Nature and Scope. These terms and conditions shall govern the sale of all of the goods and materials sold by Seller (King Technology, Inc.) to Purchaser. Purchaser understands and agrees to be bound by, and each purchase order placed by Purchaser for Seller’s products will be made subject to and consistent with, these terms and conditions (“Terms and Conditions”). The Terms and Conditions are available to Purchaser on Seller’s website or upon request. Seller may change the Terms and Conditions from time to time by posting the changes on its website, and Purchaser agrees to comply with those changes effective as of the change date. Any terms and conditions in any purchase order, communication or other document, instrument or writing from Purchaser, that are in addition to, seek to modify in any way or are inconsistent with the Terms and Conditions shall be disregarded and will not be binding on Seller or apply to any agreement for the sale of goods or materials to Purchaser, without Purchaser first obtaining the express written consent of Seller.
Orders and Acceptance. Seller agrees to deliver, and Purchaser agrees to purchase and pay for, the goods and materials described in orders placed by Purchaser, which are accepted by Seller. Orders may be placed in whole or in part by telephone, electronic transmission by facsimile, internet transmission or delivery of a written order to Seller. Any such order received and accepted by Seller shall become a binding obligation on the parties, subject to the Terms and Conditions. Any electronic record capable of retention and printing by the recipient at the time of receipt with proof of transmission to the recipient shall have the same legal effect as the delivery of a written document signed by the sender. Receipt of an electronic or other form of order confirmation or acknowledgement does not signify acceptance of the order by Seller. Seller reserves the right at any time after receipt of the order to accept or decline the order for any reason or to supply less than the quantity ordered of any item. Order acceptance will take place upon the dispatch of the goods or materials, unless Seller has notified Purchaser that the order is not accepted or Purchaser has cancelled it. Seller may require additional verifications or information before accepting any order.
(a) If the Seller’s goods and materials are purchased on an open account, Purchaser agrees to pay Seller the prices provided in Seller’s Price Sheet and Shipping and Payment Policies (collectively the “Price Sheet”) in effect at the time of delivery, unless other prices or arrangements are approved in writing by Seller. Purchaser shall pay all costs of freight, demurrage, insurance, handling, taxes, tariffs, levies, dues and other expenses as specified in the Price Sheet.
(b) The order for the goods accepted hereby is subject to delivery when available at Seller’s price, point of delivery, service allowance, if any, and terms of payment in effect at date of shipment. If Seller desires to revise the price, point of delivery, service allowance or terms of payment for the goods hereunder, but is restricted to any extent against so doing by reason of any governmental request, law regulation, order or action, or if the price, point of delivery, service allowance or terms of payment in effect under this contract are altered by reason of governmental request, law regulation, order or action, Seller shall have the right to (i) terminate this contract with respect to any goods not then delivered by written notice to Purchaser, (ii) suspend deliveries for the duration of such restriction or alteration of (iii) have apply to contract (as of the effective date of such restriction or alteration) any price, point of delivery, service allowance or terms of payment governmentally acceptable. Any delivery suspended under this section shall be cancelled without liability, but this contract shall otherwise remain unaffected.
Payment – Service Charges.
(a) Unless otherwise approved in writing by Seller, all accounts are due and payable 30 days following the date of shipping. A service charge of 1.50% per month (18.0% per annum) shall be imposed on all unpaid account balances due Seller when due and payable. If a longer period of time is specified on the front of this form during which no service charge shall be imposed, a service charge of 1.50% per month (18.0% per annum) shall be imposed on all account balances not paid following the extended interest-free payment period.
(b) Seller reserves the right, among other remedies, either to terminate this contract or to suspend further deliveries under it in the event Purchaser fails to pay for any one shipment when same becomes due. If Purchaser’s financial responsibility becomes unsatisfactory to Seller, cash payments or security satisfactory to Seller may be required by Seller for current and future deliveries.
Discounts. All discounts must be clearly designated in the Price Sheet or in writing of the Seller; otherwise, no discounts are applicable to this agreement. In the event Purchaser shall default under the Price Sheet or Terms and Conditions, Purchaser shall forfeit its right to any such discounts and shall pay Seller for all goods and materials at the currently listed price plus any and all discounted amounts.
Price Changes. Seller may in its sole discretion revise the sales price of the goods or materials by giving notice of the revision to Purchaser. The revised sales price shall apply to any of the goods or materials delivered to Purchaser after the effective date of the price change and shall continue until Seller shall have received from Purchaser written notice that Purchaser is unwilling to accept the revised prices. In such event, Seller may, at its option, cancel the order.
