KPS GLOBAL, LLC
(including subsidiaries and affiliates)
TERMS AND CONDITIONS FOR SALE
(Effective April 2023)
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 herein, 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 are subject to approval of KPSG’s Credit Department. Acceptance by KPSG of an order for products issued by Buyer is expressly conditioned upon Buyer’s assent to these Terms and Conditions. Any preprinted, standard, electronic or posted terms and conditions, including those in any subsequent purchase orders or in any acknowledgement or acceptance of a purchase order by KPSG (including terms where acquiescence requires only a mouse click) shall not in any way amend, modify or otherwise add any provision to these Terms and Conditions, except as otherwise expressly agreed by KPSG in writing.
PRICE AND PAYMENT TERMS
TITLE AND RISK OF LOSS
Title and risk of loss for all products shall transfer to Buyer upon pick-up by the designated carrier or shipper.
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; (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. The obligation of KPSG under this Limited Warranty is limited to repairing or, at its election, replacing, 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 but not limited to war, terrorism, government restrictions or restraints, strikes, riots, short or reduced supply of parts or raw materials, power outages, labor issues or shortages, fire, flood or acts of God, civil unrest, pandemics, epidemics, quarantines, embargoes, breakdowns of equipment, machinery or equipment at a KPSG’s plant, scheduling conflicts, delays or defaults of common carriers (each a “Force Majeure Event”), 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 Buyer 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. KPSG DOES NOT WARRANT ANY PRODUCTS OR SERVICES PROVIDED BY 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.
To the fullest extent permitted by law, Buyer shall fully indemnify and completely hold harmless KPSG, its officers, directors, employees, affiliates, agents, shareholders, attorneys, insurers and representatives from and against any and all actions, claims, demands, liabilities, damages, losses, costs and expenses, including but not limited to reasonable attorneys’ fees (and any other costs associated with the handling of or defense of any such action or claim of any kind) (collectively, “Claims”) arising from or related to: (a) any negligent action or intentional misconduct on the part of Buyer, or any of its employees, affiliates, subcontractors, invitees or agents which results in death or bodily injury to any person, or any damage to property (whether real or personal), or any workers’ compensation claim including claims associated with unsafe conditions at Buyer’s facility or jobsite; (b) Buyer’s breach of any term or condition herein; (c) products, parts or services (including modification, maintenance, and repair of products or parts) not provided, supplied, approved or authorized by KPSG; and (d) any alleged violation by Buyer of any law, regulation, code or ordinance.
Subject to the foregoing, KPSG agrees to indemnify, defend and hold harmless Buyer and its officers, directors, employees, affiliates, agents, shareholders, attorneys, insurers and representatives from and against Claims arising from or related to: (i) any negligent action or intentional misconduct on the part of KPSG, or any of its employees, affiliates, subcontractors or agents which results in death or bodily injury to any person, or any damage to property (whether real or personal); (ii) KPSG’s breach of the representations and warranties herein; (iii) allegation that a KPSG product infringes or misappropriates a trademark, copyright, trade secret or other intellectual property right of a third party, except to the extent that the infringement alleged is based on Buyer’s intellectual property or is the result of Buyer’s directives; and (iv) any alleged violation by KPSG of any law, regulation, code or ordinance.
KPSG shall own all right, title and interest in and to all KPSG IP. “KPSG IP” shall mean (i) KPSG’s trademarks, logos, copyrights and other intellectual property rights relating to KPSG’s products and services that are owned by KPSG or that are created or developed by KPSG whether or not under the parties’ engagement; and (ii) KPSG’s know-how, technologies, and proprietary methodologies that are owned or developed by KPSG including any improvements, enhancements and derivatives relating to its products. Upon full payment by Buyer, KPSG hereby grants to Buyer a limited, irrevocable, perpetual, non¬-exclusive, worldwide, royalty-free license to use KPSG IP for the strict purpose of using, maintaining, and repairing KPSG products.
DELIVERY AND SHIPMENT; CANCELLATION
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 a Force Majeure Event. 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 non-delivery of other products. 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.
KPSG’s limited warranty set forth above shall govern all products and services it provides to Buyer. 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. In no event shall KPSG’s total liability to Buyer hereunder exceed the greater of: i) the total value of the applicable order giving rise to the event causing the liability or ii) the insurance proceeds paid out by its insurance company for the event causing the liability.
Each party hereby recognizes that it may be necessary to disclose certain proprietary or confidential information to the other party during the course and scope of the relationship, including, but not limited to, information relating to products, specifications, improvements, market strategies, trade secrets, customer lists and other confidential information (collectively, “Confidential Information”). Confidential Information shall also include information which may be acquired from the disclosing party’s employees, subcontractors or consultants, or while on such party’s premises. Each party agrees it will: (a) not disclose Confidential Information of the other party to anyone without such party’s prior written consent, (b) restrict the possession, knowledge and use of Confidential Information to employees who have a need to know, are informed of the nature of the information and have obligations with respect to the Confidential Information, (c) take all reasonable and necessary measures to ensure there are no unauthorized disclosures of such Confidential Information, which measures shall be no less than what receiving party utilizes with respect to its own confidential and proprietary information, and (d) return or destroy all tangible materials containing confidential information promptly following a party’s written request. Notwithstanding the foregoing, the receiving party shall only be required to use commercially reasonable efforts to destroy the disclosing party’s Confidential Information, and shall not be required to destroy Confidential Information archived pursuant to its electronic retention policy. Any such retained Confidential Information shall continue to be governed by the terms herein. Confidential Information ceases to be confidential where, through no breach of duty by any person, it is objectively established that: (i) the information was already known to the receiving party prior to its disclosure by disclosing party and such information was not subject to confidentiality obligations; (ii) the information was received by the receiving party from a third party with valid rights to use and disclose it and the information was not subject to confidentiality obligations; (iii) the information has entered the public domain, through no breach of duty by any person or entity, or (iv) where it is approved in writing for disclosure by the disclosing party. The obligations herein shall survive the termination or expiration of the engagement between the parties until Confidential Information falls under one of the exceptions above. If the parties have entered into a non-disclosure agreement (“NDA”), then the more restrictive terms shall apply.
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. 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. During the term of the parties’ engagement, KPSG will maintain a complete set of documents that it has provided to Buyer (e.g. quotes, invoices, and work orders) for auditing purposes. Sections regarding Payment, Limited Warranty, Indemnity, Claims, Confidentiality, Intellectual Property, and all other provisions which expressly or by their nature or context are intended to survive shall survive termination or expiration of the parties’ engagement. Each party may, without obtaining the prior written consent of other party, assign any of its rights and obligations under these Terms and Conditions to an affiliate or to the surviving legal entity with or into which such party may merge or consolidate or an entity to which the assigning party transfers all, or substantially all, of its business and assets. All other assignments must be agreed by both parties. Nothing in these Terms and Conditions or in the activities contemplated by the parties hereunder shall be deemed to create an agency, partnership, employment or joint venture relationship between the parties or any of their subcontractors or representatives. Neither party shall be responsible for any salary, benefits, or other employee-related expenses including without limitation, holidays, sick days, personal days, health insurance and workers’ compensation, with regard to the other party’s employees, subcontractors or agents.
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 attorneys’ 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.