Untitled Document

Jamaica Bearings Company Customer Invoice Terms and Conditions

ACCEPTANCE OF YOUR COMPANY’S ORDER IS EXPRESSLY MADE CONDITIONAL ON YOUR COMPANY’S ASSENT TO THE TERMS AND CONDITIONS ON THE FACE AND REVERSE SIDES OF THIS INVOICE, WHICH TERMS AND CONDITIONS INCLUDE, WITHOUT LIMITATION, DISCLAIMERS OF WARRANTIES AND LIMITATION OF LIABILITY PROVISIONS. IF YOUR COMPANY DOES NOT ASSENT TO SUCH TERMS, THERE IS NO CONTRACT.

Jamaica Bearings Co. Inc.’s ("Company") acceptance of your company’s order is expressly conditioned upon your company’s assent to the following terms and conditions and in the event any of such terms and conditions conflict with the terms and conditions contained in your company’s order, the conflict will be resolved in favor of the terms and conditions contained herein:

1. Conformity. This sales order acknowledges the type and quantity of goods ordered by your company ("Purchaser") as interpreted by Company. Purchaser’s silence indicates Purchaser’s acceptance and the correctness of this sales order. However, if the goods shipped do not conform to the type and quantity ordered as reflected on the face hereof, they will be deemed to have been shipped merely as an ACCOMMODATION in an effort to serve the needs of Purchaser.

2. Disclaimer of Warranties and Liabilities. (a) It is hereby acknowledged and agreed that there are many variables affecting the proper selection and use of goods sold by Company. These variables must be analyzed on a case by case basis by competent engineers and other appropriate professionals who are familiar with the specific systems in question so that the proper selection, use and installation of such goods can be determined, it being understood that such variables may, among other things, adversely affect performance, ranges and the applications for which such goods were manufactured. It is further acknowledged and agreed that Company has not been engaged to provide any design, engineering or other services to assist in any such determinations or the determination of the adequacy of the system and/or back-up system in which the Goods (as defined below) are to be utilized, and Company is not familiar with the specific variables of such systems nor has Company given any advice or made any representations or warranties, express or implied, in connection therewith. Accordingly, Purchaser hereby acknowledges and agrees that it shall be barred from any recovery against Company by reason of improper selection, use and/or installation of the Goods and, with respect to the systems in which such goods are to be utilized, improper system design and/or the inadequacy of back-up systems, it being expressly understood that any liability of the Company on account thereof is hereby explicitly waived by Purchaser.

(b) PURCHASER ACKNOWLEDGES AND AGREES THAT COMPANY IS NOT THE MANUFACTURER OF THE GOODS. THE GOODS SOLD PURSUANT HERETO ONLY CARRY THE WARRANTY OF THE APPLICABLE MANUFACTURER THEREOF, IF ANY, WHICH WARRANTIES ARE NOT ADOPTED BY COMPANY. ACCORDINGLY, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS BEING SOLD HEREUNDER INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING UNDER COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE. FURTHERMORE, PURCHASER ACKNOWLEDGES THAT IN NO EVENT SHALL COMPANY BE OBLIGATED TO ENSURE THAT THE GOODS CONFORM TO ANY APPLICABLE INTERNATIONAL LAWS OR ANY U.S. FEDERAL, STATE OR LOCAL LAWS, RULES, OR REGULATIONS (INCLUDING, WITHOUT LIMITATION, THE FEDERAL AVIATION ACT OF 1958, AS AMENDED) NOR SHALL COMPANY BE RESPONSIBLE FOR COMPLYING WITH ANY REQUIREMENT IMPOSED BY THE FEDERAL AVIATION ADMINISTRATION, DEPARTMENT OF TRANSPORTATION OR ANY OTHER GOVERNMENTAL AUTHORITY, AND COMPANY SHALL HAVE NO LIABILITY IF THE GOODS FAIL TO SO COMPLY.

