Terms and Conditions of Sale

ZHONG JIU LLC Terms and Conditions of Sale

Last updated: 10/5/2022

1. Agreement and Parties

These terms and conditions, together with the quote to which these terms are attached (“Quote”), represent the agreement (together, the “Agreement”) under which ZHONG JIU, LLC (“Seller”) agrees to provide the Products identified in the Quote to the to the buyer reflected on the Quote (“Buyer”). Seller and Buyer will sometimes be referred to individually as a “Party” and referred to together as “Parties.”

2. No Additional Terms.

Unless Seller agrees otherwise in writing, Seller’s provision of the Products is conditioned on the Buyer’s agreement that any terms different from or in addition to those in this Agreement, whether communicated orally or contained in any purchase order, request, confirmation, payment, or other written correspondence, irrespective of timing, shall not form a part of the Agreement, even if Buyer purports to condition its acceptance of any purchase order on Seller’s agreement to such different or additional terms.

3. Price.

Pricing set forth in the Quote is valid for thirty (30) days from the date it was issued and subject to on-hand material availability.

4. Quantity.

The quantity of Products delivered may vary up to 10% above or below the number set forth in the Quote, in accordance with industry standards.

5. Credit Approval.

The sale of all Products is subject to the approval of Seller’s credit department. Seller may elect, at its sole and absolute discretion, to require cash in advance or other security satisfactory to Seller prior to fabricating, shipping, delivering, or otherwise providing any Products to Buyer. If Buyer refuses such conditions, Seller may withdraw the Quote and/or cancel this Agreement.

6. Payment.

Seller will transmit to Buyer an invoice or invoices consistent with the Quote (each, an “Invoice”). Buyer agrees to pay Seller by check, wire transfer, or ACH payment within thirty (30) days of each Invoice date. Except as otherwise provided by law, Buyer will pay all sales, excise, and similar taxes with respect to the Products, which will be reflected on each Invoice.

7. Failure to Make Payment.

If Buyer fails to fulfill payment terms, Seller may, at its sole and absolute discretion: decline to fabricate, ship, deliver, or otherwise provide any further Products to Buyer under any Quote and may withdraw any Quote to Buyer and cancel this Agreement or any other Agreement with Buyer; or require cash in advance or other security satisfactory to Seller prior to fabricating, shipping, delivering, or otherwise providing any further Products to Buyer. Seller may charge 1.5% interest per month on any past due Invoices. In addition to the amount of any past due Invoice, plus interest, Buyer shall be responsible for any and all of Seller’s collection costs including, but not limited to, collection fees, attorneys’ fees, and court costs. Buyer agrees that Seller retains a security interest in all Product(s) shipped until Invoices are paid in full.

8. Delivery.

Buyer agrees to pay all freight, transportation, insurance, shipping, storage, handling, demurrage, or similar charges. Title, liability for and risk of loss to Products sold hereunder pass to Buyer upon tender to Buyer’s chosen carrier. Products are FOB Seller’s warehouse, or in the case of export, Incoterms 2020 EXW Seller’s warehouse. Seller may make partial shipments and, if so, send an Invoice for each shipment separately.

9. Certifications.

Some Seller Products are manufactured by altering standard fasteners into special fasteners. Altered fasteners are not subject to the Fastener Quality Act. Such altered fasteners are marked by an (*) on the Quote. All orders 75 pieces and under are sold as replacement parts and are also not subject to the Fastener Quality Act. All other product is tested plain. The test sampling plan of our product is in accordance with ASTM F568-98 for inch and metric product.

10. Alterations and Cancellations.

After a Quote is accepted by Buyer, it may be changed only with Seller’s written consent and upon an agreed pricing adjustment. Once fabrication has begun, a Quote may be cancelled only with Seller’s prior written consent and upon payment of a 15% restocking fee for any standard products. Quotes reflecting custom manufactured products may not be cancelled.

