Koster Keunen Standard Terms and Conditions of Sale

All sales of goods by Koster Keunen Manufacturing, Inc. are made in accordance with and subject to the following terms and conditions (these “Standard Terms and Conditions”), unless otherwise set forth in writing by Koster Keunen Manufacturing, Inc. with respect to a particular sale.

1. PRICES – Prices are quoted in U.S. currency unless we agree in writing to quote in another currency. Prices quoted orally may be changed at any time without notice.  If not previously accepted, any written quotation shall expire automatically 30 days from the date issued and is subject to change or termination by notice during that period.  A quoted price shall be subject to change by us at any time as to any unfilled portion of an order unless we agree otherwise.  All prices are subject to adjustment on account of different customer specifications, quantities, shipment arrangements or other terms and conditions, which are not part of our price quotation, but which have been accepted by us in writing. Prices are exclusive of all excise, ad valorem, sales, use, value added, import and other taxes and customs duties imposed by any federal, state, municipal or other domestic or foreign governmental authority, all of which shall be paid by the purchaser.  The purchaser agrees to indemnify and hold us harmless against and from any and all liabilities for any such taxes, duties and other similar governmental charges. The purchaser is responsible for obtaining and providing to us any certificate of exemption or similar document required to exempt any sale from any such tax or duty.
2. TERMS OF PAYMENT – Unless otherwise expressly stated by us in writing, payment terms are net 30 days from date of invoice. Invoices are sent on our next business day following shipment under Section 3 of these Standard Terms and Conditions.  We reserve the right at any time to require full or partial payment in advance, or to revoke any credit previously extended, if, in our judgment, the purchaser’s financial condition does not warrant proceeding on the terms specified. Overdue payments shall be subject to finance charges computed at a periodic rate of 1-1/2% per month (18% per year) or the maximum amount allowed under applicable law, if less, from date of delivery.  Amounts owed by the purchaser shall be paid without set-off for any amounts which the purchaser may claim are owed by us and regardless of any other controversies which may exist.
3. SHIPMENT AND DELIVERY
   1. Except as the term FCA (as defined in the Incoterms 2010 rules) may otherwise be modified by other express provisions of these Standard Terms and Conditions or in writing by us, all sales are FCA the loading dock at our premises in Watertown, Connecticut.  Delivery shall be made, at our loading dock, on a date agreed to by each party in writing.  Without in any way limiting the generality of the limitation on warranties and claims contained in these Standard Terms and Conditions, we shall not be liable for any loss or damage to the purchaser or any other party resulting from any delay in manufacturing or delivery of ordered goods.
   2. If we experience demand for our goods in excess of available supply, we may allocate the supply among all customers, including our affiliates, on such basis as we in our sole discretion determine, and which may result in delay covered by the terms of this Section.  In the event of delay for any reason, time for delivery shall be extended for a period equal to the duration of the delay and the purchaser shall not be entitled to refuse delivery or otherwise be relieved of any obligations as a result of the delay.
   3. Unless instructions to the contrary in writing are supplied by the purchaser and accepted by us in writing, the specific carrier and method and route of shipment will be selected by the purchaser and arranged by purchaser.  If a shipping method is not selected by the purchaser within a reasonable time following the placing of the order, we may select a carrier and method and route of shipment on the purchaser’s behalf, with all charges being at the purchaser’s expense.  Unless expressly directed otherwise in writing received from the purchaser and accepted by us in writing, we may in any event reasonably vary the carrier and method and route of shipment specified in communications received from the purchaser.  Whether we have selected the route and method of shipment or they have been otherwise determined, we will not assume any liability in connection with shipment nor constitute any carrier as our agent. All shipments will be made at the purchaser’s risk.  However, at our option, or if requested by the purchaser and agreed to in writing by us, we may insure goods being shipped, but only at the purchaser’s expense.  The purchaser shall be responsible for making any and all claims with carriers, insurers, warehousemen and others for misdelivery, nondelivery, loss, damage or delay.  Should it be established upon return of any good, that it was damaged because we had not packaged it for shipping in a commercially reasonable manner and the damage is not otherwise covered by insurance, our liability shall be limited to the repair or replacement, as we in our sole discretion determine, of each so damaged good.
