Custom Orders Terms and Conditions of Sale
1. DEFINITIONS: JNJ is hereinafter referred to as "Seller" The purchaser of Deliverables is hereinafter referred to as "Buyer." Seller shall supply Deliverables to Buyer, and Buyer shall purchase Deliverables from Seller, in accordance with GTC as hereinafter provided. The "Contract" means the GTC, Seller’s Application for Open Account Terms and Credit (“Credit Application”), Seller’s final quotation (which may be provided by electronic mail), the agreed scope(s) of work, Seller’s order acknowledgement (if any), any confidentiality and/or non- circumvention agreement executed between the parties, and the written agreement signed by the Seller and the Buyer or the Seller’s purchase order signed by Buyer for the Deliverables, as applicable. These General Terms and Conditions (“GTC”) are hereby incorporated into Seller’s quote, the Contract, all other business forms between Buyer and Seller, and all Deliverables and any portions thereof. In the event of any conflict between any or all of these documents, the GTC shall take precedence over all the other documents. “Contract Price” means the agreed price stated in the Contract for the sale of Deliverables, including adjustments (if any) in accordance with the Contract.
2. ENTIRE AGREEMENT: The Entire Agreement between Seller and Buyer is contained in the Contract, including but not limited to the GTC. The Contract constitutes the entire agreement between Seller and Buyer and supersedes all prior negotiations or communications. All negotiations and written documents between the parties are merged into the Contract and the GTC, and the Contract and GTC are the only basis upon which Seller is willing to contract with Buyer or provide the Deliverables. No other oral or written promises, terms, and/or conditions which are not set forth in the Contract and GTC shall be binding.
3. ACCEPTANCE: The execution of the Contract, or Buyer’s written acceptance of Seller’s quotation, or acceptance of the Deliverables, shall constitute acceptance by Seller of the GTC. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS STATED BY BUYER IN ANY OTHER FORM, OR INDICATED BY BUYER IN ITS PURCHASE ORDER OR REQUEST FOR QUOTATION OR OTHERWISE (EITHER ORAL OR WRITTEN) ACKNOWLEDGING OR ACCEPTING THIS GTC, IS DEEMED BY SELLER TO BE A MATERIAL ALTERATION OF SELLER’S GTC AND IS HEREBY OBJECTED TO AND REJECTED BY SELLER, UNLESS SPECIFICALLY ACCEPTED IN WRITING BY AN AUTHORIZED AGENT OF SELLER. BUYER'S ACCEPTANCE OF THE DELIVERABLES SHALL NOT CONSTITUTE ACCEPTANCE BY SELLER OF ANY SUCH ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS WHICH ARE NOT SPECIFICALLY ACCEPTED BY SELLER IN WRITING.
4. TERM: The Term of this GTC shall be as specified in the Contract, as may be amended by Seller and the Buyer, in writing, from time to time, unless earlier terminated as provided herein.
5. INVOICE AND PAYMENT: Seller shall invoice Buyer for Deliverables, and Buyer shall for each calendar month, or fraction thereof, in which Buyer’s payment is late, Buyer shall pay a late payment fee computed at the rate of 1.5% per month on the overdue balance, or the maximum rate permitted by law, whichever is less. For accounts which exceed total credit limits or which are not paid within thirty (30) days, Seller reserves the right to make Deliverables subject to C.O.D. shipment until the terms for the account are met. Seller shall further not be required to commence or continue performance unless and until required payment(s) from Buyer is/are received. For each day of delay in receiving payment from Buyer, Seller shall be entitled to an equal extension of time of performance. If Seller determines that Buyer’s financial condition or payment history does not justify continuation of Seller’s performance, Seller may require full or partial payment in advance or otherwise restructure payments, request additional forms of payment security, suspend Seller’s performance or terminate the Contract. Without notice to Buyer, Seller shall have the right, at any time, to recover, recoup and/or set-off any amounts that are or will become due or payable to Seller from Buyer or Buyer’s affiliates. If Buyer fails to pay any amount due to Seller, then Buyer shall be solely responsible for and pay to Seller, in addition to all payments to payments, interest and penalties due to Seller, all of Seller’s costs of collection, including Seller’s reasonable attorneys’ fees, court costs, and litigation expenses.
