1.Terms of Sale.Except as otherwise expressly agreed in writing by JDI, the Terms and Conditions (“Agreement”) shall control all aspects of the dealings between JDI and Buyer with respect to JDI’s Merchandise.All purchases and sales are subject to the terms and conditions as set forth in this document.JDI is not obligated to accept any or all purchase orders of Buyer, and each order is subject to JDI’s approval in its sole discretion.Any and all additional or conflicting terms presented in Buyer’s purchase orders or other documentation or oral negotiations between the Parties shall be deemed explicitly rejected by JDI and shall have no effect whatsoever.
2.Orders.Buyer may place written or telefaxed purchase orders.Such purchase orders shall describe the Merchandise ordered, the quantities requested, delivery dates requested, prices and shipping instructions, where appropriate.JDI is not obligated to accept any or all purchase orders of Buyer, and each order is subject to JDI’s approval in its sole discretion.
3.Sales Order and Confirmation.Once the purchase order is received and accepted by JDI, an assigned sales confirmation will be processed and transmitted to Buyer for confirmation. The order by Buyer will be processed upon JDI’s receipt of the signed sales confirmation from Buyer. For non-credit line Buyer, the order will be processed upon receipt of signed sales confirmation and full payment from Buyer.
4.Prices and Taxes.Prices shall be JDI’s published prices for Merchandise or as otherwise quoted by JDI to Buyer. JDI may adjust its prices and charges upon reasonable written notice to Buyer and JDI may increase prices due to circumstances beyond JDI’s reasonable control. Except for taxes on JDI’s income, Buyer shall pay all applicable taxes.
5.Minimum Order. Unless otherwise agreed by JDI, Merchandise is to be sold $150.00 for first order.
6.Payment.Unless otherwise agreed by JDI, all orders are to be paid by cash, check, credit card, and/or wire transfer on Net Thirty (30) Days of the date of the invoice issued by JDI.JDI reserves the rights to withhold or cancel any and all purchase orders in the event that Buyer is not making payments as they become due as determined by JDI in its sole discretion.Failure to meet the applicable payment terms will result in an interest charge of 1.5% per month on unpaid balance, together with reasonable handling charge, and JDI may cancel any of Buyer’s open orders.If Buyer has an outstanding balance with JDI, JDI reserves the right to reasonably delay any shipment of Merchandise to Buyer until full payment of that outstanding balance is received.
7.Cancellation and Returns.All purchase orders received and confirmed by JDI are non-cancelable.Any orders cancelled prior to shipment may be subject to a restocking fee of 20%. Unless otherwise agreed by JDI, all sales are final, and no returns will be accepted and no refunds or credits shall be issued to Buyer for any Merchandise returned or refused for delivery, with the exception of Merchandise that JDI, at its sole discretion, determines to be defective (“Defective Merchandise”).Merchandise may only be returned with a valid Return Merchandise Authorization (RMA) number issued by JDI.Defective Merchandise may be accepted only for credit or may be exchanged for the same item as determined by JDI[DL1].
8.Shipping.All shipments shall be either a) freight pre-paid with shipping charges added to the applicable invoice; or b) freight collect via Buyer’s assigned carrier account.JDI shall have the discretion to select the appropriate shipping method.
9.Delivery, Title and Risk of Loss.The Merchandise shall be shipped F.O.B. JDI’s shipping facility. Title to Merchandise and risk of loss to Merchandise, shall pass to Buyer upon JDI’s tender of delivery to the common carrier or Buyer’s designee (“Delivery”). Buyer shall accept partial shipments. All Merchandise shall be deemed accepted by Buyer upon Delivery, unless specifically rejected by Buyer.In the event of any misdelivery by a carrier, Buyer shall be liable for communicating and contacting such carrier and JDI shall reasonably assist Buyer in tracing the shipment.Buyer shall assume all risk of loss and pay all costs of insurance for the Merchandise upon delivery to the carrier by JDI.
10.Inspection and Claims.Buyer shall promptly inspect the Merchandise upon receipt.Any claims for damaged or defective Merchandise or shipment shortage shall be made by Buyer within ten (10) days from receipt of Merchandise.
11.Intellectual Property Rights.Except as otherwise authorized and licensed to Buyer, JDI shall retain all right, title and interest in and to all patents, copyrights, trade secrets, trademarks, product designs, and other intellectual property rights (collectively “Intellectual Property Rights”) in and to the Merchandise. Nothing under this Agreement shall be constructed as an express or implied grant of Intellectual Property Rights to Buyer by JDI.
