These JM Swank, LLC General Terms and Conditions (these “Terms and Conditions”) apply to all orders (each, an “Order”) submitted by you or any of your affiliates (each, and collectively, “Buyer”) for goods (“Goods”).
SELLER HEREBY EXPRESSLY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PREVIOUSLY PROPOSED OR DEMANDED BY BUYER, WHETHER OR NOT CONTAINED IN ANY OF BUYER’S ORDERS OR OTHER BUSINESS FORMS, AND SUCH ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL BE VOID AND OF NO EFFECT UPON SELLER. SELLER RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO MODIFY OR REPLACE THESE TERMS AND CONDITIONS AT ANY TIME, AND SUCH MODIFICATION OR REPLACEMENT SHALL APPLY TO ALL ORDERS FOR GOODS AFTER THE DATE OF SUCH MODIFICATION OR REPLACEMENT. IT IS BUYER’S RESPONSIBILITY TO REVIEW THESE TERMS AND CONDITIONS EACH TIME BUYER ORDERS GOODS FROM SELLER.
Price: Notwithstanding any term or condition to the contrary in an Order for Goods, the applicable prices for such Goods shall be the prices set forth in Seller’s written acknowledgment of the Order (each, “Seller’s Order Acknowledgement”). In the event that demurrage fees or other fees and costs (including any subsequent undercharge claims) are payable in connection with any shipment of Goods, Buyer agrees that it shall be responsible for reimbursing Seller for such fees and costs.
Buyer’s Financial Security: In the event that Seller determines at any time, in its sole and absolute discretion, that Buyer’s financial strength or creditworthiness is unsatisfactory, Seller shall have the right, at its sole election, to withhold further shipments of Goods, require immediate cash payments for past and future shipments and/or require other security satisfactory to Seller.
Payment Terms; No Right of Set-Off: Unless otherwise specified in Seller’s Order Acknowledgement or invoice with respect to an Order, payment terms applicable to such Order shall be NET 10 DAYS from the invoice date. If Buyer fails to pay any invoice in full on or by the due date set forth in such invoice, Seller shall have the right, in its sole and absolute discretion to: (a) charge Buyer interest on the unpaid amounts at an annual percentage rate of eighteen percent (18%), or the highest rate permitted by law; (b) declare the entire balance of Buyer’s account immediately due and payable; and/or (c) foreclose on any security interest that Seller may have in the Goods, in each case, subject to any right Buyer may have pursuant to applicable law to cure such nonpayment. Buyer agrees to reimburse Seller for all costs of collection incurred by Seller, including, without limitation, actual attorneys’ fees and costs. Under no circumstances shall Buyer have a right of set-off against payments owed to Seller or any of its affiliates.
Blanket Purchase Orders: If an Order for Goods acknowledged by Seller’s Order Acknowledgement provides that delivery of such Goods from Seller to Buyer is required or authorized in separate lots to be separately shipped to Buyer, Buyer may only reject such portion of such lot or shipment that is Nonconforming (as defined below) pursuant these Terms and Conditions, and Buyer may not reject any other portion, in each case, unless such right of rejection is expressly stated in Seller’s Order Acknowledgement with respect to such Goods.
Shipping; Delivery; FOB, Carrier: Unless an Order acknowledged by Seller’s Order Acknowledgement sets forth definitive shipping dates, Buyer shall furnish written shipping instructions to Seller in ample time for Seller to execute delivery of the Goods pursuant to the applicable Order acknowledged by Seller’s Order Acknowledgement and in a manner that will reduce the quantity of the Goods described in such Order proportionately over the term of such Order. Unless otherwise expressly agreed upon in writing by Seller, Goods will be shipped to Buyer by any common carrier that Seller deems satisfactory. Unless FOB, Buyer’s facility is specified in an Order acknowledged by Seller’s Order Acknowledgement, title and risk of loss to the Goods purchased under such Order shall pass from Seller to Buyer when the Goods are placed by Seller with the common carrier, and Buyer hereby assumes all responsibility for shortages, losses, delays or damage in transit thereafter. Delivery of Goods is not guaranteed to the destination, and claims for shortages or damages in transit must be made by Buyer to the carrier before the Goods are unloaded. Time of delivery is not of the essence. Acceptance by Buyer of any Goods shall constitute a waiver by Buyer of any claim for damages on account of any delay in delivery of such Goods.
