Standard Terms and Conditions
These Terms constitute a legally binding agreement made between you, whether personally or on behalf of an entity (“Buyer”) and between Jet Hot, Inc., a North Carolina corporation (“Company”), each a “Party” and together the “Parties.”
WITNESSETH:
WHEREAS, Company is engaged in the business of providing high-performance coatings for various metallic components; and
WHEREAS, Buyer desires to provide certain parts to Company so that Company can apply coatings and return the finished product to Buyer.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound, the Parties agree as follows:
1. Definitions. The following terms have the following meanings when used in this Agreement:
2. Terms of this Agreement. Unless otherwise stated, all transactions between Company and Buyer are expressly subject to the terms and conditions of this Agreement. Any modifications or additions to these terms and conditions will be recognized only if accepted in writing by a principal officer of Company or their designated representative. Provisions of Buyer’s purchase order or other similar documents that add to or differ from the terms and conditions of this Agreement are EXPRESSLY REJECTED.
3. Designated Work. Company will provide labor and materials associated with the coating of parts provided by Buyer to Company. Buyer shall request Company provide quotes related to any scope of work Buyer desires Company to provide under this Agreement. Work requested by Buyer, quoted by Company, and accepted by Buyer shall become “Designated Work” under this Agreement.
4. Quotations and Published Prices. Quotations from Company for work to be supplied under this Agreement automatically expire thirty (30) days from the date of issuance unless otherwise stated in the quotation and are subject to withdrawal by notice within that period. Company reserves the right to unilaterally extend such quotation up to six (6) months from the date of issuance.
5. Pricing, Payment, and Taxes. The price for work under any quote shall be as provided in the quote. Company shall invoice Buyer for work performed under any quote as parts are shipped back to Buyer, or to Buyer’s designated agent. Except as otherwise provided herein, payment in full shall be made within thirty (30) days from date of invoice. Amounts past due, are subject to a service charge of 1.5% per month (or fraction thereof) of maximum contract rate permitted by law. If the Company deems that, by reason of the financial condition of the Buyer or otherwise, the continuance of production or shipment on the terms specified herein is not justified, the Company may require full or partial payment(s) in advance. All purchases made via a credit card may be subject to a processing surcharge which Buyer agrees to pay.
The Company’s prices for products and service provided in any quote do not include any applicable sales, use, excise or similar taxes, and the amount of any such tax which the Company may be required to pay or collect will be added to each invoice.
6. Pricing Terms. Unless otherwise provided in the pricing provided in any quote, pricing is subject to the following terms:
Pricing excludes tooling or any upfront engineering costs although Buyer may request this service to be quoted separately by Company.
Pricing excludes inspection testing, PPAPs, repairs, or processes outside of agreed control plans or agreed standard operating procedures although Buyer may request these services to be quoted separately by Company.
In the event of any discrepancies in pricing between Buyer and Company, the pricing shall be controlled by the pricing contained in the last formal quote provided to Buyer by Company.
Company reserves the right to update and re-issue any quote if Buyer, after issuance of a quote by Company, makes any change to either (1) the quantity contained in the quote or (2) the design of the product subject to the quote.
Company reserves the right to renegotiate its prices with Buyer on an annual basis.
Company reserves the right to increase its per unit pricing after issuance of a quote if Buyer fails to supply the minimum quantity of parts or products outlined in a quote.
Company reserves the right to assess a small lot fee to any order under a pre-determined quantity of units or total order value.
7. Delivery. Delivery dates indicated in a Company quote are approximate and are based on prompt receipt of (1) all necessary information regarding the parts covered by the contract and (2) the parts to be serviced by Company. The Company will use reasonable efforts to meet the indicated delivery date, but cannot be held responsible for its failure to do so. In the event of any delay in delivery caused by the Buyer, the Company will store and handle all parts ordered at the Buyer’s risk and will invoice the Buyer for the unpaid portion of the contract price, plus storage, insurance and handling costs, on or after the date on which the parts are ready for delivery, payable in full within 15 days from invoice date. Buyer further agrees to provide Company with routine parts delivery forecasts for parts shipped from Buyer to Company that forecast no less than thirty (30) days out so that Company is able to accommodate estimated parts turnaround times to Buyer.
8. Shipping. Buyer is responsible for all freight and shipping charges related to the parts sent to Company including charges associated with shipping parts to Company and charges associated with Company shipping serviced parts back to Buyer, or to Buyer’s designated destination following service. Return shipping will be prepaid and billed as a separate item on the invoice based on the charge listed by the carrier engaged to transfer the shipment from Company to Buyer’s designated destination.
9. Storage Fees. To the extent Buyer elects not to have Company arrange for transport of completed parts, Company shall store completed parts for a period of fifteen (15) days. Following the expiration of fifteen (15) days, Buyer will incur, and Company will assess, daily storage costs until such time that Buyer retrieves completed parts. Buyer’s payment of incurred storage fees pursuant to this section is a condition precedent to Company’s obligation to release completed parts to Buyer. To the extent Buyer provides Company with excess parts to store at Company’s location in advance of Buyer’s normal parts processing schedule, Company reserves the right to assess, and Buyer will incur, daily storage costs for pre-production parts stored at Company in excess of four (4) months.
