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TERMS AND CONDITIONS OF SALE
These Terms and Conditions govern the terms of sale for all goods and services purchased from Fi-Foil Company, Inc. ("Fi-Foil") of 612 Bridges Avenue, Auburndale, Florida 33823, by Customer. Fi-Foil's acceptance of any purchase order received from Customer is expressly subject to Customer's agreement to the terms and conditions stated herein. Any conflicting or additional terms proposed by Customer are expressly rejected. These terms and conditions shall govern over any terms and conditions of purchase proposed by Customer that conflict or add to the terms of this Agreement, unless such additional or conflicting terms are specifically agreed to in writing, and signed by Fi-Foil's duly authorized representative.
LIMITED WARRANTY AND EXCLUSIVE REMEDY: Fi-Foil warrants that during a period of one (1) year from date of shipment of the goods purchased under this Agreement, such goods shall perform in accordance with Fi-Foil's written specifications applicable to such goods. If during such period such goods shall fail to perform in accordance with Fi-Foil's written specifications. Fi-Foil shall, at its expense and option, repair or replace the goods; provided however, Fi- Foil shall not be responsible for any removal, installation or reinstallation costs. Except that Fi-Foil Silver Shield™ Radiant Barrier Product is covered by a separate, written 20-Year Transferable Limited Warranty and Fi-Foil's AA2 Vapor Shield, M-Shield and VR Plus Shield masonry wall reflective insulation products are covered by separate, written ten year transferable limited warranties. THE FOREGOING WARRANTIES AND REMEDIES SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE WARRANTIES AND REMEDIES under any and all circumstances. Provided further that if any such remedy shall fail of its essential purpose, Fi- Foil's maximum and sole liability arising from or related to this sale of goods or services, or from any attempts to repair or replace defective goods, shall be limited to payment of the purchase price, or the allocable portion of the purchase price which relates to the defective goods furnished under this contract. The foregoing warranty shall be void if damage results from Customer's improper installation, repair or use of the goods.
DISCLAIMER OF ALL OTHER WARRANTIES: Fi-Foil makes no warranty other than the limited warranties described or provided above, THESE LIMITED WARRANTIES ARE EXPRESSLY IN LIEU OF ANY AND ALL OTHER EXPRESS OF IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED. In no event shall Fi-Foil be liable, and Purchaser shall hold Fi-Foil harmless from any damages, direct, indirect, general, special, incidental or consequential, whether resulting from Fi-Foil's negligence or otherwise, arising out of, in connection with, or resulting from the goods or services sold hereunder, and any and all claims, actions, suits and proceedings which may be instituted in respect to the foregoing, including those made by subsequent owners and users of the goods.
RESALE: Fi-Foil expressly disclaims any liability to or warranties made for the benefit of any third party, including but not limited to any third party to whom Customer may sell or transfer the goods, which are the subject of this Agreement. Notwithstanding, the foregoing all the terms and conditions set out herein shall be binding upon Customer and all subsequent owners and users of these goods. Without limitation of the foregoing, however, the goods identified herein are sold subject to the condition that they shall not, nor any portion of them, by way of trade or otherwise, be lent, resold, or otherwise conveyed without similar conditions, including this condition, being imposed on the subsequent borrower, purchaser, or transferee.
TERMS OF PAYMENT: All payments are due thirty (30) days after the date of Fi-Foil's invoice, unless otherwise agreed in writing, and signed by an authorized representative of Fi-Foil. All credit terms requested for new accounts, and by existing customers who have previously been extended credit terms, are subject to credit approval in Fi-Foil's sole discretion. Fi-Foil may withdraw any credit terms previously offered to Customer, and Fi-Foil may require full or partial payment prior to shipment. Fi-Foil may require Customer to provide current financial information and credit references to Fi-Foil at any time or times. If Customer's financial condition is not satisfactory to Fi-Foil at any time, Fi-Foil may cancel the order or require full or partial payment in advance of shipment, or such other assurance of payment as Fi-Foil may require, including but not limited to advance payment by wire transfer or cashier's check, the furnishing of a letter of credit or personal guaranty, approved credit card, cashier's check on delivery, or business check on delivery, in Fi-Foil's sole discretion. Payment is considered as having been made on the date payment is received by Fi-Foil. Interest on any past due payment or part thereof, shall accrue at the rate of 1% per month, or if this interest rate exceeds the maximum allowed by applicable law, then at the maximum lawful rate, applicable from time to time.
