Buyer Terms and Conditions
MS Manufacturing LLC dba KIHM Metal Technologies Terms & Conditions of Sale
1. General The terms and conditions contained herein, together with any additional or different terms contained in the final, written proposal issued by MS Manufacturing LLC ("KIHM"),and submitted to Buyer, if any (which proposal shall be incorporated herein and control over these terms and conditions to the extent it contains any conflicting terms and conditions), constitute the entire agreement (the “Agreement”) between the parties with respect to the subject sale. Acceptance by KIHM of Buyer's purchase order and Buyer's acceptance of KIHM's proposal is expressly limited to and conditioned upon Buyer's acceptance of these Terms & Conditions of Sale, which may not be changed or waived except in writing signed by KIHM. Any additional, inconsistent or different terms and conditions contained in Buyer's purchase order or other documents supplied by Buyer are hereby expressly rejected. Unless the context otherwise requires, the term "Goods" as used herein shall mean all goods, Goods, parts, and accessories sold to Buyer by KIHM. Unless the context otherwise indicates, the term "Services" as used herein shall mean labor, supervision, repair and project engineering services provided by KIHM. As used herein, the term "Buyer" shall mean only the party issuing the purchase order to KIHM for Goods or Services, regardless of whether or not the Buyer is the end user of the Goods or Services.
2. Payment Terms and Invoices Unless a different payment schedule is agreed to in writing by KIHM, payment terms are net 30 days. Any checks returned for non-sufficient funds and any stopped or reversed payments shall be subject to a fee. Performance schedules are conditional upon receipt of the letter of credit within 30 days of award. Buyer agrees to furnish KIHM with any requested credit information. Buyer’s credit limit will be set at KIHM’s sole discretion and may be modified at any time based upon Buyer’s credit risk as determined by KIHM. In the event that Buyer’s credit risk increases or Buyer fails to pay timely, KIHM may suspend performance and/or require alternate payment methods. Buyer shall notify KIHM of any items disputed in good faith relating to an invoice within 15 days after the invoice date in writing specifying the nature of the disputed item, but in no event is Buyer entitled to withhold or set off any invoiced amounts without KIHM’s prior written approval. In the event it becomes necessary for KIHM to refer Buyer’s account to a third party for collection or for KIHM to take other enforcement action of this Agreement against Buyer, Buyer agrees to pay any and all attorney and arbitrator fees, lien filing fees, collection costs and legal expenses associated therewith incurred by KIHM.
3. Taxes Federal, state, local, value added, sales and use, and other applicable taxes measured on the price of Goods or Services in any legal system by any taxing authority are not included in the price unless otherwise agreed in writing by KIHM.
4. Time Limit All quotations are valid for a period of 30 calendar days, unless otherwise modified in writing by KIHM. If this Agreement is delayed or suspended in whole or in part by Buyer for more than 60 days, pricing shall either be subject to re-negotiation or the Agreement may be deemed cancelled for Buyer’s convenience and subject to Section 13, at KIHM’s sole option.
5. Acceptance Acceptance of Goods occurs at point of Delivery. Acceptance of any Services provided hereunder occurs at completion.
6. Exclusive Remedy Should any failure to conform to the Buyer’s specifications occur, then Buyer shall provide KIHM with prompt written notice identifying the problem, but in no event shall such notice be more than 30 days after discovery of such failure. Provided that Buyer has fulfilled all of its obligations under the Agreement and complied with the procedures set forth in this Section 6, KIHM shall inspect said Goods within 10 business days after receipt of Buyer’s notice. KIHM’s sole obligation, and Buyer’s sole remedy, is for KIHM to correct such nonconformity by, at KIHM’s option: (1) repair or replacement of the nonconforming Goods or parts thereof; or (2) refund the purchase price of the nonconforming Goods or parts thereof; and (3) in the case of nonconforming Services, re-perform the Services or refund the price there for. KIHM will make all arrangements to either transport such Goods to and from KIHM’s repair or factory facility or go to Buyer’s site, at KIHM’s sole option; provided, however, that KIHM shall not be responsible for providing working access to the defect, including disassembly and reassembly of Goods or for transportation costs to and from KIHM's repair or factory facility, all of which shall be at Buyer's risk and expense. If it is determined by KIHM that such failure was not covered, then KIHM will invoice Buyer, and Buyer agrees to pay, for all such inspection and other expenses. No KIHM liability exists for Goods or Services shown to be defective until such time as the Goods and Services have been paid for.
