and Buyer. Any Buyer terms and conditions on the purchase order are deemed excluded. Seller acknowledgment of receipt of a purchase order does not constitute acceptance by Seller. Seller acceptance of a purchase order is subject exclusively to Buyer’s acceptance of this Agreement. If there is a conflict between the terms and conditions of this Agreement and the terms and conditions of Order (or any other document that the parties may execute), the terms and conditions of this Agreement prevail unless the conflicting term in the Order expressly states that it is modifying the terms and conditions of this Agreement for that particular order.
Seller may modify Buyer’s order by making the following changes: (a) Substituting the latest or interchangeable or correct part numbers or part description for the part numbers or part description set forth on the order; (b) Updating delivery schedule (considering lead time and supplier availability) for the delivery schedule set forth on the order. All shipping and delivery dates are approximate. Seller shall not be responsible for any interruption or delay in manufacture or delivery. (c) Seller reserves the right to revise prices for Goods if there is a change in material costs prior to shipment of the Goods. (d) Seller reserves the right to revise prices for Goods if there is a change in quantity, size, condition and /or time of shipment differing from those provided in original Order. (e) Buyer may not cancel or change Agreement without the written consent of Seller. If Buyer desires to cancel or change Order, Buyer must deliver a written request for cancellation of Order to Seller’s office. If Seller consents to Buyer’s written request for cancellation of Order, Buyer shall pay to Seller a cancellation fee set forth by Seller. Cancellation charges after 48 hours will be billed according to cost incurred. Cancellation charges after five (5) working days will be 100%. Any request to stop an order, shall be treated as a cancellation, and will be billed within 24 hours, according to terms stated herein.
3. NCNR GOODS
Seller may designate Goods as “NCNR”. Notwithstanding any provision of this Agreement to the contrary, orders for special, custom, value-added and other non-standard products, including products to be assembled in kit form, products of manufacturers which do not appear on Seller’s line card, works-in-process, and products otherwise identified by Seller as “NCNR” or “Non-Cancelable and Non-Returnable” (or words of similar import) are “NCNR Goods”. Buyer hereby acknowledges that NCNR Goods are both non-cancelable and non-returnable and further acknowledges and agrees to the following: (a) Orders for NCNR Goods cannot be cancelled; (b) Changes cannot be made to the schedule for such orders without prior written approval by Seller; (c) NCNR Goods cannot be returned to either Seller or the manufacturer (unless defective, and then pursuant ONLY to applicable procedures and warranties, if any); (d) As purchaser of the NCNR Goods, Buyer accepts full responsibility for the suitability for use of the NCNR Goods; and (e) Buyer accepts full responsibility for payment of any invoice(s) issued by Seller concerning the NCNR Goods, including for any NCNR Goods that are pipelined, ordered, received, or inventoried by Seller, and acknowledges that Seller is entitled to demand full payment from Buyer. Seller has no obligation to seek more favorable cancellation or return privileges with the manufacturer for the NCNR Goods. If, however, Seller is able to negotiate more favorable cancellation or return privileges with the manufacturer for the NCNR Goods, then, at its sole discretion, Seller may extend such privileges to Buyer. Also, Seller may waive the above obligations under this Agreement concerning NCNR Goods, in Seller’s sole discretion, if Seller can sell at a comparable price the full quantity of the NCNR Goods to third parties at the time Buyer should request such waiver. Seller may charge a restocking fee on any such NCNR Goods.
Buyer shall make payment to Seller in a manner set forth in Order. Payment must be made in U.S. currency unless agreed otherwise in writing. If Buyer is delinquent in payment to Seller, Seller may immediately stop shipment of Goods and future shipments until all delinquent amounts and interest on late payments is paid. Additionally, Seller may at its option: (a) repossess Goods for which payment has not been made; (b) charge interest on delinquent amounts at the lower of one and one-half percent (1.5%) per month or partial month during which amount was due, or the highest rate allowed by law, from due date to payment date; and (c) recover all costs of collection, including without limitation reasonable attorneys’ fees. Seller may re-evaluate Buyer’s credit standing at all times, and modify or withdraw credit.
