1. ACCEPTANCE. Buyer/End-User (“Buyer”) agrees that it shall be bound by these Terms and Conditions (“Terms”) and that no other terms or conditions shall apply to the sale of any goods or other products (“Goods”) provided by Denios, Inc. or any subsidiaries or affiliates thereof (“Seller”). These Terms shall prevail over all terms and conditions contained in any other oral or written communication, including, without limitation, Buyer’s purchase orders, which are different from or in addition to these Terms, regardless of whether such other terms and conditions would materially alter these Terms. No waiver, discharge or modification of these Terms shall bind Seller unless in writing and signed by the authorized representative of Seller.
2. PAYMENT TERMS. Buyer agrees to pay for the Goods according to Seller’s payment terms as set forth in Seller’s quotation or, if no quotation is provided, as set forth in Seller’s invoice. In the event Buyer fails to make any payment to Seller when due, Buyer’s entire account(s) with Seller shall become immediately due and payable without notice or demand. All past due amounts are subject to service charges at the rate agreed to by the parties, otherwise at the maximum rate permitted by law.
3. REMEDIES OF SELLER. In case of any Default (as defined below) by Buyer, Seller may, at its option, cancel any incomplete portion of a pending sale of Goods or exercise any right or remedy which it may have by law. All such remedies of Seller are cumulative and not exclusive. “Default” by Buyer shall include any of the following: (a) the failure to pay any installment of the purchase price when due, no demand being necessary; (b) the insolvency of Buyer or its failure to pay debts as they mature, the appointment of a receiver for Buyer or for the Goods covered by these Terms, the filing of a bankruptcy petition, an assignment for the benefit of creditors, or any other form of insolvency proceedings instituted against Buyer; (c) the death, incompetence, dissolution or termination of existence of the Buyer; or (d) the failure of Buyer to perform any other material term or condition contained herein. In the event of a Default by Buyer, Buyer agrees to pay Seller’s attorney’s fees, collection costs, and all other expenses incurred by Seller in connection with such Default as and when incurred.
4. LIMITED WARRANTY AND DISCLAIMER. From a period of one (1) year from the date the Goods are delivered, Seller warrants that all Goods are new, unused and free of defects in material and workmanship. Seller will repair or replace any defects in material or workmanship that may develop under normal use, within a period of one (1) year from the date the Goods are delivered, provided that each of the following conditions are satisfied: (a) the Goods have been used and maintained in accordance with Seller’s written operating and maintenance instructions; (b) the Goods have been used under normal operating conditions; and (c) Buyer provides Seller with written notice of such defect within ten (10) working days from the date that Buyer discovered the defect or, in the exercise of reasonable diligence should have discovered the defect, whichever date first occurs. Seller’s liability shall be limited to repair of the defects as set forth in this Section or, if unable to be repaired or if replacement would be preferable in Seller’s sole discretion, replacement of the Goods. It is expressly agreed by the parties herein that repair or replacement of the Goods as set forth in this Section shall be Buyer’s sole and exclusive remedy against Seller. The right to recover consequential and incidental damages is expressly waived by Buyer and such damages are excluded. Seller shall have no liability or responsibility for the installation or use of the Goods by Buyer. SELLER MAKES NO WARRANTIES, EITHER EXPRESSED OR IMPLIED, BEYOND THOSE AFFIRMATIVELY SET FORTH IN THIS SECTION, AND BUYER ACKNOWLEDGES THAT BY THIS DISCLAIMER OF WARRANTIES, ANY AND ALL IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED BY THE SELLER.
5.DELIVERY. Unless otherwise specifically agreed by the parties in a writing signed by an authorized representative of Seller, all shipments are F.O.B. place of shipment from Seller’s production facility in Louisville, KY. Buyer agrees to thoroughly examine the Goods at destination and to file any claims for loss or damage during transit directly with the freight company or its underwriter. Goods in transit are at Buyer’s risk and Buyer shall, at its sole expense, maintain appropriate insurance on the full value of the Goods while in transit. Title and risk of loss to all Goods passes to Buyer at the F.O.B. place of shipment from Seller’s production facility in Louisville, KY.
6.ORDER CANCELLATION AND CHANGES. Buyer may cancel all or any portion of an order by written notice to Seller prior to thirty (30) days before the acknowledged shipping date for the Goods. Upon receipt of a cancellation notice under this Section, Seller will cease work on the Goods as promptly as reasonably possible. Buyer agrees to pay Seller (a) the contract price for any completed Goods, and (b) Seller’s full costs of production (including overhead), as calculated in good faith by Seller, plus an additional twenty percent (20%) for any incomplete Goods canceled less than thirty (30) days prior to the acknowledged shipping date. If Seller makes any changes to a previously acknowledged order at the request of Buyer, including any such changes necessitated by changes in site conditions or installation requirements, the parties shall in good faith renegotiate the price of the Goods to reflect all expenses caused by said changes regulations, except as particularly specified and agreed upon in writing by an authorized representative of Seller.
7. INDEMNIFICATION. Buyer will promptly defend, indemnify and hold harmless Seller and its agents and employees with respect to any loss, damage, claim, suit, liability, judgment, or expense of any kind (including, without limitation, reasonable attorney’s fees and related expenses) incurred by Seller as a result of or in connection with the purchase, sale, transportation, installation, repair or use of the Goods by Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees or suppliers.
8. FORCE MAJEURE. If Seller is prevented from or delayed in performing by a force majeure event, it shall not be liable or responsible for its failure to timely perform, but shall perform as soon as reasonably possible after the force majeure event ceases and normal operations resume. Force majeure as used in this Section refers to circumstances that are beyond Seller’s control and that directly or indirectly affect production, including but not limited to, acts of God, acts of war, acts of government, terrorism, riots and labor strikes, labor lockouts, interruption in telecommunication transmission or product transportation, materials shortages or delays or sudden severe increases in materials prices or other costs, accident, fire, water damage, flood, earthquake, windstorm, or other natural disasters and catastrophes.
9. GOVERNING LAW AND VENUE. This writing shall be construed under and governed by the law of the Commonwealth of Kentucky (without regard for the conflict-of-laws principles thereof) and Buyer waives all claims to the contrary. The exclusive venue for any action to enforce these Terms shall be the appropriate state or federal court of competent jurisdiction located in Jefferson County, Kentucky, USA. Buyer consents to personal jurisdiction in the Commonwealth of Kentucky.
10. SEVERABILITY. These Terms shall not be construed against the party preparing them, but shall be construed as if prepared jointly by the parties 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 these Terms shall be construed 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.
11. NON-WAIVER. Seller’s failure to insist upon the strict performance of any of these Terms shall not be deemed a waiver of any of Seller’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 an authorized representative of Seller.
12. SET-OFF. Buyer shall not be entitled to set-off any amounts due to Buyer against any amount due to Seller in connection with any order governed by these Terms.
13. ENTIRE AGREEMENT. These Terms constitute the final written expression of the terms and conditions governing the purchase and sale of the Goods and are the complete and exclusive statement of the governing terms and conditions.