Terms of Sale Agreement
NOTICE: The following TERMS AND CONDITIONS form your (“You” or “Customer”) agreement contract with KS Bit, Inc. (“KS”), for the sale of products purchased from KS. By placing your order, you accept and are bound to the Terms of Sale Agreement below.
1. Acceptance of Terms of Sale Agreement. Purchaser agrees to be bound by this agreement and the terms and conditions contained herein.
2. Definitions: “KS” means KS Bit, Inc on behalf of itself and its affiliates. “Customer” shall include any of your affiliates that place an order with KS.
3. Quotes, Ordering and Payment: Your order is subject to acceptance or cancellation by KS in its sole discretion. Terms of payment are within KS’ sole discretion, and unless otherwise agreed to by KS, payment must be received by KS prior to KS’ acceptance an order. Each order accepted will be interpreted as a single agreement independent of any other order. KS is not responsible for pricing, typographical or other errors in any offer, and reserves the right to cancel any orders arising from such errors. Payment must be made by credit card, automated clearing house, wire transfer, electronic funds transfer or some other prearranged payment method unless credit terms have been agreed to by KS. Timely payment of the price and all charges is of the essence. KS reserves the right to charge you a late penalty of 1.5% per month applied against undisputed overdue amounts, or the maximum rate permitted by law, whichever is less. Late penalties will be recalculated every 30 days thereafter based on your current outstanding balance. In addition, KS, without waiving any other rights or remedies to which it may be entitled, shall have the right to suspend or terminate any or all orders and/or refuse to accept any additional orders. All payments shall be made in U. S. Dollars.
4. Invoices: All invoices are due and payable within the time period noted on your invoice, or if not noted, then within 30 days, measured from the date of the invoice and subject to continuing credit approval by KS, such approval may be revoked without further notice from KS. You agree that all invoices shall be deemed accurate unless you advise KS, in writing, of a bona fide, material error within fourteen (14) days of the date of such invoice. In the event you withhold payment of any invoiced amounts upon an assertion by you that such amounts are erroneous, and KS subsequently concludes that such invoiced amounts are accurate, you shall pay interest on such amounts as described above from the due for such amounts until KS’ receipt of such amounts. In no case shall you be entitled to offset, defer or deduct any invoiced amounts that KS determines are not erroneous following the notification process set out above.
5. Delivery: Unless otherwise noted, all sales of products are made F.O.B. point of shipment and, in all cases, risk of loss or damage shall pass upon delivery to the common carrier at point of shipment and thereafter all risk of loss or damage shall be borne by Purchaser. Unless otherwise specified in writing by KS, you shall pay all freight and insurance charges. Delivery dates, if any, given in advance of actual shipment of products are good faith estimates and shall not be deemed to represent fixed or guaranteed delivery dates. Additional charges for delivery may apply. KS reserves the right to change the method of delivery of all products. Loss or damage that occurs during shipping by a carrier is your responsibility. You must notify KS within 21 days of the date of your invoice or acknowledgement if you believe any part of your order is missing, wrong or damaged.
6. Taxes: Unless you provided KS with a valid and accurate tax-exemption certificate applicable to your purchase and ship to location, you are responsible for sales tax and any other taxes or governmental fees associated with your order. You may qualify for tax exemptions from time to time in which case KS requests that you provide it with a valid certificate of exemption or other appropriate documentary proof of exemption. The charges stated in the order or any invoice shall be inclusive of all duties, levies or any similar charges and shall exclude VAT or equivalent sales or use tax. Unless otherwise specified in writing by KS, you shall pay all taxes (including but not limited to import or export duties, sales, use, value added, and excise taxes. KS shall provide you with a valid invoice in accordance with VAT or other applicable law. In the event, you are required by law to make a withholding or deduction in respect of the price payable to KS, you will make the relevant payments to KS net of the required withholding or deduction. You will supply KS evidence (e.g. official withholding tax receipts), to the reasonable satisfaction of KS, that you have accounted to the relevant authority for the sum withheld or deducted. If such evidence is not provided to KS within 60 days of remittance to the applicable tax authority, KS will impose a penalty payment on you and you will be liable for such penalty, in the amount of the withholding imposed on that particular transaction.
