1. General Terms and Conditions 

1.1 Your order constitutes an offer by you to purchase Goods in accordance with these terms and conditions (Conditions). Your order may be placed through our website (www.FirstKem.com) or by telephone, email, post or fax or in accordance with clause 1.2 below.

1.2 Where we have agreed to enter into a vendor-managed inventory arrangement with you, an order will be deemed to be placed by you when our personnel or systems determine that additional replenishment stock is required in accordance with agreed minimum and maximum quantities. Where we have agreed to enter into a consignment stock arrangement with you, an order will be deemed to be placed when our personnel or systems determine that you have withdrawn the relevant stock from our agreed storage location at your premises.

1.3 Please ensure that you read these Conditions carefully and check that the details of any order and these Conditions are complete and accurate before you submit your order.

1.4 If we process your personal data or that of your employees/representatives we will do so in accordance with our Privacy Policy as updated from time to time, a copy of which can be found at https://www.FirstKem.com/privacy/

1.5 We operate on a ‘sell to trade’-only basis for all Goods. It is a condition of the Contract that you are purchasing Goods from us as a business and not as a consumer, and that the Goods will be used by a knowledgeable, qualified and insured person for the purpose intended. We accept no responsibility if the Goods are used by a consumer, are incorrectly used or cause any kind of harm or damage as a result of incorrect use or use by a consumer. We reserve the right to refuse any sale or cancel any Contract if we have grounds to believe that you are not a business customer or the Goods will not be used by a qualified professional.

2. QUOTES

2.1 Your order shall only be deemed to be accepted when we issue a written acknowledgement of the order (Order Acknowledgement) at which point and on which date a formal and binding contract between you and FirstKem shall come into existence in accordance with these Conditions (Contract). For the avoidance of doubt, we shall not be required to accept orders which you place and any acceptance shall be at our sole discretion.

2.2 These Conditions apply to the Contract to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

2.3 Any quotation given by us shall not constitute an offer, and is only valid for a period of 30 days from its date of issue, unless otherwise stated.

2.4 Due to current volatility within the global supply chain, prices and lead times for parts not in-stock are subject to change without notice. FirstKem may request an adjustment to quoted and acknowledged pricing and/or lead times.

2.5 All prices in the currency as noted on the quotation.

2.6 Unless other terms have been agreed to, all online orders will have a Minimum Order Value (US $35.00) and no line minimum. This minimum is waived for all orders placed direct with a salesperson.

2.7 Any special request (e.g., manufacturer certification, test reports, first article inspections, special packaging) that were not noted on the quote request may incur an additional fee.

2.8 When a quote is limited to quantity on hand, product availability will be subject to prior sale.

2.9 O-rings, wire, cable, and fasteners are subject to +/- 10% shipping tolerance. (Chargeable)

2.10 Quotes are valid for a single shipment unless otherwise noted. Additional fees may apply for multiple shipments.

2.11 Unless otherwise stated, prices quoted do not include the cost of any dies, jigs, tooling, mold or molds, necessary to manufacture the subject merchandise.

2.12 An item noted as “Special Order” is subject to a cancellation fee of up to 100% of the quoted price.

2.13 Orders may be subject to a cancellation fee.

2.14 Request for deferral of shipment may be accommodated up to 90-days from the customer’s original requested shipment date; subject to approval.

2.15 Payment terms and credit limits are subject to change and will be reviewed at time of order placement.

2.16 Please see links for more information regarding FirstKem Terms and Conditions for Sales Orders and Warranty.

2.17 All quotes are for factory new products unless otherwise specified.

2.18 The Contract constitutes the entire agreement between us. You acknowledge that you have not relied on any statement, promise, representation, assurance or warranty made or given by or on behalf of us which is not set out in the Contract.

2.19 Any samples, drawings, descriptive matter or advertising issued by us and any descriptions of the Goods or illustrations contained in any documents forwarded to you or published on our website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or have any contractual force except where expressly provided in these Conditions or expressly incorporated in our Order Acknowledgement.

3. Sales Orders

3.1 ORDER ACKNOWLEDGMENT

Upon request, FirstKem will acknowledge receipt of hard copy purchase orders, and their acceptance or denial.

3.2 ORDER MINIMUMS

Unless other terms have been agreed to, all online orders will have a $35 Minimum Order Value, and no line minimum. The $35 per order minimum is waived for all direct orders placed with a salesperson.

3.3 ORDER CANCELLATION

An item noted as “Special Order” is subject to a cancellation fee of up to 100% of the quoted price, per section 2.12. Orders may be subject to a cancellation fee.

3.4 PRICING & LEAD TIMES

Due to current volatility within the global supply chain, prices and lead times for parts not in-stock are subject to change without notice. FirstKem may request an adjustment to quoted and acknowledged pricing and/or lead times.

Parts shown without prices are subject to FirstKem Standard Terms and Conditions for Quotes.

