1. AGREEMENT: These terms and conditions form a part of all purchase orders and releases (each, an “Order”) issued by Nova Products Manufacturing, Inc., as “Buyer.” The agreement between Buyer and the seller identified on the face of the Order (“Seller”) with respect to the sale of goods, services and other items described thereon (“Goods”) shall consist only of the Order and these terms and conditions.
2. ACCEPTANCE: Acceptance of the Order is limited to the terms and conditions stated herein. In the event of any conflict between these terms and conditions and the Order, these terms and conditions shall control unless expressly agreed otherwise by Buyer in writing. Buyer objects to and shall not be bound by any additional or different terms in any subsequent communication from Seller to Buyer. Notwithstanding any contrary provision in Seller’s invoice or other documents, no action by Buyer will be deemed an acceptance by Buyer of any of Seller’s terms which are different than or additional to those contained in the Order or these terms and conditions.
3. PRICE: The prices stated on the face of the Order constitute the full purchase price to be paid for the Goods, and unless otherwise stated in the Order, such prices do not include sales, use, excise or similar taxes applicable to the Goods or the materials used in the manufacture thereof. Seller warrants that the price for the Goods is no less favorable than those currently extended to any other customer for the same or similar goods in similar quantities. Seller warrants that the prices in the Order are complete, and such prices shall not increase and no additional charges (including, without limitation, packaging and storage) shall be added without Buyer’s express written consent.
4. PAYMENT TERMS: Unless otherwise agreed in writing by Buyer, all amounts due to Seller shall be paid within 45 days after Buyer’s acceptance of the Goods. Under no circumstances shall Buyer, without its prior written consent, pay any late fees, interest, attorneys’ fees, carrying or other charges with respect to any amounts invoiced to Buyer by Seller.
5. DELIVERY: All Goods shall be shipped F.O.B. destination point and at the most advantageous rates unless otherwise provided on the face of the Order and authorized in writing by Buyer. Any extra expense in effecting delivery of Goods not so shipped will be charged to Seller. Seller shall give Buyer prompt notice of all shipments.
Shipment shall be strictly in accordance with Buyer’s delivery schedule, and adequate scheduling of shipment shall be made by Buyer to meet the delivery dates included within the Order. If Seller believes it will not be able to meet Buyer’s delivery schedule in any respect, it shall notify Buyer within five (5) days of receipt of the Order. If Seller fails or refuses to proceed with an Order, or if Seller fails to make delivery of all Goods within the time specified by Buyer, Buyer shall have the right to cancel all or any part of the Order. Time is of the essence in the performance of the Order. Seller thus agrees that if the Goods are not delivered at the specified time and in accordance with Buyer’s instructions, and Buyer pays or incurs any liquidated damage, penalty or other charge for late delivery or performance on account of Seller’s late delivery, Seller shall immediately indemnify, defend and hold harmless Buyer therefor. In addition, Buyer reserves the right to return, at Seller’s expense, all Goods received in advance of delivery schedules or to hold such Goods and pay Seller’s invoices on normal maturity after the scheduled delivery date.
6. PACKING AND SHIPPING: Seller shall label, pack, mark and ship all Goods in accordance with the requirements of the Order and with the highest industry standards. Seller shall include any customs valuation invoices and other export documents required by Buyer, and shall secure the most advantageous transportation service and rates consistent therewith. No separate or additional charge is payable by Buyer for containers, crating, boxing, bundling, dunnage, or storage unless specifically stated in the Order. All expenses incurred by Seller’s failure to furnish necessary shipping documents shall be charged to Seller.
7. INSPECTION AND TESTING: Buyer shall have the right to inspect, test and approve any of the Goods covered by the Order, both prior to shipment and upon arrival at the point of destination. If rejected, such Goods will be held for disposal at Seller’s risk, or returned to Seller at Seller’s expense. In addition to its other rights and remedies with regard to non-conforming Goods, Buyer may correct the non-conformance at Seller’s expense if Buyer determines that Seller cannot reasonably cure the non-conformance. Such inspection, or the waiver thereof, or the payment for Goods shall not relieve Seller from full responsibility for furnishing Goods conforming to the requirements of the Order, nor prejudice any claim, right or privilege Buyer may have because of defective or unsatisfactory Goods. Seller shall be responsible for all reasonable costs of inspection incurred by Buyer if defects are identified from such inspection.
8. WARRANTY: All Goods furnished by Seller are warranted (a) to be of the best quality of their respective kind, (b) to be free of defects in design, workmanship, or material, (c) to conform in all respects with any specifications and samples provided by Buyer, (d) to be marketable and free and clear of all liens, claims and encumbrances, (e) to conform in all respects with all applicable federal, state and local laws, orders and regulations, (f) not to infringe or encroach upon any contractual or proprietary rights of others, and (g) to be fit and suitable for their intended purposes, when those purposes are or should be known to Seller. These warranties survive any delivery, inspection, acceptance, or payment of or for the Goods by Buyer, and shall inure to the benefit of Buyer’s customers and users of the Goods.
Seller shall promptly correct defects in any Goods not conforming to the foregoing warranties, or promptly replace such Goods, in each case without expense to Buyer. If Seller fails to do so, Buyer may (a) correct or replace such Goods at Seller’s expense, or (b) cancel all or any portion of the Order. Seller shall be responsible for all damages, direct or indirect, incidental and consequential, associated with all recalls, repairs and replacements of the Goods or products incorporating the Goods, to the extent due to a breach of these warranties.
