STANDARD TERMS AND CONDITIONS
Unless and except to the extent expressly stated otherwise by Knight in a final proposal or quote:
(a) Knight’s Standard Terms and Conditions in effect at the time shall be part of and apply to (i) all proposals and quotes provided by Knight, whether or not Knight’s Standard Terms and Conditions are referred to or included with the proposal or quote (“Proposals”), (ii) all orders received by Knight, including blanket orders and releases against blanket orders, whether or not Knight’s Standard Terms and Conditions are referred to or included with the order (“Orders”), (iii) all products, components and parts supplied by or provided through Knight, whether Knight products, components or parts or non-Knight products, components or parts and whether or not supplied pursuant to a Proposal or Order, including, but not limited to, all control and pump systems and all warranty and non-warranty repair and replacement components and parts for control and pump systems (“Products”), and (iv) all services performed by or provided through Knight, whether warranty services or non-warranty services and whether or not supplied pursuant to a Proposal or Order (“Services”);(b) All prices and other amounts are in United States Dollars (US$) and all payments shall be in United States Dollars; and (c) All prices for Products are Free Carrier (FCA) El Paso, Texas at Knight’s designated cross dock facility or Irvine, CA.
Knight’s Standard Terms and Conditions are subject to change at any time without notice.
• Knight may provide Proposals in writing or by phone, email, fax or electronically. If a Proposal given by phone is confirmed by Knight in writing or by email, fax or electronically, the price and any special terms and conditions in Knight’s written, email or fax confirmation shall deemed to be the proposed or quoted price and any special terms and conditions under the Proposal.
• Proposals are non-binding on Knight and may be withdrawn or revised by Knight at any time.
• The minimum Order amount to receive discounts from list price on Products is US$60.00 (or equivalent) net. If an Order for Products is less than US$60.00 (or equivalent) net, items ordered will be billed at full list price without any discount until the Order meets the minimum Order amount.
• Orders must be submitted in writing, unless Knight, in its sole discretion, allows an Order to be submitted by phone, email, fax or electronically.
• All Orders are subject to acceptance by Knight. Knight may accept an Order in writing or by phone, email, fax or electronically. Entry of an Order in Knight’s order entry system, issuance of an order acknowledgement, commencement of production, shipment or delivery of Products ordered, or commencement of performance of Services requested shall also constitute acceptance of an Order.
• An Order shall be deemed a request by Customer for Knight to supply the type and quantity of Products and/or the type of Services on the dates specified in the Order at the price and on the terms and conditions of Knight’s final Proposal. Acceptance of an Order shall constitute an agreement by Knight to sell to Customer the type and quantity of Products Ordered and/or perform the type of Services requested at the prices and on the terms and conditions of Knight’s final Proposal, including Knight’s Standard Terms and Conditions. No terms or conditions set forth in or referenced on Customer’s Order form or any other document submitted by Customer shall apply that are in addition to or different from the terms and conditions of Knight’s final Proposal, including Knight’s Standard Terms and Conditions, Knight’s acceptance of Customer’s Order shall not constitute acceptance of or agreement to any such additional or different terms and conditions.
• No Order accepted by Knight may be cancelled or changed by Customer without Knight’s consent. Cancellation and other charges may be imposed by Knight in connection with canceling or changing an Order.
• Prices shall be the prices specified in Knight’s final Proposal plus applicable surcharges, if any. If there is no Proposal or no price is specified in a Proposal: (i) the price in the case of Products shall be the full list price under Knight’s published price list in effect at the time of shipment plus any applicable surcharges, and (ii) the price in the case of Services shall be Knight’s standard labor rate in effect at the time of performance plus components and parts at full list price under Knight’s published price list in effect at the time of performance (time and materials). If the price specified for a Product is a discount from list price, the discount shall be applied to Knight’s published price list in effect at the time of shipment. List prices are subject to change at any time without notice.
• Knight may increase prices or impose surcharges to pass through increases in Knight’s costs after a price is proposed or quoted. In addition, prices may be increased and surcharges may be imposed if shipping dates, quantities or specifications are changed or an Order is otherwise modified at the request of Customer.
