Terms and Conditions of Sale (January 2014)

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS CAREFULLY. THERE IS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT APPLY TO KINGSBURY'S SALE OF GOODS, SERVICES AND MATERIALS (the "PRODUCTS").

The following terms and conditions (the "Terms") are incorporated by reference into all written Kingsbury, Inc. ("Seller") proposals (estimates, quotations, offers) and sales orders as if expressly set forth therein. By accepting our Proposal or Sales Order, you are indicating your acceptance of the following Terms. Seller reserves the right to make changes to these Terms at any time.

  1. ACCEPTANCE:
    Seller recognizes that Buyer may desire to utilize its own form of acknowledgement or acceptance of this order. However, the use of any such form shall be for convenience only. No modification of the Terms shall be effected by the acknowledgement or acceptance of purchase order, shipping instruction forms, bills of lading or any other document containing terms or conditions at variance with or in addition to those set forth herein, all such varying or additional terms being hereby objected to and rejected by Seller and deemed to be waived by Buyer. BY ORDERING ANY PRODUCT UNDER THIS CONTRACT BUYER AGREES TO ALL THE TERMS CONTAINED HEREIN.

  2. AGREEMENT:
    The Terms set forth herein and in Seller's invoice are the complete and exclusive statement of the parties' contract and supersedes any prior or contemporaneous proposal, representation, negotiation or other communication, including any provision in requests for proposals, quotations, bids, purchase orders and similar documents. No modification or waiver of any of these Terms shall be of any force or effect unless made in writing and signed by the party claimed to be bound thereby.

  3. PRICE – PAYMENT:
    1. Seller's prices, discounts, payments, terms and transportation terms as set forth in Seller's invoice shall apply.
    2. Seller shall have the continuing right to approve Buyer's credit. Seller may at any time demand advance payment, satisfactory security or a guarantee of prompt payment and if such is refused, Seller may terminate this Agreement, refuse to deliver any undelivered Product and Buyer shall immediately become liable to Seller for the unpaid price of all Product delivered and for damages.
    3. Prices are subject to increase for the inclusion of any and all taxes which are applicable to and which arise from the sale, delivery or use of Seller's product or services and for the collection of which Seller is or may be responsible to any Government Authority, unless authorized exemption certificates are furnished by Buyer.
    4. Buyer agrees to pay a service charge of one and one-half percent (1-1/2%) per month, commencing thirty (30) days following the due date of the invoice. Buyer's payments on overdue invoices shall be applied first against accrued service charges. Buyer agrees to pay all of Seller's costs of collection of overdue invoices, including reasonable attorney's fees.
    5. Any increase in any tax or governmental charge (or newly enacted tax or governmental charge) which becomes effective after the date hereof and which increases the cost to Seller of producing, selling, or delivering the material or of procuring materials used therein, may, at Seller's option, be added to the price herein specified.


  4. DELIVERY; TITLE TRANSFER; RISE OF LOSS; STORAGE:
    1. Seller shall deliver Products to Buyer EXW Seller's facility or warehouse (Incoterms 2012). Buyer shall pay all delivery costs and charges. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within ten (10) days after receipt.
    2. Title to, and risk of loss for, Products shall pass to Buyer upon delivery in accordance with Section 4 (a) above.
    3. If any Products to be delivered under this Contract or if any Buyer equipment repaired at Seller's facilities cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Products and equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places Products or equipment into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller's invoices; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products and repaired equipment available to Buyer for delivery.
    4. If repair Services are to be performed on Buyer's equipment at Seller's facility, Buyer shall be responsible for, and shall retain risk of loss of, such equipment at all times, except that Seller shall be responsible for damage to the equipment while at Seller's facility to the extent such damage is caused by Seller's negligence.


