GENERAL TERMS & CONDITIONS
1. Price. All prices are F.O.B. warehouse of DRIED INGREDIENTS and in U.S. dollars, unless otherwise agreed to in writing by the buyer and seller. Prices quoted are those in effect at the time of quotation and are valid for 30 days from the date of quotation regardless of existence of any written confirmation. Until the proposal price and subsequent purchase price are paid in full, the buyer grants seller a security interest in all of the goods described in this proposal, all of the goods described in any resulting contract and buyer agrees to sign on seller's request any required documentation to complete seller's said security interest.
2. Payment Terms. Normal payment terms are PREPAID, unless otherwise set forth in this proposal. Any outstanding balances not paid by the date on which they are due to DI shall be subject to interest of 1 1/2% per month on the unpaid balance (or the maximum allowable by law whichever is the lesser) as well as rebilling charges together with reasonable attorney's fees and paralegal fees including all such fees in any appeal together with all costs associated with efforts by DI to enforce the terms of this proposal as well as all agreements between the parties.
3. Products. Products are defined as those items listed on the proposal and a subsequent resultant purchase order to DI containing items listed on the proposal.
4. Acceptance. Upon receipt the buyer shall immediately inspect and/or test the products. Unless stated otherwise in writing on the final agreement between the parties, products shall be deemed accepted unless the buyer notifies DI within 5 working days after receipt of shipment of any defect or discrepancy.
5. Transportation. Unless the buyer specifies the method of transportation, DI will use its best judgment in determining the method of transportation. All costs of standard transportation, premium transportation if required through no fault of DI, and other costs such as excise taxes, duty, freight forwarding or the like shall be billed to the buyer.
6. Title and Risk of Loss. Title of goods sold, shall pass to buyer at the F.O.B. point.
7. Damages Based Upon Negligence or Strict Liability. DI' obligation based upon any claim of negligence or of strict liability as a result of its delivery of products ordered by Buyer, shall be limited to, at DI' option, repairing or returning the products that are found by DI to be defective, or refunding the purchase price of such products. In no event shall DI' liability exceed the purchase price of the products which are subject matter of any such claim. DI shall not be obligated to make any such refund or replacement until at least thirty (30) days after DI has received from Buyer the subject alleged defective product, which will be shipped to DI at the buyer's expense.
8. Disclaimer of Consequential Damages. In no event shall DI be liable for incidental or consequential damages arising out of or in connection with the purchase by Buyer of goods from DI including, without limitation, such damages which may be caused by a breach of any obligation or warranty imposed on DI under such purchase. Consequential damages shall include without limitation, loss of use, income or profit, or loss sustained as the result of injury to any person, or loss or damage to any property, or loss or damages sustained as the result of work stoppage. Buyer shall indemnify DI against all liability, cost, or expense which may be sustained by DI due to loss, damage, or injury. IN NO EVENT, SHALL DI’ LIABILITY EXCEED THE PURCHASE PRICE OF GOODS.
9. Taxes. Unless specifically provided herein, the price for goods purchased as a result of this proposal does not include sales, use, excise or similar taxes, whether Federal, State or local. Buyer is responsible for all applicable taxes for any goods after title passes to the Buyer at the F.O.B. point. If Buyer is exempt from paying sales taxes, a certificate evidencing such shall be provided to DI upon request.
10. Export. Buyer agrees not to directly or indirectly export any Goods purchased from DI (whether or not modified by subsequent services) without first obtaining the required U.S. Government export license(s). If Buyer intends to export Goods outside the U.S., Buyer shall determine whether an export license is required; and, if so, obtain that license from the U.S. Government. Buyer shall protect, defend and indemnify DI from any loss or liability due to Buyer's failure to comply with export regulations. Buyer furthers warrants that the Goods sold to Buyer from DI will not be resold, transferred, exported or reused in any way by Buyer in violation of any laws, regulations or export control imposed by the U. S. Government.
11. Delays. Unless specified in writing by DI to the contrary, goods in stock shall be shipped immediately upon the signing of a binding purchase agreement. Goods not in stock will be shipped as soon as possible. DI will not be liable for any nonperformance of the Agreement resulting from this proposal caused by strikes, fires, disasters, riots, acts of God or other causes or conditions beyond DI’ reasonable control. In the event of such delay or nonperformance, DI may, at its sole option, and without liability, cancel any portion of the Agreement resulting from this proposal and/or extend any date upon which any performance is due.
