Purchase Order Terms and Conditions

General purchase order terms & agreement

In the terms and conditions below, SOUTHERN FULFILLMENT SERVICES, LLC, a Florida limited liability company shall be referred to as “SFS,” the company supplying goods and/or services under this purchase order (the “Purchase Order”) shall be referred to as the “Seller,” and the goods and/or services described in and provided pursuant to this Purchase Order are referred to as “Goods” or “Services,” as the case may be.

Acceptance of this Purchase Order by Seller constitutes acceptance of all of the terms and conditions stated herein. To the extent that any project description document, attached hereto, if any (“Project Description”), quotation, order acceptance, confirmation, invoice or other document of Seller contains conflicting, differing or additional terms from the terms and conditions herein, the terms and conditions herein will control and all such conflicting, differing or additional terms are rejected by SFS, are considered a material alteration hereof, and shall have no effect unless expressly agreed to in writing by SFS. Seller’s signed acknowledgement of the Purchase Order, or Seller’s shipment of Goods, performance of Services, or acceptance of payment for Goods or Services shall conclusively affirm Seller’s agreement to these terms and conditions. If this Purchase Order is not signed and returned to SFS, either by mail or fax, SFS, at its option, may cancel this Purchase Order at any time.

Delivery of Goods under this Purchase Order shall be by FOB SFS Vero Beach, Florida or another destination as specified by SFS and the risk of loss or damage shall remain with Seller until actual delivery to SFS. Seller shall be responsible for damages sustained during delivery. Any resulting claims against carriers shall be the responsibility of Seller. Replacement of any damaged Goods shall be the sole responsibility of Seller.

Unless otherwise indicated in this Purchase Order, SFS shall render payment within thirty (30) days of the date of delivery and acceptance of Goods or provision of Services, or from the date of a conforming invoice, whichever is later. All invoices for payment shall be in U.S. Dollars and shall include the Purchase Order number, and a summary of the total Purchase Order value, total value of Goods provided or Services performed to date of the invoice, total value of invoicing to date and value of the current invoice. Invoices for payment not including such information may be returned to Seller without payment.

All packages, cases, crates, etc., are to be marked with Seller’s name and the applicable SFS Purchase Order number. A packing list must accompany each shipment of Goods. SFS shall not be responsible or liable for any packaging charges, unless otherwise agreed to herein by SFS.

The delivery and performance requirements, manner of delivery and specified dates of this Purchase Order shall be strictly adhered to and shall not be modified without the prior written acceptance of SFS. Time is of the essence. In the event of failure to deliver or perform by the dates specified in this Purchase Order, SFS reserves the right to cancel such Purchase Order in total or any unexecuted part of such Purchase Order. Goods not shipped in time to meet the delivery requirements and dates under a Purchase Order, at SFS’s option, shall be delivered at the fastest means available, at the sole expense of Seller. Notwithstanding anything to the contrary herein, no delivery shall be made without at least twenty-four (24) hours advance notice being given by Seller to SFS. Additionally, SFS may without liability at least seven (7) days prior to the scheduled delivery date appearing on the Purchase Order defer delivery on any or every item under said Order by giving oral notice to the Seller (confirmed in writing within three (3) business days) of any necessary rescheduling.

In the event of failure by Seller to deliver any Goods or perform any Services contained in this Purchase Order, other than as a result of acts of God, force majeure, civil commotions, fire, war, perils of the sea, delay in transit, or SFS’s written request, SFS shall have the right to cancel all or any remaining part of this Purchase Order, without payment of compensation, and obtain delivery or performance from other sources. Any and all increased costs and expenses thereby incurred by SFS in obtaining such delivery or performance shall be set off against any moneys due or to become due to Seller or shall be recoverable as damages hereunder.

Except as otherwise provided herein, this Purchase Order may not be amended, modified, supplemented, cancelled or discharged, unless it is in writing signed by SFS and Seller. Except as modified herein, any modification of any Project Description shall be at Seller’s sole cost and expense, unless Seller notifies SFS of such modification and SFS approves such modification in writing.