Returns. Except as otherwise provided in Sections 10 and 11 hereof, Seller in its sole discretion may, but is not obligated to, accept the return for credit of any goods and materials delivered by Seller to Purchaser under this agreement. All goods and materials returned by Purchaser must be Seller’s current product lines and must not be used, damaged, or show any signs of deterioration. No special-order goods or materials may be returned by Purchaser. All returns are subject to a restocking and handling charge imposed by Seller equal to twenty-five percent (25%) of the purchase price. Purchaser shall be responsible for paying freight charges for returned goods or materials.
Delivery- Risk of Loss – Delays.
(a) Unless other arrangements are specified by Purchaser, all deliveries shall be made to Purchaser by Seller’s delivery of the goods and materials to a common carrier or freight forwarder selected by Seller. Risk of loss shall pass to Purchaser upon such delivery. Seller shall insure such goods or materials during transit only upon Purchaser’s specific request and at Purchaser’s expense. A fee shall be imposed and charged to Purchaser for handling as established by Seller. Any such loss, deterioration or damage shall not release Purchaser from its obligation under this agreement.
(b) Seller shall not be responsible for failure to make deliveries where such failure to deliver is due to fires, explosion, sabotage, strikes, wars, accidents, Acts of God, labor or transportation difficulties, transportation shortages, inability to obtain delivery of fuel, power, labor, raw materials or parts, action of any State, Federal, or local government body or agency, breakage or failure of machinery or apparatus of supply, or other causes beyond its reasonable control. Under no circumstances will Seller be responsible for any damage growing out of or owning to any delay of any kind whatsoever.
(c) Quantity. Claims for errors in quantity of goods or materials must be made upon receipt of each shipment by Purchaser or all resulting claims against the Seller will be deemed waived by the Purchaser.
(d) Allocation. If Seller determines that its ability to supply the total demand for the products, or obtain any or a sufficient quantity of any material used directly or indirectly in the manufacture of the products, is hindered, limited or made impracticable, Seller may allocate its available supply of products or such material (without obligation to acquire other supplies of any such goods or material) among itself and its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result shipping Purchaser less than the number of products ordered.
(e) Seller shall not be liable to Purchaser for any damages or liabilities, whether actual, incidental or consequential, for any deliveries suspended or not made by reason of this section.
Limited Warranty. Seller warrants the goods to be free from defects in material and workmanship for a period of twelve months after the date of sale to Purchaser. Subject to the preceding sentence and except as otherwise expressly provided herein. THE WARRANTY SET FORTH ABOVE IS EXCLUSIVE AND IN LIEU OF ANY OTHER EXPRESS OR IMPLIED WARRANTY, AND SELLER MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO THE GOODS. This warranty gives you specific legal rights that may vary from state to state. Some states do not allow limitations on how long an implied warranty lasts, so the above limitation may not apply to you.
Limitations of Liability.
a) All claims for any cause whatsoever (whether such claim is based in contract, negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within ten (10) days after Purchaser’s receipt of the goods in respect to which such claim is made, provided that any such cause not reasonably discoverable within such ten (10) days (including that discoverable only by use or resale) such claim shall be made in writing and received by Seller within ten (10) days after Purchaser learns of the facts giving rise to such claim, which ever shall first occur. Failure of Seller to receive written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Purchaser of such claim irrespective of whether the facts giving rise to such claim shall have then been discovered or of whether the use or resale of the goods shall have then taken place.
b) PURCHASER’S EXCLUSIVE REMEDY SHALL BE FOR DAMAGES, AND SELLER’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS, LOSSES AND DAMAGES ARISING OUT OF THE SALE OF ITS GOODS FOR ANY REASON WHATSOEVER (WHETHER IT IS BASED IN CONTRACT, NEGLIGENCE, STRICT LIABILITY, TORT OR OTHERWISE) SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE GOODS FROM WHICH A CLAIM ARISES, OR AT SELLER’S OPTION THE REPAIR OR REPLACEMENT OF SUCH GOODS. IN NO EVENT SHALL SELLER BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNATIVE DAMAGES RESULTING FROM ANY SUCH CAUSE. Seller shall not be liable for, and Purchaser assumes liability for all personal injury and property damage connected with the handling, transportation, possession, processing, other use or resale of the goods, whether the goods are used alone or in combination with any other material. Transportation charges for the return of the goods shall not be paid unless authorized in advance by Seller.
(c) If Seller furnishes technical or other advice to Purchaser, whether or not at Purchaser’s request, with respect to processing, further manufacture, use or resale of the goods, Seller shall not be liable for, and Purchaser assumes all risk of, such advice and the results thereof.
