Jedwards International, Inc. Terms and Conditions of Sale
1. Controlling Document – Jedwards International, Inc. (“Jedwards”) hereby accepts the Buyer’s order pursuant to and conditioned on the Buyer’s assent to the terms and conditions set forth herein, and Jedwards agrees to furnish goods (the “Product” or “Products”) only upon these terms and conditions. This document constitutes the entire agreement between the parties. Differing terms and conditions shall require a separate written agreement. THE TERMS OF THIS AGREEMENT SHALL SUPERSEDE ANY CONFLICTING TERMS CONTAINED ON THE BUYER’S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER. No course of prior or current dealings between the parties and no usage of trade shall be relevant to, supplement or explain any term nor shall course of prior or current dealings constitute a waiver of any of the terms contained herein. Photocopies, electronic copies and facsimile transmissions of documents shall be effective as originals and shall be considered a “writing” between the parties. Buyer is deemed to have accepted the Terms and Conditions contained herein upon shipment of the Product.
2. Prices and Taxes - Buyer shall pay Jedwards the standard price for Product(s) listed by Jedwards on the date Jedwards ships the Buyer’s order or any price expressly quoted by Jedwards in writing to the Buyer. Jedwards reserves the right to change the price on future orders of Products. All prices listed or quoted shall be exclusive of delivery charges, taxes, customs, duties, or other customary shipping fees unless otherwise expressly stated
3. Shipment - Jedwards is committed to meeting Buyer’s requirements for Product delivery. Any shipping or delivery dates as indicated by Buyer or Jedwards are estimates only, and Jedwards shall have no liability to Buyer for failure to complete delivery of an order by the date indicated or for any of Buyer’s incidental, indirect or consequential damages arising from a delay. Jedwards shall ship Product to Buyer F.O.B. Origin, with packaging and carriers as designated by Jedwards, unless otherwise specified in writing between the parties. Jedwards’ title to Product passes to Buyer upon delivery of Product to the carrier for shipment, with carrier acting as Buyer’s agent. Buyer assumes the risk of loss for Product in transit and shall be responsible for obtaining insurance, if desired. Jedwards will not consider any claim for non-conforming Product or shortages (“Non-Conformances”) unless Buyer complies with the notice and authorization requirements set forth at paragraph 6. Buyer may not return Product without Jedwards’ written authorization. If a return is authorized, Buyer shall return all non–conforming Product within 10 days after receipt of authorization, and shall ship the Product F.O.B. Destination. All approved returns of conforming products are subject to a restocking charge of 20% computed at original invoice value. When retest is required, Buyer will be charged an additional $250.00 per Product lot. All Product sought to be returned must be within the lot expiry period and received not later than 45 days after originally shipped by Jedwards. All returns must be sent to Jedwards International, Inc., 39 Broad Street, Quincy, MA 02169 Attn: Warehouse unless otherwise directed by Jedwards. All unauthorized returns will become the property of Jedwards and no credit will be issued. Product for which delivery is suspended pending payment by Buyer, as well as Product of which delivery is wrongfully rejected or not accepted by Buyer, shall be held and stored by Jedwards at risk and expense of Buyer. Special delivery terms may apply contract Jedwards for details.
4. Terms of Payment - Payment for Product shall be due as of the payment date stated on the Jedwards’ invoice. Any overdue payment may be subject to a late payment charge of l.5% per month (18% per year) or the highest amount permitted by law, whichever is less. Unless otherwise indicated in writing, each shipment shall be considered an independent transaction and payment therefore shall be made accordingly. All orders are subject to approval of Jedwards credit department. If in the judgment of Jedwards the financial condition of the Buyer at any time does not justify continuance of shipment on the terms of payment specified, Jedwards may require full or partial payment in advance. In the event of bankruptcy or insolvency of Buyer, or in the event of any proceeding brought by or against Buyer under insolvency laws, Jedwards shall be entitled to cancel any order of the Buyer then outstanding and shall receive reimbursement from Buyer for Jedwards’ cost as of the date of cancellation. Buyer authorizes Jedwards to investigate Buyer’s credit and financial standing, Buyer will supply any financial information reasonably requested by Jedwards, Jedwards agrees to hold such information confidential, and Jedwards’ reserves the right to require Buyer’s principles to guaranty payment on any order before, during or after fulfillment of any order. Jedwards shall maintain a priority purchase money security interest in the Product (and replacement) delivered hereunder and in the proceeds from the sale and disposition thereof, until Buyer has made payment in full for such Product. Buyer shall, upon request by Jedwards, execute all documents (such as UCC-l) necessary to perfect such security interest in Product. Jedwards has the right, upon demand, to repossess Product delivered hereunder if Buyer fails to make timely payment. All payments shall be made without any deduction and free of any set-off or other counterclaim.
5. Marking Requirements – All Products purchased from Jedwards and repackaged must be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the container will permit in such a manner as to indicate the English name of the country of origin of the article to the ultimate purchaser in accordance with the requirement of 19 U.S.C and 19 CFR Part 134.
