KENTŪ Systems, LLC Standard Terms and Conditions
Other Terms Unacceptable and Hereby Rejected These Terms and Conditions apply
to KENTŪ products. Any attempt to reject these terms is ineffective and will
result in the cancellation of Customer's Agreement with KENTŪ.
Prices, Invoicing and Payment. All prices are quoted by KENTŪ and shall be paid
by Customer in US Dollars. Prices include handling, labeling, packing and
packaging. Prices do not include: shipping, and insurance charges; tariffs;
or any federal, state local, use, excise VAT or other similar taxes,
and those charges and taxes shall be added to each invoice.
Payment of each invoice for products is due within fifteen (15) days following
receipt. Any past due amount shall accrue interest at a rate which the lesser
of 1.5% per month or the maximum rate permitted by law. Customer shall
reimburse KENTŪ for reasonable attorney's fees and any other costs incurred by
KENTŪ to collect any amounts due.
Limited Warranty. KENTŪ warrants that each product shall perform substantially
in accordance with its published specifications and shall be free from defects
in workmanship and materials for a period of ninety (90) days following the
shipment date (the "Product Warranty Period"). KENTŪ, at its option, shall
replace or refund the purchase price of any product that is defective or
fails to perform according to its specifications during the Product Warranty Period.
THE FOREGOING LIMITED WARRANTY SHALL NOT APPLY TO CONFORMING PRODUCTS OR
NORMAL WEAR OR TEAR OR TO ANY PRODUCT DEFECT RESULTING FROM (i) TAMPERING
OR ALTERATION OF THE PRODUCT BY ANYONE OTHER THAN KENTŪ; (ii) LIGHTNING,
FIRE OR OTHER ACTS OF GOD; (iii) STORAGE, INSTALLATION OR USE OF THE PRODUCT
IN A MANNER THAT FAILS TO COMPLY WITH THE APPLICABLE SPECIFICATIONS; OR (v)
COMPLIANCE BY KENTŪ WITH THE CUSTOMER'S SPECIFICATIONS. KENTŪ DOES NOT WARRANT
THAT CUSTOMER'S USE OF ANY PRODUCT OR SERVICE WILL BE UNINTERRUPTED OR ERROR
FREE. KENTŪ's WARRANTY OBLIGATIONS ARE EXPRESSLY LIMITED TO THE REPLACEMENT OR
REFUNDING OF THE PURCHASE PRICE OF A PRODUCT AS DESCRIBED ABOVE. EXCEPT FOR THE
LIMITED WARRANTY SET FORTH IN THESE TERMS AND CONDITIONS, KENTŪ MAKES NO AND
DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, WITH RESPECT TO ANY PRODUCTS,
INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE. THESE DISCLAIMERS AND LIMITATIONS SHALL APPLY
REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Intellectual Property Rights. KENTŪ owns solely and exclusively all know how,
inventions (including patents) designs, techniques, drawings, trade secrets,
copyrights, trademarks and other intellectual property rights embodied in or
relating to the products. Customer shall not manufacture, copy, or reverse
engineer any patented products without a patent license from KENTŪ. In the
event Customer engages KENTŪ to design, develop or manufacture a custom product
("Custom Product"), Customer shall indemnify, defend and hold KENTŪ harmless
from and against any and all claims, liabilities, fines, costs and expenses
(including, without limitation, attorneys' fees and costs of litigation) of any
kind or character arising out of the design, development, manufacture, sale or
use of that Custom Product.
Limitation of Liability. EXCEPT FOR LIABILITY FOR PERSONAL INJURY OR DAMAGE TO
PROPERTY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER, WHETHER IN AN ACTION
UNDER CONTRACT, NEGLIGENCE, OR ANY OTHER THEORY, FOR ANY AMOUNT IN EXCESS OF THE
TOTAL AMOUNT OF COMPENSATION PAID OR PAYABLE BY CUSTOMER TO KENTŪ IN CONNECTION
WITH THE TRANSACTION UNDER WHICH THE LIABILITY ARISES. IN NO EVENT, HOWEVER,
SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL,
OR PUNITIVE DAMAGES OR FOR LOSS OF REVENUE OR PROFITS, EVEN IF THE POSSIBILITY OF
DAMAGES OR LOSS HAD BEEN DISCLOSED OR REASONABLY COULD HAVE BEEN FORESEEN. THESE
LIMITATIONS SHALL APPLY REGARDLESS OF ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED
CUSTOMER ACKNOWLEDGEMENT CUSTOMER ACKNOWLEDGES THAT THERE ARE NO WARRANTIES,
CONDITIONS, GUARANTEES OR REPRESENTATIONS AS TO THE MERCHANTABILITY, FITNESS FOR
A PARTICULAR PURPOSE, NONINFRINGEMENT, OR OTHER WARRANTIES, CONDITIONS, GUARANTEES
OR REPRESENTATIONS, WHETHER EXPRESS OR IMLIED, IN LAW OR IN FACT, EXCEPT AS EXPRESSLY
STATED IN THIS AGREEMENT. CUSTOMER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY WARRANTY,
CONDITION, GUARANTEE OR REPRESENTATION MADE BY KENTŪ, EXCEPT FOR THOSE EXPRESSLY SET
FORTH IN THIS AGREEMENT. CUSTOMER FURTHER ACKNOWLEDGES THAT THE LIMITATIONS CONTAINED
IN THIS AGREEMENT PERMIT KENTŪ TO PROVIDE PRODUCTS AT LOWER PRICES THAN IT OTHERWISE
COULD, AND THAT SUCH LIMITATIONS ON LIABILITY ARE REASONABLE:
Indemnification KENTŪ agrees to and shall protect, defend, indemnify and hold
harmless Customer from any and all claims, actions, costs, expenses and damages,
including attorney's fees and expenses arising out of: (i) KENTŪ's actual or
alleged patent, trademark or copyright infringement in the design, composition,
use, sale, advertising or packaging of the Products; or (ii) KENTŪ breach of the
representations or warranties set forth in the Standard Terms and Conditions.
