Sales Terms and Conditions
Effective Date: August 10, 2009
Keterex, Inc. ("Keterex" or "Seller") operates the Web site located at www.keterex.com (the "Site") to provide online access to information about products available from Keterex (the "Products") and to facilitate transactions for the purchase of Products.
Keterex reserves the right to modify this Agreement at any time without giving you prior notice. Your use of the Site following any such modification constitutes your agreement to follow and be bound by the Agreement as modified. The last date this Agreement was revised is set forth above.
1. SITE ACCESS.
Registration is not required to place an online order or use the Site. While Keterex strives to protect the personal information and privacy of its users, your use of the Site to transmit or store personally identifiable information is at your own risk.
2. COPYRIGHTS AND TRADEMARKS.
The materials on the Site are copyrighted and any unauthorized use of materials from the Site may violate copyright, trademark, or other laws. Unauthorized use includes distributing, reproducing, or modifying content from this site without prior written consent of Keterex. The Keterex name and logo are registered trademarks of Keterex. You may not use any of the marks or logos appearing throughout the Site without express written consent from the trademark owner, except as permitted by applicable law.
3. DISCLAIMER OF WARRANTIES.
The materials on this site are provided "as is" and "as available" without any express or implied warranty of any kind. Keterex disclaims all warranties, express or implied, including, but not limited to, warranties of merchantability, fitness for a particular purpose, non-infringement, or other violation of rights. Keterex does not warrant or make any representations regarding the accuracy, completeness or reliability of the materials on this Site. Keterex may make changes to the materials provided on this Site, or to the Products at any time without notice. Keterex has no obligation to update the materials on this Site.
4. LIMITATION OF LIABILITY.
5. USER CONDUCT.
You agree not to take any action that might compromise the security of the Site, render the Site inaccessible to others or otherwise cause damage to the Site or the Content. You agree not to add to, subtract from, or otherwise modify the Content. You agree not to use the Site in any manner that might interfere with the rights of third parties.
6. GENERAL PROVISIONS.
This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. No waiver by Keterex of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. If any part of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, it will not impact any other provision of the Agreement, all of which will remain in full force and effect. Any and all disputes relating to the Agreement or your use of the Site or the Content are governed by, and will be interpreted in accordance with, the laws of the State of Texas.
KETEREX GENERAL TERMS AND CONDITIONS OF SALE
All orders placed via the Site or otherwise are subject to the terms of this Agreement, including the following General Terms and Conditions of Sale. No change, alteration, deletion or modification of this Agreement is permitted without written permission by an authorized Keterex representative. Any purported change submitted by a purchaser in any additional documentation is hereby expressly rejected. Orders placed on forms deviating from these terms and conditions may be accepted, but solely on the basis that the terms of this Agreement will prevail.
1. ORDER VALIDATION AND ACCEPTANCE.
When you place an order, we may verify your method of payment, shipping address and/or tax exempt identification number, if any, before processing your order. Your placement of an order via the Site is an offer to purchase our Products. Keterex may accept your order by processing your payment and shipping the Product, or may for any reason, decline to accept your order or any part of your order. If we decline to accept your order, we will attempt to notify you using the email address or other contact information you have provided with your order.
2. ELECTRONIC COMMUNICATION.
When you place an order via the Site, you are required to provide a valid email address, which we may use to communicate with you regarding the status of your order, advise you regarding shipment of products, and to provide you with any other notices or other communications relating to your order. You agree that Keterex will not be responsible for any damage you incur, or information you do not receive, as a result of your failure to provide a valid email address.
Orders are billed at the prices in effect at the time of shipment. Prices will be as specified by Keterex and will be applicable for the period specified in any quote from Keterex. If no period is specified, quoted prices will be applicable for thirty (30) days. Prices shown in the on the Site are subject to change without notice. If you do not purchase the quantity upon which quantity prices are based, you will pay the non-discounted price for the quantity actually purchased. Prices are exclusive of taxes, impositions and other charges, including sales, use, excise, value-added and similar taxes or charges imposed by any government authority, international shipping charges, forwarding agent's and broker's fees, bank fees, consular fees, and document fees.
4. PAYMENT TERMS.
For online orders, Keterex accepts MasterCard, Visa, American Express, and Discover through the Paypal payment gateway. Keterex also accepts checks and money orders as payment in US Dollars. There is a $25 (USD) service charge on all returned checks. You are responsible for duties and taxes. Keterex may choose to extend open account credit to qualified institutions or businesses. For open accounts, terms of payment are net 30 days from the date Keterex ships Products and issues and invoice for the respective Products. If payment is not received within the 30 day period, any unpaid balance shall bear interest at the rate of 1.5% per month (or the maximum amount allowed by law, if lower). Keterex may in its sole discretion change the terms of open accounts, reduce, or withdraw the amount of credit at any time.
5. SALES TAX.
When required by law Keterex will collect Federal, State and/or Local sale, use, excise, and other taxes that apply to your shipment. These taxes are in addition to the purchase price of the Products. You must remit the correct tax unless you are tax exempt and Keterex has a valid signed tax exemption certificate on file. For international shipments, all applicable VAT, PST, HST, and/or GST charges along with brokerage fees will be your responsibility and are due at the time of delivery.
