These are the terms and conditions for the purchase of goods (“Goods”) from Endurance Tool, LLC, an Ohio limited liability company d/b/a Kett Tool Company and its subsidiaries and affiliates (“Kett Tool”) by any Purchaser (“Purchaser”). No additional terms, different terms, exclusions or modifications shall be effective against Kett Tool without the express written consent of an authorized officer of Kett Tool. Any attempt by Purchaser to add, exclude or modify terms shall be deemed to be material, is objected to and will be of no effect. Any and all contracts between Kett Tool and Purchaser shall be deemed to include these terms (all contracts collectively, the “Agreement”). Purchaser agrees to be subject to these terms and conditions in their entirety upon award of a purchase order to Kett Tool.
Acceptance of Purchase Orders
All purchase orders must be commitments with a definitive price and quantity. No purchase order, whether or not submitted in response to a quotation by Kett Tool, shall be binding until acceptance by Kett Tool. All orders are subject to credit approval by Kett Tool, rejection or modification due to required delivery date or raw material availability, and minimum order quantities. No lead times are guaranteed unless otherwise stated in writing by Kett Tool. Prices in quotations are effective for 30 days unless otherwise stated in writing by Kett Tool. For existing purchase orders, Kett Tool may change its prices at any time upon written notice, unless otherwise agreed to in writing. Unless otherwise stated in writing, quoted prices do not include: (i) freight; (ii) warehousing and handling fees; (iii) upcharges; (iv) any applicable excise, value-added, sales, use or similar taxes; or (v) insurance.
Shipping and Delivery
Any dates quoted by Kett Tool for delivery of any products are estimates only, and unless stated in writing, Kett Tool will not be liable for any charges resulting from either late or early delivery of products from the date quoted regardless of the cause. Unless otherwise specifically agreed by the parties in writing, all shipments are F.O.B. Kett Tool’s production factory for shipments from any of Kett Tool’s locations and FCA (Incoterms 2000) Kett Tool’s factory. Goods in transit are at Purchaser’s risk. Purchaser shall be fully responsible to pay directly or to reimburse Kett Tool for carrier detention charges incurred as a result of delays not caused by Kett Tool. If purchase prices include a freight component, prices will be adjusted, with notice, in the event of a change in freight rates or the imposition of any surcharge.
Payment terms are net 30 days from date of invoice in the currency designated by Kett Tool, unless otherwise stated in writing. All terms are based on credit approval. Any sales not on credit must be paid in advance by credit card. If Purchaser purchases Goods through any intermediary (“Intermediary”), the term “Purchaser” herein shall include such Intermediary as necessary. Purchaser agrees that Kett Tool shall be entitled to make credit decisions concerning sales to the Intermediary in Kett Tool’s discretion, including a refusal to sell. Kett Tool, as necessary to protect its interest in receiving payment for Goods, shall be a third party beneficiary of any purchase contract between the Intermediary and Purchaser. If Kett Tool sells Goods to the Intermediary as an accommodation to Purchaser, Purchaser shall remain liable to Kett Tool for the Goods to the extent that the Intermediary fails or refuses to pay Kett Tool and Purchaser waives all suretyship defenses. If Purchaser renders payment to Kett Tool in a manner purported to serve as payment in full of an invoice, Kett Tool’s acceptance of such payment shall not act as an accord and satisfaction and shall be without prejudice to Kett Tool’s right to pursue additional payment of such invoice. Purchaser shall not have a right of set off unless Kett Tool agrees in writing. All indebtedness outstanding after the due date shall be subject to a late fee of 18% annually, unless such rate exceeds the highest rate permitted by law, in which event the rate shall be highest permissible by law. Purchaser agrees to pay Kett Tool's legal fees, expenses and other costs in the event Kett Tool pursues collection or other enforcement efforts. Kett Tool shall have the right to terminate this sale, to stop Goods in transit, and to suspend further performance under every Agreement in the event Purchaser fails to make any payment when due. Purchaser agrees that each P.O. constitutes a representation that it is both solvent and not a debtor in any insolvency, bankruptcy, or restructuring proceeding. In the event of insolvency, Kett Tool’s invoice shall constitute a demand for reclamation of the Goods identified on the invoice under UCC section 2-702 and United States Bankruptcy Code section 546(c). Purchaser agrees to promptly notify Kett Tool in case of insolvency, waives any defenses to Kett Tool’s right of reclamation to the Goods identified in Kett Tool’s invoice and shall promptly return possession of such Goods to Kett Tool.
Prices of Goods are exclusive of all applicable federal, state, local and VAT taxes. Purchaser agrees to pay (or reimburse Kett Tool) for all taxes however designated, arising out of the sale imposed under the authority of any federal, state, local or foreign taxing jurisdiction, upon receipt of a Sales invoice for the amount of the tax.
