1. Prices; Payment Terms. Prices are subject to change without notice. All orders are accepted subject to Seller's price in effect at time of shipment. All changes in freight rates or transportation charges used by Seller in computing prices and charges shown on this acknowledgment occurring after the date of this acknowledgment will be for the Buyer's account. Seller shall not be liable for any transportation charges incurred at destination such as spotting, switching, drayage, demurrage, pier unloading charges, etc. Standard terms net 30 days with approved credit, unless otherwise specified by Seller. Applicable sales tax will be added unless a current resale certificate is on file.
TERMS AND CONDITIONS OF PURCHASE
Contract. Seller and Port Plastics Inc. ("Buyer") agree that this Purchase Order shall become a legally binding contract on the terms and conditions set forth herein when it is accepted by Seller either by written or other acknowledgment or by Seller's commencement of performance hereof.. Buyer hereby rejects any and all conditions which Seller may attach to its acceptance of this Purchase Order, and Seller hereby acknowledges the foregoing rejection of Buyer. Furthermore, Seller and Buyer agree that if Seller commences performance of this Purchase Order, the terms and conditions of the contract between Buyer and Seller shall include only the terms and conditions set forth in this Purchase Order. In the event that this Purchase Order operates as an acceptance, acceptance is expressly limited to acceptance of the terms and conditions hereof.
1. Pricing. This Purchase Order can be accepted only at prices specified herein. If prices are not stated herein, goods and/or services shall not be billed at any higher price than previously paid by Buyer to Seller. If Seller shall sell any goods and/or services of the kind and specifications covered by this Purchase Order to any other customer at a price which is lower for the same or a lesser quantity of goods and/or services than the price then in effect hereunder, the corresponding price hereunder shall be reduced to such lower price.
2. Shipment, Delivery and Performance. Time is of the essence. Deliveries are to be made only in quantities and at times specified by Buyer. Buyer may change or suspend delivery schedules. All goods shall be suitably packed, marked and shipped in accordance with Buyer's instructions, or absent such instructions, in accordance with the requirements of common carriers in a manner to secure the lowest transportation costs, and no additional charge shall be made to the Buyer unless otherwise stated herein. Unless otherwise stated herein, all goods shall be shipped F.O.B. destination, freight prepaid, and no charge shall be made by Seller for transportation or storage. The risk of loss shall remain with Seller until the goods have been unloaded and are in the full possession and control of Buyer at its business location. Packing slips shall accompany each shipment. Seller's failure to deliver goods or perform services of the quality and quantity and within the time or times specified shall, at the option of the Buyer, immediately relieve Buyer of any obligation to accept and pay for such goods, as well as undelivered installments, if any.
3. Cancellation. Buyer shall have the right to cancel all or any part of this Purchase Order without liability if (i) Seller does not make deliveries as specified, (ii) Seller's lack of progress endangers timely performance, (iii) Seller breaches any of the terms hereof, (iv) Buyer's business purpose is substantially frustrated through events such as, but not limited to, interruption of transportation, government regulation, labor disputes, strikes, riots, insurrection, war, civil commotion, fire, flood, accident, storm, any act of God or any other cause beyond Buyer's control which makes it impracticable for Buyer to accept such goods, or (v) Seller becomes insolvent or any insolvency proceeding is filed by or against Seller.
4. Inspection. Notwithstanding any payment that may be made all goods shall be received subject to Buyer's inspection. If it is determined in the sole discretion of Buyer that any such goods do not conform to the specifications of this order or are otherwise defective, such defective or nonconforming goods shall be held at Seller's expense and risk and, if Seller so directs, shall be returned at Seller's expense. Buyer shall have neither liability nor obligation whatsoever with respect to any goods held in its possession for Seller's account or returned to Seller. In no event shall Seller have more than ten (10) calendar days from receipt of Buyer's notice of the non-conformity or defect to replace the non-conforming goods.
5. Billing. The original bill of lading, or other shipping receipt, for each shipment shall be promptly forwarded by Seller with the invoice for this Purchase Order, Seller shall describe goods on the bill of lading or other shipping receipt and shall route each shipment in accordance with Buyer's instructions. Seller shall prepare a separate detailed invoice (in duplicate) for this Purchase Order, and such invoice shall not conflict in any way with the terms and conditions set forth in this Purchase Order. No interest, finance or service charge shall be payable. When invoices are subject to discount for prompt payment, the time for determining whether the discount is applicable shall begin on date the invoices are received by Buyer.
