KELLER INDUSTRIAL PRODUCTS, INC. (SELLER) STANDARD TERMS AND CONDITIONS OF SALE
PRODUCTS AND SERVICES SOLD ARE EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS SET FORTH HEREIN, NOTWITHSTANDING ANY CONTRADICTORY TERMS OF THE BUYER'S PURCHASE ORDER. NO PERSON HAS THE AUTHORITY TO ALTER THESE TERMS OTHER THAN A CORPORATE OFFICER OF SELLER, AND ANY SUCH ALTERATION MUST BE IN WRITING. BUYER'S ACCEPTANCE OF PRODUCTS CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SALE.
1.Pricing
All prices are F.O.B. shipping point unless otherwise specified by Seller. Product dimensions and/or quantities are subject to change. Quoted prices are subject to addition for current or future federal, state or local taxes, and tariffs. Prices are subject to change if Products are not shipped within 10 days. Otherwise, prices in effect at time of shipment will prevail. It is the obligation of Buyer to provide evidence of sales and use tax exemptions to Seller. Notwithstanding the foregoing, in the event that sales and/or use taxes is/are determined to be due upon any purchase, Buyer will pay the amount of such tax to Seller for payment to the appropriate taxing authorities.
2. Acceptance
Any Buyer purchase order is subject to approval and acceptance by an authorized representative of Seller, and subject to the terms set forth herein. Seller expressly limits its acceptance to these terms. Additional or different terms in Buyer's purchase order shall not be binding on Seller, and are hereby expressly rejected. Buyer agrees to inspect the shipping container upon receipt and Buyer agrees to promptly file a claim with Shipping Carrier for any material packaging damage, and to promptly notify Seller of such. Buyer agrees to inspect the Products within seventy-two (72) hours after receipt of the Products, and Buyer agrees to promptly notify Seller of any readily-apparent defects or nonconformities. Buyer waives any right to object to such product defects or nonconformities later than seventy-two (72) hours after receipt of the Products.
3. Warranties
SELLER WARRANTS THAT FOR A PERIOD OF THIRTY (30) DAYS FROM THE DATE OF THE INVOICE OR THE DELIVERY OF THE PRODUCTS OR SERVICES, WHICHEVER IS SOONER, THE PRODUCTS AND/OR SERVICES COVERED HEREBY CONFORM TO THE WRITTEN SPECIFICATIONS ON THE FACE OF THE PURCHASE ORDER, IF ANY, AND ACCEPTED BY SELLER; PROVIDED, HOWEVER, PRODUCT DIMENSIONS AND/OR QUANTITIES ARE SUBJECT TO CHANGE. ALL OTHER WARRANTIES ARE EXCLUDED, WHETHER EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
NOTWITHSTANDING ANYTHING IN THESE TERMS AND CONDITIONS TO THE CONTRARY, SELLER IS NOT LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, TORT, INCLUDING NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, INTEREST, GOODWILL OR LOST OPPORTUNITY, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER, VOLTAGE IRREGULARITES OR FREQUENCY FLUCTUATION, CLAIMS ARISING FROM BUYER’S THIRD PARTY CONTRACTS, IMPROPER INSTALLATION OR USE, OR FOR ANY TYPE OF SPECIAL, LIQUIDATED, INDIRECT, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR NATURE. SELLER’S MAXIMUM LIABILITY UNDER THESE TERMS AND CONDITIONS IS THE ACTUAL PURCHASE PRICE RECEIVED BY SELLER FOR THE PRODUCT THAT GAVE RISE TO THE CLAIM. BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS OF THIS PARAGRAPH WILL PREVAIL OVER ANY CONFLICTING TERMS AND CONDITIONS IN THIS AGREEMENT AND SHALL BE GIVEN FULL FORCE AND EFFECT. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF SELLER HAS BEEN ADVISED BY BUYER OF THE POSSIBILITY OF SUCH DAMAGES. THE WAIVERS AND DISCLAIMERS OF LIABILITY, RELEASES FROM LIABILITY AND LIMITATIONS ON LIABILITY EXPRESSED IN THIS PARAGRAPH EXTEND TO SELLERS AFFILIATES, PARNTERS, PRINCIPALS, SHAREHOLDERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS, AGENTS, PAID PROFESSIONALS, AND SUCCESSORS AND ASSIGNS. SELLER'S LIABILITY HEREUNDER FOR BREACH OF WARRANTY, NEGLIGENCE, TORT, OR OTHERWISE, IS EXPRESSLY LIMITED AT THE OPTION OF SELLER: (A) TO THE REPLACEMENT AT THE AGREED POINT OF DELIVERY OF ANY PRODUCTS FOUND TO BE DEFECTIVE OR NOT TO CONFORM TO THE SPECIFICATIONS SET FORTH HEREIN, (B) TO THE REPAIR OF SUCH PRODUCTS, OR (C) TO THE REFUND OR CREDITING TO BUYER OF THE PRICE OF SUCH PRODUCTS.