12. Termination. If Buyer (a) fails to pay any amount owed when due, or (b) assigns or transfers the Agreement subsequently resulting from this proposal without DI’ prior written consent, or (c) makes an assignment for benefit of creditors, or (d) files or has filed against it, petition for relief under federal or state bankruptcy laws, or (e) breaches any other term or condition of this proposal or resultant contract, DI may terminate any portion of the agreement resulting from this proposal in addition to DI’ other available remedies. If DI fails to perform any obligation when due, and if such failure is not remedied within thirty (30) days after receipt of written notice from Buyer, Buyer may terminate any portion of such Agreement. In all other cases, the Agreement resulting from this proposal may be terminated by either party by giving sixty (60) days written notice. Termination of the Agreement, for any reason, shall in no way interfere with the obligation of Buyer to pay all monies payable as of the effective date of termination or which become payable for Goods ordered and delivered after such termination. If such Agreement is terminated by Buyer for any reason other than default by DI, Buyer shall be liable immediately thereupon, to pay to DI the full contract price for all goods completed by DI pursuant to the Agreement and for all work in process at the time of termination.
13. Returns and Cancellations. Buyer may not cancel any order or return any Goods that have been special or custom ordered, custom manufactured or configured, unless specifically agreed to in writing to seller in this proposal and in the subsequent agreement. Returns are subject to a 25% restocking fee which will be due to seller when the goods are received by seller.
14. Patents and Copyrights. In no event shall DI be liable for damages arising from infringement of patents or copyrights. In the event that Buyer should be enjoined in any such suit alleging infringement of patent(s) or copyright(s) or proceeding from using any of the Goods purchased pursuant to this proposal and subsequent Agreement, DI, at its option, shall either (a) secure termination of the injunction and procure for Buyer the right to use such goods without obligation or liability or (b) replace or modify said Goods with non infringing materials at DI’ expense and refund the purchase price of the infringing goods to Buyer; provided, however, that in no event shall DI be liable for or have any obligations under this paragraph if the alleged infringement is by reason of the specifications provided by Buyer to DI under this agreement. The foregoing shall be Buyer's exclusive remedy against DI with respect to any alleged patent or copyright infringement. The sale of goods does not convey any license of copyright under any proprietary or patent rights of any manufacturer. DI shall not have any liability if the alleged infringement is based upon the use or application of the Goods in combination with other Goods and Buyer shall protect, defend, and indemnify DI therefrom. DI disclaims all other liability for infringement of intellectual property rights and further disclaims any liability for incidental or consequential damages arising in connection with such infringement.
15. Credit Terms. All orders and shipments shall at all times be subject to the approval of DI’ credit department. DI reserves the right of declining to make any shipment called for by the contract between seller and buyer whenever, for any reason, there is doubt in DI’ sole judgment, as to buyer's willingness or ability to pay for the goods ordered on Buyer's solvency and DI shall not, in such event, be liable for breach or nonperformance of this Agreement in whole or in part.
16. Packaging. Packaging will be standard commercial package and acceptable to commercial carriers. Special customer packaging will be furnished only when specified and so stated herein and the cost thereof shall have been agreed to by both the Buyer and DI in writing.
17. Substituted Goods. If substitute additional goods are purchased by Buyer from DI, the terms and conditions of this proposal and resultant Agreement shall be applicable thereto, the same as if such substituted, additional Goods had been originally purchased hereunder unless specifically stated to the contrary in this proposal or subsequent resultant Agreement.
18. General Conditions. No agent, salesman or other party is authorized to bind DI to any agreement, warranty, statement, promise or understanding not expressed herein. The sale of Goods pursuant to this proposal and any subsequent resultant Agreement shall be governed by the laws of the State of Florida. Any notice which is required under the terms of a resultant Agreement shall be in writing and delivered to the address of the party set forth in the Agreement and shall be effective when actually received. The remedies reserved by the parties shall be cumulative and in addition to other remedies provided by law. DI shall not be required to proceed with the performance of any obligation under a resultant Agreement so long as Buyer is in default or in breach of any of Buyer's obligations or agreements herein. Any clerical errors are subject to correction. No delay or omission by DI in exercising any right or remedy under that agreement shall constitute a waiver of such right or remedy. The waiver, invalidity, or unenforceability of any provision in a resultant Agreement shall not affect the validity of the agreement as a whole or any other provisions herein. An Agreement resulting from this proposal shall be binding upon and shall inure to the benefit of the successors and assigns of Buyer and DI. Buyer may not assign or transfer such Agreement in whole or in part without the prior written consent of DI. For the purposes of such agreement, the Buyer and DI agree, notwithstanding any of the items sold not constituting "goods" as defined in Article 2 of the Uniform Commercial Code as enacted and amended from time to time in the state of Florida, for the purpose of interpreting this proposal or a resultant Agreement all items shall be deemed to be such "goods." Buyer agrees that acceptance of this proposal and receipt of shipment from DI pursuant to any resultant Agreement shall constitute acceptance in total of the preceding General Terms and Conditions except as otherwise agree to in writing by the parties thereto.