Terms and Conditions of Sale

Effective: October 20, 2009

 

The following terms and conditions are the terms and conditions upon which Programming Methods of Florida, Inc. (PMF) makes all sales and quotations to the buyer/purchaser (Buyer).  PMF will not accept any other terms and conditions of sale unless the Buyer and PMF have executed a master contract which specifically supersedes and replaces these terms and conditions.  Acceptance of all purchase orders is expressly made conditional upon Buyer's assent, expressed or implied (which may include but is not limited to written acceptance, submission of a purchase order, or approval of a quotation for order), to the terms and conditions set forth herein without modification or addition.

1. Acceptance

Buyer's acceptance of these terms and conditions shall be indicated by any of the following, whichever first occurs: (a) Buyer's making of an offer to purchase Product from PMF; (b) Buyer's written acknowledgement hereof; (c) Buyer's acceptance of any shipment of any part of the items specified for delivery (the Product's); or (d) any other act or expression of acceptance by Buyer.  PMF's acceptance is expressly limited to the terms and conditions hereof in their entirety without addition, modification or exception, and any term, condition or proposals hereafter submitted by Buyer (whether oral or in writing) which is inconsistent with or in addition to the terms and conditions set forth hereon is objected to and is hereby rejected; PMF's silence or failure to respond to any such subsequent or different term, condition, or proposal shall not be deemed to be PMF's acceptance or approval thereof.

2. Delivery

Unless otherwise agreed in writing, delivery shall be made in accordance with the following shipping policy in effect on the date of shipment/invoice/quotation.  For all domestic transactions, unless otherwise stated on the front of the invoice, title to, and all risk of loss or damage with respect to the Products shall pass to the Buyer upon delivery by PMF to the carrier or Buyer's representative at PMF's warehouse, office, or at the Buyer's location.  The Buyer shall promptly notify PMF, in no event later that five (5) business days after delivery, of any claimed shortages or rejection as to any delivery.  Such notice shall be in writing and shall be reasonably detailed, stating the grounds for any such rejection.  Failure to give any such notice within such time shall be deemed an acceptance in full of any such delivery.  PMF shall not be liable for any shipment delays beyond the reasonable control of PMF which affect PMF or any of PMF's suppliers, including but not limited to, delays caused by unavailability or shortages of Products from PMF's suppliers; natural disasters, acts of war; acts or omissions of Buyer; fire, flood, strike, riot, or governmental interference; unavailability or shortage of materials, labor, fuel, power, through normal commercial channels at customary and reasonable rates; failure or destruction of plant or equipment arising from any cause whatsoever; or transport failures.

3. Price And Payment

Buyer shall bear all applicable federal, state, municipal, and other governmental taxes (such as sales, use and similar taxes), as well as import or customs duties, license fees and similar charges, however designated or levied on the sale of the Products (or the delivery thereof) or measured by the purchase price paid for the Products.  (PMF's prices set forth on the front side of the invoice/quotation may not include such taxes, fees, and charges.)  Exemption certificates must be presented prior to shipment if they are to be honored.  Unless otherwise specified, payment terms are COD.  PMF, at its discretion, may require reasonable advance assurance of payment through irrevocable bank letters of credit or otherwise.  Invoices for product and services which remain unpaid past their due date shall be subject to a $30 late fee or 1 1/2% monthly interest charge commencing upon date payment is due and continuing until paid.  Buyer's failure to make timely payment may result in such action as commencement of proceedings for collection, revocation of credit, stoppage of shipment, delay or cessation of future deliveries, repossession of unpaid delivered goods and termination of any or more sales agreements.  Notwithstanding any "net" payment provisions specified on the invoice, PMF shall have no continuing obligation to deliver Products on credit, and any credit approval may be withdrawn by PMF at any time and without prior notice.  PMF retains (and Buyer grants to PMF by submitting a purchase order/or approving a quotation for order) a security of interest in the Products to secure payment in full and compliance with all sales agreements, and Buyer agrees to execute any additional documents necessary to perfect such security interest.  In the event the sales invoice shall be placed by PMF in the hands of an attorney for the purpose of collection, with or without litigation, or for any purpose of enforcing PMF's security interest in the Products, the Buyer agrees to pay any and all costs associated with such placement, including without limitation, attorney's fees and costs incurred prior to, during, or subsequent to trial, and including, without limitation, collection, bankruptcy, or other creditor's rights to proceedings.  If a sale is to occur, or the Product is to be shipped, outside the United States, Buyer acknowledges and agrees that the amount due PMF is contracted in U.S. Dollars and that payment in U.S. Dollars is of the essence.  Any payment by Buyer in local currency or the receipt by PMF of local currency as a consequence of enforcement procedures against Buyer will be deemed an authorization for PMF to use that local currency to purchase U.S. Dollars or, if such purchase if prohibited by law, an authorization to purchase appropriate bonds or other instruments and export them from the Buyer's country in order to convert the currency to U.S. Dollars and may apply the proceeds to the payment of any amounts to PMF by Buyer.  Any deficiency as a result of conversation of payment into U.S. Dollars shall be the responsibility of the Buyer.

