STANDARD TERMS AND CONDITIONS OF SALE
- SCOPE OF AGREEMENT:
These Standard Terms and Conditions of Sale (“Agreement”) are applicable to all quotations made by, and any order placed with and accepted by, Kelco Industries (referred to herein as “Seller”) to and/or from its customer or prospective customers (each a “Buyer”). If Buyer desires to obtain services (“Services”) and/or purchase products (“Goods”) from Seller (Services and Goods are sometimes collectively referred to herein as the “Work”), Buyer must submit a written purchase order to Seller. Each of Buyer’s orders for Work are subject to acceptance or rejection by Seller, at Seller’s home office in McHenry, Illinois. Seller’s acceptance of such purchase order submitted by Buyer is expressly limited to the terms and conditions of this Agreement notwithstanding any contrary provision contained in Buyer’s purchase orders or other documents. Upon acceptance of a purchase order placed by Buyer (an “Accepted Order”), Seller will supply the Work, in accordance with the quantity of Goods and/or Services, specifications (if applicable) and the place of shipping destination specified on the facing page of such Accepted Order, pursuant to the terms and conditions of this Agreement. Seller’s failure to object to provisions contained in any communications from Buyer shall not be deemed a waiver of the provisions hereof.
This Agreement applies to all quotations made by, and any order placed with and accepted by, Seller while this Agreement is in effect. Seller reserves the right to change any or all of the terms and conditions set forth herein at any time on a going-forward basis, including as to future orders received from Buyer, without advance notice to Buyer.
The parties may agree to amend the terms of this Agreement as it applies to an Accepted Order only pursuant to a separate mutually executed document.
- PRICE AND TERMS:
All quoted prices are in United States Dollars, Ex-Works (EXW) Seller’s facility and are exclusive of any freight costs, duties, tariffs, taxes, insurance or similar charges, which will be borne by Buyer unless otherwise agreed upon in writing. If applicable, Buyer will provide Seller with a valid tax exemption certificate acceptable to the applicable taxing authority. If Seller has not granted credit to Buyer, payment terms are cash in advance (CIA) with order. Payment terms are net thirty (30) calendar days from the date of the invoice. Buyer shall pay all invoices when due and shall refrain from making deductions of any kind from any payments due Seller. Seller’s acceptance of any partial payment shall not operate as an accord and satisfaction, and shall not preclude Seller from recovering any remaining balance, notwithstanding any endorsement or other writing by Buyer purporting to characterize such payment as payment in full. If Buyer does not pay an invoiced amount within terms, without limitation as to its other remedies, (a) Buyer will pay finance charges of the lower of one and one-half percent (1.5%) per month on the late balance or the maximum rate of interest permitted by applicable law and (b) Seller reserves the right to (i) withhold further shipment or performance of the Work until full payment is made; (ii) refuse to accept any new orders or may cancel any Accepted Orders; (iii) stop any shipments in transit; and/or (iv) revoke any credit extended to Buyer and declare all outstanding amounts immediately due and payable. In the event that Buyer’s account is more than ninety (90) days in arrears, Buyer shall reimburse Seller for the reasonable costs, including attorney’s fees, of collecting such amounts from Buyer. SELLER SHALL NOT BE LIABLE TO BUYER FOR LOSSES OR DAMAGES OF ANY KIND, AS A RESULT OF THE EXERCISE BY SELLER OF ITS RIGHTS AND REMEDIES HEREUNDER.
- TITLE AND RISK OF LOSS:
Title and risk of loss to all Goods purchased shall pass to Buyer upon delivery of the Goods by Seller to a common carrier at the point of shipment, regardless of the freight terms stated, method of payment of or the party paying transportation charges. Buyer assumes risk of loss, damage, or shortage in transit and shall be responsible for pursuing all claims with the carrier or carrier’s insurer.
Buyer must promptly inspect all Work when delivered or received and notify Seller of any shortage of Goods, delivery of non-conforming Work, or loss or damage, within ten (10) days of receipt of the Work, and if no such notice is given, Buyer waives any right to assert such matters. Except as otherwise agreed in writing, normal tolerances in specifications are not a cause to reject any Work.
- SHIPMENT, TRANSPORTATION CHARGES AND ACCEPTANCE:
- For Goods, freight terms are Ex-Works (EXW), Seller’s loading dock, and delivery will be deemed to be made thereat. Buyer shall provide to Seller written, detailed routing instructions, including but not limited to preferred freight method and account number within a reasonable time prior to shipment. Unless specified in the Accepted Order, freight charges will be prepaid and billed. Notwithstanding the foregoing, Seller, in its sole and exclusive discretion, can ship freight collect.
- If Buyer desires more than one shipping date on a single purchase order, Buyer shall designate the various requested shipping dates and the desired number of units in each shipment. Seller shall have the right to make partial shipments with respect to Buyer’s purchase orders, which shipments shall be separately invoiced and paid for when due, without regard to subsequent shipments. Delay in shipment or delivery of any particular installment shall not relieve Buyer of its obligation to accept the remaining installments.
