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Standard Terms and Conditions of Sale

These Standard Terms and Conditions ("Terms") govern the sale of Products ("Product" or "Products") and provisions of services ("Services") by KromAmericas ("KROM") and its affiliates (individually and/or collectively, the "Seller") to the person or legal entity purchasing such Products or Services ("Buyer"). These Terms are incorporated into the quotation, proposal, order acknowledgment, invoice, or other document provided by Seller to Buyer in connection with the sale of Products and Services ("Seller Documents") and into any purchase order or work order provided by Buyer. These Terms take precedence over Buyer's supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller's commencement of performance nor delivery shall be deemed or construed as acceptance of Buyer's supplemental or conflicting terms and conditions. KROM's failure to object to conflicting or additional terms will not change or add to these Terms. Buyer's sending of a purchase order, and/or acceptance of Products and/or Services from Seller shall be deemed to constitute acceptance of these Terms.

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1. Orders

All orders placed by Buyer are subject to acceptance by Seller. Orders may not be cancelled or rescheduled without Seller's written consent. All orders must identify the products, unit quantities, part numbers, applicable prices, and requested delivery dates of the Products being purchased. Seller may designate certain Products and Services as non-cancelable, non-returnable ("NCNR"), and the sale of such Products shall be subject to any special terms and conditions contained in Seller's order acknowledgement or NCNR letter, which shall prevail and supersede any inconsistent terms and conditions contained herein or elsewhere. Liability for the Products or Services applies only to the entity named as Seller and not to any other entity or affiliate of Seller.

2. Prices

The prices of the Products and Services are those prices specified in Seller Documents. Pricing contained in a price quotation or for undelivered Products may be increased in the event of an increase in Seller's costs, changes in market conditions, or any other causes beyond Seller's reasonable control. Price quotations automatically expire thirty (30) days from the date issued, unless otherwise stated in the quotation.

3. Taxes

All prices quoted are exclusive of transportation and insurance costs, duties, and all taxes including federal, state, and local sales, excise and value-added, goods and services taxes, and any other taxes. Buyer agrees to indemnify and hold Seller harmless for any liability for tax in connection with the sale, as well as the collection or withholding thereof, including penalties and interest thereon. When applicable, transportation and taxes shall appear as separate items on Seller's invoice.

4. Payment

Payment may be made by cash, check, credit card, or wire transfer, and all fees are borne by Buyer. Seller, in its discretion, may require full or partial prepayment before shipment. Invoices are due upon receipt unless Seller elects to extend credit. Where Seller has extended credit to Buyer, terms of payment shall be as specified by Seller from time to time.

All payments and other amounts invoiced to Buyer shall be paid in full when due without set-off or deduction, regardless of any claim, defense, or other right that Buyer believes it may have against Seller under any purchase order or other agreement. On any past due invoice, Seller may impose interest at the lesser of one and one-half percent (1.5%) per month or the maximum rate allowed under applicable law.

If Buyer fails to make any payment when due, Seller reserves the right to change payment terms, withdraw credit, and/or suspend or cancel performance under any purchase orders or agreements. In the event of default by Buyer, Seller shall be entitled to recover costs, fees, and expenses, including attorney fees, court costs, and collection costs. Seller reserves the right to establish special payment terms at the time of order for large purchases where progressive payments become necessary.

5. Delivery and Title

All deliveries will be made EXWORKS Seller's facility. Title and risk of loss pass to Buyer upon delivery of the Product to the carrier. Seller's delivery dates are estimates only, and Seller is not liable for delays in delivery or failure to perform due to causes beyond its reasonable control, nor shall the carrier be deemed an agent of Seller.

A delayed delivery of any portion of an order does not entitle Buyer to cancel other deliveries. Claims for shortages, loss of or damage to Products in transit, or other delivery errors must be made in writing to Seller within ten (10) days after receipt of shipment. Failure to provide such notice constitutes unqualified acceptance and waiver of all such claims.

6. Returns, Refunds and Exchanges

Returns and Exchanges: No Product may be returned or exchanged without Seller's written consent. Any approved return or exchange may be subject to fees in Seller's sole discretion. Approved returned or exchanged items must be in new condition and in the original packaging. Returns and exchanges must be requested within thirty (30) days of shipment. Only products originally shipped from KROM or an authorized supplier (drop-ship) will be considered.

By requesting a return or exchange, Buyer certifies that the products were purchased from KROM and have not been substituted with products obtained from another supplier, distributor, or source.

Non-Cancelable and Non-Returnable Items: Products sold as NCNR are identified on the Sales Order or Order Acknowledgement.

Return Freight, Restocking and Assembly Fees: KROM reserves the right to charge cancellation and restocking fees and deduct such fees from any refund. Assembly fees are non-refundable. Original shipping and handling charges are not refundable. Buyer is responsible for all return freight charges. KROM does not accept COD shipments.

7. Limited Warranty

Service Warranty. Seller warrants that Services furnished hereunder will be performed in accordance with the specifications set forth in Seller Documents. If a failure to conform to this warranty appears within ninety (90) days after completion of such Services, Buyer's sole and exclusive remedy, and Seller's sole liability, shall be for Seller to either re-perform the defective Services or refund that portion of amounts paid for the defective Services, at Seller's discretion. All claims for defective Services must be made in writing within the applicable warranty period.

Engineered Products. Seller warrants to Buyer that Engineered Products will be free from defects in materials and workmanship during the applicable warranty period. Seller may, at its sole discretion, repair, replace, or refund the purchase price paid for the affected Engineered Product. Such remedy shall be Buyer's exclusive remedy and Seller's sole obligation.

