Standard Terms & Conditions of Sale
QUOTATIONS
Within fifteen (15) days from date of issuance, this quotation may be converted into an offer to purchase by Purchaser’s approval or issuance of a Purchase Order and shall not be binding upon Newjac, Inc. until accepted in writing by an officer of Newjac. This quotation is expressly limited and made conditional upon Purchaser’s offer to purchase including all of the terms and conditions of this quotation without change. Any terms or conditions in Purchaser’s purchase order or any other document which vary from the terms of this quotation shall not be binding upon Newjac unless expressly accepted in writing and signed by an officer of Newjac in Lebanon, Indiana. Purchaser acknowledges that it has reviewed these terms and conditions and agrees to be legally bound by same.
TAXES
Newjac’s lump sum quotations do not include federal, state, local, municipal, or other sales, use, excise, property or any similar taxes or fees, now in force or enacted in the future. If any such taxes or fees are imposed, Purchaser will be responsible for paying said taxes or fees directly to the appropriate authority. If such taxes are paid by Newjac, Purchaser shall promptly reimburse Newjac.
PERMITS AND LICENSES
Unless otherwise stated, Purchaser shall be responsible for securing, and pay for, any necessary permits, licenses, and other approval from every governmental authority with jurisdiction in the area in which the system or product is to be erected or used. Purchaser indemnifies and holds Newjac harmless from any damages relating to failure to comply with this requirement.
TERMS OF PAYMENT
Unless otherwise stated, Newjac’s terms of payment for products or systems not installed by Newjac personnel are “NET THIRTY (30) DAYS FROM DATE OF SHIPMENT OF MATERIAL”. In cases of multiple shipments, partial or approximate billings will be made as shipments are completed.
Unless otherwise stated, Newjac’s terms of payment for projects which are to be installed by Newjac are “NET THIRTY (30) DAYS FROM THE DATE OF INVOICE. Newjac will invoice all charges for equipment shipped and installation labor performed during each month on or before the last day of such month. Said invoices will be payable net cash.
SERVICE CHARGES
All past due invoices are subject to a 1½% per month (18% per year) service charge. Purchaser agrees to pay Newjac all reasonable collection costs including, but not limited to, attorney fees and court costs, for past due invoices.
DELIVERY
Newjac will make every reasonable effort to meet shipping and/or project completion dates promised and to maintain production and installation schedules consistently therewith. However, Newjac is not liable for claims of damages of any kind due to failure, for any reason, to meet such scheduled dates.
PENALTY CLAUSE
Terms and conditions including penalty clauses for failure to meet shipment are not acceptable unless specifically approved in writing by an officer of Newjac as provided above.
CANCELLATION
Cancellation by Purchaser of any offer to purchase will be accepted only on the following basis: All items on which cancellation is requested in writing shall be paid for on the basis of actual cost of labor, materials, and supplies, including any special materials, equipment or sub-contractors for which Newjac has become obligated, plus a reasonable markup for overhead and profit provided that such amount shall in no case exceed the original contract price plus or minus any approved changes. In the event of any cancellation, Newjac’s computation of cancellation charges under the above shall be final and conclusive.
Written notice of disposition of cancelled items which are not yet delivered shall be given by Purchaser to Newjac within thirty (30) calendar days from date of notice to Purchaser of the cancellation charges. Failure to give Newjac notice of disposition of such items within said thirty (30) calendar days shall constitute Purchaser’s agreement that Newjac may dispose of such items as it sees fit without further credit to Purchaser or any further obligation.
If at any time Purchaser does not strictly comply with all terms and conditions of any order or if at any time Purchaser: (1) shall be adjudicated bankrupt, (2) shall have filed a voluntary petition in bankruptcy, (3) has a receiver appointed for it, or (4) makes an assignment for the benefit of creditors, Newjac has the absolute right to cancel and refuse to complete work on said order. In the event of Newjac’s cancellation as above set forth, Purchaser shall pay Newjac the amount computed as provided under this clause.
DELAY
Delivery of items or installation labor may not be delayed by Purchaser without Newjac’s written consent. If delays by Purchaser with Newjac’s written consent total more than thirty (30) days, Newjac may increase prices for the unbilled portion of the contract by 1% per month of delay or fraction thereof, or in accordance with any applicable escalation clauses whichever is greater. In addition, if any fabricated material must be stored by Newjac, Newjac may charge Purchaser 2% of the contract price of such material per month or fraction thereof billed monthly. In the event of any delay, Newjac’s computation of delay and storage charges under the above shall be final and conclusive.
