Terms & Conditions of Sale before 8/11/2015
KOLBE & KOLBE MILLWORK CO., INC.
TERMS AND CONDITIONS OF SALE
1. OFFER; ACCEPTANCE:
The terms and conditions of product sales are limited to those contained herein. Any additional or different terms in any forms delivered by you ("Customer") are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given. By accepting delivery of the products described in Kolbe & Kolbe Millwork Co., Inc.'s invoice or other Kolbe & Kolbe Millwork Co., Inc. ("Kolbe") documentation, Customer agrees to be bound by and accepts these Terms & Conditions of Sale unless Customer and Kolbe have signed a separate agreement, in which case the separate agreement will govern.
These Terms & Conditions of Sale constitute a binding contract between Customer and Kolbe and are referred to herein as either "Terms & Conditions of Sale" or this "Agreement." Customer accepts these Terms & Conditions of Sale by making a purchase, placing an order, or otherwise shopping on Kolbe's website (the "Site"). These Terms & Conditions of Sale are subject to change without prior notice, except that the Terms & Conditions of Sale posted on the Site at the time Customer places an order will govern the order in question, unless otherwise agreed in writing by Kolbe and Customer. Customer may issue a purchase order for administrative purposes only. Additional or different terms and conditions contained in any such purchase order will be null and void. Customer agrees that the Terms & Conditions of Sale contained herein and in Kolbe's invoice or other Kolbe documentation will control. No course of prior dealings between the parties and no usage of trade will be relevant to determine the meaning of these Terms & Conditions of Sale or any purchase order or invoice related thereto.
2. PRICE & PAYMENT:
All prices, discounts and transportation charges are in U.S. Dollars and are subject to change without notice. If no price is stated on Kolbe's invoice, prices shall be Kolbe's current prices in effect on the date of acceptance of orders by Kolbe (or, in Kolbe's sole discretion, on the date of shipment) as set forth on price lists issued or modified by Kolbe from time to time. All general or special taxes, duties, fees, freight and insurance costs and any other charges of any nature whatsoever, imposed on, in connection with or measured by any transaction between Kolbe and the Customer shall be paid by the Customer in addition to the prices quoted or invoiced.
Unless otherwise stated in the quotation or invoice, payment terms are 2% 10 days net 11 days from Kolbe's delivery of the products to the Delivery Point. Terms of payment on all orders are subject to the approval of Kolbe's Credit Department. If Customer does not pay Kolbe any amount when such amount is due, or if Customer defaults in the performance of these Terms & Conditions of Sale, Kolbe may, without incurring liability and without prejudice to Kolbe's other lawful remedies and at its sole option: (i) terminate Kolbe's obligations under these Terms & Conditions of Sale and/or any quotation or invoice issued from Kolbe to Customer, (ii) declare immediately due and payable all of Customer's obligations to Kolbe, (iii) change credit terms with respect to any further work, (iv) suspend or discontinue any further work until Customer pays all overdue amounts and/or (v) repossess the products. Customer agrees to reimburse Kolbe for all costs incurred by Kolbe in collecting any sums owed by Customer to Kolbe, including without limitation, attorneys' fees and costs of proceedings. Customer agrees to pay, at Kolbe's discretion, a late payment fee of up to 1.5% per month on all amounts not paid in full when due. Kolbe reserves the right to require payment in advance or other secured form of payment from time to time.
3. CANCELLATION OR MODIFICATION:
Customer may not cancel or modify its order except upon terms accepted in writing by Kolbe. In the event of such cancellation or modification, Customer shall compensate Kolbe for all resultant costs and damages. All undelivered products may be cancelled by Kolbe, without incurring any liability to Customer, if production becomes impracticable.
4. QUOTATIONS AND ORDERS:
Orders are not binding upon Kolbe until accepted by Kolbe. All orders are subject to Kolbe management approval. Written quotations are void unless accepted within thirty (30) days from date of issue. Kolbe reserves the right to accept or reject Customer's purchase orders in its sole discretion. Any accepted purchase orders shall be governed by these Terms & Conditions of Sale and no additional or different terms in any such purchase order shall be part of the parties' agreement unless otherwise agreed in writing.
Customer may select the mode of transportation, routing and carrier for delivered orders. If Customer does not provide Kolbe with shipping instructions, then Kolbe shall select the mode of transportation for delivered orders. Kolbe will use its reasonable business efforts to meet any scheduled dates, but does not guarantee to meet such dates. Time for delivery shall not be of the essence. Failure by Kolbe to make any shipments by scheduled dates does not constitute a cause for cancellation and/or for damages of any character. In the event of delay in delivery requested by Customer or caused by Customer, Kolbe will store all products at Customer's risk and expense.