Cancellation of Orders by Seller: Notwithstanding Seller’s Order Acknowledgement with respect to an Order, Seller reserves the right to cancel such Order as it applies to Goods remaining unshipped up to the following percentages of the total weight of the Goods ordered over the term of such Order: twenty-five percent (25%) through the first quarter of the term; fifty percent (50%) through the second quarter of the term; and seventy-five percent (75%) through the third quarter of the term. Notwithstanding Seller’s Order Acknowledgement with respect to an Order, Seller also reserves the right to limit the quantity of Goods shipped under such Order, on a quarterly basis, to twenty-five percent (25%) of the total weight of the Goods ordered.
Inspection and Acceptance; Returns and Re-stocking Fees: Buyer shall inspect all Goods immediately upon receipt of shipment of such Goods at its facility. WITH RESPECT TO EACH SHIPMENT OF GOODS TO BUYER, BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH GOODS, UNLESS BUYER SENDS WRITTEN NOTICE OF REJECTION OF THE GOODS, SPECIFYING IN DETAIL THE GROUNDS FOR SUCH REJECTION, TO SELLER AT SELLER’S ADDRESS FOR NOTICES, AS SET FORTH IN THESE TERMS AND CONDITIONS, IN EACH CASE, WITHIN TEN (10) DAYS FROM THE DATE OF BUYER’S RECEIPT OF THE SHIPMENT. Goods, once accepted by Buyer, including, without limitation, any Non-conforming Goods (as defined below) may not be returned without the prior written approval of Seller, in its sole and absolute discretion, and, if Seller provides such written approval, Buyer agrees to pay Seller all freight back to seller and a restocking fee of twenty-five percent (25%) of the invoice price for the returned Goods.
Seller’s Limited Warranty: Seller warrants that, as of the date of shipment of Goods pursuant to an Order acknowledged by Seller’s Order Acknowledgement, Seller has not caused such Goods, solely while in Seller’s care, custody or control, to be adulterated, misbranded or otherwise not permissible to be introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act, as amended, or any other applicable federal, state or municipal statutes, ordinances, rule or regulations (such Seller’s warranties are collectively, “Seller’s Limited Warranty”). SELLER MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS AND WITH RESPECT TO THE GOODS AND EXPRESSLY DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSES. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Non-Conforming Goods; Sole Remedy; Process for Warranty Claims: In the event that any Goods shipped to Buyer fail to comply with Seller’s Limited Warranty (such Goods, “Non-conforming Goods”): (a) Buyer shall provide written notice of such Non-conforming Goods, specifying in detail the grounds for such non-conformance, to Seller at Seller’s address for notices, as set forth in these Terms and Conditions, in each case, within ten (10) days from the date of Buyer’s receipt of the shipment of the Non-conforming Goods; and (b) Buyer’s sole and exclusive remedy shall be to receive a credit from Seller to Buyer’s account in the amount of Seller’s invoice price for such Non-conforming Goods. In the event that Buyer fails to provide written notice of any Non-conforming Goods as required pursuant to clause (a) of this paragraph, including, without limitation, by the expiration of the ten (10)-day period specified in such clause (a), Buyer shall be deemed to have accepted, and waived and released any claim or right of recovery with respect to, such Non-conforming Goods. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Notices to Seller: Any notices to Seller required or permitted under these Terms and Conditions shall be in writing and deemed properly given when sent via facsimile transmission and/or certified mail, return receipt requested, and addressed as follows: JM Swank, LLC, 395 Herky Street, North Liberty, Iowa, 52317, Attention: Quality Assurance. Any such notices shall be deemed given on the date received by Seller.
Confidential Information: Buyer agrees that is shall not disclose any proprietary or confidential information (which shall include, without limitation, pricing information) of Seller or any of its affiliates to any third party. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Force Majeure: Seller shall not be liable for any failure or delay in performance where such failure or delay has been occasioned by fire, flood, earthquake, embargo, act of terrorism, war, accident, act of God, crop failure or shortage, strike or other labor disturbances, voluntary or involuntary compliance with any valid or invalid law or regulation of any governmental entity, lack of transportation facilities, or other cause beyond the control of Seller (each, a “Force Majeure Event”). In the event that any shipment of Goods pursuant to an Order acknowledged by Seller’s Order Acknowledgement, is delayed or made impossible, whether in whole or in part, due to a Force Majeure Event, Seller shall have the right, without penalty or liability, to cancel such Order or to reduce or pro-rate the quantity of Goods shipped to Buyer under such Order.
