KPS GLOBAL, LLC (Including subsidiaries and affiliates)
PURCHASE ORDER TERMS AND CONDITIONS Effective May 1, 2019
These Terms and Conditions (the “Terms and Conditions”) shall apply to all agreements entered into by KPS Global, LLC, its subsidiaries and affiliates (“KPSG”), for the purchase of tangible and intangible goods and services (collectively, “Product” or “Products”).
- Purchase Orders. All purchase orders (“PO”) issued by KPSG shall be governed by these Terms and Conditions.
- No Alteration. These Terms and Conditions may not be altered, directly or indirectly, by the seller or ultimate provider (the “Seller”) or by conduct of KPSG or Seller.
- Modifications, Rescissions, or Waivers. All modifications, rescissions, or waivers of any KPSG PO or these Terms and Conditions shall be stated explicitly in prior writing signed by KPSG and Seller.
- Seller as Independent Contractor. Seller is an independent contractor in all its activities under any PO. Seller is responsible for all social security, unemployment insurance, worker’s compensation, income tax, and any other payments or deductions required by local, state or federal law or regulation. Seller has no authority to create any obligation or liability for or in the name of KPSG.
- Good Title. Seller shall convey all Products and constituent parts with good title, by rightful transfer, free from any security interest or other lien or encumbrance, and free of rightful claim of any third person by way of infringement or the like.
- Notice of Shipment. Seller shall give KPSG immediate electronic notice of shipment with carrier name and shipment tracking information. Each shipment shall include a fully completed Bill of Lading and a detailed packing slip with the Purchase Order number on each delivery.
- Delivery. All deliveries of Products shall be completed free on board to the destination(s) selected by KPSG, at the delivery times specified in the PO or other written notice to Seller, and at the Seller’s full cost and risk of loss.
- Proof of Delivery. Proof of all completed deliveries shall be signed clean Bill of Lading or signed copy of the packing slip by KPSG’s authorized representative.
- Packaging. Seller shall package all shipped Products to prevent damage with prominent labeling of all packaging at Seller’s cost.
- Late Delivery Penalty. Seller shall pay KPSG late delivery penalties of 1.5% of unit price per calendar day of late delivery to an aggregate maximum of 30% of unit price for each day of late delivery for all Products not delivered by the delivery times specified in the PO or other written notice to Seller.
- Payment. KPSG shall pay for delivered Products within sixty (60) business days of receipt of delivered Products and Seller’s written invoice, unless KPSG provides Seller a written complaint within thirty (30) business days of receipt of delivered Products and Seller’s written invoice.
- Risk of Loss. Risk of loss for all Products purchased by KPSG shall pass to KPSG upon actual delivery to the location(s) selected by KPSG.
- Damaged or Destroyed Products. KPSG shall have the right to reject receipt of Products that are defective, damaged, or destroyed by giving written notice of rejection to seller within thirty (30) business days immediately following complete delivery to the location(s) selected by KPSG.
- Defective Products. KPSG shall have the right to reject, with full refund of purchase price to KPSG, or repair, at Seller’s expense, any defect in Products received by giving written notice to Seller within ninety (90) business days of discovery of any defect. Defects not subject to reasonable discovery after delivery shall be subject to KPSG’s right to reject, with full refund of purchase price to KPSG, or repair, at Seller’s expense, by KPSG written notice of defect to Seller for a period of no more than ten (10) years immediately following complete delivery of the Products subject to defect(s).
- Intellectual Property Rights. Any copyright, trademark, trade secret, software, data, idea, concept, process, formula, invention, system, report or other intellectual property resulting from any Seller work performed for the PO, derived from or based on information supplied by KPSG, or conceived or reduced to practice by Seller using KPSG’s funds, will be the sole property of KPSG. Seller agrees to assign and herby assigns to KPSG any interest Seller may have in such intellectual property right or invention conceived by Seller or reduced to practice by Seller.
- Intellectual Property Indemnity. Seller shall save KPSG, its agents, customers, and users of the Products harmless from all loss, damage, and liability incurred on account of any infringement or alleged infringement of a Patent, copyright, or trademark or misappropriation of a trade secret or other violation of an intellectual property right of a third party, arising out of the manufacture, sale, or use of such Products by Seller, KPSG, KPSG’s agents, customers, or users of the Products.
- Hazardous Products or Materials. Seller shall provide prior written notice to KPSG of all hazardous Products or materials contained in Products including warning labels and material safety data sheets in compliance with 29 C.F.R. §1910.1200.