• Prices are net prices to Knight and are exclusive of sales tax; value added tax (VAT), duties, imposts and other similar charges and any withholding, all of which shall be the sole responsibility of Customer. Any sales tax, value added tax (VAT), duties, imposts and other similar and charges paid by Knight may be invoiced to Customer.
• Product prices are based on Knight’s standard packaging and packing for shipment. If Customer requests special packaging or packing, additional charges may apply at Knight’s discretion.
Dates and Freight Terms:
• All dates requested by Customer and proposed, quoted, agreed or scheduled by Knight for shipment and delivery of Products and all dates requested by Customer and proposed, quoted, agreed or scheduled by Knight for performance of Services are merely estimates, and Knight shall have no liability or responsibility for any penalties or damages in connection with late shipment or delivery of Products or late commencement or completion of Services.
• No date for shipment or delivery of Products and no date for performance of Services may be may be postponed or delayed by Customer without Knight’s consent. Additional charges may be imposed by Knight in connection with the postponement or delay by Customer of the date for shipment or delivery of Products or the date for performance of Services.
• Title to Product passes to Customer and all risk of loss and damage to Product shall pass to Customer immediately upon delivery of the Product to the carrier for shipment, and Customer shall look solely to the carrier for any loss or damage during shipment. All shipments are Free Carrier (FCA) El Paso, Texas at Knight’s designated cross dock facility or Irvine, CA.
• Shortages and other Product discrepancies due to Knight must be reported to Knight Customer Service within five days of Customer’s receipt of Product.
• Customer shall bear all freight and insurance charges. Any freight and insurance charges paid by Knight may be invoiced to Customer.
• All Motor Freight and Air Freight shipments are freight collect. All UPS shipments are prepaid and added to Customer’s invoice. Handling charges may be imposed by Knight in connection with prepaid shipments.
• Customer may arrange to pick up Products at Knight’s facility. Customer pick ups must be made during normal business hours at the Will Call area.
• Knight reserves the right to refuse to ship Products to any party or destination or for any use that it deems unlawful.
• Other shipment and freight terms may apply at Knight’s discretion.
• Payment terms for all Products and Services shall be Net 30 days from date of invoice if both of the following conditions are satisfied: (i) Customer has received credit approval from Knight, and (ii) Customer’s accounts with Knight and all other Units of IDEX Corporation are current. Otherwise full payment is due with Order. Knight may revoke credit approval at any time it its sole discretion and require full payment with the Order, in advance of production, in advance of shipment (CIA), or upon delivery (COD). Payment is not deemed to be made until payment is actually received by Knight, and no early payment discount shall apply.
• Amounts not paid within terms are subject to a 2.0% per month Service charge or the maximum rate permitted by applicable law, whichever is less.
• Acceptance of payment by credit card is at the sole discretion of Seller, and if Buyer pays by credit card, a convenience fee will be charged.
• Knight retains and is granted a first lien and security interest in all Products and proceeds to secure payment of the price and other amounts payable to it. It the event Customer fails to pay any amount within terms, Knight may exercise any and all rights granted to a secured creditor under the Applicable Law. Customer authorizes Knight to file and sign in its name all such financing statements and other documents that Knight deems necessary or appropriate to evidence and enforce its first lien and security interest in Products and proceeds.
• Knight and other Units of IDEX Corporation shall have the right to set off and deduct amounts due to Knight and other Units of IDEX Corporation from Customer and its affiliated companies against amounts due to Customer and its affiliated companies in connection with returns or otherwise.
• Payments by wire transfer shall be made in accordance with the wire transfer instructions set forth in Knight’s invoice. Payments by check shall be sent to the payment location specified in Knight’s invoice and otherwise be made in accordance with the payment instructions set forth in Seller’s invoice.
• Other payment terms may apply at Knight’s discretion.
Products, Services and Specifications:
• Products and Services may be discontinued at any time without notice, and Products, Services and specifications may be changed at any time without notice.
