2
RTB SERIES CABLE REEL MANUAL
KH200-02619_REV-A
KH Industries - Terms and Conditions of Sale
1.
TERMS
AND
CONDITIONS
OF
CONTRACT.
Except
where
otherwise
provided
in
a
written
agreement duly executed by an authorized signatory
of K & H Industries, Inc. (“KH”), all goods and services supplied by KH
pursuant to the Confirmation of Order overleaf and these terms and
conditions (the “Goods”) are provided subject to the details set out in
the said Confirmation of Order and to the terms and conditions set forth
herein. KH’s ACCEPTANCE OF AN ORDER IS EXPRESSLY CONDITIONED
UPON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS, AND BUYER’S
ACCEPTANCE OF GOODS HEREUNDER SHALL BE DEEMED AN ACCEPTANCE
OF THESE TERMS AND CONDITIONS. KH specifically rejects any terms
and conditions in Buyer’s order or in any other document from
Buyer that in any way conflict with, reduce or affect these terms and
conditions.
2. PRICES
.
Unless otherwise agreed in writing, all prices are quoted
F.O.B. at KH’s premises in Hamburg, New York, USA. All price quotes by
KH will remain valid for thirty (30) days. Thereafter, prices are subject
to change without notice to Buyer. Typographic, clerical and manifest
errors in any offer are subject to correction by KH at any time. The
minimum billing per order is $100 plus freight charges, orders that do
not meet this minimum will be subject to a $25 service charge.
3. PAYMENT TERMS
.
Payment for all Goods shall be made in U.S.
funds and prior to shipment (either by cash, banker’s draft, cashier’s
check, check drawn on good funds, telegraphic transfer or approved
credit card) or, at the sole discretion of KH, C.O.D., unless Buyer has
applied for and been granted a line of credit by KH, in which case
purchases can be made up to approved credit limits with payment
therefore due net 30 days. Late payments shall be charged interest at
the rate of 1.5% per month. KH is entitled hereunder to delay shipment
until payment monies have cleared (e.g. check has become final; credit
card charge has been authorized). Credit terms are subject to change
or withdrawal at any time at KH’s sole discretion, regardless of prior
credit arrangements. KH reserves the right to require current financial
information from any buyer with an open account as a condition of the
continued extension of credit. Buyer shall promptly reimburse KH in
respect of KH’s costs, including reasonable attorneys’ fees, incurred in
the collection of any monies owed to KH by Buyer. For orders invoiced
or shipped outside the United States, KH will require a confirmed,
irrevoCord letter of credit, payable at sight in United States funds,
advised and payable on an acceptable US bank. Buyer shall be solely
responsible for procuring any and all necessary export, import and/or
other permits. Buyer’s order shall constitute a representation that Buyer
is solvent, and KH is relying upon such representation. If KH at any time
reasonably believes that the Buyer is insolvent or that the Buyer’s credit
is impaired, Buyer shall be in material breach thereof and hereof and
KH may, without liability to Buyer, withhold performance hereunder,
change the payment terms and/or repossess Goods delivered.
4. ADDITIONAL COSTS & TAXES
.
All prices and quotations are
exclusive of sales, use, excise, duty, VAT and all similar taxes and levies.
All such charges shall be for the account of Buyer and, if not included
in an original invoice, may be invoiced or added to Buyer’s credit card
payment, if any, by KH at a later date.
5. CHANGES; CANCELLATION OF ORDER
.
If Buyer cancels or
changes the order, or any part thereof, for any reason, Buyer agrees
to pay cancellation charges for all costs incurred by KH due to such
cancellation, including without limitation, costs incurred by KH in the
design, development or manufacture of special, custom-made or
custom-designed Goods, or Goods altered at the request of Buyer [plus
related profit, as reasonably determined by KH.] The costs shall include
commitments made by KH to third parties for labor or materials for use in
completing such order. KH’s determination of cancellation charges shall
be final and conclusive.
6. SHIPPING
.
