General Terms and Conditions of Sale and Delivery
No other terms or conditions shall be of any force or effect unless otherwise specifically agreed upon by Jepson in a writing duly executed by Jepson. Any additional or different terms or conditions contained in Customer's order or response to Jepson’s confirmation shall be deemed ob-jected to by Jepson and shall not be binding on Jepson. No general terms and conditions of Customer shall at any time form a part of any agreement between the Customer and Jepson, even if such terms and conditions are not expressly rejected by Jepson.
These Terms supersede any and all prior oral quotations, communications, agreements or understandings of the parties in respect of the sale and delivery of the Products and shall supersede any and all other terms and conditions contained in any Order (as defined below) placed by Customer or otherwise communicated by Customer.
Jepson’s failure to object to terms and conditions communicated by Customer shall in no event be construed as an acceptance of any other terms and conditions. Any communication or conduct of Customer which confirms an agreement for the delivery of Products by Jepson, as well as acceptance in whole or in part by Customer of any delivery of Products from Jepson, shall be construed as Customer’s acceptance of these Terms.
If Customer finds any provision in these Terms not acceptable, Customer must so notify Jepson immediately and must reject the Products delivered under these Terms. Deviations from these Terms require Jepson’s prior written approval.
2. Offers, Orders and Confirmation
Jepson shall sell and deliver to Customer, and Customer shall purchase and accept from Jepson, the Products described in any order, agreement or quotation, or any combination thereof (an “Order”).
All offers made by Jepson are revocable at any time and subject to change without prior notice to Customer. Jepson may refuse an Order for any or no reason. Information on the Products, such as specifications, measurements and descriptions, contained in catalogs, advertisements, handouts, solicitation letters, or other materials are not binding on Jepson, and may be changed by Jepson at any time without any liability to Customer. No Order is binding upon Jepson until the earlier to occur of Jepson’s acceptance of the Order in writing or the delivery of the Products to the Customer (a “Confirmed Order”). Not-withstanding any prior written confirmation of an Order by Jepson, Jepson shall have no obligation to deliver Products to Customer or otherwise perform any of its obligations set forth in a Confirmed Order or herein if Customer is (i) in breach of any of its obligations hereunder or such Confirmed Order, (ii) insolvent or Jepson has reason to believe that Customer lacks the ability to pay its debts as they become due.
Each Confirmed Order shall be considered a separate agreement between the parties to purchase and sell Products, and any failure to deliver Products under any Con-firmed Order shall have no consequences for other deliveries.
The price of the Products shall be as published in Jepson’s current price list in effect at the time of the Order unless otherwise quoted in writing by Jepson. A price list is available on request. Unless otherwise agreed by Jepson in writing, all prices set forth in such price list are subject to change without prior notice to Customer.
The price of Products shall not include packaging, sales or use tax or any other similar applicable federal, state or foreign taxes, duties, levies or charges in any jurisdiction in connection with the sale or deliver of the Products (“Taxes”). Such Taxes shall be payable by Customer and, if Jepson is responsible for the collection thereof, such Taxes shall either be added to the price invoiced or be separately invoiced by Jepson to Customer. Should any unforeseeable increases in Jepson’s cost of materials or labor occur after the date of any Confirmed Order, Jepson shall, in its sole discretion, be entitled to increase the agreed prices accordingly.
4. Payment Terms
Unless otherwise agreed in writing by Jepson, the purchase price for the Products to be delivered under a Confirmed Order and all other amounts due in connection therewith shall be due and payable in US dollars within thirty (30) days following the date of Jepson’s invoice for such Products without any discount, deduction or offset whatsoever. In no event shall any loss, damage, injury or destruction, force majeure events or any other event beyond Jepson’s control release Customer from its obligation to make the payments required herein. Payment of all amounts due hereunder shall be made by check, wire transfer, or credit card in the manner set forth on Jepson’s invoice.