4. Delivery of Goods

4.1 We shall deliver the Goods to the address set out in the Contract (or as otherwise agreed by us) (Delivery Location). We shall deliver the Goods FOB Origin unless agreed otherwise.

4.2 Delivery of the Goods shall be completed as soon as they’re loaded onto the transportation mode.

4.3 Any dates quoted for delivery of the Goods are approximate only, and the time of delivery is not of the essence. We shall not be liable for any delay in delivery of the Goods that is caused by an Event Beyond Our Control (as defined below) or your failure to provide us with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.

4.4 If you fail take delivery of will call Goods within 7 days of us notifying you that the Goods are ready, then except where such failure or delay is caused by you suffering an event similar to an Event Beyond Our Control or by our failure to comply with our obligations under the Contract in respect of the Goods:
(a) at our discretion we shall store the Goods until delivery takes place and invoice you for all related costs and expenses (including insurance).

4.5 Where we are required to re-deliver Goods we shall be entitled to charge you any additional delivery and administration charges we incur.

4.6 If 14 days after we notified you that the Goods were ready for delivery you have not accepted or taken delivery of them, we may resell or otherwise dispose of (or destroy, in the case of expired Goods) part or all of the Goods and may charge you for any shortfall below the price of the Goods in addition to any other losses we suffer.

4.7 You shall not be entitled to reject the Goods if we deliver up to and including 5 per cent more or less than the quantity of Goods ordered, but a pro-rata adjustment shall be made to the relevant invoice on receipt of notice from you that the wrong quantity of Goods was delivered provided that where we deliver less than the quantity of Goods ordered you inform us of such discrepancy within 72 hours of delivery. Any discrepancy in the number of packages delivered must be notified to us immediately after delivery. Discrepancies can be notified to us using our online contact form on our website or by emailing it to us on [email protected] or [email protected] ).

4.8 We may deliver the Goods by installments, which shall be invoiced and paid for separately. Each installment shall constitute a separate contract. Any delay in delivery or defect in an installment shall not entitle you to cancel any other installment.

4.9 If we fail to deliver the Goods our liability shall be limited to the costs and expenses incurred by you in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. We shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by an Event Beyond Our Control, your failure to provide us with adequate delivery instructions for the Goods or any relevant instruction related to the supply of the Goods.

4.10 Request for deferral of shipment may be accommodated up to 90-days from FirstKem’s original promise date; subject to approval.

5. Quality of Goods

You shall be entitled to the benefit of any guarantee or warranty provided from the manufacturer of the relevant Goods to the extent we can enforce or assign such guarantee or warranty. Where you believe any Goods to be defective, please follow the processes set out at clause 12 below.

6. CERTIFICATION

For parts and raw material, a copy of the manufacturer certificate of conformance and/or a FirstKem certificate of conformance (a charge may be required) will be provided upon request. Additional certifications may be available upon request.

7. PACKAGING

Products are packaged and/or stored in a manner that provides adequate protection from normal hazards.

8. WARRANTY

FirstKem warrants that each part shall at the time of delivery conform to the applicable original manufacturer’s specifications and description and be free from defects in material and workmanship to the extent of manufacturers coverage.

8.1 Customer’s remedy and FirstKem liability, with respect to a defect in material or workmanship, is limited to the Manufacturers or their distributors coverage and respective remedies at FirstKem option. Such remedies are conditioned upon: (i) receipt by FirstKem of written notice of a defect from customer no later than thirty (30) days after expiration of the applicable warranty period; (iii) prompt return of defective material at customer’s expense to FirstKem; and, (iv) sufficient information to substantiate customer’s claim. 

8.2 FirstKem shall not be liable under this Warranty for any defect resulting from material having been exposed or subjected to: (i) Any alteration, modification, maintenance, repair, installation, handling, transportation, storage, operation or use that is improper or otherwise not in compliance with FirstKem or the original manufacturer’s instructions and/or standard industry best practices, unless caused by FirstKem; (ii) Any accident, contamination, foreign object damage, abuse, neglect, or negligence after delivery to buyer, unless caused by FirstKem; or, (iii) Any damage precipitated by any material not supplied by FirstKem.

8.3 FirstKem further assigns to buyer any rights FirstKem is provided as distributor or supplier of materials under any warranty provided by any original manufacturer of material.

9. Title, Risk, and US Export Regulatory Compliance

9.1 The risk in the Goods shall pass to you upon shipment by FirstKem. Shipment is considered to have occurred upon the goods leaving the dock.

9.2 Title to the Goods shall not pass to you until the earlier of:
(a) us receiving payment from you in full (in cash or clear funds) for: –
(i) the Goods; and
(ii) any other goods that we have supplied to you in respect of which   payment has become due,
(b) you reselling or using the Goods, in which case title to the Goods shall pass to you immediately before the time at which resale by you occurs and you resell as a principal and not as our agent.

