Terms and Conditions of Sales
KTW Group, Inc. and/or KTW Medical is referred to herein as “Seller or KTW.” The purchaser of the property subject hereto (“Property”) is referred to as “Buyer.” No terms or conditions other than these stated herein shall be applicable to the sale of the Property unless incorporated as part of the order or quotation constituting a part of the Purchase Agreement described below. Any order for Property, and the sales thereof by the Seller to the Buyer, shall be governed by the North Carolina Uniform Commercial Code, by the agreement of the parties, and by any applicable policy statement issued by the Seller.
2. PURCHASE AGREEMENT:
Any order for or offer to purchase the Property shall not be binding on the Seller unless it is accepted in writing by the Seller’s acknowledgement reflecting such acceptance. When so accepted it shall be binding in accordance with the Terms and Conditions of Sale. No modifications shall be permitted unless agreed to in writing by the parties. Unless otherwise specifically agreed in writing, any delivery or shipping date shown, or mentioned by the Seller, is furnished only for the convenience of the Buyer, is estimated, and is not a date by which the Seller has agreed to ship or deliver the Property. Change Orders for the Property will not be permitted without the Seller’s consent. The Seller may impose a charge in connection with any change order that the Seller accepts. Each shipment or delivery is subject to Seller’s approval of Buyer’s creditworthiness including, without limitation, determination that Buyer is not in default on any obligation to Seller.
Unless otherwise agreed:
(i) All prices will be FOB Seller’s Mooresville, North Carolina warehouse,
(ii) All sales are subject to the terms and pricing of the applicable policy in effect on the date that the order for the Property is shipped.
All invoices not paid within 30 days of the date of their issue shall be subject to a delinquency charge of 1.5% per month (.0041095% per day), or such lesser amount as may be the maximum rate permitted by law. Buyer agrees to pay all costs of collection including such reasonable attorney’s fees as may be allowed by law.
3.1 All prices are subject to change after date of price protection quoted herein. Billing will be made at the Seller’s established prices that are in effect at the time of shipment unless otherwise agreed to by formal price quotation.
3.2 Formal price quotations must be made in writing on the Seller’s standard form and remain in effect for a period of 30 days unless otherwise stated. To the extent that prices quoted are based on information supplied by purchaser (preliminary prints, prints for quotation only, applicable specifications, etc.) any changes in supplied information may subject quoted prices to change. Prices quoted are based on delivery of goods within the Seller’s current delivery cycle, and therefore, in the event that manufacturing delays or other causes beyond reasonable control force postponement of delivery and/or installation, costs incurred by the Seller as a result thereof, including without limitation, manufacturer’s price increases and transfer and storage costs, will be added to quote prices.
3.3 Unless otherwise specified, all prices will be quoted and billed exclusive of federal, state and local excise, sale and similar taxes. Such taxes, where applicable, will be billed as separate additional items on the Seller’s invoices, unless Purchaser provides the Seller with a properly executed tax exemption certificate. Unless otherwise noted, prices do not include any uncrating, assembly or other related installation work.
3.4 Price increases for future purchases will be based on the current price list and discount structure with increases linked to the CPI with the exception of additional increases caused by market forces out of the Seller’s control.
4. PAYMENT TERMS:
4.1 Payment terms are net 30 days from date of invoice to Purchasers on approved credit, where credit is not established, payment must be received prior to the shipment unless C.O.D. shipment is authorized both by the Seller and Purchaser. The Seller reserves the right at any time to alter, suspend or change credit terms provided herein or by law provided. Cash payment or satisfactory security from Purchaser maybe required by the Seller before shipment, or the due date of the payment by purchaser maybe accelerated by the Seller. Acceptance by the Seller of less than full payment shall not be a waiver of any of its rights.
Each order placed by Purchaser and accepted by The Seller shall be considered an independent transaction, and payment therefore shall be due accordingly. If Purchaser is in default under this or any other contract with The Seller, or if The Seller at any time shall not be satisfied with Purchaser’s financial responsibility, The Seller shall have the right, without prejudice to any other legal remedy, of suspending deliveries hereunder until such default or condition is remedied.