All Goods sold by Seller to be free from defects in material, workmanship and title for a period of one (1) year from date of Seller’s invoice, on condition that any non-conformance be reported to Seller within thirty (30) days of invoice date. SELLER MAKES NO WARRANTY THAT THE GOODS WILL BE MERCHANTABLE OR FIT FOR ANY PARTICULAR PURPOSE. SELLER MAKES NO WARRANTY EXPRESSED OR IMPLIED REGARDING THE GOODS EXCEPT SUCH AS IS EXPRESSLY SET FORTH HEREIN.
6. EXCLUSIVE REMEDIES
If the Goods furnished by Seller fail to conform to Seller’s exclusive limited warranty, Seller’s sole and exclusive liability shall be (at Seller’s option) to repair, replace or credit Buyer’s account for any such Goods which are returned by Buyer during the applicable warranty period set forth above, provided that (a) Seller is promptly notified in writing upon discovery by Buyer that such Goods failed to conform to this contract with a detailed explanation of any alleged deficiencies, (b) such Goods are returned in same condition as originally shipped, to Seller Ex works Seller’s plant (“Ex works” shall have the meaning set forth in Incoterms 2000 with its attendant rights and obligations), and (c) Seller’s examination of such Goods shall disclose to Seller’s satisfaction that such alleged deficiencies actually exist and were not caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. If Seller elects to repair or replace such Goods, Seller shall have a reasonable time to make such repairs or replace such Goods.
7. TITLE, DELIVERY, RISK OF LOSS AND SHIPPING
Title to and risk of loss of all goods sold hereunder by Seller shall pass to Buyer upon their delivery Ex works Seller’s plant (“Ex works” shall have the meaning set forth in Incoterms 2000 with its attendant rights and obligations)
8. INSPECTION AND ACCEPTANCE
Inspection or rightful rejection of the Goods must be made within thirty (30) days after Buyer’s receipt of the Goods. Buyer must notify Seller within such thirty (30) days of any claims for nonconforming or defective Goods so delivered and hold such Goods pending Seller’s inspection. Seller shall have the right and option to repair or replace any nonconforming Goods. The Goods may not be returned to Seller without first obtaining Seller’s consent. The request for return and credit must be filed with Seller and shall include purchase order number, approximate date shipped and any and all other identifying numbers (such as invoice number, date of invoice, etc.). Each request for return of Goods for credit should state the type and quantity of Goods, the part numbers and the reasons for the return. When appropriate, Seller will then issue a Return Material Authorization (RMA) number to Buyer. Seller will not accept any returns without having first issued an RMA number. An RMA number must be clearly written on any package authorized for return with a written explanation of the reason for rejection. If return authorization is granted, Buyer shall preserve, pack, package and handle the Goods so as to protect the Goods from loss, damage, deterioration, moisture, foreign matter or contamination. Buyer shall comply with best commercial practices to ensure arrival at destination at the lowest transportation cost, in the absence of any specifications Seller may provide. ESD sensitive components or assemblies must be packaged in approved protective packages and labeled with the ESD caution symbol. If Buyer returns Goods in accordance with the procedures described above and Seller subsequently determines that such Goods are not defective or are not covered by warranty, then Seller may charge Buyer a restocking fee set forth by Seller and the Buyer shall be responsible for all delivery costs. Risk of loss or damage to any Goods returned to Seller for adjustment shall remain with Buyer until they are received by Seller. Shipping charges for returned Goods will be paid by Seller only for Goods repaired or replaced pursuant to warranty. Otherwise, such charge will be Buyer’s responsibility.
This Agreement shall remain in effect until terminated as provided herein and any Order shall remain in effect for the term specified in such Order unless terminated earlier as provided in this Agreement. Either party may terminate this Agreement by providing thirty (30) days prior written notice to the other party, provided that upon such termination, the obligations of the parties shall remain in full force and effect and those provisions in the Agreement which survive termination will remain in full force and effect. Seller may also immediately, upon written notice to Buyer, terminate the Agreement if Buyer (i) becomes insolvent, (ii) files or has filed against it and not dismissed within 60 days, a proceeding under any federal or state insolvency, bankruptcy or other law for the relief of creditors (iii) ceases or admits in writing its intention to cease the operation of its business in the ordinary course or (iv) breaches any material provisions of the Agreement.
