TERMS AND CONDITIONS

Acceptance.  The following standard terms and conditions are attached hereto and incorporated into any and all quotations, orders and purchases of Florida Manufacturing Solutions (FMS) products and services.  Any quotation from Company constitutes only Company’s proposal to buyer.  Any order given to FMS, whether or not in response to a quotation, shall be subject to acceptance by FMS and to all of FMS’s standard terms and conditions as listed herein.  Conditions stated by buyer in a purchase order form given in response to this proposal or otherwise shall not affect FMS’s quotation and shall not be binding on unless expressly agreed to in writing by FMS.

Prices.  Prices are subject to change without notice.  However, on orders for shipment within thirty days, prices in effect at the date of the quotation, if any, will apply unless the shipment is delayed beyond thirty days from the date of such quotation.  On any order or any part of an order shipped thirty days or more after the date of a quotation, if any, whether the delay is in accordance with the terms of the order or is from any other cause whatever, prices in effect at time of shipment will apply.  Before making any shipment at a price in excess of that stated in a quotation given by FMS, if any, FMS will notify buyer stating in the notice what part of the order is to be shipped at such higher price and buyer shall have 3 days from the date of receipt of the notice to cancel the part of the order to which the increased price applies.  If buyer does not so cancel within 3 days of said notice, the price increase recited in the notice shall be effective and buyer shall have no further right to cancel.

Taxes.  Prices do not include federal, state or local taxes, now or hereafter enacted, applicable to the goods sold, which tax or taxes will be added by FMS to the sales price where FMS has legal obligation to collect same, and will be paid by buyer unless buyer provides FMS with the proper tax exemption certificate.

Terms and Method of Payment.  Where FMS has extended credit to buyer, terms of payment shall be thirty days from the date of the invoice.   The amount of credit may be changed or credit withdrawn by FMS at any time.  Pro rata payments are due from buyer as shipments are made by FMS.  If shipments are delayed by buyer, payments are due from date when FMS is prepared to make such shipments, unless otherwise agreed to in writing by FMS. If payment is delayed beyond the date on which it is due, interest shall accrue and be payable, on the unpaid balance at a rate of one and one-half percent (1 1/2%) per month.

Delivery.  The goods shall be delivered when ordered by buyer on reasonable notice to FMS, F.O.B. origin, and title thereto and liability for loss and damage in transit or thereafter shall pass to buyer upon FMS’s delivery of goods to a common carrier for shipment to buyer.  Claims for damages in transit must be asserted against the carrier.  Within ten (10) days after receipt of shipment, buyer must report any shortage or damage not due to the carrier, otherwise claims for such shortage or damage will be deemed waived and the goods shall be deemed accepted as delivered.  Shipping dates are contingent upon prompt receipt by FMS of all applicable customer specifications and customer-furnished material.  FMS reserves the right to make delivery in installments and the contract shall be severable as to each such installment.  Company may in whole or in part manufacture, assemble or otherwise fulfill the order of parts at any Company plant.  Delay in delivery or other default in any installment shall not relieve buyer of its obligation to accept and pay for remaining deliveries.  All claims for delay in delivery shall be deemed waived unless presented to FMS in writing within thirty (30) days after delivery of each shipment.

INSPECTION: Buyer or the Buyer's Customer shall have the right, at its option, to inspect at Seller's plant or upon receipt any and all materials and to reject those which do not conform to Buyer's specifications or, if not so specified, which do not conform to standard specifications. All costs incurred and damages sustained by Buyer as a result of rejections made under these provisions shall be for Seller's account and Buyer may return such materials at Seller's expense. Materials are subject to Buyer's inspection notwithstanding prior payment by Buyer.  Buyer or Buyers agents shall have the right to inspect the Seller’s plant prior to and during production runs of the Buyers products.

Contingencies.  FMS shall not be responsible for any failure to perform due to causes beyond its control.  These causes shall include, but not be restricted to, fire, storm, flood, earthquake, explosion, accident, acts of a public enemy, war or rebellion, insurrection, sabotage, epidemic, quarantine restrictions, labor disputes, labor shortages, transportation embargoes, or failure or delays in transportation, and inability to secure raw materials or failures of machinery for the manufacture of its devices, acts of God, acts of federal government or any agency thereof, acts of any state or local government or agency thereof, and judicial action, all whether foreseen or unforeseen.

Molds, Dies, Tools, Etc.  Tools, dies and other equipment furnished FMS by buyer or ordered from FMS by buyer, if any, shall be at buyer’s risk and expense.  Changes in molds, dies and tools made necessary by changes in specifications already accepted by FMS shall be at buyer’s expense, and buyer shall assume all risk of resultant damage.  FMS agrees to maintain all molds, dies and tools during their normal productive life, except that FMS’s liability to do so shall be limited to a period of one (1) year after completion of the most recent production order.  The normal productive life of any mold, tool or die shall also be considered to have terminated when buyer no longer accepts parts produced from such mold, tool or die because of defects caused by wear.  Molds and tools furnished to FMS by buyer or ordered from FMS or its agents by buyer, if any, shall remain in the possession of FMS for six (6) months after termination of this contract and completion of the most recent production order and shall thereafter be made available for delivery to buyer.  FMS shall in no way be liable for the continued existence or availability of any such mold, die or tool after expiration of a period of one (1) year after completion of the most recent production order.  Buyer shall pay the costs of any mold, dies or tools furnished by FMS on buyer’s demand for delivery thereof.  Buyer hereby grants a lien and FMS shall have and retain the only lien on buyer’s molds, dies, tools, parts, materials or other materials, goods of services (including work in process and special materials for parts ordered for buyer) for which FMS has not been paid (whether invoiced or not).  If buyer’s account for molds, dies, tools or parts remains unpaid for a period of thirty (30) days, FMS shall have the right to use the same to make and sell parts there from.

