CONDITIONS OF SALE
All transactions between Joseph Machine Company, Inc. (“JMC”) and the purchaser (“Purchaser”) concerning goods or services sold by JMC (“Products”) shall be exclusively and entirely governed by the following terms and conditions and any rider, attachment or replacement attached thereto notwithstanding any conflicting or additional terms set forth in any document submitted by the Purchaser.
These terms and conditions of sale will be in effect for any sale of goods, which are proposed by an authorized quotation (1a) provided by an authorized representative of JMC (2a). Additional terms and condition of sale may be included with specified quotation. However, in event of conflict with authorized quotation, the terms and conditions set forth in this notice will supersede. No other supplementary or additional agreement between JMC and a Purchaser will be binding on or enforceable against JMC unless said agreement has been specifically accepted in writing by JMC. JMC will assume Purchaser understands and accepts all stipulated terms and conditions of this notice upon receipt of valid purchaser order and initial deposit moneys towards items purchased.
1a. Authorized Quotation
An authorized JMC quotation will included a valid quotation number and will be dated and created by an authorized JMC representative (2a). Items for sale will be clearly specified with adequate description, quantity, and price per quantity on JMC letterhead. No assumptions should be made on behalf of Purchaser regarding quotation outside of those specifications clearly stated on authorized quotation.
2a. Authorized JMC Representative
A proposal or quotation will not be deemed an authorized quotation from JMC unless created by an Authorized JMC Representative. An authorized JMC representative includes exclusively the CEO, COO, VP of Operations, Director of Sales & Marketing, and Senior Sales Engineer or Applications Engineer.
JMC shall transfer ownership and delivery possession to Purchaser, and Purchaser shall pay for and accept the Products described per the authorized quotation hereof.
All drawings, specifications and other material accompanying JMC proposals and quotations or contained in JMC or its principals catalogs or data sheets represents a good faith estimate and are not binding on JMC unless so stated in writing by JMC. Any samples or materials provided by JMC and all technical or commercial information provided to Purchaser by JMC in connection with the sale of its Products are furnished with the understanding that they will be used exclusively by the Purchaser for the sole and specific purpose of evaluating the feasibility of purchasing JMC’s products or services. Purchaser agrees that any materials furnished by JMC are not to be copied, reproduced, transmitted, or otherwise communicated by Purchaser or any of its servants, agents, employees including independent contractors hired by the Purchaser, to a third party without the prior written consent of JMC. If JMC does not confirm and accept Purchaser’s purchase order, Purchaser agrees to return to JMC all drawings, illustrations and other written materials furnished to Purchaser upon JMC’s written request for the same.
The price to be paid by the Purchaser shall be that contained on JMC’s authorized quotation is FOB Dillsburg, PA unless otherwise stated on the authorized quotation. Freight, Insurance, and the cost of unloading and installing the equipment are not included in the purchase price unless otherwise stated. Federal, State and local sales and use tax or other value added taxes are not included in the purchase price unless otherwise stated in JMC’s quotation. Purchaser shall pay the amounts of any present or future taxes imposed on the sale, installation, or use of the Products. If Purchaser claims that a transaction is tax-exempt, the Purchaser shall provide JMC with a tax exemption certificate for the taxation of the transaction to which the Purchaser claims a tax exemption.
The price paid by the Purchaser does not include packaging costs. These will be billed to customer.
Purchaser agrees to make prompt payment of all invoices due in accordance with the Conditions of Sale set forth herein, whether a complete or partial shipment has been made. Standard terms for all products and services are 60% down payment with order, 30% progress payment prior to shipment and the balance is due within net 30 days from date of JMC’s final invoice. The purchase price of the Products shall be payable without deduction of any kind, within such period of time and according to such terms as provided in JMC’s authorized quotation. Any alleged claim against JMC by the Purchaser does not entitle the Purchaser to make deductions or withhold payment. Payments must be made to Joseph Machine Company, Inc. Any payment by Purchaser to a person or any entity may be deemed, at JMC’s sole option, as not effected and making Purchaser fully liable for the purchase price. In the event Purchaser fails to make payments when due, then JMC shall have the right to charge interest at the maximum rate allowed by applicable Pennsylvania State law.
