These Terms and Conditions (these “Terms and Conditions”), together with all credit applications, quotations, sales orders, and invoices (each a “Sales Document,” and collectively with these “Terms and Conditions,” the “Agreement”) issued by JERGENS, INC. (“Jergens”) to the buyer (“Buyer”), govern each sale of products by Jergens to Buyer (“Products”).
1. Exclusive Terms and Conditions
The parties intend for the Agreement to exclusively govern and control each of the parties’ respective rights and obligations regarding the sale of Products. Buyer’s acceptance of Products is strictly limited to the terms and conditions in the Agreement. Without limiting the foregoing, any additional or different terms contained in any purchase order or other request or communication by Buyer, whenever delivered, pertaining to Products, or any attempt to modify, supersede, supplement, or otherwise alter the Agreement, will not modify the Agreement nor be binding on the parties. In the event of a conflict between these Terms and Conditions and a Sales Document, these Terms and Conditions will control, except for terms relating to Product description, quantity, specifications, price, or payment, in which case the applicable Sales Document will control.
2. Sale of Products; Price and Payment
(a) Jergens shall sell to Buyer, and Buyer shall purchase from Jergens, the Products set forth on the applicable Sales Document, at the prices and payment terms set forth on the applicable Sales Document (the “Prices”). Without limiting the foregoing, until an order is accepted by Jergens, quoted prices are subject to change without notice. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, tariffs, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. All Prices are based on Buyer accepting over-run or under-run on each Product not exceeding 10% of quantities ordered.
(b) Jergens may offer modified versions of standard Products or special manufactured Products (“Special Orders”) within the following parameters: (a) minimum production run quantities may be required; (b) specification approval (i.e. signed drawing) is required prior to the start of production; (c) Production run quantities may vary by +/-10% (exact quantities of Special Orders may incur an additional fee); (d) Special Orders cannot be cancelled or returned once Jergens receives production approval; (e) Special Orders are subject to a pricing review prior to the acceptance of orders/re-orders; (f) Special Order delivery lead time must be confirmed with Jergens upon receipt of order; and (g) deposit may be required.
(c) In order for Jergens to continue providing the highest quality Product at reasonable prices, Jergens requires a minimum order value of $50.00 net (not including freight and handling charges). Orders less than $50.00 will be processed with a nominal small order charge of $10.00.
(d) Jergens accepts an order by confirming the order in writing or by delivering the Products to Buyer, whichever occurs first. Jergens may reject an order or cancel a previously accepted order, which it may do without liability or penalty, and without constituting a waiver of any of Jergens’ rights or remedies under the Agreement, by providing written notice to Buyer specifying the applicable date of rejection or cancellation. All orders and contracts are subject to acceptance at Jergens’ home office.
(e) Buyer shall make all payments due to Jergens upon the terms set forth on the applicable Sales Document in immediately available funds. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Jergens for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys’ fees.
(f) Products are sold on a firm sale basis. Orders cannot be cancelled by Buyer without the written consent of Jergens (an “Authorized Return”). An Authorized Return must be accepted back by Jergens in resalable condition, and any credit given is subject to reasonable fees and expenses incurred by Jergens, including, without limitation, cost for (1) all work completed at the unit price, (2) work in process on the basis of the percentage of completion thereof multiplied by the order unit price, (3) raw material, (4) unamortized tooling, (5) engineering, (6) restocking, and (7) shipping and handling, plus other cancellation charges incurred by Jergens.
(g) Buyer shall not, and acknowledges that it will have no right, under the Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed to Jergens against any other amount owed to it by Jergens.
3. Product Changes
Jergens is committed to continuous improvement of its Products, therefore, Jergens reserves the right to make changes in engineering, design, specification, manner of construction, or delivery at any time without notice and without incurring any obligation toward Buyer or any user of the Products. Without limiting the foregoing, Jergens recommends that Buyer download the most current Product drawing from Jergens’ website (www.jergensinc.com) or contact a Jergens Customer Service representative at 1-800-537-4367, to verify current dimensions and specifications of a Product before placing an order.
Jergens can provide certain certifications (e.g., C of C, DFARS, RoHS, MIL-SPEC, and PPAP). All requests for certifications must be listed on Buyer’s purchase order at the time the order is placed. Additional fees may apply for certain certifications. For more information, please see Certification Packages & Costs.
(a) Products will be delivered on or around the estimated delivery date set forth on the applicable Sales Document. All Products are FOB Shipping Point. Jergens shall not be liable for any delays, loss, or damage in transit. Jergens will ship Products to the location set forth on the applicable Sales Document (the “Delivery Point”) using Jergens’ standard methods for packaging and shipping, unless otherwise agreed to in writing. Jergens may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for Products shipped whether such shipment is in whole or partial fulfilment of all Products purchased under the Sales Document.
