Terms & Conditions
Terms and Conditions of Sale between Party Seeking to Purchase Goods on this Website (“Buyer”) and Kriz-Davis Co., a Nebraska corporation (“Seller”)
1. Acceptance: The parties have read, understand, and accept these Terms and Conditions. All Terms and Conditions proposed by Buyer which are different from or in addition to these Terms and Conditions submitted by Seller are unacceptable to Seller and are specifically rejected by Seller. Buyer may signify acceptance of these Terms and Conditions by clicking “I Accept.”
2. Title and Risk of Loss or Damage: As to goods delivered by Seller’s truck, title passes upon delivery at the place Buyer receives possession; and, thereafter, all risk of loss shall be on Buyer. All other sales are F.O.B., point of shipment, and Buyer takes title and assumes responsibility for risk of loss or damage at the point of shipment for such sales. Claims for goods damaged in transit are Buyer’s sole responsibility when not delivered by Seller’s truck.
3. Taxes: Prices shown do not include sales or other taxes imposed on the sale of goods. Taxes now or hereafter imposed on sales or shipments will be added to the purchase price based on the rates imposed by the taxing authority having jurisdiction over the sale of the Seller’s products to the Buyer. Buyer agrees to reimburse Seller for any such tax or provide Seller with acceptable tax exemption certificates.
4. Delivery: Shipping dates are approximate and are dependent upon prompt receipt of all necessary information by the Buyer. Seller shall not be liable for late delivery due to fire, strike, civil or military authority, war, acts of God, natural disasters, insurrection or riot, unavailability of material or parts, and for other causes beyond reasonable control of Seller. Seller shall not be liable for incidental or consequential damages arising from late delivery. If Buyer requires a more expeditious method of transportation for the goods than the transportation method originally agreed to by the parties, Buyer shall separately notify Seller of such and Seller shall ship the goods as expeditiously as reasonably possible, at Buyer’s expense.
5. Installation: All equipment and supplies shall be installed by and at the expense of the Buyer unless otherwise stipulated in writing. Seller may furnish, at its option, engineers to supervise installation of the equipment. The expenses shall be borne by the Buyer. If performance of the Seller under this contract is prevented, hindered, delayed or otherwise made impracticable by reason of fire, strike, civil or military authority, war, acts of God, natural disasters, insurrection or riot, unavailability of material or parts, and for other causes beyond reasonable control of Seller (hereafter called “Event”), and which cannot be overcome by reasonable diligence and without unusual expense, Seller is excused from his performance to the extent that it is necessarily prevented, hindered or delayed by the Event and for so long as the Event continues to prevent, hinder or delay the Seller’s performance. Buyer accepts responsibility for all loss occurring during the erection of any and all products sold by Seller affected by an Event. Seller shall not be liable for incidental or consequential damages arising from late delivery.
6. Payment Terms: The parties hereto acknowledge and agree that the Buyer will pay the entire purchase price according to Seller’s terms of sale or upon such other terms approved by Seller in writing. Retainage shall not apply, and Buyer shall not hold back any retainage from Seller even if retainage is part of any contract between Buyer and any other party, unless agreed to in writing by a Seller Officer. Payment is not contingent on Buyer’s ability to collect or obtain funds from any other party. Buyer expressly represents it is solvent at the time it places any purchase order with Seller. Seller, in its sole discretion, may determine that Buyer’s financial condition requires full or partial payment prior to manufacture or shipment. If Buyer fails to make any payment when due, Seller reserves the right to suspend or cancel performance. Buyer agrees to pay a finance charge on all amounts past due at the rate of 1.33% per month (16% per year) or the maximum lawful rate, whichever is less. In the event Seller retains legal counsel for the purposes of enforcing any of these Terms and Conditions or to collect from Buyer due to a non-payment of the goods purchased, Buyer agrees to pay Seller’s reasonable attorney fees and costs. Seller may apply payments to any outstanding invoices in its sole discretion unless Buyer provides specific payment direction contemporaneous with and as part of said payment. Notwithstanding any attempt by Buyer to limit its liability by noting on a check or voucher that the payment constitutes “payment in full”, same shall be considered a “request” for Seller’s approval, and shall be considered by Seller provided it is sent by certified mail, return receipt, to Seller at 2400 W 3rd St., P.O. Box 1427, Grand Island NE 68802-1427 Attn: Controller, and thereafter Buyer either receives a written acknowledgement from the Accounts Receivable Manager acknowledging same, or obtains a written Release signed by the Accounts Receivable Manager or a corporate officer of Seller releasing Buyer from further liability based upon said payment. Seller will not be liable to honor requests of checks marked “Payment in Full” if they are not sent and approved as instructed above.
