KBM Advanced Materials, LLC
TERMS & CONDITIONS OF SALE
Thank you for your interest in KBM Advanced Material, LLC (“KBM”) products. Quotations and Orders are subject to the following Terms and Conditions of Sale (“Terms”).
1. ACCEPTANCE OF ORDERS: These Terms apply to the purchase of Goods by the Customer. These Terms shall be deemed incorporated into any Orders that a Customer may place with KBM. Any terms and conditions submitted by a Customer that are inconsistent with, different than, or in addition to these terms and conditions herein are null, void and not binding upon KBM, unless KBM, through an authorized representative, specifically agrees to such terms and conditions in writing.
2. TITLE/RISK OF LOSS. Title to and risk of loss of the Goods shall transfer from KBM to Customer when the Goods are placed at the disposal of the designated carrier at KBM’s warehouse. Goods shall be purchased by Customer Ex-works, per Incoterms 2020, with delivery and insurance pre-paid and added.
3. CREDIT APPROVAL. For a Customer’s initial order, the terms are payment before delivery, unless otherwise agreed in writing by an authorized representative of KBM. Customers seeking credit terms are required to complete and submit to KBM, KBM’s Credit Application which will include, but is not limited to, bank references and additional credit references. Extension of credit is subject to approval at KBM’s sole discretion. If seeking credit terms, please allow additional lead time for account approval.
4. PAYMENT. Payment shall be made by wire transfer or ACH to a bank account as directed by KBM or via credit card. Instructions to be provided at time of sale.
If any invoice is not paid when due, interest will be added to and payable on all overdue amounts at 10% over WSJ Prime (floating), not less than 12 percent per year, or the maximum percentage allowed under applicable laws, whichever is less. Customer shall pay all costs of collection, including without limitation, reasonable attorney fees.
In addition to any other right or remedy provided by law, if Customer fails to pay for the Goods when due, KBM has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies as described below under "Remedies on Default."
5. DELIVERY. Lead times are quoted from date of KBM’s acceptance of an Order. Quoted shipping dates are a best estimate only at time of quotation and are subject to revision at KBM’s sole discretion upon receipt of a valid Order, which is compliant with these Terms. KBM shall have the right to make complete or partial deliveries, at its sole discretion.
6. PAYMENT OF TAXES. Customer agrees to pay all taxes of every description, federal, state, and municipal, that arise as a result of this sale, excluding income taxes.
7. WARRANTIES. KBM makes no representations and warranties to Customer with respect to Goods purchased by Customer other than the product certifications, specific to, and supplied with the Goods and that it sells the Goods to Customer free from all liens and encumbrances and with good title. This Warranty does not apply to or cover: defects or damage caused by or resulting from external causes including, but not limited to, accident, carrier handling, abuse, neglect, unusual physical stress, cosmetic damage, flood, fire, earthquake or any other natural disasters.
KBM DISCLAIMS ANY AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRATNIES OF MECHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
KBM SHALL IN NO EVENT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE, EVEN IF KBM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. KBM’S LIABITLITY HEREUNDER IS EXPRESSLY LIMITED TO THE REPLACEMENT OF ANY NON-CONFORMING GOODS.
8. TERMINATION. Orders may be terminated by KBM in the event that Customer defaults in its performance of any Term hereunder. Furthermore, Customer may terminate any Orders in the event of any of the following or any other comparable event: (i) insolvency of the Customer; (ii) filing of a voluntary petition in bankruptcy by or an involuntary petition against Customer; (iii) appointment of a receiver or trustee for Customer; or (iv) execution of an assignment for the benefit of creditors by Customer.
9. INSPECTION. Customer, upon receiving possession of the Goods, shall have a reasonable opportunity to inspect the Goods to determine if the Goods conform to the requirements of this Agreement under Section 8. If Customer, in good faith, determines that all or a portion of the Goods are non-conforming, Customer may return the Goods to KBM at Customer's expense. Customer must provide written notice to KBM of the reason for rejecting the Goods. KBM will have 45 days from the return of the Goods to remedy such defects under the terms of this Agreement.