Purchaser shall inspect the Products at JMC’s facility in Dillsburg, PA, prior to shipment. Notice of inspection shall be given to Purchaser via courier, fax or email and failure by Purchaser to affect any inspection within 30 days from receipt of the Notice shall constitute a waiver of inspection and acceptance of the products. The prices set forth on the face hereof do not include any travel, lodging or per diem expenses associated with this inspection by Purchaser or any authorized agents selected to perform said inspection.
Purchaser shall notify JMC of the date or dates of shipment of the Product which shall not be later than the shipping date specified on the face hereof or (if said date is an extended period), “Shipping Date” shall mean not only the date on which the shipment is to be made but also the last day of any mutually agreed extension thereof.
The shipping date of Products requiring inspection by the Purchaser shall be extended by the time required for such inspection. The shipping date can also be extended by the period of time occasioned by any of the following: (a) failure of the Purchaser or his agents to furnish complete and correct technical documentation, down payment or progress payment funds and/or a signed order confirmation as required; (b) revision of specifications by Purchaser or his agent for the manufacture, programming or testing of the goods sold hereunder; (c) failure by Purchaser or his agent to provide timely production run quality extrusions in the quantities specified by JMC for qualification purposes (d) failure by Purchaser or his agent to provide complete shipping instructions for any shipment specified herein; (e) any of the causes set forth in Paragraph 14 hereof. Should any of the foregoing events set forth in Paragraph 14 occur, the provisions of this contract in respect to such shipment shall, without notice, be automatically extended proportionally day by day until such a time as these actions can be cured and the causes set forth in Paragraph 14 have been abated.
Unless otherwise stated in JMC’s quotation, delivery shall be merely indicative, and shall not constitute a guarantee of delivery time in any manner whatsoever. Unless otherwise stated, delivery shall be made on F.O.B. United States point of shipment basis. Delivery will be deemed complete and risk of loss will pass to Purchaser upon delivery by JMC of the goods to the carrier at the carrier’s place of business stated in JMC’s quotation. If delivery to a carrier is at any time delayed due to circumstances for which the Purchaser is responsible, risk of loss will pass to Purchaser five days from dispatch of written notification to the Purchaser that the Products are ready for delivery to a carrier. Partial deliveries of the goods are permitted. In the event of a delay for force majeure as described in this paragraph or Paragraph 14, JMC will be entitled to withdraw in whole or in part from this contract without liability of any kind. If completion or delivery of the goods is delayed due to the fault of the Purchaser, Purchaser shall be charged with all costs and expenses incurred by JMC as a result of the delay plus a reasonable profit on all such costs and expenses.
UNLESS OTHERWISE SPECIFIED IN THE QUOTATION, MACHINERY manufactured by JMC hereunder will be free from defects in workmanship and material for a period of 6 months from transfer of risk per Paragraph 9 hereof. Extension of such warranty will be honored only by express written documentation by JMC or per details specified by authorized quotation. If any such Products fail to meet the foregoing warranties, JMC will correct any such failure by repair or replacement of any defective or damaged part or parts of the Product free of charge relative to the cost of the part(s). Final determination as to whether a Product is defective rests with JMC. JMC’s warranty obligations hereunder shall be limited solely to the repair or replacement of Products that fall within the forgoing limitations, and shall be conditioned upon receipt by JMC from the Purchaser of defect Product found to be defective during the warranty period. In the case of components, units or services provided to JMC from a third party supplier, JMC warranty obligations shall not exceed the settlement that JMC obtains from the third party supplier. Purchaser shall not return any Products to JMC without written authorization and shall be shipped by the Purchaser FOB JMC’s Dillsburg, PA, facility. JMC does not assume responsibility for or accept any invoice for unauthorized repairs to the Products, regardless of the defective condition of the Product. JMC shall not be liable for any damage or defects in the Products arising while the goods are in the hands of a third party.
