TERMS AND CONDITIONS OF SALE
The following terms and conditions
(“Terms and Conditions”) are deemed part of all quotations, proposals,
acknowledgments, invoices, orders, statements, and other documents,
whether electronic or in writing, relating to the sale of goods or
services (“Products”) by AmChar Caribe, Inc., a Puerto Rico
corporation (“Seller") to Seller’s customers (“Buyer”). These terms and
conditions, together with the foregoing documents, constitute the entire
contract of sale and purchase between Seller and Buyer with respect to
the Products, will supersede all previous communications, agreements,
or contracts, written or verbal between Seller and Buyer, and no
understanding, agreement, term, condition or trade custom at variance
herewith will be binding on Seller. In the event of a conflict between or
among the terms of documents relating to the Products, the following
order of priority will govern, except where the specific terms of a
document provide otherwise: (a) any applicable order acknowledgment
and invoice; (b) these Terms and Conditions; (c) the applicable
quotation; and (d) the applicable purchase order. No waiver,
amendment or modification of these Terms and Conditions will be
effective unless in writing and signed by an officer of Seller. SELLER
OBJECTS TO, AND IS NOT BOUND BY, ANY TERMS OR
CONDITIONS ON BUYER'S PURCHASE ORDER,
CONFIRMATION FORMS OR OTHER DOCUMENTS, WHICH
ATTEMPT TO IMPOSE UPON SELLER ANY TERMS AND
CONDITIONS AT VARIANCE WITH SELLER'S TERMS AND
CONDITIONS OF SALE SET FORTH HEREIN, AND SHIPMENT
OR OTHER PERFORMANCE BY SELLER SHALL NOT
CONSTITUTE ASSENT TO ANY SUCH INCONSISTENT TERMS.
All quotations by Seller are subject to change
or withdrawal without prior notice to Buyer unless otherwise
specifically stated in the quotation. Quotations are made subject to
approval by Seller of Buyer’s credit. Seller shall have no obligation to
sell or deliver Products covered by Seller’s quotation unless and until
Seller issues an order acknowledgement form or upon the shipment of
Products by Seller.
3. TERMS OF PAYMENT.
Unless otherwise expressly agreed
to by Seller in writing, terms of payment are cash or cash equivalent to
be paid in accordance with the terms of the invoice. Time of payment
is of essence. Any invoice not paid in immediately available funds and
in accordance with the terms of the invoice is subject to a late payment
fee of one and one-half percent (1.5%) per month, or, if such rate
exceeds that permitted by applicable law, then the highest lawful rate.
Buyer also agrees to indemnify Seller for all collection costs on any
delinquent accounts, including, without limitation, attorneys' fees and
court costs. The inspection rights granted to Buyer hereunder will not
affect or alter the payment terms or the timing of Buyer’s payment
obligations. Under no circumstances will Buyer have a right of set-off.
Any returned checks will be subject to a $35.00 service charge.
All shipments to be made hereunder shall at all times
be subject to the approval of Seller’s credit department. Seller may
invoice Buyer and recover for each shipment made pursuant to these
Terms and Conditions as a separate transaction without regard to any
other purchase order or agreement with Seller. All overdue amounts
must be paid before additional shipments are made, and Seller reserves
the right to cancel any purchase order or refuse to accept or fill any
purchase order then outstanding until all overdue amounts are paid in
full. In the event that Seller, in its sole and absolute discretion, deems
Buyer's credit to be unsatisfactory, Seller shall have the right, in
addition to any of its other remedies, to (a) limit the amount of credit
which Seller extends to Buyer and delay the delivery of Products based
upon such limitations; (b) require full or partial payment in advance,
(c) deliver Products to Buyer C.O.D., or (d) cancel or refuse to accept
or fill any purchase order from Buyer then outstanding or thereafter
placed. Buyer grants to Seller a purchase money security lien interest
in any Products sold to Buyer on credit to secure the payment of such
amounts. Buyer hereby authorizes Seller to sign any document required
to perfect Seller’s security interest, including financing statements
under the Uniform Commercial Code. Buyer shall immediately notify
Seller of any event or development that could reasonably be expected
to have a material adverse effect on the assets, operations or financial
condition of Buyer and any change in the senior the senior
management of Buyer.