Acceptance or Rejection of Goods. Purchaser shall inspect the goods and materials upon tender by the common carrier, shall immediately give notice to Seller of any claim that such goods or materials are non-conforming in any respect, and shall confirm the non-conformity or defects in writing within ten (10) days after delivery of the goods or materials. If Purchaser fails to give such notice the goods or materials shall be deemed to conform to the order and these Terms and Conditions, and Purchaser shall be bound to accept and pay for the goods and materials in accordance with the terms governing the order. Purchaser expressly waives any right to revoke acceptance after the expiration of such notice period. Purchaser shall also be deemed to have accepted any goods or materials if Seller has not received such returned goods or materials within thirty (30) days after delivery of such goods or materials by the common carrier. Such material shall be returned to Seller at Purchaser’s expense in the same condition as when delivered to Purchaser. Risk of loss of non-conforming goods or materials shall not pass to Seller, until such time as Seller receives the returned non-conforming goods or materials as provided herein.
Authority. Seller’s sales representatives, distributors and dealers do not have authority to make contracts in the name of or binding on Seller, or extend credit in Seller’s name, or to make any representations or warranties concerning the goods or materials sold to Purchaser. Any and all contracts, extensions of credit, representations, warranties or guarantees must be made or given in writing by a duly authorized agent or representative of Seller; otherwise, the same shall not be enforceable by Purchaser or binding on Seller.
Freight and Taxes. Any increase in freight rates paid by Seller on shipments of Purchaser’s orders and hereafter becoming effective and any tax or governmental charge or increase in same (excluding any franchise or income tax or other tax or charge based on income) (a) increasing the cost to Seller of producing, selling, or delivering the goods or of procuring materials used therein or (b) payable by Seller because of the production, sale or delivery of the goods, such as Sales Tax, Use Tax, Retailer’s Occupational Tax, Gross Receipts Tax, Value Added Tax, may at Seller’s option, be added to the price to be paid by Purchaser.
Adequate Assurances of Performance. In the event Seller deems itself insecure under this agreement, Seller shall be entitled to demand assurances of performance by Purchaser, including but not limited to making all subsequent sales payable cash on delivery, reclamation of goods previously sold, terminating all existing, unfulfilled orders or refusing to accept any new order from Purchaser. Seller shall be deemed to be insecure if Purchaser fails to make any payment to Seller within 10 days after payment is due, Purchaser defaults under these Terms and Conditions or any contract, agreement or arrangement it has with Seller, or any other legitimate business reason.
Remedies. In the event of any actual or anticipatory breach or repudiation of this agreement by Purchaser, Seller may at its sole discretion discontinue making any further deliveries to Purchaser or may exercise any remedies available at law, in equity or as provided herein, and such remedies shall be cumulative. In the event that Purchaser breaches the Terms and Conditions, then Purchaser agrees to pay all of Seller’s expenses and costs of collection, including reasonable attorney’s fees, whether or not in connection with a judicial proceeding.
Notices. Except as otherwise provided by law or in these Terms and Conditions, any notice to Seller or Purchaser shall be given by electronic transmission by facsimile or internet transmission or in writing by mailing such notice by first class mail to the other party, and such written notice shall be deemed to have been given when postmarked, postage prepaid and properly addressed to the other party. Any electronic record capable of retention and printing by the recipient at the time of receipt with proof of transmission to the recipient shall deemed given upon transmission as evidenced by confirmation of transmission. Any notice to Seller shall be mailed to 530 11th Avenue S., Hopkins, MN 55343, or to such other address as Seller may designate by notice to Purchaser as provided herein. Any notice to Purchaser shall be mailed to Purchaser’s address to Purchaser’s last known address on file with the Seller.
Miscellaneous. The sale of all goods and products and related transactions between Seller and Purchaser shall be governed in all respects by the laws of the State of Minnesota and shall inure to and bind the parties hereto, their heirs, legal representatives, successors, assigns and anyone claiming by, through or under said parties. These Terms and Conditions shall be deemed severable and the invalidity or unenforceability of any one or more of the provisions shall not affect the validity and enforceability of the other provisions. All titles and captions herein and for convenience only and shall not be deemed a part of the context of this agreement, the rights of Purchaser cannot be assigned or otherwise transferred in whole or in part without the prior written consent of Seller. The entire agreement of the parties hereto has been set forth in the order, subject to these Terms and Conditions, the Price Sheet and the Shipping Terms and Payment Policies, and there are no agreements, understanding, representations or warranties between the parties, unless confirmed in writing by the Seller. No change, addition or modification of this agreement shall be valid or binding unless it is in writing and signed by the parties against whom the waiver is sought to be enforced. No valid waiver of any provision of this agreement shall be deemed a waiver of any other provision of this agreement.