Terms & Condition of sale
JERHEN INDUSTRIES, INC. ("Jerhen")
EFFECT OF THESE TERMS AND CONDITIONS.
These Terms, Conditions of Sale, and Warranty govern the sale by Jerhen Industries, Inc. (referred herein as "Seller"), and you (referred herein as "Buyer") for the purchase of the products, machinery, parts, goods and other materials (herein referred to as the "Product" or "Products") and for services of any kind (including, but not limited to) factory rebuild or refurbishing of equipment, inspection services, equipment maintenance or equipment installation (collectively, “Services”). These Terms and Conditions of Sale may be updated from time to time in Seller’s sole discretion. Buyer's order of Products or Services from Seller constitutes Buyer's acceptance of all terms and conditions contained herein, even if different terms or conditions are specified by Buyer's order. You are hereby notified of Seller's objection to and rejection of any additional terms in a purchase order, which are different to or conflict with these Terms, Conditions of Sale, and Warranty, other forms or documents. In case of conflict between the Terms and Conditions of the Agreement and the terms and conditions of any other document, including Buyer's purchase order, the Terms and Conditions of the Agreement shall govern. The effective date of the parties' (Buyer & Seller) agreement (the "Effective Date") shall be the date that Seller receives from Buyer Buyer's purchase order or signed quote. On the Effective Date, these Terms, Conditions of Sale and Warranty shall be legally binding and have full force and effect and constitute the agreement of the parties (the "Agreement"). Upon the Effective Date, all former understandings, former proposals and writings are hereby deemed to be superseded by the Agreement. The parties acknowledge and agree that there have been and are no inducements to contract, no representations made for the purpose of inducing a contract, and no considerations other than those expressly set forth in the Agreement.
DURATION; PAYMENT TERMS; TAXES.
Unless otherwise stated in a quotation, order acknowledgment or proposal, the price set forth in any proposal or quotation by Seller is valid only for thirty (30) days; and prices are for the quantity specified in the order acknowledgment, proposal or quotation. Prices may be reasonably adjusted by Seller where Seller encounters price changes or circumstances beyond Seller's control. Seller may charge a cancellation charge for orders cancelled by Buyer. All payments made to Seller for Products or Services sold under the Agreement shall be made, without setoff, to the address as set forth on the invoice. Late payments shall be subject to interest on the unpaid balance at the rate of 1.5% per month. Pro-rata payments shall become due as shipments are made. If shipments are delayed by the Buyer, date of readiness for shipment will be deemed date of shipment for payment purposes. Any taxes or additional costs due to federal, state, or municipal legislation, to which the Agreement is subject, will be paid by Buyer.
WARRANTIES AND REMEDIES.
(a) Products. Products are warranted, to the original Buyer for use, to be free of defects in material and workmanship within such tolerances as may be customary in the industry for a period of (a) ninety (90) days from delivery to Seller’s dock for all vision inspection machines and (b) for all other Products one (1) year from the date of delivery to Seller’s dock or one million (1,000,000) cycles, whichever comes first. Seller, at its option, will repair or replace, or refund the purchase price of any Products which fail within the warranty period and are found upon examination by Seller to be defective in material or workmanship, or both. This warranty does not cover failures attributable to improper use or maintenance, exceeding rated capacity, alteration, accident, normal wear of moving parts, or damages caused by shipment. Any components not manufactured by Seller are excluded from this warranty. For warranty on such components, refer to applicable manufacturer's warranty. Buyer must give written notice to Seller at the address shown below of any warranty claim within thirty (30) days after failure, and if so instructed, return to Seller the Products to be replaced or repaired, with all transportation charges prepaid by Buyer, and Buyer’s failure to do so voids this warranty. Buyer must obtain a return authorization number from Seller prior to any return, and items returned without such return authorization number will be refused by Seller. Replacement Products will be invoiced to Buyer, with credit issued for Products covered by this warranty and freight thereon. Removal and reinstallation of replacement Products shall be at Buyer's expense. (b) Services. (i) Onsite repair Services will be performed in a workmanlike manner and there are no other warranties of any kind. Buyer must give written notice to Seller at the address shown below of any warranty claim within 14 days of any asserted breach of this warranty and failure to do so voids this warranty. (ii) Inspection Services will be performed in a workmanlike manner and there are no other warranties of any kind. Buyer must give written notice to Seller at the address shown below of any warranty claim within 30 days of any asserted breach of this warranty, and failure to do so voids this warranty. (iii) Rebuild/Refurbishing Services – any portion of a machine rebuilt or refurbished by the Seller shall have the same warranty as provided by Seller for Seller Products as set forth in paragraph (a) of this section. (c) THE WARRANTY OF SELLER SET FORTH HEREIN IS EXCLUSIVE AND IS GIVEN BY SELLER AND ACCEPTED BY BUYER IN LIEU OF ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. ALL SUCH OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED BY SELLER AND WAIVED BY BUYER.