9.3 Statement of Compliance with US Export Regulations

It is FirstKem’s policy to verify the End use and End user in all sales of FirstKem products and in all transfers of technical data or software to ensure compliance with applicable United States export control laws and regulations. Because the products you are purchasing, or software or technology you are licensing, may be exported and used outside of the United States, you must confirm you will comply with the following:

1. You will not export or re‐export any FirstKem products, technology or software to Cuba, Iran, Libya, North Korea, Russia, Sudan, Syria, or any other country on the United States Debarred List, OFAC, ITAR, or EAR; as applies to the specific material purchased – unless otherwise authorized by the United States Government.
2. You will not sell, transfer, export or re‐export any FirstKem products for use in activities which involve the development, production, use or stockpiling of nuclear, chemical or biological weapons or missiles, nor use FirstKem products in any facilities which are engaged in activities relating to such weapons.
3. You acknowledge that United States law prohibits the sale, transfer, export or re‐export or other participation in any export transaction involving FirstKem products with individuals or companies listed in the United States Commerce Department’s Table of Denial Orders, the United States Treasury Department’s list of Specially Designated Nationals or the United States Department of State’s list of individuals debarred from receiving Munitions List items and other applicable lists, i.e. Entity List.
4. You will abide by all applicable United States export control laws and regulations for all products purchased from FirstKem and will obtain any licenses or approvals required by the United States Government prior to export or re‐export of FirstKem products, software or technology.

10. Charges and payment terms

10.1 The price for the Goods shall be the price set out in the Contract. The costs and charges of transport, packaging and insurance shall be as set out in the Contract or as otherwise notified to you at or before the time of your order.

10.2 We reserve the right to increase the price of the Goods, by giving notice to you at any time before delivery, to reflect any increase in the cost of the Goods to us that is due to:
(a) a manifestly incorrect price being displayed on our website or in any catalog or quotation;
(b) any factor beyond our control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labor, materials and other manufacturing costs);
(c) any request by you to change the delivery date(s), quantities or types of Goods ordered; or
(d) any delay caused by any of your instructions in respect of the Goods or your failure to give us adequate or accurate information or instructions in respect of the Goods.

10.3 We shall be entitled to invoice you on or at any time after receipt of your order (or deemed order in the case of vendor-managed inventory or consignment stock arrangements).

10.4 Shipments to customers who have not established credit terms will be made on an ACH or credit card payment basis. Credit card payments will include a 3.5% processing fee.

1. To establish open terms with FirstKem, a customer must provide five trade references and 1 Bank reference – using the New Customer Application Form.
2. Where at our sole discretion we agree to give you credit terms (which we shall be entitled to revoke at any time), you shall pay each invoice submitted by us:
   (i) within 30 days of the date of the invoice; and
   (ii) in full and in cleared funds to a bank account nominated in writing by us, and time for payment shall be of the essence of the Contract.

10.5 Payments from customers who have been given credit terms can be paid via ACH or wire transfer or a check mailed to the address shown on the invoice within thirty (30) days of the FirstKem invoice date. Invoices commence at the time of shipment.

10.6 FirstKem reserves the right to modify or cancel credit terms and/or credit limits at any time without notice, and require guaranteed security or payment in advance for the amount of the order.

10.7 All amounts payable by you under the Contract are exclusive of amounts in respect of any taxes chargeable from time to time. Where any taxable supply is made under the Contract by us to you, you shall, on receipt of a valid tax invoice from us, pay to us such additional amounts in respect of tax as are chargeable on the supply of the Goods at the same time as payment is due for the supply of the Goods.

10.8 If you fail to make any payment due to us under the Contract by the due date for payment, then you shall pay interest on the overdue amount at the rate of 1.5% per month, together with an administration fee of $50 per overdue invoice. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount.

10.9 You shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding except as required by law. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.

10.10 You warrant that any credit or debit card you use to make a purchase from us is your own card or your business’s card, that you are authorized to use it, and that there are sufficient funds or credit facilities to cover the cost of any Goods you order from us. We reserve the right to obtain validation of your credit or debit card details before providing you with any Goods.

11. Limitation of liability

11.1 Nothing in these Conditions shall limit or exclude our liability for:
(a) death or personal injury caused by our negligence, or the negligence of our employees, agents or subcontractors;
(b) fraud or fraudulent misrepresentation

11.2 Subject to clause 11.1:
(a) we shall under no circumstances whatsoever be liable to you, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
(b) our total liability to you in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price paid under the Contract. 