The warranty contained herein will endure only to the benefit of the Purchaser and may not be transferred to any other person. Should Purchaser at any time transfer this Warranty to another person, JMC’s liability under this Warranty shall cease.
Installation of purchased items will only be included in sales price if detailed on authorized quotation. JMC is not responsible for unloading, unpacking, or placing equipment at Purchaser’s work site. JMC is not responsible for providing plumbing or electrical services outside those services equipped on purchased equipment. If JMC furnishes Purchaser with advice or other assistance concerning any Products supplied hereunder, or any system or equipment in which such Products may be installed, and that is not required pursuant to this agreement, the furnishing of such advice or assistance shall not subject JMC to any liability, whether in contract, warranty, tort or otherwise.
MACHINE DOWN PAYMENTS ARE NON-FUNDABLE. Cancellation of any purchase order will be accepted on the following basis, unless otherwise stated in writing in our formal quotation: all Products will be paid for on the basis of actual cost of labor and material applied to the production or providing of such Products, plus a Fifteen percent (15%) of the purchase price, as a restocking charge. JMC’s estimates are considered final and conclusive and disposition of the Products subject to cancellation will be given within 30 days and will be the prima facie evidence of Purchaser’s agreeing that JMC may dispose of the cancelled material as JMC deems necessary, without further credit to the Purchaser by JMC.
This contract is subject to, and JMC shall not be responsible or liable for, delay directly or indirectly resulting from or contributed to by any foreign or domestic embargoes, seizures, acts of God, acts of public enemies or insurrection, war and/or continuance of war or the adoption or enactment of any law, ordinance, regulation, ruling or order directly or indirectly interfering with or rendering more burdensome the production, delivery or payment hereunder, also delays in or lack of the usual means of transportation, riots, fires, floods, explosions, strikes or other labor disputes, delays of suppliers, inability to procure materials or labor, shortages or reduction in energy sources, inability to secure fuel, material supplies, or power at current prices; priorities, allocations, limitations, restrictions or other acts required or requested by federal, state or local governments or any subdivision, bureau or agency, thereof, or other acts or contingencies beyond JMC’s control. In the event that any one or more deliveries hereunder are suspended or delayed by reasons of any one or more of the occurrences or contingencies aforesaid, any and all deliveries so suspended or delayed shall be made after such disability has ceased to exist and nothing herein contained shall be construed as lessening in any event the full amount of merchandise herein purchased and sold as only deferring delivery and payment in the events and to the extent herein provided.
JMC shall, at its sole discretion, credit Purchaser’s account for the purchase price of, provide a replacement for or repair, any goods (or component parts hereof) manufactures or sold by it which its examination discloses to its satisfaction to have been defective when supplied, provided JMC receives actual notice from Purchaser of such alleged defect within Fifteen (15) days of (i) the discovery of the alleged defect; or (ii) the expiration of the applicable warranty, whichever is earlier. Claims not made within such period shall conclusively be deemed waived by Purchaser. If requested by JMC, the goods shall be returned to JMC for examination, at Purchaser’s cost. No allegedly defective goods may be returned to JMC without a proper return authorization number or written authorization by JMC. Any action for breach of this contract for sale of goods or any other action arising out of or relating to this contract, or the breach thereof, must be commenced within Six (6) months after the cause of action has occurred. The foregoing shall not limit the time within which any suit or action may be brought by JMC to collect any sums agreed to be paid pursuant to this contract by Purchaser.
THE REMEDIES SET FORTH HEREIN SHALL CONSITUTE THE EXCLUSIVE REMEIDIES AVAILABLE TO PURCHASER AND ARE IN LIEU OF OTHER REMEDIES, EXPRESS OR IMPLIED; AND THE LIABILTY OF JMC, WHETHER IN CONTRACT, TORT, UNDER ANY WARRANTY OR OTHERWISE, FOR ANY COMMERCIAL LOSS, SHALL NOT EXCEED THE PURCHASED PRICE OF THE PARTICLUAR GOODS MANUFACTURED, SOLD, SUPPLIED OR FURNISHED BY JMC UNDER THE CONTRACT ON WHICH THE LIABILTY IS BASED.