6. INTERNATIONAL ORDERS & EXPORT CONTROL.
All orders of international origin are exported from the US in accordance with the Export Administration Regulations. Diversion contrary to US Law is prohibited. The sale, resale or other disposition of Products, and any related technology or documentation, are subject to the export control laws, regulations and orders of the United States and may be subject to the export and/or import control laws and regulations of other countries. You agree to comply with all such laws, regulations and orders. You further acknowledge that you shall not directly or indirectly export any Products to any country to which such export or transmission is restricted or prohibited. You acknowledge your responsibility to obtain any license to export, re-export or import as may be required. All duties and taxes will be the responsibility of the customer.
7. RETURN POLICY.
Keterex accepts returns of un-opened and unused Products if returned with 30 days, subject to a 20% restocking charge. To facilitate processing of returned merchandise you must contact Keterex to obtain an RMA (Returned Merchandise Authorization) number prior to returning product. All returns should be made within 30 days of date of invoice and be accompanied by the original invoice number and a brief explanation of the reason for the return. Return freight charge must be prepaid.
8. TITLE AND DELIVERY.
All sales are made F.O.B. from Keterex, or such other location designated by Keterex, to your agent, including a common carrier, notwithstanding any prepayment of freight by Keterex. You will be responsible for shipping charges, and will reimburse Keterex for all shipping costs incurred. Risk of loss shall pass to you at the time the Products are delivered to such common carrier, and you shall provide whatever insurance against loss or damage you consider necessary once the Products are shipped by Keterex. KETEREX SHALL NOT BE LIABLE FOR ANY DELAY IN TRANSPORTATION OF THE PRODUCTS. Loss or delay of Products during transportation shall not relieve you of your payment obligation. In the event of any default by you, Keterex may decline to make further shipments without in any way affecting its rights under this Agreement.
9. SHIPPING DATES.
All shipping dates are estimates only and are dependent upon prompt receipt of all necessary information from you. Keterex will use commercially reasonable efforts to ship the goods on the date specified in the Order Acknowledgment. Shipments may be made in installments, with Products being delivered in separate lots. Keterex shall be excused from performance and shall not be liable for any delay in delivery or for non-delivery, in whole or in part, caused by the occurrence of any contingency beyond the reasonable control of Keterex, including but not limited to, war, sabotage, insurrection, riot or other act of civil disobedience, actual or threatened act of terrorism, failure or delay in transportation, act of any government or any agency or subdivision thereof affecting the terms of this contract or otherwise, judicial action, labor dispute, accident, defaults or suppliers, fires, explosion, flood, storm or other act of God, shortage of labor, fuel, raw material or machinery or technical or yield failures.
You shall have 10 days after delivery to inspect and test each Product shipped by Keterex to you. During such 10-day period, if you determine that any such Product fails to meet the specifications set forth in Keterex documentation for the respective Product, you may reject such Product by notifying Keterex in writing of such rejection, obtaining a returned material authorization ("RMA") number from Keterex, and returning the rejected Product to Keterex, at your expense, within 10 days after receipt of such RMA number. Any Product not rejected by you within the 10-day acceptance period under this Section shall be deemed accepted by you at the end of such 10-day acceptance period.
Neither party may assign its rights or obligations under this Agreement or any Order without the prior written consent of the other party, whether expressly or by operation of law, except that a party may assign this Agreement (together with all Orders) in connection with the transfer of all or substantially all of its assets relating to this Agreement. This Agreement shall bind and inure to the benefit of the parties and their permitted successors and assigns.
12. PRODUCT CHANGES
Keterex reserves the right, at its sole discretion and without notice, to discontinue manufacturing or supplying any Product it has not promised to deliver to you under a specific Order. Keterex also reserves the right, at its sole discretion and without notice, to change any Product subject to a specific Order or specifications at any time so long as such changes or improvements do not materially affect the Product's performance, operation or reliability.
13. USE IN LIFE SUPPORT AND CERTAIN OTHER APPLICATIONS.
Products sold by Keterex are not designed, intended, or authorized for use in life support, life sustaining, nuclear, or other applications in which the failure of Products could reasonably be expected to result in personal injury, loss of life or severe property or environmental damage. You acknowledge that use of Products in such applications is understood to be fully at your risk and you are responsible for verification of the suitability of Products in such application. You agree that Keterex is not liable, in whole or in part, for any claim or damage arising from use in such applications. You agree to indemnify, defend and hold Keterex harmless from and against any and all claims, damages, losses, costs, expenses, and liabilities arising out of or in connection with such use.
Keterex owns and shall retain all right, title and interest in and to any patents, copyrights, mask work rights, trade secrets, trademarks and other intellectual property rights in and to all Products. You shall not, and shall not cause or permit any third party to, reverse engineer, decompile or otherwise deconstruct any Product (including any related software provided by Keterex), except to the extent any applicable laws limit or prevent this prohibition.
