GENERAL. The Standard Terms and Conditions as set forth herein shall apply to all sales and proposals of sales between Buyer and Kilo Dealer (“Kilo Dealer” or “Seller”) and shall be deemed incorporated into any order submitted to Seller or any invoice provided by Seller.
PAYMENT. The applicable currency for all payments is the United States dollar. Seller shall invoice Buyer for each shipment. Overdue invoices shall bear interest at the rate of 18% per annum or the maximum interest rate permitted by law. If Seller undertakes collection or enforcement efforts, Buyer shall be liable for all costs thereof, including attorneys’ fees. If Buyer is in arrears on any invoice, Seller may, on notice to Buyer, apply any deposit thereto and withhold further delivery until the deposit and all arrearages are brought current. Buyer grants to Seller a security interest in the goods pursuant to the Uniform Commercial Code and agrees that the Seller may file a notice of such security interest with any and all appropriate authorities, including prior to delivery of the goods.
PAYMENT OF TAXES. Buyer agrees to pay all sales taxes, tariffs, and other governmental charges of every description that arise as a result of this sale.
TITLE/RISK OF LOSS. Title to and risk of loss of the goods shall pass to the Buyer upon delivery F.O.B. at the Seller’s place of business to an agent of the Buyer, including a common carrier chosen by the Seller and notwithstanding any prepayment allowance of freight by the Seller. Any shipment insurance will be at Buyer’s expense unless otherwise specified.
DELIVERY. Seller will arrange for delivery to the address provided by Buyer through the carrier chosen by Seller, unless otherwise agreed in a signed writing.
PRODUCT STANDARDS. The goods shall comply with all normal industry standards. Products and goods furnished shall be newly manufactured products but may contain components that have been previously used in other product units. Any such previously used components have been disassembled, reprocessed and reassembled, as appropriate, and meet or excel the Seller’s specification for newly manufactured components.
RETURN POLICY AND INSPECTION/ACCEPTANCE. Kilo Dealer does not accept returns and does not provide refunds unless Kilo Dealer’s Dissatisfaction Return Agreement has been agreed to and signed. Subject to the terms and conditions of the Dissatisfaction Return Agreement (when applicable), the Buyer, upon receiving possession of the goods, shall have five business days to inspect the goods to determine if the goods conform to industry standards. If the Buyer, in good faith, determines that all or a portion of the goods are non-conforming, the Buyer may return the goods to the Seller at Buyer’s cost for shipping. The Seller will have 60 days from the return of the goods to remedy such defects.
WARRANTIES. Seller warrants that the goods are free from defects in material and workmanship and comply with industry standards. No other warranty, express or implied, is made, and none shall be imputed or presumed, including without limitation warranties of merchantability, fitness for a particular purpose and/or infringement of third party rights.
LIMITATION OF LIABILITY. Kilo Dealer SHALL IN NO EVENT, REGARDLESS OF THE FORM OF ACTION, BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY NATURE RELATING TO THE GOODS OR SERVICES, EVEN IF Kilo Dealer HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BUYER EXPRESSLY WAIVES SUCH CLAIMS.
BUYER INDEMNITY. Buyer shall indemnify and hold harmless Seller, its officers, directors, shareholders, employees, subsidiaries, parents, affiliates and insurers from and against any and all liabilities, damages, losses, claims, lawsuits, including costs and expenses in connection therewith, for death or injury to any persons or loss of any property whatsoever, caused in any manner by Buyer’s possession, use or operation of the products.
SUBSTITUTIONS AND MODIFICATIONS. Seller shall have the right to make substitutions and modifications of the specifications of the goods, provided that such substitutions or modification will not materially affect overall product performance.
DEFAULT. The occurrence of any of the following shall constitute a material default: The failure to make a required payment when due.
The insolvency or bankruptcy of the Buyer.
The subjection of any of the Buyer’s property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
REMEDIES UPON DEFAULT. In addition to any and all other rights available according to law, if either party defaults by failing to substantially perform any material provision, term or condition (including without limitation the failure to make a monetary payment when due), the other party may elect to cancel the sale if the default is not cured within 30 days after providing written notice to the defaulting party. The notice shall describe with sufficient detail the nature of the default.
FORCE MAJEURE. Seller may, without liability, delay performance or cancel the sale on account of unforeseeable, unavoidable and serious events or other circumstances beyond its control, including, but not limited to: acts of God, supplier delay or failure of source of supply, natural and manmade disasters, storms or other similar occurrences, fires, explosions, vandalism, sabotage, strikes, political or civil unrest, protests, labor strikes, riots, wars (whether or not an actual declaration thereof is made or not), terrorism, embargo or casualty.