5. PRICES AND TAX.
Prices and other information shown in
any Seller publication (including product catalogs, brochures and
electronic price lists) or provided by Seller verbally are subject to
change without notice and to written confirmation by Seller. Such
publications and verbal quotations are maintained and provided to
Buyer only as a source of general information. Published or quoted
Product prices do not include sales, use, excise, customs, value added
or similar taxes. Such taxes shall be the responsibility of Buyer and
invoiced as a separate item to be paid by Buyer unless Seller is
provided with a resale tax certificate to support any exemption. Failure
by the Seller to collect any such fees or taxes shall not affect Buyer’s
obligations hereunder, and Buyer shall fully defend, indemnify and
hold harmless Seller with respect to such tax obligations.
6. MINIMUM BILLING CHARGE.
Seller shall not accept
any purchase order for any Products where the aggregate price for all
Products listed thereon is less than $100.00, exclusive of all taxes,
shipping, insurance and other costs. Upon Buyer’s request, Seller may
waive the minimum order requirement, subject to an additional $25.00
handling charge. All such Purchase Orders must, and all invoices
related thereto will, list the handling charge as a separate line item.
7. TITLE, RISK OF LOSS, AND SHIPPING TERMS.
Unless otherwise agreed in writing by the parties, deliveries of
Products shall be made F.O.B. Seller's facility in San Juan, Puerto
Rico. Title shall pass to Buyer and Buyer will be responsible for and
shall assume all risk and liability for, and agrees to indemnify Seller for
any use or misuse by third parties who may acquire or use the
Products, after Seller’s delivery of the same to the carrier or the Buyer.
Any loss occasioned by damage or shrinkage in transit will be for
Buyer’s account, and Buyer shall file any damage or loss claims
directly with the carrier. Unless otherwise agreed in writing by the
parties, packaging methods, shipping documents and manner, route and
carrier of shipment shall be at Seller's sole discretion. Seller reserves
the right to ship items in a single or multiple shipments. Unless
otherwise agreed in writing by the parties, all freight charges and
insurance costs shall be the responsibility of Buyer and will be
invoiced as a separate line item to be paid by Buyer.
8. INSPECTION AND ACCEPTANCE OF GOODS.
Buyer shall examine Products promptly upon receipt of delivery from
the carrier or the Seller. Buyer shall advise the carrier of any damages
or shortages prior to acceptance of Products and, except for any latent
defects, shall advise Seller of any claims with respect to shortages,
damages or discrepancies within ten (10) days after receipt thereof. If
Buyer does not so notify the carrier and Seller of any nonconforming
or damaged Products during this period, the Products shall be deemed
accepted and it is expressly agreed that Buyer shall have waived all
claims based on any defects that were or would have been discovered
on reasonable inspection during this period. Buyer shall afford Seller a
reasonable opportunity to inspect such nonconforming or damaged
Products and to cure any nonconformity. BUYER'S FULL OR
PARTIAL PAYMENT OR ACCEPTANCE OF DELIVERY OF
PRODUCTS WITHOUT NOTIFYING THE CARRIER AND
SELLER OF ANY DAMAGES OR SHORTAGES IN
ACCORDANCE WITH THIS SECTION 8 SHALL CONSTITUTE
ACCEPTANCE OF SUCH PRODUCTS.
Seller's delivery or shipping dates are approximate
only and merely represent Seller’s best estimate of time required to
make delivery or shipment. Shipment dates are contingent on prompt
receipt by Seller of all necessary shipping information. Seller shall not
be held responsible for failure to meet estimated shipping dates, and in
no event shall Seller be liable for any loss, cost, damage or expense
whatsoever incurred by Buyer or its customers that may result
10. RETURN POLICY.
No Products shall be returned without
the prior written authorization of Seller. Seller, in its sole discretion
may reject any nonwarranty return requests. Defective Products are to
be returned directly to the manufacturer in accordance with their
warranty and return policies. Non-warranty returns of unused and
resalable Products for credit will be subject to Seller’s return policies in
effect at the time, including applicable restocking charges (currently
10%) and other conditions of return. Return requests of incorrectly
ordered items will only be accepted against a restocking charge of 20%
within ten (10) days after delivery. Products returned under warranty
must be properly packed and shipped to Seller specified locations. All
shipping containers must be clearly marked per Seller’s instruction.
