Terms, Conditions & Warranty Statement

  Koch Filter Corporation

GLOBAL TERMS AND CONDITIONS OF SALE

1.              
Applicability.  These Global Terms and Conditions
of Sale (“
Terms”) apply to the purchase of products and ancillary services (collectively
the “Products”) by seller (“
Seller”) and the buyer (“Buyer”), each of
which is identified in the accompanying quotation, credit application,
proposal, order acknowledgement, or invoice (the “
Sales Confirmation”).  These Terms and the Sales Confirmation
comprise the entire agreement between the parties (collectively, the “
Agreement”).  Buyer accepts these Terms by signing
and returning Seller’s quotation, by sending a purchase order in response to
the quotation, or by Buyer’s instructions to Seller to ship the Product.  No terms, conditions or warranties other than
those identified in the quotation and no agreement or understanding, oral or
written, in any way purporting to modify the terms and conditions whether
contained in Buyer's purchase order or shipping release forms, or elsewhere,
shall be binding on Seller unless hereafter made in writing and signed by
Seller's authorized representative. 
Buyer is hereby notified of Seller’s express rejection of any terms
inconsistent with this Agreement or to any other terms proposed by Buyer in
accepting Seller’s quotation.  Neither
Seller's subsequent lack of objection to any terms, nor the delivery of the
products or services, shall constitute an agreement by Seller to any terms.

2.              
Cancellation.  Cancellation or
modifications of all or part of any order are subject to Seller’s prior written
consent in each instance.  If
cancellation or modification is allowed, Buyer agrees to pay to Seller all
expenses incurred and damage sustained by Seller on account of the cancellation
or modification, plus a reasonable profit. 

3.              
Price.  Prices on accepted
orders are firm for a period of 90 days from date of acceptance.  All stated prices are exclusive of any taxes,
fees, duties, and levies, however designated or imposed, including but not
limited to value-added and withholding taxes that are levied or based upon the
amounts paid under this Agreement (collectively, “Taxes”).  Any Taxes
related to the Products purchased pursuant to this Agreement are the
responsibility of Buyer (excluding taxes based on Seller’s net income), unless
Buyer presents an exemption certificate acceptable to Seller and the applicable
taxing authorities.  If possible, Seller
will bill Taxes as a separate item on the invoice presented to Buyer.  If any exemption certificate presented by
Buyer is held to be invalid, then Buyer will pay Seller the amount of the Tax
and any penalties and interest related thereto.

4.              
Payment.  Unless otherwise
set forth in the Sales Confirmation, Buyer will pay all invoiced amounts within
thirty (30) days following the date of Seller’s invoice. Unpaid amounts will
accrue interest at a rate equal to the lesser of one and one-half percent
(1.5%) per month and the maximum rate permitted by applicable law, from due
date until paid, plus Seller’s reasonable costs of collection. Seller reserves
all other rights granted to a seller under the Uniform Commercial Code (“UCC”) for Buyer’s failure to
pay for the Products or any other breach by Buyer of these Terms. In addition
to all other remedies available to Seller (which Seller does not waive by the
exercise of any rights hereunder), Seller may suspend the delivery of any Products
if Buyer fails to pay any amounts when due and the failure continues for five
(5) days following Buyer’s receipt of notice thereof. Buyer may not withhold
payment of any amounts due and payable as a set-off of any claim or dispute
with Seller, regardless of whether relating to Seller’s breach, bankruptcy, or
otherwise.

5.              
Delivery; Shipping.

(a)            
Seller will deliver the Products within a reasonable
time after receiving Buyer’s purchase order, subject to their availability.  The delivery date provided by Seller for the Products
is only an estimate and is based upon prompt receipt of all necessary
information from Buyer.  If Buyer causes
Seller to delay shipment or completion of the Products, Seller will be entitled
to any and all extra costs and expenses resulting from the delay.  Seller will not be liable for any delays,
loss, or damage in transit, and failure to deliver within the time estimated will
not be a material breach of contract on Seller’s part.  

