Terms and Conditions - End User Direct
TERMS AND CONDITIONS OF SALE
These terms and conditions shall apply to all orders entered into by any customer of the Goods, whichever the case may be (“Buyer”) and JPW Industries, Inc. (“Seller”), and shall be effective as of the earlier of Buyer’s ordering, purchasing, or taking delivery of Goods (“Effective Date”). The term “Goods” means all items sold and/or provided by Seller to Buyer, whether goods, materials, products to be manufactured and delivered, services to be rendered, or any combination thereof.
These terms and conditions and any Seller quotation form submitted herewith or separately shall be collectively referred to hereinafter as the “Agreement.” Seller shall accept orders, sell Goods, and do business only upon the terms and conditions contained in this Agreement, and no variation from this Agreement shall be binding upon Seller unless expressly agreed to in writing by an authorized representative of Seller. Any additional or conflicting provision of any purchase order or other documentation of Buyer (collectively, “Purchase Order”), or prior or later communication from Buyer to Seller, shall have no effect on the purchase of the Goods by Buyer from Seller and are expressly rejected. Seller’s performance shall not be construed as acceptance any provision of a Purchase Order or any provision of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to these terms.
BUYER ACKNOWLEDGES HAVING READ AND AGREED TO THIS AGREEMENT. BUYER’S COMMENCEMENT OF PERFORMANCE, INCLUDING ORDERING, PURCHASING, OR TAKING DELIVERY OF GOODS, SHALL IN ALL CASES CONSTITUTE BUYER’S UNQUALIFIED AND UNCONDITIONAL ACCEPTANCE OF THIS AGREEMENT. BUYER MAY REJECT THIS AGREEMENT BY NOT ORDERING OR RECEIVING ANY GOODS.
Ownership. Buyer acknowledges and agrees that Seller owns and shall retain all right, title, and interest in and to all patents, trademarks, copyrights, and all industrial and other intellectual property rights and protections that are associated with, related to, or embodied in the Goods, however arising and whether registered and unregistered, including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to applicable law, rule, and regulation throughout any part of the world (“Seller IP”). Buyer shall not acquire any ownership interest in any of the Seller IP under this Agreement or otherwise in connection with Buyer’s purchase of the Goods. If Buyer acquires any rights in the Seller IP by operation of law or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the parties. Buyer shall not take any action that might interfere with any of Seller’s rights in or to the Seller IP or alter, obscure, or remove any of Seller’s trademarks, copyright, or other proprietary notices placed on the Goods, marketing materials, or other materials that Seller may provide.
Price. If any price quotation is provided by Seller, such price quotation shall be good only for a period of thirty (30) days from the date of such quote, unless a shorter period is specified in the quote or unless Seller revokes the quote prior to the expiration of the applicable period. Thereafter, the price for Goods sold hereunder shall be the Seller’s price in effect as of the date of order. All prices are F.O.B., the Seller’s distribution center, unless otherwise stated. Prices also do not include any federal, state, or local taxes or other governmental charges upon or with respect to the sale, purchase, manufacture, delivery, storage, processing, use, or consumption of any of the Goods provided hereby. Prices are stated and payable in U.S. dollars.
Cancellation. Buyer may not suspend or cancel orders placed with Seller, except with Seller’s prior written consent and then only if Buyer reimburses Seller for all losses incurred due to such suspension or cancellation, including without limitation, all incidental and consequential damages and expenses arising therefrom. Direction from Buyer to suspend or cancel any order may be treated as repudiation, making Buyer immediately liable for loss, expense and other damages sustained. Seller shall have the right, without penalty or liability, to cancel or reject any orders at any time for any reason.