Title in Goods and risk of loss or damage thereto shall
pass to Buyer upon delivery thereof by KH to the carrier at FOB point.
Goods shall be shipped in accordance with the information set out in
the Confirmation of Order overleaf. Unless instructed otherwise by
Buyer, KH may ship by any reasonable manner and routing. All shipping
costs shall be for the account of Buyer. All shipments shall be insured
for their full replacement value and all such insurance shall be for the
account of Buyer. All orders are subject to KH’s current shipping and
handling charges. KH shall not be liable or otherwise responsible for
defaults or delays in delivery by carrier. Shipping dates set out on the
Confirmation of Order are approximations only, subject to, inter alia,
factory schedules and inventory. If any shipment of Goods is delayed
due to any act or omission of Buyer, KH may charge Buyer reasonable
storage fees in relation thereto, including without limitation, storage
costs, insurance costs and cost of money. Unless otherwise agreed by
KH in writing, KH, in its sole discretion, may make partial shipments of
any order, for which pro rata payments shall be due and payable as
indicated on the invoice issued pursuant thereto. KH reserves the right
not to ship to Buyer if Buyer’s account is overdue.
7. ACCEPTANCE OF GOODS
.
Buyer acknowledges that it has a duty
to inspect Goods immediately upon receipt. Goods will be deemed
accepted by Buyer unless notice of lawful rejection has been delivered
in writing to KH within ten (10) business days after receipt thereof. Any
notice of shortage must be delivered in writing to KH within three (3)
business days after receipt thereof by Buyer. Any notice of damage
to Goods must be delivered in writing to KH and the relevant carrier
within three (3) business days after receipt thereof by Buyer.
Authorization from KH must be received by Buyer in writing prior to
the return of any Goods by Buyer hereunder, and Buyer shall be solely
responsible for adequate packing and pre-payment of freight with
respect thereto. For the avoidance of doubt, KH shall not be obligated
to accept any unauthorized return of Goods, any Goods inadequately
packed or Goods for which freight has not been fully pre-paid by Buyer.
8. RETURNED GOODS
.
KH may, at its sole option, agree to accept
unused and merchantable Goods from Buyer, subject always to a re-
stocking charge of 20%. Buyer agrees that it shall not return any Goods
prior to receiving written authorization from KH so to do. Any and all
returned Goods shall be shipped freight pre-paid and risk of damage or
loss shall remain vested in Buyer until the relevant Goods are received,
inspected and accepted by KH. For the avoidance of doubt, KH is not
obligated to accept any returned Goods pursuant to this paragraph.
Custom manufactured Goods are non-cancelable/non-returnable.
9. RE-CONDITION & REPAIR
.
Before shipping any Goods to KH for
repair, Buyer shall contact KH for Return Merchandise Authorization
(RMA) and shipping instructions. With respect to any repairs by KH,
Buyer shall be solely responsible for payment of freight charges,
replacement parts, and labor costs at KH’s then current prices. Any
repairs to any of the Goods performed by Buyer or by third parties
[pre-approved by KH] shall be carried out in strict accordance with the
applicable repair manual(s), if any, published by KH from time to time.
10. LIMITED WARRANTY; EXCLUSION OF OTHER
WARRANTIES; LIMITATION OF REMEDIES; INDEMNITY
.
KH warrants the Goods to be free from defects of materials or
workmanship, under normal and proper use and service, for a warranty
period of one (1) year from the date of shipment (as such date is shown
in KH’s records)(the “Warranty Period”). If any of the Goods proves to
be defective in any material respect within the Warranty Period, such
defective Good(s) shall be promptly returned to KH, F.O.B. KH’s factory,
shipping charges prepaid, by the Buyer, and if the same is determined
by KH to be defective in any material respect and covered by the terms
of the warranty provisions set forth in this Section 10, it will be replaced
or repaired, at the exclusive election of KH, free of charge. If Buyer
believes any of the Goods are defective in any material respect during
the Warranty Period, Buyer shall immediately cease using such Good(s)
and notify KH in writing of such non-conformity or defect, specifying in
reasonable detail the nature thereof.