11. Inspection, Claims and Returns.

1. BUYER AGREES TO INSPECT PRODUCTS UPON DELIVERY. FAILURE TO GIVE NOTICE OF A CLAIM WITHIN FIVE (5) DAYS FROM DATE OF DELIVERY (OR TEN (10) DAYS FROM SHIPMENT IN CASE OF NONDELIVERY) SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS IN RESPECT OF SUCH PRODUCTS.
2. PRODUCTS SHALL NOT BE RETURNED TO SELLER WITHOUT SELLER’S PRIOR WRITTEN PERMISSION, WHICH PERMISSION SHALL NOT BE UNREASONABLY CONDITIONED, DELAYED OR DENIED.
3. ALL RETURNS MUST BE: ACCOMPANIED BY AN RMA NUMBER PROVIDED BY SELLER IN ADVANCE; INCLUDE THE QUOTE NUMBER; PACKAGED IN THE ORIGINAL SHIPPING CONTAINER; AND SHIPPED TO SELLER AT BUYER’S EXPENSE.
4. FOR STANDARD PRODUCTS, ALL RETURNS ARE SUBJECT TO A 15% RESTOCKING FEE.
5. ORDERS FOR CUSTOM MANUFACTURED PRODUCTS ARE NON-RETURNABLE.
6. PRODUCT(S) THAT HAVE BEEN PLATED OR OTHERWISE ALTERED ARE NON-RETURNABLE.

12. Force Majeure.

1. No liability shall result from delay in performance or nonperformance, directly or indirectly caused by circumstances beyond the control of the party affected, including, but not limited to, act of God, fire, explosion, flood, war, act of or authorized by any Government, labor trouble or shortage, pandemic, inability to obtain material, equipment or transportation, failure to obtain or hardship in obtaining reasonably priced supplies of materials, or failure of usual transportation mode. Quantities so affected may be eliminated from this Agreement without liability, but this Agreement shall remain otherwise unaffected. Seller shall have no obligation to purchase supplies of the Products specified herein to enable it to perform this Agreement.
2. In the event of a force majeure event: (i) Seller will provide prompt written notice to Buyer of such force majeure event, its expected duration, and the extent to which Seller’s performance will be affected; (ii) Seller agrees to use commercially reasonable efforts to eliminate the cause of the force majeure event as soon as possible; and (iii) Buyer may elect to agree to a price increase, extend the delivery date set forth in the Quote, or otherwise alter this Agreement to accommodate the sale or purchase of Product(s) affected by the force majeure event.
3. If for any reason, including but not limited to force majeure, Seller is unable to supply the total demand for Products specified herein, Seller may distribute its available supply among any or all purchasers, as well as departments and divisions of Seller, on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom.

13. Technical Assistance.

Seller may furnish such technical assistance and information as it has available with respect to the use of the Products covered by this Agreement. Buyer agrees to evaluate such information, to make an independent decision regarding the suitability of such information and Products for Buyer’s, or its customer’s, application, and only use such Products and information pursuant to the then current good product stewardship principles and all regulatory requirements applicable to Buyer’s, or its customer’s, business. Seller makes no warranty whatsoever with response to any such technical assistance or information.

14. Compliance with Laws.

Buyer agrees to comply with all applicable laws, regulations and ordinances including all applicable export and import laws. To the extent Seller exports the Products the following Destination Control Statement applies: “These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. Government or as otherwise authorized by U.S. law and regulations.”

15. Confidentiality.

1. Each Party, as a recipient of the other Party’s Confidential Information, understands and agrees that it will not, for itself or in conjunction with others, test, modify, manipulate, research, reverse engineer or replicate the disclosing Party’s Confidential Information in an effort to understand the disclosing Party’s proprietary technology or learn information not explicitly stated in the disclosing Party’s Confidential Information. Any such understanding of the disclosing Party’s proprietary technology not explicitly stated in the disclosing Party’s Confidential Information shall be treated as the disclosing Party’s Confidential Information under this Contract.
2. Unless otherwise agreed upon between the parties hereto, the recipient Party agrees that it will not use the disclosing Party’s Confidential Information, or any improvement or other modification of the disclosing Party’s Confidential Information, or any data derived from the disclosing Party’s Confidential Information, for securing any intellectual property rights. No license or other rights to the disclosing Party’s Confidential Information or other intellectual property is granted or implied hereby. Neither party shall have the right to use the other Party’s name, or any trademarks or trade names of the other Party, without express advance written permission.

16. Arbitration.

Except for undisputed, unpaid Invoices owed by Buyer, Buyer and Seller agree to arbitrate all disputes, claims or controversies whether based on contract, tort, statute, or any other legal or equitable theory, arising out of or relating to this Agreement, including the scope and validity of this paragraph. Any unresolved dispute or controversy arising from or relating to this Agreement shall be finally resolved by binding arbitration through the platform provided by New Era ADR, Inc. (https://neweraadr.com/) (the “New Era Platform”) in accordance with its rules and procedures for “Virtual Standard Arbitrations” by a professional neutral(s) with substantial experience in resolving commercial disputes (the “Neutral”). The Neutral shall be chosen in accordance with the rules and procedures of the New Era Platform. The parties will bear costs in accordance with the rules and procedures of the New Era Platform. The prevailing Party may be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees and all other expenses) incurred in connection therewith, at the Neutral’s discretion.

17. Applicable Law.

All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the state of Illinois, without regard to any applicable conflicts of law provisions thereof, and the terms of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

18. Warranty.

Seller warrants that each Product will be free of defects in materials and workmanship in relation to the specifications provided by Buyer for 24 months from the date of delivery. This warranty shall not be transferable by Buyer and shall not extend to any goods which have been subjected to alteration, misuse or neglect, damaged by accident, or rendered defective by reason of improper handling or installation. Seller does not accept any liability for normal wear and tear, or for charges for repairs or replacements made without authority or for any contingent liability of any kind. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO GOODS SOLD PURSUANT TO THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

19. Remedy for Breach of Warranty.

Seller’s sole obligation for breach of warranty shall be to issue credit to Buyer equal to the price paid for the defective Products or to replace the defective Products. The decision with respect to whether credit should be issued or whether the goods should be replaced shall be in Seller’s sole discretion.

20. Indemnification.

1. Buyer agrees to defend, indemnify, and hold harmless Seller and its affiliates, officers, directors, shareholders, managers, agents, employees, suppliers, subcontractors, customers, successors, and assigns, to the fullest extent permitted by law, from any liabilities, obligations, losses, damages, penalties, claims, actions, suits, arbitrations and costs (including, without limitation, attorneys’ fees and costs) and expenses suffered by Seller with respect to any third party claim asserted against Seller, including that the Products: (a) infringe any patent, copyright, trademark, trade secret, design, or other intellectual property right or proprietary or similar rights; (b) were incorrectly or improperly installed or incorporated as a component part or otherwise; and (c) caused or contributed to any bodily injury, injury to property or assets, or other any injury whatsoever.
2. Seller will not be liable for: (a) any error, omission, or inaccuracy in drawings or specifications provided by or approved by Buyer and has no obligation to check or confirm the conformity, accuracy, or adequacy of patents, regulatory requirements, drawings, or similar specifications provided to Seller by Buyer or provided by Seller to Buyer and approved by Buyer; or (b) any obligation to install or otherwise incorporate the Products correctly or properly.

21. Exclusion of Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISION OF ANY PRODUCTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE AND AGREE NOT TO ASSERT NON- CONTRACTUAL CLAIMS RELATING TO THIS AGREEMENT OR THE PRODUCTS, AND THIS AGREEMENT SHALL BE DEEMED TO INCLUDE SUCH LANGUAGE AS MAY BE REQUIRED TO AFFECT SUCH WAIVER.

22. Liability Cap.

In no event will Seller’s liability relating to the Products, Buyer’s purchase thereof, or this Agreement exceed, in the aggregate for all claims, the amounts actually paid by Buyer and received by Seller for the specific Products to which such liability relates.

23. FLSA Assurance.

We hereby certify that the Products were produced in compliance with all applicable requirements of Section 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.

24. Severability.

Any provision of this Agreement deemed prohibited or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

25. No Reliance.

Buyer acknowledges, agrees, and represents that it is not relying upon, and it has not been induced by, any representation, warranty, statement made by, or other information provided by Seller in connection with its decision to purchase or use any Product(s), other than the representations and warranties made by Seller in this Agreement.

26. Entire Agreement.

This Agreement constitutes the full, final, and entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous written or oral agreements, undertakings, promises, representations, warranties, or covenants not contained herein.

27. No Waiver.

Waiver by either Party of any Default by the other Party shall not be construed as a waiver by such Party of any other default which may thereafter occur.

28. Modifications.

No modification of this Agreement shall be binding upon Seller unless separately agreed in writing. No modification shall be affected by the acknowledgment or acceptance by Seller of purchase order forms or any other communication or terms from Buyer stipulating different conditions.

29. No Third Party Beneficiaries.

The Parties agree that unless expressly provided herein, this Agreement is not made for, and shall not have, any third party beneficiaries.