|The following text presented
on this website page is the exact text that appears on the back of the JCH
Wire & Cable Invoice:
* * * * * * * * * *
The following terms and conditions, together with any additional provisions stated on the reverse side of this invoice and any or all parts of the quotation package to customer, represent the complete and exclusive agreement between JCH Enterprises, Inc. dba JCH Wire & Cable, JCH Technologies, Inc., and JCH Fuel Solutions (hereinafter "JCH") and its customer (hereinafter "Buyer") for the purchase of products, materials and goods described on the reverse side of this invoice (hereinafter called "goods"). Any purchase order issued by Buyer, heretofore, hereafter, or contemporaneous herewith, which is inconsistent with the provisions of this contract, is superseded hereby. Buyer hereby acknowledges that the terms and conditions herein contained are the sole terms and conditions under which Buyer offers to purchase the goods described hereon from JCH, and, if accepted by JCH, the terms and conditions herein shall constitute the entire and sole agreement between Buyer and JCH, which terms and conditions may be modified and/or amended only in writing signed both by Buyer and by JCH.
|1.||Billing. All shipments to Buyer will be billed at JCH's quoted price except as otherwise provided herein. Buyer's order is subject to Seller being able to procure necessary goods and materials.|
|2.||Pricing; Shipping. Unless otherwise specifically stated, all prices are quoted and will be invoiced, F.O.B. shipping point, and do not include freight charges, federal, state or local sales, use or excise taxes, if any, which will be added to the price where applicable. JCH will not be responsible for risk of loss or damage to the goods after delivery to its carrier. Except with respect to C.O.D. sales, title to the goods will pass to Buyer upon delivery to the carrier. All prices quoted do not include any installation charge and such installation shall be at Buyer's expense and will be subject to the terms and conditions of any such separate installation quotation which has been furnished by JCH to Buyer. In the absence of such separate installation quotation, Buyer agrees to: (1) allow JCH access to Buyer's premises at all reasonable times upon the request of JCH; (2) prepare the proposed site for the equipment per JCH's instructions for such equipment; and (3) provide the necessary personnel to unpack the equipment for such installation.|
|3.||Method of Shipment. Unless otherwise directed in writing by Buyer prior to shipping, the method of shipment will be selected by JCH. For all shipments, insurance will be obtained only at Buyer's written direction and expense.|
|4.||Delivery. Any delivery dates specified in this invoice are based on JCH's best estimate of when delivery to the carrier can be made under the circumstances that exist on the date hereof; and Buyer agrees to excuse delays in delivery due to circumstances beyond the reasonable control of JCH. Unless otherwise agreed in writing, JCH reserves the right to make partial shipments. Claims for shortage in quantity or for damage in shipment shall be deemed waived unless received in writing by JCH within thirty (30) days after delivery. JCH will not be liable for any loss or damage resulting from delays beyond its control, and in no case will JCH be liable for incidental, consequential or special damages, including but not limited to, lost profits or increased costs of Buyer's performance of its contract obligations, however caused.|
|5.||Inspection of Goods; Acceptance. Buyer's receipt and possession of the goods constitutes its acknowledgment that it has accepted the goods, unless Buyer notifies JCH to the contrary, in writing, within thirty (30) days of receipt of the goods. Buyer's use of the goods constitutes a full and complete acceptance of the goods. Buyer has an obligation to ascertain the correctness of the goods before any attempt is made to install it. Therefore, JCH will not accept return of, nor issue credit for, any incorrect goods which bears the appearance of having been installed, totally, or in part, nor will transportation expenses be allowed.|
|6.||Defective Goods Warranty.
a. JCH is a distributor and not a manufacturer. Buyer is required to determine directly from the manufacturer's tests, or from its own tests, the suitability of these materials for their application and shall be guided by the results of such tests. ALL APPLICABLE WARRANTIES ARE PROVIDED BY THE MANUFACTURER AND A COPY OF THE MANUFACTURER'S WARRANTY WILL BE PROVIDED BY JCH UPON WRITTEN REQUEST. IT IS THE BUYER'S SOLE RESPONSIBILITY TO DETERMINE SUFFICIENCY OF THE APPLICABLE MANUFACTURER'S PRODUCT WARRANTY. Such manufacturer's warranties are conditioned upon Buyer's performance of all manufacturer requirements set forth therein and upon Buyer notifying JCH of any defects within thirty (30) calendar days of delivery. If JCH's vendor is a distributor, the warranty will be based on the warranty that the distributor has through their manufacturer/vendor.