Customer shall promptly notify KENTŪ of the commencement of any such action or suit,
or threats thereof, and KENTŪ shall be afforded the opportunity to retain reputable
counsel and to determine the manner in which such action or suit shall be handled
or otherwise disposed of.
Customer shall indemnify and hold KENTŪ harmless from and against all liabilities,
obligations, claims, damages, penalties, causes of action, costs and expenses,
including, without limitation, attorney's fees, imposed upon, incurred by or asserted
against KENTŪ that result from: (i) acts of negligence or misrepresentations by
Customer, its employees or agents; (ii) Customer's breach of any provision of its
agreement with KENTŪ; (iii) Customer's failure to meet its obligations or to
perform any acts required under its agreements with any third party; or
(iv) the relationship between Customer and any of its employees, agents, and
servants, whether under industrial accident laws, worker's compensation laws or
any other laws applicable to employers and employees.
The provisions of this Section shall survive the termination of this Agreement.
Cancellation KENTŪ may cancel this Agreement if Customer fails to pay for the
products in accordance with this Agreement, makes a misrepresentation to KENTŪ
or KENTŪ's agents or otherwise breaches Customer's obligations under this
Agreement. If KENTŪ cancels this Agreement, KENTŪ will send Customer notice of
cancellation, including the reason for cancellation and the effective date of cancellation.
KENTŪ may, at its discretion, terminate this Agreement on thirty (30) days notice to Customer.
Force Majeure. Neither party shall be liable for a failure to perform its
obligations (other than payment obligations) during any period in which that
performance is delayed or prevented by any fire, flood, war, embargo, strike,
riot, or intervention of any governmental authority, or any other similar
circumstances beyond the reasonable control of that party; provided, however, that
the party suffering the delay immediately notifies the other party in writing of
the reasons for and anticipated duration of the delay.
Assignability Customer without the prior, written consent of KENTŪ may not
assign this Agreement. KENTŪ may assign this Agreement upon written notice to
Customer. KENTŪ may supply products hereunder by use of independent contractors or
Merger / Amendments / Waivers This Agreement contains the sole and entire agreement
between KENTŪ and Customer with regard to transactions hereunder and supersedes all
prior written or oral understandings as to this subject matter. No modification or
amendment of this Agreement shall be valid unless in writing and properly executed
by KENTŪ and Customer. Any waiver by KENTŪ of any of the terms hereof must be in
writing. No waiver by KENTŪ of any defaults or breaches by Customer shall waive
any future default or breach, whether alike or different in character.
Headings Section and paragraph headings are for convenience only and do not
modify or amend the express provisions of this Agreement.
Confidentiality Each party will treat confidentially all proprietary and
confidential information of the business operations of the other party
acquired by reason of or in connection with the supplying of products hereunder.
Excused Performance Neither party shall be deemed to be in breach of any provision
hereof or be liable for any delay, failure in performance or interruption of
service resulting directly or indirectly from acts of God, civil or military
authority, civil disturbances, war, strikes, fires, floods, other catastrophes,
or other cause beyond its reasonable control.
Miscellaneous Provisions No action arising out of any claimed breach of this
Agreement or arising out of transactions thereunder, may be brought by either
party more than two (2) years after the product that is the subject of the
action has been purchased. If not further limited by this Section, KENTŪ's
liability for claims, losses, damages or injury arising out of any breach of
his Agreement or product sold by KENTŪ shall not exceed a refund of the
amount paid by customer to KENTŪ for the product supplied hereunder. Customer's
right to damages in such amount shall be in lieu of all other remedies which
customer may have against KENTŪ, its parent company, affiliates, directors,
officers, shareholders, employees and agents.
General. (a) Nothing in these terms and conditions shall be deemed or construed
to create for any purpose an employer/employee, joint venture, partnership, or
agency relationship between KENTŪ and Customer. (b) These terms and conditions
shall be governed by and interpreted in accordance with the laws of the State
of Colorado. In the event of any dispute arising out of or relating to this
Agreement, or the product that is the subject hereof, including any claim of
misrepresentation or breach thereof, but excluding any claims involving
intellectual property rights, KENTŪ and customer agree to submit such dispute
for resolution by binding arbitration in accordance with the rules of the
American Arbitration Association. Such arbitration shall be undertaken in
Denver, Colorado. The arbitrator's decision shall be in writing and shall contain
the findings of fact and conclusions of law. Such decision shall be final and
binding and may be enforced in any court of competent jurisdiction. Each party
to this Agreement shall pay its own costs related to the arbitration, and each
shall pay half the fees and expenses of the arbitrator(s) and any fees charged
in relation to the arbitration. (c) These terms and conditions apply to all
products supplied by KENTŪ, its affiliates, its agents or contractors regardless
of location. All other terms, whether provided prior to or after these terms have
been provided, are hereby rejected as unacceptable unless otherwise expressly agreed
upon in writing. Specifically, these terms and conditions shall prevail over the
preprinted terms of any purchase order, work order or other similar document issued
by Customer, and those preprinted terms shall be of no force or effect whatsoever.
In addition, the terms set forth elsewhere in any written KENTŪ Proposal into which
these terms and conditions are incorporated shall prevail to the extent of any
conflict with these terms and conditions.
Should you have any questions regarding our Terms and Conditions, please contact us at 970.592.3185.