1. CHOICE OF LAW
This agreement shall be determined according to governed and construed in accordance with the laws of the state of Florida, U.S.A. The parties hereby agree that in the event of litigation arising from this transaction, proper venue shall be Dade County, Florida, U.S.A.
2. LIMITED INSPECTION
The Buyer shall have a right to visual inspection at the time of tender of delivery, and payment shall be due without any right to test or consume any part of the goods to determine their quality.
3. RISK OF LOSS
The risk of loss or damage to the goods shall not pass to Buyer until Buyer receives physical possession of the goods.
4. PAYMENT
30 days after invoice date in United States of America dollars, or a date mutually agreed upon by both parties in writing. Any amount remaining unpaid after due date shall bear interest at a rate of 1.5% per month. Terms are net. No discounts unless mutually agreed upon by both parties in writing.
5. BUYER'S REPRESENTATION OF SOLVENCY
Buyer hereby represents that he is solvent, and that on each delivery this representation shall be deemed renewed unless notice to the contrary is given in writing by the Buyer to the Seller at or before delivery of the goods.
6. RIGHT TO STOP DELIVERY IN TRANSIT
If the Buyer becomes insolvent, repudiates, or fails to make payment when due, before delivery to the Buyer or to the purchaser from the Buyer, the Seller shall have the right to stop delivery of the goods.
7. LIMITATION OF SELLER'S LIABILITY
Seller shall not be liable for prospective profits or special, indirect or consequential damages, nor shall any recovery of any kind against the seller be greater in amount than the purchase price of the specific material sold and causing the alleged loss, damage or injury. Buyer assumes all risk and liability for loss, damage or injury to persons or property of Buyer or others arising out of use or possession of any material sold hereunder.
8. RIGHT OF RESALE
In the event of any breach or repudiation of this contract by Buyer or any failure of Buyer to comply with the provisions hereof, Seller may resell the goods covered hereby which have not already been delivered to Buyer, together with any goods reclaimed by Seller or as to which Seller may agree to accept return, at one or more public or private sale, at wholesale or otherwise, and recover from Buyer the amount by which the price established in this contract exceeds the amounts so received, together with all incidental damages occasioned by the default of Buyer.
9. WARRANTY
The Seller warrants that the goods sold hereunder shall be of fair average quality in the trade and within the description of the contract, but otherwise MAKES NO WARRANTY, INCLUDING OF MERCHANTABILITY IN OTHER RESPECTS THAN EXPRESSLY PROVIDED HEREIN, OR OF FITNESS FOR A PARTICULAR PURPOSE.
10. This agreement shall be binding upon and ensure to the benefit of the respective successors and assigns of each of the parties hereto. No modifications of this agreement or waiver of the terms and conditions hereof shall be binding upon Seller unless approved in writing by an authorized representative, or shall be effected by the acknowledgment or acceptance of purchase order forms containing other or different terms or conditions whether or not signed by an authorized representative of Seller.
11. Upon default or defaults Seller may, with or without notice to Buyer, declare the entire net balance and all other sums due or payable hereunder to be immediately due and payable and may proceed to exercise any and all rights and remedies available to a secured party on default under the uniform Commercial Code or the laws of any state or country where the goods, or any thereof, may be found. If the Buyer shall, without the express written consent of Seller, remove the goods from the state where the same are presently located Seller may reclaim the goods in such state and return them, at buyers expense, to the state from whence wrongfully removed. On demand of Seller, Buyer will assemble the goods at a place to be designated by the Seller which shall be reasonably convenient to both parties. Buyer agrees that the address of Seller shown hereinabove is a place reasonably convenient to Buyer for such purposes. Expenses of Seller secured hereby include all costs of reclaiming the goods and of enforcing any rights or exercising any remedy hereunder and if Seller shall employ any attorney in enforcing any right or exercising any remedy hereunder, Buyer agrees to pay, as attorney fees, 33 1/3 percent of the unpaid balance due hereon, but in no event less than $500.00, all of which are secured hereby. Unless goods are perishable or threatened to decline speedily in value or are of a type customarily sold on a recognized market, Seller will give Buyer reasonable notice of the time and place of any public sale or of the time after which any private sale or other intended disposition is to be made. The requirements of reasonable notice shall be met if such notice is mailed postage prepaid, addressed to Buyer at the address shown at the beginning of this agreement at least five days before the time of such sale or disposition. Expenses of retaking, holding, preparing for sale, selling or the like shall include Seller's reasonable attorneys fees and legal expenses. Buyer shall be liable for court costs and prejudgment interest. No waiver by Seller of any default shall operate as a waiver of any other default or of same default on future occasion. All rights of Seller in, to and under this agreement and in and to the goods shall pass to and may be exercised by any assignee thereof. Buyer agrees that in the event of an assignment of this agreement and notice of such assignment to Buyer the liability of Buyer to a holder for value of the agreement shall be immediate and absolute and not affected by any default of Seller; and that Buyer will not set up any claim against Seller as a defense, counterclaim or set-off to any action for the unpaid balance owed under this agreement or for possession, brought by said holder, except only defenses which are valid defenses as against a holder in due course of negotiable instrument.
12. CANCELLATIONS AND/OR REFUSALS
Buyer shall not incur any expenses if Buyer notifies Seller of the cancellation and/or refusal of the above described goods prior to segregation and/or shipment. Buyer shall be liable for twenty-five (25%) percent of the invoice amount as a restocking charge, as well as handling, tariff, duty, excise tax or freight charges for any cancellation and/or refusals subsequent to segregation and/or shipment. Notice of cancellation and/or refusals shall be in writing to Seller from Buyer.
13. This agreement hereby incorporates by reference any and all prior agreements other than any discounts or special terms, endorsements and guarantees between Seller and Buyer as to past, present and future working relationships and course dealings.
14. Credit memos shall only be applied to future purchases. No cash refund shall be issued.
15. Terms FOB ex-warehouse unless other arrangements are made.
16. TAXES
Unless mutually agreed upon by both parties in writing the price does not include any sales, use, excise or other tax levies on the sale or measured by the sales price. As to any such tax levied on, paid by, or collected by the Seller, the Buyer agrees either to pay such amount or provide such evidence necessary to sustain an exemption therefrom.
17. EXCUSED PERFORMANCE
The Seller shall be excused from any failure on its part to comply with the terms of this agreement arising from any causes beyond its control including but not restricted to failure to receive raw materials, strikes, fires, floods, acts of God, civil insurrection or disturbance, acts of public enemy, carrier delays and acts, orders, regulations and decrees of government authorities whether or not valid. The Seller shall make every reasonable effort to ship at the date requested by Buyer or at such other tentative shipping date as may be supplied by the Seller to the Buyer but assumes no liability for failure for any reason to do so, and the Buyer agrees to accept delivery of all or part or units of the goods at any reasonable time thereafter.
18. DELIVERY
Seller does not guarantee delivery at a specified date, but every reasonable effort will be made to meet the scheduled shipping date as indicated on the sales order. Any additional freight costs resulting from requested partial shipments, air express, air freight, parcel post shipment, etc. shall be paid by the Buyer.
19. Buyer shall, within a reasonable time after written request of the Seller, provide Seller with its current financial information, including financial statements, bank references and current trade references, for the purposes of updating this agreement and increasing or decreasing the credit account of Buyer and thereafter, purchases by Buyer shall be for cash, C.O.D. or equivalent.
20. Buyer agrees that the only terms that will regulate this transaction are the terms contained in Olem Shoe Corp. bill of sale.