SUSTAINABLE MANAGEMENT SOLUTIONS
CONDITIONS OF SALE-APPLICABLE TO SALES IN THE UNITED STATES
TERMS AND CONDITIONS
All orders received and all sales made by Sustainable Management Solutions, LLC (herein called SMS are expressly conditioned upon the different terms (except additional provisions regarding shipping instructions), whether or not materially different, set forth in any purchase order or other communication from buyer are objected to and shall not be binding upon company unless specifically accepted in writing by an authorized representation of company.
Company warrants that each product to be delivered hereunder will conform to company’s applicable specifications and to be free from defects in material or workmanship. The foregoing warranties are exclusive and in lieu of all other warranties, (except the warranty of title), whether written, oral, implied to statutory, NO WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR PURPOSE SHALL APPLY. The conditions of any test shall be mutually agreed upon, and company shall be notified of, and may be represented at all tests that may be made. If any failure to conform to the foregoing warranties appears within three months from date of shipment (herein after referred to as the Liability Period). Buyer shall promptly notify company thereof and make the affected product available to company and company shall then at its option either correct the defect or defects by making a replacement of the product at buyer’s plant or issue an appropriate credit. The foregoing shall constitute the buyers exclusive remedies for claims (except as to title patent infringement) based on defects in or failure of product whether the claim is in contact or tort (including negligence) and however instituted.
NOTE: Where products have limited life or may deteriorate through age or other factors such as improper storage of where industry accepted visual imperfections exist such limited life or deterioration or imperfection is not a defect in material or workmanship or a failure to conform to specification as contemplated herein. Such products are normally so labeled or identified in published data or accompanied by cautionary notice.
It is understood that any defective product will not be returned until authorized in advance by company. Returned products should be intact in form as shipped and must retain company’s identity.
LIMITATION OF LIABILITY
In no event whether as a result of breach of contract, warranty, tort (including negligence), failure of a remedy to accomplish its purpose, or otherwise, shall company be liable for any incidental or consequential damages including, but not limited to, loss of profits or revenue, loss of use of the product, damages to associate equipment down time of plant or equipment, cost of substitute equipment or products or claims of buyers customer for such damage.
Except as provided below with respect to patent infringement, the liability of company on any claim of any kind, whether based upon breach of contracts, warranty, tort (including negligence) or otherwise, for any loss or damaged arising out of, or resulting from this agreement, or from its performance or breech or for any product furnished hereunder, shall in no event exceed the price of the product which gives rise to the claim. Except as to title, al such liability shall terminate upon expiration of the liability period specified in the section entitled “WARRANTY”.
If company furnishes buyer with advice or other assistance which concerns any product supplied hereunder or any equipment, in which any such product may be installed and which is not required pursuant to this agreement, the furnished of such advice or assistance will not subject company to any liability whether in contract, warranty, tort (including negligence) or otherwise. The invalidity I whole or part of any of the foregoing paragraphs will not affect the remainder of such paragraphs or any other paragraph in this section.
Buyer shall hold company harmless against any expenses or loss resulting from infringement of patents or trademarks arising from compliance with buyer’s design or specifications or instructions.
Except as otherwise provided in the preceding sentence, Company shall defend any suit or proceeding brought against buyer so far as based on claim that any product or any part thereof furnished under this agreement constitute an infringement of any patent of the United States, if notified promptly in writing and given authority, information and assistance (at company’s expense) for the defense of the same, and company shall pay all damages and cost awarded therein against buyer. In case such product or any part thereof is in such suit held to constitute infringement and the use of said product or part is enjoined, company shall at its option and its own expense, either procure for buyer the right to continue using said product or part; or replace same with non-infringing products; or modify it so it becomes non-infringing or remove product and refund the purchase price and the transportation costs thereof.
Company shall not be liable for any costs or damages incurred by buyer as a result of any suit or proceeding brought against buyer so far as abased on claims (a) that use of any product or any part thereof, furnished hereunder, in combination with products not supplied by company, or (b) that a manufacturing or other process utilizing any product or any part thereof furnished hereunder constitute either direct or contributory infringement of any patent of the United States.