6. CHANGES: The Buyer or Seller may make changes in the Deliverables. Seller is not obligated to proceed with any change unless and until both parties agree upon such change in writing. Change documentation shall describe changes in scope, schedule, price, and other provisions, as agreed. If Seller believes that changes, or any other circumstance, justify a change in price or time for performance, Seller shall notify Buyer in writing within fifteen (15) days of the occurrence giving rise to the Seller’s claim. The Contract Price, Deliverables, and any other provisions shall be equitably adjusted to reflect additional costs or obligations incurred by Seller, resulting from a change after the date of Seller's quotation of Buyer's requirements or procedures, industry specifications, codes, standards, or any applicable local, state or federal laws or regulations.
7. QUALITY REQUIREMENTS: Seller will comply with its normal quality requirements, and revisions thereto. Seller shall perform inspections as specified by Buyer, and Seller shall make quality procedures and records available to Buyer upon request. Seller shall provide Buyer, upon reasonable request, and at Buyer’s expense, with access to Deliverables, whether completed or in-progress.
8. DISCLAIMER OF WARRANTIES. SELLER MAKES NO REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY OR PARTICULAR PURPOSE OF THE DELIVERABLES. SELLER DISCLAIMS ALL WARRANITES, EXPRESSED AND IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY AND PARTICULAR PURPOSE. SELLER HEREBY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND WARRANTIES FOR FITNESS FOR A PARTICULAR PURPOSE.
9. INTELLECTUAL PROPERTY (“IP”) OWNERSHIP: “IP” means inventions, discoveries and improvements; know-how; technical data, drawings, artwork, designs, specifications, models, prototypes, plans, process information, vendor information, reports and documented information; and computer programs and software; and all legally protectable elements, enhancements, modifications or derivative works of any of the foregoing. IP further includes all worldwide, common law, and statutory rights to the foregoing, including but not limited to, patents, industrial designs, trade secrets, copyrights, mask work registrations, and the like. Each party shall retain ownership of all IP it had prior to the Contract. All new IP created by Seller in the performance of this Contract, whether alone or with the Buyer, shall be owned by Seller.
10. INDEMNIFICATION: The Buyer, on behalf of the Buyer and Buyer’s agents, servants, employees, owners, officers, directors, members, customers, vendors and contractors (collectively “Agents”), shall defend, indemnify, and hold harmless the Seller, and the Seller’s Agents from and against claims, judgments, demands, losses, costs, penalties, fees (including without limitation, reasonable attorneys’ fees and litigation costs), expenses, liabilities and damages (including without limitation, consequential, special, direct, indirect, incidental, and punitive damages, and including, without limitation, any interruption or loss of production, lost business, lost profits, as well as any losses such as anticipatory damages, recalls, customer and/or field service activities, personnel and administrative costs, inspection costs, handling and reworking costs, and/or personal injury or death), as well as any claim concerning Seller’s IP, unless otherwise specifically excluded in the GTC, caused to the Buyer and/or the Buyer’s Agents by the breach, tort and/or inequity of the Buyer and/or the Buyer’s Agents.
11. DELIVERY AND PACKING: Unless otherwise expressly stated in the Contract, all Deliverables shall be delivered in accordance with the purchase order and Buyer shall pay all costs of delivery and insurance for the Deliverables. Buyer shall be liable for and insure for and against all risk of loss from Deliverables until delivery. Partial deliveries are permitted and deliveries may be made in advance of schedule. If Deliverables do not correspond in price, quantity, type or conformance, Buyer shall notify Seller with ten (10) days of Buyer’s receipt. All packing, shipping, storage, handling, packaging and other transportation charges (including but not limited to terminal switching charges) shall be at Buyer’s sole expense and Seller shall not be liable for any such charges. Buyer shall be responsible for all customs duties, expenses, and tariffs, as well as all federal, state, provincial and local taxes (including but not limited to all import taxes, excise taxes and sales taxes). Buyer shall be responsible for all export licenses and authorizations, as well as any arrangements for duty deferral or free trade programs. Buyer shall comply with all customs, border protection, and anti-terrorism laws.
12. INSPECTION: Buyer shall pay all costs of receiving, inspecting, analyzing and sorting Deliverables. Unless Buyer provides written notice to the Seller, within ten (10) days of the date of receipt of the Deliverables of the specific lack of conformity in the Deliverables, Buyer waives and releases any all claims arising of any lack of conformity of the Deliverables.