Purchaser agrees to promptly inspect all Goods as received, and any rejection or claim based on nonconformity must be made in writing no later than 30 days after delivery for non conformities reasonably discoverable on inspection, and no later than 90 days after delivery for latent non conformities. If Purchaser fails to give such written notice within the applicable time period, the Goods will be deemed accepted, will not be subject to revocation of acceptance, and Purchaser will be deemed to have absolutely waived any claim for defects. If Purchaser gives written notice within the applicable time period, Purchaser will give Kett Tool reasonable opportunities to inspect and test the Goods that are the basis for any claim. As a condition for replacement, refund or credit, Kett Tool will be entitled to the return of the nonconforming Goods in the same condition as when they were received. No claim against Kett Tool shall be made or allowed for Goods returned without Kett Tool's prior written consent. All claims for loss or damage during transit must be made against the carrier by notation on the freight bill or delivery receipt.
All returns must be approved, in advance, in writing in the form of an authorization number. Shipments without an approved authorization number will be refused upon delivery. For returned stock Goods, the Goods must be: (i) in new condition (no damage or wear); (ii) sold within the past 60 days; (iii) shipped at Purchaser’s expense; and (iv) subject to a 20% restocking charge. Custom goods can only be returned for credit or inspection with prior approval from Kett Tool in the form of an authorization number; credit determination will be made after verification of quantity received. No credit will be given for Goods claimed to be defective that were consumed by Purchaser and commercially sold or otherwise used in commercial applications. Return authorizations can be issued by Kett Tool’s customer service representative.
All nonpublic information conveyed by Kett Tool regarding Kett Tool’s prices, costs, discounts, inventions, planned and existing products (which may also be subject to Kett Tool’s intellectual property rights), packaging, customers and distributors as well as information regarding Kett Tool’s business or finances and production methods, know-how and concepts used by Kett Tool, is proprietary and confidential (“Confidential Information”). Purchaser agrees that it will not disclose any such Confidential Information to others and will advise its employees and agents of the secrecy of such Confidential Information and take all other steps necessary to protect the Confidential Information. Purchaser shall not copy, decompile, reverse engineer or otherwise duplicate the Goods or any part of any Goods or copy, misuse or misappropriate any Confidential Information belonging to Kett Tool. Kett Tool’s logo and brand names belong to Kett Tool and are protected by trademark and other laws; Purchaser agrees that it will not use or permit any other person to use such logo or brand names without Kett Tool’s prior written consent which may be withheld for any reason. Kett Tool shall be entitled to all legal and equitable rights and remedies available under state and federal law and otherwise to protect its Confidential Information, trademarks, trade secrets and intellectual property of all kinds (all of which may be referred to hereafter as “IP”). Confidential Information shall not include information that: (i) was known to Purchaser before receipt from Kett Tool; (ii) is or becomes publicly available through no fault of Purchaser; (iii) is rightfully received by Purchaser from a third person not bound by a duty of confidentiality; or (iv) is disclosed by Purchaser with Kett Tool’s prior written approval.
Limited Warranty/Limitation of Damages
Goods are warranted to: (i) be substantially free from defects in material and workmanship when sold subject to all time limitations and (ii) comply with Kett Tool’s published specifications within stated tolerances, but it shall be Purchaser’s responsibility to assure that such specifications and tolerances will fulfill Purchaser’s requirements regardless of whether Kett Tool has notice of such requirements. KETT TOOL MAKES THIS LIMITED WARRANTY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. THERE ARE NO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE OR NON INFRINGEMENT OR OTHERWISE ASIDE FROM THE LIMITED WARRANTY ABOVE AND THE DESCRIPTION OF THE GOODS. Kett Tool's liability for breach of contract, breach of warranty, strict liability, product liability, recall liability, negligence or any other cause or theory is limited to replacement of defective goods or refund of the purchase price upon timely receipt of notice regardless of whether Kett Tool has or has not been advised of the possibility of such damages or other damages. Under no circumstances will Kett Tool be responsible for loss of use, lost profits, interruption of business, cover or for any special, incidental or consequential damages regardless of cause. This limited warranty is void with regard to any goods altered, misused or subject to neglect or accident. Kett Tool shall not be responsible to Purchaser under this limited warranty for fit or other compatibility problems when the goods are used with products of another manufacturer. All oral and written advice provided by Kett Tool relating to the goods is subject to the foregoing disclaimer of warranties and limitation of damages provision.
