Buyer and Jurox Inc. EIN: 36-4780916 (“Jurox”) hereby agree that unless expressly amended in writing by Jurox these Terms and Conditions (“Terms”) constitute the sole terms and conditions of the agreement between Jurox and the Buyer regarding the offer and sale of all goods and services provided by Jurox to Buyer (“Agreement”), and any terms and conditions of sale (other than the economic terms of the order) that may be contained in any purchase order or other form provided by Buyer will be without force and effect, regardless of when received by Jurox. These Terms shall without further notice apply to all future transactions between Jurox and the Buyer whether or not these Terms are delivered or executed in the course of such transactions.
1. DIMENSIONS, WEIGHTS AND MEASURES
All dimensions, weights, and quantities mentioned in catalogues, price lists, and quotations are acknowledged by the Buyer to be approximations only and the Buyer should refer to the product label for guidance. Generally, an active constituent may vary by up to 5% at release time (time of manufacture).
To the extent permitted by law and subject to clause 9:
(a) Other than the warranties expressly provided in these Terms, all other conditions, warranties, and guarantees implied or provided for by statute, regulation, common law, or otherwise in relation to the goods (including without limiting the generality of the foregoing any implied or imposed warranty or guarantee that the goods are suitable or fit for any particular use or purpose) are hereby excluded, except for any warranties or guarantees which may not be excluded according to the applicable laws or regulations of a country which has proper jurisdiction;
(b) Any warranty provided under or in connection with these Terms relate only to goods manufactured and supplied by Jurox. The parties agree that the warranty excludes:
(i) improper or abnormal use or mismanagement by the Buyer;
(ii) use of the goods other than in accordance with the Material Safety Data Sheet or Technical Notes for the goods or any instructions or recommendations by Jurox;
(iii) use of the goods in a manner not reasonably contemplated by Jurox;
(iv) where the Buyer causes the goods to become of unacceptable quality or fails to take reasonable steps to prevent them from becoming of unacceptable quality including without limitation failing to store the goods in accordance with Jurox’s recommendations;
(v) use of the goods in a manner contrary to the law;
(vi) the Buyer’s failure to comply with any element of this Terms;
(vii) items otherwise subject to deterioration or consumption in normal service and no later than the shelf life or expiry date noted on the package of the goods; and
(viii) defects or failures in materials or faults in respect of goods or components manufactured by unrelated third parties where such materials, goods, or components will be repaired or replaced only to the extent of the original supplier’s warranties;
(c) Unless otherwise stated by Jurox or agreed by Jurox at the time that Jurox expressly agrees in writing to any definitive purchase agreement (“Contract”) with the Buyer, Jurox expressly warrants as supplier and manufacturer of the goods in addition to any protections provided under the Uniform Commercial Code that the goods will be free from defects in material or faults in manufacture for the expiry date of the goods as referred to on the label and subject to the Material Safety Data Sheet or Technical Notes for the goods and the exclusions contained in clause 2(b);
(d) To make a claim under clause 2(c), the Buyer must return the unused portion of the goods to Jurox and specify the nature of the defect, breach, or non-conformance of the goods on or before the printed expiration date. All such communications are to be directed to Buyer Service
(e) The Buyer shall be responsible for all costs incurred (including any incidental costs) in packing and transporting defective goods to and from Jurox under clause 2(d);
(f) Jurox shall have no obligation under this clause 2 in respect of goods designated in the Contract as being excluded from the warranty coverage otherwise provided under this clause; and
(g) The provisions of clauses 2 and 10 exhaustively define Jurox’s obligations and liabilities with respect to the breaches of warranties in this clause 2 and the rectification of defects and non-conformances in the goods and shall be to the exclusion of any other rights and remedies the Buyer may otherwise have in respect of beaches of warranty, defects and non-conformances in the goods.
(a) Subject to clause 4(a) all prices are expressed in United States Dollars and exclude the costs of delivery.
(b) The price(s) charged to the Buyer, subject to clause (a), shall be the price(s) ruling as at the date of delivery. Any price indications or price lists are subject to alteration by Jurox to reflect price(s) ruling as at the date of delivery.
