KPS GLOBAL, LLC
GENERAL TERMS AND CONDITIONS FOR PURCHASE
These General Terms and Conditions for Purchase (these “Terms and Conditions”) are effective as of ______________________, 20__ (the “Effective Date”), between KPS Global, LLC, a Delaware limited liability company (“Buyer”) and ______________________________, a ____________ ____________________ (“Seller”) with respect to Buyer’s purchase of materials or goods (herein collectively called “products”) from Seller from and after the Effective Date.
1. PURCHASE ORDERS; ACCEPTANCE BY SELLER: These Terms and Conditions shall apply to all purchase orders issued by Buyer to, and accepted by, Seller (each, a “Purchase Order”), in Buyer’s standard form as in effect from time to time. Upon acceptance of a Purchase Order, Seller agrees to manufacture and/or supply to Buyer products therein described in accordance with Buyer’s requirements for such products as set forth in the Purchase Order. Seller shall at all times maintain and offer to Buyer competitive pricing, quality and delivery terms, and shall comply with all other provisions of these Terms and Conditions. Each Purchase Order constitutes an offer by Buyer to purchase from Seller the products therein specified subject to these Terms and Conditions at the prices stated in the Purchase Order. Acceptance of a Purchase Order will be indicated by the Seller: (i) shipping any part of the products set forth on that Purchase Order; (ii) acknowledging the Purchase Order in writing, or (ii) any other definite act or expression of acceptance. Prior to acceptance, a Purchase Order shall remain revocable in whole or in part by Buyer for any reason whatsoever. All Purchase Orders are expressly conditioned upon Seller’s acceptance thereof in its entirely without additions, modifications or exceptions, and no acceptance which varies the terms of a Purchase Order or proposes additional terms shall be effective. The execution and submission of this Agreement does not impose upon Buyer any obligation to purchase products from Seller.
2. AMENDMENT OF PURCHASE ORDERS: Buyer shall have the right at any time before completion of a Purchase Order to make changes in quantities, drawings, designs, specifications, place or time of delivery and methods of shipment. If any such change results in an increase or decrease in the cost of performance of the Purchase Order, an equitable adjustment shall be made in the price.
3. SHIPMENT: Prices set forth in a Purchase Order include all charges for packaging and transportation to the destination designated by Buyer. Unless otherwise required by Buyer, all products pursuant to a Purchase Order shall be delivered F.O.B the place of destination or shipment as therein designated by Buyer. Seller agrees to properly prepare all products for shipment so as to prevent damage to comply with Buyer’s shipping instructions and to ship in accordance with the carrier’s requirements in a manner to secure lowest transportation costs. The risk of loss, deterioration, or damage to the products ordered, as well as the obligation to insure, shall be borne by Seller until such products are delivered to and accepted by Buyer.
4. WARRANTIES: In addition to Seller’s customary warranties and any other warranties contained herein or implied in fact or by law, Seller warrants that the products will conform in all respects to specifications, drawings, samples or other descriptions furnished or specified by Buyer and, for a period of not less than one year from the date of delivery thereof, will be merchantable, of high quality, free from defects in design, material and workmanship, and fit for their intended purpose. Seller warrants that all such products will conform to any statements made on the containers or labels or advertisements for such products, and that any products will be adequately contained, packaged, marked and labeled. Seller warrants that products furnished will conform in all material respects to samples provided by Seller. Inspection, test, acceptance or use of the products furnished hereunder shall not affect the Seller’s obligation under this warranty, and all warranties shall survive inspection, test, acceptance, use and payment, and shall be for the benefit of Buyer and its successors, assigns, customers and users of products sold by Buyer. Seller’s warranties shall not be limited in any way by Buyer’s extending express or implied warranties to its successors, assigns, dealers or customers. Seller further represents and warrants to Buyer that the manufacture, use or disposition of any products sold or supplied hereunder will not infringe any patent, trademark, copyright or data rights of any other person or entity.
5. TERMINATION: Buyer shall have the right to terminate a Purchase Order or any part thereof at any time:
(a) Without Cause: Buyer may cancel a Purchase Order or any part thereof at any time upon ten (10) days’ written or verbal notice to Seller. . Upon such cancellation, Seller will, as to the cancelled portion of the Purchase Order, stop work immediately and protect any products which may be in Seller’s possession that Buyer has or may acquire an interest. If Buyer cancels a Purchase Order without cause, in whole or in part, Buyer’s sole liability to Seller, and Seller’s sole and exclusive remedy, is payment for products delivered and accepted to Buyer’s prior to delivery of its notice of termination to Seller. Buyer may set off against any such payment all damages, losses or liabilities owed to or suffered or incurred by Buyer in connection with these Terms and Conditions. Buyer will pay the Purchase Order price or equitable portion thereof for those products or completed work in progress, subject to Buyer’s right of setoff as herein provided.