SAFETY. Buyer shall, at its own cost and expense, supply and maintain all safety equipment, tools and other items necessary to enable Buyer’s employees and representatives to safely operate any Kilo Dealer machines. This includes, but is not limited to, safety glasses, maintenance of long or loose clothing, maintenance of long or loose hair, ear plugs, gloves, boots, etc.). Buyer further agrees that Kilo Dealer’s machines will not be operated under the influence of a control substance. Buyer must strictly comply with all instructions.
COMPLIANCE WITH LAWS. Buyer agrees to comply with all applicable local, state and federal laws, regulations or orders pertaining to all sales, including all import and export laws of the United States of America and any applicable foreign jurisdiction. Buyer must pay all fines or penalties levied by a governmental entity and assessed against Buyer in a timely manner. If Buyer discovers any discrepancy or inconsistency between these Standard Terms and Conditions and any law, ordinance, statute, rule, regulation, order or decree, Buyer shall report the same immediately in writing to Kilo Dealer for disposition.
AUDIT. Seller does not agree to any audit as a result of Buyer’s order.
NOTICES. Any notice or communication required or permitted shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other. The notice shall be deemed received when delivered or signed by the receiving Party.
ENTIRE AGREEMENT. These Standard Terms and Conditions represent the complete agreement between the Seller and the Buyer, unless Kilo Dealer’s Dissatisfaction Agreement applies. Buyer acknowledges that no other agreement, promise, representation, statement or understanding, whether oral or written, exists between Seller and Buyer that varies in any manner the requirement stated herein. These Standard Terms and Conditions supersede any prior oral or written agreement. Any terms or conditions stated by Buyer in accepting or acknowledging the sale that are in conflict with, different from, or in addition to the terms and conditions are objected to and rejected and shall not become part of any binding agreement unless separately and expressly accepted in writing by Kilo Dealer.
BINDING EFFECT. Except as otherwise expressly provided, all provisions of these Standard Terms and Conditions shall be binding upon and shall inure to the benefit of the parties, their legal representatives, successors and assigns.
MODIFICATION. The Standard Terms and Conditions cannot be modified, supplemented, or amended by Buyer unless Seller agrees in advance through a signed writing by an authorized representative of Kilo Dealer. Oral modifications are not permitted.
ASSIGNMENT. Buyer may not delegate, assign, sublet, or transfer its duties or interest in this Agreement without the written consent of Seller. Any attempt at any such assignment or transfer shall be null and void. The Standard Terms and Conditions are not enforceable by any third party.
GOVERNING LAW, JURISDICTION, VENUE. The validity, performance and construction of these Standard Terms and Conditions shall be governed by the laws of the State of Colorado, subject to its conflicts of laws principles. Any action brought by Buyer against Seller arising out of these Standard Terms and Conditions or Buyer’s purchase and use of the Products must be commenced within one (1) year after such action accrues and in no event later than two (2) years after the date of shipment of such products. In connection with any suit or other action arising between the parties, each of the parties consents and submits to the exclusive jurisdiction of the state and federal courts located in Denver or Broomfield Counties and consents and waives any objections to the venue of such action or proceeding such courts.
WAIVER OF CONTRACTUAL RIGHTS. Seller’s failure to promptly enforce any term, provision, covenant or condition shall not be deemed as a waiver or limitation of Seller’s right to subsequently enforce and compel strict compliance with every term or condition.
RELATIONSHIP OF THE PARTIES. Nothing in these Standard Terms and Conditions, or on the face of any Invoice or other document provided by Kilo Dealer, shall be deemed to imply or create any relationship of agency, partnership, joint venture, employment or otherwise.
AMBIGIOUS PROVISIONS. The parties agree that they have had meaningful opportunity to negotiate and amend the Standard Terms and Conditions contained herein. Therefore, doubtful or ambiguous provisions, if any, shall not be construed against Kilo Dealer. The rule commonly referred to as Fortius Contra Proferentum shall not be applied or any interpretation thereof.
SEVERABILITY. Any term or condition which is invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be ineffective to the extent of such invalid or unenforceability without rending invalid or unenforceable the remaining terms and provisions in any other jurisdiction. If any term or condition is so broad as to be unenforceable, the provision shall be interpreted to be only so broad as is enforceable.
NONDISCLOSURE and CONFIDENTIALITY. Buyer agrees not to divulge to any third parties, without the prior signed written consent of Seller, any information relating to any sale that a prudent business person would consider sensitive or which has been designated by Kilo Dealer as proprietary or confidential.