Terms & Conditions of Negotiated Sales
These Terms are divided into the following sections:
- Delivery and Risk of Loss
- Exclusive Warranty
- Defective Goods
- Collection Expenses
- No License
- Mediation and Arbitration
- No Agency
- Choice of Law
Buyer’s order from JOANN for goods, materials or both (referred to as “Products” in the Sales Agreement and as “goods” herein) constitutes Buyer’s consent and acceptance of these Terms and Conditions of Sale (“T’s & C’s”). If Buyer’s order does not constitute consent and acceptance by Buyer of these T’s & C’s for any reason whatsoever, then Buyer will be deemed to consent and agree to these T’s & C’s upon acceptance of the goods. JOANN may be referred to as “Seller.”
Prices are listed in the Sales Agreement and cannot be changed except in writing signed by the parties.
3. Delivery and Risk of Loss
All goods are sold Ex Works (Incoterms 2010) at Seller’s warehouse, store or distribution center. Seller will exercise commercially reasonable efforts to schedule orders at its discretion in accordance with delivery dates requested by Buyer, but Seller makes no guaranty, warranty or representation as to any delivery date. Time expressly is not of the essence and Seller will not be liable for, and Seller hereby expressly disclaims liability for, failure to deliver goods on any date or at any time requested by Buyer.
Within 10 days after receipt of goods, Buyer must inspect goods to confirm their conformance to Buyer’s purchase order. If all or any part of goods do not comply with Buyer’s specifications, Buyer must notify Seller within the 10-day period after receipt that the goods fail to conform to Buyer’s order; if notice is not made as required, then all claims are waived by Buyer and the goods are deemed accepted by Buyer.
Seller will deliver goods to Buyer in weight (as applicable) and quantity as requested by Buyer within Seller’s weight (as applicable) and quantity standards, and Buyer hereby consents to such delivery in the event such standard weight and quantity deliveries will result in any delivery overages or underages. On small weight and quantity orders, Buyer accepts responsibility for surplus material and goods and overages resulting from minimum material purchases.
No changes by Buyer to any purchase orders are permitted or binding on Seller unless agreed to in writing by Seller.
Payments are due per the Sales Agreement; and if not specified in the Sales Agreement, then as follows: within 30 days after the date of Seller’s invoice, without offset or deduction, and will bear interest at the lesser of the rate of 1% per month or the maximum amount permitted by law. Time is of the essence with respect to Buyer’s obligation to pay for goods. All checks are subject to collection. Acceptance of any partial payment will not constitute waiver of Seller's right to payment in full of all amounts owing from Buyer to Seller.
8. Exclusive Warranty
Seller hereby warrants that all goods sold to Buyer will, at the time of delivery, be: (a) new and unused, (b) of merchantable quality, (c) in conformity with the purchase order, and (d) free from defects in materials and workmanship (“Seller’s Exclusive Warranty”); except that the Seller’s Exclusive Warranty will be void and Seller will not be liable hereunder if the total purchase price for the goods has not been paid by the due date. Except as expressly provided in these T’s & C’s, all goods are sold in their “as is” condition. THE SELLER’S EXCLUSIVE WARRANTY IS IN LIEU OF, AND SELLER HEREBY EXPRESSLY DISCLAIMS, ALL WARRANTIES WHETHER EXPRESS OR IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller’s Exclusive Warranty and all other warranties whether express or implied by operation of law or otherwise, including, without limitation, all warranties of merchantability and fitness for a particular purpose are void and waived by Buyer in the event of Buyer’s breach of any of these T’s & C’s or the Sales Agreement.
9. Defective Goods
Seller will repair or replace free of charge any goods failing at the time of delivery to comply with Seller’s Exclusive Warranty if Buyer delivers to Seller within 10 days after delivery of goods a written request for cure and a description of the defect for which Buyer is submitting its request. Payment does not constitute waiver of Buyer’s right to inspect and reject defective goods. If Seller elects not to repair or replace defective goods in accordance with the foregoing, Buyer may return the goods for a full refund of Buyer’s purchase price, subject to delivery of the defective goods back to Seller in accordance with Seller’s instructions. Buyer’s right to repair, replacement or refund is Buyer’s exclusive remedy for Seller’s breach of Seller’s Exclusive Warranty or any other breach of this contract, and Seller will not be liable for any incidental, consequential, or any other damages. Every claim for defective goods or any other cause will be deemed waived by Buyer unless made in accordance with these T’s & C’s. All rejected goods will be returned at Seller’s risk and expense, and Seller will cover the shipping costs of any replacement goods. In the event of delivery in installments, Buyer is not entitled to a repair and return of Buyer’s entire purchase due to the delivery of faulty goods in any one installment but is entitled thereto only with respect to such single installment of faulty goods.