Notwithstanding the foregoing, KH is not responsible for, and shall have
no obligation to replace or repair any Goods which: (i) have been used,
operated and/or installed other than in strict accordance with KH’s written
instructions and/or policies, if any; (ii) have been installed, operated or
used in an improper, abnormal or inappropriate manner, as reasonably
determined by KH;, (iii) have been damaged due to the negligence of
another party; (iv) have been damaged due to an accident, natural
disaster, extreme weather, or other act of God; (v) have been serviced,
repaired or altered by anyone other than KH or a third party approved by
KH to service or repair the defective or damaged Goods, and provided
further, that all such service, repair and alterations by approved third
parties must be completed in accordance with the applicable repair
manual(s) for the defected or damaged Good, if any; or (vi) have
been used in a manner or for a purpose for which the Goods were not
designed.
No warranty is made with respect to any defects in the Goods due
to plans or instructions supplied to KH by or for Buyer. THE LIMITED
WARRANTY SET FORTH IN THIS SECTION 10 IS MADE AND ACCEPTED
BY BUYER IN LIEU OF ALL OTHER WARRANTIES WITH RESPECT TO THE
GOODS, WHETHER EXPRESS OR IMPLIED, MERCHANTABILITY OR OF
FITNESS FOR A PARTICULAR PURPOSE. THE LIMITED WARRANTY SET
FORTH IN THIS SECTION 10 IS BUYER’S SOLE AND EXCLUSIVE REMEDY
FOR ANY DEFECTS OR DAMAGE TO THE GOODS, AND ALL OTHER
REMEDIES ARE EXPRESSLY DISCLAIMED.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, KH IS NOT RESPONSIBLE
FOR DIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES
RESULTING FROM ANY BREACH OF WARRANTY OR CONDITION OF
THE GOODS, OR UNDER ANY OTHER LEGAL THEORY, INCLUDING BUT
NOT LIMITED TO LOSS OF USE; LOSS OF REVENUE; LOSS OF ACTUAL OR
ANTICIPATED PROFITS (INCLUDING LOSS OF PROFITS ON CONTRACTS);
LOSS OF THE USE OF MONEY; LOSS OF ANTICIPATED SAVINGS; LOSS
OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; OR LOSS
OF REPUTATION.
Buyer acknowledges that the Goods may be used in inherently dangerous
activities and, accordingly, expressly bears the risk of injury damages and
other harm to Buyer, and its employees, contractors, representatives,
and other third parties arising out of use of the Goods in such inherently
dangerous activity(ies). Buyer agrees to indemnify and hold KH harmless
from and against any claims, awards, damages or other costs incurred by
KH, including reasonable attorneys’ fees incurred by KH in connection with
same, arising out of the use of any Good(s) in inherently dangerous
activities.
While KH uses reasonable endeavors to ensure the accuracy and
quality of its publications, sales literature and other printed materials,
from time to time errors might occur in that regard. KH therefore does
not guarantee the accuracy or completeness of any publication or
other informational materials.
11. INTELLECTUAL PROPERTY
.
The purchase by Buyer of any
Goods hereunder does not grant to, convey or confer upon Buyer or
Buyer’s customers, or upon anyone claiming under Buyer, a license or
any other legal interest, express or implied, under any patent right,
trademark, copyright or other intellectual property right, whether
registered or not and whether pending or not, in any jurisdiction, of KH
covering or relating to any of the Goods or any combination or process
in which any of the Goods might be or are used.
Buyer understands and agrees that KH does not warrant that the
Goods are free of claims of patent, trademark, trade secret or copyright
infringement by a third party. KH hereby disclaims any such warranties
or indemnification for such infringement(s) or intellectual property
rights. Any rights not expressly granted herein are reserved by KH.