7. Acceptance/Termination: Acceptance of any order is subject to credit approval by Seller, acceptance of the order by Seller and, when applicable, Seller’s Vendor (i.e. Manufacturers, vendors, or other third parties that provide goods to Seller for resale to Buyer). Buyer expressly represents it is solvent at the time it places any purchase order with Seller. Buyer agrees to furnish Seller financial statements of Buyer upon request. Seller, in its sole discretion, may determine that Buyer’s financial condition requires full or partial payment prior to manufacture or shipment. If Buyer fails to make any payment when due, is otherwise in default under these Terms and Conditions, or if Seller has reason to believe Buyer is insolvent, Seller reserves the right to suspend or terminate performance without any liability to Seller. Buyer acknowledges that no specifications, conditions, Purchase Orders, contracts, or other documents submitted by Buyer to Seller attempting to modify, revise or otherwise impose terms of sale or performance upon Seller other than as provided herein shall act to modify these Terms and Conditions of Sale or otherwise obligate Seller to perform pursuant to said document(s), unless and until same have been approved by Seller in a separate writing executed by an officer of Seller. No other Seller employee or agent has the authority to modify these Terms and Conditions of Sale, either verbally or in writing. Seller objects to and rejects any terms between Buyer and any other party, and no such terms, including but not limited to any government regulations or “flow-down” terms, shall be a part of or incorporated into any order from Buyer to Seller, unless agreed to in writing by an Officer of Seller.
8. Warranties: This general warranty policy supersedes any other warranties and cannot be expanded without the prior and specific written consent of Seller, signed by a corporate officer or division manager of Seller. Seller shall have no obligation to perform under the terms of this warranty provision as long as there is a past due balance owed Seller by Buyer or Buyer is otherwise in default under these Terms and Conditions of Sale. Seller will extend to Buyer all transferable warranties made to Seller by the manufacturers or suppliers of materials. SELLER MAKES AND GIVES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, AND IT IS EXPRESSLY UNDERSTOOD THAT IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE SPECIFICALLY EXCLUDED WITH RESPECT TO ANY AND ALL GOODS, MATERIALS OR SERVICES FURNISHED BY SELLER. Seller does not guaranty that the goods it sells conform to any plans and specifications or intended use. When plans and specifications are involved, Buyer is solely responsible for verifying Seller’s interpretations of such plans and specifications, and it’s Buyer’s sole responsibility to assure that Seller’s goods will be accepted on any specific job. When Seller offers substitute goods on any proposal, Buyer is solely responsible for confirming their acceptability. No repair of goods or other costs are assumed by Seller unless agreed to, in advance, in writing.
9. Limited Liability: Seller shall not under any circumstances and for any reason whatsoever, be liable for special or consequential damages to the Buyer, including, but not limited to damages or loss of other property or equipment, loss of profits or revenue, costs of purchase or replacement goods, delays, or claims asserted by parties in contract with Buyer. Any Warranty remedy of Buyer shall be with respect and limited to any warranty extended by the Manufacturer. The remedy of the Buyer set forth herein is exclusive, and the liability of Seller with respect to any contract, or anything done in connection therewith such as performance or breach thereof, or from the sale, delivery, resale, installation or use of any goods sold, whether arising out of any contract negligence, strict tort, or under any warranty or otherwise, shall not exceed the price of the goods upon which such liability is based.
10. Indemnification: Buyer shall indemnify, defend, and hold Seller and its officers, directors, employees and agents harmless from any and all costs (including attorneys’ and accountants' fees and expenses), liabilities and damages resulting from or related to any third party (including Buyer’s employees) claim, complaint and/or judgment arising from Buyer’s use of any goods furnished hereunder, as well as any negligent, intentional, or tortious act or omission of Buyer or any material breach by Buyer of these Terms and Conditions.
11. Applicable Law: These Terms and Conditions shall be governed by the internal law of the State of Nebraska, without regard to conflict of law principles. Each party a) submits to the jurisdiction of any state or federal court sitting in the State of Nebraska; b) agrees that any claims that arise out of or relate to these Terms and Conditions shall only be brought in a state or federal court sitting in the State of Nebraska; and c) waives any defense of inconvenient forum, improper venue, or lack of personal jurisdiction to an action brought in a state or federal court sitting in the State of Nebraska.