Resale and Other Products:
• If Customer resells Products purchased from or serviced by or through Knight: (a) Customer shall be solely responsible for any and all claims, liabilities and obligations asserted against Customer by its customers and other users of the Products, and (b) Knight shall have no liability or responsibility for any such claims, liabilities or obligations.
• In the event that any Product purchased from or serviced by Knight is incorporated or installed by Customer in, or combined by Customer with, a non-Knight product, component or "Other Product”: (a) Customer shall be solely liable, obligated and responsible for such Other Product and all claims related thereto, and (b) Knight shall have no risk, liability, obligation or responsibility of any kind with respect to any such Other Product or any claims related thereto.
Product and Service Warranties:
• Subject to the Warranty Exceptions and Exclusions ser forth below: (a) Knight warrants that each Knight control and pump system that it sells to Customer will be free of defects in workmanship and material for Knight assembled product for a period of one year from the date of shipment and two years from date of shipment for electronic circuit boards from Knight’s facility, (b) Knight warrants Spirit pump dispensers for a period of one year from the date of shipment on both mechanical and electronic components (c) Knight warrants that all Services that it performs for Customer will be performed by qualified personnel in a workmanlike and professional manner for a period of 30 days from the date of performance, and (d) Knight warrants that each Knight component or part that it sells to Customer in connection with Services that it performs for Customer or otherwise will be free of defects in workmanship and material for a period of 90 days from the date of shipment from Knight’s facility or, if installed by Knight, from the date of installation.
• THE ABOVE WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE BY KNIGHT WITH RESPECT TO ANY PRODUCTS OR SERVICES. NO OTHER EXPRESS OR IMPLIED WARRANTY OF ANY KIND, ORAL OR WRITTEN, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, IS MADE WITH RESPECT TO ANY PRODUCTS OR SERVICES.
• Knight Customer Service must be notified of a warranty claim in writing or by email or fax prior to the expiration of the applicable warranty period. Seller shall have the right to require that a Product that is the subject of a warranty claim be returned to Knight at its facility for inspection and evaluation. All Product returns must be in accordance with Knight’s return policy (See Return Policy below). If Knight determines that a proper warranty claim has been asserted, Knight will replace or repair the defective Knight Product and/or re-perform the Knight Service, as the case may be, free of charge or, at Knight’s sole discretion, refund or credit to Customer the price it paid for such defective Knight Product and/or Knight Service, as the case may be. Such replacement, repair, re-performance, refund or credit will be Knight’s sole liability and obligation and Customer’s sole right and remedy with respect to any nonconforming or defective Knight Product or Service All Products that are replaced shall be the property of Knight. Customer shall be responsible for all freight charges in connection with any replacement or repair. Any repaired or replacement Product shall be warranted only for the remainder of the original applicable warranty period.
• The above warranties, rights and remedies extend solely to Customer and to no other person or entity, including, without limitation, any customer of Customer and user of any Product other than Customer.
• Knight does not warrant the performance of Products under actual conditions or for use in specific applications, and Knight shall have no liability or obligation if a Product is used under conditions or for an application for which it is not suited. Customer will have the sole responsibility for determining the suitability of Products under actual conditions and for specific applications.
• Statements and data relating to Products and Services on Knight’s website and in promotional, marketing and technical literature and materials (i) are not intended to define the performance of any Product under actual conditions or when used for specific applications, (ii) are not warranties, and (iii) should not be relied upon by Customer in determining the performance of Products under actual conditions or the suitability of Products for specific uses or applications.
Warranty Exceptions and Exclusions:
• Rubber and synthetic rubber components and parts, such as “O” rings, diaphragms, squeeze tubing and gaskets, and other components and parts considered to be expendable are not warranted.
• Prototypes, experimental devices, samples and loaners are not warranted.
• Products that are proposed or quoted as being sold “Used” or “Without Warranty” are not warranted.
• Products sold as "Reconditioned" are warranted only for 90 days from the date of shipment from Knight’s facility.
• Products that are proposed or quoted with a warranty less than 12 months from the date of shipment from Knight’s facility are warranted only for the period specified in the final Proposal.
