KPS GLOBAL, LLC
(including subsidiaries and affiliates)
TERMS AND CONDITIONS FOR SALE
(Effective October 2021)
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.