(b)           
Unless otherwise agreed in writing by the parties,
Seller will deliver the Products, EXW (Incoterms® 2010) at the location
specified in the Sales Confirmation (the “Delivery Location”), using Seller’s standard methods for
packaging and shipping same.  Buyer will take delivery of the Products
within three (3) days of Seller’s notice that the Products have been delivered
to the Delivery Location.  If Buyer fails
to take delivery of the Products within this three (3) day period Buyer will
pay Seller for the Products and all storage expenses incurred by Seller. Seller
may, in its sole discretion, without liability or penalty, make partial
shipments of Products to Buyer.  Each
shipment will constitute a separate sale, and Buyer will pay for the units shipped
whether the shipment is in whole or partial fulfillment of Buyer's purchase
order.  Buyer is responsible for
obtaining any import licenses and other consents required for a Product
shipment at its own expense, and will provide the licenses and consents to the
Seller before shipment.

(c)            
The quantity of any installment of the Products, as
recorded by Seller on the dispatch from Seller’s place of business, is
conclusive evidence of the quantity received by Buyer upon delivery, unless
Buyer provides conclusive evidence to the contrary. Seller will not be liable
for any non-delivery of the Products to the Delivery Location, unless Buyer
gives written notice to Seller of the non-delivery within five (5) days
following the date that Buyer would, in the ordinary course of business, have
received the Products. Seller’s liability for any non-delivery of the Products will
be limited to replacing the Products within a reasonable time or adjusting the
invoice for the Products to reflect the actual quantity delivered.

6.              
Title; Risk Of Loss.

(a)            
Risk of loss or damage passes to Buyer passes upon
delivery to the carrier. If Buyer fails to accept delivery of any of the
Products on the date set forth in Seller’s notice that Seller has delivered the
Products to the Delivery Location, or if Seller is unable to deliver the
Products to the Delivery Location on the date because Buyer has failed to
provide appropriate instructions, documents, licenses, or authorizations, then:
(i) risk of loss to the Products will pass to Buyer; (ii) the Products will be
deemed to have been delivered to Buyer; and (iii) Seller, at its option, may
store the Products until Buyer takes possession of them, at which time Buyer
will be liable for all costs and expenses resulting from the failure (including
but not limited to the cost of storage and insurance).

(b)           
Title
passes to Buyer upon Buyer’s payment in full for the Products.


7.              
Inspection; Rejection of Products.

(a)            
As used in this Section 7, “Nonconforming Products” means only the following: (i) the
items shipped are different from those identified in Buyer’s purchase order; or
(ii) the labels or packaging of the items incorrectly identifies them. Buyer will
inspect the Products within five (5) days following receipt thereof (the “Inspection Period”). The
Products will be deemed accepted at the end of the Inspection Period unless
Buyer notifies Seller in writing of any Nonconforming Products and furnishes
Seller with written evidence or other documentation reasonable required by
Seller.

(b)           
If Buyer timely and properly notifies Seller of any
Nonconforming Products, then Seller will, in its sole discretion, (i) replace the
Nonconforming Products with conforming Products or (ii) credit or refund the
purchase price for the Nonconforming Products, together with any reasonable
shipping and handling expenses incurred by Buyer. At Seller’s request, Buyer
will dispose of the Nonconforming Products or return the Nonconforming Products
to Seller at Seller’s expense. Upon receipt of the Nonconforming Products,
Seller will promptly refund the monies owed or ship the replacement Products to
the Delivery Location at Seller’s expense, with Seller retaining the risk of
loss until delivery.

(c)            
Buyer acknowledges and agrees that the remedies set
forth in this Section 7 are Buyer’s exclusive remedies for the delivery of
Nonconforming Products, and except as set forth in this Section 7, Buyer has no
right to return the Products to Seller without Seller’s written authorization.

