Kenco® Commercial Terms (Terms of Sale)
Effective August 12, 2012
All sales by Kenco Label & Tag Co., LLC. and/or its affiliates (collectively, "Kenco") are subject to the following terms and conditions (the “Commercial Terms”):
1. Sales Contracts; Agreement to Terms and Conditions; No Variations. When Kenco accepts any purchase order it creates a contract of sale with the Buyer (the “Contract”) which is subject to these Commercial Terms. Buyer's agreement to these Commercial Terms may be evidenced by any of the following: (a) Buyer’s acknowledgement expressed in writing or orally; (b) by Buyer’s conduct: (c) Buyer’s retaining possession of any paper document stating the Commercial Terms, without objection, and/or (d) Buyer's acceptance of products shipped or services rendered by Kenco. Kenco will not agree to any other terms and/or conditions (whether written or oral) originating from Buyer that purport to vary the Commercial Terms stated herein, unless Kenco manifests such agreement in a writing signed by an authorized Kenco representative.
2. Contract Terms. All Purchase Orders are subject to acceptance by Kenco. Kenco reserves the right to refrain from accepting any purchase order, or to rescind any Contract, if it reasonably determines or suspects that the Buyer submitting the purchase order: has unacceptable credit; is committing a fraud or other illegal act; is a Kenco competitor; or will use the purchased product or service for an illegal or otherwise inappropriate purpose; or is otherwise engaged in activity that causes Kenco to determine that it does not wish to transact business with that User. In connection with the above, Kenco may request documentation or other assurances from the User. Kenco further reserves the right to refrain from accepting any purchase order, or to rescind any Contract, if it reasonably determines or suspects that the product or service in question is not fit for the use intended by the User. All prices are FOB Milwaukee, WI. Unless Buyer provides valid evidence of its tax exempt status; Buyer shall bear all applicable federal, state, municipal or other governmental tax, as well as any applicable import or customs duties, license fees and similar charges, however designated or levied on the sale or delivery of products or services, or measured by the purchase price paid for the products.
3. Passage of Title; Risk of Loss. Title to products passes to Buyer when a carrier takes possession at Kenco's dock. If a Force Majeure Event (defined below) prevents delivery, or if shipping instructions are not received for products before delivery date, title passes when products are set aside by Kenco. All risk of loss, damage, theft or destruction (“Casualty”) passes to Buyer at delivery to the carrier. No Casualty to the product, in whole or in part, shall impair Buyer’s obligations under the Contract. Nevertheless, Kenco may, at Kenco's option, make a claim for such products at invoiced value under any insurance policies paid for by Kenco and Kenco shall credit to Buyer that portion of any settlement received thereunder. Products for which title has passed and which are held by Kenco for any reason shall be held at Buyer's sole risk.
4. Force Majeure: Kenco shall not be liable for delay in performance or inability to perform occasioned by any cause beyond its control including, but not limited to, fires, explosions, earthquakes, drought, tidal waves and floods and other acts of God, strikes, government regulations, war, hostilities, invasion, embargo, rebellion, revolution, nuclear event or other explosion; riots, strikes, lock outs or disorder, or acts or threats of terrorism (each a “Force Majeure Event”). If Kenco’s performance is delayed by a Force Majeure Event, its time for performance shall be extended for the duration of the Force Majeure Event. If deliveries are prevented, in whole or in part, by a Force Majeure Event, the Contract shall be deemed terminated, in whole or in part, without liability to either party as to the terminated part.
5. Tolerances: Delivery or tender within ten (10%) percent of the quantity specified in the Contract shall be deemed full performance. Shipment or tender made within twenty (20) days after delivery date specified in the Contract shall constitute timely delivery or tender. Delivery times posted on Kenco’s website are estimates and Buyer should call Kenco to obtain more specific information for all time sensitive Contracts. Products duly rejected by Buyer and accepted for return by Kenco may be replaced within twenty (20) days from date of receipt by Kenco. Delay in delivering sample pieces or other sample requirements shall not constitute a breach by Kenco’. For label purchases, Buyer should pre-order samples to test whether adhesives will function satisfactorily to Buyer.
