Terms and Conditions of Purchase

  1. This Purchase Order (“Order”) shall become a contract on the terms and conditions set forth on the face of the Order and herein between JM Family Automotive, LLC., and/or any of its subsidiaries or affiliates (collectively, “Buyer”) when accepted by acknowledgment, invoicing of Buyer or any performance of the party with whom this Order is placed (“Seller”). None of Seller’s terms and conditions shall apply in acknowledging or accepting this Order, or by stating such on any invoice and Seller may not ship under reservation. No change or modification to this Order shall be binding upon Buyer unless set forth in a writing signed by Buyer. Acceptance by Buyer of goods delivered under this Order shall not constitute acceptance of Seller’s terms and conditions. Buyer may at any time make changes to this Order, including, but not limited to, changes to the goods, specifications, drawings, design, quantities, method of packaging or shipment or delivery schedule. Buyer may cancel this Order at any time by giving notice to Seller.
  2. Unless otherwise specified, the prices stated herein shall include all charges for packing, insurance, loading, government impositions, federal taxes and duties of any kind. Seller will include applicable sales/use tax on Buyer’s invoices and all other charges which either party is required to pay with respect to the sale and purchase of the goods covered by this Order. Buyer shall pay Seller for actual quantities of goods furnished and accepted hereunder in accordance with the prices set forth in this Order. Buyer shall have the right to set off against any sums owed to Seller hereunder any amounts owed by Seller to Buyer. Unless otherwise stated in the Order, all invoices shall be paid by Buyer within 30 days from the date of receipt thereof.
  3. Seller shall preserve, pack, package and handle all goods ordered by Buyer so as to protect the goods from loss or damage and in accordance with good commercial practice and any specifications by Buyer. Seller shall comply with all carrier tariffs and all applicable international, federal and state laws, statutes and regulations. Seller shall separately number all packages, showing the corresponding numbers on the invoices. An itemized packing slip bearing Buyer’s Order number must be placed in each package. If no packing slip is sent, the count or weight by Buyer or its agent or consignee shall be final and binding on Seller. Unless otherwise provided herein, no charge shall be made by Seller for containers, crating, boxing, storage or other packaging requirements.
  4. Title and risk of loss for goods shall remain with Seller until goods have been delivered to and accepted by Buyer. Unless otherwise stated, all goods are to be shipped freight prepaid, F.O.B. destination.
  5. Buyer shall have the right to inspect all goods ordered hereunder at any time, including, but not limited to, during their manufacture and at delivery. Buyer may reject any or all goods ordered hereunder that are defective for any reason or that otherwise fail to conform to this Order or any product description. Payment for goods prior to inspection or upon invoicing shall not constitute acceptance, is without prejudice to any and all claims that Buyer may have against Seller and is subject to adjustment for errors, shortages, defects in the goods or other failure by Seller to meet the requirements of this Order. Buyer may also reject goods within sixty (60) days after delivery and acceptance for defects or non-conformities revealed thereafter and may return, at Seller’s expense, such goods to Seller for, at Buyer’s sole option, replacement, full refund or credit.
  6. Time is of essence of this Order. Seller shall immediately notify Buyer in the event that Seller’s timely performance under this Order is delayed or likely to be delayed, in whole or part, and such notification shall not constitute a waiver of Seller’s obligations hereunder. If the Order contains a specified delivery date and only a portion of the goods specified in the Order are available for shipment to meet such delivery date, Seller shall, unless Buyer instructs otherwise, ship the available goods in time to meet such delivery date and ship, at Seller’s sole cost, the remaining portion of goods as soon as such goods become available to Seller. If no date is specified on this Order, Seller shall ship the goods within a reasonable time.
  7. Seller warrants that (i) all goods hereunder shall be new and shall be free from defects in workmanship, manufacture, materials and design for one year following the date of Buyer’s acceptance of the goods or for the period set forth in Seller’s standard warranty, whichever is longer; and (ii) all goods hereunder shall function properly under ordinary use and operate in conformance with their applicable specifications, drawings, samples, representation or other description, even if such were furnished by Buyer. In the event of a breach of any warranty, Buyer may, at its option, (i) require Seller to correct any defective or non-conforming goods by repair or replacement at no charge to Buyer (replacement and repaired goods shall be warranted for the remaining warranty period or six (6) months, whichever is longer); (ii) return such goods to Seller at Seller’s expense and Seller shall immediately refund to Buyer all amounts paid therefor; (iii) correct the defective or non-conforming goods itself and Seller shall pay for the cost of such correction; or (iv) utilize the defective or non-conforming goods and Seller shall refund to Buyer an appropriate reduction in price. Seller also warrants that it has and shall convey good title to all goods hereunder and all goods shall be delivered free from any security interest, lien or other encumbrance. In addition to the remedies set forth above, Seller shall be liable for all direct or indirect damages that Buyer may incur as a result of Seller’s breach of this warranty of good and unencumbered title. The foregoing warranties are in addition to all other warranties, whether express or implied, and shall survive the delivery of the goods and the inspection, acceptance or payment by Buyer.
  8. Seller shall indemnify and hold Buyer, its subsidiaries and affiliates, and their respective officers, directors, employees, contractors, agents and representatives harmless from and against all expenses, damages, claims, suits or liabilities (including attorney’s fees) of every kind whatsoever by reason of or arising out of (i) Seller’s breach of this Order, its performance of this Order or its negligence or willful misconduct; and (ii) the alleged infringement of any intellectual property or other proprietary right occurring in the performance of this Order, or in the manufacture, use or sale of the goods. Should Buyer’s use of the goods purchased from Seller hereunder be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at is sole cost and expense, either (i) substitute fully equivalent non-infringing goods; (ii) modify the goods so that they no longer infringe but remain fully equivalent in functionality; (iii) obtain for Buyer the right to continue using the goods; or (iv) if none of the foregoing is possible, refund all amounts paid for the infringing goods.
  9. Buyer shall not be liable for any failure to perform including failure to take delivery of the goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation.
  11. Seller shall maintain policies of liability insurance of such types and amounts as may be required by Buyer. Proof of such insurance shall be furnished to Buyer.
  12. Any rights or remedies granted to Buyer in this Order shall not be exclusive of, but shall be in addition to, any other rights or remedies that Buyer may have at law or in equity in any such instance.
  13. Seller may not assign this Order without the written permission of Buyer. Any assignment or transfer without such written consent shall be null and void. This Order shall inure to the benefit of, and be binding upon, the successors and assigns of Buyer without restriction. A waiver of any default hereunder or of any term or condition of this Order shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
  14. If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
  15. This Order constitutes the complete agreement between Buyer and Seller with respect to the goods hereunder and supersedes any prior or contemporaneous written or oral agreement between the parties.
  16. If the Goods provided hereunder are chemical substances or mixtures of chemical substances, Seller warrants and certifies that such chemical substances or all of the component chemical substances comply with the requirements of the Toxic Substances Control Act, including, but not limited, the Inventory of Chemical Substances. Further, Seller warrants that it understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials.
  17. This Order shall be deemed to be made in and shall be construed in accordance with the laws of and enforceable in the State of Florida.
  18. Seller may not publicly disclose that Seller has furnished or may furnish goods hereunder to Buyer or make public any other information concerning this Order without the prior written permission of Buyer.