8.              
Limited Warranty.

(a)            
Seller warrants to Buyer that the Products will be free
from defects in material and workmanship for a period of 90 days
following the date of delivery to the Delivery Location (the “Warranty Period”).  Notwithstanding the foregoing, the Warranty
Period for consumable Products will in no event exceed recommended replacement
intervals set forth in the published specifications and instructions provided
by Seller or its suppliers or subcontractors Instructions (“Instructions”).  If, prior to the expiration of the Warranty
Period, Buyer informs Seller in writing of any breach of this limited warranty,
then Seller may repair or replace the Products that gave rise to the breach or,
in Seller’s sole and exclusive discretion, refund the amounts that Buyer paid
for the Products.

(b)           
The foregoing limited warranties do not apply to (i)
any defect in Products not manufactured by Seller; and (ii) any Products
manufactured according to Buyer’s specifications.

(c)            
Buyer will bear the costs of access, de-installation,
re-installation and transportation of the Products to Seller and back to Buyer.
 Any repair or replacement pursuant to
this limited warranty will not extend the Warranty Period. Seller does not
warrant the Products, or any repaired or replacement parts, against normal wear
and tear or corrosion. This limited warranty and remedy are expressly
conditioned upon: (i) Buyer’s payment of the purchase price in full, (ii) Buyer
giving written notice of the defect, reasonably described, to Seller within ten
(10) days of the time when Buyer discovers or ought to have discovered the
defect, (iii) the storage, installation, operation, use, and maintenance of the
Products in compliance with the Instructions, (iv) the existence of proper
records of Buyer’s operation and maintenance of the Products during the
Warranty Period, (v) Buyer providing Seller with a reasonable opportunity to
examine the Products and the aforementioned records, and (vi) the absence of
any unauthorized modification or repair of the Products, including without
limitation the removal or alternation of any serial numbers or warranty date
decals.

(d)           
Before any test may be used to evaluate the Products,
Buyer will: (i) provide Seller with reasonable written notification of the
test, (ii) allow Seller to be present during the test, and (iii) receive
Seller’s consent to the conditions of the test, which consent will not be
unreasonably withheld. If a test is performed on the Products, and Seller has
not consented to the conditions of the test, then this limited warranty will be
void.

(e)            
THE REMEDIES SET
FORTH IN THIS SECTION 8 ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE
OF SELLER TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING
ANY BREACH OF THE LIMITED WARRANTY SET
FORTH IN THIS SECTION 8
.  SELLER
MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OF ANY KIND, AND
SELLER DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO
ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE. 

9.              
Indemnification.  

(a)            
Buyer will defend, indemnify, and hold harmless Seller
and its parent company, their respective subsidiaries, affiliates, successors,
and assigns and their respective directors, officers, shareholders, and
employees from and against any loss, injury, death, damage, liability, claim,
deficiency, action, judgment, interest, award, penalty, fine, cost, fees
(including import and export customs fees), or expense (including reasonable
attorney and professional fees and costs, and the cost of enforcing any right
to indemnification hereunder and the cost of pursuing any insurance providers)
(“Claims”) arising out of or
occurring in connection with the negligence or willful misconduct of Buyer or
its employees or agents, including but not limited to: (i) any misuse or
modification of the Products by Buyer or its employees or agents, (ii) any act
(or failure to act) by Buyer or its employees or agents in contravention of any
safety procedures or instructions that Seller provides to Buyer or its
employees or agents, or (iii) the failure to store, install, operate, or
maintain  the Products in accordance with
the Instructions. 

(b)           
Seller will defend, indemnify, and hold harmless Buyer
and its subsidiaries, affiliates, successors, and assigns and their respective
directors, officers, shareholders, and employees from and against any Claims
arising out of or occurring in connection with the negligence or willful
misconduct of Seller or its employees or agents.

 

10.           
Infringement.

(a)            
Seller will defend, at its own expense, any action
against Buyer brought by a third party to the extent that the action is based
upon a claim that the Products infringe any U.S. patents or copyrights, or
misappropriate any trade secrets, of a third party.  Seller will pay those costs and damages
finally awarded against Buyer in any the action that are specifically
attributable to the claim or those costs and damages agreed to in a monetary
settlement of the action.

