All orders placed by Buyer are subject to acceptance by Seller. Orders may not be cancelled or rescheduled without Seller’s written consent. All orders must include delivery dates, quantities, approved vendors and complete description of Products being purchased. Seller may in its sole discretion allocate Product among its Customers. Seller may designate certain Products as non-cancellable, non-returnable (“NCNR”), and the sale of such Products shall be subject to the special terms and conditions contained in Seller’s Non-Cancellable, Non-Returnable Product Agreement, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere.  All Brokered, lead time, and scheduled orders are non-cancellable-non-returnable.

 (a) The prices of the Products are those specified on the front of Seller’s invoice. Pricing for undelivered Product may be increased in the event of any increase in Seller’s cost, change in market conditions or any other causes beyond Seller’s reasonable control. Price quotations, unless otherwise stated, shall automatically expire ten (10) business days from the date issued and may be cancelled or amended within that period without notice to Buyer.

  (b) Unless otherwise agreed to in writing by Seller, all prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including, but not limited to, federal, state, provincial and local sales, excise, value added, goods and services taxes and any other taxes. Buyer agrees to pay these taxes unless Buyer has provided Seller with an exemption resale certificate in the appropriate form for the jurisdiction of Buyer’s place of business and any jurisdiction to which Products are to be directly shipped hereunder, or unless the sale is otherwise exempt from these taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller’s invoice.  Buyer must have a state sales tax exemption certificate on file with seller to avoid sales tax charges.  A Buyer using a restricted sales tax exemption certificate (per purchase order) must submit a confirming purchase order referencing the state sales tax exemption number for all orders exempt from sales tax.

Payment terms are negotiated and subject to credit approval prior to acceptance of Buyer’s purchase order.  Upon approval of credit, corporate standard terms of payment are net thirty (30) days from the date of invoice unless otherwise specified in writing by Seller. In addition, Buyer will be deemed to have accepted an invoice upon the fifteenth (15th) day from the date of invoice and no further objections to the invoice will be permitted or accepted. If Seller otherwise specifies in writing payment terms longer than thirty (30) days from the date of invoice, then: (i) the invoice will be deemed accepted upon the thirty (30th) day from the date of invoice and no further objections will be permitted or accepted; and (ii) Buyer must certify within thirty (30) days from the date of invoice that payment has been submitted for processing. Seller may invoice each shipment separately and each shipment shall be considered a separate and individual contract. Buyer agrees to pay such invoice pursuant to its terms without the benefit of setoff or deduction.

All late payments shall be charged interest computed on a daily basis from the due date until paid in full. A late charge of one and one-half percent (1 1/2%) per month or the maximum rate permitted by applicable law, whichever is less, will be imposed on all past due accounts. Buyer shall be liable for costs of collection, including reasonable attorneys’ fees and court costs, in any action to collect past due amounts.

Transportation charges from Seller’s facility to Buyer’s facility shall be paid by Buyer to Seller, in addition to the purchase price of the Product, unless otherwise agreed to in writing by Seller, or if Seller is provided a valid shipping account from Buyer.  Seller will select the carrier in the absence of specific instructions by Buyer.

Seller reserves the right to establish and/or change credit and payment terms extended to Buyer when, in Seller’s sole opinion, Buyer’s financial condition or previous payment record warrants such action. Further, on delinquent accounts, Seller shall not be obligated to continue performance under any agreement with Buyer.

If Seller believes in good faith that Buyer’s ability to make payments may be impaired or if Buyer shall fail to pay any invoice when due, Seller may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Buyer shall remain liable to pay for any Products already shipped and all NCNR Products ordered by Buyer.

Any payment received from Buyer may be applied by Seller against any obligation owing from Buyer to Seller, regardless of any statement appearing on or referring to such payment, without discharging Buyer’s liability for any additional amounts owing from Buyer to Seller, and the acceptance by Seller of such payment shall not constitute a waiver of Seller’s right to pursue the collection of any remaining balance.

All deliveries will be made EXW (Ex Works as defined in Incoterms 2000) Seller’s facility or FOB place of origin. Subject to Seller’s right of stoppage in transit, delivery of the Products to the carrier shall constitute delivery to Buyer and title and risk of loss shall thereupon pass to Buyer. Selection of the carrier and delivery route shall be made by Seller unless specified by Buyer. Buyer acknowledges that delivery dates provided by Seller are estimates only and Seller shall not be liable for delays in delivery or for failure to perform due to causes beyond the reasonable control of Seller nor shall the carrier be deemed an agent of Seller. In the event of delay caused by such event, the date of delivery shall be extended for a period equal to the time lost as a consequence of the delay in delivery without subjecting Seller to any liability or penalty. If the Products perished while in the custody of the carrier, the Seller shall be deemed to have performed its obligations in full. Delivery of a quantity, which varies from the quantity specified, shall not relieve Buyer of the obligation to accept delivery and pay for the Products delivered. Delay in delivery of one installment shall not entitle Buyer to cancel other installments.