Seller’s request to cancel reschedule any order must be made to Seller before Seller begins manufacture with respect to such order, or if any special materials must be ordered by Seller to complete Buyer’s order, then before Seller’s order of special materials, but Seller is under no obligation to accept such cancellations or reschedules unless approved in writing by Seller. Without waiving any of its rights, Seller is entitled to recover its costs incurred and profits lost as a result of Buyer’s cancellation or rescheduling of an order.
Seller’s prices do not include sales, use, excise, levy, or any other taxes. Buyer must pay all local, state, and federal taxes, including all sales, use excise or other similar tax, payable with respect to the goods, or, alternately, provide Seller with tax exemption certificates acceptable to the applicable taxing authority.
12. Collection Expenses
Buyer must reimburse Seller for the cost of collecting any amounts due hereunder which are not paid in accordance with these T’s & C’s, including without limitation court costs and reasonable attorney fees.
Buyer will indemnify, defend, and hold Seller, its members, directors, officers, employees, and agents harmless from and against all obligations and expenses, including reasonable attorney fees, resulting from, arising out of, or otherwise relating to: (a) Buyer’s use or misuse of the goods, whether negligent, intentional or otherwise; and (b) Buyer’s breach of any of the provisions hereof or of any other agreement between Seller and Buyer concerning the subject matter hereof.
Seller’s acceptance of any purchase order from Buyer is limited to these T’s & C’s. Any terms proposed by Buyer which purport to add to, vary from, or conflict with, these T’s & C’s is void, and these T’s & C’s exclusively control. If these T’s & C’s have been issued by Seller in response to an offer, the terms of which are in addition to or different from any of the provisions hereof, then the issuance of these T’s & C’s will constitute an acceptance of such offer subject to the express condition that Buyer deems these T’s & C’s (and the last invoice from Seller with respect to the goods specifically delivered hereunder) to constitute the entire agreement between Seller and Buyer. If there is a conflict between these T’s & C’s and (a) any purchase order or other document of, or from, Buyer, (b) any prior courses of dealing between Buyer and Seller, or (c) any trade usage or customs in the industry, these T’s & C’s will control. If there is any conflict between these T’s & C’s and a Sales Agreement executed by Buyer and Seller, the Sales Agreement will control. By accepting delivery of goods from Seller, Buyer consents to these T’s & C’s in their entirety. This paragraph is to be construed in accordance with the foregoing provisions of these T’s & C’s and is not intended to abridge or limit any of Seller’s rights.
15. No License
Seller’s sale of goods to Buyer does not grant to, convey, or confer upon Buyer a license or any other rights, express or implied, under any patent, copyright, trade secret, or other intellectual property right of Seller whatsoever. The rights and benefits of this Sales Agreement are for Buyer only.
16. Mediation and Arbitration
Any claim by Buyer for breach of warranty, breach of contract, or otherwise relating to the delivery of goods must be submitted to an independent mediator knowledgeable in the area in which the dispute arose, agreed to by both parties. If the parties are unable to resolve the dispute through mediation, then the dispute will be settled by arbitration in Summit County, Ohio under the Commercial Rules of the American Arbitration Association in effect at the time of such claim. The award of the arbitrator will be final, binding and non-appealable. Each party will bear its own costs in the arbitration and pay one-half the fee of the arbitrator, unless the arbitrator otherwise finds for good cause that the losing party should pay the reasonable legal fees and other expenses of the other party.
Buyer agrees to treat as strictly confidential all prices, purchase terms, technical information, and other information provided by Seller in connection with the goods, and Buyer will not use or disclose to any third party such information without the Seller’s prior written consent.
18. No Agency
Buyer warrants and represents that it is purchasing for its own account and not as agent for any other party or resale.
If any provision of these T’s & C’s is rendered void, invalid or unenforceable by any court of law for any reason, such invalidity or unenforceability will not void or render invalid or unenforceable any other provision. The provisions of the Sales Agreement and these T’s & C’s that by their sense and context are intended to survive the completion of the performance, expiration, cancellation or termination, will survive. All indemnity obligations will survive.
20. Choice of Law
The Sales Agreement and these T’s & C’s, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of, or relate thereto, or the negotiation, execution or performance thereof (including any claim or cause of action based upon, arising out of, or related to any representation or warranty), is governed by, and enforced in accordance with, the internal laws of Ohio, including its statutes of limitations, and excluding its conflict of law provisions.