13. ASSIGNMENT: Buyer shall not assign or novate this GTC without the prior written consent of the Seller, which shall not be unreasonably withheld. Seller may assign or novate its rights and obligations under the Contract, in whole or in part, to any of Seller’s affiliates or may assign any of its accounts receivable under this Contract to any party without Buyer’s consent. Buyer agrees to execute any documents that may be necessary to complete Seller’s assignment or novation. Seller may subcontract portions of the work, so long as Seller remains responsible for it. The delegation or assignment by Buyer of any or all of its rights or obligations under the Contract without Seller’s prior written consent (which consent shall not be unreasonably withheld) shall be void.
14. FORCE MAJEURE: If Buyer or the Seller fails to perform due to a “Force Majeure” event or occurrence beyond its respective control and without its respective fault, then any delay or failure of performance will only be excused as long as that event or occurrence continues and the affected party provides written notice of the event and the expected duration thereof. “Force Majeure” includes, but is not limited to, an act of God, act of a public enemy, war, ordinance, blockage, rioting, lightning, fire, storm, hurricane, flood, explosion, act or restraint by government, epidemic, pandemic, landslide, earthquake, washout, shortages or delays in Seller’s receipt of goods from third party suppliers or vendors, delays or stoppages related to freight or shipping, and other similar causes beyond the reasonable control of Seller. During any delay or failure due to Force Majeure, Seller may procure substitute Deliverables. If Buyer is unable to provide adequate assurance to Seller that the delay or failure will not exceed ten (10) days, then Seller may terminate the Contract.
15. TERMINATION: Buyer may terminate the Contract (or the portion affected) for cause if Seller ceases to conduct its operations in the normal course of business, including but not limited to Seller’s inability to meet its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is commenced by or against Seller, or a receiver for Seller is appointed or applied for, or an assignment for the benefit of creditors is made, or Seller has a change in management, control or merges with another company, or commits a material breach, defaults or threatens to default or commit a material breach, provided that Buyer shall first provide Seller with detailed written notice of the breach and of Buyer’s intention to terminate the Contract, and Seller shall have failed, within thirty (30) days after receipt of Buyer’s written notice, to commence and diligently pursue a cure of the breach. If Buyer terminates the Contract pursuant to the above, the Buyer shall reimburse Seller that the portion of the Contract Price allocable to the Deliverables completed and that portion of the Contract Price allocable to the Deliverables in process, plus expenses reasonably incurred by Seller in connection with the termination, as well as all unrecovered overhead, repossession, fee collection (including reasonable attorneys’ fees), demobilization, and storage and shipping costs. Seller may suspend or terminate the Contract immediately for cause if Buyer (i) becomes Insolvent/Bankrupt, or materially breaches the Contract, or fails to pay in accordance with the Documents. If the Contract (or any portion thereof) is terminated for any reason other than Seller’s default, Buyer shall pay Seller for all Deliverables completed, before the effective date of termination, plus expenses reasonably incurred by Seller in connection with the termination. Buyer shall also pay Seller as liquidated damages, an amount equal to 50% of the amount remaining under the Contract plus expenses reasonably incurred by Seller in connection with the termination, as well as all unrecovered overhead, repossession, fee collection (including reasonable attorneys’ fees), demobilization, and storage and shipping costs. Either Buyer or Seller may terminate the Contract (or the portion affected) by providing twenty (20) days’ written notice after a force majeure event which is reasonably expected to last more than ninety (90) days. In such case, Buyer shall pay Seller for all Deliverables completed as of date of termination, and all Deliverables in process as of the date of termination. For any suspension or extended delay, Buyer shall also pay all reasonable expenses incurred by Seller relating to same, including, but not limited to, expenses for repossession, fee collection, demobilization/remobilization, and storage and shipping costs.