7. Disclaimer THE FOREGOING REMEDIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER CLAIMS OF RELIEF AND WARRANTIES OF QUALITY, PERFORMANCE AND DESIGN, WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY KIHM AND ANY OR ALL SUB-TIERS OF KIHM.
8. Termination No termination by Buyer for default shall be effective unless, within 15 days after receipt by KIHM of Buyer's written notice specifying such default, KIHM fails to initiate and pursue correction of such specified default.
9. Excusable Delays The schedule for Delivery of Goods and performance of Services will be modified for delays resulting from causes beyond KIHM’s reasonable control, including but not limited to, acts of God, war, terrorism, strikes, restrictions of the United States Government or other governments having jurisdiction, delays in transportation, or inability to obtain necessary labor, materials, or manufacturing facilities.
10. Delivery and Risk of Loss or Damage Unless otherwise agreed in writing by KIHM, all shipments are FCA KIHM’s plant with responsibilities as defined in INCOTERMS 2010, and “Delivery” as used herein occurs in accordance with INCOTERMS 2010. Notwithstanding anything to the contrary, all lead times quoted and accepted by KIHM shall be from the date KIHM accepts Buyer’s purchase order. If KIHM agrees in writing to prepay transportation and transit insurance charges for the account of Buyer, then KIHM is entitled to include shipping, handling and any transit insurance charges on its invoice. Buyer shall indemnify, defend and hold KIHM harmless from any claims by freight carriers for Buyer’s failure to pay freight charges. Claims for shortages in or damage to shipment shall be deemed waived unless made in writing and received by KIHM within 10 days after receipt of Goods by Buyer or its designated consignee. Delivery dates quoted are based on KIHM's best estimate of a realistic time when shipment will be made and are subject to change. Delivery dates will be confirmed on KIHM's acceptance of any resulting order, and KIHM will use its best efforts to meet such Delivery date. KIHM may make early shipment or partial shipments and invoice Buyer accordingly. Despite any agreement with respect to delivery terms or prepayment of transportation or transit insurance charges, the risk of loss or damage shall pass to Buyer upon completion of Delivery or upon moving the Goods into storage, whichever occurs first.
11. Laws, Codes and Standards Price and Delivery schedule are based on the applicable laws, codes, and standards stated in the Goods specifications in effect as of the date of Seller’s acceptance of the purchase order. If such laws, codes, and standards change, or if Purchaser changes the laws, codes, and standards stated in the Goods specifications, and such change increases or decreases the cost of performing the work or impacts the Delivery schedule, then KIHM will advise Buyer of the same, and the parties shall promptly negotiate in good faith and mutually agree upon any modification to the order resulting from any such change. Any local laws, statutes, codes or standards, or interpretations thereof that do not match national building codes are hereby exempt from the Agreement unless written copies are presented by Buyer to KIHM as additional specifications and accepted in writing by KIHM as part of this Agreement.
12. Title KIHM shall retain legal and equitable title to any Goods until Buyer has paid for such Goods in full, and Buyer shall complete and execute all documents required to this effect upon KIHM’s request and allow KIHM to repossess the Goods in the event of Buyer’s failure to pay after receipt of written notice by KIHM.
13. Cancellation Cancellation of any order must be by written notice to KIHM and will be subject to KIHM's cancellation charges and fees including, but not limited to, all costs incurred through the date of cancellation, the cost for materials ordered that cannot be returned, return and cancellation fees, cost to process such cancellation, plus a reasonable profit.