6. Warranty and Related Matters. Seller expressly warrants that all goods and services covered by this Purchase Order shall (i) conform to the drawings, specifications, samples and other descriptions furnished by Buyer, (ii) be merchantable, (iii) be of good material and workmanship and (iv) be free from defects. This warranty, and all other terms and conditions set forth in this Purchase Order, shall benefit Buyer, Buyer's successors, assigns and customers, and users of the goods and services covered by this Purchase Order. In addition to any other remedies Buyer may have, Buyer may reject goods not conforming to the warranties set forth in this Section 7. Any payments made on such rejected goods shall be immediately refunded to Buyer.
7. Patents, Copyrights and Trademarks. Seller warrants that the goods and services covered by this Purchase Order and the use or sale thereof will not infringe any United States or foreign patent, copyright, trademark or other proprietary right. If the goods or services covered by this Purchase Order or the use or sale thereof are held to infringe any such rights, Seller shall at its expense either procure for Buyer, its successors, assigns and customers, and users of the goods and services the right to continue using or selling such goods or services or replace them with non¬infringing goods or services.
8. Authorization Only duly authorized personnel of Buyer may execute this Purchase Order or make any modification hereof. Only modifications made in writing shall be binding upon Buyer. Buyer may waive Seller's performance or compliance with any terms or conditions hereof, but any such waiver shall be effective only if given in writing and only with respect to the specific circumstances for which it is given.
Compliance with Laws. Seller warrants and certifies that it has complied with any and all applicable foreign, federal, state and local laws, rules, regulations and orders, including, without limitation, the Fair Labor Standards Act, the Equal Employment Opportunity Act, and the Occupational Safety and Health Act. Seller's acceptance and performance of this Purchase Order shall constitute certification by Seller of such compliance. Seller shall furnish additional certificates and other evidence of compliance upon Buyer's request.
9. Indemnification and Waiver. Seller shall defend, protect, indemnify and save Buyer, its successors, assigns and customers, and users of the goods and services covered by this Purchase Order harmless from any and all damages, liabilities, claims, costs, or expenses (including but not limited to attorneys' fees) which may be asserted against them, including but not limited to, those resulting from injuries to any person or damage or loss of any property, that arise, directly or indirectly, in whole or in part, out of (i) any breach of warranty by Seller, (ii) any other act or omission of Seller, its agents, employees or subcontractors with respect to the goods or services covered hereunder, (iii) Seller's failure to comply, in whole or in part, with any applicable legal requirement, (iv) any breach of the terms and conditions of this Purchase Order by Seller, (v) product defect, or (vi) the assertion of any patent, copyright, trademark or other proprietary right by any person with respect to the goods or services covered hereby, whether or not such person asserts such right directly against Buyer, its successor, assigns or customers, or users of the goods or services covered hereby, or under or through Seller. Seller waives and releases Buyer from all rights of contribution or indemnity to which it may otherwise be entitled. As used in this paragraph, the term Buyer means the Buyer, its officers, directors, agents, employees, subcontractors, parent, subsidiaries, divisions and affiliates.
10. Attorney's Fees. In the event Buyer must institute litigation in order to enforce its rights under this Purchase Order, Buyer shall be entitled, in addition to any and all legal and equitable remedies, to recover from the Seller its reasonable attorneys' fees, expert witness costs and court costs.
Waiver. Failure on the part of Buyer to enforce at any time, or for any period of time, any of the provisions of this Agreement shall not be deemed or construed to be a waiver of such provision or of the right of Buyer to thereafter enforce each and every such provision.
11. Remedies. Seller shall be liable for all damages, direct and indirect, resulting from its breach of any of the terms and conditions hereof. Buyer's rights and remedies hereunder shall survive acceptance or payment and shall be in addition to those provided at law or in equity. In the event Seller is entitled to recover damages related to this Purchase Order, such damages shall not include any incidental or consequential damages.
12. Miscellaneous. This Purchase Order may not be assigned without the prior written consent of Buyer. This Purchase Order and the legally binding contract resulting here from constitute the entire agreement between the parties with regard to the goods or services that are the subject hereof, and shall be governed by the laws of the state of Florida without regard to its conflict of laws provisions.