Terms and Conditions of Sale
INTERNATIONAL CUSTOMERS: (IMPORTANT)
Orders that are shipped outside the United States are subject to brokerage fees and duty taxes.
Canadian shipments that are eligible for "Free Shipping" may be subject to actual freight charges depending on the delivery location and products purchased. Questions call 218-302-4770
GENERAL TERMS AND CONDITIONS OF SALE
Jackman Fusion Equipment is hereinafter referred to in these Terms and Conditions of Sale (“Terms”) as “Jackman Fusion Equipment” and the customer or person or entity purchasing goods or services (collectively referred to as “Goods”) from Jackman Fusion Equipment is referred to as the “Buyer.” Buyer acknowledges that these Terms along with any attachment, price list, schedule, quotation, acknowledgment, or invoice from Jackman Fusion Equipment relevant to the sale of the Goods (collectively, “Attachment”), and all documents incorporated by specific reference into these Terms or any Attachment, constitute the complete and exclusive statement of the terms of the agreement governing all sales of Goods by Jackman Fusion Equipment to Buyer (“Agreement”), regardless of whether or not Buyer or Hdpe Supply expressly make reference to these Terms in any documentation related to any such sale. Buyer’s acceptance of the Goods will manifest Buyer’s assent to these Terms without variance or addition. Jackman Fusion Equipment hereby objects to and rejects any terms in Buyer’s purchase order or other Buyer documents that are different than or in addition to these Terms, and such terms shall not constitute any part of the agreement between Buyer and Jackman Fusion Equipment. Any Attachment is incorporated herein by reference. Jackman Fusion Equipment reserves the right in its sole discretion to refuse orders.
1. Prices. Unless a fixed price is quoted, the price of Goods are subject to change without notice and the prices invoiced will be those in effect at the time of shipment and/or delivery of Goods.
2. Taxes. Jackman Fusion Equipment charges sales tax on Minnesota orders only. Customers located in all other states and/or countries have the sole responsibility to file and pay their states applicable taxes.
3. Terms of Payment. Unless otherwise specified by Jackman Fusion Equipment, terms are net thirty (30) days from the date of Jackman Fusion Equipment’s invoice in U.S. currency. Jackman Fusion Equipment has the right, among other remedies, either to terminate this Agreement and/or any purchase order with Buyer or to suspend further performance under this Agreement, any other agreements and/or purchase orders with Buyer in the event Jackman Fusion Equipment fails to receive any payment when due, which other agreements and/or purchase orders Buyer and Jackman Fusion Equipment hereby amend accordingly to incorporate these Terms, or if Jackman Fusion Equipment otherwise deems itself insecure. Buyer shall be liable for all expenses, including attorneys’ fees and other litigation costs, relating to the collection of past due amounts. In the event Buyer fails to make any payment to Jackman Fusion Equipment when due, Buyer’s entire account(s) with Jackman Fusion Equipment shall become immediately due and payable without notice or demand by Jackman Fusion Equipment. If any payment owed to Jackman Fusion Equipment is not paid when due, it shall bear interest at a rate to be determined by Jackman Fusion Equipment, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial responsibility become unsatisfactory to Jackman Fusion Equipment, cash payments or security satisfactory to Jackman Fusion Equipment may be required by Jackman Fusion Equipment (including, without limitation, letters of credit) for future deliveries and for Goods delivered up to that point. If such cash payment or security is not provided, in addition to Jackman Fusion Equipment’s other rights and remedies, Jackman Fusion Equipment may discontinue deliveries. Buyer hereby grants Jackman Fusion Equipment a purchase money security interest in all Goods sold to Buyer by Jackman Fusion Equipment, which security interest shallcontinue until such Goods are fully paid for in cash, and Buyer: (a) upon Jackman Fusion Equipment’s demand, will execute and deliver to Jackman Fusion Equipment such instruments as Jackman Fusion Equipment requests to protect and perfect such security interest, and (b) authorizes Jackman Fusion Equipment to execute and file such instruments as are necessary or useful to protect and perfect such interest. No Goods furnished by Jackman Fusion Equipment to Buyer shall become a fixture as a result of such Goods being attached to realty.
