TERMS AND CONDITIONS OF SALE
ALL SALES OF ENGINES, AND OTHER PRODUCTS AND COMPONENTS (COLLECTIVELY, “PRODUCTS”) BY TENNESSEE PROPULSION PRODUCTS, LLC (D/B/A INDMAR MARINE ENGINES) (“SELLER”) ARE GOVERNED BY THESE TERMS AND CONDITIONS OF SALE (THESE “TERMS”). ANY PROPOSAL FROM YOU (“BUYER”) THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS VARYING FROM THESE TERMS ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY BUYER SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S) ONLY.
1. Formation of Contract. Seller may accept or reject any purchase order (“order”) from Buyer in its sole discretion. Seller’s acceptance of an order from Buyer is binding on Seller only if made by written instrument or, if not by written instrument, by shipment of Products ordered (and acceptance by shipment shall only be binding as to the portion of the order shipped by Seller). Any automatic or computer-generated response to an order by Seller’s electronic order intake software shall not be deemed acceptance of an order.
2. Credit. Seller may, but shall not be obligated to, grant credit terms to Buyer. Acceptance of any order is subject to final credit approval by Seller. Seller reserves the right to cancel any sale if Seller deems Buyer unable to pay for any Products. Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular order, and may require cash payments in advance or security satisfactory to Seller.
3. Cost of Delivery, Taxes and Other Charges. Buyer shall pay the costs of delivery of Products. Buyer shall pay all sales, use, excise or similar taxes, or other charges, which Seller is required to pay, or to collect and remit, to any government (national, state or local) and which are imposed on or measured by the sale.
4. Payment Terms. Payment terms shall be specified by Seller in the order and must be strictly adhered to by Buyer. A service charges of 1.5% per month, 18% per annum (or the highest percentage permitted by law if lower than 18%) shall be added to any balances that remain unpaid by Buyer past the payment due date.
5. Collection Costs. If any balances on any invoices sent by Seller for payment is referred for collection after remaining unpaid past the applicable payment due date, all costs thereof shall be paid by Buyer, including but not limited to, attorney’s fee of 25% of all balances and service charges due, but no less than $50.00.
6. Transfer of Property and Risk of Loss. Seller retains the right and title to Products sold to Buyer until Seller is paid in full for the same. Buyer shall obtain the right and title to Products sold upon payment to Seller of the purchase price and any taxes, excise or other charges. The risk of loss, including, but not limited to the risk of loss, theft, damage or destruction of Products, transfers to Buyer Ex Works, Seller’s factory (Incoterm 2020), unless otherwise specified by Seller in writing.
7. No Set-Off. Buyer shall have no right of set-off or withholding, and no deduction of any amounts due from Buyer to Seller shall be made without Seller’s prior, express written approval.
8. Patents. Sellers reserves the right to discontinue deliveries of any Products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any U.S. patent, trademark or design now or hereinafter issued, registered, or existing and under which Seller is not licensed.
9. Disclaimer of Warranties. THE WARRANTIES IN SELLER’S WARRANTY DOCUMENTS WITH RESPECT TO PRODUCTS ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH PRODUCTS SOLD AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THE SALE. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO PRODUCTS SOLD, AND SELLER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. PRODUCTS SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SET FORTH BY SELLER IN WRITING. SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE, AT SELLER’S CHOICE, REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS. BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER PRODUCTS OR SUBSTANCES.
10. Limitation of Liability, Exclusivity of Remedies. No claim by Buyer of any kind including, but not limited to, claims for indemnification, whether as to quality or amount of Products delivered or non-delivery, shall be greater in amount than the purchase price for Products in respect of which damages are claimed. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF PRODUCTS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. ANY REMEDIES SPECIFIED HEREIN ARE INTENDED AS THE SOLE AND EXCLUSIVE REMEDY TO BUYER AND THE ONLY LIABILITY TO SELLER.
11. Indemnity. Buyer shall indemnify, defend and hold harmless Seller, its affiliates, subsidiaries, and their respective officers, managers, agents and employees, together with their respective assigns (the “Seller Indemnified Parties”) from and against all claims, suits, causes of action, losses, liabilities, damages, assessments, costs, expenses, demands, complaints or actions, including but not limited to reasonable attorneys’ fees and court costs (collectively “Claims”) arising from or relating to (i) death, personal injury, or property damage resulting from (a) Buyer’s possession, control, custody, ownership, operation, or use of Products purchased from Seller, or (b) Products sold by Seller hereunder; (ii) nonpayment of any taxes (including penalties and interest) associated with the sale, transfer, use or ownership of Products purchased from Seller; (iii) infringement or misappropriation of Seller’s IP; (iv) violation of applicable law; or (v) breach of any orders; except where such Claims are due solely to the extent of the gross negligence, intentional misconduct, or fraud, of the Seller Indemnified Parties.