11.3 Your attention is drawn to the provisions of clause 1.5 above.

11.4 EXCLUSION OF LIABILITIES. THE WARRANTIES, OBLIGATIONS AND LIABILITIES OF FirstKem AND THE REMEDIES OF CUSTOMER SET FORTH IN THIS AGREEMENT ARE EXCLUSIVE. CUSTOMER HEREBY WAIVES, RELEASES AND RENOUNCES ALL OTHER WARRANTIES, OBLIGATIONS AND LIABILITIES OF FirstKem, AND ALL OTHER RIGHTS, CLAIMS AND REMEDIES OF CUSTOMER AGAINST FirstKem, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY NON CONFORMANCE OR DEFECT IN ANY PARTS OR OTHER GOODS PROVIDED UNDER THIS AGREEMENT OR ANY ORDER, INCLUDING BUT NOT LIMITED TO: (A) ANY WARRANTY OF MERCHANTABILITY OR FITNESS; (B) ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE; (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY IN TORT; AND, (D) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM OR REMEDY FOR LOSS OF OR DAMAGE TO ANY AIRCRAFT OR PART. FirstKem WILL HAVE NO OBLIGATION OR LIABILITY, WHETHER ARISING IN CONTRACT (INCLUDING WARRANTY), TORT OR OTHERWISE, FOR LOSS OF USE, REVENUE OR PROFIT OR FOR ANY OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY NON CONFORMANCE OR DEFECT IN ANY PARTS OR OTHER GOODS PROVIDED UNDER THIS AGREEMENT OR ANY ORDER.

12. Termination

12.1 Without limiting our other rights or remedies we may terminate the Contract with immediate effect by giving written notice to you if:
(a) you commit a material breach of your obligations under this Contract and (if such breach is remediable) fail to remedy that breach within 7 days after receipt of notice in writing to do so;
(b) you are (or are deemed to be or we reasonably believe you are about to become) insolvent, bankrupt or suffer an event analogous thereto or are otherwise unable to pay your debts;
(c) you suspend or threaten to suspend, or cease or threaten to cease to carry on, all or a substantial part of your business;
(d) a change of control occurs in relation to you (A change of control is a change in a company’s ownership or management that results in the decision-making capacity of that entity being exercised by a different group of shareholders and/or directors); or
(e) your financial position deteriorates to such an extent that in our opinion your capability adequately to fulfill your obligations under the Contract has been placed in jeopardy.

12.2 Without limiting our other rights or remedies, we may terminate the Contract with immediate effect by giving written notice to you if you fail to pay any amount due under this Contract on the due date for payment.

12.3 Without limiting our other rights or remedies, we may suspend all further deliveries of Goods under the Contract or any other contract between you and us if you fail to pay any amount due under this Contract on the due date for payment, you become subject to any of the events listed in clause 12.1(a) to clause 12.1(e), or we reasonably believe that you are about to become subject to any of them.

12.4 On termination of the Contract for any reason:
(a) you shall immediately pay to us all of our outstanding unpaid invoices and interest and, in respect of Goods supplied but for which no invoice has yet been submitted, we shall submit an invoice, which shall be payable by you immediately on receipt;
(b) you shall return any property belonging to us (including but not limited to any stock held at your premises on a consignment basis). If you fail to do so, then we may enter your premises and take possession of it. Until our property has been returned, you shall be solely responsible for its safekeeping and will not use it for any purpose not connected with this Contract;
(c) the accrued rights and remedies of the parties as at termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and
(d) clauses which expressly or by implication have effect after termination shall continue in full force and effect.

12.5 Where you terminate the Contract without our prior written consent and for any reason other than for our breach of the Contract then you shall indemnify us in full against all loss (including but not limited to any direct, indirect or consequential losses and loss of profit), costs and expenses incurred by us as a result of the termination.

13. Return of goods

13.1 If you believe any Goods to be defective, please complete our online contact form on our website, or email us at [email protected] or [email protected] ) within 7 days of delivery. Provided we are able to enforce a warranty or guarantee from the relevant manufacturer, we shall provide you with a Return Materials Authorisation (“RMA”) number. Returned goods will not be accepted without an RMA Number. Do not write directly on the manufacturer’s packaging. Please write the RMA number on an address label and attach it to the returned package. Any defacement of the manufacturer’s packaging or damage caused by inadequate packaging may result in the rejection of the return or an additional restocking fee, at our sole discretion.

13.2 We cannot accept liability for packages damaged during transit. It is your responsibility to pack the Goods adequately to prevent damage.

13.3 Proof of postage is not proof of delivery and you are therefore strongly advised to send your package by recorded delivery, registered post or courier, and to insure the Goods for their full value.

13.4 On receipt of the returned Goods, we will inspect them to identify the defect you have notified us about. If following our inspection, the Goods are found to be in good order without defect, we will return them to you and you shall reimburse our delivery charges in doing so. Unless the defect would not be immediately apparent, we will not accept the return of any defective Goods not notified to us within 7 days of delivery.