Delivery. In all other cases, title to and risk of loss for the Goods shall pass to Buyer upon delivery of the Goods by Seller to the common carrier for delivery. If Buyer does not specify shipping instructions, Buyer hereby authorizes Seller to make shipping arrangements on Buyer’s behalf and Buyer shall be responsible for all costs and expenses associated therewith. All timeframes provided by Seller, whether verbally or in writing, are good faith estimates of the expected delivery date for the Goods. Seller shall use commercially reasonable efforts to fill Buyer’s orders within the time stated but in no event shall Seller be liable for any damages associated with Seller’s inability to meet any such timeframes or deadlines, including but not limited to incidental or consequential damages arising therefrom.
Inspection & Acceptance. Unless otherwise expressly agreed in writing by Seller, Buyer shall inspect and accept or reject all Goods within ten (10) days after receipt thereof. Buyer shall only reject Goods that fail to materially conform to the specifications set forth in the applicable documentation provided by Seller, and if Buyer rejects any merchandise, Buyer must first obtain a Returned Goods Authorization (“RGA”) number before returning any Goods to Seller. Goods returned without a RGA will be refused, and Seller shall have no obligations with respect to such Goods. Seller will not be responsible for any freight costs, damages to goods, or any other costs or liabilities pertaining to goods returned without a RGA. Seller shall have the right to substitute a conforming tender. Buyer will be responsible for all freight costs to and from Buyer and repackaging costs, if any, if Buyer refuses to accept shipment. If Goods are returned in unusable or unsalable condition, Buyer shall be responsible for full value of the Goods. Buyer may not return any special-order Goods. Any Goods returned hereunder shall be subject to a restocking fee equal to 30% of the invoice price. Any Goods not rejected in accordance with this paragraph within ten (10) days after receipt thereof shall be deemed inspected and accepted by Buyer.
Specifications. Seller may, at its option, make changes in the designs, specifications or components of the Goods to improve the safety of such Goods, or if in Seller’s judgment, such changes will be beneficial to their operation or use. Buyer may not make any changes in the specifications for the Goods unless Seller approves of such changes in writing, in which event Seller may impose additional charges to implement such changes and result in the product becoming non-returnable.
Confidentiality. In connection with this Agreement, Seller may disclose or make available to Buyer certain information about its business, its goods and services, and other non-public information (“Confidential Information”), including without limitation, the terms of this Agreement, Seller IP, trade secrets, third-party confidential information, pricing terms, and any other information marked as confidential or that would otherwise reasonably be understood to be confidential. Buyer shall protect Seller’s Confidential Information with at least the same degree of care as the Buyer would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care, and Buyer shall not, without Seller’s prior written consent, use the Confidential Information for any purpose other than to exercise its rights under this Agreement or disclose the Confidential Information to any third party.
Buyer Warranty. Buyer represents and warrants that (a) it has the full right, power, and authority to enter into this Agreement and perform its obligations under this Agreement; (b) it is and will remain in compliance with all applicable laws, rules, and regulations applicable to Buyer, this Agreement, or the Goods; (c) it is not insolvent and is paying all of its debts as they become due; and (d) all information that Buyer has provided to Seller is true and accurate and, as to any financial information, fairly represents Buyer’s financial condition.
Seller Limited Warranty. Provided that the Goods are installed, used, and maintained in accordance with any instruction manual or technical guidelines provided by the Seller or supplied with the Goods, Seller makes the limited warranties for the limited periods set forth on the pages linked below, by brand (collectively, the “Limited Warranty”):
Seller’s obligations with respect to the Limited Warranty are conditioned upon (a) the original end-user giving written notice to Seller of any suspected defect in the Goods prior to the expiration of the designated warranty period; and (b) the original end-user obtaining a RGA from Seller prior to returning any Goods to Seller for warranty service under this paragraph. For purposes of clarity, and notwithstanding anything to the contrary, Seller shall have no responsibility under the Limited Warranty or otherwise for claims under the Limited Warranty after the expiration of the designated warranty period or for Goods returned without a RGA.
The original end-user shall be responsible for all costs and expenses associated with returning the Goods to Seller for warranty service under the Limited Warranty. In the event of a defect, Seller may, at its sole option and as its sole obligation under the Limited Warranty, repair or replace the defective Goods or refund to the original end-user the purchase price for such defective Goods. Goods are not eligible for replacement or return after a period of 30 days from date of receipt.