10. INDEMNITY: Customer shall defend, indemnify, and hold harmless KBM and its affiliates and their respective officers, directors, employees, and representatives, from and against any and all claims, suits, losses, obligations, causes of action, damages, and expenses (including attorney’s fees) relating to or arising out of: (a) any use, sale, resale, or distribution of the Goods by Customer or Customer’s customers; and (b) any breach by Customer of these Terms.
11. CANCELLATION; RETURNS: Orders accepted by KBM are not subject to cancellation and Goods which are properly delivered are not subject to return, except in accordance with Section 9.
12. COMPLIANCE WITH LAWS: Sale of the Goods is subject to all applicable laws and regulations relating to the Goods. Customer acknowledges that some of the technical information relating to the Goods themselves may be controlled for export, retransfer and re-export. Customer confirms that it is familiar with and will comply with all obligations under these regulations, including without limitation, the requirement not to disclose such controlled technical data or technology to a foreign person, even within the United States, without prior authorization. Customer shall comply with the terms and provisos of any such authorization, including, without limitation, any Technical Assistance Agreement or license. Customer further agrees to comply with all applicable laws, including, without limitation, all anti-corruption and bribery laws.
13. JURISDITION: The sale of Goods shall be governed by and construed according to the laws of the State of Ohio without reference to its conflicts of law principles.
14. DEFAULT. The occurrence of any of the following shall constitute a material default under this Agreement:
a. The failure to make a required payment when due.
b. The insolvency or bankruptcy of either party.
c. The subjection of any of either party's property to any levy, seizure, general assignment for the benefit of creditors, application or sale for or by any creditor or government agency.
d. The failure to make available or deliver the Goods in the time and manner provided for in this Agreement.
15. REMEDIES ON DEFAULT. In addition to any and all other rights a party may have available according to law, if a party defaults by failing to substantially perform any provision, term or condition of this Agreement (including without limitation the failure to make a monetary payment when due), the other party may terminate the Agreement by providing written notice to the defaulting party. This notice shall describe with sufficient detail the nature of the default. The party receiving such notice shall have 30 days from the effective date of such notice to cure the default(s). Unless waived by a party providing notice, the failure to cure the default(s) within such time period shall result in the automatic termination of this Agreement.
16. FORCE MAJEURE. If performance or any obligation under this sale of Goods is prevented by causes beyond either party's reasonable control ("Force Majeure"), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
17. DISPUTE RESOLUTION. Any controversies or disputes arising out of or relating to this sale of Goods shall be resolved by binding arbitration in accordance with the rules of the American Arbitration Association. The parties shall select a mutually acceptable arbitrator knowledgeable about issues relating to the subject matter of this sale of Goods. The arbitrator(s) shall not have the authority to modify any provisions of this sale of Goods or to award punitive damages. The arbitrator(s) shall have the power to issue mandatory orders and restraint orders in connection with the arbitration. The decision rendered by the arbitrator(s) shall be final and binding on the parties, and judgment may be entered in conformity with the decision in any court having jurisdiction. During the continuance of any arbitration proceeding, the parties shall continue to perform their respective obligations under this sale of Goods. The location of such arbitration shall by Cincinnati, Ohio.
18. CONFIDENTIALITY. Both parties acknowledge that under these Terms, each may obtain confidential information regarding the other party's business. Both parties agree to treat all such information and the terms of this sale of Goods as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this sale of Goods. Upon request by an owner, all documents relating to the confidential information will be returned to such owner or destroyed.
19. NOTICE. Any notice or communication required or permitted under these Terms shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for.
20. ENTIRE AGREEMENT. These Terms, along with any special terms attached hereto or which incorporate these Terms by reference, contain the entire agreement of the parties regarding the subject matter of this Agreement, and there are no other promises or conditions in any other agreement whether oral or written. This Agreement supersedes any prior written or oral agreements between the parties.
21. SEVERABILITY. If any provision of these Terms shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this sale of Goods is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
22. WAIVER OF CONTRACTUAL RIGHT. The failure of either party to enforce any provision of these Terms shall not be construed as a waiver or limitation of that party's right to subsequently enforce and compel strict compliance with every provision of this sale of Goods.
Terms and Conditions
KBM Advanced Materials, LLC