Limitation of Warranty, Liability, Indemnity.  FMS warrants that the goods sold hereunder shall be free from defects in workmanship and material under normal use and service (except in those cases where the materials are supplied or designated by the buyer) for a period of ninety (90) days from the date of delivery.  FMS’s liability for breach of warranty shall arise only upon the return of the defective parts at buyer’s expense after notice to FMS of claimed breach, and FMS’s only liability shall be limited to furnishing a like quantity of such parts or goods free from such defects or, at FMS’s option, to refunding the purchase price for such parts or goods.  Whether particular goods have a defect in material or workmanship covered by this warranty shall be determined by reference to general industry standards as in effect at the date of production of such goods by FMS.  Notice to FMS of claimed defects discoverable by inspection must be given within ten (10) days after receipt of shipment.  When any goods manufactured and sold hereunder are in any way assembled by FMS into a device or product, such assembly constitutes acceptance by buyer.  FMS assumes no liability of any kind relative to such assembled device or product or for component parts damaged in assembly.  THE FOREGOING WARRANTY AND REMEDY ARE EXCLUSIVE AND GIVEN IN LIEU OF: (I) ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WHETHER STATUTORY OR OTHERWISE, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND (II) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN CONTRACT OR TORT, WHETHER OR NOT ARISING FROM FMS’S NEGLIGENCE, ACTUAL OR IMPUTED.  THE REMEDIES OF BUYER SHALL BE LIMITED TO THOSE PROVIDED HEREIN TO THE EXCLUSION OF ANY AND ALL OTHER REMEDIES INCLUDING WITHOUT LIMITATION INCIDENTAL, SPECIAL, COLLATERAL, LOSS OF PROFIT, DIRECT OR INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES.  Buyer indemnifies FMS, its successors and assigns from and against any and all losses, damages and expenses (including attorney’s fees) which FMS may sustain or incur as a result of any claim of negligence, breach of warranty or strict liability in tort in connection with the use of the goods furnished hereunder, except such as may be wholly caused by the intentional misconduct or gross negligence of FMS.

Patents.  When FMS has manufactured any articles in accordance with specifications or drawings furnished by buyer or when a product is made to buyer’s design, buyer at its own expense will defend any suit against FMS for infringement of patents and will satisfy any final award of damages for such infringement provided FMS gives buyer notice in writing of any such suit for infringement, opportunity to conduct the defense thereof and assistance and cooperation in said defense.  When buyer orders articles buyer is licensed to have made for buyer, buyer represents and warrants that FMS is hereby authorized to manufacture said articles under buyer’s license and buyer shall be solely responsible for such royalties as may be due and for such notification to its licensor as buyer is obligated to make.

Material Repurchase.  In the event buyer cancels any part of this order for any reason, including a price increase by FMS, buyer shall nonetheless purchase from FMS any and all special material or parts obtained by FMS to complete buyer’s order.  Such materials and parts, if any, shall be invoiced to buyer by FMS at FMS’s cost, including freight.  This remedy of FMS shall be in addition to any and all other remedies available to FMS under law.

Changes.  Any quotation from FMS shall not be deemed a firm offer as defined in 2-205 of the Uniform Commercial Code and is subject to change or withdrawal without notice.  Unless otherwise provided explicitly herein, Buyer’s order, after acceptance by FMS, shall not be subject to cancellation, change or reduction in amount, nor to any suspension by buyer of deliveries without FMS’s prior written consent.

Customer Supplied Items.  Materials, inserts or component parts supplied by buyer shall exceed by five percent (5%) the quantity or amount required to fill the order, and shall be delivered f.o.b. FMS’s plant.  FMS assumes no liability for damages to molds or parts caused by defective items supplied by buyer.

Non-Waiver of Default.  Each shipment made under any order shall be treated as a separate transaction, but in the event of any default by buyer, FMS may decline to make further shipments without in any way affecting its rights under such order.  If, despite any default by buyer, FMS elects to continue to make shipments, its actions shall not constitute a waiver of any default by buyer or in any way affect FMS’s legal remedy for such default.

Modifications of Standard Terms and Conditions.  No addition to or modification of any of the provisions upon the face or reverse of this form shall be binding upon FMS unless made in writing and signed by a duly authorized representative of FMS.

Miscellaneous.  This agreement is intended by the parties as a final expression of their agreement and also as a complete and exclusive statement of the terms of their agreement and purchase.  No affirmation, representation or warranty made in FMS’s advertising or by any agent, employee or representative of FMS which is not specifically included herein shall be enforceable.  The rights and obligations stated herein shall not be assigned or delegated by buyer without the written consent of FMS.  The validity or enforceability of any provisions herein shall not affect the other provisions hereof and the terms herein shall be complied with in all respects as if such invalid or enforceability provision were omitted. 

Governing Law; Jurisdiction.  This agreement shall be governed by and construed and enforced in accordance with the laws of the State of Florida without giving effect to the principles of conflicts of law.  Buyer hereby irrevocably submits to the jurisdiction of any Florida or Federal Court sitting in Putnam County, Florida over any action or proceeding arising out of or relating to this agreement or the goods and agrees that all claims in respect of such action or proceeding may be heard and determined in any such court.   Buyer further agrees that venue for any such action shall lie exclusively with courts sitting in Putnam County, Florida, unless FMS agrees to the contrary in writing. 

Time for Bringing Action.  Any action for breach of these terms or against FMS herein must be commenced within one (1) year after the cause of action has accrued.