• Knight shall have no warranty liability or obligation of any kind with respect to a Product or Service if a warranty claim is asserted after the expiration of the applicable warranty period.
• Knight shall have no warranty liability or obligation of any kind with respect to a Product if Knight is not given the opportunity, after receiving a warranty claim with respect to the Product, to examine the Product at its facility.
• Knight shall have no warranty liability or obligation of any kind with respect to: (i) a Product that is altered, changed, modified or tampered with in any way, unless the alteration, change or modification is made by or with the authorization of Knight, (ii) damage to a Product during or after shipment, (iii) a Product that is not used, operated and maintained in accordance with all recommended operating and maintenance instructions and procedures, (iv) a Product that is not properly installed, unless the installation is performed by Knight, (v) the failure or substandard performance of a Product that is directly or indirectly attributable to, or directly or indirectly results from or arises out of, the failure or substandard performance of a non-Knight product, component or part, (vi) the failure or substandard performance of a Product that is directly or indirectly attributable to, or directly or indirectly results from or arises out of, compliance with any design, specification or requirement of Customer, (vii) a Product that is used in a manner, with a substance or for a purpose other than the normal manner, substance and purpose for which it is intended or is otherwise subjected to abnormal use or service, including, but not limited to, use in an environment of unusual heat, cold or moisture, (viii) a Product that is subjected to a power surge, brown out or other similar occurrence, or (ix) the failure or substandard performance of a Product that is directly or indirectly attributable to, or directly or indirectly results from or arises out of, normal wear and tear of a rubber or synthetic rubber component or part, such as an “O” ring, diaphragm, squeeze tubing or gasket, or another component or part considered to be expendable or Inadequate or excessive water pressure issues
• Knight makes no warranty and shall have no liability or obligation with respect to Products supplied by or provided through Knight that are produced or manufactured by third parties (“non-Knight Products”) and Services supplied by or provided through Knight that are performed by third parties (“non-Knight Services”). Any warranty with respect to non-Knight Products and non-Knight Services shall be limited to a pass through of the warranties, if any, made by the third party that produced or manufactured such non-Knight Products or performed such non-Knight Services, as the case may be, to the extent such pass through is permitted by such third party.
• In no event shall Knight and it affiliated companies have any liability in connection with any Proposal, Order, Product or Service for penalties or for special, incidental, indirect, consequential or punitive damages, including, but not limited to, lost or unrealized sales, revenues, profits, income, cost savings or business, lost or unrealized contracts, loss of goodwill, damage to reputation, loss of property, loss of material being processed, loss of information or data, loss of Production, downtime, or increased costs, even if Knight is advised or placed on notice of the possibility of such penalties or damages and notwithstanding the failure of any essential purpose of any Product or Service.
• In no event shall Knight and its affiliated companies have any liability in connection with any Product or Service in an aggregate amount in excess of the price that Knight received for such Product or Service.
• All Returns: For all returns: (a) a return request must be made to Knight Customer Service with type of Product, quantity, price paid, invoice number and date of purchase; (b) a Knight Return Authorization (KRA) number must be obtained from Knight Customer Service prior to the return; (c) the returned Product must be clearly marked with the KRA number on the outside of the packaging and on the packing list; (d) all components and parts of a control or pump system that have been in contact with any solvent, buffer or other chemical substance must be removed prior to return unless specifically requested otherwise by Knight Customer Service; (e) if any returned control or pump system, component or part has been in contact with any solvent, buffer or other chemical substance, the control or pump system, component or part must be flushed clean prior to return, and a Material Safety Data Sheet for the solvent, buffer or chemical substance must be attached to the outside of the packaging and included with the packing list; (f) Customer shall be responsible for freight in connection with the return; (g) unless other freight arrangements are agreed to by Knight Customer Service, the returned Product must be must shipped to Knight freight prepaid and any replacement or repaired Product shall be shipped to the Customer freight collect; and (h) return acceptance and credit are subject to inspection of the returned Product by Knight. Product returned for credit must be unused, undamaged and complete, in salable condition, and in its original box or packaging. Credits may not be deducted unless and until a credit memo has been issued by Knight. Knight shall the right to refuse to accept the return of any Product that is returned without complying with its return policy. If a returned Product contains any solvent, buffer or other chemical substances, Knight may impose a charge for handling and disposal of the solvent, buffer or other chemical substance. The minimum charge for handling and disposal of solvents, buffers and other chemical substances is US$1,000 (or equivalent).