4. TITLE AND RISK OF LOSS – Subject to the following section relating to our security interest, and subject to our right to stop delivery of goods in transit, title to and risk of loss and damage to goods shall pass to the purchaser when delivery occurs under Section 3 of these Standard Terms and Conditions.  Notwithstanding the foregoing, if the specific carrier and method and route of shipment have been selected by the purchaser in accordance with Section 3 of these Standard Terms and Conditions, risk of loss and damage to goods shall pass to the purchaser earlier, as to goods identified to the contract, if the purchaser fails to provide reasonable notice to us, in writing, of the carrier that it has nominated, or if thereafter such carrier fails to appear in a timely manner on the date of delivery and take the purchased goods into its charge.
5. SECURITY INTEREST – We reserve, and the purchaser grants to us, a security interest in all goods sold and all proceeds of such goods to secure the full payment and performance by the purchaser of its liabilities and obligations to us. The purchaser acknowledges that these Standard Terms and Conditions of Sale may be filed, along with a description of the goods purchased by purchaser, with the appropriate authorities as financing statements under the applicable Uniform Commercial Code or, to the extent relevant and permissible, applicable international law.  The purchaser agrees to execute and deliver such other written statements as we may request in order to attach and perfect our security interest.
6. CANCELLATIONS – Orders which have been accepted by us may be cancelled only with our prior consent in writing and upon terms that will fully indemnify us against loss. ln the event of any suspension of payment or the institution of any proceedings by or against either party, whether voluntarily or involuntary, under any bankruptcy or insolvency law, including but not limited to the United States Bankruptcy Code, or the appointment of a receiver or trustee for the property or affairs of either party or in the event of an assignment for the benefit of creditors by either party, we shall be entitled, at our option, to cancel forthwith this contract as to all product for which title has not passed to the purchaser, or at any time thereafter, without notice and without incurring any liability to the purchaser.   Cancellations shall be subject to reasonable cancellation charges which shall take into account expenses already incurred and commitments made by us, and lost profits.  If cancellation is not permitted for any reason under applicable law, payment arrangements for our further performance shall be strictly C.O.D. with immediately available funds.
7. RETURNS – Goods are not, in any event, to be returned to us without our prior authorization in writing.  If the purchaser claims any good has a manufacturing defect or was otherwise damaged prior to the purchaser’s receipt thereof from the carrier, the purchaser shall send a notice to us of any claimed defect or damage within (30) days of the receipt from the carrier. Notification shall be in writing and shall state any and all facts and charges relative to the purchaser’s claim.  Our liability for any manufacturing defect shall be governed and limited by Section 8 of these Standard Terms and Conditions.  Should it be established upon return of any good, that it was damaged because it had not been packaged in a commercially reasonable manner by us for shipping and the damage is not otherwise covered by insurance, our liability shall be limited to the repair or replacement of the good, as we in our sole discretion determine.
8. LIMITED WARRANTY and CLAIMS – All goods are warranted to be free of defects in material and workmanship for a period of thirty (30) days from the time of shipment.  Any claim against us not related to a nonconforming or defective good must be made in writing within sixty (60) days from the time it arises but, if earlier, no later than sixty (60) days from the date we no longer have an active purchase order from the purchaser. Any claim not made within the applicable period shall be deemed waived and released.
   OUR SOLE RESPONSIBILITY WITH RESPECT TO ANY SUCH CLAIM, ONCE SUBSTANTIATED, FOR NONCONFORMING OR DEFECTIVE GOODS, OR FOR ANY DAMAGE OR LOSS TO GOODS IF WE ARE FOUND LIABLE THEREFOR, SHALL BE TO REPAIR OR REPLACE ANY SUCH GOOD OR COMPONENT THEREOF, WITH THE CHOICE OF REPAIR OR REPLACEMENT BEING AT OUR OPTION UNLESS A COMPLETE LOSS IS INVOLVED AND REPLACEMENT IS THUS THE SOLE OPTION.
   IN NO EVENT, SHALL WE BE RESPONSIBLE WITH RESPECT TO ANY GOOD OR SERVICE OFFERED BY US THAT IS PURCHASED FROM US, OR OTHERWISE SUPPLIED BY US, FOR ANY MONETARY DAMAGE OR BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, STATUTORY, PUNITIVE OR OTHER DAMAGE, INCLUDING WITHOUT LIMITATION ANY CLAIMS FOR LOST PROFITS, BUSINESS INTERRUPTION, OR ANY AND ALL CLAIMS BY ANY AND ALL THIRD PARTIES DUE TO ANY CAUSE WHATSOEVER, EVEN IF WE ARE ADVISED ON THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION SHALL APPLY TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT, WARRANTY, STRICT LIABILITY STATUTE, EQUITY, OR OTHERWISE. THIS WARRANTY DOES NOT APPLY TO ANY GOOD WHICH HAS BEEN DAMAGED BY ACCIDENT OR WHICH HAS BEEN MISUSED, ABUSED, NEGLECTED, OR WHICH HAS BEEN ALTERED OR REPAIRED BY ANYONE OTHER THAN US OR OUR AUTHORIZED REPRESENTATIVES.