The sale of products by company does not convey any license, by implication, estoppels or otherwise under patent claims covering (a) combinations of said products with other devices or elements or (b) a process or machine in connections with which they may be used.
DELIVERY, TITLE AND RISK OF LOSS
Delivery dates are approximate and are based upon prompt receipt of all necessary information from buyer. Unless otherwise specifically specified by company, delivery will be made and the title was pass F.O.B. point of shipment. Risk of loss or damage shall pass to buyer on delivery. Company shall ship products as it deems appropriate unless otherwise instructed in writing by buyer.
Company shall not be liable for delays in delivery or performance or for failure to manufacture due to (I) causes beyond its reasonable control, (ii) acts of god, acts of buyer, acts of civil or military authority, governmental priorities, strike or other labor disturbances, floods, epidemic, war, riots, delays in transportation or car shortages, (iii) inability on accounts of a cause beyond its reasonable control or obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay.
FINANCIAL CONDITIONS AND PAYMENT
Any order for products by buyer shall constitute a representation that buyer is solvent. If, in the judgment of the company, the financial condition of buyer at any time does not justify continuance of production or shipment on the terms of payment originally specified. Company may require full or partial payment in advance. In event of bankruptcy or insolvency of buyer or in the event any proceeding is brought by or against buyer under the bankruptcy or insolvency laws. Company shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate and shall receive reimbursement for its cancellation charges. Company rights under this provision are in addition to all rights available except to the extent otherwise specified by company; pro rata payments shall become due without setoff as shipments are made. If company consents to delay shipment after completion of any product, payment shall become due on the date when company is prepared to make shipment. In the event of any such delay, title shall pass and the products shall be held at buyers risk and expense.
Buyer hereby grants to company a security interest in all products sold hereunder until all payments shall have been made in full in cash by buyer. Buyer agrees to execute any financing statements by company to perfect such security interest.
SALES AND SIMILAR TAXES
Unless otherwise stated in writing, company’s prices do not include sales, use, excise or similar taxes.
Consequently, in addition to the prices specified herein, the amount of any present or future sales, use, excise or other similar tax applicable to the sale of the products hereunder shall be paid by buyer or in lieu thereof buyer shall provide company with a tax exemption certificate acceptable to the taxing authorities.
Buyer may not cancel its order after shipment from company’s factory or warehouse. Buyer may cancel its order prior to shipment only upon written notice and payment of company cancellation charges which shall include lost profits and all expenses incurred by company in connection with the cancelation order.
Unless otherwise stated in writing by company, prices, terms of payment and pricing policies will be those set forth in company’s pricing policies and published price schedules in effect at the time of shipment.
Unless otherwise specified in writing, any variation over or under in quantities shipped not exceeding 10% of the quantities ordered shall constitute compliances with the order and the unit price will continue to apply.
All items ordered will be packaged according to company’s standards. Special packaging at request of buyer may be subject to additional charges.
Buyer shall not assign its order or any interest therein or any rights hereunder without the written consent of company, and any such assignment shall be void.
When tooling and engineering service charges are billed separately on invoice, such billing or payment therefore shall not imply ownership of the tools to buyer. Tools shall always remain the property of company.
Any representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding upon company. No charge, modification, rescission or waiver of these conditions of sale shall be binding upon company unless made in writing and signed on behalf by its manager, marketing and sales.
Any product delivered by company hereunder will be produced in compliance with Fair Labor Standards Act of 1938, as amended and applicable.
The validity, performance and all matters relating to the interpretation and effect of agreement and any amendment hereto shall be governed by the law of the State of Florida Broward County.
In the event of any litigation between APT and CUSTOMER to enforce the provision of this agreement or any right of either party thereto, the prevailing party in such litigation shall be entitled to receive from the other party an award of all costs and expenses, including reasonable attorney’s fees, and all legal expenses, incurred in connection with the preparation, execution, protection, enforcement and collection of the agreement. Costs and expenses shall include but not be limited to the prevailing party’s reasonable attorney’s fees and legal expenses, including reasonable attorney’s fees and legal expenses for bankruptcy proceedings ( and including efforts to modify or vacate any automatic stay or injunction), appeals, and any anticipated post-judgment collection services.
Sustainable Management Solutions, LLC (SMS)