• Warranty Claim: If requested by Knight, Product that is the subject of a warranty claim must be returned to Knight. If the warranty claim is approved, replacement or repair of the defective Product or refund or credit of the price of the defective Product, as the case may be, is typically made within 30 days after receipt of the Product by Knight. If the warranty claim is not approved, the return will be treated as a Non-Warranty Repair as provided below.
• Non-Warranty Repair: If a Product is returned for repair, Knight will provide an estimate of the repair charges on a time and materials basis and the time required to make the repair. If Customer authorizes the repair, Knight will proceed with the repair on a time and materials basis. If Customer does not authorize the repair, Knight may impose an inspection charge. Determination of repair capability of any product return is at Knight’s discretion due to product condition, attempted customer rework/modification, product discontinuance or any uneconomical or reliable repair outcome.
• Wrong Product/Excess Quantity Shipped: If the wrong Product or excess quantity is shipped, the wrong Product or excess quantity may be returned by Customer for credit within 30 days after date of shipment. If more than 30 days has elapsed since the date of shipment, the return will be treated as an Other Returns for Credit as provided below. If the wrong Product/excess quantity claim is approved, credit for the returned Product and return freight is typically made within 30 days after receipt of the Product by Knight.
• Other Returns for Credit: Except as provided above under Wrong Product/Excess Quantity Shipped, returns for credit (i) must be requested within 90 days after the date of shipment, (ii) are subject to restocking charges, and (iii) are at the sole discretion of Knight. Custom and other non-standard Products are non-returnable. For individual components and parts, the minimum restocking charge is 20% of the original purchase price, and for whole units the minimum restocking charge is 20% of the original purchase price. If the return for credit is approved, credit for the returned Product less restocking charges is typically made within 30 days after receipt of the Product by Knight.
• All patents and other intellectual property rights in relation to Knight Products and Knight Services remain the sole and exclusive property of Knight.
To the extent that any Knight Product includes software in any form, including firmware (“Software”), such software is not sold to Customer or its customers, but is only licensed on a limited, non-exclusive basis in the form delivered by Knight for use by Customer and its Customers with such Knight Product. Customer shall not duplicate, distribute, modify, reverse-engineer or derive the source code for any Software, remove any copyright or other notices from any Software, or use any Software in any way except as authorized by Knight.
As between Customer and its customers, on the one hand, and Knight on the other hand, Knight shall own and retain all right, title and interest in and to all prototypes, drawings, schematics, designs, specifications, samples, molds and other tooling, and technical documentation that may be prepared, created or provided wholly or partially by Knight in connection with the Knight Products (“Prototypes, Drawings, Etc.”), notwithstanding any suggestion or other contribution that Customer or any of its customers may make relative to improvements in, or changes with respect to, such Prototypes, Drawings, Etc. The Prototypes, Drawings, Etc. may be used only for Knight Products supplied by Knight and only as authorized by Knight.
• Customer and each of its customers shall be required to permit Knight to take any one or more of the following actions, at Knight’s option, in connection with any Knight Product that is claimed or found to infringe or misappropriate any patent, copyright, trade secret or other proprietary right:
Control Defense: Direct and control the defense and settlement of such claim of infringement or misappropriation and select and retain the legal counsel who shall represent Customer and/or its customer in connection therewith; provided, however, that, in the event Knight elects to direct and control the defense of a claim of infringement or misappropriation, Knight shall (a) pay the fees and expenses of any the legal counsel that it selects and retains to represent Customer and/or its customer and any local counsel and experts retained by such legal counsel, and (b) indemnify and hold harmless Customer and its customer from and against any and all judgments and settlements based upon the claim of infringement or misappropriation, unless and except to the extent such claim of infringement or misappropriation is based upon or arises out of (i) compliance with any design, specification or requirement of Customer, (ii) any alteration, change or modification to the Knight Product, other than an alteration, change or modification made by or with the authorization of Knight, (iii) the use of the Knight Product with a product, component or part not produced or manufactured by Knight, or (iv) use of the Knight Product is a manner, with a substance or for a purpose other than the normal manner, substance and purpose for which it is intended.