10. FORCE MAJEURE
Delivery dates are approximate. Seller will not be liable for delays in filling this Order or failure in the performance of any of its obligations if such delay or failure results from, without limitation, actions or decrees of governmental bodies, strikes, wars, fires, floods, earthquakes, acts of terror or any other acts of God which are beyond the reasonable control of Seller. In such case, the period for Seller’s performance shall be automatically extended for the same time that Seller was delayed. In addition, if any part of Seller’s performance shall become commercially impracticable, Seller shall be excused from further performance of the Agreement, or, at Seller’s option, so much of it as is affected by such commercial impracticability. For purposes of the Agreement, Seller’s performance is commercially impracticable if it would require Seller to incur excessive or unreasonable expenses, whether such expenses are a result of a force majeure condition, and whether such expenses result from the occurrence or nonoccurrence of events or circumstances that could or should have been foreseen by Seller.
11. PROPRIETARY INFORMATION
Buyer, its employees, agents and representatives, shall consider as Seller’s “Confidential Information,” all non-public information provided by Seller, all specifications or other documents prepared by Seller in connection herewith, the fact that Seller has contracted to sell Goods, and all other non-public information relating to this Agreement. Without Seller’s prior written consent, Buyer shall not disclose or use Confidential Information for any purpose other than performing this Agreement. The foregoing provisions shall be subject to the terms of any other written agreement executed by the parties relating specifically to confidentiality, nondisclosure and/or publicity.
Buyer, its parents and affiliates shall indemnify, defend and hold harmless Seller, and its directors, employees, agents, shareholders, affiliated companies and their respective successors and assigns from and against any and all claims or liability (other than liability solely due to the willful misconduct of Seller), including reasonable attorneys’ fees, relating to, in connection with or arising from: (a) any breach by Buyer of any provisions of Agreement; (b) any patent, trademark or copyright infringement claim resulting from compliance with any specifications or designs provided by Buyer to Seller; (c) any unauthorized modification, alteration, adaptation or use of the Goods; and (d) any claim or suit for damages arising from acts, representations or omissions of Buyer, its agents, employees or subcontractors related to Buyer’s sale of the Goods, use of the Goods or incorporation of the Goods into a product or part thereof. Buyer’s obligation to indemnify Seller shall survive the expiration or termination of the Agreement by either party for any reason.
13. EXPORT CONTROL
The export and re-export of goods and related technical information under this Agreement are subject to the Export laws of the United States of America. Buyer shall be responsible for applying for, obtaining and maintaining all required export licenses and approvals and complying with all applicable export reporting requirements. Seller does not guarantee the issuance of such licenses or their continuation in effect once issued. It shall be a condition precedent to Buyer’s obligations hereunder that all necessary and desirable export licenses and approvals shall be timely granted and continue in effect during the term of this agreement. 12.1 Buyer agrees that it will not, directly or indirectly, export or re-export any goods or technical information received from Seller to any destination if such export or re-export would violate the laws of the United States of America. Customer agrees to indemnify and hold Seller harmless against any liability arising from any breech of Buyer’s obligations under this Article.
14. GOVERNING LAW
This Agreement and the rights of the parties hereunder is governed by and construed under the laws of the State of Florida, United States of America, except that the United Nations Convention on Contracts for the International Sale of Goods shall not apply.
15. LIMITATION ON LIABILITY/STATUTE OF LIMITATIONS
IN NO EVENT WILL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, STATUTORY OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, REVENUES OR USE, EVEN IF INFORMED OF THE POSSIBILITY OF THESE DAMAGES. THE AGGREGATE LIABILITY OF SELLER FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THE ORDER WILL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE GOODS OR UNIT THEREOF GIVING RISE TO THE CLAIM. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THESE LIMITATIONS AND EXCLUSIONS WILL APPLY REGARDLESS IF LIABILITY ARISES FROM BREACH OF CONTRACT, INDEMNITY, WARRANTY, TORT (INCLUDING NEGLIGENCE), OPERATION OF LAW, OR OTHERWISE. BUYER MUST COMMENCE ANY ACTION AGAINST SELLER ARISING FROM THIS ORDER WITHIN ONE YEAR FROM DATE THE CAUSE OF ACTION ACCRUES.