12. Assignment: Seller and Buyer agree that Seller may assign all its right, title and interest in the account created hereby including without limitation, its collection remedies; and, Buyer hereby consents to any such assignment.
13. Cancellation: An order may be cancelled by the Buyer only if agreed to by Seller and upon payment of reasonable charges based upon expenses already incurred and commitments made by Seller.
14. Returned Goods Policy All material to be returned should be accompanied by documentation providing Seller with the invoice number and date, product identification number, quantity of items to be returned and the reason for the return.
Stock items: Seller will issue credit for material returned that meets the following conditions:
i. Material being returned should be delivered to Seller within 60 days of invoice date. After the expiration of said 60 day period, at Seller’s sole and absolute discretion, it may accept said materials for return in conjunction with the assessment of a reasonable re-stocking charge.
ii. Notwithstanding the date of return, Seller shall have the right to reject any returned materials which are not of sufficient and reasonable quantity and in resalable condition, in the sole and absolute discretion of Seller.
iii. Materials are not special ordered or specially fabricated.
iv. Material accepted for return after 60 days may be assessed a restocking charge.
Non-stock items: Returns are subject to returned goods policies and procedures of Seller’s suppliers; provided, however, any return necessitated by defective shipment shall be given credit by Seller to Buyer. Returned Goods will only be accepted by Seller trucks if the return has been previously authorized by the issuance of a Return Material Authorization.
15. Entity Status Change: In the event of any change in the legal status of the person or entity submitting this Credit Application, or a transfer of a majority of the assets of the Applicant to a third party, the person or legal entity applying for credit and all guarantor(s) of Buyer’s obligations, shall remain liable, jointly and severally, for all purchases made and charged to the account subsequent to said change or transfer, including, but not limited to, the Terms and Conditions, until such time as Seller acknowledges in writing by a Division Manager or Corporate Officer of Seller that it has received written Notice of such change or transfer, after which Applicant will remain liable until all amounts due on the account to the date of such Notice having been received and the account has been paid in full.
16. Exporting: Buyer acknowledges that this order and the performance thereof are subject to compliance with any and all applicable United States laws, regulations, or orders. Buyer agrees to comply with all such laws, regulations, and orders, including, if applicable, all requirements of the International Traffic in Arms Regulations and/or the Export Administration Act, as may be amended. Buyer further agrees that if the export laws are applicable, it will not disclose or re-export any technical data received under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of export or transfer, unless Buyer has obtained prior written authorization from the United States Office of Export Control or other authority responsible for such matters. Buyer NOT Seller is responsible for compliance with all United States export control rules and regulations. Buyer shall not name seller as shipper or exporter of record in connection with the export of any Goods purchased from Seller.
17. Foreign Corrupt Practices ACT: Buyer shall comply with applicable laws and regulations relating to anti-corruption, including, without limitation, (i) the United States Foreign Corrupt Practices Act (FCPA) (15 U.S.C. §§78dd-1, et. seq.) irrespective of the place of performance, and (ii) laws and regulations implementing the Organization for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, the U.N. Convention Against Corruption, and the Inter-American Convention Against Corruption in Buyer’s country or any country where performance of this agreement or delivery of goods will occur.
18. Not a Consumer Transaction. This contract is not a consumer transaction. The goods being purchased are not goods intended for personal, family, or household purposes.
19. Miscellaneous. The failure to Seller to require performance by Buyer of any provision of these Terms of Conditions shall in no way effect the right to require such performance at any time thereafter, nor shall the waiver of Buyer’s breach of any provision of these Terms and Conditions constitute a waiver of any succeeding breach of the same or other provision. If any term of these Terms and Conditions is invalid or unenforceable, such term shall be deemed reformed or deleted to comply with the law and the remaining Terms and Conditions will remain in full force and effect.
20. Notices; Unless otherwise specifically provided herein, all “Notices” to be given by Buyer or any guarantor(s) of Buyer shall be given in writing delivered to Seller at 2400 W 3rd St. P.O. Box 1427, Grand Island, NE 68802-1427, by certified mail, return receipt requested, and will be effective only upon receipt.
THIS AGREEMENT CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES AND SUPERSEDES ALL PRIOR ORAL OR WRITTEN REPRESENTATIONS AND AGREEMENTS, AND MAY NOT BE ALTERED EXCEPT IN WRITING SIGNED BY A CORPORATE OFFICER OF SELLER AND BY THE BUYER.
Effective: December 1, 2014.