MFG Terms and Conditions

      JMP MANUFACTURING COMPANY LLC (“JMP”)

      STANDARD TERMS AND CONDITIONS OF SALE (“Terms”)

      1. All quotes, sales of goods or services and any extension of credit by JMP or its affiliated and related entities (collectively, “Seller”) to Applicant, Guarantor or Buyer (collectively, “Buyer”) are subject to these Terms, which shall prevail over any inconsistent terms of Buyer’s purchase order or other documents. Seller’s offer to sell is expressly conditioned on the acceptance without change or additions by the Buyer to these Terms. Additional, different or conflicting terms and conditions in any way altering or modifying these Terms are deemed material and are expressly objected to and hereby rejected. These Terms and any orders cannot be modified, canceled, rescinded or waived except by a written agreement reviewed and signed by Seller’s authorized representative. Any such modification or cancellation shall be subject to conditions as negotiated at such time, which shall include protection of Seller against loss. No modification or alteration of these Terms shall result by Seller’s shipment of goods or provision of services following receipt of Buyer’s purchase order, or other documents containing additional, conflicting or inconsistent terms. Buyer’s assent to the Terms shall be conclusively presumed from Buyer’s acceptance of any shipment of goods or materials or the initiation of services from Seller. There are no terms, conditions, understandings, or agreements other than those stated herein, and all prior proposals and negotiations are merged herein. These Terms are binding on the Parties, their successors, and permitted assigns.
      2. Prices in Seller quotes are subject to change without notice, and all such prices expire and become invalid if not accepted within 30 days from the date of issue, unless otherwise noted by Seller in writing. Any mathematical, stenographic or clerical errors are not binding on Seller. Prices shown do not include any sales, excise, or other governmental tax, tariff or other charge payable by Seller to any federal, state or local authority. Any taxes, tariffs or other charges now or hereafter imposed upon sales or shipments will be added to the purchase price, and Buyer shall reimburse Seller for any such tax, tariff or other charge or provide Seller with an acceptable tax exemption certificate. All prices and other terms provided to Buyer shall be kept confidential except to the extent Buyer or Seller is required by applicable law to disclose the same.
      3. With respect to goods for which Seller is a reseller or distributor or goods that are generally held for sale by Seller (“Stock Goods”), Seller does not provide any warranty for such Stock Goods; however, Seller shall pass through to Buyer any transferable original equipment manufacturer’s (“OEM”) standard warranties provided to Seller with respect to the Stock Goods. WITH RESPECT TO STOCK GOODS, BUYER AND PERSONS CLAIMING THROUGH BUYER SHALL SEEK RECOURSE EXCLUSIVELY FROM THE OEM IN CONNECTION WITH ANY DEFECTS IN OR FAILURES OF STOCK GOODS, AND THIS SHALL BE THE EXCLUSIVE RECOURSE OF BUYER AND PERSONS CLAIMING THROUGH BUYER, WHETHER THE CLAIM OF BUYER OR THE PERSON CLAIMING THROUGH BUYER SHALL SOUND IN CONTRACT, TORT, STRICT LIABILITY, PURSUANT TO STATUTE, OR FOR NEGLIGENCE. BUYER SHALL PASS THESE TERMS TO SUBSEQUENT BUYERS AND USERS OF STOCK GOODS. With respect to goods custom manufactured by Seller (“Custom Goods”, and together with Stock Goods, “Goods”), Seller warrants that the Custom Goods furnished hereunder shall meet the specifications agreed upon in writing by Buyer and Seller prior to manufacturing for a period of one (1) year after delivery, and Seller agrees to extend the warranty on the Custom Goods to the first commercial end-user of such Custom Goods.  With respect to services which may be provided to Buyer by Seller (“Services”), Seller warrants that the Services furnished hereunder shall be performed in a professional manner, in accordance with standard industry practices with the skill and care ordinarily exercised in performance of such services. SELLER EXCLUDES AND DISCLAIMS ALL OTHER EXPRESS AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, HABITABILITY, DESIGN, CONDITION, QUALITY, CAPACITY, PERFORMANCE, NON-INFRINGEMENT OR OTHER ASPECT OF THE GOODS, SERVICES, OR WORKMANSHIP. BUYER’S EXCLUSIVE REMEDY AGAINST SELLER, AND SELLER’S SOLE OBLIGATION, FOR ANY AND ALL CLAIMS ARISING OUT OF BREACH OF WARRANTY OR DEFECTIVE GOODS OR SERVICES SHALL BE LIMITED TO SELLER’S REPLACING THE CUSTOM GOODS THAT DO NOT CONFORM TO THE AGREED UPON SPECIFICATIONS, RE-PERFORMING THE SERVICES, OR, AT SELLER’S OPTION, REFUNDING THE PURCHASE PRICE. ALL CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF DELIVERY OF GOODS OR PERFORMANCE OF SERVICES AS APPLICABLE OR THEY ARE WAIVED.GOODS FOR WHICH DAMAGES ARE CLAIMED SHALL NOT BE RETURNED, REPAIRED, OR DISCARDED WITHOUT SELLER’S WRITTEN CONSENT.