(b) If for any reason Buyer fails to accept delivery of any Products, or if Jergens is unable to deliver Products because Buyer has not provided appropriate instructions, documents, licenses, or authorizations: (i) risk of loss to Products will pass to Buyer; (ii) Products will be deemed to have been delivered; (iii) Jergens, at its option, may store Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and (iv) Buyer will compensate Jergens for any other associated loss, damage, costs, and expense suffered or incurred by Jergens as a result of such delay.
(c) As collateral security for the payment of the purchase price of Products, Buyer hereby grants to Jergens a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. This security interest constitutes a purchase money security interest under the Ohio Uniform Commercial Code.
6. Inspection and Rejection of Nonconforming Products
Buyer shall inspect Products within 10 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted Products unless it notifies Jergens in writing of any Nonconforming Products during the Inspection Period and furnishes written evidence or other documentation Jergens may require. “Nonconforming Products” means Products delivered that Jergens determines, in its sole judgement, are (a) damaged by Jergens or (b) not in conformance with the specifications set forth on the applicable Sales Document. Jergens shall, in its sole discretion, (i) replace the Nonconforming Products with conforming Products, or (ii) credit or refund the pro-rata Price for the Nonconforming Products. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this Section, all sales of Products to Buyer are made on a one-way basis, and Buyer has no right to return Products to Jergens.
7. Limited Warranty
(a) Jergens takes great pride in creating value for its customers and strives to provide Products that exceed expectations. Consistent quality is paramount to Jergens, therefore, Jergens is a registered ISO 9001: 2015 manufacturer, and its Center and Side Pull Hoist Rings are CE Certified. To this end, Jergens warrants to Buyer that Products will be free from defects in material and workmanship (the “Limited Warranty”). Except for the limited warranty, products are being sold “as-is,” and Jergens makes no warranty whatsoever with respect to products, including any warranty of merchantability or warranty of fitness for a particular purpose, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise.
(b) Products manufactured by a third party (“Third-Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, Products. Third-Party Products are not covered by the Limited Warranty, and the only warranties that will apply to Third-Party Products will be the warranties made by the manufacturer of the Third-Party Products, to the extent transferable to Buyer. For the avoidance of doubt, Jergens makes no representations or warranties with respect to any Third-Party Product, including any warranty of merchantability, warranty of fitness for a particular purpose, warranty of title, or warranty against infringement of intellectual property rights of a third party, whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise. Repairs made by Jergens to (a) Third-Party Products or (b) Products due to a failure of Third-Party Products, will be paid by Buyer at Jergens’ then-current rates.
(c) Jergens shall not be liable for a breach of the Limited Warranty unless: (i) Buyer gives written notice of the defect, reasonably described, to Jergens within 10 days of the time when Buyer discovers or should have discovered the defect; (ii) Jergens is given a reasonable opportunity after receiving the notice to examine such Products; (iii) Buyer contacts Jergens customer service department and obtains a Returned Material Authorization ; (iv) Buyer returns such Products to Jergens’ place of business, at Buyer’s expense, for examination; and (v) Jergens verifies Buyer’s claim that the Products are defective.
(d) Jergens shall not be liable for a breach of the Limited Warranty if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Jergens’ instructions as to the storage, installation, commissioning, use or maintenance of Products; (iii) a third party damages the Products, (iv) Buyer or any third party alters or repairs the Products; (v) Products are designed by or provided by Buyer; or (vi) the cause of action is not commenced within one year from the date the action accrues.
(e) Subject to Section 7(c) and Section 7(d), with respect to any defective Products, Jergens shall, in its sole discretion, either: (i) repair or replace the Products (or the defective part) or (ii) credit or refund the price of the Products at the pro rata contract rate.
(f) THE REMEDIES SET FORTH IN SECTION 7(e) ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND JERGENS’ ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY.
8. Limitation of Liability
(a) IN NO EVENT WILL JERGENS BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATED TO PRODUCTS OR THE AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT WILL JERGENS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO PRODUCTS OR THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO JERGENS FOR THE PRODUCTS GIVING RISE TO THE CLAIM.
(c) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF PRODUCTS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS, OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY JERGENS, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
9. Intellectual Property
All intellectual property rights in and related to the Products (and all accompanying information, specifications, and drawings), including any replication, copy, derivative, improvement, or progeny thereof, shall be and remain, vested in Jergens (“Jergens IP”), and under no circumstances shall Buyer have any right under or to Jergens IP. Buyer shall not use any Jergens IP without Jergens’ prior written consent.
In line with the general practice of the industry, the fact that Jergens find it necessary to charge for tools, dies, fixtures, or gages does not convey ownership or the right to remove such tools, dies, fixtures, or gages from Jergens’ factory, unless specifically agreed upon in writing by Jergens.
11. Compliance with Law
Buyer is in compliance with and shall comply with all domestic and foreign laws, regulations, and ordinances applicable to its purchase and use of the Products. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to own and use the Products and carry out its obligations under the Agreement.
