Terms & Conditions
KROME USA INC TERMS, CONDITIONS AND LIMITED WARRANTY OF SALE
***Expanded Print for Review only – DO NOT Sign***
Purchaser understands and agrees that this document sets forth the terms and conditions (“Terms and Conditions”) pursuant to which the purchaser (“Purchaser”) will purchase and Kromeusainc. (“Seller”) will sell the products, accessories and attachments (collectively the “Products”) ordered by Purchaser. These Terms and Conditions shall govern and apply to the sale of Seller’s Products to Purchaser, regardless of any terms and conditions appearing on any purchase order or other forms submitted by Purchaser to Seller or the inconsistency of any terms therein and herein. In the interest of clarity, it is reiterated that the Purchaser shall be deemed to have made an unqualified acceptance of Terms and Conditions, unless the Seller expressly agrees in writing to any of the terms of the Purchaser. Such proposal of additional, different or varying terms by Purchaser shall not operate as a rejection of the Seller’s offer except to the extent such variances are in the terms of the description, quantity, price or place or date of delivery of the Products, and the Seller’s offer shall be deemed accepted without such additional, different or varying terms.
1. GENERAL:• Seller reserves the right at all times to reject any and all orders for any reason. • For Orders other than standard items or standard lengths, cancellation of the same shall not be entertained if Purchaser fails to notify the Seller to the contrary within 2 days after the receipt of the order. Purchaser may not alter or modify its order or any part thereof without the Seller’s prior, written consent. • Purchaser must seek a prior written permission from the Seller before listing the Products on any of the marketplace whether online or brick mortar,and undertake to abide by the laws and regulation of the states where the Purchasers intend to sell the Products, and furtherif the Purchaser commingle Seller’s Products with competitors’ products, must ensure to rightly attribute the Products of the Seller. • The Seller reserves the right tochange the price, terms of payment and delivery dates for any Products affected by any alterations or modification to which it consents. Orders or mutually agreed change orders are subject to all provisions of these Terms and Conditions whether or not the order or change order so states.
2. PRICE:• Except as otherwise provided otherwise, all prices set forth on any purchase order or other document are F.O.B. theSellers’ facility or distribution point, as may be determined by Seller (“F.O.B Point”). All prices are exclusive of any and all taxes, including, but not limited to, excise, sales, use, property or transportation taxes related to the sale or use of the Products, now or hereafter imposed, together with all penalties and expenses. Purchaser shall be responsible for collecting and/or paying any and all such taxes, whether or not they are stated in any invoice for the Products. Unless otherwise specified herein, all prices are exclusive of inland transportation, freight, insurance and other costs and expenses relating to the shipment of the Products form the F.O.B Point to Purchaser’s facility. Any prepayment by Seller of freight insurance and other costs shall be for the account of Purchaser and shall be repaid to Seller
3. PAYMENT TERMS: • Seller reserves the right to alter payment terms. • Seller reserves the right to hold shipments against the past due payments. • Payment of invoices will be due 30 days after shipment of Products.All payments must be received within 30 daysfailing which a service charge at the lesser of 1.5% per month (18% per annum) or the highest rate permitted by applicable lawwill be added to all past due invoices from the due date until paid.. Purchaser agrees to reimburse the Seller for all costs and fees incurred by the Seller in collecting any sums owed by Purchaser to the Seller including, without limitation, attorneys’ fees and repossession fees. Purchaser shall not set off any claims against amounts due to the Seller. Prices are stated and payable in U.S. dollars.
4. FREIGHT TERMS:• All shipments are F.O.B Point of shipment as designated in these Terms & Conditions, and title shall pass at the F.O.B. Point. Delivery to the initial common carrier shall constitute delivery to the Purchaser. Any claims for loss or damage during shipment are to be filed with carrier by the Purchaser. Seller will not assume responsibility for the performance of the carrier, even if the Seller agrees to arrange for transportation as a courtesy to Purchaser. • • Orders with different numbers and dates shall be considered a separate and independent transaction. • Backorders will be shipped in the most practical fashion with charges consistent with our freight policy established with the original order.
5.UPS SHIPMENTS:• A handling charge, in accordance with current UPS regulations, will apply to any article that is not fully encased in an outside shipping container. Minimum charge for a package measuring over 84- inches in length and girth combined will be equal to the charge of a package weighting 30 lbs. plus the handling charge. This applies to all UPS air and surface transportation.
6. DELIVERY, DAMAGES, SHORTAGES:• Seller shall use reasonable efforts to attempt to cause the Products to be delivered as provided for in these Terms & Conditions. Delivery to the initial common carrier shall constitute the delivery to the Purchaser. Seller’s responsibility, insofar as transportation risks are concerned ceases upon the delivery of the Products in good condition to such carrier at the F.O.B. Point and all the Products shall be shipped at the purchaser’s risk. Seller shall not be responsible or liable for any loss or damage whatsoever, including loss of income and/or profits, or incidental, special, consequential damages resulting from Seller’s delayed performance in shipment and delivery.