13.5 We may (exceptionally and at our sole discretion) agree to accept the return of unwanted Goods. You must first obtain an RMA number from us and any such Goods must be returned within 14 days of delivery in perfect re-saleable condition. We shall be entitled to apply a handling fee of 15% of the price of the Goods or $75 (whichever is the greater) and provide any refund in the form of a credit note. Any refund shall not include the original delivery charges.

13.6 RETURN POLICY

1. ORDERED IN ERROR BY CUSTOMER: Products ordered in error by a customer may be returned to FirstKem for credit within 90 days after the product was shipped. A restocking charge of a minimum of 25% will apply against the original invoice. FirstKem will not accept raw material returns, expired or shelf life controlled parts nearing expiration or items that were quoted as ‘Special Order’. The customer will bear all return shipping charges.
2. Customer returns in aggregate in the current calendar year cannot exceed 5% of all purchases for the previous calendar year.

     (c) The value of the return will come in the form of a store credit that can be used against future purchases or against current AR balances.

13.7 SHIPPED IN ERROR BY FirstKem: Products shipped in error by FirstKem (including those incorrectly identified) may be returned to FirstKem for credit within 30 days after the product was shipped. Transportation charges for the return will be borne by FirstKem.

14. Purchase Orders

14.1 PRICE. This is a firm price order.

14.2 TERMS OF PAYMENT. Invoices shall be dated no earlier than date of shipment or delivery of service. The discount period begins upon receipt required delivery date, or date any applicable discrepancy is resolved, whichever date is later. Buyer will pay non-discountable invoices thirty (30) days after receipt/delivery of goods & acceptance, or the date any applicable non-conformity is resolved, whichever date is later.

14.3 ATTACHMENTS. Documents designated by Buyer in the body of the Purchase Order, including supplemental terms and conditions, if any, are incorporated by reference the same as if set out in full therein.

14.4 CHANGES. The Buyer reserves the right at any time to issue a written change order or amendment to the Purchase Order concerning any of the following: (a) specifications, drawings, and data incorporated in the Purchase Order where the items to be furnished are to be specially manufactured for the Buyer; (b) quantity; (c) methods of shipment or packaging, (d) place of delivery, (e) time of delivery; or (f) any other matters affecting this Purchase Order.

14.5 TERMINATION. Buyer may terminate the Purchase Order for its convenience, in whole or in part, at any time prior to shipment by (written or electronic) notice to Seller. Upon receipt of such termination notice, Seller shall promptly comply with the directions contained in such notice and shall, as required, (a) take action necessary to terminate the work as provided in the notice, minimizing costs and liabilities for the terminated work, and (b) continue the performance of any part of the work not terminated by Buyer.

14.6 ASSIGNMENT. Seller may not assign, transfer, or subcontract this Purchase Order or any right or obligation hereunder without Buyer’s written consent.

14.7 EXCUSABLE DELAY. Fires, floods, strikes, accidents, or other causes beyond the reasonable control of the parties, which prevent Seller from delivering, or Buyer from receiving, any of the goods and services covered by this Purchase Order, shall suspend deliveries until the cause is removed, subject, however, to Buyer’s right of termination for convenience under Section 14.5. If Seller fails to deliver for any delay not excusable, they shall be responsible for any pricing difference including shipping and admin fees for any product not delivered that needed to be procured elsewhere.

14.8 PACKAGING, PACKING LIST, AND BILL OF LADING AND DELIVERY. Seller shall be responsible for proper packaging, loading, and tie-down to prevent damage during transportation. Buyer’s weight and/or count will be accepted as final and conclusive on all shipments not accompanied by a packing list. Delivery to Buyer shall be construed as the on dock date at Buyers facility (required date) as noted on PO. Buyer will not accept shipments prior to one week in advance of the required dock date unless otherwise authorized in writing.

14.9 INSPECTION. All goods and services furnished hereunder will be subject to inspection and test by Buyer at all times and places and will be subject to Buyer’s final inspection and approval within a reasonable time after delivery. It is the supplier’s responsibility to ensure that all product, assembly, material and process specifications reflect the latest revision levels, acceptable documentation, and remaining shelf life requirements. If Seller delivers non-conforming goods, Buyer may at its option and at Seller’s expense: (i) reject and return the goods for credit or refund; (ii) require Seller to promptly correct or replace the goods; (iii) correct the goods; or (iv) obtain replacement goods from another source. Seller shall not redeliver corrected or rejected goods without disclosing the former rejection or requirement for correction. Seller shall disclose any corrective action taken. Repair, replacement and other correction and redelivery shall be completed within the original delivery schedule or such later time as Buyer may reasonably direct. All costs, expenses and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this purchase order or another. Payment for any goods or services shall not be deemed acceptance and in no event shall Buyer incur any liability for payment for rejected goods or services. All lot controlled components must come with full traceability to an OEM regulated source. 