6. TITLE; RISK OF LOSS; INSPECTION:
Kolbe shall deliver the products to the "Delivery Point." Unless otherwise stated in Kolbe's quotation or invoice, for sales to Customers in the United States, the "Delivery Point" shall be F.C.A. named place, and for sales to Customers outside the United States, the "Delivery Point" shall be EX WORKS Kolbe's manufacturing facility pursuant to INCOTERMS 2010, as may be amended from time to time. Partial shipments shall be permitted. Kolbe is not responsible for any loss, damage, or delay which may occur after Kolbe delivers product to the Delivery Point. Title to the product shall vest in Customer upon Kolbe's delivery of the product to the Delivery Point. Customer shall inspect the products upon receipt and any claims for shortages or other errors must be noted at the time of delivery on all Kolbe documents and supported by signed documentation. Claims for shortages or other errors must be made in writing to Kolbe within thirty (30) days after Kolbe's delivery of the products to the Delivery Point. Failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Customer. No products may be returned to Kolbe for any reason without Kolbe's prior written authorization.
7. LIMITED WARRANTY:
SEE KOLBE'S EXPRESS LIMITED WARRANTIES FOR PRODUCT WARRANTY INFORMATION.
8. LIMITED LIABILITY:
PRIOR TO USING PRODUCTS, CUSTOMER SHALL DETERMINE THE SUITABILITY OF THE PRODUCT FOR THE INTENDED USE AND CUSTOMER SHALL ASSUME ALL RISK AND LIABILITY WHATSOEVER IN CONNECTION THEREWITH. IN NO EVENT SHALL KOLBE BE LIABLE FOR INCIDENTAL, INDIRECT, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS. KOLBE'S AGGREGATE LIABILITY WITH RESPECT TO A DEFECTIVE PRODUCT AND THESE TERMS & CONDITIONS OF SALE AND/OR ANY QUOTATION OR INVOICE ISSUED FROM KOLBE TO CUSTOMER SHALL BE LIMITED TO THE REMEDIES AS SET FORTH IN KOLBE'S EXPRESS LIMITED WARRANTIES.
9. KOLBE PRODUCT WARRANTY & OTHER MANUFACTURER'S WARRANTIES:
Products produced and manufactured by Kolbe have a separately stated Kolbe product warranty with terms and conditions that may apply. On products furnished by Kolbe, but produced or manufactured by others, the written warranty of the manufacturer, if any, will be assigned to Customer if assignment is reasonably practicable. However, Kolbe does not adopt or guarantee or represent that the manufacturer will comply with any of the terms of the warranty of such manufacturer.
10. CONFLICTS BETWEEN KOLBE POLICIES:
In the event of a conflict, these Terms & Conditions of Sale supersede Kolbe's Basic Policy Guidelines, to the extent of such conflict.
Kolbe agrees to indemnify and hold Customer harmless from and against any and all claims, damages, and liabilities asserted by third parties against Customer for claims that the Kolbe products are defective. Said indemnification obligation applies only in those instances where Customer was a mere reseller of the Kolbe products but is null and void in situations, including, but not limited to, where Customer has installed, serviced, or otherwise modified the Kolbe products in any manner. Kolbe has no indemnification obligation to the Customer for claims against the Customer for Customer's own negligence or intentional acts, including, but not limited to, Customer's recommendations on product selection, instruction on or approval of product installation, and calculations or miscalculations regarding measurements related to product orders.
Customer agrees to indemnify and hold Kolbe harmless from and against all claims, damages, and liabilities asserted by third parties against Kolbe for claims relating to or arising from the negligence or intentional acts of Customer relating to its sale, installation, or service of Kolbe products, including its representations or instructions relating to the same.
The indemnification obligations stated herein include the payment of all reasonable attorneys ' fees and other costs incurred by the indemnified Party in defending any such claim. The party requesting indemnification shall promptly inform the other party, in writing, of the relevant claim, demand, or suit and shall fully cooperate in the defense thereof, including the performance of any appropriate acts of mitigation, and will not agree to settle any claim without the consent of the indemnifying Party, whose consent will not be unreasonably withheld. The party seeking indemnification shall not act in any manner which will prejudice the indemnifying party's actual or potential defense of any claim.
12. FORCE MAJEURE:
Kolbe will endeavor to fill all accepted orders as soon as it is practical and consistent with production schedules. Kolbe shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism, insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding Kolbe's available supply, or any other cause beyond Kolbe's control affecting production or delivery. In the event of any delay in shipment or nonperformance caused by any of the foregoing, Kolbe may, at its option and without liability, cancel all or any portion of its obligations to Customer and/or extend any date upon which performance is due.
No modification of these Terms & Conditions of Sale shall be of any force or effect unless in writing and signed by Kolbe's authorized officer or employee, and no modification shall be affected by the acknowledgement or acceptance of purchase order forms stipulating different conditions.