(c) It is hereby expressly understood and agreed that unless a statement is specifically identified in this sales order as a warranty, the statements made in this sales order relating to the goods sold pursuant hereto (the "Goods") are not express warranties and do not form a part of the basis of the bargain but are merely Company’s opinion or commendation of the Goods. Any description of the goods specified in this sales order and any description of goods contained in any and all brochures, pamphlets or other literature of Company, whether delivered before or after the date hereof, are not intended to be warranties. Instead, they are for the sole purpose of identifying such goods; and such descriptions are not part of the basis of the bargain, and do not constitute a warranty that the Goods shall conform to those descriptions. The use of any sample, model or drawing was for illustrative purposes only, conformity of the Goods to such sample, model or drawing is not part of the basis of the bargain, and is not a warranty that the Goods will conform with the sample, model or drawing. No affirmation of fact or promise made by or on behalf of Company, whether or not in this sales order, shall constitute a warranty that the Goods will conform to the affirmation or promise.

COMPANY NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF GOODS HEREUNDER.

3. LIMITATION OF REMEDIES, WAIVER OF CONSEQUENTIAL DAMAGES. (a) SUBJECT TO PARAGRAPHS 3(b) AND 7, THE MAXIMUM LIABILITY OF COMPANY WITH RESPECT TO DAMAGES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO ANY OF THE FOLLOWING (COLLECTIVELY, "DAMAGE EVENTS"): (1) THE SALE OF GOODS CONTEMPLATED HEREBY; (2) ANY NON-CONFORMITY OF THE GOODS OR THE TENDER THEREOF; OR (3) ANY OTHER BREACH OR NEGLIGENCE OF COMPANY HEREUNDER OR UNDER APPLICABLE LAW, AND PURCHASER’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES WITH RESPECT THERETO, SHALL BE LIMITED TO THE LESSER OF PURCHASER’S ACTUAL GENERAL DAMAGES (AS DEFINED BELOW) OR THE AGGREGATE PURCHASE PRICE SPECIFIED ON THE FACE HEREOF, BUT ONLY TO THE EXTENT SUCH PURCHASE PRICE HAS BEEN PAID BY PURCHASER AND COLLECTED BY COMPANY. UNDER NO CIRCUMSTANCES, HOWEVER, SHALL COMPANY BE LIABLE TO PURCHASER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES, OR LOST PROFITS OR EXPENSES OR LOSSES DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO DAMAGE EVENTS, REGARDLESS OF WHETHER THE LIABILITY RESULTED FROM ANY GENERAL OR PARTICULAR REQUIREMENT OR NEED WHICH COMPANY KNEW OR SHOULD HAVE KNOWN OF. IN THE EVENT THAT ANY OTHER TERM OF THIS SALES ORDER IS FOUND UNCONSCIONABLE OR UNENFORCEABLE FOR ANY REASON, OR IF THE EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THIS PROVISION OF WAIVER BY AGREEMENT OF CONSEQUENTIAL DAMAGES SHALL CONTINUE IN FULL FORCE AND EFFECT.

(b) In the event an exclusive remedy provision contained in paragraph 3(a) or, with respect to late deliveries, paragraph 7, is deemed to fail of its essential purpose or is otherwise deemed unconscionable or unenforceable in the jurisdiction in which enforcement is sought, then Purchaser’s sole and exclusive remedy shall be limited to the minimum general damage award permissible under the laws and public policies applied in such jurisdiction ("General Damages"). For that purpose, it is the intention of the parties that such definition of General Damages be construed as narrowly as is permissible, it being the intention that Purchaser shall not be entitled to any consequential, exemplary, incidental, indirect, or special damages or lost profits as aforementioned, and it being further understood that the remedy stated in this section 3(b) shall then be Purchaser’s sole and exclusive remedy.

Purchaser’s rights and remedies provided in paragraphs 3(a) and 3(b) shall be Purchaser’s sole and exclusive rights and remedies hereunder and it is expressly made in substitution of any and all rights and remedies otherwise provided under applicable law.

