Jamaica Bearings Group Purchase Order Terms and Conditions
Jamaica Bearings Company Customer Invoice Terms and Conditions
‘Jamaica Bearings Group’ for the purpose of these Terms and Conditions consists of the following: Jamaica Bearings Co. Inc. 1700 Jericho Turnpike, New Hyde Park, NY 11040. Jamaica Bearings Company, Inc., Precision Products Division, 320 Camarillo Ranch Road, Camarillo, CA 93012. Jamaica Aerospace Company, 3002 N. Commerce Parkway, Miramar, FL 32025. Cambridge Manufacturing, 1700 Jericho Turnpike, New Hyde Park, NY 11040.
Jamaica Bearings Group. Basic Terms and Conditions for all purchase orders to a supplier. Special requirements may be added to the body of the Purchase Order as needed.
Your Company’s acceptance of this purchase order is expressly limited and subject to the following 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:
- Terms and Acceptance. Only the occurrence of one of the following events shall constitute acceptance of the terms and conditions hereof by your company (“Seller”): (a) Seller’s execution of this purchase order (“Order”) and the receipt thereof by our company (“Buyer”); or (b) Seller’s commencement of performance on account of this Order (including, without limitation, a promise to ship or the shipment of conforming or non-conforming goods); provided, however, that in the event Buyer does not receive notice of Seller’s commencement of such performance within a reasonable time, Buyer may treat it’s offer made hereunder as having lapsed before acceptance. The offer contained in this Order is made on the terms and conditions stated herein and no others. Accordingly, Seller’s acceptance of this Order is expressly limited to the terms and conditions hereof. Notice of objection is hereby given to any proposed term or condition or any alteration whether perceived as major or minor in nature. No additions, subtractions, or other modification of the terms and conditions of this Order shall be binding upon Buyer unless expressly accepted in writing by Buyer.
- Inspection. Within sixty (60) days after Seller duly tenders delivery of the goods ordered pursuant hereto (the “Goods”), Buyer shall have the right, but not the obligation, to inspect and perform qualification tests on the Goods before accepting them. Tests or inspections performed by Buyer will not constitute acceptance nor relieve Seller of its obligation to tender conforming goods in accordance herewith.
- Delivery and Related Matters. (a) Seller shall deliver conforming goods within the time specified for delivery on the face of this Order, but not sooner than five (5) days prior to such date, it being understood that time is of the essence. The Goods shall be deemed delivered when they arrive at the location designated by Buyer in the face herein. Further, Seller hereby waives and negates any right it may have to cure a non-conforming tender of delivery if it would extend the delivery date beyond the date specified for delivery herein, whether or not the Seller had reasonable grounds to believe that the non-conforming tender would be acceptable with or without money damages; (b) notwithstanding anything to the contrary contained herein, Buyer shall have the sole and absolute right to postpone and extend the time for delivery specified on the face hereof for the period specified by Buyer, but not to exceed twelve (12) months. Buyer shall exercise such right by giving written notice of its intention to do so to Seller and Buyer shall not be liable to Seller on account of exercising such right; (c) unless otherwise specified on the face hereof, the Goods shall be delivered in a single lot. To the extent this order authorizes delivery in several lots, it is understood and acknowledged by the parties, and it is their intention, to create a unitary contract and not an installment contract within the meaning of the New York Uniform Commercial Code (“NYUCC”). Accordingly, the parties rights and obligations hereunder shall be construed in accordance with the rules for unitary contracts with delivery in several lots (if applicable), even if it is determined that this is an installment contract; and (d) Seller shall utilize the carrier and method of transportation specified on the face hereof and Seller shall make, and is hereby authorized to make, an appropriate contract for transportation of the Goods in accordance therewith. The Goods shall be shipped to the applicable plant of Buyer as specified on the face hereof. Except as otherwise provided in paragraph 5, Buyer shall pay the costs of transportation. The risk of loss shall be borne by Seller until Seller duly tenders delivery of the Goods and same are unloaded at the applicable plant of Buyer. Tender of delivery shall be governed by Section 2-504 of the NYUCC except that failure to tender delivery shall not be limited to material delay or loss but shall instead be governed by paragraphs 3(a) and 5.
- Packaging. Each package shall(i) be placed in containers conforming to Buyer’s specifications, or in the absence of such specifications, in recognized commercial containers suitable for the Goods and domestic or international shipping, as the case may be, with such containers numbered and labeled with the order number, stock number, contents, and weight; and (ii) contain an itemized packing slip. Buyer’s count or weight shall be final and conclusive on shipments of goods not accompanied by packing slip.