Buyer may not assign or transfer, by operation of law or otherwise, any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without Seller’s prior written consent. Any assignment without Seller’s written approval will be void at the option of the Seller.
If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible and the remaining provisions will continue in full force and effect.
No course of dealings between Seller and Buyer or Seller’s failure to insist on performance of any term or condition contained in this Agreement, or failure to exercise any of the Seller’s rights hereunder, shall constitute a waiver of any of the Seller’s rights or remedies under this Agreement.
19. ENTIRE AGREEMENT
This Agreement contains the entire agreement of the parties relating to the sale of Goods, regardless of any inconsistent or additional terms in any other document, and supersedes all previous understandings, negotiations and proposals and may not be amended or discharged except in writing approved by both parties.
20. RELATIONSHIP OF PARTIES
Buyer’s relationship with Seller will be that of an independent contractor. Buyer will not have, and will not represent that it has, any power, right or authority to bind Seller, or to assume or create any obligation or responsibility, express, implied or by appearances, on behalf of Seller or in Seller’s name, except as herein expressly provided.
All notices, requests, demands and other communications that either party may desire to give the other party must be in writing and may be given by (i) personal delivery to an officer of the party, (ii) mailing the same by registered or certified mail, return receipt requested or via nationally recognized courier services to the party at the address of such party as set forth herein, at the official corporate address of such party, or such other address as the parties may hereinafter designate, or (iii) facsimile subsequently to be confirmed in writing pursuant to item (ii) above. Notices to Seller shall be sent to ALYX, LLC.
ALYX LLC TERMS AND CONDITIONS
Terms and Conditions of Purchase Order
The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between ALYX, LLC (“Buyer”) and the seller identified as the supplier in the Purchase Order, hereinafter referred to as “Seller”, regarding the goods, materials and/or services to be purchased hereunder (“Goods).
Seller’s electronic acceptance, acknowledgement, acceptance of payment or commencement of performance shall constitute acceptance of Buyer’s Purchase Order. Seller’s acceptance is limited to acceptance of the express terms of this Purchase Order and does not include any additional or different terms proposed by Seller or any attempt to vary to terms hereof, unless accepted in writing by Buyer. Acceptance of the GOODS covered by this Purchase Order will not constitute acceptance by Buyer of Seller’s terms and conditions. Any reference to Seller’s quotation, bid, or proposal does not imply acceptance of any term, condition, or instruction contained in that document. If Seller becomes aware of any ambiguities, issues, or discrepancies between this Purchase Order and any specification, design, or other technical requirement applicable to this Purchase Order, Seller will immediately submit the matter to Buyer for resolution.
Seller warrants that the prices for the GOODS are complete and not less favorable than those currently extended to Seller’s other customers of similar account size for similar quantities of the same or similar GOODS. In the event Seller reduces its prices for such GOODS prior to accepting Buyer’s Purchase Order or during the term of performance of any Purchase Order for services, Seller agrees to reduce the prices hereof accordingly. Seller warrants that the prices shown in the Purchase Order are complete and no additional charges are added without Buyer’s express written consent. Such additional charges include, but are not limited to, shipping, packaging, labeling, custom duties, taxes, insurance, storage, boxing and crating. If at any time during the term of this Purchase Order, Buyer receives from another source an offer to supply GOODS of like quality to that offered by Seller at a price which results in a price lower than the delivered price then in effect, Buyer may request Seller to meet such competitive offer. If within five (5) working days after the date of Buyer’s request Seller shall not have agreed to meet the competitive offer, Buyer, at its option, may purchase the material from the competitive source and the quantity so purchased is deducted from this Purchase Order.