4. Delivery; risk of loss and related matters. (a) Shipping dates are approximate and are based upon prompt receipt of all necessary documentation and information. Unless otherwise specified on the face of this sales order (i) Company is authorized to ship goods by carrier, it being the intention of the parties hereto to create a "shipment contract" within the meaning of the UCC; (ii) section 2-504 of the UCC shall govern the requirements for proper tender of delivery; and (iii) payment shall be due within thirty(30) days after the later of the date of shipment of the goods in question or the date Company issues an invoice therefor. At Company’s option, Company may, for any reason, suspend the credit term specified above for any delivery and may demand cash payment on delivery or other payment terms including, without limitation, pre-payments.

(b) Unless otherwise specified on the face of this sales order, delivery shall occur and risk of loss of the Goods shall pass to Purchaser upon delivery of Goods, at Company’s applicable plant, to a carrier or the truck of Company or Purchaser, as the case may be. Further, for purposes of this sales order, "shipment" shall also be deemed to occur upon such delivery. Transportation of such goods shall be at Purchaser’s sole risk and expense. In the event Purchaser breaches any provision hereof or otherwise repudiates its obligations hereunder, the risk of loss of identified Goods at Company’s plant shall also immediately pass to Purchaser.

(c) Company shall have the right to deliver the entire order at one time or in portions from time to time within the time of delivery specified in paragraphs 7 and 8. Payment for partial shipments shall be due thirty (30) days after the later of the date of such partial shipment or the date Company issues an invoice therefor. The price for partial shipments will be pro-rated as determined by Company and reflected on its invoice. Any delivery or portion thereof not made in accordance with this sales order shall not affect any fulfilled parts thereof, nor entitle Purchaser to reject subsequent deliveries. Notwithstanding the rights of Company contained herein, Purchaser shall not have the right to accelerate, postpone, cancel (other than as provided in paragraph 7) or otherwise modify delivery dates specified on the face hereof. If Purchaser attempts to do so, it will be deemed to have repudiated this contract.

(d) In addition to Company’s rights under section 2-508 of the New York Uniform Commercial Code ("UCC"), Company shall have the right to cure all non-conformities of Goods and the tender thereof without regard to whether Company had reasonable grounds for believing that the tender or non-conformities would be acceptable. Company shall have such right to cure even if Company’s time to do so pursuant hereto extends beyond the initial time for performance hereunder. The parties acknowledge and agree that, to the extent this sales order refers to more than one delivery, this sales order is, and shall be deemed to be, an installment contract within the meaning of section 2-612 of the UCC and the parties rights and obligations hereunder shall be construed in accordance therewith, even if it is determined that this is a unitary contract with several deliveries.

In the event a non-conformity is discovered or should have been discovered in which it is reasonable to conclude that damage, either personal, property or economic, may result, the continued use of the suspect goods will constitute an assumption of the risk and a bar to any recovery against Company.

5. Price. Except as otherwise specified on the face hereof, the purchase price for the Goods shall be the list price for such goods as reflected on Company’s price list at the time of shipment. In addition to the purchase price, Purchaser shall be responsible for any and all transportation costs, insurance and all applicable federal, state and local sales, use, property, excise and other taxes, duties or governmental charges imposed on or with respect to the Goods, except taxes levied on Company’s net income. To the extent permissible, New York state sales tax will not be imposed on goods identified as samples on the face hereof. In the event of new taxes or increased rates which are applicable to the transactions contemplated hereby, the invoice issued to Purchaser shall be subsequently adjusted if necessary and Purchaser shall immediately pay any difference. Notwithstanding any prices specified on the face hereof, Company reserves the right to charge prices prevailing at the time of shipment for goods scheduled to be shipped on this sales order more than six (6) months from the order entry date.

6. Title. Solely for the purpose of reserving a security interest in the Goods, Company retains title to such goods until they are paid in full by Purchaser. Such retention of title by Company shall not effect the passage of risk of loss as specified in paragraph 4.