(b)           
The foregoing obligations are conditioned on Buyer (i)
notifying Seller promptly in writing of the action, (ii) making no admission of
liability and giving Seller sole control of the defense thereof and any related
settlement negotiations, and (iii) cooperating and, at Seller’s request and
expense, assisting in the defense.

(c)            
If the Products become, or in Seller’s opinion are
likely to become, the subject of an infringement claim, Seller may, at its
option and expense, either (i) procure for Buyer the right to continue using the
Products, (ii) replace or modify the Products so that they become
non-infringing, or (iii) accept return of the Products and refund Buyer the
amounts actually paid by Buyer to Seller for the Products.

(d)           
Notwithstanding the foregoing, Seller will have no
obligation under this Section 10 or otherwise with respect to any infringement
claim based upon any: (i) misuse or modification of the Products by Buyer or
its employees or agents, (ii) use of the Products in combination with other
materials, goods, products, or services for which the Products were not
intended to be used, (iii) failure of Buyer to implement any update provided by
Seller that would have prevented the claim, (iv) Products that Seller made to
Buyer’s specifications or designs.

(e)            
THIS
SECTION 10 STATES SELLER’S ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR
INFRINGEMENT CLAIMS AND ACTIONS
. 

11.           
LimitationS of
Liability
.

(a)            
IN NO EVENT WILL SELLER BE LIABLE FOR
ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES,
INCLUDING BUT NOT LIMITED TO ANY LOSS OF USE OR UNDER- UTILIZATION OF LABOR OR
FACILITIES, LOSS OF REVENUE OR ANTICIPATED PROFITS, LOST DATA, AND COSTS OF
PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN
CONTRACT, TORT, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE
POSSIBILITY OF THE DAMAGES.  

(b)           
Except for death or bodily injury resulting from
Seller’s negligence or willful misconduct, SELLER’S TOTAL LIABILITY FOR ALL
CLAIMS ARISING OUT OF, OR RELATING TO, THE GOODS WILL BE LIMITED TO GENERAL
MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE GOODS
GIVING RISE TO THE CLAIM.

12.           
Changes.  Seller reserves
the right to alter, modify, or redesign its products without any obligation to
replace previous shipments to Buyer.

13.           
No License.

(a)            
Except as provided in Section 13(b), the sale of the Products
will not confer upon Buyer any license, express or implied, under any patents,
trademarks, trade names, or other proprietary rights owned or controlled by
Seller, its subsidiaries, affiliates, or suppliers; it being specifically
understood and agreed that all the rights are reserved to Seller, its
subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer
will not, without Seller’s prior written consent, use any trademark or trade
name of Seller in connection with any the Products, other than with respect to
the resale of the Products pre-marked or packaged by or on behalf of Seller.

(b)           
If software is provided by Seller under the Agreement,
Buyer agrees that the software may only be used in accordance with the terms
and conditions of the software license agreement that accompanies the
software.  Buyer agrees not to directly
or indirectly decompile, disassemble, reverse engineer or otherwise derive the
source code for the software. If Buyer is a U.S. Government agency, Buyer
acknowledges that the software licensed under the Agreement is a commercial
item that has been developed at private expense and not under a Government
contract. The Government's rights’ relating to the software are limited to
those rights applicable to Buyer’s as set forth herein and is binding on
Government users in accordance with Federal Acquisition Regulation 48 C.F.R.
Section 12.212 for non-defense agencies and/or Defense FAR Supplement 48 C.F.R.
Section 227.7202-1 for defense agencies.

14.           
Termination. In addition to any other remedies that Seller may have, Seller
may terminate this Agreement with immediate effect upon written notice to
Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and the
failure continues for five (5) days after Buyer’s receipt of written notice of
nonpayment; (ii) has not otherwise performed or complied with any of these
Terms, in whole or in part; or (iii) becomes insolvent, files a petition for
bankruptcy or commences or has commenced against it proceedings relating to
bankruptcy, receivership, reorganization or assignment for the benefit of
creditors.

15.           
Confidentiality. All non-public, confidential, or proprietary information
of Seller, including but not limited to specifications, samples, patterns,
designs, plans, drawings, documents, data, business operations, customer lists,
pricing, discounts or rebates, that Seller discloses to Buyer, whether
disclosed orally or disclosed or accessed in written, electronic or other form
or media, and regardless of whether marked, designated, or otherwise identified
as “confidential,” in connection with the Agreement is confidential, solely for
the use of performing the Agreement, and may not be disclosed or copied unless
authorized in advance by Seller in writing. Upon Seller's request, Buyer will
promptly return all documents and other materials received from Seller. Seller will
be entitled to injunctive relief for any violation of this Section 15, without
having to post bond or establish the insufficiency of a remedy at law. This
Section 15 does not apply to information that is: (a) in the public domain; (b)
known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller
on a non-confidential basis from a third party.

16.           
Force Majeure.  Seller will not be
liable for any failures or delays caused by strikes, differences with workers,
or any causes beyond the reasonable control of Seller, including but not
limited to fires, floods, accidents, action of any governmental authority, war,
insurrection or riots, or shortages of labor, energy, raw materials, production
facilities, or transportation. Where delays or failures are caused by labor
difficulties, Seller will not be obligated to seek or obtain any settlement
that, in Seller’s sole judgment, is not in Seller’s best interest.

17.           
Compliance.  Each party will
comply with all applicable laws, regulations, and ordinances, and Buyer will
comply with the export and import laws and regulations in effect as of the date
of shipment of the Products of any country involved in the transactions
contemplated by the Agreement.

18.           
Governing Law; Venue; dispute resolution.

(a)            
All matters arising out of or relating to this
Agreement is governed by and construed in accordance with the internal laws of
the State of Wisconsin without giving effect to any choice or conflict of law
provision or rule (whether of the State of Wisconsin or any other jurisdiction)
that would cause the application of the laws of any jurisdiction other than
those of the State of Wisconsin.  Any
legal suit, action or proceeding arising out of or relating to these Terms will
be instituted in the federal or State courts located in the City of Milwaukee,
Wisconsin. Each party irrevocably submits to the exclusive jurisdiction of the
courts in any the suit, action or proceeding. 

(b)           
If neither party is a Chinese entity and Seller is not
a U.S. entity, then any controversy or claim arising out of or relating to these
Terms including, but not limited to, its breach, existence, validity, legality,
enforceability, interpretation, performance, nullity, termination or
expiration, (a “Controversy”) will
be settled by binding arbitration; and notwithstanding its place of execution
or performance, these Terms will be governed by, and construed under and in
accordance with, the Laws of the State of New York, USA, irrespective of any
laws regarding choice or conflict of laws that direct the application of the
laws of another jurisdiction. The place of arbitration will be New York, New
York, under the rules prescribed by the International Centre for Dispute
Resolution (“ICDR”) in accordance
with its ICDR Rules. Unless the parties agree to a single arbitrator, the
arbitration will be heard and determined by three arbitrators, who will be
appointed pursuant to the ICDR Rules. The arbitration proceedings will be
conducted in the English language. The award will be rendered in writing with
the reasons detailed. The award may be in the nature of money damages,
injunctive relief, or specific performance as decided by the arbitrator. Either
party may initiate arbitration by notifying the other in writing. The
arbitrator’s ruling and award from such arbitration is final; the parties
consent to judgment upon the award; and the award may be entered in any court
of competent jurisdiction.

(c)            
If either party is a Chinese entity, the laws of China
govern these Terms, irrespective of any laws regarding choice or conflict of
laws that direct the application of the laws of another jurisdiction. The
Controversy will be submitted to the China International Economic and Trade
Arbitration Commission in Shanghai (“CIETAC”)
for final resolution by arbitration in accordance with the rules and procedures
of CIETAC. The CIETAC tribunal will consist of three (3) arbitrators. The
parties will at all times comply with, and observe all requirements and rulings
of, CIETAC made in relation to any Controversy submitted to CIETAC for
resolution. Submission of evidentiary documents may be in copies without the
need of notarization unless specifically ordered by the CIETAC tribunal. Any
interim decisions or orders by the CIETAC tribunal will be binding, and
sanctions may be given on failures of any party in implementing such interim
decision or order. Any award or determination by the CIETAC tribunal is final
and binding on both parties. The arbitration proceedings will be conducted in
the English language. The United Nations Convention on Contracts for the
International Sale of Goods does not apply to the Agreement or the documents
related thereto.

(d)           
Seller will have the sole and exclusive right to
determine whether any dispute, controversy or claim arising out of or relating
to the Agreement, or the breach thereof, will be submitted to a court of law or
arbitrated.  The venue for any the
arbitration will be in Milwaukee, Wisconsin. 
The arbitrator’s award may be confirmed and reduced to judgment in any
court of competent jurisdiction.  In the
event the matter is submitted to a court, Seller and Buyer hereby agree to
waive their right to trial by jury and covenant that neither of them will
request trial by jury in any the litigation.

19.           
Choice of Language.  It is by the express intention of the parties hereto that the present
Agreement and all its related documents be drafted in English.
Il est de l’intention expresse des parties à la
présente Convention (connaissement, bon de commande, bon de conditionnement ou
facture) et tout document s’y rattachant soient écrit en langue anglaise
.

20.           
Survival.  In addition to any other term whose
context may so require, the terms contained in Sections 1, 4, 6, 7, 8, 9, 10, 11, 15, 18, 19, 20, and 21 will
survive any cancellation of the purchase order.

21.           
Miscellaneous.  Buyer acknowledges
that is has not been induced to purchase any the Products from Seller by any
representation or warranty not expressly set forth in this Agreement.  These Terms and the Sales Confirmation
constitute the entire agreement of the parties and supersede all existing
agreements and all other oral or written communications between them concerning
its subject matter.  None of the Terms
may be added to, modified, superseded, or otherwise altered, except by a
written document signed by an authorized representative of Seller that
specifically references these Terms and states that it modifies them.  If there is a conflict between the provisions
of the Sales Confirmation and these Terms, then the terms of the Sales
Confirmation will govern.  No waiver by
Seller of any of the provisions of these Terms is effective unless explicitly
set forth in writing that specifically references these Terms and is signed by
Seller.  No failure to exercise, or delay
in exercising, any rights, remedy, power, or privilege arising from these Terms
operates or may be construed as a waiver thereof.  No single or partial exercise of any right,
remedy, power, or privilege hereunder precludes any other or further exercise
thereof or the exercise of any other right, remedy, power or privilege.  The Section headings contained in these Terms
are for convenience only and will not affect the interpretation of any
provision.  If any provision of this
Agreement is held to be prohibited or unenforceable, the provision will be
changed and interpreted to accomplish the objectives of the provision to the
greatest extent possible under applicable law and the remaining provisions will
continue in full force and effect.  Buyer
will not assign any quotation or accepted order for the Products, in whole or
in part, without Seller’s prior written consent.

 

Corporate Offices
8401 Air Commerce Drive - Louisville, KY 40219 - 800.757.5624 - 502.634.4796 - Fax: 502.637.2280 - E mail: info@kochfilter.com

Regional Sales Offices/Distribution Centers
Atlanta, GA - Detroit, MI - East Greenville, PA* - Houston, TX* - Indianapolis, IN - Kansas City, MO - Louisville, KY* - Madbury, NH - Nashville, TN - Mira Loma, CA*  
*Denotes manufacturing site. 

©2010 Koch Filter Corporation