7. RETURN OF DEFECTIVE PRODUCTS:• Defective or failed material shall be held at the Purchaser’s premises until a prior written return material approval (“RMA”) has been granted by Seller to return or dispose of Products. Products that are to be returned for final inspection must be returned Freight Prepaid in the most economical way. Credit will be issued for the material found to be defective upon Seller’s inspection based on the prices prevailing at the time of purchase.
8. PRODUCTS ORDERED IN ERROR:• Standard package Products only may be returned, provided that claim is made and Seller is notified within 7 days of receipt of Products, and the Products are in the original Purchaser’s possession not more than 30 days prior to return, subject to Seller’s approval. If Products are accepted for return, they must be Freight Prepaid, and Purchaser will be charged a minimum of 15% rehandling charge, plus a chargeback for outbound freight charges if the original order was shipped prepaid. Returns are not accepted for any Products that are specially manufactured to meet the Purchaser’s requirement of either specifications or large quantity.
9. PRODUCTS SHIPPED IN ERROR:• Purchaser must notify within 7 days of receipt of Products any Products shipped in error. Upon notification, Products are to be returned to Seller either via truck on a Freight Collect basis or via UPS on a Freight Prepaid basis. Purchaser will be reimbursed for costs of Products, plus any additional freight which may have been incurred due to shipping error.
10. SECURITY INTEREST:• Purchaser hereby grants to Seller and Seller hereby retains a continuing purchase money security interest in the Products sold and delivered by Seller to Purchaser, whether presently in the possession of Purchaser or hereafter acquired, and all spare parts and components therefore, together with any and all proceeds of sale or other disposition of the Products, including but not limited to, cash, accounts, contract rights and chattel paper. Purchaser shall keep the Products free from any adverse lien, security interest or encumbrance and will not store the Products or any part thereof or use the Products in violation of any statute or ordinance. In the even Purchaser shall be in default under these terms and conditions. Seller shall have the remedies of a secured party under the Uniform Commercial Code in force in the state where the Products are located. Purchaser is hereby made aware that a copy of these Terms and Conditions may be filed as a financing statement with appropriate authorities at any time to perfect the Seller’s security interest, or in the alternative, Purchaser hereby agrees to execute the appropriate UCC forms upon request of the Seller to perfect the Seller’s purchase money security interest.
11. CAUTIONARY STATEMENT:• All Products are in the nature of commodities and they are sold by published specifications and not for particular purposes, uses or applications. Purchaser shall first determine their suitability for the intended purposes, uses or applications and shall either conducts its own engineering studies or tests, or retain qualified engineers, consultants or testing laboratories and consult with them before determining the proper use, suitability or propriety of the merchandise or Products for the intended purposes, uses or applications Seller does not recommend the merchandise or Products for any particular purpose, use or application, and the Purchaser or user thereof shall assume full responsibility for the suitability, propriety, use and application of the merchandise or Products,. Purchaser shall follow all instructions contained in Seller’s catalogs, brochures, technical bulletins and other documents regarding the product. The merchandise or Products, including but not limited to, hose, tubing or couplings, may fail due to the use or conveyance of substances at elevated or lowered temperatures or at excessive pressure, the conveyance of abrasive, injurious, flammable, explosive or damaging substances. Valves are manufactured and designed for beer Kegs /containers strictly and must not be used for any other purpose. Valves should be replaced, adjusted or re-tightened for the avoidance of leakage, for the prevention of injuries or damages, and for general safety purposes. Except as indicated in its Limited Warranty, Seller shall not be liable or responsible for direct or indirect injuries or damages caused by or attributed to the failure of malfunction of any merchandise or Products sold or distributed by it. Purchasers or users of the Products should frequently and consistently undertake inspections and protective measures with respect to the use and application of Products, which should include the examination of tube and cover, conditions of the hose or tubing, and the identification, repair or replacement of sections showing cracking, blistering, separations, internal and external abrasions, leaking or slipped couplings or connections and make proper proof tests.