- Warranties. Seller warrants that all Products delivered under the PO will be free from defects in design; material and workmanship will confirm to applicable descriptions, specifications, and drawings and suitable for the purpose intended. THIS WARRANTY SHALL BE IN ADDITION TO ALL WARRANTIES ARISING AS A MATTER OF LAW AND SHALL SURVIVE ACCEPTANCE AND PAYMENT. Seller’s warranties will be enforceable by KPSG’s customers as well as KPSG, will begin at delivery to KPSG, and valid for thirty-six (36) months after delivery to KPSG’s customers.
- Time of Essence. Time is of the essence for all scheduled times and deadlines.
- Force Majeure. The performance of any obligations by any party subject to these Terms and Conditions shall be excused from performance for the period of the interruption or delay caused by an act of God, act of the State, acts of war, riot, strikes, fire, flood, or the occurrence of any other event beyond the control of the performing party.
- Code of Conduct. The KPSG Code of Conduct, as published on the KPSG website, is herein adopted by reference for all purposes.
- Governing Law. All KPSG POs and these Terms and Conditions, including any ancillary documents thereto and hereto, shall be governed by the laws of the State of Texas and applicable federal law of the United States of America, except for any conflicts of law principles.
- Limitation of Damages. KPSG shall not be liable to Seller, under any circumstances, for consequential damages, indirect damages, lost profits (direct and indirect), or exemplary or punitive damages.
- Exclusive Venue. Exclusive, mandatory venue for all disputes, subject to the alternative dispute resolution provisions herein, shall be the state and federal district courts sitting in Tarrant County, Texas.
- Alternative Dispute Resolution. Any controversy or claim arising out of or relating to these Terms and Conditions, PO, and document to which these Terms and Conditions, or PO apply, or the breach thereof, including the validity, scope, enforceability, and arbitrability of this arbitration agreement, shall be settled by arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then effective AAA Commercial Arbitration Rules. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Any provisional remedy which would be available from a court of law shall be available from the arbitrator pending arbitration. The Federal Arbitration Act shall govern all arbitration proceedings. The arbitration shall be conducted in Fort Worth, Texas, by one neutral arbitrator chosen by AAA according to its then effective Commercial Arbitration Rules. Neither party nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. All fees and expenses of the arbitration shall be borne by the parties equally who shall make deposits as requested by AAA. Failure or refusal by a party to pay its share of the requested deposits shall constitute a waiver by the non-paying party of its rights to be heard, present evidence, cross-examine witnesses, and assert counterclaims in the arbitration. Informing the arbitrator of a party’s failure to pay its share of the requested deposits for the purpose of implementing this waiver provision shall not be deemed to affect the arbitrator’s impartiality, neutrality, independence, or ability to proceed with the arbitration. Each party shall bear the expense of its own counsel, experts, witnesses, and preparation and presentation of proofs. The prevailing party, according to the arbitrator, however, shall be entitled to an award of reasonable attorney’s fees, for the arbitration and for all appeals of the award, as well as arbitration fees and AAA administrative expenses. This agreement to arbitrate shall survive the termination or repudiation of any agreement or contract to which these Terms and Conditions apply.
KPS GLOBAL LLC (including subsidiaries and affiliates)
TERMS AND CONDITIONS FOR SALE Effective January 1, 2016
As used in these Terms and Conditions for Sale (“Terms and Conditions”): “Buyer” shall mean the person, firm or business entity (other than a KPSG authorized dealer) to which KPSG originally sells a product; “product” shall mean any product manufactured by KPSG and sold by KPSG to Buyer, including installation services, equipment, parts, and other products sold by KPSG to Buyer; “KPSG” shall mean KPS Global LLC and its subsidiaries and affiliates. As used in this Limited Warranty, the term “original purchaser” means the initial purchaser of a KPSG product.
These Terms and Conditions set forth the entire agreement with respect to the sale of products by KPSG to Buyer and may not be added to, deleted, modified or altered except as otherwise expressly provided below. All orders for products made by Buyer are subject to approval of KPSG’s Credit Department and Home Office. Acceptance by KPSG of an order for products made by Buyer is expressly conditioned upon Buyer’s assent to these Terms and Conditions. Buyer’s purchase order or other writing shall not add, delete, modify or alter these Terms and Conditions for Sale, except as may be expressly agreed to by KPSG in writing prior to an as a condition of KPSG’s acceptance of such order.