4. Shipment and Delivery. Unless otherwise expressly provided, shipments are made F.O.B. Jackman Fusion Equipment’s store or warehouse, whichever is applicable, of origin. Risk of loss or damage and responsibility shall pass from Hdpe Supply to Buyer upon delivery to and receipt by a carrier. Any claims for shortages or damages suffered in transit are the sole responsibility of Buyer and shall be submitted by Buyer directly to the carrier. Shortages or damages must be acknowledged and signed for at the time of delivery. While Jackman Fusion Equipment will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Hdpe Supply, all shipping dates are approximate and not guaranteed. Jackman Fusion Equipment reserves the right to make partial shipments and to place certain orders on “back order.” Jackman Fusion Equipment, at its option, shall not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions. If Jackman Fusion Equipment is to pay freight, Jackman Fusion Equipment shall have the right to designate routing and means of transportation; and if Buyer requires a more expensive routing and/or means, Buyer will pay any extra cost involved. The cost of any special packing or special handling as a result of Buyer’s requirements shall be added to the amount of the order of the applicable Goods. If the shipment of Goods is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Jackman Fusion Equipment for any handling and storage costs and other additional expenses resulting there from. All claims for shipping errors, lost shipments or any other discrepancies (other than shortages or damages which must be acknowledged and signed for at the time of delivery) must be made within ninety (90) days after delivery to the carrier or they will be disallowed and deemed waived.
5. Limited Warranty. Buyer’s sole and exclusive warranty, if any, with respect to Goods sold by Jackman Fusion Equipment, is the warranty provided by manufacturer(s) of Goods.
THE WARRANTY IN THIS SECTION 5 CONSTITUTES JACKMAN FUSION EQUIPMENT’S SOLE WARRANTY RESPONSIBILITY AND BUYER’S EXCLUSIVE REMEDY WHETHER SOUNDING IN TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE, EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS AGREEMENT. HDPE SUPPLY MAKES NO WARRANTY OF MERCHANTABILITY AND NO WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE, NOR DOES IT MAKE ANY OTHER WARRANTY, EXPRESS OR IMPLIED, OF ANY NATURE WHATSOEVER WITH RESPECT TO GOODS SOLD BY JACKMAN FUSION EQUIPMENT OR THE USE THEREOF EXCEPT AS IS SPECIFICALLY SET FORTH HEREIN, EVEN THOUGH JACKMAN FUSION EQUIPMENT MAY HAVE BEEN NEGLIGENT. JACKMAN FUSION EQUIPMENT SHALL IN NO EVENT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES OF ANY CHARACTER IN CONNECTION WITH THE DELAY OF DELIVERY (OR FAILURE TO GIVE NOTICE OF DELAY OF DELIVERY), SALE, RESALE, LICENSE, OR USE OF THE GOODS. JACKMAN FUSION EQUIPMENT MAKES NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, TO “CONSUMERS” AS THAT TERM IS DEFINED IN SEC. 101 OF PUBLIC LAW 93.637, THE MAGNUSON-MOSS WARRANTY FEDERAL TRADE COMMISSION IMPROVEMENT ACT. ALL GOODS FURNISHED AND/OR SOLD BY JACKMAN FUSION EQUIPMENT ARE FURNISHED AND/OR SOLD "AS IS," "WHERE IS," AND "WITH ALL FAULTS."
LIMITATION OF REMEDY. THE SOLE AND EXCLUSIVE REMEDY FOR BREACH OF ANY WARRANTY HEREUNDER SHALL BE LIMITED TO THE REMEDY PROVIDED TO BUYER DIRECTLY BY THE MANUFACTURER OF GOODS SOLD BY JACKMAN FUSION EQUIPMENT TO BUYER.