12.Indemnification.Buyer agrees to reimburse, indemnify, hold harmless and defend at its expense JDI and its subsidiary and affiliated companies, each of their officers, employees and directors against any and all damage, loss, expense, claim, liability or penalty (“Claims”) arising out of or related to any purchase, use, possession, or sale of any Merchandise to the extent that the design or specifications of said Merchandise has been supplied by Buyer, including but expressly not limited to: (i) Claims arising out of or related to actual or alleged infringement of patents, copyrights, trademarks, licenses, or unfair competition and (ii) Claims arising out of or related to actual or alleged bodily injury, property or other damage.
13.Force Majeure.JDI shall not be liable for delays in delivery or performance, or for failure to manufacture, deliver or perform due to (i) causes beyond its reasonable control, or (ii) acts of God, acts of civil or military authority, governmental priorities, strikes or other labor disturbances, floods, epidemics, war, riot, delays in transportation or (iii) inability on account of causes beyond the reasonable control of JDI to obtain necessary materials, components, services or facilities.In the event of any such delay, the date of delivery or of performance shall be extended for a period of time equal to the time lost by the delay.
14.Limitation of Liability.JDI"s liability of any kind for any loss or damages arising out of, or resulting from this Agreement or from the performance or breach thereof, or from the Merchandise or services furnished hereunder, shall in no case exceed the price of the specific product or service which gives rise to the claim.
15.Warranty.NO STATUTORY OR IMPLIED WARRANTIES APPLY, JDI DISCLAIMS ANY AND ALL OTHER WARRANTIES AND REPRESENTATIONS. INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.IN NO EVENT SHALL JDI BE LIABLE FOR ANY LOSS OF USE, REVENUES, OR ANTICIPATORY PROFIT, OR FOR ANY DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR CONNECTED WITH THE SALE, USE, OPERATION, OR INABILITY TO USE THE MERCHANDISE TO THE EXTENT PERMITTED BY LAW.
16.Merchandise Change, Discontinuance and Obsolescence.Nothing in this Terms and Conditions shall be interpreted to require JDI to continue to sell or supply any of its Merchandise, or to continue, discontinue, modify, or change any pattern of Merchandise.JDI reserves the right to discontinue the manufacture or sale of, otherwise render or treat as obsolete, any or all of the Merchandise covered by this Terms and Conditions without any notice to Buyer.Upon discontinuance, JDI may, in its discretion, cancel Buyer’s open orders on discontinued Merchandise without any notice to Buyer.
a.Waiver; Notice; Entire Agreement; Amendment; Governing Law; Authority.Any waiver by any Party of the breach of any of the terms or conditions of this Agreement will not be considered as a continuing waiver or a waiver of any subsequent breach of the same or any other terms hereof.All notices under the terms of this Agreement shall be made in writing to the respective Party or Parties.This Agreement is the complete agreement relating to this subject, and replaces all other communications between the Parties, oral or written, relating to this subject.This Agreement may be amended only by written instrument duly executed by all Parties.The validity and interpretation of this Agreement shall be governed by and in accordance with the laws of the State of California, U.S.A., without given effect to principles of conflict of laws.Both Parties represent and warrant to each other that they have the right and lawful authority to enter into this Agreement for the purposes herein and that there are no other outstanding agreements or obligations inconsistent with the terms and provisions hereof.
b.No Agency Relationship.It is understood that the Parties are not, by this Agreement or by any terms contained herein, constituted or appointed the agent or representative of each other for any purpose whatsoever.No term herein contained be deemed or construed as granting a Party any right or authority to assume or to create any obligation or responsibility, express or implied, for or on behalf of, or in the name the other Party.It is intended that each Party shall remain an independent contractor responsible only for its own actions.
c.Severability.If any provision of this Agreement is declared invalid by any tribunal having competent jurisdiction, then such provision shall be deemed automatically modified to conform to the requirements for validity as declared as such time and as so modified, shall be deemed a provision of this Agreement as though originally included herein.In the event the provision invalidated is of such a nature that it cannot be modified, the provision shall be deemed deleted from this Agreement as though the provision had never been included herein.In either case, the remaining provisions of this Agreement shall remain in effect