(b) With Cause: Buyer may terminate a Purchase Order or any part thereof at any time effectively immediately (i) if Seller fails to make any delivery in accordance with the agreed delivery date or schedule or otherwise fails to observe or comply with any of the other instructions, terms, conditions, or warranties, separately or in any combination, applicable to the Purchase Order; (ii) if Buyer has reasonable grounds for insecurity with respect to Seller’s performance under a Purchase Order; (iii) Buyer is otherwise in breach or default of its obligations under any Purchase Order; of (iv) in the event of any proceeding commenced by or against Seller in bankruptcy or insolvency or appointment of a receiver or trustee or an assignment for the benefit of creditors. Upon such termination for cause, Buyer shall not have any liability to Seller on account of such termination.
6. NO ADVERTISING: Seller shall not, without prior written consent of Buyer, advertise or publish the fact that Buyer has placed a Purchase Order with Seller.
7. COMPLIANCE WITH LAWS: All work hereunder shall be performed in accordance with all applicable federal and state laws, statutes, rules, regulations or orders covering the production, sales and delivery of the products, including, without limitation, the Fair Labor Standards Act.
8. NO ASSIGNMENT OR SUBCONTRACTING: Seller may not assign or subcontract all or any part of a Purchase Order or any of its rights or obligations herein without, in either case, Buyer’s prior written consent. The terms and conditions of the Purchase Order shall bind any permitted successors and assigns of Seller. Any consent by Buyer to assignment shall not relieve Seller of its obligations hereunder and thereunder.
9. BUYER’S INFORMATION AND PROPERTY:
(a) All information, drawings, data, design, inventions, computer software, ideas, suggestions and/or other technical information supplied by Buyer or those developed by Seller at Buyer’s request shall remain Buyer’s property and shall be held in confidence by Seller. Such information shall not be reproduced, used, modified, or disclosed to others by Seller without Buyer’s prior written consent, and shall be returned to Buyer upon completion by Seller of its obligations under the Purchase Order or upon demand. Any information which Seller may disclose to Buyer with respect to the design, manufacture, sale or use of the products covered by the Purchase Order shall be deemed to have been disclosed as part of the consideration for the Purchase Order, and Seller shall not assert any claim against Buyer or Buyer’s use thereof.
(b) All property used by Seller in connection with the Purchase Order which is owned, furnished, charged to or paid for by Buyer including, but not limited to, materials, tools, dies, jigs, molds, patterns, fixtures, equipment, drawings and other technical information, information provided or stored on electronic media, computer software, specifications, and any replacement thereof, shall, at Buyer’s sole option, be and remain the property of Buyer. All such property of Buyer shall be identified and marked as Buyer’s property, used only for the Purchase Order and adequately insured by Seller at its expense for Buyer’s protection, including the issuance of loss payee and additional insured endorsements to Seller’s property and liability insurance policies. Seller shall assume all liability for and maintain and repair such property and return the same to Buyer in its original condition, reasonable wear and tear accepted.
10. REMEDIES: In the event of a breach by Seller of a Purchase Order or these Terms and Conditions, then, at Buyer’s option: (i) Buyer may return nonconforming or late delivered products to Seller at Seller’s expense; (ii) Seller shall pay for the amount including shipping and incidental charges, (if such charges are not included in the contract price), in excess of the contract price required to obtain products in substitution for products not delivered pursuant to the Purchase Order, products rejected because of late or otherwise defective delivery or products rejected because of breach of warranty; (iii) Buyer may rework or repair the products as to make them conform to the Purchase Order, and Seller shall pay the expense thereof; (iv) Buyer may use the nonconforming products for a purpose other than the purpose originally intended, and Seller shall pay the amount by which the purchase price exceeds the price of products normally required for such alternative purposes; (v) Seller shall pay for the full amount of any monetary loss of Buyer caused as a result of any such breach; and/or (vi) Seller shall repair or replace defective products at Seller’s expense. The remedies provided herein shall be cumulative and in addition to any other remedies provided by law.
11. TAXES: Seller is liable for and shall pay all taxes, impositions, charges and exactions imposed on or measured by the Purchase Order except those Buyer specifically agrees or is required by law to pay and which are separately stated on Seller’s invoice. Prices shall not include any taxes, impositions, charges, and exactions for which Buyer has furnished an exemption certificate.
12. TERMS OF PAYMENT: Seller’s invoices shall be sent to Buyer when the products are shipped. Buyer shall have a number of days in which to make payment under such invoices, as set forth in the applicable Purchase Order. This payment period shall commence on the later of: (i) the date of actual receipt of the products by Buyer in accordance with the delivery schedules set forth on the Purchase Order or (ii) the date of receipt by Buyer of a Seller invoice for the products received under a Purchase Order, provided that such products are entirely in compliance with, and are manufactured, assembled and delivered in accordance with the specifications set forth in the Purchase Order.