14. Intellectual Property and Confidentiality Unless otherwise agreed to in writing signed by KIHM's duly authorized representative, all right, title and interest in any inventions, developments, improvements or modifications of the Goods and Services made by KIHM or Buyer as a result of the Agreement shall exclusively remain with KIHM. Any design, reports, plans, drawings, standards, specifications or other information submitted to Buyer by KIHM (“KIHM Documents”) were developed at KIHM's expense and shall remain KIHM’s exclusive property. Without the express prior written consent of KIHM, Buyer shall not copy or disclose KIHM Documents to any third party, and shall not use them for any purpose other than to install, own, operate, and maintain the subject Goods or to use the Services, including, without limitation, use with any other project, or for the completion of the project contemplated by this Agreement by others. KIHM Documents are not suitable for use on any other agreement or project and any reuse of KIHM Documents without the express written consent of KIHM will be at the sole risk of Buyer, and Buyer shall indemnify, defend and hold KIHM harmless from any and all claims arising from Buyer’s reuse of KIHM Documents. Upon KIHM’s request at any time, Buyer shall promptly return all KIHM Documents. If KIHM's Goods are held to infringe a United States patent in effect as of the date of this Agreement (other than any infringement resulting from KIHM’s compliance with Buyer’s designs, specifications or instructions or from the use of the Goods in combination with other materials or the operation of any process), then KIHM may at its option procure for Buyer the right to use the Goods, modify or replace it with non-infringing Goods; refund the purchase price allocable to the infringing Goods, or settle or otherwise terminate said actions on behalf of Buyer. The foregoing is KIHM's entire liability and Buyer’s sole remedy for patent infringements of the Goods. Buyer shall defend, indemnify and hold KIHM harmless from all expenses, losses and other damages resulting from any actual or alleged infringement of intellectual property rights arising from KIHM's compliance with Buyer's designs, specifications or instructions, from the use of the Goods in combination with other materials, or from the operation of any process.
15. Assignment This Agreement may not be transferred or assigned by Buyer by operation of law or otherwise without the prior express written consent of KIHM. Any transfer or assignment by Buyer of any rights, duties or obligations without KIHM's consent shall be void.
16. Limitation of Liability NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL KIHM, ITS AFFILIATES, SUPPLIERS AND SUBCONTRACTORS BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, DOWNTIME COSTS, COST OF DELAYS, OR FOR ANY PENALITIES, WHETHER ANY SUCH CLAIM FOR THE SAME IS BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, KIHM'S TOTAL LIABILITY ARISING OUT OF THIS AGREEMENT FOR ANY CLAIMS WHETHER IN CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, INDEMNIFICATION OR OTHERWISE, OR FOR ANY LOSS OR DAMAGE ARISING OUT OF, CONNECTED WITH THIS AGREEMENT OR THE PERFORMANCE OR BREACH THEREOF, OR FROM ANY DESIGN, SALE, INSTALLATION, OPERATION OR USE OF THE GOODS OR PERFORMANCE OF ANY SERVICES UNDER THIS AGREEMENT,SHALL IN NO EVENT EXCEED THE PURCHASE PRICE PAID TO KIHM BY BUYER FOR THE SPECIFIC GOODS OR PART THEREOF OR FOR THE SERVICES GIVING RISE TO THE CLAIM.
17. Export Sales; Compliance with Trade Laws In no event shall KIHM be required to export or deliver any technical information, data or Goods if such export or Delivery is then prohibited or restricted by any law or regulation of the U.S. Government, including departments, agencies and sub-divisions thereof or of any other applicable governmental agency of any country having jurisdiction, including the country in which the Goods or Services to be sold will be installed, used, or performed. Should KIHM’s performance of its obligations hereunder be prohibited by any applicable governmental agency, in whole or in part, or if the exportation or importation of the Goods which is the subject of this Agreement be precluded because of the inability to obtain an export or import license within a reasonable time, as appropriate, then KIHM’s obligations hereunder shall be terminated at KIHM’s option, and KIHM shall be entitled to reasonable cancellation charges. Unless otherwise agreed in writing by KIHM, Buyer accepts all responsibility for exporting and importing any Goods sold hereunder outside of the U.S., will be the exporter of record and importer of record, and will be responsible for filing any documents, obtaining any licenses required by the U.S. or other government agencies, and paying all duties and taxes necessary for exportation and importation. Buyer agrees not to export, re-export or import any Goods, technical information or data of KIHM without full compliance with U.S. and other laws of countries having jurisdiction and shall cause the end user of Goods or Services to comply with such applicable laws. Buyer warrants and represents that it is in full compliance with all such applicable export and import laws, including but not limited to, the International Traffic In Arms Regulations, the Export Administration Regulations, and all U.S. anti-boycott and embargo regulations, and Buyer shall provide KIHM with such written assurances of compliance as requested by KIHM from time to time. Specifically, Buyer agrees not to export, re-export, sell or lease any Goods or components thereof or technical data supplied by KIHM to a prohibited person, to a prohibited country, or for a prohibited use under the U.S. or any other applicable trade laws. Buyer agrees to indemnify and hold KIHM harmless from and against any and all damages and expenses (including attorneys’ fees) resulting from Buyer’s violation of applicable export and import regulations.