PRICE AND PAYMENT TERMS
Unless expressly agreed to in writing by KPSG, the prices quoted or specified by KPSG do not include the cost of bundling, construction, or installation permits, or sales taxes, excise or other taxes which are now in effect or hereafter levied. Payment shall be made by Buyer net 30 days from invoice date. If Buyer fails to comply with any terms of payment, KPSG reserves the right to suspend payment terms, withhold deliveries or terminate any sale, without notice, and any unpaid amount shall thereupon become immediately due without notice. If payment is not made according to the terms stated herein, late fees shall be charged on any overdue portion at the rate of 1.8% per month, and KPSG may require a deposit prior to delivery. If at any time, for any reason, Buyer fails to make a payment when due, and in the event it becomes necessary for KPSG to incur collections costs, charges and expenses or initiate suit to collect any amount due, Buyer shall pay all such additional collection costs, charges, and expenses incurred by KPSG, including reasonable attorney’s fees and related costs.
KPSG warrants to Buyer that the products manufactured by KPSG and the following described services, if any, provided by KPSG, will be free from defects in materials and workmanship for the following periods and on the following terms: (a) parts: one (1) year from original installation but not more than fifteen (15) months from date of shipment, F.O.B. KPSG factory; (b) installation of parts and/or panels, if performed by KPSG for Buyer: one (1) year from completion of the original installation; (c) panels: one (1) year from completion of the original installation as reasonably determined by KPSG, but in no event more than fifteen (15) months from the date of shipment, F.O.B. KPSG factory. The obligation of KPSG under this Limited Warranty is limited to repairing or, at its election, replacing, F.O.B. KPSG factory, any part or panel, provided that replacement of any such part or panel shall be conditioned upon KPSG’s pre-authorization in writing that it be returned to KPSG, transportation prepaid, and upon KPSG’s inspection and determination that it is defective. KPSG assumes no obligation to arrange for or to pay the expense of any labor or materials, including labor necessary to remove a defective part or to install new or repaired parts. This Limited Warranty does not cover a product which has been damaged or otherwise rendered defective as a result of any accident, alteration, abuse, misuse, neglect, lack of maintenance, improper installation or has been operated or maintained in a manner contrary to or inconsistent with the directions, instructions or recommendations of KPSG. Any refrigeration system and component parts of a KPSG product or assembly, which includes the condensing unit(s), coil(s) and related accessories, are not covered by this Limited Warranty. KPSG makes no representation or warranty regarding accessories or equipment that is not manufactured by KPSG. The Limited Warranty set forth in these Terms and Conditions, and any and all warranties implied or expressed in law (notwithstanding the express exclusion thereof as herein provided), with respect to any KPSG product shall automatically terminate and be deemed void if any part that is nongenuine or is not expressly authorized or installed by KPSG is used or installed on any such KPSG product. This Limited Warranty is issued only to the original purchaser and is not transferable, and is in lieu of all other warranties expressed or implied. KPSG neither assumes nor authorizes any other individual or entity to assume for or on behalf of KPSG any liability not herein stated. KPSG shall not be liable for any damage to any KPSG product or delays occurring while in transit or for any delays in performance by KPSG caused by any contingency beyond its control including war, terrorism, government restrictions or restraints, strikes, short or reduced supply of parts or raw materials, fire, flood or acts of God, nor for damage to or loss of any products, refrigerant, property or loss of profits due to malfunctioning of or defect in any product, part, panel, equipment, fixture or unit. The provisions of this paragraph set forth the exclusive remedy for all claims based on failure of, or defect in, KPSG products or services sold, whether the failure or defect arises before or during the applicable limited warranty period, and whether a claim, however asserted, is based on contract, indemnity, warranty, tort (including negligence), strict liability, implied by statute, common-law or otherwise, and neither KPSG nor any of its officers, employees or agents shall be liable for any claims for personal injuries or consequential damages or loss incurred or suffered by the purchaser or any other person, howsoever caused. Upon the expiration of the applicable limited warranty period, all liability of KPSG hereunder shall terminate. THE FOREGOING LIMITED WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY NOTWITHSTANDING THE PROVISIONS OF THE UNIFORM COMMERCIAL CODE, THE MAGNUSON-MOSS WARRANTY-FEDERAL TRADE COMMISSION IMPROVEMENT ACT, OR ANY OTHER FEDERAL OR STATE STATUTORY OR COMMON LAW. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY, AND KPSG DOES NOT WARRANT ANY PRODUCTS OR SERVICES OF OTHERS. The United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety from application to this Limited Warranty.