LIMITATION OF LIABILITY. JACKMAN FUSION EQUIPMENT SHALL NOT BE LIABLE FOR DAMAGES CAUSED BY DELAY IN PERFORMANCE, REGARDLESS OF THE FORM OF THE CLAIM OR CAUSE OF ACTION (WHETHER BASED IN CONTRACT, INFRINGEMENT, NEGLIGENCE, STRICT LIABILITY, OTHER TORT, OR OTHERWISE), AND IN NO EVENT SHALL HDPE SUPPLY’S LIABILITY TO BUYER AND/OR ITS BUYERS EXCEED THE PRICE PAID BY BUYER FOR THE SPECIFIC GOODS OR PORTION OF THE GOODS PROVIDED BY JACKMAN FUSION EQUIPMENT GIVING RISE TO THE CLAIM OR CAUSE OF ACTION, AND BUYER SHALL INDEMNIFY HDPE SUPPLY FOR ANY DAMAGES IN EXCESS THEREOF. IN NO EVENT SHALL HDPE SUPPLY’S LIABILITY TO BUYER AND/OR ITS CUSTOMERS EXTEND TO INCLUDE DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, ALL OF WHICH ARE WAIVED BY BUYER AND AS TO WHICH BUYER SHALL INDEMNIFY JACKMAN FUSION EQUIPMENT.
The term “consequential damages” as used in these Terms shall include, but not limited to, fines, penalties, loss of anticipated profits, business interruption, loss of use of revenue, cost of capital, loss or damage to property or equipment, loss of reputation, or illness. Further, Buyer shall indemnify and hold Jackman Fusion Equipment harmless from any liability to Buyer, Buyer’s employees, workers, contractors or any other persons arising out of Buyer’s, or any other persons’, use of Goods. It is further expected that all instructions and warnings supplied by Jackman Fusion Equipment will be passed on to those persons who use Goods. Jackman Fusion Equipment’s Goods are to be used in their recommended applications and all warning labels adhered to.
6. Contingencies. Jackman Fusion Equipment shall not be held responsible for or be liable for any nonperformance or any default or delay in performance if caused, directly or indirectly, by acts of God, war, fire, the elements, riot, civil commotion, strikes, lock-outs, slow downs, picketing or other labor controversies, accidents, delay or default of or failure by carriers, shortages of labor, delay in obtaining or inability to obtain materials, equipment or parts from regular sources, action, request or regulation of or by any government or governmental authority, failure of any party to perform any contract with Jackman Fusion Equipment, the performance of which is required for production of the Goods, or any other happening or contingency beyond Jackman Fusion Equipment’s reasonable control, or without Jackman Fusion Equipment’s fault, whether similar or dissimilar to the foregoing. Deliveries or other performance may be suspended for an appropriate period of time or canceled by Jackman Fusion Equipment upon notice to Buyer in the event of the foregoing, but the balance of the this Agreement shall otherwise remain unaffected.
If Jackman Fusion Equipment determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable due to causes set forth herein, Jackman Fusion Equipment may allocate its available supply of the Goods or such material (without obligation to acquire other supplies of any such Goods or materials) among itself and its purchasers on such basis as Jackman Fusion Equipment determines to be equitable without liability for any failure of performance that may result there from.
7. Cancellation. Buyer may cancel orders only upon reasonable advance written notice and upon payment to Jackman Fusion Equipment of Jackman Fusion Equipment’s cancellation charges that include, among other things, all costs and expenses incurred to cover commitments made by Jackman Fusion Equipment and a reasonable profit. Jackman Fusion Equipment’s determination of such termination charges shall be conclusive.
8. Assignment. Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Jackman Fusion Equipment, and any such assignment, without such consent, shall be void.