Buyer may, at any time prior to delivery, change the specifications for the GOODS and delivery thereof. Seller will accept any changes, provided that if a change increases or decreases the cost or time required for performance, the parties will equitably adjust and modify the terms hereof in writing accordingly.
Time is of the essence. Delivery is strictly in accordance with the schedule, quantity, and any other terms set forth in this Purchase Order. Seller will immediately notify Buyer if Seller’s timely performance under the Purchase Order is delayed or is likely to be delayed. Buyer reserves the right to cancel, without liability, this Purchase Order in whole or in part if Seller should fail to make deliveries in accordance with the terms of this Purchase Order. Seller shall indemnify Buyer for any damages imposed originating from Seller’s delivery breach. Buyer reserves the right to refuse shipments made before or after the date set forth in the Purchase Order. If the delivery of the Products is not completed on time, Buyer reserves the right, in addition to its other rights and remedies, and without liability, to terminate the Purchase Order as to items not yet shipped or services not yet rendered and to: (a) purchase substitute items or services elsewhere at the expense of Seller or (b) direct Seller to ship by the most expeditious means available at Seller’s risk and expense.
Seller will preserve, pack, package and handle the goods so as to protect the goods from loss, damage, deterioration, moisture, foreign matter or contamination. Seller shall comply with best commercial practices to ensure arrival at destination at the lowest transportation cost, in the absence of any specifications Buyer may provide.
An itemized packing list is placed in each package and no charges are allowed for boxing, packing, or crating unless previously agreed upon. Electrostatic discharge (“ESD”) sensitive components or assemblies are packaged in approved protective packages and labeled with the ESD caution symbol.
6. QUANTITY VARIATION
The specific quantity ordered must be delivered in full and not be changed without Buyer’s prior written consent. Any different quantity without such consent is subject to Buyer’s rejection and return at Seller’s risk and expense. Any excess quantities that Buyer accepts are at the Purchase Order price, unless otherwise agreed upon.
Unless otherwise agreed to in writing by the parties, an invoice is not issued prior to shipment of goods. Invoices are forwarded to Buyer’s address (2 copies on Seller’s own form) and no payment is made if Buyer has not received an invoice as defined herein. Invoices must reference this Purchase Order number, listing a description of GOODS provided and as applicable, part number, applicable quantities and the unit and total prices. Payment of an invoice does not constitute acceptance of the GOODS and is subject to appropriate adjustment should Seller fail to meet the requirements of the Purchase Order. All payments are subject to adjustment for shortage or rejection of materials provided. In any case where transportation is billed, billing must be accompanied by carrier’s invoice marked “paid”. If Buyer has a claim against Seller resulting from this Purchase Order or any other transaction, Buyer may deduct or set-off disputed amounts from Seller’s claims for amounts due.
8. LIMITED SHELF LIFE
If a product ordered has a limited shelf life; the material shall be identified on each container with the applicable specification, lot number, date of manufacture, and expiration date. Such shelf life shall not be less than eighty (80) percent of full life from date of shipment.
9. CERTIFICATE OF CONFORMANCE
Seller shall provide evidence that the processes required in this Purchase order were performed by approved sources. The Seller shall maintain such evidence on file. Included with each shipment to the Buyer shall be a Certificate of Conformance indicating as a minimum the process description, process number, name and address of the process supplier, the purchase order and part number and applicable serial numbers.
Seller expressly warrants and represents to Buyer, its successors, assigns, customers, and users of Buyer’s products, that all GOODS is (a) be free from defects in material, workmanship and design, (b) conform to the terms of the Purchase Order and/or all applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Buyer, (c) be merchantable, (d) together with their packaging, labeling and accompanying materials be properly contained, packaged, marked and labeled, (e) be fit for the intended purposes and operate as intended, if Seller knows or has reason to know the particular purpose for which Buyer intends to use the GOODS, (f) comply with all applicable national and local laws, (g) be free and clear of any and all liens, restrictions, reservations, security interests, or encumbrances, and (h) with respect to services, be performed diligently in a good and workmanlike manner to the highest professional standards. The Warranty Period will be for a period of 12 months from the date of delivery to the end user or such longer period of time as may have been accepted by Buyer from Buyer’s customer. These warranties will survive any delivery, inspection, acceptance, or payment by Buyer for the entire Warranty Period. Claims for breach of warranty do not accrue until discovery of noncompliance, even if the GOODS were previously inspected. Buyer may, at its option, return at Seller’s expense, the defective or nonconforming goods for credit, refund or set-off, or require Seller to correct or replace, at no cost to Buyer, any defective or nonconforming goods, including, without limitation, reperform any deliverables that are services. Such warranty work will be further warranted for an additional 12 month period.
