Terms & Conditions |
Kenny Industrial Sales
TERMS AND CONDITIONS OF SALE
CUSTOMER’S ACCEPTANCE OF TERMS: Kenny Industrial Sales shall hereinafter be referred to as “Seller” and the Customer shall be referred to as “Customer.” The Customer desires to purchase goods and/or services from Seller, and Customer agrees in consideration thereof to be bound by the conditions stated herein, which may also be viewed at http://www.kennyindustrial.com/terms.html. Buyer agrees that all purchases made now and in the future from Seller shall be subject to, in accordance with, and strictly governed by these terms and conditions of sale in this Agreement, unless otherwise agreed to in a signed writing by an officer of Seller. All sales are expressly made conditional on Buyer’s acceptance of the terms and conditions in this Agreement and Seller hereby objects to any different or additional terms or conditions provided by Buyer including in any purchase order, acknowledgment, confirmation, or other writing from Buyer relating to any future sale.
PRICES: Prices quoted or shown on a written quotation contemplate the delivery of all materials within 30 days from the date quoted, unless otherwise stated on the quotation.
PAYMENT: Seller’s credit terms for each sale to Customer are net 30 days from the date of invoice, unless otherwise stated on Seller’s invoice. Any dispute with respect to an invoice, statement, charge, or credit on Customer’s account must be received by Seller, in writing, within 10 days of Customer’s receipt of such invoice, statement, charge or credit, or Customer waives any such dispute. Seller shall have the sole right to determine the application of payments made by Customer.
CREDIT CARDS: Seller accepts credit cards as payment, in addition to checks, money orders, wire transfers, and debit cards. Customer understands that Seller adds a 3% surcharge to all credit card payments. This surcharge is not greater than Seller’s total cost of accepting credit cards. There is no surcharge for debit card payments.
TITLE: Title to products priced and delivered to Seller’s shipping point shall pass to Customer upon delivery at such shipping point. Any charges at destination for spotting, switching, handling, storage and other accessorial services, and demurrage shall be at Customer’s expense.
NO EXPRESS OR IMPLIED WARRANTY: Other than the manufacturer’s warranty, if any, Seller hereby disclaims all representations or warranties, either express or implied, of every type, whether implied by the operation of law or otherwise, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or of any other nature with respect to the goods and/or services purchased from Seller. Any and all such warranties are excluded and disclaimed in all respects and for all purposes. Seller makes no representation, warranty, or promise that the materials (or related services offered by Seller) will conform to any applicable laws, ordinances, regulations, codes or standards. This disclaimer shall in no event be construed to disclaim such warranties to a greater extent than permitted under the laws of the State of California.
LIMITATION OF LIABILITY: In no event shall Customer, or anyone claiming by, through, or under Customer, have the right to claim or recover from Seller nor shall Seller by liable for any loss, damage, cost of repairs, or incidental, punitive, special, consequential, or liquidated damages of any kind (including but not limited to, lost profits or damages for loss of efficiency or delay to any project on which the goods or services are used or ordered or intended for use), whether based upon warranty, contract, strict liability, negligence, or any other causes of action arising in connection with the design, manufacture, sale, transportation, installation, use, or repair of the goods sold or services provided by Seller. Seller shall be excused from any failure to perform due to any actions, events, conditions, inactions, or any other cause beyond Seller’s control in the reasonable operation of its business. All delivery dates given by Seller constitute good faith estimates only. Seller shall not be liable for any failure to meet any specific shipping or delivery date as long as Seller acts in good faith. Notwithstanding the foregoing, Customer agrees that Seller’s liability, if any, shall be exclusively limited to replacement of any non-conforming goods, or at Seller’s option, refund of the purchase price paid for such non-conforming goods. This limitation of liability provision shall in no event be construed to limit Seller’s liability to a greater extent than permitted under the laws of the State of California.
SHORTAGES AND/OR DEFECTIVE OR DAMAGED GOODS: Any alleged shortages and/or defective or damaged goods received by Customer in connection herewith must be reported in writing by Customer to Seller within ten (10) days after delivery of said goods. Delivery of goods shall be subject to normal variations in weight, color, size, quantities, etc., as are standard in the industry. After such 10-day period, Customer shall be deemed to have irrevocably accepted the goods, if not previously accepted. After such acceptance, Customer shall have no right to reject the goods for any reason or to revoke acceptance. Customer hereby agrees that such 10-day period is a reasonable amount of time for such inspection and revocation. No material shall be returned to Seller without its written consent. Customer is solely responsible for all inspection and testing charges of goods.