The warranty does not apply to Products that have been altered without authorization, subjected to normal wear and tear, improperly installed, improperly maintained, used outside Seller's instructions, or damaged through negligence, misconduct, or acts of God.

Other Products. Seller assigns to Buyer any assignable manufacturer warranties to the extent permitted by law. For one (1) year following delivery, Seller will use commercially reasonable efforts to assist Buyer with warranty claims against the manufacturer. Seller makes no express or implied warranty regarding such Products.

EXCEPT FOR THE EXPRESS WARRANTIES STATED ABOVE, SELLER DISCLAIMS ALL WARRANTIES ON PRODUCTS AND SERVICES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND WARRANTIES RELATED TO SOFTWARE, CYBERSECURITY, UNINTERRUPTED OPERATION, OR ERROR-FREE PERFORMANCE.

8. Limitation of Liability

BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD COSTS, BUSINESS INTERRUPTION, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, DAMAGE TO REPUTATION, LOSS OF CUSTOMERS, PUNITIVE DAMAGES, INTELLECTUAL PROPERTY CLAIMS, LOSS OF CONTRACTS OR ORDERS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY NATURE.

BUYER'S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS, REGARDLESS OF THE LEGAL THEORY ASSERTED.

BUYER SHALL INDEMNIFY, DEFEND, AND HOLD SELLER HARMLESS FROM CLAIMS ARISING FROM SELLER'S COMPLIANCE WITH BUYER'S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, MODIFICATIONS PERFORMED BY OTHERS, OR USE OF PRODUCTS IN COMBINATION WITH OTHER PRODUCTS.

9. Indemnification

Buyer shall indemnify, defend, and hold harmless Seller and its directors, officers, employees, agents, shareholders, subsidiaries, and affiliates from and against any losses, liabilities, claims, damages, expenses, investigative costs, and reasonable attorney fees arising from:

  • The use, operation, or servicing of Buyer property.
  • Buyer's breach of the Contract.
  • Buyer's violation of any law, rule, or regulation.
  • The use or resale of Products by Buyer.
  • The negligence or willful misconduct of Buyer.
  • Patent, trademark, copyright, trade secret, or other intellectual property claims related to Buyer-supplied specifications or designs.

Buyer shall further release and forever refrain from claims against Seller arising from the use, operation, or servicing of Buyer property.

10. Use of Products

Products sold by Seller may be designed, intended, or authorized for applications where product failure could result in personal injury, loss of life, or catastrophic property damage. If Buyer uses or sells Products in such applications outside the manufacturer's specified and intended use, Buyer acknowledges such use is at Buyer's sole risk.

Buyer agrees that Seller and the manufacturer shall not be liable for claims arising from such use and Buyer agrees to indemnify, defend, and hold harmless Seller and the manufacturer from all resulting claims, damages, losses, costs, expenses, and liabilities.

11. Breach by Buyer

Upon any breach of Buyer's payment obligations or any other default under the Contract, Seller may terminate the Contract and/or any orders, exercise all available rights and remedies under the Uniform Commercial Code, and pursue any available legal or equitable remedies.

Seller may also immediately terminate the Contract upon written notice if Buyer becomes insolvent, files for bankruptcy, enters receivership, reorganizes, or otherwise initiates proceedings for the benefit of creditors.

12. Force Majeure

Seller shall not be liable for delays or failures caused by circumstances beyond its reasonable control, including acts of God, natural disasters, war, riots, terrorism, labor disruptions, transportation delays, governmental actions, material shortages, fires, floods, epidemics, quarantine restrictions, or inability to obtain labor, materials, or Products through normal sources.

Seller's time for performance shall be extended for a period equal to the delay caused by such events. Seller may cancel any remaining performance without liability by providing notice to Buyer.

13. Compliance with Laws

Buyer shall comply with all applicable federal, state, and local laws, regulations, labor requirements, safety requirements, environmental standards, and trade regulations.

14. Set Off

Seller may set off any amount due from Buyer against amounts otherwise payable to Buyer. Buyer may not set off any amount claimed against Seller without Seller's prior written consent.

15. Buyer Information

Seller's ability to perform and deliver Products and Services depends upon Buyer's timely cooperation and the completeness and accuracy of information supplied by Buyer. Buyer shall provide all information necessary for Seller to perform its obligations and warrants such information is accurate and reliable.

Buyer shall be responsible for all costs incurred by Seller resulting from incomplete, incorrect, or misleading information. Buyer agrees to indemnify and hold Seller harmless from claims arising from Seller's reasonable reliance on such information.

16. General

Governing Law. These Terms shall be governed by and construed in accordance with the laws of the State of Indiana, without regard to conflict of law principles. Any legal proceeding shall be brought in Marion County, Indiana. The parties waive any right to trial by jury.

Assignment. Buyer may not assign this Agreement without Seller's prior written consent. Seller or its affiliates may perform obligations under this Agreement. This Agreement shall bind and benefit successors and permitted assigns.

Third-Party Rights. Products, including software and intellectual property, are subject to applicable rights of third parties, including patents, copyrights, and license agreements.

Severability. If any provision of these Terms is found invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect.

Survival. Provisions that by their nature should survive termination or expiration shall survive.

Time to Bring Action. Any action brought by Buyer against Seller relating to goods, equipment, services, or this Agreement must be commenced within one (1) year after the cause of action accrues.

Relationship of Parties. Buyer and Seller are independent contractors. Nothing in these Terms creates a partnership, joint venture, agency, fiduciary, or employment relationship between the parties.