The purpose of the foregoing stipulated exclusive remedy is to provide the purchaser with a credit or replacement for, or the repair of, defective goods in the manner provided herein. The exclusive remedy shall not be deemed to have failed of its essential purpose so long as JMC is willing to credit the Purchaser’s account for the purchase price of, provide replacement for, or repair, the defective goods in the manner prescribed herein.
The Purchaser at its sole cost and expense shall obtain all permits, licenses, or authorizations necessary for the purchase, importation, installation, or use of the Products. In the event JMC’s scope of supply includes any computer software, Purchaser will not receive title to the software but will receive a non-exclusive user license, subject to any additional terms issued by JMC in writing separately from these Conditions of Sale.
Purchaser shall assign no right or obligation under this agreement without the prior written consent of JMC. Should any single provision or subparagraph of this Condition of Sale be deemed invalid, the balance thereof will remain binding and enforceable in accordance with its terms and conditions.
This notice is intended by JMC as the final expression of their terms and conditions. No course of prior dealings between the parties and no usage of the trade shall be relevant to supplement or explain any term used in this contract. Acceptance or acquiescence in a course of performance rendered under this contract shall not be relevant to determining the meaning hereof even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection. Whenever a term defined by the Uniform Commercial Code is used in this contract, the definition contained in the UCC, as adopted in the State of Pennsylvania, is to control. No modification in this contract shall be binding unless expressly agreed to in writing and signed by a duly authorized JMC officer in a document making specific reference to this contract and specifically stating that it amends this contract. No waiver by the Purchaser or JMC of any default shall be deemed a waiver of any default, which thereafter may occur.
Purchaser agrees to defend, protect, and save JMC harmless against all suits in law or equity and from all costs of suit, legal fees and expenses, damages, claims and demands arising out of or awarded in connection with the manufacture, sale or use of the goods sold hereunder to meet Purchaser’s drawings, specifications, or other data furnished to JMC by Purchaser, including but not limited to, claims for actual or alleged infringement of any United States patent, trademark, copyright, trade secret or proprietary right.
This agreement which is in English shall be interpreted in accordance with the commonly understood meaning of the words and phrases hereof in the United States of America, and the performance of the parties hereto shall be construed and governed according to the laws of the State of Pennsylvania, United States of America including the Uniform Commercial Code as adopted in such state.
Any dispute, controversy or claim arising out of or in conjunction with this Agreement, or the breach, termination, or invalidity thereof, shall be submitted, decided and resolved with finality by arbitration in accordance with the Commercial Arbitration Rules, including the Supplementary Procedures for International Commercial Arbitration, of the American Arbitration Association, as amended and in effect, at the time of such dispute, controversy or claim. The arbitration shall be conducted by three (3) arbitrators, one as appointed by the Purchaser, one as appointed by JMC and a third neutral arbitrator being nominated by the other two arbitrators so selected. If the two appointed arbitrators cannot agree on the third arbitrator then the American Arbitration association in accordance with its rules will appoint one.
The arbitration will be conducted in English and shall take place in the Greater Harrisburg Area, as the exclusive forum for resolving such disputes, claims or controversies.
The decision of the arbitrators shall be binding upon the parties hereto, and the expense of the arbitration including the award, attorney fees and arbitrator’s expenses shall be paid as the arbitrators determine. The decision of the arbitrators shall be final, and any court of competent jurisdiction thereon may enter judgment.
All remedies set forth herein are exclusive and in no event, whether in contract, tort, (including negligence), strict liability, indemnity or otherwise, shall JMC be liable for indirect, special, incidental or consequential damages of any nature including but not limited to loss of profits, scrap, plant down time, loss of use, increased cost of production, damage to goodwill or business reputation.