12. California Proposition 65
Any Products manufactured, distributed or provided by Jergens and obtained or purchased by Buyer, whether for distribution, resale, use, or otherwise, will be labeled in compliance with California's Proposition 65 law and implementing regulations. Buyer shall notify Jergens of any Product without a Proposition 65 label. Upon Jergen’s receipt of such notice, Jergens, in its sole discretion, will instruct Buyer to either (a) return any or all such Products to Jergens, whereupon Jergens will replace such returned Products with properly-labeled Products, or (b) retain any or all such Products, in which case Jergens shall provide labels and further instructions for the labeling of such Products. Buyer agrees to certify to Jergens its compliance with any and all instructions provided in accordance herewith, as required by Proposition 65 and otherwise as Jergens may reasonably request from time to time. Buyer agrees to indemnify Jergens for all claims, actions, and suits arising from any actual or alleged violation of Proposition 65 relating in any way to any Product provided by Jergens to Buyer.
Buyer shall indemnify, defend, and hold harmless Jergens and its shareholders, officers, directors, employees, agents, affiliates, successors, and assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, fees, or expenses of whatever kind, including reasonable attorneys’ fees, and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers, in any way relating to a claim arising out of or occurring in connection with (a) the Products, (b) Buyer’s negligence or willful misconduct, (c) Buyer’s breach of the Agreement, or (d) Buyer’s infringement or violation of a third party’s intellectual property rights. Buyer shall not enter into any settlement without Jergens’ prior written consent.
Buyer will at all times maintain liability insurance with limits in commercially reasonable amounts for death, bodily injury, and property damage. Upon request, Buyer shall provide verification of this insurance coverage by submitting a certificate of insurance to Jergens. Buyer’s liability under the Agreement is not limited to the sum insured.
In addition to any remedies that may be provided in the Agreement, Jergens may terminate the Agreement and any Sales Document with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due; (ii) has not otherwise performed or complied with the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
16. Confidential Information
All non-public, confidential, or proprietary information of Jergens, including, without limitation, the terms and provisions of all Sales Documents, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not identified as “confidential,” is confidential, and may be used by Buyer solely for the use of performing under the Agreement and may not be disclosed or copied unless authorized by Jergens in writing. Upon Jergens’ request, Buyer shall promptly return all documents and other materials containing Jergens’ confidential information. Jergens shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
17. Cumulative Remedies
All rights and remedies of Jergens provided in the Agreement are cumulative and not exclusive, and the exercise by Jergens of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise.
18. Attorneys’ Fees
In any dispute concerning the Products or the Agreement, the prevailing party shall be entitled to recover its costs and expenses, including reasonable attorneys’ fees and expenses, costs of investigation, costs of any accounting or other professional advisers engaged to assist the prevailing party, and other reasonable out-of-pocket costs, in addition to any other relief to which such party may be entitled.
Buyer may not assign or transfer any of its rights or obligations under the Agreement without the prior written consent of Jergens. Any purported assignment, transfer, or delegation in violation of this Section shall be null and void. No assignment, transfer, or delegation shall relieve Buyer of any of its obligations under the Agreement.
20. Independent Contractor
Each party shall be considered to be an independent contractor under the Agreement. The relationship between the parties shall not be construed to be that of employer and employee, nor to constitute a partnership, joint venture or agency of any kind. Neither party shall have the right to bind the other party to any contract or other commitment.
21. Third Party Beneficiaries
Except as provided for in Section 13, no provision of the Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any person other than the parties and their respective successors and permitted assigns.
If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Any delay or failure of Jergens to perform its obligations under the Agreement will be excused to the extent that the delay or failure was caused by an event or events beyond Jergens’ control (including, without limitation, natural disasters, embargoes, epidemics, government orders, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns, or other industrial disturbances, and shortage of adequate power or transportation facilities).
No waiver by Jergens of any of the provisions of the Agreement will be effective unless explicitly set forth in writing and signed by Jergens. No waiver by Jergens will operate or be construed as a waiver in respect of any failure, breach, or default not expressly identified by such written waiver, whether of a similar or different character, and whether occurring before or after that waiver.
Any notices under or pursuant to the Agreement will be deemed duly sent when delivered (a) to Jergens at 15700 South Waterloo Rd. Cleveland, OH 44110 and to Buyer at an address previously provided to Jergens, in person, by courier, by registered or certified mail, return receipt requested, by FedEx or UPS, or (b) by email to an address specified in writing by the receiving party (with confirmation of receipt).
26. Entire Agreement; Amendments
The Agreement constitutes the entire agreement between the parties and supersedes all other communications, oral and written, between the parties relating to the subject matter of the Agreement. The Agreement may be amended, modified, or supplemented only by an agreement in writing signed by both parties.
27. Choice of Law and Forum
The Agreement shall be governed by and construed in accordance with the internal laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action or proceeding arising out of or related to the Agreement, or the matters contemplated under the Agreement, shall be instituted exclusively in the federal or state courts located in Cleveland, Ohio, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Neither the Uniform Law on International Sale of Goods, Uniform Law on Formation of Contracts for International Sale of Goods nor the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto) shall apply to the Agreement.