TERMS & CONDITIONS
1. COMPLETE AGREEMENT. Any attempt to alter, supplement or amend this agreement will be null and void unless otherwise agreed to in writing by both Infinity Fasteners, Inc. ("Seller") and the party purchasing goods from Seller ("Purchaser"). All sales are expressly made conditional on acceptance of these conditions. Acceptance by Purchaser of the products described on any invoice (the "goods") shall constitute acceptance of these conditions by Purchaser.
2. TERMS OF PAYMENT. Payments for the goods are payable in U.S. dollars, net thirty (30) days from date of invoice, due and payable at Seller’s address at 11028 Strang Line Road, Lenexa, Kansas 66215. The parties agree that all payments still owing thirty (30) days after date of invoice will bear interest at the rate of one and one-half percent (1.5%) of the outstanding balance per month until paid, but in no event shall interest in excess of the amount allowed by law be charged. If Seller must seek to collect or recover some or all of the monies owed by Purchaser, or Purchaser brings an action against Seller, Seller shall have the right to recover all costs and expenses occasioned thereby, including its attorney’s fees, collection costs, litigation expenses, costs of court, and the like, together with interest thereon at the highest rate allowed by law.
3. TAXES. Prices do not include any sales taxes, governmental levies or similar taxes associated with purchase of the goods. Purchaser is responsible for such taxes unless Purchaser timely provides Seller with a valid and correct tax exemption certificate.
4. SHIPPING AND HANDLING/RISK OF LOSS. Prices do not include, and Purchaser shall be responsible for, shipping and handling costs, and any customs and duty charges due. Risk of loss or damage to goods in transit is Purchaser’s. In the event of damage or loss during transit, it is the responsibility of Purchaser to file a claim with the carrier. Shipping and delivery dates may be delayed for reasons beyond Seller’s control. In such event, Seller will not be liable to Purchaser for any loss resulting from late delivery.
5. EXPRESS LIMITED WARRANTY AND WARRANTY DISCLAIMER: The terms of this paragraph are subject to, and shall yield to where and if in conflict with applicable state law prohibiting any of the disclaimers or other agreements herein. Seller warrants to the original Purchaser that the goods shall be free from defects in material and workmanship under normal use and service for ninety (90) days from the date of purchase by Purchaser. THIS EXPRESS LIMITED WARRANTY DOES NOT APPLY WHERE there has been a failure of the goods due to alteration, repair subsequent to the purchase, misuse, improper installation, neglect or accident. Except for the express limited warranty stated above, there are NO WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE regarding the goods. Seller and Purchaser acknowledge and agree that: (1) no implied warranties have arisen from a course of dealing or usage of trade, (2) neither Seller nor any party representing Seller made any affirmations of fact, representations, promises, or statements which became the basis of the bargain or created or amounted to an express warranty that the goods would conform to any affirmation, etc., (3) no sample or model has been made a part of the basis of the bargain or created or amounted to an express warranty that the goods would conform to any sample or model, (4) the description of the goods contained in any invoice is for the sole purpose of identifying the goods, and (5) no description of the goods has been made a part of the basis of the bargain or created or amounted to an express warranty that the goods would conform to any description made by Seller. Notwithstanding Seller’s disclaimer of all warranties, beyond those expressly stated herein, in the event a court of competent jurisdiction determines that Seller made an express warranty or that an implied warranty arose, Purchaser shall be bound by the terms of the "Limitation of Damages & Remedies" section herein below as such relate to any claim made by Purchaser.
6. LIMITATION OF DAMAGES & REMEDIES. The terms of this paragraph are subject to, and shall yield to where and if in conflict with applicable state law prohibiting any of the limitations, exclusions or other agreements herein. Seller does not accept liability beyond the remedies set forth herein. In no event shall Seller be liable to Purchaser in any cause of action or claim of any nature, regardless of whether characterized as tort, negligence, contract, warranty, or otherwise, for any incidental, consequential, special, punitive or indirect damages (including but not limited to: loss of revenue, cost of replacement or substitute goods, cost of capital, cost or loss related to downtime, business interruption, loss of time, loss of use of the goods, inconvenience, loss or damage to personal property, or commercial loss), or for any claim by any third party, arising out of any claim relating to Purchaser’s purchase of goods from Seller, including any losses resulting from Purchaser’s general or particular requirements, whether or not Seller had reason to know of such requirements, and whether or not such losses could have been reasonably prevented. SELLER’S LIABILITY AND PURCHASER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIMS ARISING OUT OF THIS AGREEMENT ARE EXPRESSLY LIMITED at Purchaser’s option to either (1) return and replacement of non-conforming goods or (2) return of the goods and repayment not to exceed the aggregate dollar amount actually paid by Purchaser in respect to any goods for which damages are claimed. Purchaser shall be responsible for all shipping charges relating to return of goods.
7. CLAIMS. Purchaser shall inspect the goods immediately after delivery. Seller and Purchaser acknowledge and agree that as conditions precedent to any liability of Seller, whether in contract, tort or otherwise, in connection with or related to any dealings of the Seller and Purchaser: (1) Purchaser shall give written notice to Seller of any problems, issues, claims, or causes of action ("claims") within twenty (20) days of the time Purchaser discovers or should have discovered the claim, and shall thereafter return the goods to Seller within twenty (20) days after Seller’s receipt of Purchaser’s notice so that Seller may attempt to cure such claim(s); and (2) PURCHASER SHALL FILE ANY SUIT REGARDING SUCH CLAIM(S) IN A COURT OF COMPETENT JURISDICTION AND VENUE WITHIN ONE (1) YEAR AFTER THE CLAIM IS DISCOVERED OR ACCRUES, whichever occurs first. Failure to comply with these conditions precedent shall be an absolute bar to recovery for such claim(s). Seller and Purchaser acknowledge that the one (1) year filing requirement is a contractual modification of the statue of limitations for all actions, whether in contract, tort or otherwise.
8. WAIVER. Seller’s failure to insist upon or enforce strict performance of any provision of these conditions shall not be construed as a waiver of any provision or right.
9. FORCE MAJEURE. The Seller shall not be liable for any delays or failures in performance if such delays or failures are due to strikes, inclement weather, acts of God or other causes not reasonably foreseeable or beyond the Seller’s reasonable control.
10. GOVERNING LAW. This agreement shall be governed and construed in accordance with the laws of the State of Kansas. Purchaser agrees that in any legal action or proceeding between Seller and Purchaser for any purpose concerning this agreement, or arising out of Purchaser’s dealings with Seller, Purchaser agrees to submit to exclusive jurisdiction in, and agrees that venue is proper in, Johnson County, Kansas.
11. INVALIDITY. If any provision of this agreement is determined by a court of competent jurisdiction to be either prohibited under state law, invalid or unenforceable in whole or in part, this agreement shall be deemed amended to delete or modify, in whole or in part, if necessary, the invalid or unenforceable provision or provisions, or portions thereof, and to alter the balance of this agreement in order to render the same valid, enforceable, and in full force and effect.