KE Karma Effects named thereafter KE
“Our invoice and any subsequent purchase orders incorporate and are subject to the KE Terms and Conditions provided herewith.”
General. The terms and conditions set forth herein, and 1. which were incorporated by the invoice (together as this “Order,” which shall include all expressly referenced attachments, these terms and conditions and any subsequent invoices related thereto), constitute KE.’s entire offer to sell the equipment and related goods and materials (the “Equipment”) identified in this Order. Any and all previous communications and/or submittals, whether verbal or written, are hereby superseded and shall be of no force or effect. Previous, concurrent, or subsequent documents with terms and/or conditions different from or in addition to the terms and/or conditions appearing in this Order are expressly objected to and rejected. This Order constitutes the entire agreement between KE and the purchaser of the Equipment (“Purchaser”).
Incorporation by Reference. All drawings, plans, specifications, data, and other documents (the “Documents”) referred to in this Order are incorporated by reference.
Change of Terms. KE reserves the right at any time to change the terms and conditions of this Order. KE also reserves the right to make changes in the specifications, drawings, and other data incorporated in this Order and the Documents, and to change the methods of shipment or packing, the place of delivery, and any other services. Purchaser shall proceed immediately with any such changes. Any difference in total price resulting from any such changes shall be adjusted at KE’s reasonable discretion.
Delivery. KE shall be under no liability for failure to make a shipment where such failure is attributable to fire, strikes, floods, accidents, labor or transportation difficulties, car shortages, unavailability of materials, action by any Local, State, or Federal Government, Acts of God, or other causes beyond KE’s control. KE hereby represents that it will make every reasonable effort to meet shipping dates by maintaining production schedules but KE shall not be liable for claims due to its failure, for any reason, to meet the scheduled shipping dates and such failure shall not be sufficient cause for cancellation of this Order by Purchaser. Subject to this paragraph 4, shipment will be made within the time mentioned in this Order. Items of materials or equipment purchased by Seller will be subject to the shipment schedule of KE’s supplies existing at time of purchase by KE. Any delay in shipment requested by Purchaser shall be subject to written approval by KE at its principal office. If such delay is granted, KE reserves the right to ship or store such materials or equipment subject to delay at Purchaser’s expense and notwithstanding such delay in delivery, approved by KE. KE has the right to demand payment for said Equipment at time of shipment or in accordance with this Order and risk of loss of such goods shall be upon Purchaser.
If part or less than all of the shipment is delivered in advance of the delivery date at the insistence of Purchaser, with KE approval, payment in full shall be due by Purchaser at the time the partial shipment is made, unless otherwise agreed by KE in writing. 2 This Order will provide shipping terms. If FOB is designated, then Purchaser shall provide notice to KE within ten (10) days of the date of delivery if the Equipment is damaged or defective due to shipping or transportation. If there is obvious damage to the packaging, pallet, and/or the Equipment at time of delivery, Purchaser shall notify the freight company of the damage by signature upon delivery of the goods. Lack of timely notification will release KE from all liability with respect to damage from shipping or transportation. KE reserves the right to investigate the cause and/or the nature of the damage.
Return of Goods. No material may be returned without prior written consent of an authorized officer of KE. KE assumes no responsibility for and will not accept goods returned without such written permission.
Change Orders. If Purchaser desires any change in the Equipment herein sold, notification should be given to KE within a reasonable time by telephone and subsequently confirmed by letter from Purchaser prior to fulfillment by KE. KE will then determine, in its absolute and sole discretion, whether the change is feasible and, if approved, provide written consent to Purchaser. If such changes cause an increase in the amount of time, labor or cost of material to be expended or used by KE, an appropriate adjustment will be made in the purchase price based upon the fair value of the time, labor or material, the purchase price will be appropriately decreased based on the same factors.
Termination. KE may, at its sole discretion, by written or telefacsimile notice to Purchaser, terminate all or any part of this Order prior to fulfillment.
Installation Services. Unless expressly stipulated in this Order, all Equipment specified in this Order shall be installed, erected, serviced, and started up by Purchaser at Purchaser’s sole expense and risk. Any installation services performed by KE in connection with the sale of Equipment shall be included in this Order. To the extent permitted by law, KE expressly disclaims any and all warranties, obligations, and representations, whether written, oral, express, or implied, in connection with installation services provided by KE. KE shall not be responsible for checking the adequacy of the electrical system and KE shall not be liable for any damage to the Equipment that results from inadequate electrical connections or electrical malfunctions. In addition, KE assumes no responsibilities, expense, or liability for any repair, alteration, or replacement made by Purchaser without prior written approval of KE.
Limited Factory Warranty. KE warrants the Equipment sold to Purchaser to be free from defects in material or workmanship for a period of 6 (six) months after date of delivery, and should any of said Equipment be found, under normal use and service, and to KE ‘s satisfaction, to have been defective when delivered, KE will repair or replace said Equipment either at KE’s or Purchaser’s address, to be determined at KE‘s sole discretion. Purchaser must provide KE with written notice of the alleged defect within 10 days of discovery thereof. Failure to timely notify KE voids the warranty. This limited warranty does not apply if:
(1) the Equipment was not installed in accordance with KE’s instructions or subjected to misuse, negligence, or improper operation by Purchaser;
(2) the damage to the Equipment was caused by an electrical malfunction, or
(3) parts were incorporated into the Equipment for repair, alteration, or replacement by Purchaser without the prior approval of KE‘s. Purchaser represents and warrants that there is proper and sufficient electrical supply according to code and installation of power surge protection for the needs of a particular application or general usage of the Equipment which is electrical power related. This warranty does not apply to sales of used 3 Equipment or parts requiring replacement because of normal wear. No person, agent, representative, or distributor of KE, except an authorized officer of KE, in writing at its principal office in Clearwater, Florida, is authorized to give any warranty on its behalf or to assume for KE‘s any other liability.
The limited warranty set forth herein is the exclusive warranty applicable to the equipment and is made in lieu of all warranties and constitutes the sole remedy of purchaser. KE makes no other representation, express or implied, and KE expressly disclaims any and all warranties, obligations, and representations, whether written, oral, express, or implied, including any warranty against interference or infringement as well as any warranty or representation as to the value, design, condition, merchantability, or fitness for a particular purpose. KE is not responsible for labor performed outside of its factory or one of its service centers and damages hereunder are limited to repair and replacement of the equipment or parts at KE‘s discretion.
Limitation of Liability. In no event shall KE be liable to purchaser or any other person for any incidental or consequential damages for breach of warranty, use or loss of use of the equipment, or for any other cause, including but not limited to death, injury, or damage, however incurred. This limitation of consequential damages applies even if all warranties and remedies available to buyer fail of their essential purpose. If a court of competent jurisdiction rules that any limitation of liability or disclaimer of warranty under this contract is not enforceable as contrary to public policy, statute or otherwise, the parties agree that the maximum liability which may be claimed shall be limited to an amount equal to the price of the Equipment under this Order.
Taxes. Unless otherwise specified in this Order, all sales, use, excise, duty and other taxes or levies applicable to the Equipment covered by this Order or imposed upon this transaction whether by the Local, State or Federal Government, within or without the United States, shall be borne by the Purchaser and paid to KE or directly to the governmental agency levying such taxes as required by law.
Terms of Payment. Unless otherwise specified in this Order, each invoice must be paid in advance and prior to shipment of the Equipment. Established credit or any other credit extension shall be approved in writing by an authorized officer of KE in its principal office of Clearwater, Florida. If Purchaser fails to timely pay amounts due and payable under this Order and other invoices related thereto, KE shall be entitled to recover all of its collection costs, including but not limited to reasonable attorneys’ fees, costs and interest at the statutory rate incurred as a result of such failure to timely pay.
Assignment of Rights. KE may assign its right to or interest in monies payable to KE under this Order. Notwithstanding any language in this Order to the contrary, Purchaser shall make no assignments or other delegation of any obligation or duty imposed by this Order without the express written consent of KE, and any attempted assignment or delegation without such consent shall be void and of no effect.
Laws and Regulations. KE does not warrant, guarantee or assume any responsibility that any Equipment sold under this Order shall comply with any Local, State, or Federal law, rules, or regulations.
Governing Law; Jurisdiction. Both parties agree that the terms and conditions of this Order will be deemed made under the laws of the State of Florida and the rights and liabilities hereunder shall be interpreted and enforced in compliance with the laws of the State of Florida, 4 including but not limited to the Uniform Commercial Code of the State of Florida. Any dispute arising under this Order will be exclusively subject to the jurisdiction of the state courts of the County of Pinellas, State of Florida. Each party irrevocably waives all claims of immunity from jurisdiction and any right to object on the basis that any proceeding brought in the state courts of the county of Pinellas, State of Florida has been brought in an improper or inconvenient venue or forum. Both parties agree to waive any right to federal jurisdiction. Both parties agree to waive any right to trial by jury in any legal proceeding related in any way to the terms and conditions of this order and/or the documents.
Waiver. Any act, delay, or omission by KE shall not be a waiver of KE‘s rights or remedies under this Order. Any purported waiver shall not be valid unless it is in writing and signed by an authorized officer of KE in its principal office of Clearwater, Florida. Waiver of any right or remedy under this agreement on one occasion shall not be a waiver of any right or remedy KE would otherwise have on any future occasion.
Merger. Purchaser acknowledges that no warranty, representation, or statement made by any representative of KE not stated herein shall be binding. This Order and the Documents constitute the final expression of the parties’ agreement and is a complete and exclusive statement of the terms of the agreement. Any amendment or change to the terms provided herein shall not be effective unless such amendment or change is initialed or otherwise agreed to in writing by the party against whom enforcement is sought.
Severability. Any provision or part of this Order held void or unenforceable under any law shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon the parties.
903 Dannies Hse
20 Luard Rd