Time is of the essence for the payment of all amounts due to Jepson under any Confirmed Order. If Customer fails to make payment of any amount when due, Customer shall pay interest to Jepson at the rate of one and one-half percent (1.5%) per month or such lesser amount as may be permitted by applicable law starting from the due date until payment of such amount in full. If Customer fails to comply with these Terms or the terms of any agreement between Jepson and Customer, or if Customer becomes insolvent, all balances then due and owing to Jepson shall become due immediately, notwithstanding any agreed-upon payment periods. All costs and expenses incurred by Jepson with respect to the collection of overdue payments (including, without limitation, reasonable attor-ney’s fees, expert fees, and other expenses of litigation) shall be borne by Customer. Every payment by Customer shall first be applied to pay for Jepson’s cost of collection, then interest owed by Customer, and then to the oldest outstanding claim.
If Jepson extends credit to Customer for the purchase price for any Products or any other amounts due to Jepson, Customer hereby grants to Jepson as security for the timely payment and performance of all Customer’s payment obligations to Jepson, a first priority security interest (the “Security Interest”) in all Products heretofore or in the future delivered to Customer for as long as such Products shall not have been sold by Customer in the ordinary course of business (the “Collateral”). Jepson shall be entitled to file any and all financing, continuation or similar statements under the Uniform Commercial Code in any jurisdiction, and take any and all other action necessary or desirable, in Jepson’s sole and absolute discretion, to perfect its security interest in the Collateral and to establish, continue, preserve and protect Jepson’s security interest in the Collateral. Customer agrees to take any and all actions and provide Customer with all information neces-sary to enable Jepson to perfect and enforce this security interest in all jurisdictions and vis-à-vis any of Customer’s creditors. This security interest shall remain in force until payment in full of the entire purchase price for such Products and any other amounts due to Jepson by Customer. Jepson may, without notice, change or with-draw extensions of credit at any time.
5. Delivery and Acceptance
Unless otherwise agreed in writing by Jepson, all deliveries of Products shall be made EX WORKS Jepson’s warehouse at 25, Rockwood Place Englewood NJ, 07631-4900 (per Incoterms 2010) and title to and risk of loss for the Products shall pass to Customer upon delivery thereof to Customer’s common carrier. If Customer requests that Jepson organize transportation on Customer’s behalf, Jepson or its agent may select, without any liability to Customer, any commercial air, ship, motor or rail carrier or any combination thereof for the transportation of the Products and will notify Customer thereof in the Order Confirmation. Jepson shall not be responsible for any acts or omissions of any such carrier.
Any delivery times or dates communicated by or on behalf of Jepson are estimates and shall not be binding on Jepson. Jepson may make partial delivery of Products to be delivered under any Confirmed Order and invoice Customer separately for such partial deliveries. In no event shall Jepson be liable for any delay in delivery, and no delay in delivery of any Products shall relieve Customer of its obligation to accept delivery thereof and make payment of any amounts due in accordance with these Terms
Jepson shall not be liable for any delays in delivery if such delay was caused by Customer’s failure to provide the specifications required to manufacture the Product. Customer’s failure to accept delivery of any Products pursuant to a Confirmed Order shall not release or excuse Customer from its obligation to timely pay all amounts due in connection with such Confirmed Order. If Customer rejects or revokes acceptance of Products or fails to pay any amounts when due, Jepson, in its sole and absolute discretion, may extend the period of delivery by such period as Jepson may deem reasonable, or withhold or cancel delivery of any Products, or cancel any or all Confirmed Orders without any further obligations to Customer whatsoever. In such event Customer shall be responsible for any and all costs and expenses incurred or damages or losses suffered by Jepson in connection with any such delay not-withstanding any action or inaction by Jepson with regard to such delay.
In the event Jepson delivers Products to Customer for export, Customer shall deliver exclusively to countries agreed with Jepson in writing. Upon Jepson’s request, Customer shall provide Jepson with written documentation regarding the export of the Products including but not limited to information about the delivery location.
Customer represents and warrants that it has obtained the necessary permits and authorization to use and resell the Products in the respective jurisdictions.