  5. LIMITED WARRANTY:
    1. Seller warrants that all Products hereunder will comply with mutually agreed upon specifications and will be free from defects in workmanship and materials for 12 months from the date of Delivery to the carrier, unless sold as "With All Faults", "Shop", "As Is", "As They Stand" or other similar designation. THIS COMPRISES SELLER'S SOLE AND EXCLUSIVE WARRANTY AND IS MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, EXPRESSED OR IMPLIED, STATUTORY OR OTHERWISE CONCERNING THE PRODUCTS, AND ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED PURPOSE, ARE HEREBY DISCLAIMED AND EXPRESSLY EXCLUDED. SELLER DOES NOT WARRANT AGAINST UNITED STATES PATENT INFRINGEMENT BY WAY OF THE USE OF PRODUCTS IN COMBINATION WITH OTHER PRODUCTS.
    2. FOR ALL PRODUCTS MANUFACTURED BY THIRD PARTIES AND SOLD BY SELLER HEREUNDER, SELLER HEREBY GRANTS TO BUYER TO THE MAXIMUM EXTENT POSSIBLE THE WARRANTY RIGHTS THAT SELLER IS PERMITTED TO GRANT UNDER THE AGREEMENT BETWEEN SELLER AND THE APPLICABLE THIRD PARTIES FOR SUCH PRODUCTS. SELLER MAKES NO WARRANTY, WRITTEN OR ORAL, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE CONCERNING SUCH THIRD-PARTY PRODUCTS, AND ALL WARRANTIES INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED PURPOSES ARE HEREBY DISCLAIMED AND EXPRESSLY EXCLUDED.
    3. None of the warranties set forth herein shall extend to any Products or parts thereof that have been subjected to improper installation, lack of, or improper, maintenance, improper storage, shipping and handling, ordinary wear and tear, misuse, neglect, accident, unauthorized service, use of unauthorized parts, or performance of repairs, modifications or attachment to other products outside of Seller's plant. These warranties shall neither extend to nor cover any labor charges for replacement of Products or parts, adjustments, or repairs, or any other work, which costs shall be the sole responsibility of Buyer.
    4. The warranties and remedies are conditioned upon (i) proper storage, installation, use, operation, and maintenance of Products, (ii) Buyer keeping accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records, and (iii) modification or repair of Products or Services only as authorized by Seller in writing. Failure to meet any such conditions renders the warranty null and void. Seller is not responsible for normal wear and tear.
    5. Any representations, warranties or promises inconsistent with, or in addition to, the warranties contained herein are unauthorized and shall not be binding upon Seller. Seller specifically does not warrant any advice recommendation or representations given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Products or otherwise which is not confirmed in writing by the Seller, and accordingly, Seller shall not be liable for any such advice, recommendation or representation which is not so confirmed in writing. Nor does Seller warrant that every Product complies with every code, standard or regulation in every community except as specifically stated in a published Seller catalog or in writing signed by an officer of Seller.
    6. Products repaired or replaced under the warranty are warranted only through the remainder of the original warranty period.


  6. REMEDY:
    Buyer's sole and exclusive remedy against Seller for any claim, whether in contract, tort or otherwise, arising out of, or resulting from the purchase of the Products shall be limited to the repair or replacement of any Product, or part thereof, which is proved to be other than as warranted, or to the issuance of a credit in an amount not to exceed the cost of the repair or replacement. Seller shall have the sole right to determine whether such Product or part shall be repaired or replaced or whether credit shall be issued. No allowance shall be made for any labor charges for replacement or parts, adjustments or repairs, or any other work. This exclusive remedy shall not be deemed to have failed its essential purpose so long as Seller is willing and able to repair or replace the defective parts, and in all events, Seller's liability to Buyer for any loss or damages shall be limited to the purchase price of the Product.

  7. CLAIMS:
    Claims for shortages, defects and nonconforming Products must be made by Buyer in writing within seven (7) business days of receipt of the Products and shall state with particularity all material facts concerning the claim then known to Buyer. In the event of any such complaint, Buyer shall hold the Products which are the subject of the complaint intact and duly protected for a period of sixty (60) days for inspection by Seller or its authorized agent. If any credit is allowed by Seller for shortages, defects, or nonconforming Products, the Products must be retained intact and duly protected by Buyer and Seller shall have sixty (60) days from the date such claim is allowed to dispose of such Products. Buyer shall in no event return any Products to Seller unless expressly authorized to do so in writing by Seller.

  8. LIMITATIONS ON ACTIONS AND LIABILITY:
    The statute of limitations application to all claims arising under this Agreement or otherwise shall be 180 days from the date the claim accrues. SELLER SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY RESULTING FROM DELAY IN DELIVERY OR INSTALLATION OF THE PRODUCTS OR FOR ANY FAILURE TO PERFORM WHICH IS DUE TO CIRCUMSTANCES BEYOND ITS CONTROL. THE MAXIMUM LIABILITY, IF ANY, OF SELLER FOR ALL DAMAGES, INCLUDING WITHOUT LIMITATION CONTRACT DAMAGES AND DAMAGES FOR INJURIES TO PERSONS OR PROPERTY, WHETHER ARISING FROM SELLER'S BREACH OF THIS AGREEMENT, BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY, OR OTHER TORT, WITH RESPECT TO THE PRODUCT(S), OR ANY SERVICES IN CONNECTION WITH THE PRODUCT(S), IS LIMITED TO AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE OF THE PRODUCT(S). IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST REVENUES AND PROFITS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE RIGHT TO RECOVER DAMAGES WITHIN THE LIMITATIONS SPECIFIED IS BUYER'S EXCLUSIVE ALTERNATIVE REMEDY IN THE EVENT THAT ANY OTHER CONTRACTUAL REMEDY FAILS ITS ESSENTIAL PURPOSE.