CHANGES DURING PROCESS OF ORDER
If the system or items covered in this quotation are not designed by Newjac, changes in the specification upon which the order is based will be made only if expressly accepted in writing by Newjac. If such changes in specifications increase or decrease the cost of any item, the price thereof shall be adjusted by a reasonable amount as agreed in writing by both parties.
If the system or items covered by this quotation are designed by Newjac, the drawings required shall be prepared by Newjac’s Engineering Department. They shall upon completion, be submitted to Purchaser for approval prior to fabrication. After the drawings have been approved, changes will be made only if agreed to in writing by both parties, and if such changes increase or decrease the cost of the system or products, the price thereof shall be adjusted as agreed in writing by both parties.
TITLE AND INSURANCE
For items which are not to be installed by Newjac, unless expressly provided otherwise in this proposal, passing of title of products shall be F.O.B. point of shipment, even where freight may be prepaid or allowed to destination by Newjac. For systems installed by Newjac, passing of title shall be upon completion of installation or acceptance by Purchaser, whichever occurs first. Purchaser shall insure Newjac against loss by fire, and all other risks normally covered by insurance, until final payment for the system is made.
INSTALLATION BY NEWJAC
In the case of systems or equipment to be installed by Newjac, the following conditions apply:
This quotation is based on the installation work being done on a standard work week, Monday through Friday, during the hours of the day normally being worked by skilled tradesmen in the area in which the job is to be installed, and any variation from this schedule may result in an adjustment of the contract price quoted. Purchaser is to provide an adequate storage area in a location convenient to the jobsite. If, through no fault of Newjac, it is necessary for Newjac’s installation crew to make more than one trip to install the project, the expense of the extra trip or trips is to be borne by Purchaser.
Newjac’s installation crew shall perform only work specifically outlined in the final approved drawings as prepared by Newjac or as outlined in the drawings furnished by Purchaser from which the job was bid. Should any additional work be requested by Purchaser, a Newjac “Field Order” will be signed by the Purchaser describing such work and such work will be separately billed in addition to the quoted price at Newjac’s normal billing rates on a time and material basis, unless both parties otherwise agree in writing to a firm price. For time and material work, Purchaser shall approve Newjac’s field time sheets at regular intervals, preferably daily but never less frequently than weekly.
INSTALLATION BY OTHERS
In cases where a system or system components are fabricated by Newjac and installed by another party, it is understood that a minimum amount of cutting, drilling, alteration, welding, etc. shall be considered to be a normal part of the installation. Piping and system components furnished by Newjac must often have loose joints with extra length for field fitting and assembly. This flexibility must be provided in order to efficiently install the systems to fit field conditions.
In addition, it may be discovered during installation that piping, blow pipe, ductwork, etc. must be routed differently than shown on the engineering drawings. If such rerouting is caused by Newjac errors, Newjac shall furnish the additional materials required to reroute the system at no additional charge. Any additional expenses of rerouting or reworking, other than material, shall be paid by Purchaser.
Newjac shall accept back charges for field corrections to materials and equipment only in the event of poor workmanship or faulty construction, and back charges shall be honored only if Newjac’s representative is present at jobsite and agrees that the fault is Newjac’s and to the charges involved, in advance of any corrective field work being done.
SYSTEM GUARANTEES AND SAFETY DEVICES (OSHA)
No system performance guarantee other than that specifically made in the body of this proposal, if any, is extended, and any guarantees with regard to OSHA compliance, dust levels, or compliance with pollution codes are conditional upon written approval by Newjac’s Engineering Department. Any system performance guarantees are specifically limited to performance at start up only. It is the responsibility of the Purchaser to maintain the system and monitor system performance. Except with respect to its own employees, Newjac shall not be required to provide any safety devices or be responsible for compliance with any federal, state, municipal or other local safety regulations, except as expressly agreed to in writing by Newjac’s Engineering Department. Except with respect to its own employees, Purchaser agrees to hold Newjac harmless against any claims, costs, or damages arising from lack of compliance with or violation of such regulations, or failure to furnish or provide such devices.