14. GOVERNING LAW:
THESE TERMS & CONDITIONS OF SALE AND ANY SALE OF PRODUCTS HEREUNDER WILL BE GOVERNED BY THE LAWS OF THE STATE OF WISCONSIN, WITHOUT REGARD TO CONFLICTS OF LAWS RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN MARATHON COUNTY, WISCONSIN AND CUSTOMER CONSENTS TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMITS TO THE JURISDICTION THEREOF, AND WAIVES THE RIGHT TO CHANGE VENUE. CUSTOMER FURTHER CONSENTS TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. EXCEPT IN THE CASE OF NONPAYMENT, NEITHER PARTY MAY INSTITUTE ANY ACTION IN ANY FORM ARISING OUT OF THESE TERMS & CONDITIONS OF SALE MORE THAN ONE (1) YEAR AFTER THE CAUSE OF ACTION HAS ARISEN.
15. SEVERABILITY; CLERICAL ERRORS; WAIVER; AUTHORIZED AGENTS:
The invalidity or unenforceability of any provision or clause of the Terms & Conditions of Sale shall not affect the validity or enforceability of any other provision or clause. Kolbe reserves the right to correct clerical or similar errors relating to price or any other term shown in these Terms & Conditions of Sale and/or any quotation or invoice issued from Kolbe to Customer. Failure of either party to insist, in any one or more instances, upon performance of any term, covenant or condition of these Terms & Conditions of Sale and/or any quotation or invoice issued from Kolbe to Customer shall not be construed as a waiver or relinquishment of any right granted hereunder or of the future performance of such term, covenant or condition. Kolbe reserves the right to amend these Terms & Conditions of Sale from time to time. The provisions of sections 2, 8, 11, 13, 14 and 15 shall survive termination of these Terms & Conditions of Sale and/or any quotation or invoice issued from Kolbe to Customer.
To the extent applicable, the products and all shipments are subject to compliance with the U.S. Export Administration Act, as amended, the regulations thereunder, and all other U.S. laws and regulations concerning exports and re-exports. Customer agrees to comply with all such laws and regulations.
These Terms & Conditions of Sale and/or any quotation or invoice issued from Kolbe to Customer is binding upon and inures to the benefit of Customer and Kolbe and their respective successors and assigns. Customer may not assign these Terms & Conditions of Sale and/or any quotation or invoice issued from Kolbe to Customer, or any part thereof, without Kolbe's prior written consent.
Kolbe and Customer anticipate that it may become necessary to provide the other, including their respective affiliates, with access to information of a confidential or proprietary nature, (hereinafter referred to as "Proprietary Information") in the performance of this Agreement. "Proprietary Information" means any information or data in oral and/or in written form which the receiving party knows or has reason to know is proprietary in nature and which is disclosed in connection with this Agreement or which the receiving party may have access to in connection with this Agreement. Proprietary Information will not include information which: (a) becomes known to the public from a source other than the receiving party; (b) was known to the receiving party, or becomes known to the receiving party from a third party having the right to disclose it and having no obligation of confidentiality to the disclosing party with respect to the applicable information; or (c) is independently developed by personnel of the receiving party who have not had access to such information. To the extent practicable, Proprietary Information should be clearly identified or labeled as such by the disclosing party at the time of disclosure or as promptly thereafter as possible, however, failure to so identify or label such Proprietary Information will not be evidence that such information is not proprietary or protectable. Kolbe and Customer agree to hold such Proprietary Information confidential in the same manner as they hold their own Proprietary Information confidential. Disclosures of Proprietary Information will be restricted to those individuals who are participating in the performance of this Agreement and need to know such Proprietary Information for purposes of this Agreement. Upon the request of Kolbe or Customer, the other party will either return or certify the destruction of the Proprietary Information of the other. If a receiving party is required by law, rule or regulation, or requested in any judicial or administrative proceeding or by any governmental or regulatory authority, to disclose the Proprietary Information, the receiving party will give the disclosing party prompt notice of such request so that disclosing party may seek an appropriate protective order or similar protective measure.
19. SECURITY INTEREST:
As partial consideration for Kolbe's sale of products to Customer, Customer hereby grants to Kolbe a security interest in all products sold to Customer now or hereafter in the possession of or under the control of Customer, title to which might at any time be determined to have passed to Customer, including, without limitation, all products and materials thereof or any other products bearing any trademark of Kolbe, returns or repossessions and the proceeds of all of the foregoing, to secure all of Customer's obligations to Kolbe under these Terms & Conditions of Sale and all other obligations of Customer to Kolbe. Customer agrees to execute such financing statements, continuation statements and other documents and to take such actions as may be required by Kolbe to evidence or perfect the security interest granted herein and the interest of Kolbe as the owner of the products.
20. ARBITRATION & MEDIATION:
In the event of any disagreement or dispute between Kolbe and Customer relating to these Terms & Conditions of Sale, the parties shall submit such disagreement or dispute initially to mediation. If they are unable to resolve the disagreement or dispute by mediation, the matter will be submitted to binding arbitration pursuant to the rules of the American Arbitration Association or, if the parties agree, another or similar association or service mutually agreeable to the parties. The mediation and arbitration shall be carried out in Wausau, Wisconsin and any judgment upon the award rendered pursuant to such proceeding may be entered in any court having jurisdiction thereof.
For questions or comments regarding these terms, please submit them in writing. Addresses are available in