- Non-conformities; Remedies; Waivers and Related Matters. (a) The occurrence of any one or more of the following events shall constitute an “Event of Default”: (i) tendering delivery of any Goods which fail to conform in all respects to the Specifications (as defined below) or any of the other provisions hereof (“Non-conforming Goods”);(ii) Seller’s breach of or failure to perform any of its obligations hereunder; or (iii) Seller’s breach or misrepresentation of any representation or warranty made by Seller hereunder; (b) upon the occurrence of an Event of Default, Buyer shall be immediately entitled, but shall not be required, to exercise all, any one or any number of the following rights and remedies within thirty (30) days after Buyer’s discovery thereof: (i) with respect to late deliveries, Buyer may extend the time for delivery, in which case such Goods shall be shipped in the manner specified by Buyer, including, without limitation, shipment by air. Any additional expenses incurred for expedited shipping shall be paid by Seller; (ii) with respect to Non-conforming Goods, Buyer shall have the right to obtain replacement Goods from Seller. Such goods shall be replaced with goods which are in strict compliance with the provisions hereof. Under no circumstances, however, will Non-conforming Goods be repaired; (iii) reject or revoke acceptance, as the case may be, of all or any portion of the shipment of Goods containing any Non-conforming Goods; and (iv) cancel all or any portion of this Order pursuant to paragraph 8(a). Buyer shall exercise any one or more of the foregoing rights and remedies by giving written notice to Seller of its intention to do so. Buyer shall not be liable to Seller on account of exercising any such rights or remedies. Seller hereby acknowledges and agrees that the occurrence of an Event of Default shall constitute a substantial impairment of value to Buyer of both the particular shipment in question and this entire Order, so as to entitle Buyer to exercise any one or all of the remedies specified in this Order and the event causing the Event of Default can not be cured as Seller hereby waives its right to do so. In the event Buyer returns Non-conforming Goods to Seller, Seller shall prepare and deliver to Buyer a written preliminary report containing a description of the discrepancy or the non-conformity observed by Buyer. Such report shall be accompanied by photographs, test reports, visual reports and any documents supporting the findings of the report and shall be delivered within three (3) weeks of Seller’s receipt of the Non-conforming Goods from Buyer.
- Price and Payment. (a) The price payable for the Goods shall be as specified on the face of this Order. Such price is not subject to increase and includes crating, boxing and cartage and all applicable tariffs, duties and income, sales, ad valorem and excise taxes and similar charges imposed on or with respect to the Goods, and Seller will pay same when due. Seller hereby represents and warrants to Buyer that, at the time of this Order, the prices specified herein constitute Seller’s most preferred prices and such prices are not higher than the prices being quoted to other customers of Seller for goods with the same or similar functionality as the Goods (“Similar Goods”) at quantities similar to or less than quantities of goods ordered by Buyer over the immediately preceding twelve (12) month period. If, at any time prior to shipment, Seller quotes prices for Similar Goods less than the prices provided herein, Seller agrees that the prices charged to Buyer for Goods will be similarly reduced and that Buyer will be invoiced at such reduced prices; (b) payment shall be made by Buyer to Seller in the form of a company check upon the terms specified on the face hereof, but in no event will Buyer be obligated to pay for any of the Goods until after it has had an opportunity to inspect and test the Goods pursuant to the provisions of paragraph 2. Under no circumstances will Seller ship Goods under reservation; and (c) all amounts due by Buyer hereunder and under other orders submitted by Buyer to Seller or any of Seller’s affiliates (collectively, “Other Orders”) shall be subject to off-set by Buyer for any claim Buyer may have hereunder or under any Other Orders.
- Assignment. Seller shall not assign any of its rights or delegate any of its duties hereunder without the prior written consent of Buyer, it being understood that Buyer has a substantial interest in having Seller perform its obligations hereunder. Any such assignment or delegation without Buyer’s prior written consent shall be null and void, and of no effect.
- Termination and Cancellation. (a) Upon the occurrence of any of the following events, Buyer shall have the sole and absolute right to cancel all or any portion of the Goods ordered pursuant hereto, without any liability to Seller therefor: (i) Seller 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 Seller under any insolvency statute or law which is not stayed and dismissed promptly, or any substantial part of the properties of Seller are placed in the control of a receiver, custodian, trustee or similar official, or Seller consents to the appointment thereof; (ii) if Buyer is prohibited by any cease and desist order, injunction, or other valid order, decree, process of law, or restraint from accepting shipping, selling, exporting or distributing any Goods pursuant to the terms hereof; or (iii) the occurrence of an Event of Default. Buyer shall exercise its right to cancel by giving Seller notice of its intention to so do; (b) this Order may be terminated by Buyer at any time prior to Seller’s delivery of the Goods upon Buyer’s written notification to Seller of its intent to do so. In the event that Buyer exercises its right to terminate this Order for its convenience and provided there has not been the occurrence of any of the events specified in paragraph 8(a), Buyer agrees to pay Seller as liquidated damages:(i) the actual costs for raw materials incurred by Seller in connection with manufacturing the Goods, except to the extent such materials can be utilized in Seller’s business generally or for other customers in particular, plus (ii) an additional five percent(5%) of such costs on account of overhead and profits. The foregoing remedy is Seller’s sole and exclusive remedy for Buyer’s termination of this Order under this paragraph 8(b), and Buyer shall have no other liability on account of exercising its right to terminate. In no event, however will Buyer be liable or responsible for payment in excess of the total price set forth on the face hereof; and (c) in the event Buyer, in its sole judgment, determines that Seller is failing to make sufficient progress so as to jeopardize performance of this Order, then reasonable grounds for insecurity shall be deemed to exist and Buyer shall have the right to demand adequate assurances of due performance.