14.10 WARRANTIES. By accepting this Purchase Order, Seller warrants that the goods and services furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings, and data; including minimum remaining shelf life requirements as specified on the PO or 75% if not specified, and Seller’s descriptions, promises, or samples, and that such goods will be fit for the Buyer’s intended use, provided Seller has reason to know of such use, and that Seller will convey good title to the goods, free and clear from all liens, claims, and encumbrances. Upon Buyer’s request, Seller shall furnish Buyer with a formal waiver or release of all liens by Buyer and/or Buyer’s suppliers. Seller warrants that goods or services covered by this Purchase Order shall not infringe any patent, design, mask work, copyright or trademark, of any third party, either directly or contributory. Seller agrees to indemnify Buyer and hold Buyer harmless from and against all liability, loss, damage and expense, including reasonable counsel fees and costs of litigation, resulting from any claim of infringement and any litigation relating thereto. In the case where goods or a part thereof are held to constitute infringement and the use of the goods or a part thereof is enjoined, Seller shall, at the expense of Seller, either (a) procure for the Buyer the rights to continue to using the goods, (b) replace the goods so that the goods become non-infringing, or (c) retake the goods and refund the purchase price and transportation and installation cost of the goods to Buyer. Such obligations shall survive acceptance of the goods or services and payment therefore by Buyer. Where applicable, the Seller warrants that the goods covered by this Purchase Order are in compliance with all laws, regulations, rules, and orders relating to the importation of goods into the United States, the exportation of goods out of the country of origin, the transit of goods through intermediate countries and the sale and use or foreign made goods in the United States. Seller further warrants that it has obtained all permits, licenses, and certifications necessary for the goods to be exported out of the country of origin, imported in the United States, delivered to Buyer and used or sold within the United States.

14.11 TITLE; RISK OF LOSS. Title shall pass to Buyer upon Buyer’s receipt & verification of goods at destination. Risk of loss of all goods shall remain in Seller until receipt by Buyer at destination, unless otherwise specified in this Purchase Order, except for loss occasioned by gross negligence or willful neglect of Buyer or its customer.

14.12 CONFIDENTIALITY; LIMITED USE. Unless otherwise agreed by Buyer in writing, Seller shall keep confidential and not disclose to any third party, any confidential and/or proprietary materials provided by Buyer to Seller in connection with Seller’s performance of this Purchase Order or prepared by Seller specifically for Buyer pursuant to this Purchase Order, including but not limited to any drawings, masters, software, specifications, raw materials, components, data, business information or plans, customer lists or other customer information (“Confidential Information”). Seller shall not make any copies of Confidential Information except as specifically authorized by Buyer in writing. At the completion of this Purchase Order, or upon Buyer’s request, Seller shall promptly return to Buyer all Confidential Information not consumed in the performance of this Purchase Order, together with any copies in Seller’s Possession. Seller shall use Confidential Information solely for Seller’s performance of this Purchase Order for Buyer, and Seller shall not, without Buyer’s written consent, directly or indirectly use Confidential Information or information derived there from in performing services or providing goods for any other customer of Seller, or any other person or entity.

14.13 RESOLUTION OF CONFLICTS OR INCONSISTENCIES OCCURING IN THE ORDER. It is Seller’s responsibility to comply with this Purchase Order and all referenced documents, and to clarify with Buyer any inconsistencies or conflicts in any parts of the Purchase order or referenced documents. Should Seller fail to contact Buyer to resolve conflicts or inconsistencies, Seller will be solely responsible for errors resulting from said conflicts or inconsistencies. Where documents are referenced, the version in effect at the time of order placement shall apply.

14.14 BUYER’S TERMS AND CONDITIONS APPLY. Acknowledgment of the Purchase Order, shipment of any goods, or commencement of work pursuant to the Purchase Order shall be deemed an acceptance of these General Terms and Conditions. No modification of or release from this Purchase Order shall be binding unless agreed to in writing by the parties and specifically labeled as a modification or release. Unless specifically agreed to otherwise by Buyer and Seller, these terms and conditions supersede any submitted by Seller in any proposal or acknowledgment.

14.15 EXTRA CHARGES. No charges for extras or for cartage, boxing, storage, or late fees will be allowed unless the same has been agreed upon in writing by Buyer. All goods must be forwarded in accordance with Buyer’s shipping instructions, otherwise the difference in freight rate will be charged to Seller.

14.16 SUBSTITUTIONS. No substitution of materials or accessories may be made without written permission from Buyer.

14.17 WORK PERFORMED ON BUYER’S OR BUYER’S CUSTOMER’S PREMISES. If Seller’s work under the Purchase Order involves operations by Seller on the premises of Buyer or one of Buyer’s customers, Seller shall take all necessary precautions and such additional precautions as Buyer or Buyer’s customer may prescribe to prevent the occurrence of any injury to persons or property during the progress of such work and, except to the extent that any such injury is due solely and directly to Buyer’s or Buyer’s customer’s negligence, shall indemnify Buyer against all claims, liability, damage, or loss (including expenses and attorneys’ fees) which may result in any way from any act or omission of the Seller, or Seller’s agents, employees, or contractors; and shall maintain such public liability, property damage, and employer’s liability and compensation insurance as will protect Buyer and Buyer’s customer from said risks and from any claims under any applicable worker compensation and occupational disease acts.