12. FORCE MAJEURE.
KH shall not be liable for any failure to perform
under the Confirmation of Order or these terms and conditions if it is
unable to obtain parts or supplies at reasonable prices or through
usual and regular sources on a timely basis, or due to any interruption
of transportation, government regulation, labor disputes, strikes, riots,
war, civil commotion, fire, flood, accident, storm, or act of God, or other
cause beyond KH’s reasonable control that renders it impractical for KH
to perform.
13. ARBITRATION.
Buyer agrees that the laws of the State of New
York, without regard to principles of conflict of laws, shall govern
the agreement between KH and Buyer with respect to all sales of
Goods, and any dispute of any sort that may arise in connection
with these terms and conditions and the sale of Goods to Buyer by
KH (a “Dispute”). All Disputes shall be submitted to final and binding
arbitration, the proceedings of which shall be located in Buffalo, New
York, and conducted in accordance with the Commercial Arbitration
Rules of the American Arbitration Association (the “Rules”) by one
arbitrator appointed in accordance with the Rules. Notwithstanding
the foregoing, Buyer acknowledges that KH may, in its sole discretion,
elect to commence an action in a court of competent jurisdiction
located in Buffalo, New York (without resorting to commencing
arbitration proceedings as specified above) to enforce Buyer’s failure
to timely pay any and all amounts due to KH for the purchase of Goods
(a “Financial Default”). In connection with the foregoing, in the event
KH elects to commences an action against Buyer in connection with
a Financial Default, Buyer specifically acknowledges and irrevocably
consents to the jurisdiction of a court of competent jurisdiction located
in Buffalo, New York, waives objection to the laying of venue of any
such action or other legal proceeding in Buffalo, New York, waives
personal service of process in such action, and consents to the making
of service of process in each such action by registered mail, directed by
KH to the last known address of Buyer showing in the records for KH,
service to be deemed complete five (5) days after the mailing thereof.
Other than a Financial Default (in which case KH may, in its discretion,
elect to commence a lawsuit against Buyer in a court of competent
jurisdiction located in Buffalo, New York), all Disputes shall be resolved
exclusively by arbitration. Any award made by the arbitrator shall be
final, binding and conclusive on the parties for all purposes. Any fees
or charges of the arbitration and any cost of arbitration, including
the cost of personal attorneys of each participant, shall be the sole
responsibility of each party to the arbitration; provided, however, in
the event of a Financial Default, KH may recover all costs and expenses
incurred by it (including its attorney fees) in seeking payment or
enforcement of these Terms and Conditions as a result of the Financial
Default, including whether KH commences an action or initiates
arbitration proceedings.
14. GENERAL.
This agreement will be governed by and construed in
accordance with the laws of the State of New York. The application of
the United Nations Convention for the International Sale of Goods, if it
would otherwise apply, is hereby expressly excluded. These terms and
conditions and the Confirmation of Order overleaf set out the entire
agreement between KH and Buyer relating to the Goods and supersede
any prior agreement, arrangement, purchase order, correspondence,
communication, advertising or representation concerning the Goods.
This agreement may not be modified or amended except by a written
instrument duly executed by authorized signatories of the parties. If
any provision of this agreement is held to be invalid or unenforceable,
that provision is to be given effect to the maximum extent permissible
and the remaining provisions of this agreement will remain in full force
and effect. Notices hereunder shall be delivered in writing by registered
mail to the addresses of the parties overleaf, or as notified to the other
party from time to time. If any term, provision, or covenant of these
terms and conditions is held to be invalid void, or unenforceable, the
remainder of these terms and conditions shall remain in full force and
effect and shall in no way be affected, impaired or invalidated. Each
shipment of Goods shall be considered a separate transaction between
Buyer and KH. In the event of any default by Buyer, KH may decline to
make further shipments. If KH elects to continue to make shipments of
Goods subsequently ordered by Buyer after a default, such subsequent
shipments shall not constitute a waiver of default by KH or in any way
affect its legal remedies for any such default.