9. Examination - Suitability – Claims – Returns. Buyer agrees to examine and test each shipment of Goods promptly on arrival, before any part of the Goods (except for reasonable test quantities) has been changed from its original condition and in no event later than ten (15) days from delivery of the Goods to Buyer. Jackman Fusion Equipment will not recognize any claims for any cause after the Goods have been treated, processed, or changed in any manner (except for reasonable test quantities). It is Buyer’s responsibility to determine whether the Goods are suitable for its contemplated use whether or not such use is known to Jackman Fusion Equipment. Buyer hereby agrees that such ten (15) day period is a reasonable amount of time for such inspection. Buyer shall deliver to Jackman Fusion Equipment within ten (15) days from the date of delivery of the Goods written notice of any deficiencies, defects, variations from specifications, or complaints of any kind with respect to the quantity, quality, condition, shipment, performance, price, or appearance of the Goods delivered by Buyer. If Jackman Fusion Equipment does not receive such notice within ten (15) days from the date of delivery of the Goods, Buyer shall be deemed conclusively to have inspected and accepted all such Goods unconditionally and to have waived any rights and claims, including without limitation any right to reject the Goods or to claim damages in respect thereof. Buyer may not return Goods without first advising Jackman Fusion Equipment of the reasons therefor and observing such instructions as Jackman Fusion Equipment may give in authorizing such return.
Buyer: All authorized returns for credit will be subject to a 20% re-stocking charge with a MINIMUM charge of $25.00 on each return shipment. We reserve the right to refuse to accept any materials returned without our express authority. Materials must be returned FREIGHT PREPAID. Special fabrications and other non-stock merchandise are NOT RETURNABLE.
Returns that are authorized must be returned within 15 business days of receiving the product. If you need to return an item, simply login to your account, view the order using the "Complete Orders" link under the My Account menu and click the Return Item(s) button. We'll notify you via e-mail of your refund once we've received and processed the returned item. You may return any Goods that Jackman Fusion Equipment regularly stocks only if: (i) such Goods are in new condition, suitable for resale in its undamaged original packaging and with all its original parts, and (ii) such Goods have not been used, installed, modified, altered or damaged. Custom Goods or other non-stock Goods may not be returned. Except for Goods that Jackman Fusion Equipment stocks which meet the above criteria, credit issued for authorized returns shall be subject to the following deductions: (a) expenses associated with reconditioning and/or modifying Goods to put them in salable condition; (b) transportation charges; and (c) handling and restocking charges. Except as set forth above in this Section and in the case of a material defect covered by a warranty set forth in this Agreement, Custom Goods may not be canceled or returned, and no refund will be made for any reason whatsoever with respect to Custom Goods. Buyer acknowledges that Jackman Fusion Equipment does not make and specifically negates, renounces and disclaims any representations, warranties and/or guaranties of any kind or character, expressed or implied, with respect to (i) Goods and their use, design, application or operation, merchantability, physical condition or fitness for a particular purpose, (ii) the maintenance or other expenses that may be incurred in connection with Goods, (iii) the engineering, design, or any other work or service provided by Jackman Fusion Equipment and/or its employees, agents and suppliers, or (iv) the accuracy or reliability of any information, designs or documents furnished to Buyer in connection with Goods. Jackman Fusion Equipment neither assumes, nor authorizes any person to assume for it, any other obligation or liability in connection with Jackman Fusion Equipment’s sale of Goods. Any recommendations made by Jackman Fusion Equipment concerning the use, design, application or operation of Goods shall not be construed as representations or warranties, expressed or implied, nor shall failure by Jackman Fusion Equipment to make recommendations to Buyer impose any liability upon Jackman Fusion Equipment.