3. Component Modifications

Unless otherwise stated on the front of the invoice or quotation or in writing, PMF does not make any warranty whether expressed or implied as to the availability of any component listed on this quote.  PMF also reserves the right to substitute any component with one of equal, lesser, or greater value and the substituted part’s technical specifications are allowing of equal or greater operation if the quoted part is not readily available from PMF’s preferred distributor.

4. Product Returns

Return of Products purchased hereunder, for any reason, shall be governed by PMF's Product Return Policy in effect on the date of the invoice, or as otherwise provided by PMF to Buyer in writing.  PMF reserves the right to modify or eliminate such policies at any time.  Although PMF's policies may permit Buyer to return Products claimed to be defective under certain circumstances, PMF makes no representations or warranties of any kind with respect to the Products.  PMF HEREBY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, AS TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY  OR FITNESS FOR A PARTICULAR PURPOSE.  PMF WILL NOT BE LIABLE FOR ANY DAMAGE, LOSS, COST OR EXPENSE FOR BREACH OF WARRANTY.  The right to return defective Products, as previously described, shall constitute PMF's sole liability and Buyers exclusive remedy in connection with any claim of any kind relation to the quality, condition or performance of any Product, whether such claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose or otherwise.  In the event PMF issues a return authorization to Buyer allowing Buyer to return Product to PMF, Buyer will deliver the Product to PMF's address in the United States, if so required by PMF, and Buyer shall bear all applicable federal, state, municipal and other government taxes (such as sales, use and similar taxes) as well as import or customs duties, license fees and similar charges, however designated or levied, on any replacement Product to be shipped by PMF to the Buyer.

5. Limitation Of Liability

PMF SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT TO SELL Product TO Buyer OR THE Product, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOST PROFITS, LOSS OF USE, LOST DATA OR FOR ANY DAMAGES OR SUMS PAID BY Buyer TO THIRD PARTIES, EVEN IF PMF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  THE FOREGOING LIMITATION SHALL APPLY WHETHER ANY CLAIM IS BASED UPON PRINCIPLES OF CONTRACT, WARRANTY, NEGLIGENCE OR OTHER TORT, BREACH OF ANY STATUTORY DUTY, PRINCIPLES OF INDEMNITY OR CONTRIBUTION, THE FAILURE OF ANY LIMITED OR EXCLUSIVE REMEDY TO ACHIEVE ITS ESSENTIAL PURPOSE, OR OTHERWISE.

7. General

These terms and conditions shall constitute the final, complete and exclusive agreement of the parties with respect to all sales by PMF to Buyer and shall supersede all prior offers, negations, understandings and agreements.  Unless Buyer and PMF have executed a master contract which specifically superseded and replaces the terms and conditions herein, it is expressly agreed that no prior or contemporaneous agreement or understanding. whether written or oral, shall contradict, modify, supplement or explain the terms and conditions herein.  No additional or different terms or conditions, whether material or immaterial, shall become a part of any sales agreement unless expressly accepted in writing by an officer of PMF in the United States.  Any waiver by PMF of one or more of these terms and conditions or any defaults hereunder shall not constitute a waiver of the remaining terms and conditions or of any future defaults hereunder.  No failure or delay by either party in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder.  Any provision of these terms and conditions that is prohibited or unenforceable under the laws of the State of Florida shall be ineffective to the extent of such prohibitions or unenforceability, without invalidating or impairing the remaining provisions of these terms and conditions.  All sales agreements shall be deemed made in, and shall be governed by, the laws of the State of Florida.  The venue for any disputes arising out of any sales agreement shall be, at PMF's sole exclusive option, St. Lucie County, Florida or the courts with proper jurisdiction at Buyers location.  ALL SALES TRANSACTIONS EXCLUDE THE APPLICATION OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALES OF GOODS, IF OTHERWISE APPLICABLE.