13. MOST FAVORABLE PRICING: Seller represents and promises to Buyer that all prices for products covered by each Purchase Order shall be no less favorable to Buyer than those prices Seller offers to any other person or entity for the same or substantially similar products that are purchased by Buyer and in quantities substantially similar to those quantities that are purchased by Buyer. If Seller offers such products to any person or entity other than Buyer at prices which are more favorable than the prices offered to Buyer, Seller shall provide immediate written notice to Buyer and shall offer such products to Buyer at prices which are no less favorable than the corresponding prices for such products offered to such other person or entity. Upon receiving such notice, Buyer may, in its sole discretion, accept the more favorable prices or Buyer may terminate any Purchase Order immediately upon written notice to Seller. At such times and from time to time as Buyer may reasonably request in writing, but no more frequently than twice in any 12-month period, an authorized officer of Seller shall, within ten (10) business days after receipt of such request, certify to Buyer in writing that Seller has complied with this paragraph or that Seller has not so complied. If Seller has not fully complied with this paragraph, then Seller shall, concurrently with its certification, deliver to Buyer a detailed written accounting of the total amount of all excess sums previously paid by Buyer to Seller and remit such excess amount to Buyer concurrently with such certification by Seller.
14. HAZARDOUS MATERIALS: Seller shall notify Buyer of every article ordered hereunder which contains material hazardous or injurious to the health or physical safety of persons even though said hazard or injury may only occur due to mishandling or misuse of the article. Seller shall supply Buyer with warning labels or instructional material appropriate to warn persons coming in contact therewith of the hazard and its effects.
15. NOTICES: Any notice provided for herein shall be deemed to have been made and delivered when delivered personally or by recognized overnight air courier (e.g., Federal Express) and addressed to Buyer at 4201 North Beach Street, Fort Worth, TX 76137, Attention: Chief Financial Officer; and to Seller at the address set forth on the signature page hereto.
16. APPLICABLE LAW AND VENUE: These Terms and Conditions and all Purchase Orders shall be construed in accordance with the laws of the State of Texas, without regard to its conflicts of laws principles. Any claims or suits filed by either party against the other party shall be filed in the state or federal courts located in Tarrant County, Fort Worth, Texas. If any action is filed in the federal courts, the filing shall be made at the Eldon B. Mahon, United States Courthouse located at 501 W. 10th Street, Ft. Worth, Texas. The parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the state and federal courts in the State of Texas, County of Tarrant, waive any defense of lack of jurisdiction of, or improper venue in, any such court, and agree that service of legal papers or documents for initiating, or otherwise related to, any such action may be made by certified or registered mail to the other party.
17. LIMITATION ON LIABILITY: In no event shall any party hereunder be liable for anticipated profits or for incidental or consequential damages.
18. INSURANCE: Seller shall maintain in effect insurance coverage with reputable insurance companies covering workers’ compensation and employers’ liability, automobile liability, commercial general liability, including products liability and excess liability, all with such limits as are sufficient, in Buyer’s reasonable judgment, to protect Seller and Buyer from the liabilities insured against by such coverages; and Buyer may, at its option, require that Buyer be named as an additional insured thereunder.
19. INDEPENDENT CONTRACTOR: Nothing herein shall be construed to place Seller and Buyer in an agency, employment, franchise, joint venture, or partnership relationship. Neither party has the authority to obligate or bind the other in any manner, and nothing contained in this Agreement will give rise or is intended to give rise to rights of any kind to any third parties. Seller will perform its obligations hereunder as an independent contractor.
20. ENTIRE AGREEMENT; AMENDMENT: These Terms and Conditions and the Purchase Orders constitute the entire agreement between the parties concerning all matters related to the subject matter hereof, and supersede any prior discussions, agreements or understandings with respect to Purchase Orders issued from and after the Effective Date, and there are no promises, representations or agreements between the parties hereto other than as set forth herein. The terms of these Terms and Conditions and the Purchase Orders may only be modified by a writing signed by both parties, and may be waived only by the party for whose benefit such provision exists. No waiver with respect to any portion of these Terms and Conditions shall apply to any other portion of the Terms and Conditions, and a waiver on one occasion shall not be deemed to be a waiver of the same provision or any other provision, or any breach thereof on a future occasion. No course of dealing by any party, and no failure, omission, delay or forbearance by any party in exercising such party’s rights or remedies shall be deemed a waiver of any such rights or remedies or a modification of these Terms and Conditions.
21. NOTICE TO BUYER OF LABOR DISPUTES: Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of a Purchase Order, Seller shall immediately give notice thereof, including all relevant information, with respect to Buyer.
22. INTERPRETATION: Whenever possible, each part of these Terms and Conditions shall be interpreted as effective and valid. The invalidity in whole or in part of any provision hereof shall not affect the validity of any other provision.
23. TIME IS OF THE ESSENCE; EXCUSABLE DELAYS: Time is of the essence in the performance of the Purchase Order by the Seller; provided that neither party shall be liable for damages for delay in delivery arising out of causes beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God or of the public enemy, acts of the Government in either its sovereign or contractual capacity, fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather.
AGREED AND ACCEPTED by the parties as of the date first set forth above through their respective duly authorized representatives:
KPS GLOBAL, LLC
[NAME OF SELLER]