11. TITLE AND RISK LOSS
Title to and risk of loss of the goods pass to Buyer or other destination designated by Buyer, upon delivery ALYX CORP LLC FORM 02/08/21 and acceptance of the goods. Title to the goods shall be free and clear of all liens and encumbrances.
12. INSPECTION & ACCEPTANCE
All GOODS may be inspected, tested and approved by Buyer, its customers, higher-tier contractors, and end users at all reasonable times and places. No inspection, tests, approval, design approval, or acceptance of the goods relieves Seller from responsibility for warranty, latent defects, fraud, or negligence. If the goods are defective or otherwise do not conform to the requirements of this Purchase Order, Buyer may, by written notice to Seller: (a) rescind this Purchase Order as to the goods or (b) reject and return the goods to Seller at Seller’s risk and expense for refund/credit or require the delivery of replacements. If Buyer elects to reject nonconforming goods, Seller shall issue a return authorization number for all nonconforming goods within twenty-four (24) hours after Buyer’s request, and such non-conforming goods are the property of the Seller.
Delivery of replacements will be accompanied by a written notice specifying that such goods are replacements. If Seller fails to deliver required replacements promptly, Buyer may replace them with goods from another Seller and charge the Seller the cost thereof, including cover, and any incidental costs; or terminate this Purchase Order for cause. Acceptance of any part of the Purchase Order shall not bind the Buyer to accept any future GOODS, and Buyer reserves the right to reject any goods or to revoke any previous acceptance and to cancel all or any part of the Purchase Order if Supplier fails to deliver all or any part of the goods or perform any of the work in accordance with this Purchase Order. If Buyer performs any inspection (other than the standard inspection) after discovering defective or nonconforming goods, any additional inspection costs will be paid by Seller.
13. TERMINATION FOR CONVENIENCE
Buyer may, for its convenience, terminate all or any part of the Purchase Order upon notice to Seller. Upon notice of such termination, Seller shall immediately stop all work and/or shipment of goods hereunder and cause its suppliers and/or subcontractors to cease their work against the Purchase Order. Seller shall submit to Buyer an invoice with supporting information setting forth the Purchase Order price for the GOODS delivered prior to the notice of termination, plus Seller’s actual, direct unavoidable costs resulting from the termination, less salvage value. Buyer shall not be liable to Seller for Seller’s lost profits on the terminated part of the Purchase Order. Seller shall not be paid for work performed or costs incurred after receipt of notice of termination, nor for costs incurred by Seller’s suppliers that Seller reasonably could have avoided. Buyer will not be obligated to pay any more than the payment that would have become due had Seller completed Purchase Order and Buyer had accepted the GOODS.
14. TERMINATION FOR CAUSE
Buyer shall have the right to terminate Purchase Order, in whole or part, at any time, if Seller: (a) fails to make any delivery in accordance with agreed delivery date, (b) fails to observe or comply with any of the instructions, terms, conditions, or warranties applicable to Purchase Order, (c) fails to make progress so as to endanger full and timely performance of the Purchase Order or failure to provide Buyer, upon request, with reasonable assurances of future performance, or (d) is subjected to any proceedings by or against it in bankruptcy or insolvency, for appointment of a receiver or trustee, or for an assignment for benefit of its creditors. In the event of a termination of such default, Buyer shall be entitled to any and all damages, losses, costs, and expenses incurred by Buyer arising out of or resulting from such default. In all the above-mentioned cases, Buyer shall be entitled to procure the GOODS to a third party at Seller’s costs.