Replace or Modify: Replace the Knight Product with another product, component or part that is non-infringing and non-misappropriating or modify the Knight Product to make it non-infringing or non-misappropriating.
Cease Use: Require Customer and/or its customer to cease using the Knight Product, provided that Knight shall refund to Customer the price paid to Knight by Customer for such Product (less a reasonable allowance for the period of use).
• Notwithstanding anything to the contrary, Knight shall not be liable for any delay in performance or inability to perform that is directly or indirectly attributable to or caused by any circumstance or event beyond its reasonable control, including, but not limited to, war; riot; civil disturbance; act of terrorism; accident; sabotage; theft; malicious damage; confiscation; nationalization; embargo; compliance with law, rule, regulation or governmental or regulatory order or directive; act of government or authority; interruption, shortage or restriction in transportation, power, utilities, materials, components or parts; damage or destruction of facilities or equipment; natural disaster; fire; explosion; flood; storm; strike; lockout; labor dispute; labor shortage; epidemic or other widespread illness, or breach or default of suppliers or subcontractors.
• Customer shall be solely responsible for obtaining all approvals, authorizations licenses and permits, complying with all laws, rules and regulations, and making all arrangements related to the export of Products from the United States and/or the import of Products into a country outside the United States. Products and related technical information, data, documents and materials are subject to export controls under U.S. Export Administration Regulations and U.S. Department of the Treasury embargo regulations. Customer shall strictly comply with all such export controls, shall fully cooperate with Knight in any official or unofficial investigation, audit or inspection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Products or related technical information, data, documents or materials to any party or destination or for any use that is subject to an embargo or otherwise prohibited pursuant to such controls, unless and until Customer obtains all required U.S. governmental and regulatory approvals, authorizations, licenses and permits.
• If requested by Customer, Knight shall provide Customer with the following information relating to Knight Products: (i) the appropriate ECCN numbers appearing in the Export Administration Regulations administered by the U.S. Department of Commerce, and (ii) the appropriate commodity numbers appearing in the current edition of the Bureau of the Census publication, Schedule B, Statistical Classification of Domestic and Foreign Commodities Exported from the United States (Schedule B numbers).
• Proposals Orders, and these Terms and Conditions shall be governed by and interpreted in accordance with the Applicable Law, and the rights, liabilities and obligations of Knight and Customer thereunder and in connection therewith shall be determined under the Applicable Law.
• For Knight LCC, the Applicable Law shall be the laws of the United States and the State of Delaware, including the Delaware Uniform Commercial Code.
• For Knight U.K. Ltd., the Applicable Law shall be the laws of England and Wales.
• For Knight Canada Ltd., the Applicable Law shall be the laws of Canada and the Province of Ontario.
• For Knight Equipment Pty. Ltd., the Applicable Law shall be the laws of Australia and the State of New South Wales.
• The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
Modification and Waiver:
Knight shall have the right to modify its Terms and Conditions at any time in its sole discretion. No course of dealing between Knight and Customer shall operate to modify or waive any of the provisions of Knight’s Terms and Conditions. No waiver of or failure to enforce Knight’s Terms and Conditions in any one or more instances or under any one or more circumstances shall operate as a waiver or preclude enforcement of Knight’s Terms and Conditions in any other similar or dissimilar instance or under any other similar or dissimilar circumstances.
Other Terms and Conditions:
Terms and conditions other than those set forth in Knight’s final Proposal and Knight’s Terms and Conditions shall apply only if and to the extent specifically set forth in Knight’s final Proposal or separately agreed to in writing by Knight.