      4. Unless otherwise specifically agreed to by Seller in writing, all delivery times and dates are estimates only and Seller does not guaranty the timeliness of any shipment. Seller shall not be liable for delay or default in delivery or performance resulting from any cause beyond Seller’s reasonable control, including, but not limited to, acts of Buyer, governmental action, strikes or other labor disturbances, pandemics, epidemics, fire, damage or destruction of goods, wars (declared or undeclared), acts of terrorism, OEM shortages, availability or timeliness of transportation, materials or parts, fuels, or supplies, acts of God, and other causes beyond Seller’s reasonable control whether or not expressly enumerated herein; the Parties agreeing such enumeration is non-exclusive (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event: (a) the time for Seller’s performance shall be extended reasonably and the Parties shall adjust all affected dates accordingly; (b) the purchase price shall be adjusted for any increased costs to Seller; and (c) Buyer shall not be entitled to any other remedy. Acceptance of goods upon delivery shall constitute a waiver by Buyer of any claim for damages on account of non-shipment delays in delivery or performance.
      5. Prices shall be those in effect at time of shipment. Unless otherwise quoted, delivery shall be made EXW Seller’s facility (Incoterms 2020). Title and risk of loss shall pass to Buyer upon tender to Buyer’s carrier.
      6. Unless otherwise agreed in writing by Seller, payment terms are net 30 days from delivery, or in the case of Services, net 30 days from performance of the Services, payable in United States of America (“U.S.”) dollars. No retainage shall be withheld from Seller by Buyer. Buyer’s obligation to pay Seller is not contingent upon receipt by Buyer of payment from Buyer’s customer or anyone else. All orders are subject to Seller’s continuing approval of Buyer’s credit. If Buyer’s credit is not approved or becomes unsatisfactory to Seller then Seller, in its sole discretion, may suspend or cancel performance, or require different payment terms, including but not limited to cash on delivery or in advance of shipment. If Seller suspends performance and later proceeds with such order, Seller shall be entitled to an extension of time for performance as is necessitated by the suspension. In addition, Seller may in its sole discretion require an advance deposit of up to 100% of Seller’s selling price for any specially manufactured goods ordered by Buyer hereunder. Seller accepts the following methods of payment in its sole discretion: check, credit card, ACH, or cash. If Buyer’s preferred method of payment is credit card, the credit card must be provided at the time the order is placed. Otherwise, a 3% processing fee will be added to Buyer’s account if Buyer uses a credit card to pay at a later date. Buyer authorizes Seller to apply all payments made at Seller’s sole discretion unless otherwise directed in writing at the time of payment. Past due accounts bear interest at the lesser of 1.5% per month or the maximum rate permitted by applicable law, continuing after Seller obtains judgment against Buyer. Seller may exercise setoff or recoupment to apply to or satisfy Buyer’s outstanding debt. Buyer shall have no right of setoff hereunder, the same being expressly waived hereby. Seller expressly reserves its right to file liens and bond claims if payment is not received for its materials and expressly disclaims any waiver of lien or bond rights language which may be contained in any future agreements between the Parties hereto. Seller reserves all rights to invoice and be paid for materials provided to Buyer and any terms contained in any of Buyer’s purchase orders or other documents that purport to limit in any way the time or manner within which Seller may invoice are hereby waived by Buyer.