(a)   Seller will transfer to Buyer any transferable warranties or indemnities that the manufacturer of the Product or the third party vendor/service provider provides to Seller. SELLER SHALL HAVE NO LIABILITY TOWARDS BUYER BEYOND THE EXPRESS TERMS OF SUCH MANUFACTURER PRODUCT WARRANTIES. SELLER ASSUMES NO LIABILITY FOR THE QUALITY OF THE WORK PERFORMED OR SERVICES RENDERED BY THIRD PARTY VENDORS/SERVICE PROVIDERS. IT IS BUYER’S OBLIGATION TO REQUEST COPIES OF ANY APPLICABLE MANUFACTURER WARRANTIES AND BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH WARRANTIES UPON ACCEPTANCE OF THE PRODUCTS AND/OR SERVICES.

(b)   Seller’s exclusive obligations with respect to a non-conforming Product or Service shall be in effect for 1 year from date of receipt at Buyer’s facility, it is at Seller’s option, to repair or replace the Product, or to re-perform the Service, or to refund to Buyer the purchase price paid for the Product or Service, if the results from the Failure Analysis or Third Party Test results has determined the products to be defective. In respect to non-conforming Product or Services Seller has no obligations to repair or replace the Product or re-perform the service or refund the Buyer if such Failure Analysis or Third Party Test results are not provided or the results of such reports do not conclusively determine the Product to be defective.  Notwithstanding anything herein to the contrary, the liability of Seller under this Section 5(b) for all claims shall not exceed the sum of Buyer’s payments for the Products or Services which are the subject of the dispute and the foregoing is Buyer’s sole and exclusive remedy for all claims under this Section 5(b). THE FOREGOING WARRANTIES ARE THE SOLE WARRANTIES, EXPRESS OR IMPLIED, GIVEN BY SELLER IN CONNECTION WITH THE PRODUCTS AND SERVICES, AND SELLER DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.

(c)   Replacement Products shall be warranted as set forth in Section 5(a) and 5(b) above.

(d)   No manufacturers’ warranty will be transferred or Seller’s exclusive obligations with respect to non-conforming products or services shall apply to any Product that has been subject to misuse, improper testing, assembly, mishandling, or which has been operated contrary to current instructions relating to installation, maintenance or operation, or contrary to industry standards.

 (e)   BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION, BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS, REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED BUYER’S PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS. IF, FOR ANY REASON, THE FOREGOING LIMITATIONS ARE FOUND BY AN ARBITRATION PANEL OR COURT OF COMPETENT JURISDICTION TO BE INVALID OR INAPPLICABLE UNDER ANY APPLICABLE STATE OR PROVINCIAL LAW, BUYER AGREES THAT SELLER’S TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, OR CAUSES OF ACTION OF ANY KIND OR NATURE SHALL BE LIMITED TO ACTUAL DAMAGES WITHOUT REGARD TO ANY PUNITIVE OR EXEMPLARY DAMAGES PROVIDED BY ANY SUCH APPLICABLE LAW. 

(f)   Buyer acknowledges that this Agreement was entered into at arms length and that it was not fraudulently induced to enter into this Agreement, in whole or any part, and Buyer explicitly disclaims and waives any claim with respect thereto.

All Brokered, lead time, and scheduled orders are non-cancellable-non-returnable (NCNR).  All Products designated no-cancellable, non-returnable (NCNR) by Seller, and accompanied by and subject to the terms and conditions of a signed non-cancelable, non-returnable agreement are not returnable.  Shipments will be deemed to have been accepted by Buyer upon delivery of the said shipments to Buyer.  Buyer shall perform whatever inspection or tests Buyer deems necessary as promptly as possible but in no event later than thirty (30) days after receipt, after which time Buyer will be deemed to have irrevocably accepted the Products. Any discrepancy in shipment quantity must be reported within thirty (30) working days of receipt of the Products. In the event of an over shipment, Buyer shall have the option to return the Products to Seller at Seller’s expense or alternatively, Buyer may elect to retain the Products (subject to adjustment of the invoice or the issuance of another invoice to account for such additional items). Any Product returns shall be subject to compliance with Seller’s Return Merchandise Authorization (“RMA”) policies and procedures, which are available upon request, as well as a restocking charge equivalent to 50% of the value of such Product as specified in Seller’s invoice to Buyer. Returned Products must be in the original manufacturer’s sealed packaging and conform to minimum package quantity (“MPQ”) requirements. Products not eligible for return shall be returned to Buyer freight collect.  AUTHORIZED RETURNS MUST BE MADE WITHIN TEN (TEN) DAYS OF THE ISSUE OF A RETURN AUTHORIZATION NUMBER.