14.18 INDEMNIFICATION. Seller agrees to indemnify, defend, and hold Buyer harmless from and against all losses, damages, liability, actions, judgments, costs, and expenses (including, but not limited to, reasonable attorneys’ fees and other expenses of litigation), suffered, incurred, or asserted by or against Buyer (a) by reason of Seller’s breach of a warranty, (b) by reason of Seller’s breach of any term of this Purchase Order, or (c) by reason of personal injury, including death, or property damage sustained by a third party, resulting from or arising out of an act or omission of Seller, or Seller’s agents, employees, or contractors in fulfillment of this Purchase Order.

14.19 CUMULATIVE REMEDIES; WAIVERS; SURVIVAL OF WARRANTIES. The remedies herein reserved to Buyer shall be cumulative, and additional to any other or further remedies provided in law or equity. No waiver by Buyer of any term or condition of this Purchase Order shall be construed as a permanent waiver of such term or condition or of any other term or condition. Seller’s warranties shall survive the completion or cancellation of this Purchase Order.

14.20 GOVERNING LAW. This Purchase Order shall be governed by the laws of the State of Florida, U.S.A, except for its provisions regarding principles of conflicts of laws, and except to the extent that federal communications law shall apply. Any court action arising under this order shall be venued in Broward County, Florida, U.S.A., in either federal or state court, as is appropriate.

14.21 “GOODS” AND “SERVICES”. The term “goods” as used herein means any and all Abrasives, Adhesives, Chemicals, Epoxies, Janitorial & Cleaning Products, Lubricants & Greases, Mil Spec Consumables, Packaging Supplies, Paints & Inks, Personal Safety Equipment (PPE), Plastic & Protective Films, Raw Materials / Metals, Sealants, Solvents, Tapes, Wire, Cable, Lacing, Tying, materials, parts, products, technical data, computer software, computer software documentation, and other tangible items or documentary information furnished or required to be furnished by Seller under this order. The term “services” means any and all technical assistance, support, maintenance, consultation, construction work, and other effort furnished or required to be furnished by Seller under this order other than labor furnished in connection with the production of goods.

14.22 ENTIRE AGREEMENT. Unless superseded by a specific signed agreement between Buyer and Seller, this agreement shall include the Purchase Order, these General Terms and Conditions, and all attachments referred to in the Purchase Order or in the General Terms and Conditions, and it shall constitute the entire agreement of the parties with regard to the subject matter contained herein. All other prior or contemporaneous representations, warranties, covenants, or agreements between Seller and Buyer, or their representatives, with respect to the subject matter are hereby superseded. The term “Purchase Order” as used herein means the first and continuation pages of FirstKem’s completed Purchase Order form, including any special provisions contained therein. This agreement may not be modified except by mutual written agreement of the parties.

14.23 DISPUTES/ATTORNEY’S FEES CLAUSE. Disputes/Attorney’s Fees. Any dispute that arises under it or related to this purchase order that cannot be settled by mutual agreement of the parties may be decided by a court of competent jurisdiction, and the parties agree to and consent to Jurisdiction in Broward County, Florida. Pending final resolution of any dispute, Seller shall proceed with performance of this purchase order according to Buyer’s instructions so long as Buyer continues to pay amounts not in dispute. The prevailing party in any action filed regarding this order shall be entitled to recover its attorney’s fees as a part of the claim.

14.24 ANTI-KICKBACK CLAUSE. Gratuities/Kickbacks. Seller agrees not to provide or offer any representative, officer, director or employee of the Buyer, or any member of such person’s family, any favors, gifts, gratuities or favorable treatment for the purpose of securing this purchase order or any future business opportunities.

14.25 NEW MATERIALS. The work to be delivered hereunder shall consist of new materials, no used, or reconditioned, unless specifically requested, and in no case of such age as to impair its usefulness of safety.

14.26 EXTERNAL PROVIDERS AWARENESS. Providers are to ensure that they have a process in place to make persons aware of:

• Their contribution to product or service conformity
• Their contribution to product safety
• The importance of ethical behavior

14.27 COMMUNICATIONS. Methods of communication for any means of acknowledgement, update, requesting change, correction, or addition shall be in writing. Additional criteria regarding communications is as follows:

• All communications, requested documents, notifications, acknowledgements, certifications, reports shall be in English.
• External providers shall inform FirstKem within 24 hours of discovery of suspected nonconforming product or material having been shipped regardless of destination.
• External providers shall inform FirstKem of any changes in its certification, registration, or accreditation within 48 hours of receiving notification of the change.

