Terms and Conditions – Seaboard Manufacturing LLC

GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS- CUSTOMERS

1. Applicability.

(a) These terms and conditions of sale (the “Terms“) are the only terms which govern the sale of the goods (“Goods“) by the seller Seaboard Manufacturing LLC (“Seller“) to [INSERT THE NAME OF BUYER HERE] (“Buyer“). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.

(b) The accompanying quote/purchase order (the “Agreement to Purchase“) and these Terms (collectively, the “Agreement“) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless as to  whether or if Buyer submitted its own purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.

2. Orders. Requests for quotes are subject to acceptance at Seller’s office. A written purchase order (“PO”) is required by the Buyer to be delivered to Seller to confirm the order. Seller accepts orders in writing by email, mail, or in person. Buyer agrees to purchase from Seller the parts and/or products for a certain price, both of which are specified on the Agreement to Purchase. The part number and revision number on blueprints provided to Seller must match Buyer’s PO as well as Seller’s original quote. Seller will manufacture either a part or product based on a) Buyer’s specifications, b) drawings or electronic files provided by Buyer and accepted by Seller, c) a sample provided to Seller, (if sample is the only method provided, engineering charges may apply) or d) any combination thereof.

3. Delivery. The goods will be delivered within a reasonable time after the receipt of Buyer’s PO, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit. Delivery date is dependent on Seller’s current workload when Buyer’s PO is received. In the event that Seller must alter the delivery date, Buyer will be notified immediately. If the Buyer is agreeable to the altered delivery date, Buyer must provide written documentation as to the changed date, which may be supplied in the form of a revised or edited PO, or letter or email which details the PO number and altered delivery date. Should Buyer need expedited service on the PO after all aspects of the PO have been previously agreed upon, Seller will try within reason to meet the request. Such request may be subject to an expedite fee if alteration to Seller’s production schedule will interrupt PO’s in progress for other customers.

Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to [INSERT BUYER’S ADDRESS HERE] (the “Delivery Point“) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods upon Seller’s shipment of the Goods. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.

Buyer is responsible for all packaging and shipping costs and must provide to Seller a UPS or FedEx account number associated with the Buyer that is in good standing with the shipping handler. If Buyer does not have a shipping account set up with either UPS or FedEx, Buyer agrees to allow Seller to determine the best shipping method and will be responsible for such cost, which will be reflected on the invoice.

Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s PO.

If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).

4. Cancellations. All cancellations will be made on the condition that the Buyer assumes immediate liability and makes payment for all work completed and in progress. Such charges may include raw material, unamortized tooling, engineering, handling, overhead, and production costs. Such charges will be determined by Seller at the time of cancellation.

5. Shipping Terms. Seller shall make delivery in accordance with the terms on the face of the Agreement to Purchase.

6. Title and Risk of Loss. Title and risk of loss passes to Buyer upon shipment of the Goods (FOB origins). As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Florida Uniform Commercial Code.

7. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.

8. Inspection and Rejection of Non-conforming Goods.

(a) Buyer shall inspect the Goods upon receipt. All claims for delivered Goods that do not meet the specifications in the Agreement to Purchase (“Non-conforming Goods”) must be made in writing within five (5) calendar days to Seller, or Buyer assumes all payment liability (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Non-conforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. (b) If Buyer timely notifies Seller of any Non-conforming Goods, Seller shall, in its sole discretion, (i) replace such Non-conforming Goods with Conforming Goods, or (ii) credit or refund the Price for such Non-conforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Non-conforming Goods to Seller’s facility located at 13214 38th Street North, Clearwater, FL 33762. If Seller exercises its option to replace Non-conforming Goods, Seller shall, after receiving Buyer’s shipment of Non-conforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.

9. Price.

(a) Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth as of the date that Seller accepts Buyer’s PO. Price and quantity quoted by Seller on a given part will be honored for thirty (30) days. Design specifications and clerical errors are subject to correction and a change order notification will be made by Seller to Buyer for acknowledgment.

(b) All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.

10. Payment Terms.

(a) Buyer shall pay all invoiced amounts due to Seller at time of delivery unless credit terms have been prearranged by Seller. In some instances, a deposit may be required. Buyer must make all payments hereunder by wire transfer or check in US dollars. Buyer shall pay a late fee on all past due payments at the rate of 1.5% per month. Buyer shall reimburse Seller for all costs incurred in collecting any late payments including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues following written notice thereof.

(b) If credit has been established, Buyer agrees to pay all invoices within thirty (30) days of receipt and pay a late fee of 1.5% per month on all invoices not paid within thirty (30) days.

(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

(d) In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

(iv) In the event that legal action is required to collect money due for goods and services, Buyer shall pay all reasonable collection costs, attorney’s fees, and court costs incurred by the Seller.

11. Limitation of Liability.

(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) The limitation of liability set forth in this Section 12 shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.

12. Indemnity. Buyer agrees to indemnify and hold harmless the Seller, its agents, representatives, employees, officers, related companies, affiliates, successors, and assigns from any and all claims, demands, actions, damages, and liability, including attorney’s fees and consequential and incidental damages, arising out of any injury or death to any person or damage to any property in any way connected with the parts and/or products manufactured by Seller. Buyer hereby agrees that it shall be solely responsible for and shall indemnify Seller from any voluntary or involuntary recalls of any products which contain parts or products manufactured by seller or are parts or products manufactured by Seller regardless of the reason of the recall.

13. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

14. Confidential Information. All non-public, confidential or proprietary information of Seller including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.

15. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lock-outs, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.

16. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Florida without giving effect to any choice or conflict of law provision or rule (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Florida.

17. Submission to Jurisdiction. Any legal action, suit, or proceeding arising out of or relating to this Agreement shall be instituted in the Thirteenth Judicial Circuit in and for Hillsborough County, Florida, or in the United States District Court for the Middle District of Florida, Tampa Division, and each party irrevocably submits and consents to the exclusive jurisdiction of such courts in any such suit, action or proceeding in those courts and further irrevocably waives any defense or claim that such suit, action, or proceeding in any such court has been brought in an inconvenient forum or improper venue.

18. Severability. If any term or provision of this Agreement is deemed invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.