Buyer’s Default: In the event that Buyer (a) fails to make any payment to Seller when due; (b) fails to perform any of its obligations under these Terms and Conditions or any other agreement between Seller and Buyer; or (c) makes an assignment for the benefit of its creditors, a petition under any state or federal bankruptcy or insolvency law is filed by or against Buyer, or a receiver of Buyer’s property is appointed, Seller shall have the right, in addition to all other rights and remedies to which Seller may be entitled under applicable law or in equity, to immediately terminate any Order acknowledged by Seller’s Order Acknowledgment and/or withhold further deliveries of Goods to Buyer, in each case, upon written notice to Buyer.
Buyer’s Indemnification: Buyer acknowledges and agrees that Buyer shall be solely responsible for determining the adequacy of the Goods for Buyer’s proposed uses of such Goods. Buyer agrees to indemnify and hold Seller and its affiliates, and their respective officers, directors, managers, members, owners, partners, employees, agents, representatives, predecessors and successors harmless from and against any and all claims, lawsuits, demands, damages, liabilities, losses, costs and expenses, including, without limitation, actual attorneys’ fees and costs, arising out of or in connection with Buyer’s (a) sale, distribution, advertisement or other use of the Goods; (b) failure to comply with any applicable federal, state, foreign or local laws; or (c) breach of these Terms and Conditions. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Limitations on Liability; No Consequential Damages. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S PURCHASE OR USE OF THE GOODS. SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS. SELLER’S TOTAL LIABILITY TO BUYER FOR DIRECT DAMAGES ARISING FROM ANY GOODS SHIPPED TO BUYER OR BUYER’S USE OF SUCH GOODS, SHALL BE LIMITED TO SELLER’S INVOICE PRICE FOR THE GOODS. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OR EXPIRATION OF BUYER’S BUSINESS RELATIONSHIP WITH SELLER.
Arbitration; Governing Law; Venue; Waiver of Jury Trial: Any controversy or claim arising out of or relating to any Order, Seller’s Order Acknowledgment, invoice, these Terms and Conditions, or any other agreement between Seller and Buyer shall be settled by arbitration conducted in Iowa in accordance with the Iowa Arbitration Act, Code Ch. 679A, as may be amended from time to time. The rights of the parties hereunder shall be construed under and governed by the laws of the State of Iowa without regard to its conflicts of laws rules. Buyer and Seller acknowledge that although they intend arbitration to be mandatory, if the arbitration provisions contained in this paragraph are deemed unenforceable and litigation or other legal proceeding results, any such litigation or proceeding shall only be brought in either the state or federal courts located in Iowa, and the parties each hereby waive their right to object to such forum on the basis that it constitutes an inconvenient forum or that such courts lack jurisdiction. EACH OF BUYER AND SELLER HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT OR PROCEEDING ARISING UNDER ANY ORDER, SELLER’S ORDER ACKNOWLEDGEMENT, INVOICE, THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT BETWEEN SELLER AND BUYER. Notwithstanding the foregoing, Seller shall have the right to seek injunctive relief, specific performance or similar relief from any state or federal court sitting in Iowa having jurisdiction thereof. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Assignment: Buyer shall not assign these Terms and Conditions or any Order acknowledged by Seller’s Order Acknowledgement, or any other agreement between Seller and Buyer, whether in whole or in part, to any third party without the prior written consent of Seller, which Seller may withhold in its sole and absolute discretion.
Interpretation: Whenever possible, each provision of these Terms and Conditions shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of these Terms and Conditions shall be prohibited by or invalid under applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of these Terms and Conditions.
Waiver: Any failure by Seller to exercise any right or remedy to which it may be entitled under any Order, Seller’s Order Acknowledgement, invoice, these Terms and Conditions or any other agreement between Seller and Buyer, shall not be construed as a waiver of such right or remedy unless such waiver is expressly stated in a writing signed by Seller, and any such waiver shall not be deemed to be a waiver of any other right or remedy. All rights reserved.