(c) If any statutory charge, duty, or impost is levied in respect of the goods and which has not been allowed for by Jurox in calculating the price, then provided it has been levied after the date of the Contract the same shall be borne by the Buyer, and the price shall be increased accordingly. The date of the Contract shall be the date upon which Jurox accepts the Buyer’s order.
(d) All prices quoted for Jurox manufactured goods are exclusive of goods and services tax. For all invoiced items, applicable tax shall be charged as a separate item in accordance with the applicable rate at the time the invoice is raised.
(e) Jurox reserves the right to require the Buyer to pay to Jurox at any time prior to the delivery of the goods, such part or whole of the contract price as Jurox considers appropriate.
4. DELIVERY OF GOODS & ACCEPTANCE
(a) Jurox shall use reasonable commercial efforts to provide the goods to the Buyer at the agreed place of destination specified in the Contract during normal business hours.
(b) Subject to clause 4(d), for all orders to the contiguous 48 states of the United States:
(i) which exceed $5000 (inclusive of applicable taxes), Jurox agrees to pay all costs of freight, delivery and unloading the goods (where delivered successfully on the first attempt);
(ii) where such orders are equal to or less than $5000 (tax inclusive), a delivery fee of $100 (plus applicable taxes) will be payable by the Buyer at the time of placing their order with Jurox;
(c) For off-shore locations all costs of freight, delivery and unloading the goods shall be borne by Jurox where the order exceeds $7500 (inclusive of applicable taxes). Where an order is less than $7500, a delivery fee of $180 (plus applicable tax) will be payable by the Buyer at the time of placing their order with Jurox.
(d) If the Buyer requests their own freight carrier, the Buyer must have in place transit insurance to cover the delivery and all risk of loss or damage to the goods will pass immediately to the Buyer and their freight carrier upon collection from .Jurox’s premises.
(e) If the Buyer directs that delivery of the goods be staggered over different times or to different addresses from those specified in the Contract and Jurox (in its sole discretion) agrees, then the Buyer will be charged and liable for any additional charges that Jurox considers to be reasonably appropriate to reflect the direct impact upon Jurox’s resources in complying with the Buyer’s direction.
(f) If the goods provided to the Buyer are substantially in accordance with the requirements of the Contract (including any minor defects, errors, or omissions which do not materially affect the normal use or application of the goods), the Buyer shall promptly accept the goods in writing in accordance with clause 9(a) of these Terms. All subsequent transportation of the goods shall be carried out at the expense and risk of the Buyer, whether carried out under its direction or not.
(g) If the goods are rejected on delivery, the Buyer must promptly advise Jurox in writing the reasons for the rejection within 7 business days in accordance with clause 9(a) of these Terms, otherwise, the Buyer will be deemed to have not properly rejected the relevant goods. Where the goods have been properly rejected within this time period by the Buyer, clause 10(b) will apply unless the Uniform Commercial Code provides otherwise.
5. TITLE, RISK AND INSURANCE
(a) Title in the goods shall pass to the Buyer upon full payment of the price in accordance with clause 3 and any other additional amounts owing by the Buyer to Jurox whether in respect of the delivery of the goods or otherwise.
(b) Notwithstanding clause 5(a), the risk of loss of or damage to the goods passes to the Buyer upon delivery of the goods to the Buyer at the agreed place of destination specified in the Contract or such other site as agreed by the parties in accordance with clause 4(c).
(c) Between the delivery of the goods to the Buyer to the agreed place of destination specified in the Contract or such other site as agreed by the parties in accordance with clause 4(c) and the passing of title pursuant to these Terms, the Buyer shall insure and keep the goods insured with an insurer of recognised standing acceptable to Jurox in the names of Jurox and the Buyer for their respective rights and interests for the goods full insurable value against such risks as Jurox may reasonably nominate, or in the absence of such nomination, against loss or damage by fire, theft, accident and such other risks as are insured against by prudent persons engaged in a similar business to that of Jurox. The Buyer agrees that if it has not paid Jurox for all monies due for the goods, Jurox shall be entitled to any proceeds of insurance payable to the Buyer hereby irrevocably assigns such proceeds of insurance in respect of the goods to Jurox.