EXCLUSIVE REMEDIES AND WAIVER.
Seller's sole liability to the Buyer for breach of the above warranties shall be the remedies set forth above. Seller shall have no other liability to the Buyer in connection with the Product or Service, whether claimed in contract, equity, tort (including negligence, gross negligence or strict liability) or otherwise, for or resulting from any Products or Services. Buyer waives any and all claims relating to spoilage of Buyer supplied materials that may occur as part of Seller's machine set up.
DISCLAIMER OF DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SELLER DISCLAIMS AND SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (OR EQUIVALENTS THEREOF NO MATTER HOW CLAIMED, COMPUTED, OR CHARACTERIZED), ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, ITS SUBJECT OR ITS PERFORMANCE OR BREACH OF PERFORMANCE BY SELLER, REGARDLESS OF WHETHER ANY SUCH LIABILITY SHALL BE BASED UPON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE AND STRICT LIABILITY), VIOLATION OF LAW OR OTHERWISE AND WHETHER THE CLAIM IS BROUGHT AT LAW OR IN EQUITY. IN NO EVENT SHALL ANY DAMAGES WHICH MAY BE PAYABLE TO BUYER EXCEED THE AMOUNT PAID BY BUYER TO SELLER FOR THE PRODUCT OR SERVICES DESCRIBED IN BUYER’S ORDER OR AS LIMITED BY SELLER’S ACCEPTANCE. By way of example of the foregoing disclaimer, but without limiting in any manner its scope or application, Seller shall not be liable for all or any part of the following losses, costs or expenses, no matter how claimed, computed, or characterized: lost profit or revenue, lost return on investment, cost of capital, lost operating time or production, lost reduced use or value of any facilities (including existing facilities) or any portion of any facilities, expense of replacement products or power, or increased costs of operations or maintenance. The foregoing disclaimer shall be effective without regard to Seller's performance or failure or delay of performance under any other term or condition of the Agreement. This disclaimer shall be enforceable whether or not any limitation of remedies described herein is deemed to have failed in its essential purpose.
DELAYS AND FORCE MAJEURE.
Seller shall not be liable for any loss or damage for delay or non-delivery due to acts of civil or military authority, acts of the Buyer, or by reason of "Force Majeure." These acts may include, without limitation, any act of God or the public enemy; compliance with any order, decree, or request of any governmental authority; act of declared or undeclared war; public disorder; rebellion; sabotage; fire; flood; explosion; accident; riot; strike; labor difficulty or other concerted act of workmen, whether direct or indirect; declaration of national emergency; mobilization of industry whereby material and labor required for manufacture of the Product or for performance of the Service are allocated or controlled; pandemic-related illnesses causing slow down or closures of a party (including, without limitation, COVID-19); or any other cause not within the control of Seller or which Seller is unable to avoid by exercise of reasonable care. Any delay resulting from such causes shall extend corresponding shipping dates accordingly.
DELIVERY, QUANTITY, TOOLING, SPOILAGE, AND RISK OF LOSS.
Seller will make every reasonable effort to meet the delivery period set forth in the Agreement. Delivery period proposed is an estimate based on conditions on the Effective Date of the Agreement, is extended for holidays, and is subject to change based on Seller’s prior commitments. Seller’s performance is contingent upon the timely performance of Buyer in providing component parts/part samples, prints, and approvals as may be requested by Seller. Delivery is F.O.B. Seller's plant, Rockford, Illinois. Seller’s performance times are extended if delay is a result of Buyer's failure to timely provide component parts/part samples, prints, and approvals as may be requested by Seller. All jigs, fixtures, and tooling are the sole property of Seller. Buyer shall examine items before signing transportation receipt. If items are received damaged, Buyer should insist that the carrier itemize damage on the freight bill and immediately file a damage claim. If shortages occur, Buyer shall notify Seller immediately, as shortage claims cannot be considered unless made in writing within ten (10) days, upon receipt of shipment; and any claim of shortage not timely made is waived. Seller reserves the right to revise specifications and product design. Such changes do not entitle the Buyer to corresponding changes, improvements, additions, or replacements for equipment previously sold.
INTELLECTUAL PROPERTY; SELLER’S PRODUCTS; TECHNICAL INFORMATION.
