Terms & Conditions- Parts Sales
TERMS AND CONDITIONS
THE AGREEMENT. Jack Doheny Companies, Inc., (the “Seller”) shall be governed exclusively by the following terms and conditions of sale. The agreement between Seller and the buyer identified on the face of Seller’s invoice (“Buyer”) with respect to the sale of goods or other items described in Seller’s quote or proposal, if any, or on the face of Seller’s invoice (the “Parts”) shall consist only of the terms appearing herein and in Seller’s quote or proposal, if any, and any attachments, exhibits and supplements (the “Agreement”). Buyer’s issuance of a purchase order or any similar document constitutes its acknowledgment that the terms of this contract control. Seller objects to and shall not otherwise be bound by any additional or different terms, whether printed or otherwise, in Buyer’s purchase order or in any other communication from Buyer to Seller. The contract shall be for the benefit of Seller and Buyer and not for the benefit of any other person. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing signed by Seller, to the extent they differ from, modify, add to or detract from the contract, shall not be binding on Seller. There are no agreements, promises or understandings, either verbal or written, that are not fully expressed herein. No statements, recommendations, or assistance by either party has been relied upon by either party or shall constitute a waiver by either party of the provisions hereof. NO IMPLIED ACCEPTANCE. Notwithstanding any contrary provision in Buyer’s purchase order or other communication, no action by Seller such as delivery of goods or the rendering of services for Buyer, will be deemed an acceptance by Seller of any purchase order or other communication from Buyer with terms different or additional than those contained in this contract. Any such different or additional terms are specifically rejected. TERMS OF PAYMENT. 1. Payment Date. All payments for the Parts are due from Buyer at time of purchase unless other terms are agreed to in writing between Seller and Buyer. Payment shall be made to Seller at the address specified in the Agreement, without any offset or deduction for any reason. 2. Shipping Delays. If any shipment is delayed at the request of Buyer, payment shall become due based on the date Seller is prepared to make shipment, and Seller may invoice Buyer based on such date. All prices for Parts are F.O.B. Seller’s shipping point. 3. Delinquent Payments. 3.1 Any payment not made by Buyer on or before its due date shall be subject to a late charge on any unpaid balance at a rate of 18% per annum, or the highest interest rate allowed by law, whichever is greater. 3.2 If a payment is not made on or before its due date, Buyer agrees that Seller may elect, in addition to any other remedy at law or in equity, to cease performance under the Agreement and any other agreement between Buyer and Seller until such payment is rendered to Seller. DELIVERY. Seller does not guarantee delivery dates. RISK OF LOSS. Buyer assumes all risk of loss of Parts upon delivery by Seller to carrier if Parts is shipped. For Parts that is shipped, Seller agrees to: (a) prepare the Parts for shipment to Buyer; (b) deliver custody of the Parts to carrier; (c) make appropriate arrangements for the transportation to carrier; and deliver documents to enable Buyer to obtain possession of the Parts. Seller shall not be obligated to obtain insurance or to prepay transportation/carrier costs for the Parts. Buyer agrees to be responsible for and to timely pay all loading, unloading and other charges incidental to transportation of the Parts. Whether Seller pays transportation charges or not, risk of loss shall pass to Buyer upon delivery of the Parts to a carrier.