7. Delays. Except as otherwise provided in paragraph 8, Purchaser is entitled to cancel only that portion of any order which is excessively delayed, it being understood that time is not of the essence. Upon such cancellation, Purchaser shall only be entitled to a credit of the purchase price paid to the Company for the portion of an order which has been canceled as a result of excessive delay, and, subject to paragraph 3(b), such remedy shall be Purchaser’s sole and exclusive right and remedy with respect to late deliveries, and is expressly made in substitution of all other rights and remedies otherwise provided under applicable law. Purchaser acknowledges and agrees that Company shall not be liable or responsible for any resulting back-charges incurred by Purchaser on account of any such delays.

To invoke such cancellation, Purchaser must give Company ten (10) days prior written notice thereof provided, however, that (i) the Goods are not specially manufactured or ordered, or (ii) Company has not received or shipped the Goods in the interim. In the event the Goods are specially manufactured, Purchaser may invoke such cancellation, provided, however, that Company’s supplier has not commenced manufacturing, and neither Company nor such supplier have made commitments for the procurement of the Goods.

8. Force Majeure. (a) Notwithstanding any provision herein to the contrary, Company shall not be liable or responsible for any delay in or failure of delivery of the Goods by reason of force majeure, including, but not limited to, Company’s inability to obtain raw materials from suppliers or to obtain same on a timely basis, or as a result of interruption of transportation, delays in delivery, governmental regulation, labor disputes, strikes, war, fire, flood, accidents, acts of God, civil disturbance, quota restrictions, unavailability of necessary raw materials or any other cause beyond Company’s control, whether or not such cause be of the same class or kind as those enumerated above, such enumeration being expressly understood to be in addition to other causes or classes of causes beyond Company’s control. In the event of the occurrence of any such causes, Company shall have the right to allocate production and deliveries among its customers in such proportions as it deems appropriate, in its sole and absolute discretion.

(b) In the event Company is unable to make timely delivery of all or a portion of the Goods, by reason of any events or occurrences referred to in this paragraph 8, Purchaser must accept delivery of the goods whenever Company is able to make such delivery regardless of the duration of the delay in delivery of the Goods, or Company may, in its sole and absolute discretion, cancel the undelivered portion of this sales order without liability.

9. Limitation of Action. No action or proceeding at law, in equity or otherwise shall be commenced by Purchaser against Company for Company’s alleged failure to deliver conforming Goods or other breach of any obligation or duty owed by Company hereunder or under applicable law, unless: (i) Purchaser notifies Company in writing at the address specified in this sales order within thirty (30) days from the date of such alleged breach or violation, provided Company does not remedy or correct the breach or violation within sixty (60) days from the receipt of the notice; and (ii) such action or proceeding is commenced by Purchaser within twelve (12) months from the date the breach occurs for any action whether in contract, tort or strict liability.

10. Interest Charges and Attorneys Fees. Purchaser shall pay interest charges on past due amounts at a rate of three (3) percent above the base rate publicly announced by Citibank N.A. at its principal place of business in the Borough of Manhattan, City and State of New York. Such rate of interest shall not exceed the maximum rate permitted under applicable law. In the event Company refers this sales order to an attorney for collection, Purchaser shall promptly pay all reasonable legal fees and disbursements incurred by Company in connection therewith.

11. Company’s Right of Possession. Purchaser acknowledges and agrees that Company shall have the right, at any time, and from time to time, for credit reasons or because of the occurrence of an Event of Default or Purchaser’s default under any other orders or agreements with the Company (collectively, "Other Orders"), to withhold shipments in whole or in part hereunder or under Other Orders, and to recall all such goods in transit, retake same, and repossess all such goods which may be stored with Company for Purchaser’s account, without the necessity of taking any action and without incurring any liability for exercising its rights hereunder.

