IKS Terms and Conditions of Sale
Effective Date: July 25, 2016
INTERNATIONAL KNIFE & SAW, INC. (“SELLER”)
TERMS AND CONDITIONS OF SALE
1. AGREEMENT AND ACCEPTANCE: Submission of a purchase order by the customer shall constitute acceptance of these terms and conditions by the customer. The following constitute the terms and conditions of Seller’s sale of products or services to the customer (hereinafter referred to as “this Agreement”). No additions, deletions or modifications of this Agreement or any matter proposed by the customer in its printed forms or otherwise shall bind Seller unless accepted by Seller in writing, regardless of whether such other terms would materially alter the terms hereof, and all such additional or different terms are hereby deemed to be expressly objected to by Seller. Any order for products or services shall be solely on the terms and conditions of this Agreement and shall be subject to acceptance by Seller at Seller’s principal office.
2. WARRANTY, DAMAGE AND REMEDY LIMITATIONS:
(a) Products. Seller warrants that the products delivered to the customer are owned by Seller and shall be of the kind specified, approved, and acknowledged in the customer’s order; provided, however, that any claim under this warranty shall be void and waived by the customer unless written notice of any such non-conformity with the customer’s order is received by Seller within thirty (30) days of receipt by the customer of Seller’s products. Seller also warrants its products against defects in material or workmanship for a period of twelve months from the date of original shipment to the customer (or the customer’s designee); provided, however, that this warranty does not cover defects, damage or deterioration due to design, details, specifications and contract drawings provided by the customer or others, or due to normal use, wear and tear or exposure, damage in transit or handling, and is available only to the original customer (or its direct shipment designee) and covers only products that have not been altered or modified or irregularly stored, installed, maintained, used or operated.
(b) Services. Seller warrants that services shall be performed with reasonable care. The condition of products supplied to Seller for servicing may affect Seller’s ability to provide services and the end result. Seller shall not be responsible for any tolerances or other specifications of customer unless expressly agreed to in writing by an authorized representative of Seller.
(c) Exclusion of Other Warranties. THESE WARRANTIES ARE EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY SAMPLE WARRANTY, AND ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE.
(d) Limitation of Liability. SELLER’S EXCLUSIVE LIABILITY AND THE CUSTOMER’S EXCLUSIVE REMEDY UNDER THIS WARRANTY SHALL BE LIMITED TO (AT SELLER’S SOLE OPTION) REPAIR OR REPLACEMENT F.O.B. AT SELLER’S PLANT OF ANY DEFECTIVE PRODUCTS, OR REFUNDING OF THE PURCHASE PRICE TO THE CUSTOMER. IN NO EVENT SHALL SELLER OR ITS SUPPLIERS BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
WARRANTY OR OTHERWISE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, PERSONAL INJURIES OR PROPERTY DAMAGE) OR LOST PROFITS ARISING FROM OR RELATED TO THIS AGREEMENT, THE BREACH HEREOF OR THE USE OR HANDLING OF ANY PRODUCTS MANUFACTURED OR SERVICED BY SELLER. THE CUSTOMER ACKNOWLEDGES THAT SELLER’S PRICES FOR ITS PRODUCTS AND SERVICES ARE BASED UPON AND ARE ADEQUATE AND SUFFICIENT CONSIDERATION FOR LIMITING SELLER’S LIABILITY HEREUNDER. CUSTOMER ACKNOWLEDGES THAT IT HAS OBTAINED INSURANCE AND HAS TAKEN OTHER MEASURES TO PROTECT ITSELF FROM THE RISK OF LOSS.
3. INDEMNIFICATION: The customer shall defend, indemnify and hold harmless Seller with respect to any claim, cause of action, obligation or liability, including, but not limited to, personal injury and property damage claims, arising out of or related in any manner to any breach of the terms and conditions hereof by the customer, any alteration or modification of Seller’s products not approved in writing by Seller, any design, use, storage, installation or application of products sold or serviced by Seller by the customer or any of the customer’s employees, agents, subcontractors, invitees, customers or others with access to such products, or as to any claim that Seller’s manufacture or servicing of the products pursuant to designs supplied by the customer infringed any patents, trade secrets or other rights of third parties.