ACCEPTANCE OF ORDERS: All orders are subject to and shall be effective only upon acceptance by a duly authorized representative of Fi-Foil.
SHIPMENT AND TRANSPORTATION CHARGES: Shipment of goods are F.O.B. point of manufacture, and shall be deemed to occur when the aforementioned items are placed in the possession of a common carrier for shipment to Customer, unless customer is in Fi-Foil's delivery area or the shipment terms have been otherwise agreed upon in writing by an authorized Fi-Foil representative. In the event of a pre-approved partial shipment, pro-rata payments shall become due as partial shipments are made in accordance with the standard customer terms.
TITLE AND RISK OF LOSS: Title to and risk of loss of all items purchased hereunder shall pass to Customer upon shipment by Fi-Foil F.O.B. point of manufacture. No subsequent loss or damage to the items shall affect Customer's obligations hereunder.
FORCE MAJEURE: Fi-Foil shall not be liable for any delay or failure to perform its obligations due to any cause beyond its reasonable control, including without limitation, fire, weather, accident, act of public enemy, war, rebellion, insurrection, strike, lockout, work slowdown, or similar industrial or labor action, sabotage, transportation delay, shortage of raw material, energy or machinery, act of God, acts or omissions of Customer, or the order of judgment of any federal, state, local or foreign court, administrative agency or other government office or body.
CHANGES, CANCELLATIONS AND RETURNS: Orders accepted by Fi-Foil are not subject to changes or cancellation by Customer, except with Fi- Foil's written consent. All returned goods must be authorized in advance by an authorized Fi-Foil representative and are subject to a 15% restocking fee.
TAXES: Unless specifically stated, prices listed do not include taxes. Any state or local governmental sales, use, excise, property or other taxes, if any, shall be paid and/or borne by the or reimbursed by the customer to Fi-Foil if paid by Fi-Foil. If customer is exempt from paying Sales Tax, a certificate of evidencing such shall be provided to Fi-Foil upon request.
ASSIGNMENT: Customer may not assign its rights or obligations under this Agreement without the prior written consent of Fi-Foil. This Agreement shall be binding upon the parties hereto, their heirs, assigns or successors in interest by merger, operation of law, or by purchase of the entire or substantially all the business of either party who shall acquire all interest and be subject to all obligations of such party hereunder.
ACKNOWLEDGEMENT: All representations relating to the goods are contained in this quotation to Customer for the purchase of the goods. Submission of an order pursuant to a quotation by Fi-Foil to the Customer acknowledges acceptance by the Customer of the terms and conditions set forth herein and Customer's agreement that any additional or conflicting terms previously or hereafter proposed by Customer are withdrawn.
WAIVERS: A waiver of any breach of any of the provisions of this Agreement shall not be construed to be a continuing waiver of the breaches of the same or provision hereof.
NOTICES: Any notice to Fi-Foil required or permitted to be given under this Agreement shall be sufficient, if in writing, and sent by registered or certified mail, return receipt requested, to the address stated above.
ATTORNEY'S FEES: Upon the occurrence of any breach of the terms of this Agreement by Customer, or if an invoice to Customer is not paid when due, or it becomes necessary to enforce or defend these terms and conditions, Customer agrees to pay all costs of the collection, enforcement or defense, including attorneys' fees, whether incurred in or out of court, in one or more actions or proceedings, on appeal, in arbitration, in Bankruptcy Court, or in any insolvency proceedings or otherwise.
ENFORCEABILITY: The invalidity, in whole or part, of any of the foregoing paragraphs shall not affect the remainder of such paragraph or any other paragraph of this contract. Enforcement and interpretation of any provision of this Agreement shall be governed by the laws of the state of Florida, without resort to its conflict of law rules.
CHOICE OF LAW AND VENUE: The provisions hereof shall be construed under the laws of Florida. Jurisdiction and venue for any action or dispute arising under or related to this Agreement, the goods or services purchased hereunder, or any dealings between the parties, arising from or related to any of the foregoing, must be commenced in a court of competent jurisdiction located within Hillsborough or Polk Counties, Florida.
WAIVER OF JURY TRIAL. Fi-Foil and Customer each hereby waive the right to trial by jury in any action related to or arising from this Agreement, the goods or services purchased hereunder, or any dealings between the parties, or any acts or course of conduct related to any or all of the foregoing. TPA#2245349.1