15. Events Beyond our Control

15.1 For the purposes of any Contract, an Event Beyond Our Control means an event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes, failure of a utility service or transport network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of third party suppliers or subcontractors.

15.2 We shall not be liable to you as a result of any delay or failure to perform our obligations under this Contract as a result of an Event Beyond Our Control.

15.3 If the Event Beyond Our Control prevents us from providing any of the Goods for more than 4 weeks, we shall, without limiting our other rights or remedies, have the right to terminate this Contract immediately by giving written notice to you.

16. General

16.1 For training and quality purposes we may record or monitor all inbound and outbound telephone calls and electronic traffic.

16.2 Assignment and other dealings:
(a) We may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of our rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party.
(b) You shall not, without our prior written consent, assign, transfer, charge, subcontract, declare a trust over or deal in any other manner with all or any of your rights or obligations under the Contract.

16.3 Notices:
(a) Any notice or other communication given to a party under or in connection with this Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally or sent by prepaid first-class post or other next working day delivery service, or by commercial courier or e-mail to [email protected] or [email protected] .
(b) A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 16.3(a); if sent by pre-paid first class post or other next working day delivery service, at 9:00 am on the second business day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by fax or email, one business day after transmission.
(c) The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.

16.4 If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.

16.5 A waiver of any right under the Contract or law is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor prevent or restrict its further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.

16.6 Nothing in the Contract is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, nor constitute either party the agent of another party for any purpose. Neither party shall have authority to act as agent for, or to bind, the other party in any way.

16.7 A person who is not a party to the Contract shall not have any rights to enforce its terms.

16.8 Except as set out in these Conditions, no variation of the Contract, including the introduction of any additional terms and conditions shall be effective unless it is agreed in writing and signed by us.

16.9 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Florida law, and subject to clause 14.20 and 16.10, the parties irrevocably submit to the exclusive jurisdiction of the courts of Florida.

16.10 ARBITRATION

At our option any disputes arising out of or in connection with the Contract, including any question regarding its existence, validity or termination shall be referred to and finally resolved by arbitration under the AAA’s Procedures for Commercial Disputes, which rules are deemed to be incorporated by reference to this clause. The number of arbitrators shall be one. The seat or legal place of arbitration shall be Broward County, Florida and the language of arbitral proceedings shall be English.

16.11 WEB USAGE

By accessing FirstKem web pages, you have agreed to the following terms:

You will preserve all information, data, and computer programs (“Informational Assets”) to which you have access, in confidence, along with any passwords or access procedures given to you to facilitate access, and you will use them solely for authorized purposes.

Usernames and passwords for secure site access are issued at FirstKem discretion upon request.

Secure site users agree to provide current, complete and accurate registration information and to maintain such information to keep it current, complete and accurate.

Secure users are only authorized to access the Informational Assets associated with your user id.

You are not authorized to access or attempt to access any other Informational Assets.

You are not authorized to copy, download, reduce to writing or other permanent form, or otherwise modify any Informational Asset without authorization.

FirstKem reserves the right to monitor, review, or terminate any of your activities without notice, at any time. 

16.12 USE OF INTELLECTUAL PROPERTY

FirstKem hereby authorizes you to view, copy, print, and distribute documents subject to the following conditions:

The document is used for informational purposes only.

The document is used for non-commercial purposes.

Any copy of this document or portion thereof must include this copyright notice in its entirety.

Note that any program, publication, design, product, process, software, technology, information, know-how, or idea described in this document may be the subject of other rights, including other intellectual property rights, which are owned by FirstKem or other interested parties and are not licensed to you hereunder.

16.13 USE OF INFORMATION/WARRANTIES

This document and the information contained herein are provided “as is,” and FirstKem makes no express or implied representations or warranties regarding this document or its information. Without limiting the foregoing, FirstKem does not warrant that the document or information will be error-free or will meet any particular criteria of performance or quality. FirstKem expressly disclaims all implied warranties, including, without limitation, warranties of merchantability, title, fitness for a particular purpose, non-infringement, compatibility, security, and accuracy.

Your use of this document and information is at your own risk. You assume full responsibility and risk of loss resulting from the use of this document or information. FirstKem will not be liable for any special, indirect, incidental, consequential, or punitive damages or any other damages whatsoever, whether in an action of contract, statute, tort (including, without limitation, negligence), or otherwise, relating to the use of this document or information.

16.14 COPYRIGHTS AND TRADEMARKS

The name “FirstKem,” the FirstKem logo, product names, and all page headers, footers, and icons are trademarks or registered trademarks of FirstKem and MOPZB2, LLC. All other product names mentioned herein are the trademarks of their respective owners.

16.15 THIRD PARTY LINKS

Certain links in the FirstKem Web server may lead to resources maintained by third parties over whom FirstKem has no control. FirstKem makes no representations or warranties as to the accuracy of, or any other aspect relating to, those resources.