  9. START OF WORK:
    Seller cannot begin work until a valid Purchase Order or Repair Order is received and accepted. In some specific cases, at the written request of the Buyer and at Seller's sole discretion, Seller may begin work prior to receipt of the Purchase or Repair Order. In such case, when the actual Purchase or Repair Order is received, Seller will review and notify Buyer of any discrepancies. If for any reason a Purchase or Repair Order is not received within a reasonable period of time, Seller reserves the right to stop the work at any time and maintains the right to seek compensation from Buyer for any work performed up to and including time of stoppage.

  10. TERMINATION:
    1. Seller may suspend or terminate the Contract (or any affected portion thereof) immediately for cause if Buyer (i) becomes insolvent/Bankrupt, or (ii) materially breaches the Contract, including, but not limited to, failure or delay in Buyer providing Payment Security, making any payment when due, or fulfilling any payment conditions.
    2. If the Contract (or any portion thereof) is terminated by Seller, Buyer shall pay Seller for all Products completed, lease fees incurred and Services performed before the effective date of termination, plus expenses reasonably incurred by Seller in connection with the termination. The amount due for services shall be determined in accordance with the milestone schedule (for completed milestones) and rates set forth in the Contract (for work toward milestones not yet achieved and where there is not milestone schedule), as applicable or, where there are no milestones and/or rates in the Contract, at Seller's then-current standard time and material rates. In addition, Buyer shall pay Seller a cancellation charge equal to 80% of the Contract Price applicable to uncompleted made-to-order Products and 15% of the Contract Price applicable to all other uncompleted Products.
    3. Either Buyer or Seller may terminate the Contract (or the portion affected) upon twenty (20) days advance notice if there is an excusable event (as described in Article 11) lasting longer than one hundred and twenty (120) days. In such case, Buyer shall pay to Seller amounts payable under Section 10(b), excluding the cancellation charge for uncompleted Products.
    4. Buyer shall pay all reasonable expenses incurred by Seller in connection with a suspension, including, but not limited to, expenses for repossession, fee collection, demobilization/remobilization, and costs of storage during suspension. The schedule for Seller's obligations shall be extended for a period of time reasonably necessary to overcome the effects of any suspension.


  11. FORCE MAJEURE:
    Seller shall not be liable for any damages resulting from any delay or failure of performance arising from any cause not reasonably within Seller's control; accidents to, breakdowns or mechanical failure of machinery or equipment, however cause; strikes or other labor troubles; shortage of labor; transportation, raw materials, energy sources or failure of usual means of supply; fire; flood; war, declared or local governments or any of their subdivisions, bureaus or agencies. Seller may, at its option, cancel this Agreement, or delay performance hereunder for any period reasonably necessary due to any of the foregoing, during which time this Agreement shall remain in full force and effect, shall have the further right to then allocate its available goods in such manner as Seller shall determine.

  12. WAIVER, MISTAKE:
    The waiver by either party of any provision herein or any breach thereof shall not constitute a waiver of any subsequent breach thereof, nor of any other provision, or multiply the effectiveness of such provision. Seller may correct any errors on this acknowledgement or on any invoice, or on its published catalogs or price sheets, and such correction shall operate to amend this Agreement.

  13. BUYER'S RECEIPT OF GOODS WHILE INSOLVENT:
    In the event that Buyer receives any goods from Seller while Buyer is insolvent (as such term is used in Section 2-702 of the Uniform Commercial Code), this writing shall constitute Seller's demand for reclamation of such goods.

  14. ENFORCEMENT OF OBLIGATIONS VENUE:
    Buyer agrees to pay all Seller's costs and expenses, including reasonable attorneys' fees, expended or incurred (whether or not in connection with judicial proceedings) by Seller in enforcement of this Agreement, or in defense of any claims asserted by Buyer arising out of any goods purchased by Buyer from Seller. Buyer consents to the in personam jurisdiction of any state or federal court located in Philadelphia County, Pennsylvania. Buyer agrees that services of process may be made by mailing a copy of the summons and complaint to Buyer at its address set forth in Seller's records.

  15. CHOICE OF LAW:
    The parties agree to exclude the application of the U.N. Convention on Contracts for the International Sales of Goods, 1980. The parties further agree that this contract shall be governed by the domestic law of the Commonwealth of Pennsylvania. Any dispute arising under this contract shall be resolved in the state or federal courts of the Commonwealth of Pennsylvania.

  16. SECURITY INTEREST:
    Seller retains a purchase money security interest under the Uniform Commercial Code in the products until payment in full has been made. In the event of default by Buyer under this Agreement Seller shall have all the rights and remedies of a secured creditor under the Uniform Commercial Code. Buyer agrees to execute such financing statements and other documents as Seller may request in order to perfect Seller's security interest.