18. Compliance with Anti-bribery Laws Buyer warrants and represents that it is familiar with the requirements of the U.S. Foreign Corrupt Practices Act and other similar anti-bribery laws, including without limitation, the OECD Antibribery Convention and the UK Bribery Act, that it has not and will not violate those laws as may be amended from time to time, and that it neither has nor will it offer, make, or agree to make, directly or indirectly, any gift or payment of any kind or any political contribution in violation of such laws. Buyer shall provide KIHM with such written assurances of compliance with such laws as requested by KIHM from time to time. Any payment, offer of payment, or agreement to make a payment that is contrary to the laws of the United States or the laws of the country in which it is made, or any other payment in conflict with this clause, will constitute a material breach of this Agreement, and any obligation of KIHM hereunder shall automatically terminate upon such breach without further liability to KIHM. Buyer agrees to indemnify and hold KIHM harmless from and against any and all damages and expenses (including attorneys’ fees) resulting from Buyer’s violation of the requirements referenced in this Section.
19. Governing Law; Arbitration This Agreement and any claim, controversy or dispute arising under or related to the Agreement, the relationship of the parties, and the interpretation and enforcement of the rights and duties of the parties is exclusively governed by the laws of the State of Indiana, excluding its conflicts of law principles and excluding the United Nations Convention on Contracts for the International Sale of Goods. Buyer waives all causes of action arising under this Agreement after one year from the date of the occurrence of the event giving rise to any such claim, waives any sovereign immunity claims or defenses, and consents to and will not contest personal jurisdiction in the local and federal courts of Brazil, Indiana. Except for account collection disputes, any disputes, controversies or claims arising out of or relating to this Agreement, or the breach thereof which cannot be resolved amicably within 60 days, shall be settled by binding arbitration. This agreement to submit to binding arbitration shall be specifically enforceable under the prevailing arbitration law. The award of the arbitrator shall be final, and a judgment may be entered upon it by any court having jurisdiction. A party desiring to invoke this arbitration provision shall serve written notice upon the other of its intention to do so and the name of an impartial individual who is knowledgeable in matters pertaining to KIHM’s industry to serve as an arbitrator. If the other party objects within 15 days to the arbitrator proposed, and the parties fail to agree on an arbitrator within 30 days thereafter, then the arbitrator shall be appointed by the arbitration tribunal. For domestic sales, the arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then prevailing. For international sales, the arbitration shall be conducted in accordance with the International Arbitration Rules then prevailing of the International Centre for Dispute Resolution. Unless the parties agree otherwise, all arbitrations shall be conducted and all related documents submitted shall be in the English language in Brazil, Indiana, and the arbitrator shall apply the substantive governing laws as specified above. All awards granted by the arbitrator shall be final and binding on the parties, and shall include interest from the date of any breach or default and from the date of the award until paid in full. Judgment may be entered on any award or decision of the arbitration panel by either party in a court of competent jurisdiction. The arbitrator may grant emergency interim relief according to the applicable arbitration rules, and shall award costs, fees and other expenses of the arbitration, including reasonable attorney’s fees, to the party not in default. If Buyer fails to promptly assume KIHM’s defense when requested to do so as required under this Agreement, then KIHM may defend with counsel of its own choice at the expense of Buyer.
20. Miscellaneous The Agreement as defined in Section 1 constitutes the complete and exclusive agreement between KIHM and Buyer and there are no agreements, understandings, restrictions, warranties, or representations between KIHM and Buyer other than those set forth herein. If any provision, or any part thereof, of this Agreement is found by any court or governmental agency of competent jurisdiction to be invalid or unenforceable for any reason whatsoever, then such provision shall be deemed revised and applied to the maximum extent allowed by applicable law, and such invalidity or unenforceability shall not affect the remainder of such provision or any other provision here which shall remain in full force and effect. All obligations herein shall survive termination, expiration or completion of this Agreement. No term or condition is intended for the benefit of any third party, and KIHM and Buyer do not intend any term or condition to be enforceable by a third party, including any end user of Goods or Services. KIHM’s failure on any occasion to insist on strict performance of any term or condition hereof shall not constitute a waiver of compliance with such term or condition on any other occasion or a waiver of any default. References to any statutory provision, enactment, order, regulation or other similar instrument shall be construed as a reference to the statutory provision, enactment, order, regulation or instrument as amended, replaced, consolidated or re-enacted from time to time and shall include any orders, regulations, codes of practice, instruments or other subordinate legislation made under it. The headings used throughout are for convenience only and shall be given no legal effect. Fax copies shall be given the full force and effect as an original.