TERMS AND CONDITIONS - JUUNOO, Inc.
1. Applicability.
(a) These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) by the seller named on the quote attached to these Terms (“Seller”) to the buyer named on the quote attached to these Terms (“Buyer”).
(b) The accompanying quote (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 of 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 these Terms.
2. Delivery. Buyer is responsible for transportation and delivery of the Goods unless Buyer selects delivery by Seller. The following terms in Section 2 apply if Buyer selects delivery by Seller. Otherwise, availability of the Goods will be governed by the quote attached to these Terms.
(a) Seller shall make delivery in accordance with the terms on the quote attached to these Terms. The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location specified in the quote attached to these Terms (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within two days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage, and insurance).
(e) If Seller delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
3.Title and Risk of Loss. Title and risk of loss pass to Buyer (i) upon delivery of the Goods at the Delivery Point if Buyer selects delivery by Seller or (ii) at Seller’s facility if Buyer arranges its own transportation of the Goods. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to, and under the Goods, 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. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
4. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party. 5. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within two business days of delivery (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at Zwevegem, Belgium. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
6. Price.
(a) Buyer shall purchase the Goods from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date of Buyer’s purchase order.
(b) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.
7. Payment Terms.
(a) Buyer shall pay all invoiced amounts due to Seller on receipt of Seller’s invoice. Buyer shall make all payments hereunder by wire transfer or check and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 2.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for seven days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
8. Limited Warranty.
(a) Seller warrants to Buyer that for a period of one month from receipt of the Goods (“Warranty Period”), that such Goods will materially conform to Seller’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 8(A), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (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.
(c) Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 8(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (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.
(d) The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within seven days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s facility at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 8(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to Section 8(d) and Section 8(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN SECTION 8(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 8(a).
9. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, 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 SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’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 SELLER FOR THE GOODS SOLD HEREUNDER OR $750,000, WHICHEVER IS LESS.
(c) The limitation of liability set forth in Section 9(b) above shall not apply to (i) liability resulting from Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
10. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
11. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement; (ii) has not otherwise performed or complied with any of these Terms, 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. Buyer may terminate this Agreement with two weeks’ written notice to Buyer, but Buyer will be invoiced for the value of any purchased materials or work performed until the date the written notice is received by Seller.
12. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
13. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, sketches, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller 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 this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. These documents and other materials may be disclosed by Seller prior to Buyer’s purchase order. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller 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.
14. Force Majeure. No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemics, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement;(f) national or regional emergency; (g) strikes, labor stoppages or slowdowns or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The Impacted Party shall give notice within ten days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty consecutive days following written notice given by it under this Section, the other party may thereafter terminate this Agreement upon ten days’ written notice.
15. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. 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 this Agreement.
16. Relationship of the Parties. 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.
17. No Third-Party Beneficiaries. This Agreement is 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.
18. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
19. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of Manhattan and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
20. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
21. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Survival. 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 including, but not limited to, the following provisions: Confidential information and Survival.
General Terms and Conditions - JuuNoo NV
- These conditions are always applicable to all agreements concluded by the parties concluded by us unless the parties concerned expressly and in writing agree other conditions. These conditions have absolute priority over the buyer’s order and/or purchase terms, even if the latter negotiate the opposite.
- Once a quote/order has been accepted, the order cannot be changed by the customer without our written permission.
- Full or partial cancellation or termination by the customer of an order, can only be done by means of a registered letter. We reserve the right to invoice the already performed value of the cancelled order as compensation. This can trade, but is not limited to this list, about the value of the technical plans, ordered materials or materials already produced.
- In the event of bankruptcy, collective debt settlement, debt mediation or apparent inability of the customer, we can terminate the agreement on the customer’s own charges without the customer being entitled to any compensation. In any case, paid advances will remain definitively acquired.
- The production of the goods of the contract will only begin after payment by the customer of the agreed advance. From this moment on, the planned delivery period starts.
- We reserve the right to replace the agreed materials with other materials of at least equal quality.
- Delivery or finishing periods are always purely informative or indicative and never constitute a ground for termination or compensation.
- If, due to permanent or temporary force majeure, we are unable to implement the agreement, even if the force majeure does not lead to the permanent and/or utter impossibility of implementation, we have the right to temporarily or definitively cease the implementation of the contract, by a simple written notification to the customer of the reason preventing the implementation of the agreement. In that case, we do not owe any damages to the customer. If force majeure is considered, but is not limited to this list: serious foreclosure where we are not responsible, causes beyond us that make execution unreasonable, disease, accidents or late or erroneous supplies of raw materials.
- The unloading and delivery point should be easily accessible to (freight) cars and free from obstructions and obstacles. If there are additional costs due to the difficult accessibility, these will be entirely at the expense of the customer. Unnecessary trips, caused by the customer, will be charged to the customer. All evidence to this end has been allowed, including photographs.
- Any damage caused to the buildings during the execution of the works must be reported by the customer in writing within the 8 calendar days following the end of the works. Claims reports by the customer who do not appear in writing outside the aforementioned deadlines and/or not will not be accepted and cannot give rise to any compensation.
- The goods sold will remain our property until full payment. In the case of resale, transfer, nullity, damage or loss of value, we retain the possibility of claiming the sum corresponding to the value of the resold goods. The reservation of ownership is transferred to the resale price/value. Once the goods have been delivered or the customer fails to receive the goods, the buyer bears all the risks, cases of force majeure and destruction included, and the custody charge. The default of one of the amounts due at maturity may result in the recovery of the goods.
- We always remain intellectually owned by studies, plans, documents, sketches, drawings, samples and designs. The customer shall be liable for any use of it by third parties and, where appropriate, held to pay compensation of 25 of the total works for which the aforementioned documents were drawn up.
- The invoices are always affordable on our seat. These invoices are payable in cash without a discount when issued. On each overdue payment, there is a conventional interest equal to 1 per month or part of a month. In addition, in the case of all or part non-payment of the debt at maturity date without serious reason, after futile default, the balance of debt shall be increased by a conventional compensation amounting to EUR 12 with a minimum of EUR 125,00. and a maximum of EUR 2,000.00. In the event of a default of a single invoice, all unpaid invoices shall be immediately edue for the whole regardless of whether or not these invoices have expired.
- We are only contractually liable for intentional errors. Any contractual liability under us shall be limited to EUR 750 000, excluding any consequential damage. Liability for hidden defects is excluded under us if we did not know the defects or could not be traced.
- The customer expressly forfeits his right to invoke the suspension of payment on the grounds of incompleteness, inadequacy or lateness of deliveries or works. Even if a claim is brought by the customer, this does not suspend his/her payment commitment.
- The nullity of one or more clauses in these terms and conditions does not affect the legal validity of the other terms, which remain in full application.
- Only Belgian law applies. Any disputes will be settled solely and definitively by the courts and courts competent for the judicial district where our registered office is located.
- These terms and conditions are accepted by the customer by signing each agreement, placing an order or accepting a quote via email, transferred a copy of these terms and conditions to the customer.