Buyer will be responsible for all costs and expenses associated with
any returns of Products (other than products returned at Seller’s request
pursuant to Section 13 hereof) and will bear the risk of loss or damage
of all returned Products unless Seller agrees otherwise in writing.
Seller, in its sole discretion may reject any return of Product not
approved by Seller in accordance with this paragraph or otherwise not
returned in accordance with Seller’s then current return policies.
11. ORDER CANCELLATION.
acknowledged or shipped by Seller may not be canceled, altered or
modified by Buyer except as otherwise permitted herein or agreed to in
writing by Seller. Buyer will indemnify Seller for all costs and
expenses already incurred and commitments made by Seller related to
any terminated, cancelled, or modified purchase order. Cancellation by
Buyer prior to shipment pursuant to any standing, recurring or release
purchase order is permitted only by written notice sixty (60) days
before the originally scheduled shipment date as confirmed by Seller
on the order acknowledgement related to such purchase order and is
subject to reasonable cancellation and restocking charges, including
reimbursement for direct costs. Notwithstanding any term to the
contrary contained herein, a "special product" (non-stock product) will
be identified and acknowledged when requested or ordered and cannot
be canceled or returned. Buyer will be responsible for cancellation
charges of the actual selling price for any cancelled or returned special
12. NO SELLER WARRANTY.
The only warranties
applicable to the Products are any applicable express warranties from
the manufacturer of a Product. Buyer understands and agrees that
Seller makes no representations or warranties of any kind or nature
concerning the Products. Buyer agrees to waive any and all implied
warranties, including merchantability or fitness for a particular
purpose. SELLER MAKES NO WARRANTIES WHATSOEVER,
INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES
OF MERCHANTABILITY AND/OR FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
THE REMEDIES GRANTED BY EACH PRODUCT
MANUFACTURER SHALL BE BUYER'S SOLE AND EXCLUSIVE
REMEDY UNDER THESE TERMS AND CONDITIONS AND IS
EXPRESSLY MADE IN SUBSTITUTION OF ANY AND ALL
REMEDIES OTHERWISE PROVIDED.
13. LIMITATION OF DAMAGES.
IN NO EVENT SHALL
SELLER, ITS AFFILIATES, OFFICERS, AGENTS OR
EMPLOYEES BE LIABLE FOR ANY INCIDENTAL, INDIRECT,
SPECIAL OR CONSEQUENTIAL DAMAGES IN CONNECTION
WITH OR ARISING FROM THESE TERMS AND CONDITIONS
OR THE PRODUCTS OR SERVICES PROVIDED HEREUNDER,
INCLUDING (WITHOUT LIMITATION) LOSS OF PROFITS OR
REVENUES, INTERRUPTION OF BUSINESS, LOSS OF USE OF
THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT,
MATERIALS, COMPONENTS OR PRODUCTS, DAMAGE TO
ASSOCIATED EQUIPMENT, MATERIALS, COMPONENTS OR
PRODUCTS, COST OF SUBSTITUTE PARTS, OR CLAIMS OF
BUYER'S CUSTOMERS FOR SUCH DAMAGES. SELLER WILL
NOT BE LIABLE TO BUYER FOR ANY LOSS, DAMAGE, OR
INJURY TO PERSONS OR PROPERTY RESULTING FROM THE
HANDLING, STORAGE, TRANSPORTATION, RESALE, OR USE
OF ITS PRODUCTS IN MANUFACTURING PROCESSES, OR IN
COMBINATION WITH OTHER SUBSTANCES, OR OTHERWISE,
INCLUDING (WITHOUT LIMITATION) ANY OBLIGATIONS OR
LIABILITY ARISING OUT OF SELLER'S NEGLIGENCE OR
FAULT. IN NO EVENT WILL SELLER’S LIABILITY UNDER
THESE TERMS AND CONDITIONS OR IN CONNECTION WITH
THE SALE OF PRODUCTS BY SELLER, WHETHER SUCH
LIABILITY ARISES IN CONTRACT, TORT (INCLUDING
NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE
PRICE OF THE SPECIFIC PRODUCTS OR SERVICES AS TO
WHICH THE CLAIM IS MADE.