If delivery is F.O.B., shipment of the Property will be in accordance with Buyer’s instructions. In the absence of shipping instructions on F.O.B. delivers, the Seller may ship by such method or carrier as the Seller may deem reasonable. The risk of loss for Public Property shall pass to the Buyer upon delivery of the Property to the buyer or a public carrier. The seller shall not be liable for failure or delay in the delivery of the Property as a result in whole or part, of fire, flood, tornado, hurricane or other acts of God; because of any casualty, accident, embargo, strike, lockout, work reason beyond the Seller’s reasonable control including, but not limited to, late delivery, or non-delivery, of any part or component on the Property that is the subject hereof.
5.1 Seller shall not be liable for any failure or delay in the performance of this agreement or in the delivery or shipment of goods, when failure to deliver or delay of delivery is directly or indirectly, caused by, the Buyers failing to accept delivery upon the agreed date. The Buyer shall be liable for all costs associated with the redirection of the delivery, storage and the return delivery costs associated with such delays. In the case of goods being delivered directly from the sellers manufacturing facility overseas both the Seller and the Buyer agree to accept a 7 business day window of delivery either way.
5.2 The Buyer furthermore accepts that from time to time due to reasons beyond the Sellers control including, but not limited to, late delivery, or non-delivery, of any part or component of the shipment that is the subject hereof due to actions taken by US Customs Inspections or for reasons caused by the Department of Homeland Security.
5.3 No goods shipped under this agreement are to be returned to Seller unless returned pursuant to written consent received from Sellers Home Office and no claim shall be allowed nor credit given for goods returned without such regard to whether or not any such return shipment is in fact not accepted. Goods returned to the Seller without such consent may, at Sellers option, be refused by the Seller upon such return delivery but if not so refused Buyer shall, upon notice by the Seller, promptly arrange for the goods to be delivered to Buyer.
6. RISK AND OWNERSHIP:
6.1 In the event that the Buyer shall fail to pay the price or any part thereof by the due date, then without prejudice to the Seller’s other rights and remedies arising under general law and these conditions, interest shall be payable by the Buyer on the amount outstanding at the rate of 1.5% per month from the date payment became due to the date of actual payment (see article 3).
6.2 The ownership of the goods shall remain with the Seller which reserves the right to dispose of the goods until payment in full for all the goods has been received by it in accordance with the terms of the contract. If such payment is overdue in whole or in part, the Seller may (without prejudice to any of its other rights) recover or resell the goods or any of them and may enter upon the Buyer’s premises by its servants or agents immediately upon the commencement of any act or proceeding in which the buyer’s solvency is involved. If any of the goods are incorporated in other goods before such payment, the property in whole of such goods shall be and remain with the Seller until such payment has been made and all the Seller’s rights hereunder in the goods shall extend to those other goods.
6.3 Until the Seller is paid in full for all the goods the relationship of the Buyer to the Seller shall be fiduciary in respect of the goods or other goods in which they are incorporated and if the same are sold by the Buyer, the Seller shall have the right to trace the proceeds thereof.
7. DISCLAIMER OF WARRANTIES AND LIMITATIONS OF DAMAGES:
KTW Group, assumes no liability except as expressly provided in these terms and conditions and; IN NO EVENT WILL KTW BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER ARISING IN CONTRACT IN TORT, UNDER ANY WARRANTY OR OTHERWISE, AND WHETHER OR NOT BASED ON ANY NEGLIGENT ACT OR OMISSION, INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM LOST PROFITS OR LOSS OF CUSTOMER GOODWILL. In case of a breach by the Seller, the Buyer’s exclusive remedy shall be, at the Seller’s option, repair or replacement, or the return of the Property to the Seller and refund the Buyer’s purchase price. In no event shall the Seller’s liability exceed the contract price of the Property. See warranty statement contained separately within these terms and conditions.