6. Inspection - Buyer shall be responsible for inspecting and examining all Product shipped hereunder prior to acceptance. Buyer shall give Jedwards written notice of rejection specifying the alleged Non-Conformance within five days following delivery to Buyer. Failure to provide such written notice of rejection within the five days of delivery shall be deemed to be acceptance of the Product by the Buyer as of the date of shipment. Any resale, commingling, alteration or incorporation of the Product by the Buyer shall be deemed acceptance of the Product as of the date of shipment.
7. Warranty - There are no express warranties hereunder. The liability of Jedwards for any claim brought by the Buyer is limited, at Jedwards’ option, solely to replace the Product, or apply an appropriate credit adjustment not to exceed the sales price of the Product to Buyer. If the claim is relative to Non-Conformance, Buyer is only entitled to the remedies listed above provided that (a) Jedwards is notified in writing by Buyer within five days of receipt of alleged Non Conformance setting forth the alleged Non-Conformance, date of purchase, date of receipt, and invoice number; (b) Buyer shall set aside and hold such Product without further use or processing until Jedwards advises Buyer as to the proper disposition of the Product; and (c) unless shortage, the Products returned to or inspected by Jedwards, and Jedwards determines that Non-Conformance exists, and was not caused by negligence, misuse, improper storage, or accident. Buyer shall have no right to “cover” by procuring substitute goods at the expense of Jedwards. JEDWARDS HEREBY MAKES NO OTHER WARRANTY EXPRESSED OR IMPLIED. JEDWARDS EXPRESSLY EXCLUDES THE IMPLIED WARRANTIES OFMERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE, AND ALL OTHER OBLIGATIONS OR LIABILITIES ON THE PART OF JEDWARDS. JEDWARDS NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR JEDWARDS ANY LIABILITIES. UNDER NO CIRCUMSTANCES SHALL JEDWARDS, ITS AFFILIATES, SUPPLIERS, SUBCONTRACTORS OR AGENTS BE LIABLE TO THE BUYER OR ANY OTHER PERSON FOR ANY KIND OF SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGE, LOSS OR EXPENSE. Buyer’s remedies under this Agreement for any claim against Jedwards shall be solely and exclusively limited to replacement of the Product or a credit not to exceed the sales price of the Product to the Buyer. Said choice of remedy shall be in the sole discretion of . This section sets forth the sole and exclusive remedy against Jedwards. No action may be taken against Jedwards for breach of this Agreement more than one year after the accrual of the cause of action.
8. Intellectual Property - All specifications, designs, data methods, patterns, and ideas made, used, conceived, developed or acquired by Jedwards incident to its performance under this Agreement and all patent, trade-secret, know how, copyright, trademark or other proprietary right therein shall be the exclusive property of Jedwards, and no part of the purchase price hereunder shall be deemed applicable to acquisition of or licenseing of the foregoing unless otherwise agreed to in writing by Jedwards. No licenses to any intellectual property of Jedwards (including use of trademarks and trade names) are granted to Buyer. JEDWARDS HEREBY MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER ABOUT THE NON-INFRINGEMENT OF ANY THIRD PARTY’S INTELLECTUAL PROPERTY.
9. Force Majeure - Jedwards shall be relieved of the performance of its obligations for the duration and to the extent that it is prevented in the performance of its obligations by reasons of force majeure. For purposes of this clause, force majeure is defined as circumstances or events which may have not been foreseen at the time of entering into this transaction, which are not the fault of Jedwards and which prevent the performance of all obligations hereunder and which are not capable of being remedied. Force majeure events include, but are not limited to, acts of God, acts of war, acts of the Government, acts of Buyer, inability to obtain necessary labor, materials or manufacturing facilities, blockades, revolutions, industrial disputes and commercial impracticality.
10. Equal Employment Opportunity - Jedwards represents that it does not discriminate against its employees or applicants for employment on the grounds of race, color, religion, sex, sexual orientation, national origin or any other protected category. Jedwards complies with Executive Order 11246.
11. Indemnification - Buyer shall indemnify, defend, and hold Jedwards, its employees, suppliers, and agents harmless from and against any and all liabilities, damages, injuries, claims (irrespective of the legal theory on which any claim is based), suits, judgments, causes of action, and expenses (including attorneys’ fees, court costs and out-of-pocket expenses) suffered or incurred by Jedwards as a result of any action or omission by Buyer its employees or agents.
12. Assignability – Jedwards may assign or subcontract all or any portion of its right or obligations with respect to sale of the Product or assign the right to payment without Buyer’s consent. Buyer may not assign these Terms and Conditions, or any of its rights or obligations herein without prior written consent of Jedwards subject to the restrictions in assignment contained herein. These Terms and Conditions will be binding on and inure to the benefit of the parties hereto and their successors and assigns. No portion of thisAgreement will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties.
13. Law and Jurisdiction - This agreement shall be deemed to be made in Massachusetts and governed in all respect by Massachusetts law. The parties to this agreement irrevocably consent to the exclusive jurisdiction of the Courts of the Commonwealth of Massachusetts. If any portion of this Agreement is found by a Court of competent jurisdiction to be invalid, illegal or otherwise unenforceable, the same shall not affect the remainder of this Agreement.