Buyer shall indemnify and hold
Seller, its officers, directors, employees, agents, affiliates, successors
and assigns harmless from and against all claims, liabilities, losses,
damages, costs and expenses sustained by them (including court costs
and attorneys' fees) arising out of or in any way connected with the
breach of these Terms and Conditions by Buyer or any of its affiliates,
employees, officers or agents.
15. REGULATORY COMPLIANCE AND EXPORT RESTRICTIONS.
Sales of firearms and explosives are subject to
compliance with federal, state, and local rules and regulations
(including but not limited to the Gun Control Act of 1968, and the
Puerto Rico Weapons Act of 2020), and to approvals by the Bureau of
Alcohol, Tobacco, Firearms and Explosives and relevant state and
municipal governmental authorities. All sales of Products by Seller to
Buyer shall be subject to such restrictions and Buyer shall obtain and
maintain all licenses and permits required in connection therewith.
Buyer further acknowledges that it is subject to and agrees to abide by
federal laws and regulations (including the Export Administration Act
of 1979, the Arms Export Control Act and International Traffic in
Arms Regulations) and restrictions of and controls imposed by Product
manufacturers relating to the export of the Products. Buyer shall
provide such assurances and representations to the Seller, as the Seller
may deem necessary or desirable to confirm the compliance of Buyer
with all applicable legal requirements. Buyer shall immediately notify
Seller of any revocation of its required licenses or of any changes in the
ownership or control of its business or in the form of its business entity
(e.g., partnership, corporation, sole proprietorship).
16. OWNERSHIP OF INTELLECTUAL PROPERTY.
All drawings, know- how, designs, specifications, inventions, devices,
developments, processes, copyrights and other information or
intellectual property disclosed or otherwise provided to Buyer by Seller
and all rights therein (collectively, “Intellectual Property”) will remain
the property of Seller and will be kept confidential by Buyer in
accordance with these Terms and Conditions. Buyer shall have no
claim to, nor ownership interest in, any of the Intellectual Property, and
such information, in whatever form and any copies thereof, shall be
promptly returned to Seller upon written request from Seller. Buyer
acknowledges that no license or rights of any sort are granted to Buyer
hereunder in respect of any Intellectual Property.
17. CONFIDENTIAL INFORMATION.
information furnished or made available by Seller to Buyer shall be
held in confidence by the Buyer. Buyer agrees not to use such
information or disclose such information to others without Seller’s
prior written consent. The obligations in this paragraph will not apply
to any information which (a) at the time of disclosure was or thereafter
becomes, generally available to the public by publication or otherwise
through no breach by the Buyer of any obligation herein, (b) the Buyer
can show by written records that the information was in the Buyer’s
possession prior to disclosure by Seller, or (c) is legally made available
to the Buyer by or through a third party having no direct or indirect
confidentiality obligation to Seller with respect to such information.
18. FORCE MAJEURE.
Seller shall not be liable for failure to
perform or delay in performance or delivery of any Products due to (a)
fires, floods, strikes, or other labor disputes, accidents, sabotage,
terrorism, war, riots, acts of precedence or priorities granted at the
request or for the benefit, directly or indirectly, of any federal, state or
local government or any subdivision or agency thereof, delays in
transportation or lack of transportation facilities, restrictions imposed
by federal, state or local laws, rules or regulations; or (b) any other
cause beyond the control of Seller. In the event of the occurrence of
any of the foregoing, the time for performance shall be extended for
such time as may be reasonably necessary to enable Seller to perform.
