JFW Terms and Conditions

JFW INDUSTRIES, INC TERMS AND CONDITIONS FOR SALE OF PRODUCT
OCTOBER 1, 2001  REV. A  

THESE TERMS AND CONDITIONS CONSTITUTE THE ENTIRE AGREEMENT BETWEEN SELLER (JFW INDUSTRIES) AND BUYER WITH RESPECT TO THE SALE OF GOODS CONTEMPLATED HEREUNDER. SELLER'S ACCEPTANCE OF THE BUYER'S PURCHASE ORDER IS EXPRESSLY CONDITIONED UPON ACCEPTANCE BY BUYER OF THESE TERMS AND CONDITIONS. BUYER WILL BE DEEMED TO HAVE ASSENTED TO ALL SUCH TERMS AND CONDITIONS IF ANY PART OF THE DESCRIBED GOODS OR SERVICES IS ACCEPTED. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS CONTAINED IN BUYER'S ORDER OR IN ANY OTHER CORRESPONDENCE SHALL BE DEEMED OBJECTED TO BY SELLER AND SHALL BE OF NO FORCE OR EFFECT, UNLESS SPECIFICALLY AGREED IN WRITING BY SELLER. THESE TERMS AND CONDITIONS ARE SUBJECT TO CHANGE WITHOUT NOTICE.

1.         LIMITED WARRANTY AS TO GOODS – Seller hereby warrants to Buyer that the goods delivered hereunder will be free from defects in material and workmanship under normal use and service as follows:  (2) years from date of shipment for all fixed and solid-state products.  (1) one year from date of shipment for all mechanical and electromechanical products.  JFW Industries’ only obligation under this warranty is to repair or replace, at its factory, any JFW product or part thereof that is returned to JFW Industries by the original purchaser within the warranty period.

2.         DISCLAIMER OF WARRANTIES – THE WARRANTY STATED ABOVE IS YOUR SOLE AND EXCLUSIVE WARRANTY AND IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR FITNESS FOR ANY PARTICULAR PURPOSE.  JFW INDUSTRIES SHALL NOT BE LIABLE FOR ANY DIRECT OR CONSEQUENTIAL INJURY, LOSS OR DAMAGE INCURRED THROUGH THE USE, OR INABILITY TO USE, ANY JFW INDUSTRIES PRODUCT.

3.         LIMITATION OF REMEDIES AND LIABILITY - Buyer's exclusive remedy against Seller for any breach of or default under this contract (including any breach of warranty), any act or omission of Seller (including its negligence), or any defect in any goods ordered or delivered hereunder (including under strict liability in tort) shall be, at the Seller's option, the repair, replacement, or return for credit of such goods. All claims by Buyer against Seller will be invalid unless made in writing within the following time periods: (i) all claims for breach of the warranty set forth in Paragraphs 1 and 2 above must be made in writing within 30 days after the alleged defect becomes or should have become apparent to the Buyer and prior to the expiration of the applicable warranty period specified above; (ii) all claims for shortages must be made in writing within 10 days after receipt of the goods in respect of which any such shortage is claimed, and should be accompanied by Seller's packing slip or a photostatic copy thereof; and (iii) all other claims must be made within 30 days of receipt by Buyer of the goods delivered hereunder. If the Seller so requests, the Buyer must either permit Seller to inspect the goods, or if the goods have not been installed, return to the Seller any goods with respect to which any claims are made (free and clear of all encumbrances) in accordance with the Seller's shipping instructions, with all component parts, even if broken or defective, complete in one package, and with shipping charges prepaid; provided that Seller will reimburse Buyer for reasonable shipping charges actually incurred by Buyer at the request of Seller if Seller determines that any such returned goods failed to comply with the warranty set forth in Paragraph 1 above. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY OTHER PERSON FOR DIRECT OR INDIRECT, CONSEQUENTIAL, INCIDENTAL OR SPECIAL DAMAGES, OTHER THAN AS SPECIFIED IN THE FIRST SENTENCE OF THIS PARAGRAPH 3.