All packages should be opened and inspected immediately upon receipt.  All claims of shortages, errors, or damage must be made in writing to Seller within ten (10) days of receipt of Products by Buyer.  A Return Merchandize Authorization (RMA) number issued by Seller to Buyer is required prior to return of Products. Products returned to Seller by Buyer without a Return Merchandize Authorization number will be returned by Seller to Buyer freight collect.  Claims of loss or damage in transit must be made by Buyer directly to the carrier. All returns are subject to a restocking fee as mentioned above.

Buyer certifies that it will be the recipient of Products to be delivered by Seller. Buyer acknowledges that the Products are subject to the export and/or import control laws and regulations of various countries including the Export Administration Laws and Regulations of the United States. Buyer agrees to comply strictly with all U.S. export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required and acknowledges that it shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. Products sold by Seller cannot be transferred, sold or re-exported to any party on the Entity List or Restricted Person List of the U.S. Department of Commerce, Bureau of Industry and Security (BIS), any party designated by the U.S. Treasury Department’s Office of Foreign Assets Control, and any party debarred or sanctioned for proliferation or terrorism reasons by the U.S. State Department. Products sold by Seller are not designed, intended or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of such Products could reasonably be expected to result in personal injury, loss of life or catastrophic property damage. If Buyer uses or sells the Products for use in any such applications: (1) Buyer acknowledges that such use or sale is at Buyer’s sole risk; (2) Buyer agrees that Seller and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the manufacturer of the Products harmless from and against any and all claims, damages, losses, costs, expenses and liabilities arising out of or in connection with such use or sale.

If any Product includes software or other intellectual property, such software or other intellectual property is provided by Seller to Buyer subject to the copyright and user license, if any, for such Products, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Buyer acknowledges and understands that Seller is not the manufacturer of any Products ordered or to be supplied to Buyer and is not liable to Buyer or any third party for any copyright, design or patent issue, right or claim that may arise in relation to any Product.

Any technical assistance or advice offered by Seller in regard to the use of any Product or provided in connection with Buyer’s purchases is given free of charge and only as an accommodation to Buyer. Seller shall have no obligation to provide any technical assistance or advice to Buyer and if any such assistance or advice is provided, such fact will not obligate Seller to provide any further or additional assistance or advice. Seller shall not be held liable for the content or Buyer’s use of such technical assistance or advice nor shall any statement made by any of Seller’s representatives in connection with the Products or Services constitute a representation or warranty, express or implied.

The validity, enforcement, construction, and interpretation of this agreement are governed by the laws of the State of Florida (including provisions of the Florida Uniform Commercial Code) and the federal laws of The United States of America, excluding the laws of those jurisdictions pertaining to 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 Good.  Seller and Buyer (a) consent to the personal jurisdiction of the state and federal courts jurisdiction over Pasco County, Florida, (b) stipulate that the proper, exclusive, and convenient venues for all legal proceedings arising out of this agreement are Pasco County, Florida, and (c) waive any defense, whether asserted by motion or pleading, the Pasco County, Florida or the Middle District of Florida, Tampa Division, is an improper or inconvenient venue.

Force Majeure: Seller shall not be liable for its inability to secure sufficient quantities of any Product or failure to deliver due to causes beyond Seller’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, shortage of Product, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, acts of terrorism, delays in transportation or inability to obtain labor, materials or Products through its regular sources, which shall be considered as an event of force majeure excusing Seller from performance and barring remedies for non-performance. In an event of force majeure condition, the Seller’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Seller to any liability or penalty. Seller may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to Buyer.

No course of dealing or failure of either party to strictly enforce any term, right or condition of this Agreement shall be construed as a waiver of that term, right or condition nor shall Seller’s acceptance of a purchase order be deemed as an acceptance of any terms and conditions therein.

This Agreement (together with any agreements, policies or terms incorporated by reference) shall constitute the complete, final and exclusive statement of the terms of the Agreement between the parties with respect to the subject matter of this Agreement and the transactions between the parties and shall not be modified or rescinded, except by a writing signed by Seller and Buyer. The provisions of this Agreement supersede all prior oral and written quotations, communications, agreements, and understandings of the parties with respect to the subject matter of this Agreement. Products furnished, and services rendered by Seller are done so only in accordance with these terms and conditions. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these terms and conditions, which shall remain in full force and effect.