Seller may, during any period of shortage due to any of the above
circumstances, allocate its available supply of Products among itself
and its Buyers in such manner, as Seller, in its judgment, deems fair
19. ASSIGNMENT AND DELEGATION.
No assignment of
any rights or interest or delegation of any obligation or duty of Buyer
under these Terms and Conditions, Seller’s quotation, order
acknowledgement, or invoice, or Buyer’s purchase order may be made
without the prior written consent of Seller. Any attempted assignment
or delegation will be wholly void and totally ineffective for all
No failure of Seller to insist upon strict compliance
by Buyer with these Terms and Conditions or to exercise any right
accruing from any default of Buyer shall impair Seller’s rights in case
Buyer’s default continues or in case of any subsequent default by
Buyer. Waiver by Seller of any breach by Buyer of these terms and
conditions shall not be construed as a waiver of any other existing or
21. LIMITATION OF ACTIONS.
contrary statute of limitations, any cause of action for any alleged
breach of these terms and conditions by Seller shall be barred unless
commenced by Buyer within one (1) year from the accrual of such
cause or action.
22. LITIGATION COSTS.
If any litigation or arbitration is
commenced between Seller and Buyer concerning any provision of
these Terms and Conditions, the party prevailing in the litigation or
arbitration is entitled, in addition to such other relief that is granted, to
a reasonable sum as and for their attorney’s fees in such litigation or
arbitration, provided that if each party prevails in part, such fees shall
be allocated in such manner as the court or arbitrator shall determine to
be equitable in view of the relative merits and amounts of the parties’
Either party may give the other party written
notice of any dispute arising out of or relating to these Terms and
Conditions and not resolved in the normal course of business. The
parties shall attempt in good faith to resolve such dispute promptly by
negotiations between executives who have authority to settle the
dispute. If unsuccessful, the parties further will attempt in good faith to
settle the dispute by nonbinding third-party mediation administered by
the American Arbitration Association under its Commercial Mediation
Rules before resorting to arbitration, with mediator fees and expenses
apportioned equally to each side. Subject to the foregoing, the parties
shall settle any dispute arising out of or related to these Terms and
Conditions, or the breach thereof, by arbitration in San Juan, Puerto
Rico in accordance with the rules of the American Arbitration
Association. The parties shall agree upon a single arbitrator or, if the
parties cannot agree upon an arbitrator within thirty (30) days, then the
parties agree that a single arbitrator shall be appointed by the American
Arbitration Association. The arbitrator may award attorneys' fees and
costs as part of the award. The award of the arbitrator shall be binding
and may be entered as a judgment in any court of competent
jurisdiction. These procedures are the exclusive procedures for the
resolution of all disputes between the parties; provided, however, that,
notwithstanding the foregoing, Seller will have the right, and in
addition to all other remedies available to it at law, in equity or under
these Terms and Conditions, to affirmative or negative injunctive relief
from a court of competent jurisdiction in the event Buyer violates or
threatens to violate the terms of Sections 16 or 17. Each party
acknowledges that a violation of Sections 16 or 17 would cause
irreparable harm and that all other remedies are inadequate. Each party
further agrees and acknowledges that any such action or proceeding for
equitable relief must be brought in a state or federal court having
jurisdiction in San Juan, Puerto Rico, and each party irrevocably
submits to the jurisdiction and venue of any such court in any such
action or proceeding and agrees to waive any defenses to venue and
jurisdiction including forum non conveniens.
24. GOVERNING LAW.
The laws of Puerto Rico shall govern
the validity, interpretation and enforcement of these Terms and
Conditions, without regard to its conflicts of law principles. The
application of the United Nations Convention on Contracts for the
International Sale of Goods shall be excluded. Should any term or
provision hereof be held wholly or partly invalid or unenforceable
under applicable law, the remainder of the agreement evidenced hereby
will not be affected thereby.
25. COUNTERPART AND ELECTRONIC SIGNATURES.
This Terms and Conditions may be executed in
multiple counterparts by the parties hereto. All counterparts so
executed shall constitute one agreement binding upon all parties,
notwithstanding that all parties are not signatories to the original or the
same counterpart. Each counterpart shall be deemed an original to this
Terms and Conditions, all of which shall constitute one agreement to
be valid as of the date of these Terms and Conditions. Documents
executed, scanned and transmitted electronically and electronic
signatures shall be deemed original signatures for purposes of this
Terms and Conditions and all matters related thereto, with such
scanned and electronic signatures having the same legal effect as
26. PREVAILING LANGUAGE AND INTERPRETATION.
case of discrepancies between the English and Spanish versions of the
Terms and Conditions, the English version will prevail for all legal