Terms & Conditions
1. Parties/Definitions. Carl Eric Johnson, Inc. is a party to this Agreement and is referred to herein as “Seller” and the person or company purchasing as indicated on the front hereof will be referred to as “Buyer.” All materials, goods, or work described on the front hereof, regardless of type, will be referred to as “Products.”
2. Prices/Payment. The prices stated herein do not include any charges for installation or any sale, use, or other taxes unless so stated specifically. Sales, use or other taxes will be added to invoice prices in those instances in which Seller is required to collect them from Buyer; provided, however, that if Seller does not collect any such taxes and is later asked by or required to pay the same to any taxing authority, Buyer will make such payment to Seller or, if requested by Seller, directly to the taxing authority. At Seller’s option, prices may be adjusted to reflect any increase in the costs to Seller resulting from state, federal, or local legislation, or any change in the rate, charge, or classification of any carrier. Unless otherwise specified by Seller, payment will be net/cash 30 days from the date of invoice. Invoices unpaid and past due will be subject to a service charge on the unpaid balance at the maximum allowable interest rate under applicable law, and Buyer shall be responsible and liable for all expenses incurred by Seller in collection, including reasonable attorney’s fees. Buyer shall make no set-off deduction without Seller’s written consent.
3. Title/Risk of Loss. Regardless of the manner of shipment, title to any Products and risk of loss or damage thereto shall pass to Buyer upon tender to the carrier at the Seller’s shipping point, except on those instances which deliver is made by Seller’s vehicles. Unless otherwise stated herein, Buyer may exercise its judgment in choosing the carrier and means of delivery. No deferment of shipment at Buyer’s request beyond the respective dates indicated will be made except on terms that will indemnify Seller against all loss and additional expense, including, but not limited to demurrage, handling, storage, and insurance charges.
4. Delivery Time/Force Majeure. All delivery dates are approximate, and Seller shall not be responsible for any damages of any kind resulting from any delay. Seller shall not be liable for any default or delay in performance if caused, directly or indirectly, by acts of God; war; force of arms; fire; the elements; riot; labor disputes; sabotage; civil commotion; accidents; any governmental action, prohibition or regulation; delay in transportation facilities; shortage of breakdown of or inability to obtain or non-arrival or any material or equipment used in the manufacture of the Products; failure of any party to perform any contract with Seller relative to the production of the Products; or from any cause whatsoever beyond Seller’s control, whether or not such cause be similar or dissimilar to those enumerated. Seller shall notify Buyer of the happening of any such contingency and of the contemplated effect thereof on the delivery of the Products. Performance time under the Agreement shall be considered extended for a period of time equivalent to the time lost because of any delay which is excusable under this Section; provided that if any such delay continues for more than sixty (60) calendar days, Buyer shall have the option of terminating its order upon written notice to Seller. If by request of Buyer, with the written consent of Seller, shipment is delayed beyond the original delivery date for a reason other than as set forth above in this Section 4, Buyer will pay a reasonable charge for storage and other expenses caused by the delay, and after the delay is ended, the Agreement will be completed at the prices previously agreed upon and on the terms as set forth herein.
5. Warranty. Seller warrants Products to be free from defects in material and workmanship, under normal and proper installation and use in accordance with instructions of Seller, for a period of one year from the date of shipment from Seller. Seller’s liability under such warranty or in connection with any other claim relating to the Products shall be limited to the repair, or at Seller’s option, the replacement or refund of the purchase price, or any Products or parts or components thereof which are returned to Seller and which are defective in material or workmanship. Seller makes no warranty with regard to Products that have been repaired or altered by Buyer or some third party. Metals used in the Products are certified to be of the specified analysis, however materials are not guaranteed against chemical attack. This warranty does not cover deterioration by corrosion or aging of non-metallic parts, including stress corrosion or any other cause of failure other than defects in workmanship and materials, nor does Seller warrant the performance of any elastomer subjected to severe service due to temperature and/or chemical environment. Except as expressly stated above, Seller makes no warranty, express or implied, whether of
merchantability, or fitness for any particular purpose or use or otherwise, on the Products, or on any parts or labor furnished during the sale, delivery or servicing of the Products. Any third party warranties provided on equipment or parts not manufactured by Seller are assigned to Buyer, without recourse, at the time of delivery, provided such warranties are assignable.