6. Examination and Conformity to Order
Promptly upon receipt of any Products, Customer shall conduct a full and complete inspection of such Products as to any defects and to confirm compliance with all re-quirements of the applicable Confirmed Order. Customer shall notify Jepson or any authorized Jepson dealer in writing of any apparent defects or non-compliance of such Products with the applicable Confirmed Order that Customer has or could reasonably have discovered during such inspection within fourteen (14) days from the date of receipt of such Products, and Customer shall notify Jepson in writing within fourteen (14) days of the date on which Customer shall first have become aware of any hidden defect or non-compliance which could not reasonably have been discovered during Customer’s initial inspection of the Products. Notwithstanding anything to the contrary contained herein, any and all claims for defective or non-compliant Products under this Section 6 must be received by Jepson within six (6) months of the earlier to occur of (a) the delivery of the Products pursuant to these Terms or (b) Jepson’s notification of Customer that the Products are ready for delivery. Such complaint shall include a copy of the invoice or bill of sale issued to Customer for the sale of the defective Product.
If Customer fails to timely notify Jepson of any defects or other non-compliance of any Products delivered or Customer uses, destroys or modifies any Products that Customer knows or should have known to be defective or non-compliant without Jepson’s prior written consent, Customer shall be deemed to have unconditionally ac-cepted such Products and waived all of its claims for breach of warranty or otherwise in respect of such Products.
Products that Jepson consents or directs Customer in writing to be returned shall be returned to Jepson at Cus-tomer’s risk to the destination directed by Jepson.
Unless otherwise agreed in writing by Jepson, all equipment, samples to support the sales provided by Jepson to Customer to enable Customer to use the Products shall re-main the sole property of Jepson.
7. Limited Warranty
With respect to the Products, Jepson warrants to Customer that the Products will be free of defects in material and workmanship and conform with the requirements set forth in the applicable Confirmed Order for a period of one (1) year from the date of delivery (the “Warranty Period”); provided that the Products are used for the purpose intended and are maintained, handled, serviced and operated in accordance with Jepson’s written instructions and manuals and are not altered, modified or repaired unless such alteration, modification or repair shall have been authorized by Jepson in writing (the “Limited Warranty”).
Except for the Limited Warranty, Jepson makes no other warranties with respect to the Products, and no person is authorized to make any warranties on behalf of Jepson that are inconsistent with such Limited Warranty. ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED.
Except as otherwise set forth herein, if any Product defect entitles Customer to a claim under the Limited Warranty, Jepson will, at its sole option, repair, replace or issue a refund for the defective Product. In no event shall any warranty claims be made after expiration of the Warranty Period. The refund amount shall be the amount paid by the Customer for the defective Product less a processing fee of twenty dollars ($20) or such higher amount as Jepson deems appropriate.
All warranty claims shall be void and Jepson shall have no responsibility to repair or replace Products damaged as a result of (a) misuse, improper storage, handling, operation, or maintenance or unauthorized alteration, modification or repair of Products (including without limitation, the use of sawblades or other parts on the Products contrary to written instructions and/or recommendations of Jepson, overloading of the Product beyond its capacity, or repair of the Products by persons other than a service center authorized by Jepson), (b) acts or omissions of Cus-tomer or third parties following delivery of the Product, acts of nature or government, abuse, or other events beyond Jepson ’s control, (c) normal wear and tear.
Unless expressly warranted in writing in any Confirmed Order, Jepson makes no warranty that the Products comply with applicable law, regulations or specifications in any jurisdiction in which the Products may be sold or marketed. Any governmental or other approvals necessary in connection with the sale, marketing, distribution or use of the Products shall be Customer’s sole responsibility.
Customer shall not be authorized to make any warranties that are inconsistent with the foregoing warranty, and any and all such warranties shall in no event be binding on Jepson.
Used Products are sold on an AS IS WHERE IS BASIS, AND THE FOREGOING EXCLUSION AND LIMITATION OF WARRANTIES IN THIS SECTION 7 SHALL APPLY.
8. Limitation of Liability
In no event shall Jepson be liable to Customer for any indirect, incidental, punitive, special or consequential damages, including but not limited to, damages for loss of profits, revenue, goodwill or use, whether in an action in contract, tort, strict liability, or imposed by statute, or otherwise, even if Customer was advised of the possibility of such damages.