16. CONTROLLING LAW, JURISDICTION AND VENUE: This GTC has been negotiated and agreed upon in the State of Alabama, U.S.A., and the parties expressly agree that all the terms, conditions, rights and duties of the parties under the GTC shall be governed exclusively by the substantive and procedural laws of the State of Alabama, U.S.A., without regard to conflicts of law principles. IN ORDER TO INDUCE THE PARTIES TO ENTER THIS AGREEMENT, AND REGARDLESS OF ANY PLACE TO WHICH THE PARTIES MAY MAINTAIN THEIR LEGAL DOMICILE OR PRINCIPAL PLACE OF BUSINESS, AS APPLICABLE, AND TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY AGREES AND CONSENTS THAT ALL ACTIONS OR PROCEEDINGS ARISING DIRECTLY, INDIRECTLY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND THE DELIVERABLES AND PERFORMANCE THEREOF, SHALL BE LITIGATED IN THE CIRCUIT COURT OF TUSCALOOSA COUNTY, ALABAMA OR IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA, WESTERN DIVISION, AND HEREBY IRREVOCABLY CONSENTS TO THE JURISDICTION OF AND VENUE IN SUCH COURT, AND WAIVES ANY AND ALL JURISDICTIONAL AND VENUE DEFENSESTHAT SAID PARTY OR PARTIES MAY HAVE TO INSTITUTION OF SUCH AN ACTION IN SUCH COURT. Buyer consents to personal jurisdiction in these courts and shall not commence any lawsuit against Seller arising from or related to the GTC or the work or materials furnished thereunder, except in one of these courts. Any proceedings commenced in state or federal court arising in connection with the GTC shall be tried before and decided by the presiding judge without a jury, and Seller and Buyer each expressly waive any right to have such proceedings determined by trial by jury. The United Nations Convention on Contracts for the International Sale of GOODS, as amended, IS EXCLUDED, and shall not apply to the GTC.
17. RELATIONSHIP OF THE PARTIES: Seller and Buyer are independent contracting parties and nothing contained in this GTC shall be deemed to make either the Seller or the Buyer to be the agent of the other, or to create a partnership or joint venture, as neither Seller nor Buyer has any authority to control, assume or create any obligation on behalf of the other party.
18. LIMITATION OF DAMAGES: The total liability of Seller for all claims of any kind arising from or related to the formation, performance or breach of this Contract, the GTC or Deliverables, shall not exceed the Contract Price, or if Buyer places multiple order under the Contract, the price of each particular order for all claims arising from or related to that order, whichever is less. Seller shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of Buyer's customers for any of the foregoing types of damages. Any and all liability of Seller or Seller’s agent for any claims, damages claims, judgments, demands, losses, costs, penalties, fees (including without limitation, reasonable attorneys’ fees and litigation costs), expenses, liabilities and damages in contract, tort or otherwise shall expire, end and be extinguished one (1) year from the date of delivery of the Deliverables. If Buyer is supplying products or services to a third party, or using products or services at a facility owned by a third party, Buyer shall indemnify and defend Seller from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth herein, or require that the third party agree, for the benefit of and enforceable by Seller, to be bound by all the limitations included herein. The limitations in this Section shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Seller's liability. The limitation specified in this paragraph shall apply even if Buyer has been advised of the possibility of such damages.
19. TAXES: Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Contract (“Seller Taxes”). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than Seller Taxes ("Buyer Taxes"). Buyer Taxes shall include, without limitation, any taxes which may be due as the result of any mistake or misrepresentation by Buyer or Buyer’s Agents such as whether the Buyer is exempt from sales taxes but an audit subsequently provides otherwise. The Contract Price does not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Contract Price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.
20. FINANCIALS: On no less than an annual basis, Buyer shall provide Seller, at Seller’s request, with updated financial statements. Buyer shall also provide Seller with financial information upon Seller’s request, should Seller request that Buyer provide reasonable and adequate assurances of Buyer’s financial status.
21. WAIVER: No delay or omission to exercise any right or power arising under this GTC shall impair any such right or power, or be construed to be a waiver of any such right or power. No waiver of any breach of any term of this GTC shall be deemed a waiver of any succeeding breach, nor shall such waiver be deemed a modification of the GTC’s terms, or as a waiver, acquiescence in or consent to any further or succeeding breach of the same term or condition.
22. SEVERABILITY AND BINDING EFFECT: Each provision hereof shall be separate and independent and shall be valid and enforceable to the fullest extent allowed by law. If any provision hereof or the application thereof to any person or circumstance shall to any extent be invalid or unenforceable, such provisions shall be deemed severed as to that person or circumstance, and the remaining provisions hereof or the application of such provision to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby. All provisions shall be binding upon, inure to the benefit of, and be enforceable by each party’s successors and assigns to the same extent as if named as a party hereto.
23. CREDIT AND FINANCIAL: Buyer authorizes Seller to contact and obtain any and all credit information, bank references, and business references necessary for the Seller to extend credit to Buyer, and waives and releases any claim against Seller related to or arising out of any such credit information, banking or business references.