12. LIMITED WARRANTY:• The merchandise or Products sold or distributed by Seller are warranted to its customers to be free from defects in material and workmanship at the time of shipment by us, subject to the following provisions. ALL WARRANTY CLAIMS SHALL BE MADE WITHIN 1 YEAR AFTER SELLER SHIPPED THE PRODUCTS. SELLER’S LIABILITY HEREUNDER IS LIMITED AT SELLER’S EXCLUSIVE DISCRETION, TO 1) THE PURCHASE PRICE OF ANY PRODUCTS WHICH IS PROVED TO BE DEFECTIVEON SELLER’S INSPECTION. 2) REPAIR OF ANY DEFECTIVE PRODUCT OR PART THEREOF, OR 3) REPLACEMENT OF ANY DEFECTIVE PRODUCT OR PART UPON ITS AUTHORIZED RETURN TO SELLER.THE SELLER SHALL NOT BE LIABLE TO PURCHASER, OR TO ANYONE CLAIMING UNDER PURCHASER, FOR ANY OTHER OBLIGATIONS OR LIABILITIES, INCLUDING, BUT NOT LIMITED TO, OBLIGATIONS OR LIABILITIES ARISING OUT OF BREACH OF TERMS AND CONDITIONS OR WARRANTY, NEGLIGENCE OR OTHER TORT OR ANY THEORY OF STRICT LIABILITY, WITH RESPECT TO THE PRODUCTS OR THE SELLER’S ACTS OR OMISSIONS OR OTHERWISE. THE SELLER AND PURCHASER AGREE THAT THE EXPRESS WARRANTIES DESCRIBED ABOVEARE EXCLUSIVE AND IN LIEU OF S ALL OTHER WARRANTIES WHETHER EXPRESSED, IMPLIED, STATUTORY, OR OTHERWISE CREATED UNDER APPLICABLE LAW INCLUDING BUT NOT LIMITED TO, THE WARRANTY OF MERCHANTABILITY AND THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. ALL OTHER EXPRESS WARRANTIES ARE DISCLAIMED. IN NO EVENT SHALL SELLER OR THE MANUFACTURER OF THE PRODUCTS BE LIABLE FOR SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGE, INCLUDING LOSS OF PROFITS, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OF SELLER AND/OR THE MANUFACTURER OF THE PRODUCT. UNLESS SPECIFICIALLY PROVIDED HEREIN, IN ADDITION, THIS WARRANTY SHALL NOT APPLY TO ANY PRODUCTS OR PORTIONS THEREOF WHICH HAVE BEEN SUBJECTED TO ABUSE, MISUSE, IMPROPER INSTALLATION, MAINTENANCE, OR OPERATION, ELECTRICAL FAILURE OR ABNORMAL CONDITIONS, AND TO PRODUCTS WHICH HAVE BEEN TAMPERED WITH ALTERED, MODIFIED, REPAIRED, REWORKED BY ANYONE NOT APPROVED BY SELLER, OR USED IN ANY MANNER INCONSISTENT WITH PROVISIONS OF THE “CAUTIONARY STATEMENT” ABOVE OR ANY INSTRUCTIONS OR SPECIFICATIONS PROVIDED WITH OR FOR THE PRODUCT.
13. FORCE MAJEURE:• Seller’s obligation hereunder are subject to, and Seller shall not be held responsible for, any delay or failure to make delivery of all or any part of the Product due to labor difficulties, fires, casualties, accident, acts of the elements, acts of God, transportation difficulties, delay by a common carrier, inability to obtain Product, materials or components or qualified labor sufficient to timely perform part of or all of the obligations contained in these terms and conditions, governmental regulations or actions, strikes, shortage of material, damage to or destruction in whole or part of manufacturing plant, riots, terrorist attacks or incidents, civil commotions, warlike conditions, flood, tidal waves, typhoon, hurricane, earthquake, lightning, explosion or any other causes, contingencies, or circumstances within or without the United States not subject to the Seller’s control which prevent or hinder the manufacture or delivery of the Products or make the fulfillment of these terms and conditions impracticable. In the event of the occurrence of any of the foregoing, at the option of Seller, Seller shall be excused from the performance under these Terms and Conditions without incurring any liability therefor, or the performance of the Seller shall be correspondingly extended.
14. GOVERNING LAW, JURISDICTION, VENUE AND WAIVER OF TRIAL BY JURY:• Except for the perfection of any security interest or lien in any other state, and except as otherwise provided herein, these terms and conditions will be governed and construed in all respect by the Internal laws and decisions, other than any conflict of laws provisions, of the State of Georgia, including without limitation, all matters of construction, validity, enforceability, and performance. PURCHASER (I) CONSENTS AT SELLER’S ELECTION AND WITHOUT LIMITING SELLER’S RIGHT TO COMMENCE AN ACTION IN ANY OTHER JURISDICTION, TO THE EXCLUSIVE JURISDICTION AND VNNUE OF ANY COURT (FEDERAL, STATE, OR LOCAL) SITUATED IN THE STATE OF GEORGIA (II) WAIVES ANY OBJECTION TO IMPROPER VENUE AND FORUM NON-CONVENIENS: AND (III) CONSENTS TO SERVICE OF PROCESS BY CERTIFIED MAIL, POSTAGE PREPAID, ADDRESSED TO PURCHASER AT ITS ADDRESS AS SET FORTH HEREIN. PURCHASER HEREBY WAIVES TRIAL BY JURY. Purchaser shall bring any action arising out of the sale of Products by Seller only in the federal or state courts in the State of Georgia. In the event Purchaser institutes any action in any court other than a court located in the State of Georgia, Purchaser shall assume all of Seller’s costs in transferring said proceeding to a court located in the State of Georgia, including, without limitation, reasonable attorneys’ fees. Any action brought must be commenced within one year after delivery of the Products, notwithstanding any statutory limitation to the contrary.