CANCELLATION AND RETURNS: Customer may not cancel any order of goods without Seller’s express, written consent. Any cancellation so authorized shall be subject to a cancellation/restocking charge of 20% at Seller’s sole discretion, plus all applicable freight. Unused goods, processed material, or specially manufactured materials not normally carried in Seller’s inventory may not, under any circumstances, be returned. The amount of credit, if any, allowed to Customer for returned goods shall be at the sole discretion of Seller.
HAZARDOUS BUSINESSES: Unless otherwise agreed in writing by an authorized representative of Seller, goods sold hereunder are not intended for use in connection with any hazardous activity or any other critical application where failure of a single component could cause substantial harm to persons or property. If so used, Seller disclaims all liability for any damage, contamination, or other injury and Customer shall indemnify and hold Seller harmless from such liability, whether as a result of breach of contract, warranty, or tort (including negligence).
INDEMNITY: Customer shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless the Seller and its officers, directors, employees, and agents, from and against any claim, loss, liability, damages, injuries, economic loss, cost, or expense (including attorneys’ fees) of any nature whatsoever (hereinafter collectively, “Claims”) arising out of or in any way connected with the sale of good or services or the parties’ performance of this Agreement, except to the extent such Claims arise out of the active negligence or willful misconduct by Seller.
DEFAULT: In consideration of Seller extending credit to Customer, Customer promises full and prompt payment of all indebtedness, obligations, and liabilities of every kind, present and future, incurred by Customer for materials and services purchased from Seller. Customer’s failure to make timely payment of any invoice shall result in Customer’s account being deemed in default, which may result in the account being placed on a COD basis, suspended, or cancelled. In the event of Customer’s default, Seller may (at its option) declare all indebtedness owed by Customer to Seller immediately due and payable, and Seller may defer, retain, or cancel shipments under any order and take immediate possession of materials delivered. A service charge of 18% per annum (1.5% per month) shall be assessed on all delinquent invoices. If Customer’s account is referred to an attorney or collection agency to collect on any indebtedness owed to Seller, Customer agrees to pay upon demand from Seller, all costs of collection, including reasonable attorneys’ fees and court costs. The rights and remedies given to Seller herein are cumulative to all other rights and remedies provided by law.
GOVERNING LAW AND VENUE: Customer agrees that all issues and disputes relating to this Agreement shall be construed under the laws of the State of California. Customer further agrees that the exclusive jurisdiction and venue for any legal action brought to enforce any and all disputes relating this Agreement shall be Riverside County, California, unless Seller initiates said legal action to enforce statutory remedies (such as enforcing claims on mechanics lien, stop payment notices, payment bonds, etc.) in connection with a debt incurred by Customer; in such case, the jurisdiction and legal venue will be determined by the requirements of the law of the state where such statutory remedies are to be enforced.
ACCEPTANCE / ENFORCEABILITY OF COPIES: Customer agrees that Seller may, at Seller’s sole discretion, accept, utilize, and rely upon a facsimile copy, electronic copy, or photocopy of this agreement (and a copy of any Continuing Personal Guaranty or Corporate Guaranty) in lieu of an original document. Customer acknowledges that by transmitting a facsimile copy, electronic copy, or photocopy of this document to Seller, Customer (and the Guarantor, if applicable) agrees to be bound by the terms and conditions contained in this document to the same extent as if an original were transmitted to Seller. Customer (and Guarantor, if applicable) consents to Seller’s use of this document and waive any right to object to the use of a copy in place of the original and any right to require Seller to subsequently produce an original document.
FORCE MAJEURE: Seller shall not be liable for delay in delivery (or inability to deliver) due to causes beyond Seller’s reasonable control, including, but not limited to: acts of God; acts of the Customer; acts of any civil or military authority; fires; strikes, picketing. or boycotts; floods; epidemics; quarantine restrictions; war, insurrection, or riot; embargoes; disturbances of production or supply with Seller’s manufacturers/suppliers; trucking or transit shortages; wrecks or delays in transportation; unusually severe weather; or inability to obtain necessary labor, materials, or manufacturing facilities due to such causes. In the event of any such delay or inability to deliver, the date of delivery shall be extended for a length of time equal to the period of the delay.
SEVERABILITY: If any term, covenant, or condition of this agreement, or the application thereof to any person or circumstance, shall, to any extent, be invalid or unenforceable, the remainder of this agreement or the application of such term, covenant, or condition to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term, covenant, or condition of this agreement shall be valid and shall be enforced to the fullest extent permitted by law.
COMPLETE AGREEMENT: These Terms and Conditions of Sale, together with any terms and conditions contained in Seller’s Quotation (if any) (collectively, “Seller’s Terms and Conditions”), constitute the entire understanding between Seller and Customer with respect to the sale of all goods and services furnished by Seller to Customer, superseding all negotiations, prior discussions, and preliminary agreements, if any.