15. FORCE MAJEURE
To the extent and for the period of time that performance of any such obligation is prevented, interrupted, or delayed by, without limitation actions or decrees of governmental bodies, strikes, wars, fires, floods, earthquakes, acts of terror or other acts of God, which is beyond the reasonable control of Buyer; provided, however if performance of any obligation is so prevented, interrupted, or delayed for a period in excess of thirty (30) days, Buyer, may, at its option, cancel this Purchase Order upon not less than three (3) days prior written notice to Seller and Buyer shall pay Seller for any conforming services properly performed or conforming goods accepted by Buyer prior to the date of such termination.
16. PROPRIETARY INFORMATION
Seller, its employees, agents and representatives, shall consider as Buyer’s “Confidential Information,” all non-public information provided by Buyer, all specifications or other documents prepared by Seller in connection herewith, the fact that Buyer has contracted to purchase GOODS from Seller, and all other non-public information relating to this Purchase Order. Without Buyer’s prior written consent, Seller shall not disclose or use Confidential Information for any purpose other than performing this Purchase Order. The foregoing provisions shall be subject to the terms of any other written agreement executed by the parties relating specifically to confidentiality, non-disclosure and/or publicity.
Seller, its parents and affiliates agrees to indemnify and hold harmless Buyer, officers, employees, agents and customers, from and against any and all claims or liability (other than liability solely due to the negligence of Buyer), including reasonable attorneys’ fees, arising out of or resulting in any way from any defect in the GOODS provided hereunder or from any act or omission of Seller, its agents, employees or subcontractors, including but not limited to: (a) the negligence or willful misconduct of the Seller, its agents or employees, (b) any claim for bodily injury or death, damage to property or any claim by an employee or subcontractor of Seller for wages and benefits, which occur in connection with the performance by Seller, and (c) alleged violation or infringement of any third party’s patent, copyright, trademark, trade secret or any other proprietary rights, unless the GOODS are of Buyer’s design or formulas. Seller’s obligation to indemnify Buyer shall survive the expiration or termination of the Purchase Order by either party for any reason.
18. COMPLIANCE WITH LAWS
In addition, Seller shall comply and the GOODS comply and/or be performed in compliance with all applicable federal, state and local laws, ordinances, orders, rules, actions, regulations and industry standards. Seller agrees to indemnify and save Buyer harmless from and against any liability or damages, including attorneys’ fees, for noncompliance therewith by Seller.
19. GOVERNING LAW
The Purchase Order and the rights of the parties hereunder is governed by and construed under the laws of the state of Florida.
20. LIMITATION ON LIABILITY/STATUTE OF LIMITATIONS
BUYER SHALL NOT BE LIABLE FOR LOST PROFITS, SPECIAL, INDIRECT, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR PENALTIES OF ANY KIND. BUYER’S LIABILITY ON ANY CLAIM ARISING OUT OF, IN CONNECTION WITH, OR RESULTING FROM THIS ORDER OR FROM PERFORMANCE OR BREACH HEREOF SHALL IN NO CASE EXCEED THE PRICE ALLOCABLE TO THE G&S OR UNIT THEREOF GIVING RISE TO THE CLAIM. SELLER MUST COMMENCE ANY ACTION AGAINST BUYER ARISING FROM THIS ORDER WITHIN ONE YEAR FROM DATE THE CAUSE OF ACTION ACCRUES.
Seller may not assign any of its rights under this Purchase Order. Any assignment without Buyer’s written approval will be void at the option of the Buyer.
If any provision of Purchase Order is found to be illegal or unenforceable, the remaining provisions shall remain in full force and effect.
23. SCRAP AND ALLOWANCE
Seller shall be accountable for all Buyer furnished material and material generated as a result of Seller’s manufacturing error shall be at Seller’s expense. Scrap allowance is 3% on furnished material. Material is defined as anything from Raw material (e.g. bar, plate, stock, etc.), through the completed items.
24. ENTIRE AGREEMENT
This Purchase Order contains the entire agreement of the parties relating to the purchase of GOODS, regardless of any inconsistent or additional terms in any other document, and supersedes all previous understandings, negotiations and proposals and may not be amended or discharged except in writing approved by both parties.