9. CHANGES: Buyer may at any time make changes in shipping and packing instructions, quantities, drawings, designs, specifications, place of delivery and/or delivery schedules. If any such change causes an increase or decrease in the cost of, or the time required for, performance of the Order, and is not due to a default by Seller, then Seller shall be entitled to claim an equitable adjustment in the price or delivery schedule, or both. Any claim for adjustment under this Section shall be deemed waived unless asserted within ten (10) days from the date of receipt by Seller of the change order. Any claim by Seller for adjustment under this Section must be approved by Buyer in writing before Seller proceeds with such change.
10. CANCELLATION; TERMINATION FOR CAUSE: Buyer may cancel all or any part of the Order for any reason or no reason before complete delivery is made by providing 30 days’ prior notice to Seller. Buyer shall not be liable for lost profits, overhead, development costs or any other direct or indirect cancellation charges. Buyer may terminate all or any part of the Order for cause. The following constitute “cause” for purposes hereof: (a) late deliveries; (b) deliveries that are defective or that fail to conform to the Order; (c) other breaches by Seller of the terms and conditions of the Order; (d) failure upon request to provide Buyer with reasonable assurances of future performance; (e) insolvency of Seller; or (f) if Seller is a party to a merger, consolidation, or other extraordinary transaction that, in Buyer’s judgment, has or may have a material adverse effect on Buyer or the Order. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for all damages, direct and indirect, consequential and incidental, sustained by reason of the cause that gave rise to the termination.
11. INDEMNIFICATION: Seller hereby agrees to indemnify, defend and hold harmless Buyer and its members, managers, officers, employees, affiliates, agents, successors and assigns from and against any and all damages, losses, liabilities, claims, suits, or expenses of any kind or nature whatsoever (including reasonable attorneys’ fees and court costs) arising out of or relating to: (a) the negligence or willful misconduct by Seller or its employees, contractors, agents or representatives; (b) any breach of the Order, these terms and conditions or Seller’s representations, warranties and covenants contained herein; or (c) any infringement or alleged infringement of any trademark, copyright, patent or other intellectual property right on account of the manufacture, sale or use of any Goods, except where compliance by Seller with specifications prescribed by Buyer constitutes the sole basis of infringement or alleged infringement.
12. INSURANCE: Seller shall carry comprehensive general liability insurance, including contractual and product liability coverage, with minimum limits acceptable to Buyer. Seller shall, at the request of Buyer, supply certificates evidencing such coverage for the duration of performance of the Order.
13. CONFIDENTIAL INFORMATION: Seller agrees not to make any use of data, designs, drawings, specifications and other information furnished to it by Buyer, except for the performance of the Order. Seller further agrees not to disclose such data, designs, drawings, specifications and other information to others, except for the performance of the Order and then only under similar restrictions against use and disclosure. Upon completion or termination of the Order, Seller shall return to Buyer on demand (or destroy at Buyer’s option), all such data, designs, drawings, specifications and other information, including all copies thereof.
14. RISK OF LOSS: Seller assumes the following risks: (a) all risks of loss or damage to all Goods, work in process, materials and other things until the delivery thereof as herein provided; (b) all risks of loss or damage to third persons and their property until the delivery of all the Goods as herein provided; (c) all risks of loss or damage to any property received by Seller from Buyer or held by Seller or its supplier for the account of Buyer, until such property has been delivered to Buyer or its customer as the case may be; and (d) all risks of loss or damage to any of the Goods or part thereof rejected by Buyer, from the time of shipment thereof to Seller until redelivery thereof (if any) to Buyer.
15. FORCE MAJEURE: This Agreement shall be temporarily suspended during any period(s) where either party is unable to carry out its obligations under this Agreement, despite best efforts, by reason of an act of God or the public enemy, fire, flood, extreme weather conditions, general labor strike, civil disturbance, extraordinary government interference, or government regulations not in force at the time of acceptance, and neither party shall have any liability to the other party for delay in performance or failure to perform while this Agreement is temporarily suspended. In the event force majeure affects Seller and continues for a period in excess of 10 days, Buyer may, at its option, use a replacement supplier and Seller shall reimburse Buyer for the difference in price plus reasonable costs incurred by Seller. This Section shall not relieve Seller of its obligations where such force majeure events affect assignees, subcontractors or third party providers selected by Seller.
16. LAWS AND REGULATIONS: Seller shall comply with all applicable federal, state, and local laws, statutes and ordinances. Seller also warrants that it will take effective steps to assure that any goods or services it may obtain from its subcontractors shall also be produced or performed in accordance with the requirements of applicable laws, statutes and ordinances.
17. SPECIFICATIONS: All data, designs, drawings, samples, specifications and other information submitted to Seller, by Buyer or its designee, with the Order or referred to by the Order are hereby incorporated herein and made a part of the Order.
18. GOVERNING LAW; VENUE: The Order and these terms and conditions shall be governed by and interpreted in accordance with the laws of the State of Florida, exclusive of any conflict of laws principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Order. Any and all actions concerning any dispute relating to the supply of Goods shall be filed and maintained in the Circuit Court of Broward County, Florida. Buyer and Seller specifically consent and submit to the exclusive jurisdiction and venue of such state or federal court, and irrevocably waive any objections either may have based on improper venue or forum non conveniens to the conducting of any proceeding in any such court.
19. MISCELLANEOUS: The Order and these terms and conditions, constitute the entire agreement of the parties with respect to the matters covered thereby, and supersede all prior oral and written agreements or understandings relating to the subject matter hereof, including Seller’s quotations, proposals, acknowledgments and other documents. No course of dealing, course of performance, usage of trade or other agreement or understanding that purports to amend, add to, omit or waive terms and conditions from the Order or these terms and conditions shall be binding unless made in writing and signed by Buyer and Seller. The failure of either party to insist on performance of any provision of the Order shall not be construed as a waiver of that provision in any later instances.