7. Limited Warranty: EXCEPT AS EXPRESSLY STATED IN THIS PARAGRAPH, KS (including any of its affiliates, agents, representatives, employees, officers and directors) MAKES NO EXPRESS OR IMPLIED WARRANT WITH RESPEC TO ANY OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNES FOR A PARTICULAR PURPOSE, PEROFRMANCE, SUITABILITY, OR NON-INFRINGEMENT; (2) RELATING TO THIRD PARTY PRODUCTS; (3) RELATING TO THE PERFORMANCE OF ANY PRODUCT; OR (4) THE RESULTS TO BE OBTAINED FROM THE USE OF THE PRODUCTS. WARRANTIES DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, NORMAN WEAR AND TEAR, OR USE OF PARTS AND COMPONENTS NOT SUPPLIED OR INTENDED FOR USE WITH THE PRODUCTS. ALL THIRD PARTY PRODUCTS ARE PROVIDED “AS IS”.
8. Limitation of Liability: KS WILL NOT BE LIABLE FOR ANY INCIDENTIAL, INDIRECT, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE PRODUCTS PROVIDED HEREUNDER. KS’ TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (including any products provided hereunder) IN ANY 12 MONTH PERIOD SHALL NOT EXCEED THE TOTAL AMOUTN OPAID BY YOU DURING THE PRIOR 12 MONTHS OF THIS AGREEMENT FOR THE SPECIFIC PRODUCT GIVING RISE TO SUCH CLAIM. THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY TO ALL CLAIMS FOR DAMAGES, WHETEHR BASED IN CONTRAT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTIONG IN PART THE CONSIDERATION FOR KS’ SALE OF PRODUCTS TO YOU, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.
9. Governing Law: This Agreement and ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND KS, including its affiliates, contractors, and agents, and each of their respective employees, directors, and officers arising from or relating to this Agreement, its interpretation, or the breach, termination or validity thereof, the relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories to this Agreement), KS’ advertising, or any related purchase (a “Dispute”) shall be governed by the law of the State of Illinois, United States of America, without regard to conflicts of law. The parties agree the UN Convention for the International Sale of Goods will have no force on this Agreement.
10. Venue: The parties agree that any Dispute as defined herein shall be brought exclusively in the state courts of Franklin County, Illinois or any federal court sitting at Benton, Illinois in the Southern District of Illinois. You and KS agree to submit to the personal jurisdiction of said courts and agree to waive any and all objections to the exercise of jurisdiction over the parties by any such courts and to venue in any such courts. Notwithstanding any such consent to jurisdiction by you, KS shall retain the right to bring legal action in the jurisdiction governing your place of business.
11. Bench Trial: The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute, as defined herein.
12. No Class Action: NEITHER YOU NOR KS SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS OR PURSUE ANY CLAIM AS A REPRESENTATIVE OF CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
13. Limitation Period: NEITHER YOU NOR KS SHALL BE LIABLE FOR ANY CLAIM BOUGHT MORE THAN TWO YEARS AFTER THE CAUSE OF ACTION FOR SUCH CLAIM FIRST AROSE.
14. Attorneys Fees and Costs: You agree to pay KS its reasonable attorney fees, costs and expenses in connection any Dispute, as defined herein, including but not limited to any effort to collect any amount due hereunder.
15. Entire Agreement. This agreement and the terms and conditions contained herein constitute the entire agreement between you and KS.
16. Modification of Terms of Sale Agreement. This agreement and the terms and conditions contained herein may be modified only in a writing signed by KS. You shall not assign or delegate any of your rights or duties hereunder without KS’ prior written consent.
17. Severability. The invalidity of any provision of this agreement shall not invalidate or render unenforceable any other provision of this agreement.