  17. MISCELLANEOUS:
    1. Risk of loss and damage to all elements of the Product(s) installed and/or stored at the Buyer's site shall be the sole risk of Buyer.
    2. In the event that Buyer, its agents, employees, successors and assigns tampers with, misuses, removes any parts, or add any parts or equipment, Buyer agrees to indemnify, save and hold harmless Seller, its agents, employees, successors and assigns, from any and all liability, damages, or losses, including reasonable attorney's fees, arising out of, or incidental to, the aforementioned conduct. This indemnification and release of Seller shall continue in full force and effect herein notwithstanding anything to the contrary contained in this Agreement.
    3. Buyer cannot assign, transfer or convey any of its rights, duties, or liabilities provided for in this Agreement without the prior written approval of Seller, which approval shall not be unreasonably withheld and any attempted assignment without the consent of Seller shall be void ab initio.
    4. The validity or unenforceability of any provision in the Agreement shall not affect the validity or unenforceability of the other provisions, and this Agreement shall be construed in all respects as if such invalid or unenforceable provision was omitted.
    5. The validity period stated in Seller's proposal is for price only. Delivery/Lead Time is to be confirmed by Seller at the time the order is accepted and the work scope confirmed by Seller. If there is no reference to a validity period in the proposal, the proposal is valid for fourteen (14) days from the date of issue.


    THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS APPLY TO EVALUATIONS, REPAIRS, REFURBISHMENTS, MODIFICATIONS, AND FIELD SERVICE PERFORMED ON ASSEMBLIES, COMPONENTS, AND ASSOCIATED EQUIPMENT, WHETHER PERFORMED ON THE PREMISES OF SELLER OR BUYER:

  18. PROCEDURES:
    Seller will utilize its own procedures and processes for evaluation, repair, manufacture, and quality assurance, including its processes for babbitting and babbitt repair, ultrasonic and dye penetrant inspection, dimensional measurement, and all acceptance criteria, unless expressly agreed to, in writing, by Seller.

  19. TEMPERATURE SENSORS:
    Seller will utilize Minco, or Seller-approved Minco equivalent temperature sensors (thermocouples and resistance-temperature detectors), unless specified by Buyer and agreed to by Seller, in writing, prior to acceptance of the Purchase Order. Seller will, at its discretion, choose the appropriate approved supplier, taking into consideration the application, technical requirements, cost, and lead time of the components.

  20. REPAIR PROPOSALS:
    The following conditions apply to Proposals for the repair, refurbishment, or modification of assemblies, components, and associated equipment, regardless of whether or not a Purchase Order is placed by the Buyer based on such Proposal. In all such cases, Seller reserve the right to modify its final Proposal based on the evaluation of components or assemblies, prior to accepting a Purchaser Order:
    • Proposals made based on verbal or written descriptions, including videos, photos, customer-supplied drawings, sketches, and any other medium, are not final until the receipt of material and evaluation by Seller;
    • Seller is not responsible for any information provided by the Buyer or entities associated with the Buyer (Buyer's customer, consultant, or other affiliate) that could not be verified by Seller and which may result in the need for rework or refurbishment to correct work previously performed upon the information originally provided;
    • Seller is not responsible for any change in the condition of non-repaired components or surfaces which may occur during the repair process, as a result of pre-existing conditions including, but not limited to, internal stresses, material composition, magnetic properties, contamination of any kind, etc. This includes, but is not limited to, changes in the size, shape, or appearance of bearing outside diameters, concentricity, flatness, or other surfaces. A proposal will be submitted for any action required to correct an unforeseen change in condition requiring additional work and cost not originally part of the original agreed upon work scope. In such case, the repair will be stopped immediately pending further authorization or instruction from the Buyer.
    • In the case the Buyer does not approve the Proposal, or instructs Seller to return the material "as-is", or does not approve within ninety (90) days, Seller reserves the right to return the material to the Buyer, at Buyer's expense, or disposed of with Buyer approval. In such case, Seller reserves the right to bill the Buyer for the inspection cost, in addition to reasonable costs preservation, packaging, and shipping associated with the material.
    • Seller reserves the right to apply a minimum fee of $350 for any material which has been inspected and for which a Proposal has been prepared, to compensate for the cost of unpacking, disassembly, cleaning, evaluation, and repacking.
    • In case of order, any material not consumed in the repair, or replaced in whole or in part by new components, will be disposed of by Seller, unless customer requests in writing that the material is to be returned. In all such cases, the cost of assembly, preservation, packaging, and transportation, are to be borne by the Buyer.
    • Additional terms and conditions may apply, refer to Proposal.