DELIVERY AND SHIPMENT
Shipping dates shall be computed from the date of KPSG’s receipt and approval of the necessary specifications and not from the date of receipt of an order. To avoid delays in shipments, the mode of transportation and routing of shipments originating at KPSG’s plant shall be determined or selected by KPSG in its sole discretion. KPSG may store packaged products ordered by Buyer for such time and in such manner as KPSG reasonably deems appropriate without charge to Buyer. However, a reasonable charge may be made for such storage, and all risk of loss, theft or damage to such stored products shall pass to Buyer if Buyer fails to furnish delivery instructions acceptable to KPSG within 30 days after Buyer’s receipt of notice that KPSG is ready to ship such products. Unless otherwise agreed upon in writing, goods will be delivered in accordance with KPSG’s customary scheduling and shipment practices. Deliveries shall be subject to, and contingent upon, the absence of any delay or interference caused directly or indirectly by strikes, labor difficulties, shortages of supplies of materials or parts for products, breakdowns of equipment, machinery or equipment at KPSG’s plant, weather, floods, scheduling conflicts, riot, civil unrest, war, acts of terrorism, fire, delay, or defaults of common carriers, delays, failure or curtailment in KPSG’s usual sources of supply, government action or inaction, or without limiting the foregoing, any other delays beyond KPSG’s reasonable control. While KPSG will use commercially reasonable efforts to inform Buyer of any substantial delays, in no event shall KPSG be liable for any losses, costs or damages (including consequential or other incidental damages) arising from and failure or delay in filling orders, making shipments or delivery of products. KPSG shall have the right, at its option, upon the occurrence any of such delays to delay, suspend or cancel any order or contract for sale of products or any part thereof without any resulting liability. Payment for products delivered to Buyer shall be due from Buyer regardless of dispute or controversies relating to any delay in delivery or nondelivery of other products.
KPSG shall not be responsible for consequences of errors, omissions or neglect in production or delivery. Except with respect to the limited warranty set forth above, KPSG shall not be liable on account of any imperfections, deviations from specifications or standard tolerances or other defect, impairing the quality, value, or suitability for any purpose, of any products sold hereunder, whether caused by KPSG negligence or otherwise. In no event shall KPSG be liable for consequential, special, or contingent damages, or for any other claim or demand whatsoever, other than as provided for in the limited warranty. Buyer assumes all risk of loss, damage or delay incident to the furnishing of any products by KPSG or the utilization thereof, except to the extent expressly provided above. Buyer shall fully specify all claimed defects or nonconformity by written notice to KPSG promptly after Buyer’s receipt of delivery of products (and in any event no later than 10 days following delivery), and KPSG shall have a reasonably opportunity to investigate such claims. Products claimed to be defective shall not be returned without KPSG‘s prior written consent, and then only upon KPSG’s instructions and at Buyer’s expense.
The waiver by KPSG of any term, provision or condition herein stated shall not be construed to be a waiver of any other term, condition, or provision hereof, nor shall such waiver be deemed a waiver of a subsequent breach of the same term, condition, or provision, nor shall it be deemed a waiver of any condition in any subsequent order. Buyer may not cancel or modify any order, or make any changes in specifications, without the express written consent of KPSG given in its sole and absolute discretion. KPSG may modify, change or amend these Terms and Conditions upon 30-days’ notice to Buyer. There are no oral understandings, representations or agreements which are not fully expressed in these Terms and Conditions, and any oral or prior agreements between KPSG and Buyer are superseded by these Terms and Conditions, and by any specifically related writings between the parties. Any cancellation of an order which may be given by KPSG following the request of Buyer will be conditioned upon Buyer making immediate payment to KPSG for all: (a) work completed prior to cancellation at the unit sale price; (b) work in progress on the basis of percentage completion thereof times the unit sales price; and (c) raw materials, unamortized tooling, engineering and other cancellation charges incurred by KPSG, plus handling and overhead charges. All cancellation charges are to be determined by KPSG at the time of cancellation. Should any part of these Terms and Conditions be declared invalid, then the rest of these Terms and Conditions shall not be affected and shall remain in full force and effect as if made without the invalid portion.
ATTORNEYS’ FEES, GOVERNING LAW AND VENUE
Should any dispute arise between KPSG and Buyer with respect to the subject matter hereof, whether sounding in contract or tort, the prevailing party in any court proceeding shall be entitled to an award for all reasonable attorney’s fees and related costs of the prevailing party in such proceedings. These Terms and Conditions shall be governed by the laws of the State of Texas, without regard to the conflicts of law principles of said state, and all claims and disputes between the parties, regardless of whether they are contract claims or tort claims, shall be subject to the jurisdiction of the courts of the State of Texas. Venue of any lawsuit (State or Federal) filed by or against KPSG shall be Tarrant County, Texas, which shall be the exclusive venue for the prosecution of any and all claims against KPSG.