4. SHIPMENT & DELIVERY: Delivery dates are approximate only. Seller will exercise its best efforts to ship on schedule, but shall not be liable to the customer or others for any damage or loss whatsoever caused by any delay in delivery. Title shall pass to the customer upon delivery to the carrier FOB at the point of manufacture or servicing. Unless specified in the customer’s order, Seller shall select the means of shipment and delivery. The customer shall not have the right to redirect or divert shipments without the prior written consent of Seller. Unless other arrangements are specified, the Seller shall add a Shipping and Handling fee to the customer’s invoice to cover packaging and distribution costs. This fee shall be based upon freight costs negotiated between the Seller and various motor freight and small package carriers. The Seller will ship product “freight collect”, or charged to a customer’s freight account upon customer’s request. The customer shall have the right to inspect and approve products manufactured or serviced by Seller for a five (5) day period after delivery in accordance with these terms and conditions, after which the products are deemed accepted and are not subject to rejection by the customer.
Seller maintains an over-run / under-run policy of 10% on all non-stock order quantity shipments. Unless otherwise agreed upon in writing, your order will be subject to this policy. The amount invoiced will reflect the actual quantity shipped.
5. RETURNS AND CANCELLATIONS: No delivered products may be returned without Seller’s prior written permission. This permission will be in the form of a Return Authorization issued by Seller’s customer service department. This is an authorization for return, and not necessarily a guarantee of credit. Seller assumes no responsibility for return shipments made without such permission. In issuing any credit for such permitted return shipments, Seller reserves the right to deduct a minimum handling charge of fifteen percent (15%) of the quoted price. All return freight expenses are to be prepaid by the customer. The customer may not cancel all or part of any order prior to shipment without Seller’s prior written approval; but if so approved, Seller then is entitled to cancellation charges including, but not limited to, labor expended, material or components obtained, expended or committed (or termination charges thereon) and overhead expenses and profits related to the customer’s order.
6. PRICES AND MINIMUM ORDER VALUE: Prices are subject to change at any time prior to acceptance in the event of changes in Seller’s costs of raw materials, labor, power, overheads, components or other costs, at Seller’s discretion and without any obligation on the part of Seller to document such changes to the customer. Stenographic and clerical errors are subject to correction. All prices, unless otherwise noted, are FOB at the point of manufacture or servicing, and do not include any applicable federal, state or local sales tax, excise tax, shipping, handling insurance, or other charges unless specifically indicated otherwise, and the customer agrees to pay all such taxes, charges or surcharges whenever and wherever levied or assessed. Seller requires a minimum net order value of $100.00, and will not accept orders for new product on open terms for less than this amount. Orders under $100 net value will only be accepted if payment is made by credit card or with cash in advance.
7. FORCE MAJEURE: Seller shall not be liable for any delays or non-performance resulting from force majeure, including, without limitation, strikes, labor disturbances, material shortages, non-performance by subcontractors or suppliers, or other abnormal manufacturing conditions, delays or failures of carriers or communications, fire, flood, storms, accident, riot, war and invasion, governmental requisitions or priorities, acts of God, or other causes beyond Seller’s reasonable control.
8. MISCELLANEOUS:
(a) The provisions of this Agreement are severable, and the unenforceability or invalidity of any provision hereof shall not affect the enforceability or the validity of any other provision hereof.
(b) Any notice pursuant to or related to this Agreement shall be effective only upon receipt thereof by the party to whom such notice is addressed.
(c) The section headings used herein are for convenience only and are not a part of this Agreement, nor shall they in any way affect the interpretation hereof.
(d) The customer may not assign this Agreement or any orders subject hereto without Seller's prior written consent.
(e) This agreement and the performance thereof is made and shall be interpreted under the laws of the State of South Carolina without regard to principles of conflicts of laws, and customer hereby consents to jurisdiction and venue in the state and federal courts in and for Florence County, South Carolina.
(f) Seller's failure to require performance of any of the terms, covenants, or conditions of this Agreement or to exercise any right hereunder, shall not be construed as a waiver of the future performance of any such terms, covenants, or conditions, or the further exercise of such right, and the obligations of the customer with respect to such future performance shall continue in full force and effect.