b. Subject to the provisions of paragraph 5 hereof, JCH warrants that any goods to be sold hereunder shall substantially conform to the goods described on the reverse side of this invoice and any specifications noted therein. In the event that a specific brand name or specific manufacturer's product is specified on the reverse side hereof, JCH reserves the right to ship goods of a different brand-name and/or manufacturer so long as they conform to the specifications contained on the reverse side of this invoice.
c. THE WARRANTIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY JCH. JCH MAKES NO WARRANTIES, COVENANTS, OR REPRESENTATIONS, EITHER EXPRESS OR IMPLIED, BEYOND THOSE EXPRESSLY SET FORTH HEREIN. THERE IS NO WARRANTY OF MERCHANTABILITY AND THERE ARE NO WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE OR USE. NO REPRESENTATIONS OF FITNESS FOR ANY PARTICULAR PURPOSE SHALL BE IMPLIED FROM SPECIFICATIONS, IF ANY, SET FORTH HEREIN, OR BY THE NATURE OF THE GOODS.
d. In the event a court of competent jurisdiction should determine that the foregoing warranty limitations and disclaimers are unenforceable for any reason whatsoever, or in any other event, JCH shall only be liable for any defective or nonconforming goods if: (i) the goods are used for their intended purpose and solely under the conditions and in the manner recommended in manufacturers' specifications or other instructions; (ii) the goods have not been misused or abused in any manner; (iii) no repairs have been attempted by anyone other than JCH thereon; (iv) subject to the provisions of paragraph 5 hereof, prompt written notice of any such defect or nonconformity is forwarded to JCH (which notice must in any event be sent to JCH no later than thirty (30) days after shipment of the goods to Buyer) and the goods are returned to JCH promptly, freight prepaid by Buyer, and directions received by Buyer, if any, for properly identifying items returned are carefully followed; and (v) such written notice authorizes JCH to examine returned goods to the extent JCH deems necessary in order to ascertain the cause of failure.
e. In any event the liability of JCH shall be limited to an obligation to replace or repair such goods or to provide a credit adjustment, as JCH may in its sole discretion deem appropriate. In no event shall JCH's liability for defects or nonconformity in any goods exceed its invoice price or replacement cost, whichever is lower, or include any labor charges arising from the replacement. In no event shall JCH be liable for incidental, consequential, exemplary or special damages including but not limited to lost or anticipated revenues or profits or increased cost of Buyer's performance of its contract obligations, however caused, even if an authorized representative of JCH is advised of the possibility or likelihood of same.
f. Any action by Buyer for breach of warranty or other cause hereunder must be commenced within one (1) year after delivery of the goods or it shall be thereafter barred for all purposes. In no event shall JCH be liable under the above warranties to anyone other than the original buyer.
