Terms of Conditions of Sale
For K.G. International, INC. (KGI)
A. CONTROLLING PROVISIONS: No terms and conditions other than the terms and conditions contained herein shall be binding upon KGI unless accepted by it in a writing signed by an authorized representative of KGI. All terms and conditions contained in any prior oral or written communication, including, without limitation, Buyer's purchase order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding on KGI, whether or not they would materially alter this document, and KGI hereby objects thereto. All prior proposals, negotiations and representations, if any, are merged herein. Buyer will be deemed to have assented to all terms and conditions contained herein if any part of the goods and/or services described herein are shipped or an invoice is presented in connection therewith.
B. TERMS & INTEREST CHARGES: Buyer agrees to pay for the products according to KGI's applicable payment terms for the Buyer. In the event Buyer fails to make any payment to KGI when due, Buyer's entire account(s) with KGI may become immediately due and payable without notice or demand. All past due amounts are subject to interest charges at the rate of eighteen (18) percent per annum from the due date, or otherwise at the maximum rate permitted by law.
C. REMEDIES OF KGI: Buyer agrees that any of the following shall constitute an event of default which shall enable KGI, at its option, to cancel any unexecuted portion of this order or to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained herein; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of receiver for Buyer or for the materials covered by this order or the filing of any petition to adjudicate Buyer bankrupt; (d) the death, incompetence, dissolution or termination of existence of Buyer; (e) a failure by Buyer to provide adequate assurance of performance within ten (10) days after a demand by KGI or (f) if KGI, in good faith, believes that Buyer's prospect of performance under this Agreement is impaired. All rights and remedies of KGI herein are in addition to, and shall not exclude, any rights or remedies that KGI may have by law. In the event it becomes necessary to incur any expense for collection of any overdue account, all collection charges KGI incurs, including attorneys' fees and court costs, will be added to the balance due and Buyer shall pay all such charges.
D. GOVERNING LAW & JURISDICTION: This transaction shall be governed in all respects by the laws of the State of Florida (excluding choice of law provisions). All actions, regardless of form, arising out of or related to this transaction or the products sold hereunder must be brought against KGI within the applicable statutory period, but in no event more than ONE (1) YEAR after the date of invoice. Any action arising out of this transaction or the parties’ relationship may only be initiated in the state courts located in Miami-Dade County, Florida or if jurisdiction is appropriate, the United States District Court for the Southern District of Florida (Miami Division). Buyer agrees that such courts shall have sole and exclusive jurisdiction over such actions, and Buyer further voluntarily submits to the jurisdiction of such courts and waives any argument that such courts lack jurisdiction over it or are inconvenient fora. Buyer waives any right to trial by jury in any action arising out of or relating to this transaction or Buyer’s relationship with KGI.
E. DELIVERY: KGI will make a good faith effort to complete delivery of the products as indicated by KGI in writing, but KGI assumes no responsibility or liability and will accept no backcharge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to KGI, including, but not limited to, liability for KGI's nonperformance caused by acts of God, war, terrorism, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatsoever beyond the control of KGI. Under no circumstances shall KGI be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.
F. WARRANTY: THE BUYER'S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED BY THE MANUFACTURER OR SUPPLIER OF THE PRODUCTS DISTRIBUTED BY KGI. KGI MAKES NO EXPRESS OR IMPLIED WARRANTIES. KGI HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES, AND IN NO EVENT, WILL KGI BE LIABLE FOR PERSONAL INJURY OR PROPERTY DAMAGE OR ANY OTHER LOSS, DAMAGE, OR INCIDENTAL, PUNITIVE, SPECIAL, CONSEQUENTIAL, OR LIQUIDATED DAMAGES OF ANY KIND, WHETHER BASED UPON WARRANTY, CONTRACT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER CAUSE OF ACTION ARISING IN CONNECTION WITH THE DESIGN, MANUFACTURE, SALE OR TRANSPORTATION OF THE PRODUCTS SOLD BY KGI. BUYER HEREBY ACKNOWLEDGES AND AGREES THAT UNDER NO CIRCUMSTANCES, AND IN NO EVENT, SHALL KGI'S LIABILITY, IF ANY, EXCEED THE NET SALES PRICE OF THE DEFECTIVE PRODUCT(S). BUYER’S SOLE REMEDIES IN THE EVENT OF A PRODUCT DEFECT ARE EITHER THE REPLACEMENT OR REFUND OF THE PRODUCT.
G. RECOMMENDATIONS BY KGI. Buyer acknowledges that KGI does not make and specifically negates and disclaims any representations, warranties and/or guaranties of any kind, express or implied, with respect to (i) the products sold, their use, design, application or operation, their merchantability, their physical condition or their fitness for a particular purpose, or (ii) the accuracy or reliability of any technical information or guidance, specifications, formulations or documents furnished to Buyer. Any recommendations made by KGI concerning the use, formulation, application or operation of the products shall not be construed as representations or warranties, express or implied. Buyer acknowledges and agrees that it is solely responsible for determining the suitability of a product for its particular purpose. Failure by KGI to make recommendations or give advice to Buyer shall not impose any liability upon KGI.