10. Permits; Indemnification. Buyer shall at its own expense apply for and obtain any permits required for the installation and/or use of Goods. Except as particularly specified and agreed upon in writing by Jackman Fusion Equipment, Jackman Fusion Equipment makes no covenant, warranty or representation that Goods will conform to any federal, state or local laws, ordinances, regulations, codes or standards. Jackman Fusion Equipment shall not be responsible for any losses or damages sustained by any party as a result of improper installation, use or storage of Goods. Buyer shall defend, indemnify and hold harmless Jackman Fusion Equipment and its directors, officers, employees, shareholders, subsidiaries, affiliates and agents against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury to, damage to, death to or loss of any persons or property, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of Goods by Buyer, including without limitation the Safe Drinking Water Act, Reduction of Lead in Drinking Water Act, and other state and federal laws related to the limitation of lead in products used for the conveyance of drinking water. This Section 10 shall survive the termination of this Agreement.
11. Goods. The purchase of Goods from Jackman Fusion Equipment confers no license, express or implied, under any patents, copyrights, know-how, or technology.
12. Orders. Orders are not binding on Jackman Fusion Equipment until accepted in writing by an authorized employee of Hdpe Supply.
13. Documentation. Jackman Fusion Equipment shall provide Buyer with that data/documentation that is specifically identified in Jackman Fusion Equipment’s quotation. If additional copies of data/documentation are to be provided by Jackman Fusion Equipment, it shall be provided to Buyer at Jackman Fusion Equipment’s applicable prices then in effect.
14. U.S. Export Control Regulations. All Goods sold to Buyer by Jackman Fusion Equipment hereunder are subject to U.S. Export Control Laws. Buyer hereby agrees not to re-sell or divert any Goods contrary to such laws.
15. Non-Waiver. No waiver by Jackman Fusion Equipment with respect to any breach or default of any right or remedy and no course of dealing, shall be deemed to constitute a continuing waiver of any other breach or default of any other right or remedy, unless such waiver be expressed in writing and signed by Jackman Fusion Equipment.
16. Set-Off. Buyer shall not be entitled to set-off any amounts due Buyer against any amount due Jackman Fusion Equipment in connection with this Agreement.
17. Severability. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions shall nevertheless continue in full force and effect.
18. Governing Law. These Terms shall be governed by and construed and interpreted in accordance with the laws of the State of Minnesota, without regard to its conflict of law principles. Buyer and Jackman Fusion Equipment agree that the proper venue for all actions arising in connection with these Terms shall be deemed exclusively proper only in state court in St. Louis County, Minnesota, or in the federal court for the State of Minnesota and the parties agree to submit to such jurisdiction. Any action, regardless of form, arising out of transactions relating to these Terms or any other theory of recovery shall be brought within the applicable statutory period, but in no event later than one (1) year of the date of tender of delivery of the applicable Goods except that any action by Jackman Fusion Equipment for payment hereunder may be brought within five (5) years of the date of delivery of the applicable Goods. Further, the United Nations Convention on Contracts for the International Sale of Goods (1980) (as amended from time to time) shall not apply to these Terms or any transactions relating thereto.
19. Miscellaneous. All rights and remedies of Jackman Fusion Equipment in these Terms are in addition to, and not lieu of, any rights or remedies that Jackman Fusion Equipment may have at law or in equity. These Terms supersede all other communications, negotiations and prior oral or written statements regarding the subject matter of these Terms. No change, modification, rescission, discharge, abandonment, or waiver of these Terms shall be binding upon Jackman Fusion Equipment unless made in writing and signed on its behalf by its duly authorized representative. No conditions, usage or trade, course of dealing or performance, understanding, or agreement purporting to modify, vary, explain, or supplement these Terms shall be binding unless hereafter made in writing and signed by Jackman Fusion Equipment. No modification shall be affected by Jackman Fusion Equipment’s receipt or acceptance of Buyer’s purchase orders, shipping instruction forms, or other documentation containing terms at variance with or in addition to these Terms, all of which are objected to by Jackman Fusion Equipment. All typographical or clerical errors made by Jackman Fusion Equipment in any quotation, acknowledgment or publication are subject to correction. These Terms shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and any uncertainty or ambiguity shall not be interpreted against any one party. revision 3.10.13