SELLER IS A DISTRIBUTOR, AND NOT A MANUFACTURER OF PRODUCTS. ACCORDINGLY, ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS THAT OF THE MANUFACTURER ONLY AND NOT THAT OF SELLER. SELLER AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO CAUSE ITS MANUFACTURERS TO FURNISH PRODUCTS THAT WILL BE FREE FROM DEFECTS IN MATERIAL AND WORKMANSHIP AND WILL BE FREE FROM PATENT INFRINGEMENT. SHOULD THE PRODUCT FAIL TO MEET ITS MANUFACTURER'S WARRANTY, THEN UPON NOTIFICATION THEREOF BY BUYER TO SELLER AND SUBSTANTIATION FROM BUYER THAT THE PRODUCT HAS BEEN SHIPPED, STORED, INSTALLED, MAINTAINED AND OPERATED IN ACCORDANCE WITH MANUFACTURER'S RECOMMENDATIONS AND STANDARD INDUSTRY PRACTICE, SELLER SHALL ASSIST BUYER IN OBTAINING SUITABLE REPAIR OR REPLACEMENT, OR OTHER REMEDY, AS PROVIDED IN THE APPLICABLE MANUFACTURER'S WARRANTY.
Warranty for Seller Services. Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and that the Product will materially conform to Specifications. Buyer’s sole remedy for breach of this warranty, and subject to Seller’s sole discretion, is either repair or reperformance.
Seller and Buyer (each, “Indemnitor”) shall indemnify the other (“Indemnitee”) from and against all third-party claims alleging bodily injury, death, or damage to a third party’s tangible property, but only to the extent caused by the Indemnitor’s negligent acts or omissions. If the injury or damage is caused by the parties’ joint or contributory negligence, the loss and/or expenses shall be borne by each party in proportion to its degree of fault. No part of the Products or Seller’s physical locations are considered third party property. Indemnitee shall provide Indemnitor with prompt written notice of any third-party claims covered by this paragraph. Indemnitor has the unrestricted right to select and hire counsel of its own choosing, and the exclusive right to conduct the legal defense and/or settle the claim on the Indemnitee’s behalf. The Indemnitee shall not make any admission(s) that may be considered prejudicial to the Indemnitor and shall not enter into a settlement without the express permission of the Indemnitor.
4. Delivery Terms
Delivery dates are approximate and are based, in part, upon prompt receipt of all necessary information from Buyer. Unless otherwise agreed in writing by Seller, delivery will be made and title will pass to Buyer F.O.B. point of shipment. Expense and risk of loss of transporting the goods shall pass to Buyer at point of shipment.
5. Delivery in Installments
Seller reserves the right to make delivery in installments. All such installments shall be separately invoiced and paid for when due, without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of the obligations to accept and pay for remaining deliveries.
6. Payment
Net payment is due within thirty (30) days of invoice date. Discounts are not available for payment by credit card or for cash purchases or early payment, unless offered in the final quotation.
