Terms & Conditions
Terms & Conditions
1. THE AGREEMENT. Jack Doheny Companies, Inc., (the “JDC”) agrees to provide the repairs, maintenance and/or modifications (collectively, the “Services”) described in JDC’s written Quote for Services (the “Quote”) to the Buyer subject to the terms and conditions contained herein, which are incorporated into the Quote, agreed to by the parties hereto, and together consists of the entire agreement between the JDC and Buyer (collectively, the “Agreement”). The Agreement shall be for the benefit of the JDC and Buyer and not for the benefit of any other person or entity. Prior courses of dealing, trade usage and verbal agreements not reduced to a writing signed by the JDC and Buyer, to the extend they differ from, modify, add to or change from the Agreement shall not be binding on the JDC.
2. TERMS OF PAYMENT.
2.1 Payment Date. All payments for the Services are due from Buyer on the date of the invoice unless other terms are agreed to in writing by JDC and Buyer. Payment shall be made to JDC at the address specified in the Agreement, without any offset or deduction for any reason.
2.2 Delinquent Payments.
2.2.1 Any payment not made by Buyer on or before its due date shall be subject to a late charge on any unpaid balance at a rate of 18% per annum, or the highest interest rate allowed by law, whichever is greater.
2.2.2 If a payment is not made on or before its due date, Buyer agrees that JDC may elect, in addition to any other remedy at law or in equity, to cease performance under the Agreement and any other agreement between Buyer and JDC until such payment is rendered to JDC.
3. NO WARRANTY. JDC agrees to undertake and provide the Services in a workmanlike fashion and consistent with the quality of similar services provided generally in the industry. JDC MAKES NO OTHER WARRANTIES OR REPRESENTATIONS EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MARKETABILITY OR FITNESS FOR PARTICULAR PURPOSE, ALL OF WHICH ARE SPECIFICALLY HEREIN DISCLAIMED. If the Services include the replacement of parts and equipment which have a manufacturer’s limited warranty, to the extent allowed by law, JDC transfers and assigns to Buyer those manufacturers’ warranties, if any such warranty is provided by the manufacturer. In no event shall JDC be liable to Buyer for any incidental, consequential, special, exemplary, and/or punitive damages, including without limitations, loss of revenue or profit.
4.1 No Assignment. There shall be no assignment of the Agreement by Buyer without the prior written approval of JDC. Any assignment of the Agreement shall not relieve Buyer of its obligations under the Agreement.
4.2 Force Majeure. Neither party will be liable for any delay or failure to perform its obligations hereunder, other than a payment obligation, due to any cause beyond its reasonable control including without limitation, acts of God or of the public enemy, including terrorists, acts of the government in its sovereign capacity, fires, floods, epidemic, strikes, picketing or boycotts, or any other circumstances caused by natural occurrences or third party actions beyond the reasonable control and without the fault or negligence of the party whose performance is affected (“Force Majeure Events”); provided that the affected party provides the other party prompt notice of the applicable circumstance and uses commercially reasonable efforts to re-commence performance as promptly as possible; provided, further, that if the duration of such Force Majeure Event exceeds thirty (30) days, the other party may terminate the Agreement upon delivery of written notice to the affected party.
4.3 Venue. The parties agree that any dispute under the Agreement shall be brought in the applicable state or federal court located in the county in which the Originating Branch is located and the parties waive any right to a jury trial.
4.4 Construction and Captions. The parties acknowledge that each has reviewed the Agreement and that the normal rules of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of the Agreement or any exhibits or amendments hereto; and that section headings appearing in the Agreement are for convenience of reference only and they are not intended, to any extent or for any purpose, to limit or define the text of any section or any subsection hereof. In the event any part of the Agreement is found to be ambiguous, such ambiguity shall not be construed against any party
4.5 Entire Agreement. The Agreement constitutes the sole and entire agreement between the parties and supersedes all prior and contemporaneous statements, promises, understandings or agreements, whether written or oral.
4.6 Amendments. The Agreement may be amended, modified or altered at any time upon the approval of the JDC and Buyer; however, any such amendment must be in writing and signed by the JDC and Buyer in order for such amendment to be of any force and effect.
4.7 Partial Invalidity. In the event that any provision of the Agreement is declared by any court of competent jurisdiction or any administrative judge to be void or otherwise invalid, all of the other terms, conditions and provisions of the Agreement shall remain in full force and effect to the same extent as if that part declared void or invalid had never been incorporated in the Agreement and in such form, the remainder of the Agreement shall continue to be binding upon the parties.
4.8 Counterparts. The Agreement and any amendment thereto may be signed and executed in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one Agreement. Delivery of an executed counterpart of a signature page of the Agreement by facsimile or email shall be effective as delivery of an originally executed counterpart of the Agreement.
4.9 Authority. Each person(s) executing the Agreement as an agent or in a representative capacity warrants that he or she is duly authorized to do so.