12. Completion of Goods on Default. Upon the occurrence of an Event of Default, Company shall have the authority, at its option and without the obligation to do so, to authorize the manufacturer to complete the manufacture of Goods. Company shall have the authority to resell the completed goods in a commercially reasonable manner, and Purchaser shall be liable and responsible for any resulting losses and damages.

13. Insolvency Representation. Purchaser hereby represents and warrants to Company that Purchaser is not insolvent within the meaning of § 1-201(23) of the UCC and Purchaser hereby acknowledges that it made this representation to Company immediately prior to the first delivery of Goods.

14. Default, Cancellation and Related Matters. The occurrence of one or more of the following events shall constitute an "Event of Default": (i) Purchaser’s breach or failure to perform any of its obligations hereunder or under any Other Orders; (ii) Purchaser’s breach or misrepresentation of any representation or warranty made by Purchaser hereunder or under any Other Order; (iii) Purchaser makes a general assignment for the benefit of creditors or admits in writing an inability to pay its debts as they mature or takes advantage of, or files under any federal or state insolvency statute or law, including, without limitation, the United States Bankruptcy Code, or consents to the institution of proceedings or the filing of any petition thereunder, or any preceding is filed or commenced against Purchaser under any insolvency statute or law which is not stayed and dismissed promptly, or any substantial part of the properties of Purchaser are placed in the control of a receiver, custodian, trustee or similar official, or Purchaser consents to the appointment thereof; (iv) if Company is prohibited by any cease and desist order, injunction, or other valid order, decree, process of law, or restraint from shipping, selling, exporting or distributing any Goods pursuant to the terms hereof; or (v) in the event Company, in its sole and absolute discretion, believes that the prospect of payment, or Purchaser’s financial condition, has been impaired or Purchaser may be insolvent within the meaning of § 1-201(23) of the UCC.

Upon the occurrence of an Event or Default, Company shall have the sole and absolute right to cancel all or any portion of the Goods ordered pursuant hereto or under Other Orders. Further, all remaining unpaid invoices issued by Company to Purchaser shall immediately become due and payable. Company shall exercise such right by giving written notice of its intention to do so to Purchaser. Company shall not be liable to Purchaser on account of exercising such cancellation right.

15. Insecurity. In the event Company, in its sole and absolute discretion, believes that an Event of Default has occurred or is likely to occur, then reasonable grounds for insecurity shall be deemed to exist and Company shall have the right to demand adequate assurance of due performance.

16. Choice of Law and Forum. (a) The parties acknowledge and agree that this sales order shall be a contract made in the United States, State of New York. All questions pertaining to the validity, construction, execution and performance of this sales order shall be construed and governed in accordance with the domestic laws of the state of New York (including, without limitation, the UCC), without giving effect to principles of (i) comity of nations or (ii) conflicts of law, and this sales order shall not be governed by the provisions of the U.N. Convention on Contracts for the International Sale of Goods; and (b) any action commenced in connection with this sales order shall be brought in a federal or state court located in the United States of America, State of New York, Nassau County and to the extent not otherwise subject to the jurisdiction of such courts, Purchaser agrees to waive any objection to such jurisdiction and to subject itself to the jurisdiction of such courts.

17. Cumulative Remedies. All of Company’s rights and remedies hereunder shall be cumulative and not exclusive and shall be in addition to all other rights and remedies available under applicable law including, without limitation, the right to withhold delivery, stop delivery, resell and recover damages, recover damages for non-acceptance, an action for the price, cancel this sales order, and seek incidental and consequential damages, without giving effect to the limitations set forth in Section 1-106(1) of the UCC, as amended. Failure by Company to exercise any right, remedy or option hereunder or under applicable law, or delay in exercising same, will not operate as a waiver, it being understood that no waiver by Company will be effective unless it is in writing and signed by Company, and then only to the extent specifically stated.

18. Patent Infringements; Patent Indemnity.(a) Company makes no representations or warranties as to whether the goods furnished by Company hereunder are free from claims of misappropriation of trade secrets or other proprietary rights or if they otherwise infringe or contribute to the infringement of any patents, trademarks or copyrights either in the United States of America or any foreign country. Company shall in no way be liable in the event of any such misappropriation or infringement or contribution to infringement.