10. Part Processing Times. Company’s processing time for Buyer’s parts shall default to a standard processing time which varies based on Company’s schedule and available capacity. Buyer may request expedited or rush service, subject to Company’s schedule and availability which will be quoted separately by Company.
11. Buyer Representations. Buyer makes the following representations with respect to parts provided to Company for service under a quote:
Parts provided to Company for service shall include sufficient packaging to re-package parts following service by Company. Should Buyer fail to provide packaging materials or provide insufficient packaging materials, Company will repackage completed parts and Buyer agrees to pay the costs associated with Company provided packaging without need for Company to provide Buyer a revised quote.
Parts provided to Company for service shall be clean (free from debris or other residue) and suitable for Company’s service of such products. Company reserves the right to reject any part provided by Buyer that is not clean and ready for service. Should Buyer fail to provide clean parts to Company, Company may clean such parts and Buyer agrees to pay the costs associated with Company’s cleaning of Buyer’s parts without need for Company to provide Buyer a revised quote.
Parts provided to Company shall be free from defects that would impair Company’s ability to service the parts. Company reserves the right to reject any part provided by Buyer due to defect. For any rejected part, Buyer agrees to pay Company a processing fee of 25% of the per unit price contained in the corresponding quote.
12. Title and Risk of Loss. Buyer shall retain title to parts provided to Company for service while in the possession of Company. Buyer agrees to maintain adequate insurance of such parts while in the custody of Company.
13. Modifications to Quote Scope of Work. Buyer may, with express written consent of the Company, make changes in the specifications for work covered by a quote. In such event the contract price and delivery dates shall be equitably adjusted. The Company shall be entitled to payment for reasonable profit plus costs and expenses incurred by it for work and materials tendered unnecessarily as a result of such changes and for work and materials required to effect said changes.
14. Cancellation. Buyer may cancel any portion of work under a quote related to parts that have not yet been serviced by Company only with the written approval of the Company. Parts serviced by Company already cannot be subject to cancellation and Buyer remains obligated to pay for those serviced parts. If the Buyer makes an assignment for the benefit of creditors, or in the event that the Company for any reason feels insecure about the Buyer’s willingness or ability to perform, then Company shall have the unconditional right to cancel any scope of work under any quote. In the event of any cancellation of a work scope under any quote, in whole or in part, by either party, Buyer shall pay to Company for all completed parts under the cancelled quote as well as the reasonable costs and expenses (including engineering expenses and all commitments to its suppliers and subcontractors) incurred by the Company prior to receipt of notice of such cancellations, plus the Company’s usual rate of profit for similar work. The minimum cancellation charge will be 15% of the contract price.
15. Default. Upon default and placing this instrument with an attorney for collection or repossession of equipment, Buyer agrees to reimburse reasonable attorney’s fees and court costs incurred by the Company in connection therewith.
16. Warranties. SERVICES PROVIDED BY COMPANY UNDER THIS AGREEMENT ARE PROVIDED “AS IS.” COMPANY MAKES NO EXPRESS OR IMPLIED WARRANTY AS TO THE CONDITION OF ANY SUCH SERVICE PROVIDED BY COMPANY UNDER THIS AGREEMENT. COMPANY SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
17. Disclaimer of Damages. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. Such damages shall include, but not be limited to, loss of profits or revenues, loss of use of the equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Buyer’s customers or contractors for such damages.
18. Limitation of Liability. The Company shall not be liable for any loss, claim, expense or other damage caused by, contributed to by or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. In no event shall the Company’s liability for any cause of action whatsoever exceed the value of the quote corresponding to the part giving rise to the claim, whether based in contract, warranty, indemnity, or tort (including negligence). Any suit arising hereunder must be commenced within one (1) year from the date the cause of action accrues. Except as otherwise noted, the Company shall not indemnify any party.
19. Force Majeure. The inability of Company to fulfill its obligations required under these terms and conditions resulting from defaults or delays caused by conditions beyond Company’s reasonable control including, but not limited to strikes, insurrection, acts of God, war, terrorist activities, emergencies, public health emergencies, declared epidemic or pandemic, shortages or unavailability of materials, weather, change in law or other similar causes, will extend the period for the performance of the obligations for the period equal to the period(s) of any such delay(s) and Buyer will not have the right to terminate; provided that Company will continue to perform to the extent feasible in view of such force majeure.