- Seller will aim to initiate shipment and deliver the Work as close as possible to Buyer’s requested delivery date(s) provided that Buyer supplies all necessary information. Buyer acknowledges that shipment and delivery dates provided by Seller are estimates only and that the Seller will not be liable for failure to achieve such dates. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER SHALL IN NO EVENT BE LIABLE TO BUYER FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR OTHERWISE, FOR FAILURE TO FILL ORDERS, IN WHOLE OR IN PART, DELAYS IN SHIPMENT OR DELIVERY, FAILURE TO NOTIFY BUYER OF DELAYS OR OF THE ESTIMATED QUANTITY AVAILABLE TO BUYER, OR ANY ERROR(S) IN THE FILLING OF ORDERS.
- CANCELLATIONS AND CHANGES:
Buyer may not cancel or modify any Accepted Order for any reason, in whole or in part, without Seller’s prior written consent. In the event a cancellation or modification is approved, Buyer shall be liable for all costs and expenses incurred by Seller in relation to the Accepted Order prior to cancelation or modification request, including but not limited to, a cancelation charge for any material procured by Seller, engineering process expense and any other expenses related to work in progress prior to Seller’s written consent to cancel or modify the Accepted Order.
- GOVERNMENTAL LICENSES AND EXPORT:
- It is Buyer’s sole responsibility to comply with all Federal, State and local laws applicable to its business and products, including to pay for and obtain any required governmental or other licenses, certificates or documentation as may be required in connection with the Work. Specifically, Buyer covenants that it shall not, directly or indirectly, sell, export, re-export, transfer, divert or otherwise dispose of any Work, including software or technology (including products derived from or based on the same) received from Seller under an Accepted Order to any destination, entity, or person prohibited by the laws or regulations of the United States, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
- Without limiting the generality of the foregoing, all purchase orders, shipments and/or reshipments must be in accordance with all applicable US Government export and re-export control laws and regulations, to include but not limited to, the Export Administration Regulations (EAR) Code of Federal Regulations 15 Part 300 to 799 maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control; the Foreign Trade Regulations (FTR) 15 Part 30 maintained by the U.S. Census Bureau, and the International Traffic in Arms Regulations (ITAR) 22 C.F.R. Chapter 1, Subchapter M Parts 120-130 maintained by the U.S. Department of State.
- Buyer agrees to indemnify and hold Seller harmless from any and all export compliance infractions and other breaches of the terms of this Section 7, including but not limited to all sanctions, penalties, or fines resulting from any such shipments or transactions taken by Buyer with any denied persons, countries or entities prohibited under ITAR 22 C.F.R. Parts 120-130, EAR Part 300 thru 799, or the FTR Part 30.
- LIMITED WARRANTIES:
- Seller warrants that (i) the Goods sold hereunder shall be free from defects in material or workmanship for a period of twelve (12) months from the date of delivery as provided in Section 5(a) (“Goods Warranty”) and (ii) the Services will be performed in a good and workmanlike manner (“Services Warranty”). Seller neither makes nor assumes, and does not authorize any other person to make or assume, any obligation, liability or warranty in connection with the Work other than the limited warranties set forth above. In addition, certifications given by Seller in separate writings as to compliance with specifications, blueprints, part numbers, quantity, tests and otherwise, shall not create any warranty by or other obligation of Seller.
- Goods must be handled and installed based on Seller’s specifications. The warranties set forth above do not apply to, and Seller is not liable for, failures related to variables, matters or situations out of Seller’s direct control, including, without limitation, (i) improper installation, normal wear and tear, damage due to neglect, accident or negligent or faulty use, (ii) physical abuse, vandalism or misuse, (iii) alterations, modifications, additions or repairs made without Seller’s prior written consent, (iv) exposure to water or corrosive liquids or other substances, exposure to excessive heat, use in an application or environment for which they were not designed or use other than as intended or designed by Seller, (v) damage resulting from causes other than defects, including lack of technical skills, competence or experience of user and (vi) damage occurring during shipment or delivery of the Goods. Buyer, through its own analysis and testing, is solely responsible for qualifying Work for use in the intended application. Seller’s statements, descriptions, models, drawings, technical information, recommendations, samples or similar materials used in connection with Buyer’s order are for the sole purpose of identifying Work and shall not constitute a guarantee or warranty.
- In the event of any breach of the warranties set forth above, Seller’s exclusive obligation, and Buyer’s exclusive remedy, shall be as follows: (i) for breach of the Goods Warranty, repair, replacement or refund the purchase price paid by Buyer for the defective Goods (at Seller’s discretion), if Buyer returns the item to Seller within the twelve (12) warranty period and (ii) for breach of the Services Warranty, re-performance of the defective Services, if Buyer has notified Seller of such defective Services within thirty (30) days of the performance thereof. Written notice of any alleged defect or non-conformance, with details of the warranty claim, must be presented to Seller immediately upon Buyer’s discovery of alleged defect. For allegedly defective Goods, Seller shall furnish to Buyer a material return authorization number. Buyer must then return the allegedly defective Goods within 30 days thereafter to Seller, properly packaged with all transportation charges prepaid. The return authorization number must be clearly marked on all correspondence and on the outer shipping container used for permitted returns. Upon inspection, if Seller confirms that the Goods Warranty was breached, Seller will reimburse Buyer for the transportation costs, Seller will issue a credit to Buyer for the purchase price of the defective Goods or replace such defective Goods at its cost, and will prepay the return shipping charges. If Seller finds the returned Goods are not defective, Seller, at its sole discretion, reserves the right to charge an inspection fee.
- EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY GOOD (S) OR SERVICES FURNISHED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
- LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR FOR LOSS OF SALES, PROFITS OR GOODWILL, EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND SELLER’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND ANY ACCEPTED ORDER, WHETHER BASED UPON TORT, CONTRACT OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL, IN THE CASE OF SERVICES, BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED, AND, IN THE CASE OF GOODS,SHALL NOT EXCEED THE PURCHASE PRICE OF THE DEFFECTIVE GOOD(S) IN QUESTION.
- BUYER PROPERTY AND MATERIALS:
From time to time, for purposes of Seller providing the Work, Buyer may furnish Seller with certain of Buyer’s property, including, without limitation, equipment, tooling and specifications (“Buyer Property”). Such Buyer Property shall remain the property of Buyer and (a) all risk of loss of or damage to such items while in Seller’s possession shall be borne by Buyer and, accordingly, Buyer shall be responsible for insuring the Buyer Property against such risk and (b) Seller shall have a lien upon such items while in Seller’s possession to secure all indebtedness from Buyer to Seller. All items or materials used to perform the Work and not furnished by Buyer, including, where applicable, tooling, molds and dies, shall be the property of Seller. Buyer represents and warrants that all Buyer Property (i) does not infringe any copyright or trademark or other intellectual property rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party, including any data rights or as to the collection and/or use of personally identifiable information. If Buyer so requests, Seller shall promptly return all Buyer Property upon notice from Buyer at Buyer’s expense; provided however, that upon Seller’s return of such Buyer Property to Buyer, Seller’s obligation to supply Work created with such Buyer Property shall terminate.
- INTELLECTUAL PROPERTY:
- Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information existing and owned by Buyer as of the date of the Accepted Order or made or conceived solely by employees of Buyer during the performance of the Accepted Order shall be and remain the sole and exclusive property of Buyer; provided, that Buyer grants to Seller a license to use, display and distribute (and to sub-license its affiliates and sub-contractors to use, display and distribute) any intellectual property rights delivered to Seller as reasonably necessary to perform any Accepted Order.
- Any and all inventions, discoveries, patent applications, patents, copyrights, trademarks and trade names, commercial symbols, trade secrets, work product and information existing and owned by Supplier as of the date of the Accepted Order or made or conceived by employees, consultants, representatives or agents of Seller, whether solely or jointly with others (including with Buyer personnel) during the term of this Agreement shall be and remain the sole and exclusive property of Seller.
The title to and ownership of Goods provided on consignment to a third party for future delivery to Buyer, and all proceeds from the sale of the same, shall remain vested in the Seller and solely be Seller’s property and subject to Seller’s order, until the full amount to be received for the Goods has been received by the Seller.
- FORCE MAJEURE:
Neither party shall be liable for any failure to perform or delay in performance of this Agreement to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption or other inability to obtain necessary labor, cyber or hostile network attacks, inability to obtain raw or finished materials, delay or inability to secure transport, or any other cause beyond such party’s commercially reasonable control.
- GOVERNING LAW:
The Accepted Orders and this Agreement shall be governed by the laws of the State of Illinois without reference to conflicts of law principles.
All disputes arising under this Agreement shall be settled by final and binding arbitration in the McHenry County, Illinois, under the auspices of, and in accordance with, the Commercial Arbitration Rules of the American Arbitration Association then in effect (the “Rules”). The arbitration shall be conducted by a single arbitrator selected in accordance with the Rules. The award by the arbitrator shall be final and judgment upon the award rendered may be entered in any court having jurisdiction thereof. In any arbitration, the parties shall split the costs of the arbitration, except that each party will be responsible for paying its own attorney’s and experts’ fees and costs.
- LIMITATION ON ACTIONS:
Notwithstanding any contrary statute(s) of limitation, both Seller and Buyer agree that any action hereafter arising out of the relationship between Seller and Buyer, including any action for alleged breach of an Accepted Order or this Agreement, shall be barred unless commenced by the aggrieved party within one (1) year after the case of action relating to such matter first accrues. The aforesaid one (1) year limitation shall not apply to any actions by Seller against Buyer arising from any delinquencies in payment for an Accepted Order.
In the event that any of the provisions contained in this Agreement or the application of any such provisions to the parties hereto with respect to their obligations hereunder shall be held by an arbitrator or court of competent jurisdiction to be unlawful or unenforceable, the remaining provisions hereof shall remain in full force and effect.
- ENTIRE AGREEMENT: