Terms And Conditions
JAYTECH TERMS AND CONDITIONS
These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) by Jaytech, Inc., a Minnesota corporation (“JAYTECH”), to the business entity identified on the JAYTECH Quotation or Confirmation accompanying this document (“Buyer”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
The accompanying Quotation or Confirmation of Sale (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend
1. JAYTECH agrees to sell, transfer and deliver the Goods to Buyer in accordance with terms and conditions contained herein.
2. Any price quoted by JAYTECH is good for a period of no more than thirty (30) days from the date of the quote after which JAYTECH reserves the right to change any and all price schedules, list prices, and rates. Buyer can obtain an updated price schedule by contacting its designated sales representative. Prices quoted are before all applicable sales, use and similar taxes, shipping costs, duties or other assessment all of which Buyer shall be responsible for.
3. In the event Buyer issues a purchase order to JAYTECH, each purchase order shall contain a description of the Goods ordered, the quantities and prices, and the requested shipment schedule. Despite any provisions to the contrary, all such orders will be and are made pursuant and subject to these Terms and JAYTECH written confirmation, whether specifically stated or not. If there is any inconsistency between these Terms and the terms of a purchase order, these Terms shall prevail. No waiver, alteration or modification of any of the provisions hereof shall be binding on JAYTECH unless made in writing and agreed to by a duly authorized officer of JAYTECH. Waiver by JAYTECH of any default by the Buyer hereunder shall not be deemed a waiver of any default by Buyer which may thereafter occur.
4. Buyer shall make full payment within thirty (30) days from the date of delivery or before the expiration of the period set forth on the Sales Confirmation or invoice for net payment, whichever is earlier (the “Due Date”). All invoices unpaid beyond the Due Date shall bear interest at an annual rate of eighteen (18%) percent from the Due Date. Buyer’s failure to make payment in accordance with these Terms shall relieve JAYTECH from further performance under these Terms. In addition, in the event Buyer fails to make payment in accordance with these Terms, JAYTECH shall be entitled to its reasonable costs of collection, including, but not limited to, attorney’s fees and court costs. Net 30 days means thirty (30) days from delivery of Goods or performance of services. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with JAYTECH, whether relating to JAYTECH’s breach, bankruptcy or otherwise.
5. JAYTECH MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; OR (D) 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.
6. IN NO EVENT SHALL JAYTECH BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT JAYTECH HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL JAYTECH’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO JAYTECH FOR THE GOODS SOLD UNDER THE SPECIFIC QUOTATION OR PROPOSAL IN QUESTION.
7. Within thirty (30) days of delivery to Buyer of Goods, the Buyer shall inspect the same and immediately notify JAYTECH of any defects in the Goods. Failure to so notify JAYTECH in writing of any defects within thirty (30) days of receipt shall constitute conclusive proof that the Goods were received without defects. If Buyer timely notifies JAYTECH of any defects in the Goods, JAYTECH shall, in its sole discretion, (i) replace such defective Goods with conforming Goods, or (ii) credit or refund the price for such defective Goods. Notwithstanding the foregoing, in no event shall JAYTECH be responsible for any damage caused to the Goods during shipment. It is the sole responsibility of the Buyer to file any appropriate claims with the carrier for reimbursement. JAYTECH will fully cooperate with the Buyer in making such claims. Buyer acknowledges and agrees that the remedies set forth this Section are Buyer’s exclusive remedies for the delivery of defective Goods.
8. Unless otherwise specified in writing in connection with a particular order or agreement, title to and risk of any loss of or damage to the Goods shall pass from JAYTECH to the Buyer on JAYTECH placing same in the custody of a carrier for shipment to Buyer. Passing of title upon such delivery shall not constitute acceptance of the Goods.
9. JAYTECH will use its commercially reasonable efforts to meet mutually agreed upon installation and delivery dates. If installation or deliveries are not timely, Buyer shall give JAYTECH notice of such failure and allow JAYTECH reasonable time to make the delivery. JAYTECH will be allowed at least twenty-one (21) days to make the delivery.
10. Buyer shall not assign any right or interest in these Terms or any quotation without the written consent of JAYTECH. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms.
11. If any part of these Terms, or any order there under, is void, voidable, invalid, or unenforceable, for any reason, these Terms or such order shall then be considered divisible as to such part with the remainder of these Terms or such order remaining as valid and binding as though such part were not included in the document.
12. JAYTECH shall not be liable to the Buyer for failure to perform its obligations under any order for Goods due to fire, flood, strikes, or other industrial disturbances, accidents, war, riot, insurrection, or other causes beyond the reasonable control of JAYTECH
13. After acceptance by JAYTECH, cancellation or change in any quotation by Buyer shall not be effective without notice received, agreed to, and confirmed in writing by JAYTECH In the event JAYTECH, in its discretion, approves Buyer’s cancellation of an order, Buyer shall pay a cancellation fee (as liquidated damages and not a penalty) of fifty percent (50%) of the total quoted price, for JAYTECH’s labor, material and overhead costs. Any changes to the quotation shall be subject to additional charges and these Terms. In addition to all other available remedies, JAYTECH may terminate Buyer’s orders or deliveries upon (i) any default by Buyer of the provisions of these Terms or (ii) Buyer becoming insolvent, filing a petition for bankruptcy or commencing or having commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. Any such termination shall be without prejudice to the accrued rights of JAYTECH All rights and remedies of JAYTECH are cumulative.
14. All non-public, confidential or proprietary information of JAYTECH, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by JAYTECH to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized in advance by JAYTECH in writing. Upon JAYTECH’s request, Buyer shall promptly return all documents and other materials received from JAYTECH. JAYTECH shall be entitled to injunctive relief for any violation of this Section. This Section does 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.
15. This document and the sale of Goods by JAYTECH to Buyer shall be construed and enforced under the laws of the State of Minnesota and the parties hereto agree that state of MN shall have exclusive jurisdiction of all legal actions concerning any dispute or claim arising hereunder.
16. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
17. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
18. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement
19. In cases where the Goods include a manufacturer’s warranty, JAYTECH will use commercially reasonable efforts to advise Buyer of the existence and terms of such warranty and pass such warranty on to Buyer.