6. Limitation of Liability. In no event shall Seller be liable to Buyer for any special, indirect, incidental or consequential damages arising out of, or as the result of, the sale, delivery, servicing, use or loss of use of the products or any part thereof, or for any charges or expenses of any nature incurred without Seller’s written consent, regardless of whether Seller may have been negligent or the form of action whether arising from contract, negligence, tort, strict liability, or otherwise. In no event shall Seller’s liability under any claim (whether arising in contact, negligence, tort strict liability or otherwise) made by Buyer exceed the purchase price of the Products in respect of which damages are claimed.
7. Drawing Approval. Custom orders are built in accordance with drawings as approved by Buyer. Buyer accepts ultimate responsibility for material selection and design approval. Buyer and Seller acknowledge that approved drawings are the ultimate design directive from Buyer to Seller and supersede any other directive, specifications or other design documents that may exist.
8. Cancellation. After acceptance by Seller, neither this Agreement nor any orders hereunder shall be subject to cancellation by Buyer except with Seller’s consent and upon terms that will indemnify Seller against all direct, incidental and consequential loss or damage.
9. Inspection of Products. Buyer shall promptly inspect all Products upon delivery. No claims for shortages will be allowed unless such shortages are reported to Seller within 20 days after shipment. No other claims against Seller will be allowed unless asserted in writing within 60 days after shipment, or in the case of an alleged breach of warranty, within 60 days after the date on which the defect is or should have been discovered by Buyer. In making any claims relating to the Products, including claims under the Seller’s warranty as set forth herein, and provided that such date is within the warranty period, Buyer shall comply fully with such warranty terms as in effect on the date of shipment of Products from Seller to Buyer.
10. Intellectual Property Infringement. Seller shall not be liable for, and shall have no duty to provide insurance against any damage or loss to any goods or materials of Buyer which are used by Seller in connection with any agreement or order governed by this Agreement. Where any product is manufactured from patterns, plans, drawings or specifications furnished by Buyer, Buyer shall indemnify Seller against and shall hold Seller harmless from all loss, damage and expense arising out of any suit or claim against Seller for infringement of any patent, trademark, or copyright because of the use or sale of such Product by any person.
11. Title to Drawings, Designs and Specifications. Any specifications, drawings, notes, instructions, engineering notices or technical data of Seller coming into the hands or control of the Buyer shall be deemed to be incorporated herein by reference the same as if fully set forth. The Seller shall at times retain title to all such documents and Buyer shall not disclose such to any party other than Seller or a party duly authorized by Seller. Upon the completion, cancellation or termination of this Agreement or any order hereunder, Buyer shall promptly return all such documents to Seller.
12. Further Assurances. If the Seller shall at any time doubt the Buyer’s financial responsibility, Seller may decline to make shipments hereunder except upon receipt of cash payment in advance or security satisfactory to Seller in advance. If Buyer fails in any way to fulfill or comply with the Terms and Conditions as set forth herein, or otherwise fails to fulfill any additional conditions as agreed upon by Buyer and Seller, Seller may defer further shipments until such default is corrected and may at its option of Seller treat such default as refusal by Buyer to accept further shipments hereunder.
13. Severability. In the event that any provision hereof shall violate any applicable statute, ordinance, or rule of law in any jurisdiction in which is it used, such provision shall be ineffective to the extent of such violation without invalidating any other provision hereof.
14. Entire Agreement. This document contains the entire agreement between Seller and Buyer and constitutes the final, complete and exclusive expression of the terms of the agreement, all prior or contemporaneous written or oral agreements or negotiations with respect to such terms as are included herein or are the subject matter hereof being merged herein. By way of illustration and not limitation, Buyer’s order shall be deemed to incorporate, without exception, all the Terms and Conditions hereof notwithstanding any order form of Buyer containing additional or contrary terms or conditions, unless Buyer shall have expressly advised Seller to the contrary in a writing apart from the printed provisions of such order form and no acknowledgement by Seller of, or reference by Seller to, or performance by Seller under, an order of Buyer shall be deemed to be an acceptance by Seller of any such additional or contrary printed terms or conditions. All orders are subject to final acceptance by Seller. In the event of a written request by Buyer for additional or contrary terms or conditions, then such modifications may only be made in these Terms and Conditions by a written instrument signed by one of the Seller’s officers.