6. Security Interest. Buyer grants Kenco a security interest in all products sold hereunder and to all products now or hereafter acquired by Buyer from Seller, and to any proceeds thereof, until the purchase price and any other amounts due to Kenco have been paid in full. Buyer agrees promptly to execute any financing statement or other documents requested by Kenco in order to protect Kenco's security interest. Kenco shall have all the rights and remedies of a secured party under the Uniform Commercial Code, which rights and remedies shall be cumulative and not exclusive.
7. Payment. All credit sales, other than those paid by credit card, are subject to credit terms determined by Kenco in its sole discretion. Kenco reserves the right to change credit terms at any time. Unless otherwise agreed in writing by Kenco, all credit purchases must be paid in accordance with credit terms set forth in Kenco’s correspondence confirming your Purchase Order. Buyer may obtain a copy of the applicable credit terms upon request. Kenco reserves the right to collect: (a) a financing charge on past due payments equal to the lesser of one and a half percent (1.5%) monthly or the maximum permissible under applicable law; and/or (b) a twenty-five dollar and 00/100 ($25.00) service charge for each check which is dishonored for any reason. Writing “full payment” or similar words on, or in connection with, checks to Kenco shall not result in an accord and satisfaction of Buyer's liability.
8. Buyer Claims:
A. To assert a claim Buyer must give notice to Kenco (in the manner described in Section 14 below) which describes the defect or other grounds in reasonable detail. Failure to assert claims within following time periods shall constitute a waiver of such claims: (i) claims for patent product defects must be asserted by Buyer within ten (10) days after delivery date and claims for latent product defects must be asserted by Buyer within ten (10) days after discovery or within ninety (90) days from delivery date, whichever is earlier. Buyer must submit defective products to Kenco for inspection within ten (10) days following the notice date. (ii) claims for quantity shortages must be asserted by Buyer within ten (10) days after delivery date; and (iii) other claims must be asserted by Buyer within ninety (90) days after invoice date.
B. If Kenco determines a claim to be valid, it may replace defective product and/or deliver additional product within a reasonable time.
C. If Kenco breaches in any manner that applies to part of, but not the entire, Contract, Buyer may not treat such event as a breach of the entire Contract. Buyer shall pay on the due date for all products that are not subject to the breach.
9. Returns. All product returns are subject to Kenco’s policies and procedures governing product returns, which may be modified by Kenco at any time. All returns must be accompanied by a written return merchandise authorization issued by Kenco ("RMA") and delivered in accordance with shipping instructions provided by Kenco. All returns are subject to in-house credit only. The time allowed for returns may be limited by product manufacturers.
10. Limitation on Warranties;
AS TO PRODUCTS MANUFACTURED OR OTHERWISE CREATED BY PARTIES OTHER THAN KENCO (“VENDOR PRODUCTS”) PRODUCT WARRANTIES, IF ANY, ARE LIMITED TO THOSE PROVIDED BY THE VENDOR AND KENCO MAKES NO WARRANTIES WHATSOEVER WITH REGARD TO VENDOR PRODUCTS.
AS TO PRODUCTS MANUFACTURED OR OTHERWISE CREATED BY KENCO (“KENCO PRODUCTS”) KENCO WARRANTS THE MERCHANTABILITY OF SUCH PRODUCTS AND WARRANTS THE FITNESS FOR A PARTICULAR USE ONLY TO THE EXTENT THAT THE PARTICULAR USE HAS BEEN CLEARLY EXPRESSED TO KENCO IN WRITING. KENCO MAKES NO OTHER WARRANTIES WITH REGARD TO KENCO PRODUCTS.
11. Limitations of Liability.
KENCO'S LIABILITY FOR BREACH OF THE CONTRACT, OR ANY INSTALLMENT THEREOF, OR FOR ANY OTHER MALFEASANCE OR NON-FEASANCE SHALL BE LIMITED TO THE DIFFERENCE BETWEEN THE PURCHASE PRICE OF THE PRODUCTS AND THE MARKET VALUE ON DELIVERY DATE AND SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE PRODUCTS.