4.         RETURNS, CANCELLATIONS AND DEFERRED ORDERS - Goods may be returned only with the prior written authorization of the Seller in its sole discretion. An authorization number will be assigned to the Buyer by the Seller when it authorizes any return and such number must be marked on the shipping container for such goods. Any goods so returned shall be subject to a 25% restocking fee. The Buyer shall bear the risk of loss during shipment with respect to any such goods and shall be responsible for insuring such goods for their purchase price. Goods returned to Seller without prior authorization or without the return authorization number marked on the shipping container shall be returned to Buyer freight collect. For information about warranty performance or to notify Seller of a product that Buyer believes is defective and covered by Seller's warranty, Buyer should contact JFW Industries at 1-317-887-1340.
The buyer shall not be entitled to cancel any order (whether in whole or in part) unless the seller agrees in writing and only then subject to the buyer indemnifying the seller in full against any costs, expenses or losses incurred by the seller in respect of such cancelled order all of which shall be paid to the seller upon cancellation.  Orders may be deferred or modified prior to shipment subject to such revision in price or charge for work already in progress as may be determined by Seller. In addition, Seller may place in storage goods for which (a) an order has been deferred by Buyer or (b) shipment is delayed by Buyer's inability or unwillingness to receive the goods. Such storage by the Seller shall be for Buyer's account at Buyer's expense and the goods so stored shall be at Buyer's risk while stored, notwithstanding anything to the contrary in Paragraph 8. In the event of delay in shipment as herein provided, the Seller shall be entitled to invoice the Buyer when Seller is ready to ship the goods.

5.         TERMS OF PAYMENT - Unless otherwise stated on the face of the applicable invoice, all payments shall be in United States dollars, and a payment shall become due as each shipment if made. Unless otherwise stated on Seller's invoice, payment in full with respect to the goods ordered is due within 30 days from date of invoice. All indebtedness outstanding after the date due shall bear interest at the rate of 1-1/2% per month or the highest rate permitted by applicable state law, whichever is less. If Seller shall be required to institute legal proceedings for the collection of any past due indebtedness, Buyer shall reimburse Seller for its reasonable costs and expenses, including without limitation, attorneys' fees incurred in connection therewith. Outstanding indebtedness may, at Seller's sole discretion, void Seller's warranty and any other obligations of Seller to Buyer.

6.         TAXES - In addition to the purchase price, Buyer shall pay to Seller the amount of any and all applicable duties, or sales, use, excise, value added or similar taxes imposed upon Seller on account of the sale or transportation of the goods delivered hereunder. Unless appropriate exemption certificates are furnished to Seller, any such taxes will be added to the invoices as separate items.

7.         DELIVERY AND FORCE MAJEURE - Shipping dates are estimates only, and Seller in no way guarantees that ordered goods will be shipped in accordance with estimated shipping schedules. Without limiting the generality of the foregoing, Seller may delay delivery of goods without any liability therefor as a result of any delay caused by events outside Seller's reasonable control, including work stoppages or other labor difficulties and inability to obtain necessary materials, components, labor or manufacturing facilities, that would in any way impair Seller's ability to deliver the goods in the quantities ordered at the prices quoted.

8.         SHIPMENT AND TITLE - The term "shipment" means delivery by the Seller to the initial carrier in accordance with the delivery terms of the shipping order. Seller may make partial shipments. All shipments shall be F.O.B. Indianapolis, Indiana, USA, unless otherwise stated herein. Seller shall select the method of transportation and route of any shipment. All freight and related charges and obligations shall be the responsibility of the Buyer and shall be added to the invoice price, unless otherwise stated herein. Title to all goods sold hereunder, and risk of loss or damage to all goods shall pass to Buyer immediately upon delivery to the freight carrier.

9.         PRICES AND QUOTATIONS - Unless specifically agreed to in advance by Seller, all prices shall be Seller's list prices in effect at the time of its receipt of Buyer's order. Any price quotation by Seller will automatically expire 60 days after its issuance unless accepted by Buyer by means of submitting a purchase order.

10.      ORDERS - Seller may elect not to accept any order submitted by Buyer and (subject to the other provisions hereof) will not be bound to fill any order unless and until the earlier of Seller's (i) issuance of an order acknowledgement or (ii) shipment of the goods.

11.      DISCONTINUED MODELS AND SUBSTITUTIONS - Seller specifically reserves the right, at its discretion, to discontinue, or make modifications to, any model of goods at any time. In the event of such discontinuation or modification, Seller shall attempt, but in no way guarantees, to maintain an inventory of spare parts for such models for such time period as Seller deems reasonable.

12.      PATENTS - In the event that all or part of the goods sold hereunder are manufactured by Seller to Buyer's specifications, plans or designs, Buyer hereby grants to Seller a limited license to use such specifications, plans or designs whether patented or not, for the purpose of manufacturing the goods sold hereunder. Buyer represents and warrants that it has the right and authority to enable Seller to use such specifications, plans or designs, and Buyer shall defend, indemnify and hold harmless Seller from and against any and all claims, losses, liabilities and expenses (including without limitation, attorneys' fees), on account of any claims of patent infringement made by any party in connection with the use of such specifications, plans or designs.