(d) In relation to goods supplied to the Buyer for which payment in full has not been received:
(i) the Buyer will hold those goods as bailee for Jurox;
(ii) the Buyer undertakes that until it delivers the goods to a third party, it will store the goods on its premises in a manner which makes the goods readily identifiable as Jurox’s goods; and
(iii) when new goods or objects are formed with Jurox’s goods into other products or the goods are affixed to other objects, Jurox will be given full ownership of such new goods or objects.
(e) Jurox takes, and Buyer grants to Jurox, a security interest in:
(i) all present and after acquired goods acquired by the Buyer including any services supplied by Jurox in connection with the provision of those goods;
(ii) any proceeds of any sale of the goods in accordance with clause 5(d)(ii);
(iii) any proceeds of the insurance referred to in clause 5(c), and
(iv) to secure (with equal priority) payment of all amounts that the Buyer owes Jurox.
(f) The security interest will continue until the Buyer has paid all amounts owing to Jurox in accordance with clause 3 and title passes in accordance with this clause 5.
(g) The Buyer:
(i) agrees that Jurox may register (either or both) financing statements and financing change statements in any goods supplied by Jurox to the Buyer;
(ii) will promptly sign any further documents, provide any further information, or do any other things that Jurox reasonably requires, at its own expense to enable Jurox to perfect and maintain the perfection of Jurox’s security interest (including by registering a financing statement or financing change statement);
(iii) agrees that it will not register or permit to be registered a financing statement or a financing change statement in any goods in which Jurox has a security interest without Jurox’s prior written consent; and
(iv) will give Jurox 14 days’ prior written notice of any change in the Buyer’s name, business practice or any other details, and use its best endeavours to ensure that any applicable financing change statement is registered disclosing the Buyer’s new details.
(h) The Buyer agrees that:
(i) any purchase by it on credit terms from Jurox or retention of title supply pursuant to this clause 5 hereof will constitute a purchase money security interest (PMSI);
(ii) the PMSI granted herein will continue to apply to any goods hereafter acquired or proceeds of sale arising from the sale of any of the goods supplied by Jurox under these Terms; and
(iii) Jurox will continue to hold a security interest in goods presently or after acquired by the Buyer in accordance with applicable state and federal laws, notwithstanding that the goods may be processed, commingled, or become an accession with other goods.
(i) The Buyer agrees to waive its right to receive:
(i) a verification statement confirming registration of a financing statement or a financing change statement relating to any security interest arising in connection with the supply of present and acquired goods from Jurox;
(ii) a notice of a proposal to remove personal property that has become an accession;
(iii) a notice of a proposal to dispose of any personal property;
(iv) a notice of a proposal to retain any personal property;
(v) details of any amounts paid to other secured parties in a statement of account provided by Jurox; and
(vi) a statement of account.
(j) The Buyer agrees that:
(i) Jurox is under no obligation to dispose of or retain any secured property seized by it within a reasonable time;
(ii) following a default, the Buyer has no rights to redeem the secured property; and
(iii) the Buyer has no rights to reinstate this Agreement following a default.
(k) Except if law or regulation otherwise provide, the Buyer agrees not to disclose any information that is not publicly available and agrees not to request that such information is disclosed. The Buyer also agrees to maintain confidence of information in accordance with this clause 5.
(l) This clause 5 will survive the termination of the Agreement to the extent permitted by law.
(a) Jurox will make reasonable efforts to have the goods delivered to the Buyer on the date(s) agreed between the parties as the delivery date(s), but Jurox shall be under no liability whatsoever should delivery not be made on the date(s) agreed or by the period stated. Any delivery date specified is an estimate only.
(b) If Jurox is prevented or hindered from delivery of the goods (or any part thereof) by reason of any acts of god, fire, floods or accidents, breakdowns of plant or machinery, unavailability of or delays in shipping or other transport strikes or lock-outs of workmen, shortages or other default by suppliers of fuel, power or raw material, then:
(i) any delay in manufacture, transportation or delivery thereby incurred shall not give rise to any cause of action by the Buyer against Jurox:
(ii) during the period such delay continues, Jurox and the Buyer shall each have the option to suspend or cancel any subsequent obligations or balance of obligations of the Contract on either of their parts provided that:-
(A) written notice shall be given by the party exercising such option:
(B) on any such suspension or cancellation by the Buyer, any goods appropriated to the Contract by Jurox whether partly or fully processed at the time of such suspension or cancellation, shall be accepted by the Buyer when delivered by Jurox, and
(C) in the case of cancellation the Buyer shall be entitled to a credit against purchases in relation to any sums paid by the Buyer in respect of goods subject to the cancellation and not subsequently delivered by Jurox pursuant to clause 6(b)(ii)(B).