INDEMNIFICATION. Buyer shall indemnify, hold harmless and release Seller from any and all liabilities, losses, damages, claims, costs and expenses, including attorney fees, arising out of, in whole or in part, from (a) the design, or manufacture of the Parts; or (b) the use of the Parts by Buyer and those acting on Buyer’s behalf. MISCELLANEOUS; No Assignment. There shall be no assignment of the Agreement by Buyer without the prior written approval of Seller. Any assignment of the Agreement shall not relieve Buyer of its obligations under the Agreement. Force Majeure. Neither party will be liable for any delay or failure to perform its obligations hereunder, other than a payment obligation, due to any cause beyond its reasonable control including without limitation, acts of God or of the public enemy, including terrorists, acts of the government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of the party whose performance is affected (“Force Majeure Events”); provided that the affected party provides the other party prompt notice of the applicable circumstance and uses commercially reasonable efforts to re-commence performance as promptly as possible; provided, further, that if the duration of such Force Majeure Event exceeds thirty (30) days, the other party may terminate the Agreement upon delivery of written notice to the affected party. ARBITRATION; GOVERNING LAW. Any controversy or claim arising out of or relating to this contract shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis and shall not be consolidated in any arbitration with any claim or controversy of any other party. Any arbitration shall be conducted in [Oakland County,] Michigan. The cost of any arbitration shall be borne evenly by the parties, and each party shall bear its own attorneys’ fees and other expenses in resolving any dispute related to this contract. The parties agree that a court of competent jurisdiction may render judgment on and enforce any arbitration award. Either party may seek any interim or preliminary relief, necessary to protect its rights or property pending the completion of arbitration, in a court of competent jurisdiction. Any and all actions brought in court shall be filed and maintained in the Circuit Court of [Oakland County,] Michigan or the federal district court for the Eastern District of Michigan. The parties specifically consent and submit to the jurisdiction and venue of such state or federal court. The terms and conditions of this contract shall be governed, construed, interpreted and enforced in accordance with the domestic laws of the State of Michigan, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Michigan. This contract shall not be subject to or governed by the United Nations Convention on Contracts for the International Sale of Goods. TAXES. Sales, use, occupation, excise and other taxes upon the production, sale or use of the goods are not included in the price and such taxes or any costs in connection therewith, wherever levied and whether imposed before or after payment of invoice, shall be paid by Buyer. Construction and Captions. The parties acknowledge that each has reviewed the Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Agreement or any exhibits or amendments hereto; and that section headings appearing in the Agreement are for convenience of reference only and they are not intended, to any extent or for any purpose, to limit or define the text of any section or any subsection hereof. In the event any part of the Agreement is found to be ambiguous, such ambiguity shall not be construed against any party. Entire Agreement. The Agreement constitutes the sole and entire agreement between the parties and supersedes all prior and contemporaneous statements, promises, understandings or agreements, whether written or oral. Amendments. The Agreement may be amended, modified or altered at any time upon the approval of the Seller and Buyer; however, any such amendment must be in writing and signed by the Seller and Buyer in order for such amendment to be of any force and effect. Partial Invalidity. In the event that any provision of the Agreement is declared by any court of competent jurisdiction or any administrative judge to be void or otherwise invalid, all of the other terms, conditions and provisions of the Agreement shall remain in full force and effect to the same extent as if that part declared void or invalid had never been incorporated in the Agreement and in such form, the remainder of the Agreement shall continue to be binding upon the parties. Counterparts. The Agreement and any amendment thereto may be signed and executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one Agreement. Delivery of an executed counterpart of a signature page of the Agreement by facsimile or email shall be effective as delivery of an originally executed counterpart of the Agreement. Authority. Each person(s) executing the Agreement as an agent or in a representative capacity warrants that he or she is duly authorized to do so. NO WARRANTY. SELLER MAKES NO WARRANTIES OR REPRESENTATIONS EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MARKETABILITY OR FITNESS FOR PARTICULAR PURPOSE, ALL OF WHICH ARE SPECIFICALLY HEREBY DISCLAIMED. To the extent allowed by law and those agreements, Seller transfers and assigns to Buyer the Equipment manufacturer’s warranties, if any such warranty is provided by the Equipment manufacturer. In no event shall Seller be liable to Buyer for any incidental, consequential, special, exemplary, and/or punitive damages, including without limitations, loss of revenue or profit. Returns. Buyer shall have not more than 15 days to return Parts purchased pursuant to this Agreement. Notwithstanding the following, any Parts must be presented in an as new condition with all original packaging. Seller reserves the right in its sole discretion to reject for return any such Parts. For any Parts presented for return which were part of an order placed by Buyer there shall be a two percent (2%) of the sales price fee charged for restocking.