H. INDEMNIFICATION: The Buyer shall at its own expense apply for and obtain any permits, licenses and inspections required for the purchase, transportation, importation or use of the products. KGI makes no promise or representation that the products or services will conform to any international, federal, state or local laws ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of KGI. KGI shall not be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper use or misapplication of the products. Buyer shall defend, indemnify and hold harmless KGI and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorneys' fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation or use of the products by Buyer or of the information, formulations, services or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, KGI, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of this transaction.
I. INSPECTION & ACCEPTANCE: Claims for damage, shortage or errors in shipping must be reported to KGI in writing within one (1) day following delivery to Buyer. Buyer shall have fifteen (15) days from the date Buyer receives any products to inspect such products for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify KGI, in writing, of any defects, nonconformance or rejection of such products. After such fifteen (15) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance. Buyer hereby agrees that such fifteen (15) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any product or service previously ordered by Buyer or its representatives, or cancel any order without KGI's written consent and payment to KGI of all charges, expenses, commissions and reasonable profits owed to or incurred by KGI. Special or custom order items may not be canceled or returned, and no refund will be made. The sole and exclusive remedy for merchandise alleged to be defective will be the replacement of or refund of the cost of the merchandise, subject to the manufacturer's inspection and warranty. All claims for damage, defects and nonconformance must be accompanied by supporting documentation, including photographs and samples. KGI reserves the right to physically inspect any product alleged to be damaged, defective or nonconforming.
J. RETURNS: Subject to a twenty-five (25) percent restocking fee, and only with prior written return authorization from KGI, Buyer may return any product which KGI stocks within thirty (30) days of receiving the product, if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original parts and (ii) it has not been opened, used, modified, altered or damaged. Buyer's product returns not meeting (i) and (ii), above, will be evaluated on an individual basis after Buyer has contacted KGI's authorized representative for prior written permission to return such product. Special orders or non-stock items may be returned only if the manufacturer or supplier will accept the return. Such special order or non-stock returns are always subject to the greater of either a twenty-five (25) percent restocking fee or manufacturer's applicable restocking fee. Restocking fees will apply to any and all orders canceled by Buyer regardless of whether or not the goods have been delivered to the Buyer. For all product returns, Buyer is responsible for return freight to the origin from which the product was shipped.
K. SHIPMENTS: KGI ships products (a) F.O.B. point of shipment, (b) F.O.B. destination, or (c) C&F or CIF destination port. In the case of F.O.B. point of shipment, risk of loss transfers to the Buyer upon tender of goods to Buyer, Buyer’s representative or Buyer’s carrier at the point of shipment. In the case of F.O.B. destination, risk of loss transfers to the Buyer upon arrival of the goods at destination indicated by Buyer. In the case of C&F or CIF shipments, risk of loss transfers to the Buyer once the goods arrive at the destination port. The cost of any special packing or special handling caused by Buyer's requirements or requests shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if KGI ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer.
L. PRODUCT STEWARDSHIP: Buyer agrees that the products will be used, handled, stored, transported and disposed of in such a manner as is necessary for the safety and protection of persons, property and the environment, and in accordance with the manufacturer’s recommendations and applicable laws and regulations. The Buyer shall use, transport, store and transform (if applicable) the products in compliance with all applicable laws and regulations on environmental protection, public health and the protection of humans and property. Buyer agrees to instruct and train its employees with respect to, and to make certain that they know and understand, procedures necessary to enable them to comply with the requirements set forth herein. Buyer further agrees to deliver the most recent edition of the SDS (if applicable) for a given product to its employees and customers and to maintain a written record of such deliveries.
M. PATENT DISCLAIMER: KGI makes no warranty or representation that the use or sale of any product, whether alone or in combination with other products, will not infringe any patents, trademarks, registered designs, formulas or other proprietary rights of any party and Buyer assumes all risks associated therewith.
N. TAXES: The amount of any sales, excise or other taxes, if any, applicable to the products shall be added to the purchase price and shall be paid by Buyer unless Buyer provides KGI with an exemption certificate acceptable to the taxing authorities. Any taxes which KGI may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer, who shall promptly pay the amount thereof to KGI upon demand.
O. SEVERABILITY: These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance herefrom.
P. SET-OFF: Buyer shall not be entitled to set-off any amounts due Buyer against any amount due KGI in connection with this transaction.
Q. NON-WAIVER: KGI's failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of KGI's rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by KGI's authorized representative.
R. ENTIRE AGREEMENT: This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by KGI's authorized representative. All transactions shall be governed solely by the terms and conditions contained herein.