(b) In the event goods comply with designs, drawings or specifications supplied by Purchaser, Purchaser shall indemnify, defend and hold Company harmless from and against any and all Damages of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against Company directly or indirectly arising out of, relating to or resulting from (i) the infringement of any foreign or domestic patent or trademark or(ii) the manufacture, sale or distribution of such goods. Any and all amounts due for indemnity shall be paid as Damages are incurred, and in any event, within ten (10) days after written demand thereof.

19. Government Contracts. With respect to the sale of

goods directly to the United States Government or its agencies, to the extent of a conflict between this sales order and any applicable law, rule or regulation (collectively, "Law"), such Law shall control and this sales order shall be modified as provided in paragraph 21(h).

20. Miscellaneous. (a) Integration. This writing is intended by the parties to be a final, complete and exclusive statement of their agreement with respect to the subject matter hereof. All prior or contemporaneous oral or written statements are hereby excluded and are superseded. It is expressly agreed that no course of performance, course of dealing or usage of trade shall be admissible to contradict, supplement or explain the terms of this sales order. Furthermore, it is expressly agreed that a party’s acceptance of or acquiescence in a course of performance under this sales order shall not be admissible to modify, waive, supplement or explain the terms hereof, even if that party is aware of the course of performance and has an opportunity to object to it.

(b) Assignability. This sales order shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. Purchaser shall not have the right to assign its rights, benefits or duties hereunder without the prior written consent of Company. Any assignment in contravention of this provision shall be null and void and of no legal force or effect.

(c) Export Control. The Goods were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.

(d) Modification or Amendment. This sales order may not be modified or amended except by an instrument in writing signed by the party or parties against whom enforcement is sought.

(e) Notices. All notices made hereunder shall be made in writing, and shall be deemed adequately delivered if delivered by certified mail, return receipt requested, postage pre-paid or by a courier service that regularly maintains records of its pick ups and deliveries, addressed to the parties at their respective addresses set forth above or to any other address designated by a party hereto by written notice of such address change. Mailed notices shall be deemed given when mailed and notices sent by courier shall be deemed given when delivered to the courier service. Both mailed and courier service notices shall be deemed received three (3) days after mailing such notice or delivering it to the courier service, as the case may be.

(f) Captions. The headings and subheadings of this sales order are included for convenience and identification only and are in no way intended to describe, interpret, define or limit the scope, extent, or intent of this Sales Order or any provisions hereof.

(g) Language Pre-Emption. The parties have requested that this sales order be drafted in English; Les parties ont exiges que cette entente soit redigee en anglais.

(h) Severability. Any term or provision of this sales order which is invalid or unenforceable in any jurisdiction on account of unconscionability or otherwise, shall, as to such jurisdiction, be ineffective to the extent of such invalidity or unenforceability without rendering invalid or unenforceable the remaining terms and provisions of this sales order or affecting the validity or enforceability of any of the terms or provisions of this sales order in any other jurisdiction. Further, to the extent that any term or provision hereof is deemed so invalid, void or otherwise unenforceable, but may be made enforceable by amendment thereto, the parties agree that such amendment may be made so that the same shall, nevertheless, be enforceable to the fullest extent permissible under the laws and public policies applied in any such jurisdiction in which enforcement is sought.

(i) Waiver of Breach. Any waiver of any of the provisions of this sales order shall not be effective unless made in writing and signed by the Company.

(j) This paragraph and the following paragraphs 2, 3, 9, 10, 11, 12, 13, 16, 17, 18 and 19 shall survive the consummation, termination and cancellation of this sales order.

IF PURCHASER DOES NOT AGREE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN OR IF ANYTHING HEREIN IS INCORRECT OR UNACCEPTABLE, PLEASE ADVISE US IMMEDIATELY IN WRITING.