RESPONSIBILITY/WARRANTY
The products furnished hereunder are guaranteed by Newjac against any defect in material or workmanship for a period of one (1) year from the date of shipment when owned by original Purchaser or first User, and maintained and operated under normal conditions; provided, however, any products furnished hereunder not manufactured by Newjac are warranted only to the extent of the original manufacturer’s warranty. Parts found to be defective in material or workmanship under this guaranty shall be repaired or replaced without charge, F.O.B. original point of shipment, provided prompt written notice of the defect is given and compliance with the terms of guaranty is established. THE FOREGOING SHALL BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR DEFECTS. Decomposition by chemical action and wear caused by abrasion shall not constitute defects for purposes hereof. This warranty shall be void if repairs or alterations are made without Newjac’s prior written consent. No person, agent, representative, salesman, dealer or distributor has any authority to change or extend the warranty expressed herein nor obligate Newjac by any terms, stipulations or conditions not herein expressed. THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE.
System “Performance” warranties shall be considered “VOID” if alterations, modifications or changes are made during the installation or warranty period without Newjac’s prior written consent.
LIMITATION OF LIABILITY
Purchaser agrees and acknowledges that in no event shall Newjac be liable to Purchaser or to any third party for any ordinary, special, consequential or incidental damages or losses or any expenses or damages incurred by Purchaser or any third party attributable to any item sold, installed, fabricated, or designated hereunder. Purchaser shall protect, indemnify, save harmless and legally defend Newjac from any loss, cost, damage or expense, including attorney’s fees arising from any claim asserted against Newjac that is in any way associated with the matters set forth in this limitation of liability section.
COMPLETION OF INSTALLATION AND ACCEPTANCE
For all purposes hereof, installation by Newjac shall be deemed complete when Newjac’s installers leave the jobsite, or as to any readily divisible portion of a system, when they cease work on such portion; and the use of the system, or any part thereof, by Purchaser for a continuous period of fifteen (15) working days shall constitute acceptance by Purchaser of such system or part, as the case may be.
CASE LAW
This quotation and any agreement arising therefrom shall be governed by and construed in accordance with the laws of the State of Indiana.
SEVERABILITY
If any provision herein shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected.
Within fifteen (15) days from date of issuance, this quotation may be converted into an offer to purchase by Purchaser’s approval or issuance of a Purchase Order and shall not be binding upon Newjac, Inc. until accepted in writing by an officer of Newjac. This quotation is expressly limited and made conditional upon Purchaser’s offer to purchase including all of the terms and conditions of this quotation without change. Any terms or conditions in Purchaser’s purchase order or any other document which vary from the terms of this quotation shall not be binding upon Newjac unless expressly accepted in writing and signed by an officer of Newjac in Lebanon, Indiana. Purchaser acknowledges that it has reviewed these terms and conditions and agrees to be legally bound by same.
TAXES
Newjac’s lump sum quotations do not include federal, state, local, municipal, or other sales, use, excise, property or any similar taxes or fees, now in force or enacted in the future. If any such taxes or fees are imposed, Purchaser will be responsible for paying said taxes or fees directly to the appropriate authority. If such taxes are paid by Newjac, Purchaser shall promptly reimburse Newjac.
PERMITS AND LICENSES
Unless otherwise stated, Purchaser shall be responsible for securing, and pay for, any necessary permits, licenses, and other approval from every governmental authority with jurisdiction in the area in which the system or product is to be erected or used. Purchaser indemnifies and holds Newjac harmless from any damages relating to failure to comply with this requirement.
TERMS OF PAYMENT
Unless otherwise stated, Newjac’s terms of payment for products or systems not installed by Newjac personnel are “NET THIRTY (30) DAYS FROM DATE OF SHIPMENT OF MATERIAL”. In cases of multiple shipments, partial or approximate billings will be made as shipments are completed.
Unless otherwise stated, Newjac’s terms of payment for projects which are to be installed by Newjac are “NET THIRTY (30) DAYS FROM THE DATE OF INVOICE. Newjac will invoice all charges for equipment shipped and installation labor performed during each month on or before the last day of such month. Said invoices will be payable net cash.
SERVICE CHARGES
All past due invoices are subject to a 1½% per month (18% per year) service charge. Purchaser agrees to pay Newjac all reasonable collection costs including, but not limited to, attorney fees and court costs, for past due invoices.