8. ORDER CANCELLATION AND RETURN:
Buyer acknowledges that the Seller will have incurred costs in connection with the sale of the Property; that the Property is produced by the Seller as required pursuant to confirmed orders, that Buyer’s failure to accept delivery of Property as to which Seller has given its acceptance will result in damage to the Seller which may be difficult to ascertain; that liquidation damages as follows are reasonable and will be paid by Buyer if Property is not purchased, or returned: As to standard equipment, and accessories, the Buyer will pay the Seller, as liquidated damages, 25% of the agreed price of the property. As to all other nonstandard or contracted equipment, the Buyer will pay the Seller, as liquidated damages, the following percentages of the agreed price of the Property:
i) 15% of the agreed price upon cancellation before production of nonstandard equipment begins,
ii) 35% of the agreed price after production of nonstandard equipment begins, and before the nonstandard equipment is substantially completed, and
iii) 50% of the agreed price after substantial completion of the nonstandard equipment.
iv) Custom items or items with the letters –CU following the model number or items that contain the word “Custom” in the item description are non-cancelable once a signed approved drawing has been received and the order sent to production.
9. DISPUTE RESOLUTION:
Any unresolved dispute arising in connection herein shall be resolved by arbitration in Charlotte, North Carolina, under the rules of the American Arbitration Association, and judgment upon the award rendered by the arbiter(s) may be entered in any court.
10. GENERAL PROVISIONS:
The sale of the Property herein identified shall be governed by the law of North Carolina. Failure or delay of the Seller in exercising any right, power or privilege shall not operate as a waiver of such right, power or privilege. If any portion of these Terms and Conditions of Sale shall be held to be invalid or unenforceable, all other provisions shall nevertheless remain valid and enforceable in stoppage, war or government regulation; or for any other accordance with their terms.
10.1 In addition to the prices stated herein, the Seller may require the Buyer to pay or to reimburse the Seller for any sales or use tax, which may now or hereafter be imposed by Federal or State Taxing Authority in respect of goods contracted herein.
10.2 Seller reserves the right to ship from any factory or point and select the routing. Shipping dates specified herein are approximate only and are not guaranteed by the Seller.
10.3 In the advent of proceedings, voluntary, in bankruptcy or insolvency by Buyer, or in the advent of the appointment of an assignee for the benefit of creditors of, or of a receiver for Buyer, with or without Buyer’s consent, or if Buyer ceases to continue its operations in the normal course of business, Seller may cancel unfilled part of this order without any liability whatsoever on its part and hold Buyer responsible therefore.
10.4 If at any time Buyer’s financial responsibility shall become impaired or unsatisfactory to the Seller in its sole discretion, satisfactory security shall be given by the Buyer on demand of the Seller, if Buyer shall fail to comply with this demand the Seller shall have the right to demand cash payment before proceeding further with the performance of this agreement and/or to make further shipments of deliveries. Nothing contained in this paragraph shall affect or limit the obligation of the Buyer to accept and pay for the goods herein contracted for upon the terms herein specified.
10.5 No salesman, employee, agent, broker or other representative of the Seller is authorized to vary, alter or modify the terms and conditions of this acceptance, and this acceptance shall constitute the entire agreement between the parties unless otherwise confirmed in writing by Sellers Home Office in Mooresville, North Carolina.
10.6 Seller shall not be bound by any terms or conditions on the Buyer order forms, remittance or any communications of Buyer, unless acceptance of such terms or conditions is expressly made by the Seller in writing.
10.7 No waiver by either party or any default on the part of the other party shall be deemed a waiver of any prior or subsequent default.
10.8 In addition to the rights and remedies of Seller, expressed in this agreement, Seller shall have the rights and remedies conferred by law and shall not be required to proceed with the performance of this agreement if the Buyer is in default in the performance of this agreement with Seller.
10.9 Unless otherwise specified, all accounts are due within thirty (30) days of date of invoice.
11. VERBAL PURCHASE ORDERS:
Verbal purchase orders will be entered for shipment prior to receipt of formal written authorization only when requested by Purchaser and authorized by KTW Group, Inc. and/or KTW Medical as an accommodation to Purchaser. In such instances, the sale is to be governed by the terms and conditions on KTW’s sales acknowledgment.
12. AMENDMENT of TERMS/WAIVERS:
No addition to, deletion from, or modification of any of the provisions herein shall be binding upon KTW Medical unless made in writing and signed duly authorized representative of KTW Group, Inc. and/or KTW Medical, the terms and conditions herein being the final, complete and exclusive statement of the terms of agreement between KTW Group, Inc. and/or KTW Medical and the Purchaser. No waiver of any provision or breach of these terms and conditions in any given instance shall constitute a waiver of any other provision or breach hereof.
Last updated: July 15, 2016.