13.      PATENT INDEMNIFICATION - If suit is brought against Buyer, or any of its vendees, alleging that the manufacture or sale of goods sold hereunder infringes any United States patent (except infringement occurring as a result of incorporating a design or modification of the goods at Buyer's request, or occurring as a result of Buyer's failing to use the goods in the manner directed and exclusively for the purpose for which they were sold), then Seller will defend, indemnify and hold harmless Buyer and pay any awards against Buyer arising from such infringement (but excluding, without limitation, any attorneys' fees incurred by Buyer); provided, however, that Buyer has given Seller (a) prompt written notice of any charge of such infringement, (b) the right at its expense to settle such charge or to defend or control the defense of any suit based upon such charge and (c) all necessary information and assistance in connection therewith. In case any product sold hereunder is held to infringe an existing patent and the use of said product is enjoined, Seller shall have the option of either procuring for the Buyer the right to continue using said product, or replacing the same with a non-infringing product, or modifying the same so as to avoid infringement, or removing the same and refunding the purchase price. THIS PARAGRAPH SETS FORTH SELLER'S SOLE AND EXCLUSIVE LIABILITY WITH RESPECT TO PATENT INFRINGEMENT.

14.      INDEMNIFICATION - Buyer will defend, indemnify and hold harmless Seller from and against any and all claims, losses, liabilities and expenses (including without limitation, attorneys' fees), on account of any injuries or deaths of any persons or damage to any property arising from the modification of the goods sold hereunder or their incorporation into any other product or in any other way by reason of the Buyer's handling and use of the goods.

15.      TRADEMARKS AND TRADE NAMES - Buyer acknowledges that all brand names, trade names and trademarks incorporated onto or associated with the products (collectively, the "Marks") purchased hereunder are the exclusive property of Seller and that the Buyer will not acquire any rights in any of the Marks by purchasing the products hereunder. Buyer shall not make any use of the Marks at any time except as otherwise authorized in writing by Seller.

16.      PROPRIETARY INFORMATION/NONDISCLOSURE - Buyer acknowledges that any knowledge or information, including drawings, designs, specifications, plans and data, which Seller may have disclosed or may hereafter disclose to the Buyer incident to the placing and filling of an order, shall, at all times, remain the exclusive property of Seller, and Buyer shall acquire no interest in, or right with respect to, such proprietary information unless otherwise stated in writing by Seller. Buyer further acknowledges that such proprietary information constitutes valuable, special and unique business assets of Seller and Buyer will not now or at any time in the future use any such information in any manner or disclose any such information to any person or entity, except as expressly permitted in writing by Seller.

17.      DEFAULT/REMEDIES AND TERMINATION - In the event that Buyer fails to make payment when due for goods shipped to it, otherwise breaches any provision of this contract, or becomes insolvent, then Buyer shall be liable for any loss suffered by Seller by reason of such action including but not limited to, costs of collection, attorneys' fees, loss of Seller's profits, unreimbursed labor and materials costs, and additional freight, storage and handling costs. In such event, Seller, at its sole discretion, also may terminate this contract, may require that any shipment be made C.O.D., may demand cash in advance prior to filling any orders from the Buyer, making any further shipments to Buyer or completing Seller's obligations under this contract and may place the Buyer on credit hold. The above-listed remedies are cumulative and in addition to any other remedies available to Seller at law or in equity.

18.      JURISDICTION - Buyer hereby consents to the jurisdiction of any local, state or federal court located in the State of Indiana, for the purposes of enforcing an arbitration award or otherwise under this contract, and hereby waives personal service of process and agrees that all such service of process may be made by registered or certified mail directed to the Buyers principal place of business. Such local, state or federal court located in the State of Indiana shall have exclusive jurisdiction under this contract.

19.      GOVERNING LAW - This contract shall be governed and interpreted in accordance with the laws of the State of Indiana, without giving effect to the choice of law provisions of such jurisdiction. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract.

20.      NON-WAIVER - Failure by either party to exercise any of its rights under this contract upon one occasion shall not constitute a waiver of its right to exercise the same or other rights on another occasion.

21.      NON-ASSIGNABILITY - The rights and duties of the Buyer under this contract are not assignable or transferable without the prior written consent of Seller.

22.      SEVERABILITY - In the event any provision herein should be held unenforceable by a court of competent jurisdiction, such court is hereby authorized to amend such provision so that it will be enforceable to the fullest extent permitted by law, and all remaining provisions shall continue in full force without being affected, impaired or invalidated thereby in any way.