Sales Terms

TERMS AND CONDITIONS OF SALE

  1. The terms and conditions of sale are as set forth herein.  Terms and conditions proposed by the Buyer are not applicable unless accepted by Seller in writing.  Seller shall not be bound until Buyer’s purchase order has been accepted in writing by an authorized officer of Seller.
  1. Unless stated otherwise, prices are stated in U.S. dollars, are subject to change without notice, and do not include taxes or duties of any kind.  These are the obligation of Buyer, and imposition of such upon Seller shall entitle Seller to reimbursement from Buyer.  Payment shall be made prior to shipment unless otherwise agreed in writing. If payment is not timely made, Seller shall have the right to charge interest on the unpaid balance, which shall accrue from the due date at a rate, which is the lesser of 1.5% per month or part thereof, or the maximum legal rate.  Buyer shall indemnify Seller against any and all expenses of collection arising from Buyer’s default.
  1. Buyer may request shipment delay up to 21 calendar days from the ship date noted on the purchase order confirmation. If Buyer does not request or arrange shipment before the end of these 21 days, items will be invoiced as if they had been shipped with all other terms also applicable. Klinge Corporation will store container/equipment up to 90 days free of charge. After 90 days, a storage fee will be invoiced $5.00 per container/equipment per day.
  1. Unless designated otherwise, goods or products sold pursuant to these terms and Buyer’s purchase order (the “Products”) are sold FCA (INCOTERMS 2010) Seller’s factory.  Risk of loss shall transfer upon shipment. Title shall transfer only after full payment.
  1. Klinge Corporation warrants the Products, which are of Seller’s manufacture in accordance with its applicable Manufacturer’s Warranty Policy and Limitation of Liability.
  1. Seller’s maximum liability for any reason (except for personal injury) under this contract shall consist of the refunding of all moneys paid subject to the right of removal and return of equipment to Seller.  IN NO EVENT SHALL SELLER HAVE ANY LIABILITY FOR INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.  Unless specifically agreed in writing, Seller shall not be liable for corrosion, or the physical or chemical effects of liquids, gases, or other materials used with the Products.  Any claim for breach of contract or obligation must be brought within one year after the breach occurs.
  1. Work and material in addition to, or different from, that stated herein, and changes in drawings or specifications, shall be subject to Seller’s approval and shall entitle Seller to an adjustment in the contract price and schedule.  Cancellation shall be subject to Seller’s approval, and shall entitle Seller to damages.
  1. Unless specifically agreed in writing, shipment dates quoted are estimates, and Seller does not guarantee a particular date for shipment or delivery of the Products.  Seller shall not be liable for any losses, damages, or penalties occasioned by late performance, nor for any deviations in performance due to fires, strikes, labor disputes, supplier delays, governmental actions, acts of terrorism, acts of nature, or any other condition beyond Seller’s control.  Partial shipments are authorized.
  1. Seller shall have no liability whatsoever for equipment or component failures or other damages or losses which arise solely as a result of improper installation or incorrect application of the Products.
  1. Any agreement arising hereunder shall be governed by, and construed in accordance with, the laws of the State of Pennsylvania. The provisions of the U.N. Convention on Contracts for the International Sales of Products shall not be applicable.  A determination that any provision of a resulting agreement is ineffective or unenforceable shall not impair the enforceability of other provisions contained herein.
  2. Intellectual Property.
    • “Intellectual Property” means all (i) technology, formulae, algorithms, practices, procedures, processes, methods, systems, techniques, know-how, ideas, creations, inventions, discoveries, trade secrets, enhancements, software programs and improvements (including, but not limited to, structural and functional information and other data repository, formulations and techniques, whether patentable or unpatentable and whether or not reduced to practice); (ii) technical, engineering, and related information and materials; (iii) registration information; (iv) specifications, designs, models, devices, prototypes, schematics, and development tools; (v) logos, labels and packaging; (vi) general intangibles; and (vii) tangible embodiments of any of the foregoing, in any form or media whether or not specifically listed herein, in each case to the extent related to or associated with any Products.
    • Buyer hereby acknowledges and agrees that all Intellectual Property that is owned or controlled by Klinge Corporation as of the date of sale to Buyer, or that is developed, conceived or reduced to practice outside of the performance of the services or Products by Klinge Corporation, and all modifications or improvements thereto, shall vest in, be the property of, and shall be owned solely and exclusively by, Klinge Corporation (“Klinge Corporation Background IP”).  Buyer hereby acknowledges and agrees that any and all Intellectual Property that is developed, conceived or reduced to practice by representatives of Klinge Corporation in the performance of the services or Products and that is (i) within the field of the Klinge Corporation Background IP, and (ii) does not rely on or incorporate Buyer materials or confidential information (“Klinge Corporation Developed IP”), is not part of the services or Products and shall vest in and be the sole and exclusive property of, Klinge Corporation.
    • Klinge Corporation hereby grants to the Buyer a nonexclusive and nontransferable license to use the Intellectual Property only to the extent necessary to: (a) market any of the Klinge Corporation Products for re-sale to one or more end Buyers of the Buyer; (b) distribute the Products to one or more end Buyers; (c) to incorporate any of the Products (as a whole, but not any part thereof) as a component of one or more of the Buyer’s Products (the “License”) and/or; (d) utilize the Product for Buyer’s own refrigerated transport or storage purposes.  Any and all uses of the Intellectual Property by the Buyer that are not authorized pursuant to these terms shall not be permitted without the prior written consent of Klinge Corporation and will result in revocation of the License as well as consequences for the breach of these terms as outlined below.
    • Except as these terms expressly permit, Buyer shall not, and shall not permit any other person or entity to: (i) modify, correct, adapt, enhance, or otherwise prepare derivative works or improvements of any Products; (ii) rent, lease, lend, sell, sublicense, assign, distribute, transfer or otherwise make available Products to any third party; (iii) reverse engineer, disassemble, decompile, or adapt Products, in whole or in part; (iv) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any warranties, disclaimers, or Intellectual Property, proprietary rights or other symbols, notices, marks, or serial numbers on or relating the Products; (v) use Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property right or other right of any person or entity, or that violates any applicable law; (vi) use the Products for purposes of (a) benchmarking or competitive analysis of the Products; (b) developing, using, or providing a competing product or service; or (c) any other purpose that is to Klinge Corporation’s detriment or commercial disadvantage; or (vii) use the Products in any manner or for any purpose or application not expressly permitted by these terms.
    • Remedies for Breach.  The Buyer understands and agrees that money damages would not be a sufficient remedy for any breach of these terms and that Klinge Corporation shall be entitled, in addition to such monetary damages, to seek equitable relief by way of preliminary and/or permanent injunction, specific performance or any other equitable relief to remedy or forestall any such breach or threatened breach by the Buyer. Such remedy shall not be deemed to be the exclusive remedy for any breach of these terms but shall be in addition to all other rights and remedies available at law or in equity. The Buyer further acknowledges and agrees that the covenants contained herein are necessary for the protection of legitimate business interests and are reasonable in scope.
  3. No shipments will or may be made to Klinge or its customers, directly or indirectly, to Cuba, North Korea, Iran, Syria, Sudan, Venezuela, or to any party included on the lists described at the following website: https://www.bis.doc.gov/index.php/policy-guidance/lists-of-parties-of-concern.