Purchaser shall hold harmless and indemnify Kett Tool from and against any expenses, claims or causes of action (including Kett Tool’s attorneys fees and expenses) as a result of (i) death, bodily injury, personal injury or property damage arising out of Purchaser’s marketing, advertising, sale, distribution or use of the goods (including any claims or causes of action based on items for which or with which the goods are used) except to the extent caused solely by Kett Tool's gross negligence; (ii) Purchaser’s violation of any applicable law or standard in the marketing, advertising, labeling (or improper or inadequate labeling), import, export, sale, distribution or use of the goods or the items with which or for which the goods are used; (iii) any alleged patent, trademark, trade dress, copyright, trade secret or other IP infringement based on Purchaser's samples, mock-ups or specifications; (iv) any illegal, false, misleading or deceptive information that Purchaser instructs Kett Tool to print on or otherwise apply to or use with the goods; and (v) any environmental pollution, contamination or damage (including, in addition to the above, fines and penalties to the extent allowed by law, clean-up and other remedial or containment costs and legal, technical or similar fees and expenses) arising out of such pollution, contamination or damage to the environment or natural resources occurring in connection with Purchaser’s use of any goods regardless of cause, including Purchaser’s negligence, strict liability, or other act or omission. Purchaser warrants that custom goods ordered based on Purchaser's samples, mockups or specifications do not infringe any trade dress, copyright, trade secret or other IP rights of others or any letters patent granted by any country. Kett Tool reserves the right (but shall have no duty) to discontinue deliveries of any goods, the manufacture, sale or use of which might: (i) infringe any trade dress, copyright, trade secret, patent or other IP rights; or (ii) violate any foreign, federal, state or local law, regulation or order.
If Kett Tool is prevented from or delayed in performing by a force majeure event, it shall not be liable or responsible for its failure to timely perform, but shall perform as soon as possible after the force majeure event ceases. Force majeure includes, but is not limited to, events beyond Kett Tool’s control that affect production or transportation, such as acts of God, acts of war, acts of government, terrorism, riots, labor strikes, labor lockouts, interruption in telecommunication transmissions or product transportation, materials shortages, delays or sudden severe increases in materials prices or other costs, accident, fire, water damage, flood, earthquake, windstorm, other natural disasters or catastrophes, and compliance by Kett Tool with any order, action, direction or request of any governmental officer, department, agency, authority, or committee thereof. A force majeure event shall also include Kett Tool’s suspension of operation or closure of a facility that produces Goods because the operation of, or Goods from, that facility fails to comply with, or becomes uneconomical because of compliance with, any applicable law or governmental regulation, order, decree or request. This provision is intended to be interpreted to expand rather than limit the application of the Uniform Commercial Code (“UCC”) section 2-615, as adopted by the law of the applicable jurisdiction set forth in the governing law provision in the Agreement or if there is no such agreement or provision, as adopted in the State of Ohio.
Compliance with Laws
Purchaser represents, warrants, and covenants that Purchaser is not an entity (i) whose property or interest in property is blocked or subject to blocking pursuant any applicable law, (ii) who engages in any dealings or transactions prohibited by such laws, or is otherwise associated with any such Person in any manner violative of such laws, or (iii) who is on the list of Specially Designated Nationals and Blocked Persons or is otherwise subject to the limitations or prohibitions under any other U.S. Department of Treasury's Office of Foreign Assets Control regulation or executive order. Further, Purchaser is in compliance with the USA PATRIOT Act and all similar laws and regulations. Further, Purchaser acknowledges that certain transactions under this Agreement may be subject to import and export controls under the laws and regulations of the United States and other countries. Without limiting the generality of the foregoing, Purchaser will comply with all such import and export related laws and regulations.
The Agreement shall be interpreted under the laws of the State of Ohio and shall not be governed in whole or in part by the United Nations Convention on Contracts for the International Sale of Goods. As allowed by the United Nations Convention on Contracts for the International Sale of Goods, the parties specifically disclaim its application. Purchaser consents to the jurisdiction of state and federal courts in Ohio and the venue of Hamilton County to resolve any dispute between the parties; provided, however, that Kett Tool may institute an action for relief in a different jurisdiction at the site of an alleged wrong. Kett Tool may terminate the Agreement immediately on Purchaser’s bankruptcy or other insolvency. The Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns but is non-assignable by Purchaser without Kett Tool’s express written consent. Nothing contained in the Agreement shall be construed to make the parties hereto partners or joint venturers. Any waiver(s) of Purchaser’s noncompliance with these terms shall not be binding on Kett Tool with respect to any continuing or subsequent noncompliance. Kett Tool reserves the right to display samples of any Goods it produces, decorated or undecorated. To the extent necessary to preserve Kett Tool’s rights, all terms of the Agreement shall survive acceptance of and payment for Goods sold as well as cancellation, termination or expiration of the Agreement. There shall be no third party beneficiaries of the Agreement unless the parties specifically identify such beneficiaries in writing. Section headings are inserted for convenience and do not add to or detract from the Agreement. The Agreement may be amended or altered only in a written document executed by both parties. Kett Tool shall not be contractually bound to any provision except as agreed in a writing executed by an authorized officer of Kett Tool. The invalidity of any provision of the Agreement shall not affect the force or validity of the remaining provisions. In the event that Kett Tool has possession of a mold or other equipment owned by Purchaser, Kett Tool’s maintenance and repair obligations shall be limited to those to which it has agreed in writing. Kett Tool shall be entitled to recover its reasonable attorneys fees and expenses in the event it is the prevailing party in any litigation to enforce this Agreement.