Jepson shall not be liable for, and Customer assumes responsibility and shall indemnify and hold Jepson harmless for, any and all claims, including without limitation claims (i) for personal injury or property damages, resulting from the improper use, operation, or maintenance or unauthorized alteration, modification or repair of the Products, Customer’s failure to conform to Jepson’s instructions and/or recommendations, or properly communicate Jepson’s instructions and warnings to users of the Products, or (iii) arising out of the design or specifications provided to Jepson by Customer or on behalf of Customer.
Notwithstanding any of the terms contained herein, Jepson’s liability for any claim – whether based upon contract, tort, equity, negligence or any other legal concept – shall in no event exceed the purchase price paid by the Customer for the Products giving rise to such claim. Customer hereby acknowledges and agrees that the provi-sions of these Terms fairly allocate the risks between Jepson and Customer, that Jepson ’s pricing reflects this allocation of risk, and but for this allocation and limitation of liability, Jepson would not have entered into an agreement with Customer to sell Products to Customer.
In jurisdictions that limit or preclude limitations or exclusion of remedies, damages, or liability, such as liability for gross negligence or willful misconduct or do not allow implied warranties to be excluded, the limitation or exclusion of warranties, remedies, damages or liability set forth in these Terms are intended to apply to the maximum extent permitted by applicable law, and these Terms shall be deemed amended to comply with such limitations or exclusions. Customer may also have other rights that vary by state, country or other jurisdiction.
If any provision contained in these Terms or any Confirmed Order is held by final judgment of a court of competent jurisdiction to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of these Terms or such Confirmed Order, and the remainder of these Terms or such Confirmed Order shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be in-cluded in these Terms, such modification being made to the minimum extent necessary to render such provision valid, legal and enforceable.
In the event of a violation or threatened violation of Jepson’s proprietary rights, Jepson shall have the right, in addition to such other remedies as may be available pursuant to law or these Terms, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that Jepson would suffer irreparable harm.
Customer may not assign its Order or any right or interest therein or any other obligation arising hereunder without Jepson’s prior written consent.
Jepson’s waiver of any breach or violation of these Terms or the provisions of any Confirmed Order by Customer shall not be construed as a waiver of any other present or future breach or breaches by Customer.
The parties hereto are independent contractors and nothing in these Terms will be construed as creating a joint venture, partnership, employment or agency relationship between the parties.
Notices by a party regarding the exercise of rights and obligations under a Confirmed Order must be signed by authorized representatives of such Party, and delivered via courier, mail or e-mail to the other Party’s address indicated in the Confirmed Order, provided that a notice by e-mail shall only be validly given if receipt thereof is acknowledged in writing by the recipient.
10. Entire Agreement; Conflicts
These Terms, including the applicable Confirmed Order, constitute the entire and exclusive agreement of the parties regarding the subject matter hereof and supersedes any and all prior or contemporaneous agreements, communications, and understandings (both written and oral) regarding such subject matter. In the event of a conflict between the provisions of these Terms and the provisions of a Confirmed Order, the provisions of the Confirmed Order will govern and control. These Terms may only be modified or any rights under it waived by a written document executed by both parties.
11. Applicable Law and Jurisdiction
These Terms and the Confirmed Orders shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would defer to or cause the application of the substantive laws of any jurisdiction other than New York.
Any dispute, controversy or claim arising out of or relating to these Terms and any Confirmed Order, including but not limited to the execution, performance or termina-tion thereof or to any issue of liability arising out of the performance of these Terms or any Confirmed Order, which the parties have not been able to settle amicably shall be submitted to the exclusive jurisdiction of the state or federal courts with jurisdiction in the State of New York, City of New York, Borough of Manhattan unless otherwise agreed to by the parties thereto, and each party hereby submits to the exclusive jurisdiction of the courts located in the Borough of Manhattan for such purpose. Each party hereby waives any and all claims, pleas or defenses (including without limitation a plea for forum non conveniens) that would permit such party to seek the jurisdiction of any courts or arbitration tribunals other than those set forth in the preceding sentence.
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS.