Applicability. The following terms and conditions of sale (these “Terms”) shall govern all orders with respect to the sale of equipment (“Equipment”) as confirmed by an order confirmation to be issued by Keencut Inc. (each, an “Order”) and not rejected within one (1) business day of receipt by the party named therein (the “Buyer”). The Order and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. To the extent any Buyer terms conflict with these Terms, these Terms shall control.
Delivery of Equipment and Shipping. All delivery dates specified in the Order are estimates provided for Buyer’s convenience. Keencut Inc. will use commercially reasonable efforts to meet estimated delivery dates, subject to availability of the applicable Equipment. Unless otherwise agreed in writing by the parties, Keencut Inc. shall deliver the Equipment to Buyer’s designated facility (the “Delivery Point”) using Keencut Inc.’s standard methods for packaging and shipping such Equipment. From the time that Buyer takes delivery of the Equipment, Buyer shall take responsibility for any damages or changes to the Equipment’s condition. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Equipment at the Delivery Point. Unless otherwise set forth in the Order, Buyer shall be responsible for all shipping costs.
Title and Risk of Loss. Title to the Equipment listed in the Order will pass to Buyer upon Keencut Inc. receiving payment in full from the Buyer of the Purchase Price. As collateral security for the payment of the purchase price of the Equipment, Buyer hereby grants to Keencut Inc. a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code and shall remain in place until the payment of the total purchase price, any applicable late fees and any amounts due Keencut Inc. arising out of the Agreement have been received by Keencut Inc. and Buyer completely performs all of Buyer’s obligations under the Agreement. Buyer authorizes Keencut Inc. to file a financing statement describing the collateral in any relevant jurisdiction. Upon the occurrence of any Default under this section, Keencut Inc. shall have all the rights of a secured party under the Uniform Commercial Code as in effect in the State of Delaware, including, but not limited to the right to collect reasonable attorneys’ fees and any other costs incurred in exercising such rights. Upon completion of Buyer’s obligations under this Agreement, the security interest shall be released. For purposes of these Terms, “Default” shall mean the occurrence of any of the following: (i) failure to make any payment when due; or (ii Buyer’s insolvency, filing for reorganization or bankruptcy, the making of an assignment for benefit of Buyer’s creditors, appointment of a receiver or trustee for any of Buyer’s assets, or any other type of insolvency proceeding or formal or informal proceeding for the dissolution, liquidation, or winding up of affairs of Buyer.
Returns Policy. All sales of Equipment to Buyer are made on a one-way basis and Buyer has no right to return Equipment purchased under this Agreement to Keencut Inc., except in the following circumstances:
Nonconforming Equipment. Buyer shall inspect the Equipment within one (1) day of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Equipment unless it notifies Keencut Inc. in writing of any Nonconforming Equipment during the Inspection Period and furnishes such written evidence or other documentation as required by Keencut Inc. For purposes of these Terms, “Nonconforming Equipment” means only the following: (a) product shipped is different than identified in the Order; or (b) product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Keencut Inc. of any Nonconforming Equipment, Keencut Inc. shall, in its sole discretion, (i) replace such Nonconforming Equipment with conforming Equipment, or (ii) credit or refund the price for such Nonconforming Equipment, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship the Nonconforming Equipment to Keencut Inc.’s designated facility. If Keencut Inc. exercises its option to replace Nonconforming Equipment, Keencut Inc. shall, after receiving Buyer’s shipment of Nonconforming Equipment, ship to Buyer the replaced Equipment to the Delivery Point. In the event Buyer fails to provide any notice of non-conformity to seller during the Inspection Period Buyer shall be deemed to have accepted the Equipment as conforming and waives all rights of inspection. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Equipment and Keencut Inc. shall have no obligations with respect to any Equipment damaged by Buyer’s usage, negligence or normal wear and tear.
Application to return because Buyer has changed its mind: In its sole and absolute discretion, and subject to a re-stocking fee equal to 15% of the invoiced cost of the Equipment (which fee will be offset against any credit from the return or invoiced to Buyer referencing the original purchase order number and the Returns Number), Keencut Inc. may accept the return of Equipment where Buyer’s customer (assuming Buyer is trading as a distributor) has changed its mind. Such returns will be subject to the following conditions:
Keencut Inc. will not accept returns where Buyer has benefited from special discounts or pricing, nor for special or bulk orders where Keencut Inc. has manufactured or factory-shipped inventory specifically to fulfil the order.
To apply for a return Buyer must contact Keencut Inc. within 14 days of receiving the Equipment and provide to Keencut Inc. full details of the product including its serial number, and photographs of the product showing that it is unopened and the packaging is in marketable condition.
If Keencut Inc. in its absolute discretion authorizes the return it will provide the buyer with an Authorized Returns Reference Number (the “Returns Number”) and authorization to complete the return. Buyer may then at, its own expense and risk, return the Equipment to: Keencut Inc. returns, c/o R&S Warehousing & Distribution Center SV1, 5510 Export Blvd, Savannah, GA 31408. All communications and the shipping documentation should include the Returns Number and Buyer should email firstname.lastname@example.org and email@example.com to inform expected date of arrival. Failure to comply with these requirements may jeopardize any credit arising from the return. Keencut Inc. will inspect returned Equipment to determine its condition. Full credit will only be given where product is unopened, unused and undamaged. If on return of the Equipment Keencut Inc. determines that the packaging has been opened, Equipment has been assembled or used, if any parts are missing or it has been damaged in transit, Keencut Inc. will determine the appropriate amount of credit (if any) to be issued. Images and an explanation will be provided but the decision of Keencut Inc. is final.
Warranty claims. In the event of a warranty claim in relation to the Equipment:
Buyer should notify Keencut Inc. of the order details for the Equipment together with a description of the problem including pictures or videos, and the Equipment user’s contact details.
Keencut Inc. will endeavor to troubleshoot the issue with the Equipment user.
In the unusual event that Keencut Inc. is unable to resolve the issue, it will arrange to replace the Equipment (or at its sole option and discretion option, credit the purchase).
Limitation of Liability. In no event shall Keencut Inc. be liable to Buyer or any third party for any loss of use, revenue or profit or loss of data or diminution in value, costs of substitute products or for any consequential, indirect, incidental, special, exemplary, or punitive damages whether arising out of breach of contract, tort (including negligence), or otherwise, regardless of whether such damages were foreseeable and whether or not Keencut Inc. has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Keencut Inc.’s aggregate liability arising out of or related to this agreement, whether arising out of or related to breach of contract, tort (including negligence), or otherwise, exceed the total of the amounts paid to Keencut Inc. for the Equipment giving rise to the applicable claim.
Payment Terms. Unless otherwise set forth in the Order, Buyer shall pay all invoiced amounts due to Keencut Inc. within thirty (30) days from the date of Keencut Inc.’s invoice. To the extent Buyer elects to pay via credit card Keencut Inc. may assess an additional three percent (3%) transaction processing fee. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Keencut Inc. for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
Indemnification. Buyer agrees to indemnify, defend and hold harmless Keencut Inc. and its affiliates, subsidiaries, employees, agents, shareholders, officers, directors and attorneys from and against any and all claims, costs, damages, losses, liabilities, fines, penalties, settlements and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) any breach of Buyer’s representations, covenants or warranties or Buyer’s failure to fulfill any of its obligations under the Agreement; (b) Buyer’s use of the Equipment; (c) any bodily injury or death of any individual or damage to real or tangible personal property resulting from Buyer’s acts or omissions; or (d) Buyer’s failure to comply with applicable state, local or federal laws, rules or regulations applicable to the use of the Equipment or Buyer’s performance of its obligations under this Agreement.
Governing Law and Venue; Arbitration. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the state or federal courts in the State of Delaware. Notwithstanding anything to the contrary, Keencut Inc. may, at its sole discretion, require Buyer to submit any disputes arising under this Agreement, including disputes arising from or concerning its interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration before a single arbitrator under the Rules of Arbitration of the American Arbitration Association applying Delaware law with such arbitration to be held in the State of Delaware.
Miscellaneous. No waiver by Keencut Inc. of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Keencut Inc. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. Keencut Inc. shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Keencut Inc., including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. All notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing, and shall be deemed received on the first (1st) business day following the date of its mailing or email (as applicable). If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.