   THE FOREGOING CONSTITUTES OUR SOLE LIABILITY AND THE PURCHASER’S SOLE REMEDY WITH RESPECT TO GOODS SOLD BY US. EXCEPT AS EXPRESSLY SET FORTH IN THESE STANDARD TERMS AND CONDITIONS, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
9. ASSIGNMENT AND LICENSE – The purchaser shall not delegate any duties nor assign or license any rights or claims under any accepted purchase order or other agreement with us without our prior consent in writing.  Any such attempted delegation or assignment shall be void.
10. COMPLIANCE WITH LAWS – The purchaser shall carry out all transactions between the purchaser and us to which these Standard Terms and Conditions are applicable and shall otherwise deal with the goods sold by us to it in conformity with all applicable laws, rules, and regulations. The purchaser shall obtain all permits and licenses required in connection with the purchase, sale, shipment or use of any of our goods.
11. GOVERNING LAW – These Standard Terms and Conditions shall be governed by the laws of the State of Connecticut.  Any action brought by either party shall be subject to the exclusive jurisdiction of the federal and state courts located in the State of Connecticut.  Each party hereby irrevocably agrees to such exclusive jurisdiction and irrevocably waives any claim or defense to such jurisdiction based on lack of personal jurisdiction or improper venue.
12. CONFLICT OF TERMS – These Standard Terms and Conditions are binding upon the parties and no other terms or conditions addressing the subject matter of this Agreement shall have any effect unless agreed to in writing by us.
13. NOTICE AND COMMUNICATIONS IN GENERAL – Unless governed by an overriding record made in writing, notices and communications between the purchaser and us shall be governed by this provision.  Any notice required by these Standard Terms and Conditions must be given in writing unless otherwise stated. For the purposes of these Standard Terms and Conditions, the term “in writing” shall mean a record which has been authenticated by a symbol or process that has been attached, incorporated, or logically associated with the record, and the symbol or process was executed or adopted, or deemed so executed or adopted in accordance with these Standard Terms and Conditions, by the purchaser or us, respectively, with the intent of signing the record, as the equivalent act to the manual penning of an original signature of an authorized representative, and which may be transmitted electronically.  Notices shall be deemed effective only upon actual receipt, unless otherwise provided in these Standard Terms and Conditions.  In addition, any change in these Standard Terms and Conditions posted by us on www.kosterkeunen.com shall be deemed effective notice to the purchaser of such change, as of the day following the change, and shall be binding with respect to all new purchase orders placed on and after that date.  Except as otherwise provided in these Standard Terms and Conditions with respect to e-mails from the purchaser, or unless we agree otherwise in writing, in order for a writing to bind either party, it must be delivered by the authenticating party to the other by any commercially recognized means including electronic transmission.
14. SEVERABILITY – If any provision of these Standard Terms and Conditions is held invalid or unenforceable by any court of competent jurisdiction all other provisions of this Agreement will remain in full force and effect.  Any provision of these Standard Terms and Conditions held invalid or unenforceable only in part or degree or in a certain context will remain in full force and effect to the extent not held invalid or unenforceable.
15. WEBSITE AND E-COMMERCE – All individuals using our website do so at their own risk. We are not liable for the maintenance, service, repair or replacement of users’ software or hardware resulting from damages that may arise due to use of our website. If any user suspects our website contains any malicious or harmful information (e.g. trojans, malware, viruses, and similar items), it must be immediately reported to us.  We understand that some degree of information security is an expectation of users when transmitting information online and therefore we have certain safety measures in place to protect user information in a commercially reasonable manner. Despite these safety measures, users or our website must keep in mind the inevitable risks associated with the online transmission of information. No website can wholly protect against online security infringements, whether accidental or purposeful, and we do not represent or guarantee that any submission, communication or interaction made through our website will be secure.  We have established and will maintain an information security program containing commercially reasonable administrative, technical and physical measures to protect the data that we receive from you against accidental or unlawful destruction, alteration, unauthorized disclosure or access consistent with applicable laws.  If we become aware of a security breach (as defined in any applicable law) or any other event that compromises the security, confidentiality or integrity of your information that is stored on our servers, we will take commercially reasonable actions to contain, investigate and mitigate the incident.