Seller does not transfer to Buyer, or Buyer’s customer, any patent, trade secret, trademark, service mark, copyright, or other intellectual property right related to the Products or Services, other than the right to incorporate or use the Products or Services purchased from Seller. Seller shall retain title to all designs, sketches, drawings, patterns, special appliances, and materials furnished or paid for by Seller in connection with this Contract. Neither party shall disclose to any third party any information directly or indirectly delivered to the other party or acquired pursuant to this Contract, including, without limitation, business affairs, data, designs, manuals, formulas, supplier and vendor information, processes, methods, pricing, financial and accounting data, products and specifications, systems, and technical information (the “Confidential Information”). Each of Seller and Buyer shall be permitted to disclose Confidential Information of the other party to its own employees, agents, and representatives to the extent such disclosure is reasonably necessary for the performance of its duties and obligations or the enjoyment of its rights under this Contract; provided, however, that each of Seller and Buyer shall be responsible for any violation of the confidentiality obligations set forth in this Contract by and of such permitted this parties to which it provides Confidential Information.
WAIVER AND ASSIGNMENT.
Waiver by Seller of any breach by Buyer of any of the terms or provisions of the Agreement shall not be deemed to be a waiver of breach on any other occasion. The Agreement shall not be assigned or transferred by Buyer without prior consent of Seller. Subject to the foregoing, the Agreement shall inure to the benefit of and be binding upon the successors, legal representatives, and permitted assigns of the parties thereto.
TRADE USES; GOVERNING LAW; FEES; COLLECTION.
All trade uses and customs of Seller's industry shall apply to this sale and shall constitute part of the Agreement between Seller and Buyer to the extent not inconsistent herewith. Typographical and clerical errors are subject to correction. Until paid in full for the purchase price, Seller retains a security interest in all Products delivered to Buyer, and the products and proceeds thereof, for the purpose of securing payment of any and all indebtedness of Buyer to Seller arising out of the Agreement, together with all costs and expenses in connection therewith, including, but not limited to, expenses of retaking, preserving, repairing, maintaining, preparing for sale, and selling said collateral as well as reasonable attorneys’ fees, court costs, and other legal expenses. The Agreement, its administration and performance, and all the rights, obligations, liabilities and responsibilities of the parties thereto, shall be governed by and interpreted in accordance with the laws of the State of Illinois, without regard to Illinois conflict of laws principles. Any and all litigation will be brought exclusively in Winnebago County, Illinois, and Buyer consents to the jurisdiction of the federal and state courts located therein, submits to the jurisdiction thereof, and waives the right to change venue. Buyer further consents to the exercise of personal jurisdiction by any such court with respect to any such proceeding. Seller shall be awarded its costs and attorneys' fees incurred in connection with enforcing its rights and remedies as to and against Buyer.
HEADINGS AND NO THIRD PARTY BENEFICIARIES.
Any headings preceding the text of any articles, paragraphs or parts of the Agreement are inserted solely for convenience of reference and are not to be considered a part of the Agreement nor shall they affect in any manner the meaning, interpretation or effect of the Agreement. Seller does not intend to give anyone other than the Buyer the benefit of, and no person or entity shall be a third-party beneficiary of these Standard Terms and Conditions and/or the Agreement.
CREDIT CARD PURCHASES.
The following additional terms are in effect for any purchase made by Buyer using credit cards for payment. In the event of conflict between the credit card purchase terms and other provisions of these Terms, Conditions of Sale and Warranty, THERE IS NO WAIVER TO THESE TERMS FOR CREDIT CARD PURCHASES. When Buyer completes a purchase from Seller using a credit card for payment, it agrees to be bound by the terms. Buyer acknowledges that Buyer is the credit card holder authorized to make the purchase using the credit card. ALL SALES ARE FINAL THERE ARE NO RETURNS, REFUNDS, OR CANCELLATIONS ACCEPTED. Buyer agrees that if Buyer files a chargeback with its credit card company in regards to purchases made from Seller, Buyer agrees to reimburse Seller for all costs and expenses including cost of the merchandise, shipping, restocking, research costs, employee down time, any representative Seller may appoint to investigate and for any expenses, including costs of suit and legal fees, incurred due to Buyer's actions. Buyer further agrees that if it initiates a chargeback on a valid, authorized purchase, which was delivered, Buyer authorizes Seller to recover the amount of the chargeback and any fees referenced above by any means deemed necessary. If a return is due to refusal of delivery forcing Seller to pay return shipping charges, Seller will charge Buyer the cost of return shipping in addition to the initial purchase price and shipping costs. Buyer agrees that in accordance with the no return policy, it will not initiate chargeback proceedings with its credit issuer.