      7. Seller shall give no credit for goods returned by Buyer without Seller’s prior written authorization. All returns are subject to a restocking charge. Any returns for credit must be clean, unused and undamaged with original packaging and all original parts.
      8. To the fullest extent allowed by law, Buyer agrees to indemnify, defend and hold harmless Seller and its officers, directors, employees and agents from any claim, demand, loss, costs (including attorneys’ fees) or damage incurred or sustained by Seller arising from or related to Buyer’s use or resale of the goods sold by Seller to Buyer, any negligent, intentional or tortious act or omission of Buyer or Buyer’s failure to comply with these Terms.
      9. Buyer shall pay Seller all costs and expenses of collection, suit, or other legal action brought as a result of the relationship between them, including, but not limited to, all reasonable attorneys’ and paralegals’ fees, and collection costs, incurred pre-suit, through trial, on appeal, and in any administrative or bankruptcy proceedings.
      10. This Agreement, Buyer’s account, and the business relationship between Buyer and Seller shall be governed by and construed in accordance with the laws of North Carolina without regard to conflicts of laws rules. Buyer hereby agrees that any legal action arising under or related to this Agreement shall be brought exclusively in Guilford County, North Carolina, and any right to object to such venue or to assert the inconvenience of such forum is hereby waived by Buyer.
      11. If Buyer fails to comply with these Terms, Seller may terminate or restrict any order or any unfulfilled portion of an order or incomplete Services immediately upon notice to Buyer. Buyer certifies that it is solvent and that it will advise Seller immediately if it becomes insolvent. Buyer agrees to send Seller written notice of any changes in the form of ownership of Buyer’s business within 5 days of such changes. Buyer and Seller are the only intended beneficiaries of this document, and there are no third-party beneficiaries.
      12. The invalidity or unenforceability of all or part of these Terms will not affect the validity or enforceability of the other terms. The parties agree to replace any void or unenforceable term with a new term that achieves substantially the same practical and economic effect and is valid and enforceable.
      13. Seller reserves the right to enforce these Terms at any time, and none shall be deemed waived unless such waiver is in writing and signed by Seller’s duly authorized representative. All rights and remedies granted to Seller in these Terms are in addition to all remedies available at law or in equity.
      14. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT, WHETHER IN CONTRACT, WARRANTY, INDEMNITY, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING DIRECTLY OR INDIRECTLY OUT OF THE PERFORMANCE OR BREACH OF THESE TERMS, SHALL SELLER BE LIABLE FOR (a) ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, CONSEQUENTIAL OR SIMILAR DAMAGES SUCH AS LOSS OF USE, LOST PROFITS, ATTORNEYS’ FEES OR DELAY DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR CAUSED BY SELLER’S BREACH OF THIS AGREEMENT, (b) ANY CLAIM THAT PROPERLY IS A CLAIM AGAINST THE OEM, OR (c) ANY AMOUNT EXCEEDING THE AMOUNT PAID TO SELLER FOR GOODS FURNISHED TO OR SERVICES PERFORMED FOR BUYER WHICH ARE THE SUBJECT OF SUCH CLAIM(S).
      15. Services may include work on fire protection systems. Seller is not an insurer. Buyer acknowledges and agrees that Seller cannot predict the potential amount, extent, or severity of any damages or injuries that may arise out of the Services provided hereunder and as such if Seller should be found liable for loss, injury or damage of any kind due to the failure of the fire protection system to prevent such damages or to properly operate (“Fire Damages”), including, but not limited to fire, smoke or water damage. SELLER’S AGGREGATE LIABLITY TO BUYER FOR SUCH CLAIMS ARISING OUT OF FIRE DAMAGES SHALL NOT EXCEED $10,000. BUYER AGREES THAT THE LIMITS ON THE LIABILITY OF SELLER AND THE WAIVERS AND INDEMNITIES SET FORTH IN THESE TERMS ARE A FAIR ALLOCATION OF RISKS AND LIABILITIES BETWEEN SELLER AND BUYER. BUYER ACKNOWLEDGES AND AGREES THAT WERE SELLER TO HAVE LIABILITY GREATER THAN STATED ABOVE, IT WOULD NOT PROVIDE THE SERVICES ON ANY FIRE PROTECTION SYSTEMS.
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