|7.||Acceleration. JCH reserves the right to accelerate the due date for any payment by Buyer under any contract with JCH and any other rights made available to creditors under applicable laws, including, without limitation, the right to retake possession of the goods or to stop goods in transit and demand payment before delivery.|
|8.||Customer Accounts. All invoices are on open account and are due and payable as provided on the reverse side hereof, or in accordance with the practices customary between this Buyer and JCH, unless and until JCH notifies Buyer of any change in its credit policy. Prorated payments shall be due for partial shipments. Promptness of payments at the times they respectively fall due shall be considered as being of the essence of this contract, and failure or substantial delays in making any such payment shall constitute a material breach of this contract, entitling JCH, at its option, to any or all remedies for breach, including rescission of the entire contract. OVERDUE ACCOUNTS SHALL BE SUBJECT TO A SERVICE CHARGE OF 1.5% PER MONTH (18% PER ANNUM) ON THE UNPAID BALANCE, OR THE MAXIMUM AMOUNT PERMITTED BY LAW, WHICHEVER IS GREATER, AND BUYER SHALL BE LIABLE FOR SUCH OTHER FEES AND COSTS AS ARE SET FORTH IN THE JCH CREDIT AGREEMENT.|
|9.||Governing Law; Partial Invalidity. This invoice, and any contract entered into between Buyer and Seller pursuant hereto, shall be governed by and construed in accordance with the laws of the State of Nevada. Wherever possible, each provision hereof shall be interpreted in such manner as to be effective and valid under applicable law, but in case any one or more of the provisions contained herein shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such provision shall be ineffective to the extent, but only to the extent, of such invalidity, illegality or unenforceability, without invalidating the remainder of such provision or provisions or the remaining provisions hereof, unless such a construction would be unreasonable.|
|10.||Performance. Acts of God or of belligerent powers, wars, sabotage, explosions, riots, strikes, slowdowns, lockouts, fire, floods, lightning, tornado, wind, shortages of, or inability to procure labor, fuel, power, materials or supplies, insufficient transportation facilities or delays in transportation of product or materials or supplies or accidents to plant or machinery, Government controls limiting production or prices, allocations, Government takeover of products or facilities and other Governmental interference or embargoes, or other contingencies, the non-occurrence of which is a basic assumption of Buyer and JCH, shall give to Buyer and JCH the rights and obligations set forth in Sections 2.615 and 2.616 of the Uniform Commercial Code.|
|11.||Quantity of Goods. The quantity of the goods specified in this quotation is only approximate, and Buyer agrees to accept delivery of otherwise conforming goods which is at least 90% of the quantity specified on the reverse side of this invoice but not more than 110% of the specified quantity. If the quantity actually delivered differs substantially from the quantity specified herein, the price payable therefor may be adjusted pro-rata at JCH's sole discretion.|
|12.||Quotations Subject to Change. All quotations are subject to change due to fluctuations in the price and/or availability of any material and/or labor charges. Quotations are based on manufacturing in one lot and one time of all quantity which has been quoted. In the event that partial shipments are made and/or the goods are manufactured in more than one lot, JCH reserves the right to adjust its price accordingly.|
|13.||Sales and Use Tax Obligations. In the event that Buyer has not or does not remit sales or use tax with respect to the purchase and sale of the goods described herein (a) Buyer represents and warrants that (i) it has provided JCH with a valid resale certificate or certificate of exemption which exempts the purchase of said goods from the sales and/or use taxes imposed by any and all applicable States or (ii) that the purchase and sales of the goods described herein is otherwise exempt from sales and/or use taxation under the laws of any and all the applicable States, (b) Buyer acknowledges and agrees that the reporting and payment of any such sales and/or use taxes with the respect to the purchase and sale of the goods described herein (including any interest and penalties payable with respect thereto) shall be the sole and exclusive liability of the Buyer, notwithstanding any provisions of applicable law to the contrary, and (c) Buyer does hereby indemnify, hold harmless and agree to defend JCH and its officers, directors, employees, agents, successors and assigns, from and against any and all damages, liabilities, losses and expenses, including reasonable attorneys' and accountants' fees, incurred as a result of, in connection with or with respect to any such sales and/or use taxes (including any interest and penalties payable with respect thereto).|
|14.||Order of Precedence. The terms and provisions hereof take precedence over any additional terms and provisions of Buyer. Acceptance of this invoice by JCH is expressly limited to these terms and conditions. None of these terms and conditions may be modified or otherwise altered except by a written instrument signed by an officer of JCH at its headquarters and delivered by JCH to the Buyer. JCH hereby objects to any terms and conditions that may be contained in any form issued by Buyer and notifies Buyer that they are hereby expressly rejected in their entirety. JCH's act of delivering goods to Buyer or any other similar act by JCH shall not be deemed an acceptance of such terms and conditions.|
|15.||Entire Agreement; Amendment and Waiver. This invoice and all exhibits attached hereto and incorporated herein by this reference contain the entire understanding of the parties hereto with regard to the subject matter contained herein or therein, and supersede all prior agreements or understandings between or among any of the parties hereto, whether written or oral. This invoice may be amended, modified and/or supplemented or any provision of this invoice may be waived only by the mutual written agreement of the parties hereto.|