Seller shall protect, indemnify and hold harmless SFS, its successors, assigns, affiliates, employees, agents, customers and users of its products and services (collectively, the “Affiliates”), of and from any claim, loss, damage (whether for personal injury, property damage, or direct or consequential damage or economic loss), deficiency, action, demand, judgment, cost or expense (including, without limitation, reasonable attorneys’ fees) arising out of or resulting from the Goods sold or Services rendered hereunder, or from any act or omission of Seller, its agents, employees or subcontractors, or which otherwise arises as a result of (i) Seller’s performance of its obligations hereunder or (ii) any violation or infringement by Goods or Services provided hereunder of any patent, copyright, trademark, trade dress, and trade secret, or any other contractual right, proprietary right or intellectual property right, of any third party (collectively, any “Claim”). If any Claim should be asserted or action commenced against SFS for which SFS is entitled to indemnification hereunder, Seller (a) shall, upon SFS’s demand, promptly undertake the defense of any Claim, employing counsel reasonably satisfactory to SFS or (b) agrees that SFS, at SFS’s sole discretion, may elect to defend any Claim on its own behalf. In either case, Seller will, upon demand, pay all reasonable attorneys’ fees and other costs or expenses incurred by SFS in connection with such defense, any judgment or award resulting from any such claim or action and any settlement paid by SFS with Seller’s consent, which shall not be withheld unreasonably. This indemnification shall survive delivery of the Goods to or performance of the Services for SFS, as the case may be, and any subsequent sale or other transfer of the Goods or Services to a third party. SFS’s remedies hereunder are cumulative and in addition to those provided by law or any other contract.

Seller shall provide and maintain an inspection system, including tests and test reports, acceptable to SFS in its reasonable discretion covering the inspection of Goods provided under this Purchase Order, and Seller shall tender to SFS for acceptance only such Goods that have been inspected in accordance with such inspection system and that have been determined by Seller to conform to the Purchase Order requirements. However, all Goods provided under this Purchase Order are subject to final inspection and acceptance within a reasonable time after actual delivery and SFS shall have the right to reject any defective or nonconforming Goods despite any prior inspection by Seller. Payment for any Goods shall not be deemed an acceptance thereof.

Seller shall provide and maintain a system of inspection and oversight acceptable to SFS in its reasonable discretion to ensure all Services provided under this Purchase Order will be diligently performed in accordance with the Project Description, if applicable, and the applicable industry practices and standards of diligence, care and skill currently recognized in Seller’s industry. The adequacy of the performance of the Services provided under this Purchase Order are subject to final inspection within a reasonable time after actual performance and SFS shall have the right to terminate any Purchase Order that fails to meet the oversight requirements and minimum quality standards provided in this Paragraph 10.

All Goods supplied under this Purchase Order that do not meet with the approval of SFS, that are shipped contrary to Purchase Order instructions, or that are in excess of the quantity or quantities ordered under this Purchase Order, will be returned to Seller or held pending a mutual agreement between SFS and Seller regarding their disposition, subject to Seller’s risk of loss and sole expense.

Only Purchase Orders sent in writing via fax, mail, courier or e-mail and signed by duly authorized SFS personnel shall serve as an official intent of purchase by SFS.

Seller hereby agrees to notify SFS of any inherent hazard related to the Goods or Services being purchased herein that would expose the hazard during handling, transportation, storage, use, resale, disposal or scrap. Said notice shall be sent to SFS and shall specify the product name and part number, the nature of the hazard, proper precautions that must be undertaken by SFS or others and any additional information that SFS should reasonably expect to know to protect its interest. Material Safety Data Sheets (MSDS), if applicable, shall be supplied with the first shipment of all hazardous materials, and these sheets shall be resubmitted if any changes or updates, as required, are made.

Seller agrees to comply with all applicable federal, state and local laws, rules and regulations. Seller shall, in accordance with Paragraph 8, indemnify and hold SFS harmless against any liability arising out of or resulting from Seller’s failure to so comply. Upon request, Seller shall supply SFS with copies of compliance reports and any other information necessary to demonstrate compliance with this Paragraph 14.