KENCO SHALL NOT BE LIABLE FOR DAMAGES OF ANY OTHER NATURE, INCLUDING BUT NOT LIMITED TO, INJURIES TO PERSONS OR PROPERTY, LOSS OF PROFIT OR ANY OTHER INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES.
THE LIMITATIONS IN SECTIONS 10 AND 11 ARE ONLY APPLICABLE TO THE EXTENT PERMITTED BY APPLICABLE LAW
12. Buyer’s Default. Buyer shall be in default in connection with the Contract upon the occurrence of any of the following events or conditions (“Default Event”): (a) Buyer’s failure to pay any indebtedness now or hereafter owed to Kenco, (b) Buyer’s failure to perform any other obligation under the Contract, (c) dissolution, termination of existence, insolvency, business failure, or discontinuance of Buyer's business or the appointment of a receiver for any part of its property of, or assignment for the benefit of creditors by, Buyer or the commencement of any proceedings under any bankruptcy reorganization or arrangement laws by or against Buyer or the attachment, levy, seizure or garnishment of any of Buyer's property, rights or assets.
13. Kenco’s Remedies.
A. In General. At any time following any Default Event, Kenco may, at its option and without notice to Buyer, exercise any one or more of the following remedies: (a) declare immediately due and owing any and all obligations to Kenco; (b) sue for amounts then due to Kenco or thereafter accruing, (c) suspend deliveries of any or all products or services, (d) take possession of any Kenco product wherever found, (e) cause Buyer, at its expense, to promptly return any Kenco product, or (f) sell the products, or any part thereof at public or private sale (for cash or credit) at such time or times as Kenco shall determine, free and clear of any rights of Buyer, and if notice thereof is required by law, any notice in writing of any such sale by Seller to Buyer not less than ten days prior to the date thereof shall constitute reasonable notice thereof to Buyer.
B. Mitigation of Damages. Should Kenco repossess any of the product because of Buyer's default, Kenco may make a commercially reasonable effort to sell such product at a reasonable price to a third party, provided, however, that Kenco shall have no obligation to actively seek out or solicit potential third party Buyers for said products.
C. Collection Costs. Buyer shall pay any and all collection costs, including reasonable attorneys' fees and costs, incurred by Kenco arising from or relating to a Default Event.
D. Rights and Remedies Not Exclusive. No right or remedy conferred upon or reserved to Kenco herein shall be exclusive of any other right or remedy. All rights or remedies conferred upon Kenco herein or by law shall be cumulative and in addition to any other right or remedy available to Kenco.
14. Notices. Any notices or other communications to Kenco must be sent by U.S. mail and by email to Kenco at the following addresses:
U.S. Mailing Address
Kenco Label & Tag Co., LLC
6543 N. Sidney Place
Milwaukee, WI 53209
15. Law and Lawsuits. The Contract and the Commercial Terms shall be construed and enforced in accordance with Wisconsin law, giving no effect to Wisconsin’s choice of law rules. All lawsuits arising from or relating to the Contract and/or the Commercial Terms shall be brought in the Federal or State courts in or for Milwaukee County, Wisconsin, USA, and Buyer hereby submits to the exclusive personal jurisdiction of such courts for such purpose.
16. Other Legal Terms.
B. Titles. The titles in these Commercial Terms are for convenience of reference only, and are not to be considered in construing these Commercial Terms.
C. Severability. If any provision of the Contract or these Commercial Terms is found to be void or unenforceable under existing or future law, the remaining provisions of the Contract or these Commercial Terms these shall nevertheless be binding with the same force and effect as though the void or unenforceable parts were never a part of the Contract or these Commercial Terms.
D. Third Party Beneficiaries. Neither the Contract nor these Commercial Terms is intended to, and shall not be construed to, create any rights or remedies in any parties other than Kenco and Buyer, and no other person or entity shall assert any rights as a third party beneficiary hereunder.
© Kenco Label & Tag Co., LLC 2012