15. SEVERABILITY; WAIVER: The invalidity of any provision or clause of theseTerms and Conditions shall not affect the validity of any other provision or clause hereof. Waiver by Seller of a breach of any of these terms and condition shall not be construed as a waiver of any other breach. Seller’s acceptance of less than full payment shall not be a waiver of any of its rights.
16. COMPLIANCE WITH LAWS:Purchaser agrees to comply with all laws and regulations applicable to the purchase, transport, use, storage, sale, lease and/or disposal of the Products including, without limitation, to the extent applicable, Proposition 65 as stated below in Section 17, the U.S. Export Administration Act and all regulations thereunder, and Purchaser shall cause its employees and agents to comply with such laws and regulations.
17. CALIFORNIA RESIDENTS / PROPOSITION 65: California’s Proposition 65 requires that California consumers receive warnings about any products which contain chemicals known to the State of California to cause cancer or birth defects or other reproductive harm, The State of California requires the following notice: WARNING: This product can expose you to lead, which is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov
18. INDEMNIFICATION OF THE SELLER: Purchaser hereby releases and agrees to promptly defend, indemnify and hold the Seller and its affiliates and its and their shareholders, directors, officers, employees, successors and assigns (collectively, “Seller Parties”) harmless from and against all liabilities, losses, claims, judgments, actions, fines, penalties, costs, damages, attorneys’ fees and expenses (collectively, “Damages”) arising out of or relating to (a) the alleged violation of any law by Purchaser or any of its employees, agents, successors or assigns (“Purchaser Parties”), (b) bodily injuries, deaths or property damage caused by the negligent or wrongful act or omission of Purchaser or any of the Purchaser Parties, (c) any breach of these Terms and Conditions by Purchaser or any of the Purchaser Parties, (d) any failure to install or maintain Products in accordance with the Seller’s written instructions, (e) Purchaser’s infringement of the patents or proprietary rights of any individual or entity, and/or (f) improper use of the Products. Prior to settling any claim, Purchaser will give the Seller an opportunity to participate in the defense and/or settlement of such claim. Purchaser shall not settle any claim without the Seller’s written consent. The provisions of this section shall be effective whether or not such loss, damage or injury was proximately caused by the sole or partial negligent acts or omissions of the Seller or any Seller Parties.
19. RESTOCKING FEES
• 20% Restocking fees or minimum $ 15% will be charged on orders fulfilled correctly. Restocking fees or minimum restocking charges also applies to refusal of orders which have already left the facility. Also, orders other than standard items or standard lengths may not be subject to return for credit. Return privileges, if available, on such order material will involve restocking fee.
20. MISCELLANEOUS: (a) These terms and conditions constitute the entire agreement between Seller and Purchaser as it relates to terms and conditions of sale, and supersedes any and all prior oral or written agreements, correspondence, quotations, or understandings heretofore in force between the parties relating to the subject matter hereof. There are no agreements between Seller and Purchaser with respect to the Product herein except those specifically set forth in and made part of these terms and conditions. Any additional terms, conditions and/or prices are rejected by Seller. (b) No course of prior dealings between the parties and no usage of trade shall be relevant or admissible to supplement, explain, or vary any of these terms and conditions. Acceptance of or acquiescence in a course of performance rendered under this or any prior agreement shall not be relevant or admissible to determine the meaning of these terms and conditions even though the accepting or acquiescing party has knowledge of the nature of the performance and an opportunity to make objection. (c) These terms and conditions may be modified, canceled or rescinded only by a written agreement of both parties executed by their duly authorized agents.
21. TERMS AND CONDITIONS RECEIPT: PURCHASER AGREES TO AND ACKNOWLEDGES RECEIPT OF THESE TERMS AND CONDITIONS IRRESPECTIVE OF IN HAND DELIVERED OR THROUGH VIEWING ONLINE AT www.us.kromedispense.com
21. TERMS AND CONDITIONS RECEIPT: PURCHASER AGREES TO AND ACKNOWLEDGES RECEIPT OF THESE TERMS AND CONDITIONS IRRESPECTIVE OF IN HAND DELIVERED OR THROUGH VIEWING ONLINE AT www.us.kromedispense.com