20. Governing Law. This Agreement shall be construed and governed by the laws of the State of North Carolina.
21. Dispute Resolution. In the event that any dispute or claim arising out of, or in connection with this Agreement or any dispute or claim between Company and Buyer that does not directly arise out of and relate to this Agreement but exists because of the relationship created between Buyer and Company related to this Agreement, whether in contract, tort, statutory, or other law, for all claims of any type, including intentional torts and statutory claims as well as claims concerning the Designated Work, quality of work, completion of work, or the enforcement of this Agreement, (hereafter, “Dispute”) arises such Dispute shall be finally settled by litigation in the State and Federal Courts located in Guilford County, North Carolina, or, at Company’s sole election, by binding arbitration in the exclusive venue of Greensboro, North Carolina, in accordance with the then-current rules and procedures of the American Arbitration Association (the “AAA”) by one (1) arbitrator appointed by the AAA. Arbitration under this section shall be subject to the Federal Arbitration Act. The arbitrator shall apply the law of the State of North Carolina, without reference to rules of conflict of laws the merits of any dispute or claim. Should there be disagreement between Buyer and Company as to the application of this binding arbitration clause to a Dispute, the arbitrator(s) appointed by AAA shall decide if the issue should be resolved by the arbitrator(s) who has/have the full power to determine the scope of this clause. In all arbitrations pursuant to this section, the Parties shall have the right to reasonable discovery, the scope of which shall be determined in the discretion of the arbitrator. Any decision and award by the arbitrator shall be final and binding and judgment may be entered thereon by any court of competent jurisdiction.
22. Indemnity. Buyer shall defend, indemnify and hold harmless Company, including its officers, directors, employees, agents, and assigns, from and against any and all claims, suits, liabilities, expenses, attorney's fees or damages (collectively “Claims”) respecting property, including loss of use thereof, injuries to persons, including death, and from any other Claims on account of acts or omissions of Buyer, or any of its suppliers, officers, agents, employees or servants to the extent caused by the negligent acts of such party. Buyer’s obligation hereunder shall not be limited by the provisions of any workers’ compensation act or similar statute.
23. Assignment. Buyer shall not assign its rights under any quote or under this Agreement without Company’s prior written consent.
24. Term and Termination. The initial term of this Agreement shall commence on the Effective Date and shall run for a period of one (1) year (the “Term”). Thereafter, the Term shall automatically renew on an annual basis unless sooner terminated by either party upon ninety (90) days’ written notice of nonrenewal prior to the expiration of the applicable Term.
Notwithstanding the foregoing, either Party may terminate this Agreement upon sixty (60) days’ written notice to the other Party. In the event Buyer elects to terminate this Agreement, Buyer shall be responsible for payment of all work performed by Company under any quote up through the date of termination.
25. Notices. All notices, requests, demands, claims and other communications hereunder shall be in writing unless otherwise expressly contemplated hereby. Any notice, request, demand, claim or other communication hereunder shall be deemed duly given: (a) if personally delivered, when so delivered; (b) if mailed, five (5) Business Days after having been sent by first class, registered or certified U.S., return receipt requested, postage prepaid and addressed to the intended recipient as set forth below; or (c) if sent through an internationally recognized overnight delivery service that guarantees next day delivery, the Business Day following its delivery to such service in time for next day delivery:
Any Party may change the address to which notices, requests, demands, claims and other communications hereunder are to be delivered by giving the other Party notice thereof in the manner herein set forth.
26. General.
Relationship. Each party hereto will act as an independent contractor, and nothing contained in or arising out of this Agreement will be construed to imply or create any joint venture, partnership, agency, or other relationship. The parties agree that no fiduciary relationship is created by this Agreement.
No Waiver. Failure of either Party to require performance of any provision of this Agreement shall not affect such Party’s right to require full performance thereof at any time thereafter. The waiver by either Party of a breach of any provision hereof shall not constitute a waiver of a similar breach in the future or of any other breach or nullify the effectiveness of such provision.
Entire Agreement. This Agreement and any schedules, exhibits, attachments or addenda hereinafter set forth contain the entire agreement between the Parties as to the subject matter hereof. Neither this Agreement nor its execution has been induced by any representation, stipulation, agreement or understanding of any kind other than those herein expressed.
No Modification. No amendment, addition to, alteration, modification or waiver of all or any part of this Agreement shall be of any force or effect, whether by course of conduct or otherwise, unless in writing and signed by Company and Buyer. If the provisions of this Agreement and the provisions of any quote in connection with this Agreement are inconsistent or conflict, then the provisions of this Agreement shall prevail.
Severability. The invalidity, illegality or unenforceability of any of the provisions
of this Agreement shall not affect the validity, legality or enforceability of the remaining provisions of this Agreement. The Parties agree to substitute for any such invalid provision a valid provision that most closely approximates the intent and economic effect of such invalid provision.
Counterparts. This Agreement may be signed in any number of counterparts and the signatures delivered by telecopy or electronic transmission, each of which shall be deemed an original, with the same effect as if the signatures thereto and hereto were upon the same instrument and delivered in person. Signatures transmitted by facsimile or electronic transmission shall be binding for all purposes hereof.