Should the financial responsibility of Buyer at any time become unsatisfactory to Seller, Seller shall have the right to require payment for any shipment hereunder in advance or, in the alternative, the provision of satisfactory security. If Buyer fails to make payment in accordance with the terms of this Agreement or fails to comply with any provision hereof, Seller may at its option, in addition to any other remedies, cancel any unshipped portion of an order and other pending orders. Buyer shall remain liable for all unpaid accounts. In the event Buyer fails to make payment in accordance with the terms of this Agreement, the account shall be deemed to be delinquent and a late charge of one and one-half percent (1.5%) per month will be assessed on the unpaid balance. Buyer agrees to pay all collection costs and expenses, including reasonable attorneys fees, incurred by Seller in collecting or attempting to collect such account.
7. Freight and Handling
Unless otherwise provided in writing, freight charges on all shipments, and spotting, switching, demurrage, or drayage at destination are to be paid by Buyer. All incoming shipping and handling charges on all material on which the supplier of said material does not pre-pay or allow freight into Seller's warehouse, and all outgoing shipping and handling charges on all shipments from Seller to Buyer shall be borne by Buyer. Any difference in the amount of freight from that shown on the invoice as being included, is for Buyer's account. Seller reserves the right to designate origin and intermediate carriers. If a specific delivering carrier is required, Buyer must designate such carrier in writing to Seller prior to shipment.
8. Taxes and Tariffs
Prices do not include any present or future sales, use, excise, or similar taxes. All such taxes shall be for Buyer's account. Prices do not include future tariffs. All such tariffs shall be for Buyer’s account.
9. Delay
Seller shall not be liable for any failure or delay in manufacture, shipment or delivery of Products resulting from any cause beyond Seller's control, including, but not limited to, provisions of law or governmental regulations, accident, explosion, fire, windstorm, flood or other casualty, strike, lockout, or other labor difficulty, riot, war, terrorist acts, insurrection, epidemic or pandemic, shortage of or inability to secure labor, raw materials, production or transportation facilities. Shipping dates are approximate and are based on conditions at the time of quotation. Seller shall not be liable for failure or delay in performance due to prior sale of Products. In the event of such delay, there will be no termination and the date of delivery shall be extended for a period equal to the time lost by reason of the delay.
10. Cancellation
No order may be canceled or changed in whole or in part without the prior written consent of Seller. Shipment of Products cannot be extended beyond the original shipping date specified without Seller’s written consent.
11. Compliance with Laws
Seller warrants that it has complied, and will continue during the performance of this order to comply, with the provisions of all applicable federal, state and local laws and regulations from which liability may accrue to Buyer as a result of any violation thereof by Seller. Compliance with any federal, state or local procurement regulations, laws, or contract provisions in any form of government contracting by Buyer, shall be solely the responsibility of the Buyer.
12. Copy of Buyer's License
Buyer agrees to furnish to Seller a copy of any state license that would cause purchases by Buyer to be free of sales & use taxes within 14 days of invoice. Further, Buyer shall continually furnish copies of such licenses from year to year, as the same are renewed.
13. Assignment
Buyer may not assign this Agreement without prior written consent of Seller.
14. Specifications
Specifications and instructions are in accordance with directions of Buyer and full responsibility for their correctness is assumed by Buyer.
15. Claims
Claims for errors, shortages or defective goods must be made within ten (10) days after receipt of material.
16. Waiver
Waiver of any breach of this Agreement shall not be construed as a waiver of any other breach.
17. Return Goods Policy
No Products will be accepted for return without a Seller approved Return Goods Authorization ("RGA"). All returns are subject to a restocking charge. Special ordered, custom, or modified Products are non-returnable, non-cancellable.
18. Miscellaneous Credits
Seller may apply any miscellaneous credits to the account of the Buyer, including the off-set of any unpaid invoices, late charges or others amounts due to Seller. Any miscellaneous credits remaining unapplied for one (1) year, may, at the discretion of Seller, be turned over to the appropriate state agency responsible for unclaimed property.
19. Fabrication
In the event that the sale involves the fabrication or modification of any Products by Seller, the specifications for such fabrication shall be the sole responsibility of the Buyer.