(iii) the Buyer shall not be entitled to cancel its obligations under the Contract unless in the reasonable opinion of Jurox, the Buyer’s interest in the Contact has seriously suffered or has been totally impaired by the delay; and
(iv) the Buyer shall accept and pay for all of the goods which Jurox had delivered or which Jurox is able to deliver pursuant to clause 6(b)(ii)(B).
(a) Jurox may agree to suspend or cancel the Contract or any part thereof PROVIDED THAT the agreement of Jurox to suspend or cancel is in writing, and the Buyer pays to Jurox what Jurox considers to be a fair and reasonable amount to fully compensate Jurox for any costs, expenses, loss of profit and consequential damage that Jurox has or may suffer in relation to such suspension or cancellation.
(a) Subject always to clause 8(c) herein, all goods ordered by the Buyer from Jurox will be paid for by the Buyer within 30 days of the last day of the month of delivery. Time of such payment shall be the essence of the Contract.
(b) Subject always to clause 8(g) the Buyer shall pay for the whole of the value of the order as invoiced when the same is due for payment notwithstanding that the Buyer may have directed that delivery of the goods be to different addresses or that the Buyer may not have signed a receipt for the whole or any part of the goods.
(c) Jurox’s express or implied approval of a credit facility to the Buyer may be revoked or withdrawn by Jurox at any time.
(d) If the Buyer becomes an insolvent under administration pursuant to any of the provisions of applicable law, all amounts then due and payable, shall immediately become due and payable to Jurox.
(e) If the Buyer is a Buyer to which sub-clause(a) applies, and the Buyer fails to pay any amount due in accordance therewith, then:-
(i) the Buyer shall, in addition to that amount and without prejudice to all or any of Jurox’s other rights and remedies under the Contract, pay:-
all costs, charges and expenses incurred by Jurox in enforcing or attempting to enforce any of its rights under the Contract including recovering any damages or unpaid amount(s). Such costs in the case of legal costs shall be charged on a solicitor and own client basis; and
(ii) the Buyer shall deliver up the goods to Jurox immediately on receipt of a demand in writing to this effect from Jurox. If the Buyer does not comply with the demand within two (2) business days of receipt of the demand, Jurox shall be entitled to enter upon the Buyer’s premises at any time to do all things necessary in order to take possession of the goods. The Buyer shall be liable for all costs of and associated with exercise of Jurox’s rights under this clause, which shall be payable on demand.
(f) Jurox reserves the right to require the Buyer to pay the price as determined by clause 3 to Jurox at any time prior to the delivery of the goods at the Buyer’s premises
(g) In the event of a dispute, the Buyer acknowledges that it shall not be entitled to withhold payment of any undisputed balance then due to Jurox for the goods, and agrees that it shall pay the whole of any undisputed balance pursuant to this clause 8.
9. CLAIMS AND RETURNS
(a) The Buyer shall inspect the goods immediately on delivery and shall, within seven (7) business days of receipt of the goods, give notice to Jurox in writing of any matter or thing by reason whereof the Buyer alleges that the goods are not in accordance with the Contract, failing which the Buyer shall be bound to accept and pay for the goods.
(b) No claim shall be made against Jurox unless, at the time of the claim all of the goods which are the subject of the Contract, remain intact as a whole for inspection by a Jurox representative. Disposal or use of any part of these goods shall constitute acceptance by the Buyer of the whole.
(c) The Buyer hereby grants to Jurox full and free access to the premises of or occupied by the Buyer to enable Jurox to investigate any claim by the Buyer. Such investigation shall not constitute or be construed as an admission of liability by Jurox.
