STANDARD TERMS AND CONDITIONS OF SALE OF MAXXWELL OF FLORIDA
With his order the buyer accepts all the terms and conditions hereof, which shall apply to the exclusion of any terms and conditions contained in any order or communication of the buyer not specifically agreed to in writing by Maxxwell of Florida (“the seller ”). The seller’s acceptance of the buyer’s order for the purchase of merchandise and related services is explicitly made conditional on the buyer’s acceptance of the terms contained herein.
The seller will arrange for the delivery of the products covered by the order products FCA to the location designated by the buyer (Incoterms 2010), unless otherwise agreed to in writing by both the buyer and the seller. Risk of loss of or damage to the products from any cause whatsoever will be borne by the seller until the moment the seller delivers the merchandise to the carrier at the point of origin („Delivery), and by the buyer thereafter. If it is lost, confiscated, damaged, destroyed or otherwise rendered unfit or unavailable for use prior to Delivery, (i) the seller will not be liable to repair the same or supply any products in substitution thereof, and (ii) the buyer will not be liable to purchase them.
The seller will not be held responsible for any failure or delay in performance resulting from causes beyond its reasonable control. These may include, but are not limited to, acts of God or public enemy, fire, sabotage, adverse weather conditions, strikes or other labor disputes, riots, insurrection, civil unrest, war, acts of government, court orders, delays occasioned by manufacturers, suppliers or subcontractors, and shortage of materials or services.
As soon as the buyer receives the products, these are to be inspected to ensure compliance with the terms of the order and the buyer undertakes to notify the seller in writing of any discrepancy concerning the merchandise within ten (10) calendar days after receiving the merchandise. After such an inspection period, the merchandise will be conclusively regarded as accepted by the buyer .
4. Returns and Exchanges
This order is a firm order. The seller may, at its sole and absolute discretion, accept the return or exchange, or attempted return or exchange, of any goods by the buyer, providing the buyer will be held responsible for all shipping expenses and risk of loss of or damage to the products connected with any such authorized return or exchange. All accepted returns are subject to a restocking charge. Yet the seller will not be required to return or exchange any goods at all. The aforesaid restrictions will not apply to the return or exchange of articles that do not meet the specifications as set forth in the related order.
The terms of payment will be agreed to in writing with the seller. If any payment is not made when due, the buyer will pay to the seller an amount equal to interest on such payment at the rate of the United States Prime Rate plus five percent (5%) per annum, without exceeding the maximum rate allowed per applicable law. The buyer will not delay payment for the merchandise pending, or based on the result of, its inspection or acceptance. If the buyer fails to make any payment due in full within five (5) calendar days after the date when such payment is due, then the buyer will be compelled to indemnify and reimburse the seller upon demand for all costs and expenses incurred by the seller in recovering any sums due from the buyer (including, without limitation, reasonable attorneys’ fees and costs of enforcement). The aforesaid remedies are not exclusive, but will be in addition to all other remedies available to the seller at law or in equity.
The buyer is responsible for all sales, use, ad valorem, value added and other taxes, duties, fees and other charges of any nature whatsoever, including interest and penalties thereon (collectively, “Taxes”) arising from the sale, delivery or use of the products or related services under the order, and will reimburse the seller for any such charges the seller may be required to pay, providing the buyer will not be held responsible for any Taxes based on the net income of the seller.
7. Warranties and Disclaimer
(a) The seller assigns to the buyer any and all assignable warranties of manufacturers of and for the products, effective concurrently with delivery.
(b) The goods are being sold „as is, where is“. The seller disclaims and the buyer waives all express, implied or statutory warranties, terms, representations or conditions of any kind or nature regarding the merchandise, whether in contract, tort or strict liabaility (including, without limitation, any obligation or liability in negligence, whether active or passive, or with regard to its fitness for a particular purpose, merchantibility, loss of use or non-infringement). Under no circumstances will the seller be held responsible for any special, incidental or consequential damages (including, without limitation, economic loss, loss or damage to any property or person or any other exemplary,punitive or similar damages, as well as expenses incurred externally to the products as a consequence of a fault in the goods) arising out of or in connection with any tortious or negligent act or omission by the seller. Under no circumstances will the liability of the seller hereunder or under any order for products submitted by the buyer hereunder, exceed the amount of the purchase order.
The buyer will protect, indemnify and hold harmless the seller and its officers, directors, employees and agents from and against any and all liabilities whatsoever that may arise out of the ownership, use and operation of the products on or after Delivery forever.
Without the seller’s prior written permission, any assignment or attempted assignment will be wholly void, invalid and totally ineffective for all purposes.
10. Governing Law and Jurisdiction
Both the buyer and the seller agree that these standard terms and conditions, and any order for goods submitted by the buyer hereunder, be written in English and be governed by and construed in accordance with the laws of the State of Florida, regardless of any conflicts of law provisions thereof. The buyer and the seller agree that any state or federal court located in Melbourne, Florida will have exclusive jurisdiction to hear any suit, action or proceeding arising out of or in connection with these general terms and conditions and/or any order for products submitted by the buyer hereunder, and consent and submit to the exclusive jurisdiction of any such court in any such suit, action or proceeding.