20. Nuclear or Other Hazardous Activities
Unless specifically acknowledged and agreed in writing by a duly authorized officer of Seller, Products sold hereunder may not be used in connection with any nuclear facility or any other hazardous activity, including without limitation, military, aerospace, missile or other critical application. Buyer agrees to indemnify and hold Seller harmless from any liability that results from Buyer's use that is inconsistent with this paragraph.
Environmental and Safety
Material Safety Data Sheets (MSDS). Seller provides MSDS that are prepared by its manufacturers. MSDS are not prepared by Seller. Current MSDS will be provided to Buyer in connection with a purchase of a Product when required by law or regulation.
Dangerous Goods/Hazardous Materials. Certain types of Products may contain Volatile Organic Compounds, Ozone Depleting Substances, Mercury or other chemicals subject to restrictions by state and/or federal law and regulation. Seller does not guarantee that any Product is in compliance with such restrictive state and/or federal law and regulation, and assumes no responsibility for how Products containing such restricted substances shall be used, installed or resold by Buyer. Buyer assumes sole responsibility for compliance with all applicable state and/or federal law and regulation concerning such affected Products. Seller will cooperate with Buyer with respect to the handling, shipping or other disposition of affected Products.
Shipping. In addition to the Delivery Terms and the Freight and Handling paragraphs above, the Buyer acknowledges that hazardous materials require special handling, labeling and packaging. Carrier surcharges may also apply. Buyer agrees to pay for all shipping, handling labeling and packaging charges associated with the shipping of hazardous materials. Seller is not responsible for, nor is it to be considered the "offeror" for, any further shipment or transshipment made by or on behalf of Buyer by any mode of transportation. Buyer assumes full responsibility for compliance with all state and/or federal rules and regulations governing the Product's further transportation by ground, air or water in domestic and/or international commerce.
21. Products Sold for Buyer’s Export
Buyer assumes responsibility and liability for compliance with all U.S. and international laws, tariffs, treaties and customs rules and regulations applicable to the export of Products by Buyer.
22. Electronic Commerce
Seller and Buyer specifically agree that purchases and sales between them may be conducted electronically.
23. Modification
Unless Buyer and Seller have specifically executed a supply agreement for the purchase and sale of Products, there are no terms, conditions, understandings or agreements between Buyer and Seller other than those stated herein and all prior proposals and negotiations are merged herein. NO TERMS AND CONDITIONS IN ANY WAY ALTERING OR MODIFYING THE PROVISIONS HEREOF SHALL BE BINDING UPON EITHER PARTY UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF SUCH PARTY. NO MODIFICATION OR ALTERATION OF THE PROVISIONS HEREOF SHALL RESULT FROM SELLER'S SHIPMENT OF MATERIAL FOLLOWING RECEIPT OF BUYER'S PURCHASE ORDER, SHIPPING ORDER, OR OTHER FORMS CONTAINING PROVISIONS, TERMS AND CONDITIONS IN ADDITION TO OR IN CONFLICT OR INCONSISTENT WITH THE PROVISIONS HEREOF.
24. Venue; Governing Law
All claims and disputes relating to or arising from these Terms and Conditions or the sale of Seller’s products (whether in contract, tort or otherwise and including statutory and consumer protection claims) will be governed by New York. Any such claims or disputes between any Buyer or end user and Seller or agents, employees, principals, successors, assigns, or affiliates (collectively for purposes of this paragraph, "Seller”), specifically excepting action involving unpaid invoices, SHALL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION ADMINISTERED BY JAMS IN SYRACUSE, NEW YORK. This transaction involves interstate commerce, and this provision shall be governed by the Federal Arbitration Act 9 U.S.C. sec. 1-16 (FAA). Any award of the arbitrator(s) shall be final and binding on each of the parties and may be entered as a judgment in any court of competent jurisdiction. All parties will be responsible for their own attorney fees and costs of arbitration. The provisions of the United Nations Convention on Contracts for the International Sales of Goods shall not apply.