- Express Warranties and Representations of Seller Seller hereby makes the following representations and warranties in favor of Buyer, and where applicable, customers of Buyer: (a) at the time of delivery to Buyer and thereafter, all Goods will (i) be free from defects in material and workmanship; and (ii) conform in all respects to applicable Specifications. The applicable warranty period for the express warranties specified in this paragraph 9(a) shall be for a period of eighteen (18) months after such Goods are placed in service and, with respect to latent defects, one (1) year after Buyer’s discovery thereof. At the option of Buyer, Seller shall replace all defective and suspect Goods during the warranty period and, with respect to the replacement Goods, such warranties shall continue for an additional eighteen (18) month period; (b) title with respect to the Goods conveyed is good and its transfer is rightful, the Goods are now free and at the time of delivery shall be free from any security interest, lien or other encumbrance, and shall be delivered free from any claim (whether asserted or threatened or embodied in an action, past or present) by way of infringement (including, without limitation, copyright, patent or trademark), misappropriation of a trade secret or other proprietary right, or unfair competition; (d)the Goods shall conform in all respects to (i) any description contained in Seller’s brochures, pamphlets or other forms of literature, (ii) any sample, model or drawing, and (iii) any promise or other affirmation of fact my by Seller or its agents; (e) Seller shall comply with all applicable international and U.S. federal, state and local laws, rules, and regulations (including, without limitation, complying with the Export Administrations Act of 1979, as amended, the Fair Labor Standards Act of 1938, as amended; the Federal Aviation Act of 1958, as amended, and requirements imposed by the Federal Aviation Administration, the Department of Transportation and any other applicable governmental authority or regulations with respect to the Goods, and Seller shall obtain all required licenses, permits and consents in connection with performing its obligations hereunder and the transactions contemplated hereby (including, without limitation, the Federal Aviation Administration or any other applicable governmental authority), (f) the country of origin marking on the Goods and any country of origin declaration accompanying the Goods will reflect accurately the real country of origin of the Goods and that the country of origin markings on the Goods certificate and any other documents supplied by the Seller will comply with the country of origin marking requirements set forth in Section 304 of the Tariff Act of 1930, as amended, and any regulations related thereto. In the event of a conflict between any of the foregoing representations and warranties, the representation and warranty which provides the greatest remedy to Buyer shall prevail over any inconsistent representation and warranty.
- Choice of Law and Forum. (a) The parties acknowledge and agree that this Order and the acceptance of it 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 Order shall be construed and governed in accordance with the domestic laws of the state of New York (including, without limitation, the NYUCC), without giving effect to principles of (i) comity of nations or (ii) conflicts of law, and this Agreement 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 Order shall be brought in a federal or state court located in the United States of America, State of New York, County of Kings and to the extent not otherwise subject to the jurisdiction of such courts, Seller agrees to waive any objection to such jurisdiction and to subject itself to the jurisdiction of such courts.
- Force Majeure Notwithstanding anything to the contrary contained herein, Buyer shall have the right to postpone the time for delivery specified on the face hereof indefinitely on account of circumstances beyond its control which would hinder or adversely affect Buyer’s intended use of Goods. The period of such postponement shall continue until such circumstances are resolved to the satisfaction of Buyer. Buyer shall exercise such right by giving written notice of its intention to do so to Seller. For purposes hereof circumstances beyond the control of Buyer shall include, without limitation, cancellation or postponement of orders by customers of Buyer, interruption of transportation, governmental regulation, labor disputes, strikes, war, fire, flood, accidents, acts of god, civil disturbance or other causes beyond the control of Buyer (whether or not such causes be of the same class or kind as those enumerated above).
- Trademark. (a) If the Goods specified in this Order are peculiar to Buyer’s design or are derived from Specifications furnished or modified by Buyer or if the Goods bear the name, trade name, trademark or identity mark of Buyer, they shall not be sold or otherwise disposed of to anyone other than the Buyer without the prior written consent of Buyer, and Seller and its directors, officers, shareholders, employees and agents shall not remove any proprietary notice or label of Buyer. Buyer shall at all times retain title to all Specifications furnished or modified by Buyer, and intended for use in connection with this Order. Seller shall use such Specifications only in connection with this Order, and shall not disclose such Specifications to any third party. Upon the Buyer’s request or upon completion of this Order, Seller shall promptly return to Buyer all Specifications furnished or modified by Buyer; and (b) unless authorized by Buyer in writing, Buyer’s name, trade name or trademark shall not be used in Seller’s advertising or for any other purpose
- Indemnity. Seller hereby agrees to indemnify, protect and hold harmless Buyer and its directors, officers, shareholders, employees and agents(collectively, the “Indemnified Party”) from and against any and all liabilities, damages, losses, obligations, penalties, claims, causes of action, litigation, proceedings, demands, judgments, suits, costs, disbursements and expenses, including, without limitation, reasonable attorneys’ fees and lost executive time (collectively, “Damages”) of whatsoever kind and nature, imposed upon, incurred by, asserted, threatened or awarded against any of the Indemnified Party directly or indirectly arising out of, relating to, or resulting from (i) infringement of any foreign or domestic, federal, state or common law right against unfair competition or trademark, copyright or patent infringement arising from the manufacture, sale or distribution of the Goods, except where the Goods are manufactured pursuant to unmodified designs created and supplied by Buyer and are not normally manufactured by Seller; (ii) misappropriation of any trade secret or any other proprietary right; or (iii) death or bodily injury or damage to property arising from the design of the Goods or negligently manufactured Goods. Any and all amounts due for indemnity hereunder shall be paid promptly as Damages are incurred, and in any event, within ten (10) days after written demand therefor.
- Limitation of Remedies UNDER NO CIRCUMSTANCES SHALL BUYER BE LIABLE TO SELLER FOR ANY CONSEQUENTIAL, INCIDENTAL, ECONOMIC, DIRECT, INDIRECT, GENERAL OR SPECIAL DAMAGES, EXPENSES OR LOSSES DIRECTLY OR INDIRECTLY ARISING OUT OF BUYER’S TERMINATION OR CANCELLATION OF THIS ORDER OR ANY PORTION HEREOF OR FOR ANY BREACH OF ITS OBLIGATIONS UNDER THIS ORDER.
- Cumulative Remedies All of Buyer’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 recover any part of the purchase price paid pursuant to this Order, specific performance, replevin, cover or hypothetical cover, incidental damages, and consequential damages, without giving effect to the limitations set forth in Section 1-106 of the NYUCC, as amended. Failure by Buyer 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 Buyer will be effective unless it is in writing and signed by Buyer, and then only to the extent specifically stated.
- Severability In case any one or more of the provisions herein shall be adjudicated invalid, illegal or unenforceable, in any respect, the remaining provisions contained herein shall not, in any way, be affected or impaired thereby
- Government Contracts In the event Goods are identified on the face hereof as being subject to a government prime contract or subcontract, the provisions specified on Buyer’s form government contract rider (form No. Gov. 10) shall be applicable in addition to all other provisions hereof. To the extent this paragraph 17 is applicable, form No. GOV.10 is hereby incorporated by reference herein. Such form is on record at Buyer’s offices and is available upon request
- Notices. All notices made hereunder shall be made in writing, and shall be deemed adequately delivered if delivered by registered mail, return receipt requested, postage prepaid or by courier service that regularly maintains records of its pick-ups and deliveries, to the parties at their respective addresses set forth on the face hereof 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
- Integration. This Order 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 and contemporaneous oral or written agreements, statements, understandings and communications 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 Agreement to Buyer’s detriment. Furthermore, it is expressly agreed that Buyer’s acceptance of or an acquiescence in a course of performance under this Agreement shall not be admissible to modify, waive, supplement or explain the terms hereof, even if Buyer is aware of the course of performance and has an opportunity to object to it.
- Specifications. Seller agrees not to make any changes or modifications to the Specifications without first obtaining the prior written approval of Buyer. For purposes hereof, the term “Specifications” means all specifications, drawings, writings, recordings, pictorial reproductions, computer programs and other graphic representations and works of a similar nature identified on the face hereof and provided by Buyer to Seller or supplied by Seller and accepted by Buyer in writing, together with all changes and modifications thereto. Such specifications are hereby incorporated into this Order by reference.
- Survival. This paragraph and the following paragraphs 1, 5, 6(a), 6(d), 8, 9, 10, 12, 13, 15, 16, 17 and 21 shall survive the consummation, termination and cancellation of this Order.
- Language Pre-Emption. The parties have requested that this Agreement be drafted in English; les parties ont exiges que cette entente soit redigee en anglais.
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