15. GOVERNING LAW AND VENUE.
This Agreement and performance by the parties hereunder shall be construed in accordance with the laws of the State of Texas. Any action arising out of any dispute between any of the parties with respect to any of the transactions contemplated hereby shall be brought in the federal or state courts located in Travis County, Texas, and each of the parties hereto hereby submits itself to the exclusive personal jurisdiction of such courts for purposes of any such action.
Keterex warrants that for a period of 12 months from the date of shipment of each Product by Seller that Product will be free from material defects in materials and workmanship. The date of shipment by Keterex is set forth on the packaging material in which the Product is shipped. This limited warranty extends only to you and may not be passed through by you. Your sole and exclusive remedy under this warranty shall be, at Keterex option and expense, the repair, replacement or refund of the purchase price, of any Product sold which does not comply with this warranty. Keterex's obligations under this limited warranty are subject to your compliance with Keterex's then-current RMA procedures. The foregoing warranty shall not apply to Products that are or have been (a) marked or identified as prototype, sample or beta, (b) loaned or provided to you at no cost, (c) sold "as is," (d) repaired, altered or modified except by Keterex, (e) not installed, operated or maintained in accordance with instructions supplied by Keterex or (f) subjected to abnormal physical or electrical stress, misuse, negligence or to an accident. SELLER'S OBLIGATION TO HONOR THIS WARRANTY IS CONTINGENT UPON SELLER'S RECEIPT OF PAYMENT IN FULL FOR THE PRODUCTS ENTITLED TO THIS WARRANTY. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
With respect to Products manufactured solely to Keterex designs and specifications, Keterex shall defend any suit or proceeding brought against you insofar as such suit or proceeding is based on a claim that any such Products furnished hereunder constitute an infringement of any valid United states copyright, United States patent, or United States mask work rights, or a misappropriation of any United States trade secret, if notified promptly of such claim in writing and given authority, information, and assistance in the defense of same. Keterex shall pay all damages and costs finally awarded against you in any such suit or proceeding, but Keterex shall not be responsible for any compromise thereof made by you without the written consent of Keterex. Keterex assumes no liability, consequential or otherwise, for, and you agree to hold Keterex harmless against infringement of patent claims arising as a result of combination of Products with, or integration of Products into, any equipment, system, device, component, assembly, circuit, combination, method or process in which any Products may be used. Keterex shall also not have any liability for, and you shall indemnify, defend and hold Keterex harmless against, all expenses, damages, costs or losses resulting from any suit or proceeding brought against Keterex for infringement of copyright, patent, trademarks or other intellectual property rights or for unfair competition arising from compliance with your design, specifications, or instructions or any use of Products by you or your customers. THE FOREGOING STATES THE SOLE AND EXCLUSIVE LIABILITY OF KETEREX AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED COPYRIGHT, PATENT OR OTHER INTELLECTUAL PROPERTY RIGHT INFRINGEMENT BY PRODUCTS AND SERVICES IN CONNECTION WITH THIS AGREEMENT. NO COST OR EXPENSES UNDER THIS PARAGRAPH SHALL IN ANY EVENT BE INCURRED FOR THE ACCOUNT OF KETEREX WITHOUT ITS PRIOR WRITTEN CONSENT.
18. LIMITATION OF LIABILITY.
KETEREX SHALL NOT BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES, NOR FOR ANY LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, LOST PROFITS OR GOODWILL, OR OTHER INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THIS AGREEMENT, EVEN IF KETEREX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST YOU. UNDER NO CIRCUMSTANCES SHALL KETEREX'S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT AND ALL ORDERS (INCLUDING ANY WARRANTY CLAIMS UNDER SECTION 16 AND INDEMNIFICATION CLAIMS UNDER SECTION 17), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY YOU TO KETEREX HEREUNDER FOR THE PRODUCTS AND SERVICES ACTUALLY GIVING RISE TO SUCH LIABILITY UNDER ALL SUCH CLAIMS. THE FOREGOING LIMITATION IN THIS SECTION 18 IS CUMULATIVE, WITH ALL PAYMENTS TO YOU FOR CLAIMS OR DAMAGES BEING AGGREGATED TO DETERMINE SATISFACTION OF THE LIMIT, AND THE EXISTENCE OF ONE OR MORE CLAIMS WILL NOT ENLARGE THAT LIMIT. YOU ACKNOWLEDGE THAT THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO CLAIM, SUIT OR ACTION SHALL BE BROUGHT AGAINST KETEREX IF MORE THAN ONE YEAR AFTER THE RELATED CAUSE OF ACTION HAS TRANSPIRED.
19. ENTIRE AGREEMENT.
This Agreement between you and Keterex in connection with the Products provided by Keterex constitutes the entire agreement between Keterex and you with respect to the subject matter hereof. The failure by Keterex to enforce at any time any of the provisions in this Agreement will in no way be construed as a waiver of such provisions. If any part of the Agreement is determined by a court of competent jurisdiction to be invalid or unenforceable, it will not impact any other provision of the Agreement, all of which will remain in full force and effect.