12. Inspection. Buyer shall inspect Products purchased from Seller promptly upon receipt for non-conformity (including but not limited to non-conformity for quantity, quality, and/or defects). Failure by Buyer to provide Seller with written notice of a claim within [30 days] from the date of delivery or, in the case of non-delivery, from the date fixed for delivery, shall constitute a waiver by Buyer of all claims with respect to such Products. 13. Returns. No Products shall be returned to Seller without authorization by Seller in writing. Buyer shall bear the sole costs associated to an unauthorized return of Products.
14. Excuses for Non-Performance. If the manufacture, shipping or transfer by either party of any Products is prevented, restricted or interfered with by reason of any event beyond the reasonable control of Seller, including but not limited to any act of God, pandemic, epidemic, disruption of supply chain or labor market, etc., Seller shall be excused from making or taking deliveries hereunder or from any other obligations of Seller to the extent of such prevention, restriction or interference, and Seller shall not be liable to Buyer for default or delay in performing.
15. Seller’s Rights. If Buyer should fail in any manner to fulfill the terms and conditions hereof, Seller may defer further shipments until such default is cured. Remedies provided herein shall be in addition to, and not in lieu of, other remedies that may be available to Seller. If for any reason, the quantities of Products covered by an order or of any materials used in the production of Products reasonably available to Seller shall be less than Seller total needs for its own use and for sale, Seller may allocate its available supply of Products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform this Agreement.
16. Intellectual Property. Seller shall retain all right, title and interest it may have in or to any intellectual property or intellectual property rights, whether registered or unregistered, respecting Products sold to Buyer (“Seller’s IP”). Buyer agrees not to challenge Seller’s rights in or to Seller’s IP and not to infringe or permit others to infringe Seller’s IP.
17. Confidentiality. Buyer will receive in connection with any orders certain information from Seller that Seller deems confidential or proprietary, including the terms of any order (“Confidential Information”). Buyer agrees to maintain such Confidential Information confidential, protect such Confidential Information from any use or disclosure not authorized by Seller in writing, except for any use or disclosure in connection with the performance of the order and for the exclusive benefit of Seller.
18. Governing Law. This Agreement shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of Florida, without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
19. Dispute Resolution, Prevailing Party. Any dispute, controversy or claim arising out of or related in any way to these Terms and/or any order or sale and purchase of Products, or any transaction contemplated hereby or thereby which cannot be amicably resolved by the parties shall be exclusively brought in and decided by the courts located in Orange County, Florida. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY IRREVOCABLY AND EXPRESSLY WAIVE ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THESE TERMS OR ANY ORDER FOR THE PURCHASE OF PRODUCTS. In the event of any legal action to enforce or interpret these Terms or otherwise relating
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to the purchase of Products, the non-prevailing party shall pay the reasonable attorneys’ fees and other costs and expenses (including expert witness fees) of the prevailing party in such amount as the may be determined. In addition, such non-prevailing party shall pay reasonable attorneys’ fees incurred by the prevailing party in enforcing, or on appeal from, a judgment in favor of the prevailing party. 20. No Assignment. This agreement (including the order) between Buyer and Seller is not transferable by either party without the prior written consent of the other party, except that Seller may assign this agreement (including the order) without Buyer’s consent if the assignment is to a to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, or sale or transfer of all or substantially all of Seller’s assets.
21. Compliance with Laws; Export Laws. Buyer and Seller shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of this Agreement. Buyer agrees to adhere to all applicable US Export laws and regulations with respect to Products.
22. Notice. Any notices to be given by Buyer to Seller must be given either by express mail service or by U.S. mail, registered or certified, postage prepaid with return receipt requested. Notices shall be addressed to the address of Seller appearing in the order acknowledgement or confirmation, provided Seller may change that address by written notice to Buyer. Notices delivered by express mail service shall be deemed received on the date of delivery and mailed notices sent in accordance with this paragraph shall be deemed given on the third (3rd) business day after the date of mailing.
23. Miscellaneous. These Terms are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated by this sale, notwithstanding any other terms of Buyer that might be contained in any order or other document received from Buyer or submitted to Seller. These Terms constitute the entire agreement between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representatives of both parties. Notwithstanding the foregoing provisions of this Section 23 to the contrary, in the event of a conflict between a dealer agreement, supply agreement, or other agreement that has been executed and delivered by both Buyer and Seller, such other agreement shall control. No waiver by Seller of any of these Terms or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Terms. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms.