(d) Jurox may, after being given the notice referred to in clause 9(a) accept the return of goods. All returns must occur within 14 days of the date of delivery and the invoice and/or the delivery note number must be supplied to Jurox at the point of return.
(e) Goods sold by Jurox to the Buyer may not be returned to Jurox by reason of their lower than expected sales demand in the hands of the Buyer.
(f) Goods sold by Jurox to the Buyer which will reach their expiry date within six months of being delivered to the Buyer, may be exchanged at no cost to the Buyer. To take advantage of this provision, the Buyer must apply in writing to Jurox within 30 days of the expiry of said goods, and no later than seven (7) months from the original delivery.
10. LIMITATION OF LIABILITY AND INDEMNITY
(a) Unless otherwise expressly agreed to by Jurox in writing, the sole and exclusive remedy of Buyer for defects of any kind to the products sold hereunder, the sole and exclusive remedy of Buyer will be, in Jurox’s sole and exclusive discretion, to repair or replace goods proved defective with conforming goods. Buyer will return defective goods to Jurox, if required and authorized by Jurox, freight prepaid.
(b) EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, JUROX AND ITS SUPPLIERS MAKE NO AND HEREBY DISCLAIM ANY OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE GOODS OR SERVICES PROVIDED HEREUNDER, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF TITLE, MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, OR ARISING FROM COURSE OF PERFORMANCE, DEALING, USAGE OR TRADE.
(c) NOTWITHSTANDING ANYTHING IN THESE TERMS TO THE CONTRARY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, (A) I NO EVENT WILL JUROX OR ITS SUPPLIERS BE LIABLE TO BUYER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOOD OR SERVICES, OR FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, BUSINESS INTERRUPTION, OR ANY OTHER LOSS) AS A RESULT OF THE OFFER, SALE, OR USE OF GOODS OR SERVICES, UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, NEGLIGENCE, TORT, WARRANTY, OR OTHER WRONGFUL ACT OR OMISSION OF JUROX AND EVEN IF JUROX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND JUROX’S TOTAL LIABILITY FOR ALL CLAIMS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PRICE PAID TO JUROX PURSUANT TO THE ORDER UNDER WHICH LIABILITY AROSE.
(d) The Buyer shall at all times indemnify and keep indemnified Jurox (and any affiliate), its employees, agents, contractors, subcontractors and consultant (“Indemnified Parties”) from and against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by the Indemnified Parties arising from any claims, demands, or proceedings where such liability was caused by:
(i) a breach by the Buyer of its obligations under these Terms or the Contract; or
(ii) any wilful, unlawful or negligent act or omission of the Buyer including use of the goods for any purpose other than their intended purpose.
(e) The Buyer shall at all times indemnify and keep indemnified the Indemnified Parties against any loss (including reasonable legal costs and expenses) or liability reasonably incurred or suffered by any of the Indemnified Parties from any claims, demands or proceedings made by any third party in respect of any loss, damage, death or injury arising from the Buyers use of the goods.
Any mistake on any quotation, order, invoice, delivery docket or other document issued by Jurox in relation to the Contract shall not be binding on Jurox, and Jurox may in its discretion issue such amended document as is required to rectify such mistake. The Buyer shall comply with Jurox’s amended document.
The Buyer irrevocably permits Jurox or any person authorised in writing by Jurox to enter into, all of the owned and leased premises of the Buyer or any site in which Jurox reasonably believes that the goods are located for the purpose of inspecting or retrieving (subject to the terms of the Contract) any goods of Jurox. The Buyer also agrees to indemnify and hold Jurox harmless for reasonable costs of removal, enforcement, and legal action in respect of the removal of any goods, the subject of this Contract.
13. DANGEROUS GOODS
The Buyer warrants to Jurox that after delivery of the goods the Buyer shall comply with all applicable acts, regulations and laws, including without limitation those dealing with the transport, unloading and storage of dangerous or hazardous materials.
The Contract is to be interpreted according to the laws of the State of Kansas, USA, and Jurox and the Buyer agree that the state or federal courts in Johnson County, Kansas, USA shall have exclusive jurisdiction to hear and determine all disputes of and incidental to these Terms, including any claims in respect of monies due to Jurox pursuant to these Terms whether on account of debts due, or on account of a claim for damages.