The Limited Warranty is Seller’s sole obligation, and the original end-user’s exclusive remedy, with regard to any defective Goods.
This limited warranty does not apply to: (a) die sets, tooling, and saw blades; (b) periodic or routine maintenance and setup, (c) repair or replacement of the Goods due to normal wear and tear, (d) defects or damage to the Goods resulting from misuse, abuse, neglect, or accidents, (e) defects or damage to the Goods resulting from improper or unauthorized alterations, modifications, or changes, (f) any Goods that have not been installed and/or maintained in accordance with the instruction manual or technical guidelines provided by Seller, and (g) labor and costs associated with repair or installation of parts supplied under warranty.
EXCLUSION OF OTHER WARRANTIES. THE FOREGOING LIMITED WARRANTY OF SELLER IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. SELLER HEREBY DISCLAIMS ANY AND ALL OTHER EXPRESS, STATUTORY, OR IMPLIED WARRANTIES, WHETHER ARISING OUT OF LAW, STATUTE, COURSE OF DEALING, TRADE USAGE, OR ANY OTHER RELATIONSHIP, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SELLER MAKES NO WARRANTIES OF ANY KIND REGARDING THE APPROPRIATENESS, LEGALITY, OR SUFFICIENCY OF THE GOODS FOR BUYER’S PURPOSES, AND NO WARRANTY IS MADE WHICH EXTENDS BEYOND THAT WHICH IS EXPRESSLY CONTAINED HEREIN. BUYER ACKNOWLEDGES THAT NEITHER SELLER NOR ANY THIRD PARTY HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY, EITHER WRITTEN OR ORAL, ON BEHALF OF SELLER. SOME STATES DO NOT ALLOW LIMITATIONS ON THE DURATION OF IMPLIED WARRANTIES OR TO EXCLUDE CERTAIN WARRANTIES. IN THOSE STATES, TO THE EXTENT THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION ARE NOT PERMITTED AS TO BUYER, SELLER’S WARRANTIES ARE LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
Indemnification. Buyer agrees to indemnify, defend, and hold harmless Seller and its affiliates and their respective officers, directors, employees, agents, representatives, successors, and assigns (each, an “Indemnified Party”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including court costs and attorneys’ fees) incurred by any Indemnified Party in connection with (a) Buyer’s use or misuse of the Goods; (b) Buyer’s breach of any representation, warranty, covenant, or other obligation under this Agreement or any violation of applicable law, rule, or regulation; or (c) Buyer’s negligent or more culpable act or omission in connection with the Goods and/or this Agreement.
LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PARTY FOR ANY INCIDENTIAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR DOWN TIME) ARISING FROM OR IN MANNER CONNECTED WITH THE GOODS, ANY BREACH BY SELLER OR ITS AGENTS OF THIS AGREEMENT, OR ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT WILL SELLER’S TOTAL LIABILITY UNDER THIS AGREEMENT OR RELATED TO ANY GOODS EXCEED THE AMOUNT ACTUALLY PAID BY THE BUYER FOR THE GOODS. NOTWITHSTANDING ANY RIGHTS UNDER ANY APPLICABLE STATUTE OF LIMITATIONS TO BRING A CLAIM, BUYER SHALL NOT BRING ANY CLAIM OR ACTION BASED ON OR ARISING IN ANY WAY OUT OF THIS AGREEMENT OR OTHER GOODS MORE THAN ONE (1) YEAR AFTER DELIVERY OF THE GOODS HEREUNDER, AND BUYER WAIVES THE RIGHT TO FILE ANY SUCH CLAIM OR ACTION AFTER THE EXPIRATION OF SUCH PERIOD. SOME STATES DO NOT ALLOW US TO LIMIT OUR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES FOR CONSUMER PRODUCTS. IN THOSE STATES, TO THE EXTENT THE LIMITATIONS IN THIS SECTION ARE NOT PERMITTED AS TO BUYER, SELLER’S LIABILITY IS LIMITED TO THE FULLEST EXTENT PERMITTED BY LAW.
ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, FITNESS FOR BUYER’S PURPOSES, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
Force Majeure. Seller shall not be responsible for any delay in the delivery of, or failure to deliver, Goods due to causes beyond Seller’s reasonable control including, without limitation, acts of God, acts of war or terrorism, enemy actions, hostilities, strikes, labor difficulties, embargoes, non-delivery or late delivery of materials, parts and equipment or transportation delays not caused by the fault of Seller, delays caused by civil authorities, governmental regulations or orders, fire, lightning, natural disasters, disease, epidemic, pandemic, or similar outbreak, or any other cause beyond Seller's reasonable control. In the event of any such delay, performance will be postponed by such length of time as may be reasonably necessary to compensate for the delay.
Installation. If Buyer purchases any Goods that require installation, Buyer shall, at its expense, make all arrangements and connections necessary to install and operate the Goods. Buyer shall install the Goods in accordance with any Seller instructions and shall indemnify Seller against any and all damages, demands, suits, causes of action, claims and expenses (including actual attorneys’ fees and costs) arising directly or indirectly out of the improper installation of the Goods or Buyer’s failure to properly install the Goods or to have the goods properly installed.
Work By Others; Safety Devices. Unless agreed to in writing by Seller, Seller has no responsibility for labor or work performed by Buyer or others, of any nature, relating to design, manufacture, fabrication, use, installation, or provision of Goods. Buyer is solely responsible for furnishing and requiring its employees and customers to use all safety devices, guards and safe operating procedures required by law and/or as set forth in manuals and instruction sheets furnished by Seller. Buyer is responsible for consulting all operator’s manuals, ANSI or comparable safety standards, OSHA regulations and other sources of safety standards and regulations applicable to the use and operation of the Goods, and Buyer is solely responsible for ensuring that all Goods and Buyer’s use thereof comply with all applicable laws, rules, regulations, and standards.
Remedies. Each of the rights and remedies of Seller under this Agreement is cumulative and in addition to any other or further remedies provided under this Agreement or at law or equity.
Attorney’s Fees. In the event legal action is necessary to recover monies due from Buyer or to enforce any provision of this Agreement, Buyer shall be liable to Seller for all costs and expenses associated therewith, including Seller’s actual attorneys' fees and costs.
Governing Law/Venue. This Agreement shall be construed and governed under the laws of the State of Tennessee, without application of conflict of law principles. Each party agrees that all actions or proceedings arising out of or in connection with this Agreement shall be commenced, tried, and litigated only in the state courts sitting in Rutherford County, Tennessee, or the U.S. Federal Court for the Middle District of Tennessee. Each party waives any right it may have to assert the doctrine of “forum non conveniens” or to object to venue to the extent that any proceeding is brought in accordance with this section. Each party consents to and waives any objection to the exercise of personal jurisdiction over it by courts described in this section. EACH PARTY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW THE RIGHT TO A TRIAL BY JURY.
Summary of Return Policy.
- 10 Day acceptance period from date of delivery. Damage claims and order discrepancies will not be accepted after this time.
- You must obtain a JPW Industries, Inc. issued RGA number PRIOR to returning any materials.
- Returned materials must be received at JPW Industries, Inc in new condition and in original packaging.
- Altered items are not eligible for return.
- Buyer is responsible for all shipping expenses.
- A 30% re-stocking fee applies to all returns.
JPW Industries makes every effort to ensure that our posted specifications, images, pricing and product availability are as correct and timely as possible. We apologize for any discrepancies that may occur. JPW Industries reserves the right to make any and all changes deemed necessary in the course of business including but not limited to pricing, product specifications, quantities, and product availability.
Entire Agreement. This Agreement, together with any documents referenced herein and any pricing or other order form terms provided by Seller, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter.
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