DELIVERY
Newjac will make every reasonable effort to meet shipping and/or project completion dates promised and to maintain production and installation schedules consistently therewith. However, Newjac is not liable for claims of damages of any kind due to failure, for any reason, to meet such scheduled dates.
PENALTY CLAUSE
Terms and conditions including penalty clauses for failure to meet shipment are not acceptable unless specifically approved in writing by an officer of Newjac as provided above.
CANCELLATION
Cancellation by Purchaser of any offer to purchase will be accepted only on the following basis: All items on which cancellation is requested in writing shall be paid for on the basis of actual cost of labor, materials, and supplies, including any special materials, equipment or sub-contractors for which Newjac has become obligated, plus a reasonable markup for overhead and profit provided that such amount shall in no case exceed the original contract price plus or minus any approved changes. In the event of any cancellation, Newjac’s computation of cancellation charges under the above shall be final and conclusive.
Written notice of disposition of cancelled items which are not yet delivered shall be given by Purchaser to Newjac within thirty (30) calendar days from date of notice to Purchaser of the cancellation charges. Failure to give Newjac notice of disposition of such items within said thirty (30) calendar days shall constitute Purchaser’s agreement that Newjac may dispose of such items as it sees fit without further credit to Purchaser or any further obligation.
If at any time Purchaser does not strictly comply with all terms and conditions of any order or if at any time Purchaser: (1) shall be adjudicated bankrupt, (2) shall have filed a voluntary petition in bankruptcy, (3) has a receiver appointed for it, or (4) makes an assignment for the benefit of creditors, Newjac has the absolute right to cancel and refuse to complete work on said order. In the event of Newjac’s cancellation as above set forth, Purchaser shall pay Newjac the amount computed as provided under this clause.
DELAY
Delivery of items or installation labor may not be delayed by Purchaser without Newjac’s written consent. If delays by Purchaser with Newjac’s written consent total more than thirty (30) days, Newjac may increase prices for the unbilled portion of the contract by 1% per month of delay or fraction thereof, or in accordance with any applicable escalation clauses whichever is greater. In addition, if any fabricated material must be stored by Newjac, Newjac may charge Purchaser 2% of the contract price of such material per month or fraction thereof billed monthly. In the event of any delay, Newjac’s computation of delay and storage charges under the above shall be final and conclusive.
CHANGES DURING PROCESS OF ORDER
If the system or items covered in this quotation are not designed by Newjac, changes in the specification upon which the order is based will be made only if expressly accepted in writing by Newjac. If such changes in specifications increase or decrease the cost of any item, the price thereof shall be adjusted by a reasonable amount as agreed in writing by both parties.
If the system or items covered by this quotation are designed by Newjac, the drawings required shall be prepared by Newjac’s Engineering Department. They shall upon completion, be submitted to Purchaser for approval prior to fabrication. After the drawings have been approved, changes will be made only if agreed to in writing by both parties, and if such changes increase or decrease the cost of the system or products, the price thereof shall be adjusted as agreed in writing by both parties.
TITLE AND INSURANCE
For items which are not to be installed by Newjac, unless expressly provided otherwise in this proposal, passing of title of products shall be F.O.B. point of shipment, even where freight may be prepaid or allowed to destination by Newjac. For systems installed by Newjac, passing of title shall be upon completion of installation or acceptance by Purchaser, whichever occurs first. Purchaser shall insure Newjac against loss by fire, and all other risks normally covered by insurance, until final payment for the system is made.
INSTALLATION BY NEWJAC
In the case of systems or equipment to be installed by Newjac, the following conditions apply:
This quotation is based on the installation work being done on a standard work week, Monday through Friday, during the hours of the day normally being worked by skilled tradesmen in the area in which the job is to be installed, and any variation from this schedule may result in an adjustment of the contract price quoted. Purchaser is to provide an adequate storage area in a location convenient to the jobsite. If, through no fault of Newjac, it is necessary for Newjac’s installation crew to make more than one trip to install the project, the expense of the extra trip or trips is to be borne by Purchaser.
Newjac’s installation crew shall perform only work specifically outlined in the final approved drawings as prepared by Newjac or as outlined in the drawings furnished by Purchaser from which the job was bid. Should any additional work be requested by Purchaser, a Newjac “Field Order” will be signed by the Purchaser describing such work and such work will be separately billed in addition to the quoted price at Newjac’s normal billing rates on a time and material basis, unless both parties otherwise agree in writing to a firm price. For time and material work, Purchaser shall approve Newjac’s field time sheets at regular intervals, preferably daily but never less frequently than weekly.