Seller warrants it is a merchant as defined in the Uniform Commercial Code. Seller warrants that all Goods delivered hereunder, if any, will (i) be merchantable, (ii) be free from defect of design, material or workmanship, (iii) conform strictly to the specifications, descriptions, drawings, or sample specified or furnished to SFS, (iv) be free from security interests, liens or encumbrances, (v) be fit and safe for their intended purpose, and (vi) be safe and appropriate for the purpose for which such Goods or Services are normally used. Seller warrants that all Services rendered hereunder, if any, will be performed in a professional and workmanlike manner in accordance with the applicable professional industry standards of diligence, care and skill currently recognized in Seller’s industry. The warranties contained herein shall begin at the time of performance, receipt at the delivery location or installation, if applicable; whichever is later, unless a later time is specified in the manufacturer policy stated in the Project Description. Such warranties shall survive for greater of (a) one (1) year, (b) the standard warranty term provided by Seller to its customers, or (c) as provided under applicable law. Notwithstanding anything to the contrary contained herein, the foregoing shall not limit any additional warranty or warranty period otherwise agreed to by the parties in writing. The warranties contained herein shall survive any inspection, delivery, performance, acceptance, or payment by SFS of the Goods or Services. SFS may, at its option, return for credit or require prompt replacement or correction of any of the Goods or Services which do not conform to the foregoing warranties at Seller’s expense. In the event that Seller fails to make such replacement or correction, SFS shall have the right to obtain such replacement or correction from other sources. Any and all increased costs and expenses thereby incurred by SFS in obtaining such replacement or correction shall be set off against any moneys due or to become due to Seller or shall be recoverable as damages hereunder. Corrected or replaced Goods or Services shall be subject to the terms and conditions of this Purchase Order in the same manner and to the same extent as Goods or Services originally delivered hereunder. If part of the Goods to be delivered or Services to be performed hereunder are defective or nonconforming, SFS may cancel any unshipped portion of the Goods or cancel any unperformed Services, as the case may be, covered by the Purchase Order. The rights of SFS provided in this Paragraph 15 shall be in addition to any other rights provided by law, this Purchase Order, or any other contract.

Seller acknowledges that it is an independent business acting as an independent contractor. Though Seller may perform Services, no agent, representative or employee of Seller shall be or be considered an agent or employee of SFS.

In the event of any proceedings, voluntary or involuntary, in bankruptcy by or against Seller, the inability of Seller to meet its debts as they become due, or in the event of the appointment, with or without Seller’s consent, of an assignee for the benefit of creditors or of a receiver, then SFS shall be entitled, at its sole option, to cancel any unfilled part of this Purchase Order without any liability whatsoever.

Seller shall not delegate any duties, nor assign any rights or claims under this Purchase Order, or for the breach hereof, without the prior written consent of SFS. Any such attempted delegation or assignment shall be void. Any change of control of Seller shall be deemed an assignment hereunder.

All claims for moneys due or to become due from SFS shall be subject to deduction by SFS for any setoff or counterclaim arising out of this or any other of SFS’s purchases from Seller.

This Purchase Order, or any portion hereof, may be terminated by SFS at any time with or without cause. As used herein, the term “cause” shall include, but not be limited to, (a) a breach by Seller of any of the terms hereof, including any warranty made in connection with the purchase ordered hereunder or (b) any allegation that any of the Goods or Services furnished hereunder infringes any patent, trademark, copyright or other proprietary right of any third party, or violates any statute, ordinance or administrative order, rule or regulation. If SFS terminates without cause, SFS will compensate Seller for the actual and reasonable expenses incurred by Seller for work in process requested by SFS up to and including the date of termination, provided such expenses do not exceed the agreed upon prices in this Purchase Order.

Seller is responsible for payment to the proper taxing authority of all sales, use and similar taxes.

Seller will neither use any Confidential Information (as defined below) for any purpose other than in performing its duties hereunder nor disclose the existence of this Purchase Order or any information contained herein without the express written consent of SFS. “Confidential Information” includes, but is not limited to, all proprietary information developed or created by SFS, supplied to SFS or made according to SFS’s direction.

To the extent permitted by law, in no event will SFS (including any subsidiaries of SFS or other related entities) be liable for any lost revenues, lost profits, incidental, indirect, consequential, special or punitive damages relating to this Purchase Order.

Seller shall maintain in effect, at its expense, insurance of such types and in such amounts as is commercially reasonable in connection with the conduct of its business, including without limitation, insurance coverage for its liability and indemnity obligations hereunder.

If any provision of this Purchase Order shall under any circumstances be deemed invalid or inoperative, this Purchase Order shall be construed with the invalid or inoperative provision deleted, and the rights and obligations of the parties shall be construed and enforced accordingly.

SFS’s failure to enforce any provisions of this Purchase Order or rights hereunder shall not operate as a waiver of such provisions or rights and the same shall remain in full force and effect for the duration of this Purchase Order.

This Order shall be governed by and interpreted in accordance with the laws of the State of Florida. In the event of any law suit for damages or enforcement of the Purchase Order, the parties agree that the Purchase Order was made in Indian River County, Florida and the parties agree to Indian River County as the exclusive location of any litigation. Further the parties agree that the prevailing party in litigation shall be entitled to reasonable attorney’s fees.