Kensington Terms and Conditions
All quotations and sales by Kensington Electronics, Inc. ("KEI") are subject to these terms and conditions.
General: Quotations are offered for acceptance within ten (10) days, and if not so accepted, shall be deemed withdrawn. Quotations are not a contract or offer to sell and may only become such upon receipt of Customer's purchase order and KEI's acceptance of such. This document, and not any purchase order or other customer document (which, if construed to be an offer, is hereby rejected) shall operate as rejection and counter offer. Customer, by accepting any products, making any payments, or ordering any products having previously received these terms and conditions, will be deemed to have assented to these terms and conditions. Irrespective of where this Agreement is actually exchanged, the parties agree that this Agreement is entered into, and is to be performed by KEI, in Austin, Texas. Venue for any legal action or proceeding initiated by any party arising under or as a result of this Agreement shall be only in a court of competent jurisdiction in Travis County, Texas. This Agreement shall be construed and interpreted under the laws of the State of Texas. In addition to any other provided, the prevailing party in any legal action or proceeding arising from any aspect of this Agreement, including, but not limited to, any claim for breach, non-performance, default, rescission, reformation, or the like, shall be entitled to recover its reasonable attorneys' fees and costs of suit incurred therein. Any addition or change to these stated terms and conditions, in order to be binding on KEI, must be specifically agreed to in writing by a duly-authorized officer of KEI.
Cancellation: Orders accepted by KEI are non-cancelable, non-returnable, except upon the written consent of KEI. In such event, without limiting any other remedy which KEI may have under the Commercial Code of Texas, Customer will be liable to KEI for reasonable cancellation or restocking charges, which shall include all additional expenses incurred by KEI.
Claims and Returns: All claims for errors or shortages or other non-conformities of the products must be made by the Customer in writing within ten (10) business days after delivery of the products, and Customer is deemed to have irrevocably accepted the products, and to have waived its right to reject them unless it has given written notice of such rejection, and reason(s) therefore, within said ten (10) day period. No return of products will be accepted by KEI without return authorization (RMA#), which will be issued at KEI's sole discretion, and which must be referred to in all documents accompanying any returned products. Returned products must be in original packaging, and shipping cartons must contain all packaging materials included therewith on delivery by KEI to the Customer, and must be returned to KEI freight prepaid. All products improperly returned by Customer will be returned to customer, freight collect. All returned products are subject to a restocking charge to be determined by KEI at its sole discretion.
Delivery and Shipping: The estimated shipping schedule is based on KEI's current inventory, commitments, and supplier's advisement. ALL DATES ARE APPROXIMATE. All prices are F.O.B Origin, unless otherwise specified. Method of route of shipment is at KEI's discretion, unless the Customer provides explicit written instructions to ship freight collect at least five (5) days prior to shipment. All freight and delivery charges shall be paid as a separate item by Customer and are not subject to discount. Title to all goods shall pass to Customer upon delivery to the common carrier unless otherwise agreed to by KEI in writing. KEI shall not be liable for delays in delivery or for failure to perform due to causes beyond reasonable control of KEI. These causes shall include without limitation acts of God, omissions of Customer or civil or military authorities, delays in transportation, or liability to obtain labor materials or supplies. KEI shall be entitled to refuse or to delay shipments for failure by Customer to pay within terms any payments due to KEI.
Limitations: Any legal action or proceeding initiated by Customer against KEI alleging breach, non-performance or otherwise under this Agreement shall be commenced within twelve (12) months after the occurrence giving rise to the legal action proceeding.
Patent Infringement: KEI reserves the right to discontinue deliveries of any goods or products that the manufacture, sale, or use of which, in KEI's opinion, would involve patent infringement. Customer shall save, hold harmless, and indemnify KEI, its successors, assigns, affiliates, officers, directors, and employees from and against any and all damages, claims, lawsuits, judgments, costs, or other expenses arising out of any lawsuit or proceeding alleging infringement of any US or foreign patent or trademark by the goods or products supplied by KEI under this Agreement made in accordance with any design and/or specification furnished by Customer to KEI; and Customer shall, if KEI desires, defend KEI, at Customer's sole expense, in any such lawsuit or legal proceeding involving any alleged infringement.
Terms: Terms of payment are Net 30 days from the date of invoice, unless specified otherwise by KEI in writing. In the event that payment is not received within such thirty-day period, any unpaid balance shall commence to bear interest at the rate of 1% per month from the 31st day after delivery. Legal title to the products furnished in the Packing List/Invoice/Credit Application is reserved by KEI as security for payment. In order to defray the cost of Customer account administration, any credit balance or other sum owed to Customer which remains unclaimed by Customer for a period of eighteen (18) months will become the property of KEI. KEI reserves the right to modify terms prior to shipments, require payment in advance, or delay or cancel any shipment or order by reason of Customer's credit worthiness or should Customer fail to fulfil any obligation when due.
Warranty Limitations and Exclusion: KEI does not make any warranty with respect to any products and goods purchased by Customer reflected on the Packing List/Invoice/Credit Application, and in particular, KEI makes no warranty of merchandise, fitness for a particular purpose or trademark or copyright protection. KEI will, however, transfer to the Customer, and to no others, any transferable warranties on such products as may be without recourse to KEI. In no event shall KEI be liable to Customer or to any third party for any special, consequential, exemplary, indirect, or incidental damages allegedly suffered by Customer, beyond the cost to replace any defective goods or materials.
Waiver: No waiver by KEI of any breach, default, condition, covenant, right, or remedy arising out of or connected with this Agreement shall be effective unless in writing signed by an authorized agent of KEI. A waiver by KEI of any breach of the terms and conditions of this Agreement shall not constitute a waiver of any similar or other breach, default, condition, covenant, right, or remedy.
Assignment: This Agreement shall not be assigned, in whole or in part, by Customer without the prior written consent of KEI.
Notices: Any notice to KEI under this Agreement shall be in writing and shall be served upon KEI by personal service at the address set forth below, whereupon service of this notice shall be deemed completed; or by mailing a copy of such notice by certified mail or registered mail, postage prepaid, with return receipt requested, addressed as follows: Kensington Electronics, Inc., 11801 Stonehollow Drive, Suite 150, Austin, TX 78758.
Export Controls: If the parts on this order are shipping outside the US, a detailed End User Statement will be required at time of order placement.
ITAR Controlled Destination Control Statement: If any commodities or technical data in this order are ITAR controlled items, Customer will be notified of such at time of quoting. Any ITAR commodities or technical data in this order are controlled for export by the US Department of State. They may not be transferred, transshipped on a non-continuous voyage, or otherwise be disposed of outside of the United States, either in their original form, or after being incorporated into other end-items, without the prior written approval of the US Department of State.
EAR Controlled Destination Control Statement: Any EAR commodities or technical data in this order were exported from the United States in accordance with the Export Administration Regulations. The US Export Administration Regulations control export and re-export of United States origin goods wherever located, and diversion contrary to US law is prohibited.
Form 400 Rev. 7/04