INSTALLATION BY OTHERS
In cases where a system or system components are fabricated by Newjac and installed by another party, it is understood that a minimum amount of cutting, drilling, alteration, welding, etc. shall be considered to be a normal part of the installation. Piping and system components furnished by Newjac must often have loose joints with extra length for field fitting and assembly. This flexibility must be provided in order to efficiently install the systems to fit field conditions.
In addition, it may be discovered during installation that piping, blow pipe, ductwork, etc. must be routed differently than shown on the engineering drawings. If such rerouting is caused by Newjac errors, Newjac shall furnish the additional materials required to reroute the system at no additional charge. Any additional expenses of rerouting or reworking, other than material, shall be paid by Purchaser.
Newjac shall accept back charges for field corrections to materials and equipment only in the event of poor workmanship or faulty construction, and back charges shall be honored only if Newjac’s representative is present at jobsite and agrees that the fault is Newjac’s and to the charges involved, in advance of any corrective field work being done.
SYSTEM GUARANTEES AND SAFETY DEVICES (OSHA)
No system performance guarantee other than that specifically made in the body of this proposal, if any, is extended, and any guarantees with regard to OSHA compliance, dust levels, or compliance with pollution codes are conditional upon written approval by Newjac’s Engineering Department. Any system performance guarantees are specifically limited to performance at start up only. It is the responsibility of the Purchaser to maintain the system and monitor system performance. Except with respect to its own employees, Newjac shall not be required to provide any safety devices or be responsible for compliance with any federal, state, municipal or other local safety regulations, except as expressly agreed to in writing by Newjac’s Engineering Department. Except with respect to its own employees, Purchaser agrees to hold Newjac harmless against any claims, costs, or damages arising from lack of compliance with or violation of such regulations, or failure to furnish or provide such devices.
RESPONSIBILITY/WARRANTY
The products furnished hereunder are guaranteed by Newjac against any defect in material or workmanship for a period of one (1) year from the date of shipment when owned by original Purchaser or first User, and maintained and operated under normal conditions; provided, however, any products furnished hereunder not manufactured by Newjac are warranted only to the extent of the original manufacturer’s warranty. Parts found to be defective in material or workmanship under this guaranty shall be repaired or replaced without charge, F.O.B. original point of shipment, provided prompt written notice of the defect is given and compliance with the terms of guaranty is established. THE FOREGOING SHALL BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY FOR DEFECTS. Decomposition by chemical action and wear caused by abrasion shall not constitute defects for purposes hereof. This warranty shall be void if repairs or alterations are made without Newjac’s prior written consent. No person, agent, representative, salesman, dealer or distributor has any authority to change or extend the warranty expressed herein nor obligate Newjac by any terms, stipulations or conditions not herein expressed. THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OF FITNESS FOR A PARTICULAR PURPOSE.
System “Performance” warranties shall be considered “VOID” if alterations, modifications or changes are made during the installation or warranty period without Newjac’s prior written consent.
LIMITATION OF LIABILITY
Purchaser agrees and acknowledges that in no event shall Newjac be liable to Purchaser or to any third party for any ordinary, special, consequential or incidental damages or losses or any expenses or damages incurred by Purchaser or any third party attributable to any item sold, installed, fabricated, or designated hereunder. Purchaser shall protect, indemnify, save harmless and legally defend Newjac from any loss, cost, damage or expense, including attorney’s fees arising from any claim asserted against Newjac that is in any way associated with the matters set forth in this limitation of liability section.
COMPLETION OF INSTALLATION AND ACCEPTANCE
For all purposes hereof, installation by Newjac shall be deemed complete when Newjac’s installers leave the jobsite, or as to any readily divisible portion of a system, when they cease work on such portion; and the use of the system, or any part thereof, by Purchaser for a continuous period of fifteen (15) working days shall constitute acceptance by Purchaser of such system or part, as the case may be.
CASE LAW
This quotation and any agreement arising therefrom shall be governed by and construed in accordance with the laws of the State of Indiana.
SEVERABILITY
If any provision herein shall be held invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected.