BERKNESS SWISS, LLC d/b/a KSI SWISS
ADDITIONAL TERMS AND CONDITIONS
These Additional Terms and Conditions govern the agreement made and entered into between BERKNESS SWISS, LLC d/b/a KSI SWISS (“KSI”) and theBUYER indicated on the Contract.
1. ORDERS.
1.1 Offer and Acceptance. Acceptance of the Contract for the Machinery ordered byBUYER shall be deemed to occur upon the earlier of: (i) BUYER’s receipt of written acceptance within ten (10) days from date of the Contract, or (ii) KSI’s actual shipment of all or any portion of the Machinery ordered under the Contract. KSI expressly limits acceptance of this offer to the terms as expressed in the Contract. KSI’s acceptance of the Contract is expressly made conditional on BUYER’s assent to all the terms contained therein. In case of any inconsistency between KSI’s Contract andBUYER’s Contract, KSI’s Contract governs. KSI hereby gives notice of objection to and rejection of all terms supplied by BUYER which are in addition to, different from or inconsistent with the terms hereof. Clerical errors contained in the Contract are subject to correction.
1.2 Ordered Accessories. Upon KSI’s acceptance of the Contract, KSI shall order Accessories, including but not limited to a collet, guide bushing and sub spindle collet (“Ordered Accessories”).
1.3 Training Provided by KSI. KSI or its DEALER will conduct limited on-site training to the BUYER. This training is on the machine operation and programming code. The sales price includes five days for installation and training. KSI or its DEALER provides technical assistance on BUYER’s first machined component, which KSI or its DEALER will assist in setting up for demonstration and training. There are no guarantees on tool life, finish requirements, chip control, or that programmers will be trained to an acceptable level during the visit. Ongoing support is available for an additional charge by phone, fax or e-mail. “Turn-keys,” “run-offs” and “guaranteed cycle times” are available at an additional cost. Additional on-site training is available at $1,250 per day plus expenses; KSI conducts periodic training courses at KSI offices as well.
1.4 Force Majeure. KSI reserves the right at its option either to suspend shipment of the Machinery covered by the Contract or to cancel the Contract, in whole or in part, at any time (without cancellation charge or penalty) where such suspension or cancellation is deemed necessary as a result of force majeure, acts of God or contingencies beyond the control of KSI.
2. PURCHASE PRICE
2.1 Price. The purchase price for the Machinery is specified in the Standard Dealer Price List attached to these Additional Terms and Conditions and is updated by KSI either (i) annually or (ii) upon 60 days’ prior notice to DEALER. The order set forth in the Contract may not be filled at any price other than the price set forth therein without the written consent of KSI. BUYER shall be solely responsible for any and all sales, use, excise or personal property taxes imposed upon the sale of the Machinery, Ordered Accessories, or Services provided under the Contract.
3. SHIPMENT, TRANSPORTATION AND
INSTALLATION
3.1 Delivery. Unless otherwise specified in the Contract, all shipments are to be F.O.B. KSI, Burnsville, MN. BUYER shall pay all freight and insurance. If BUYER is unable or unwilling to take delivery of the Machinery, BUYER agrees to notify KSI immediately. If BUYER is unable or unwilling to take delivery when the Machinery is ready to be shipped, BUYER shall immediately be obligated to pay KSI the remaining balance of the purchase price under the Contract. If BUYER fails to make such payments, KSI shall have the right without notice and without obligation to BUYER to either: (i) cancel the Contract, in which case, KSI shall be entitled to retain the Deposit and any additional payments received from BUYER as liquidated damages and not a penalty, and BUYER shall immediately return any delivered Machinery and Ordered Accessories to KSI at BUYER’s expense or (ii) retain the Deposit and pursue all available legal remedies against BUYER for breach of the Contract .
3.2 Delay. KSI will notify BUYER whenever it appears to KSI that it will not be able to deliver the Machinery and Ordered Accessories specified on the dates specified in the Contract. Delay in delivery shall not be considered a default under the Contract, nor give rise to any liability on the part of KSI for any incidental, special or consequential damages. Acceptance of the Machinery and Ordered Accessories on delivery will constitute waiver of any claims against KSI for damages on account of delay.
3.3 Transportation. Unless specified in the Contract, delivery shall be by common carrier.
3.4 Title; Risk of Loss. Title to and risk of loss shall pass upon delivery to the common carrier at KSI’s shipping location.
3.5 Installation. KSI or its DEALER is solely responsible for installation of the Machinery; within a reasonable time period following the delivery of the Machinery, KSI or its DEALER agrees to make available at least one service personnel to provide installation of the Machinery at the location of the BUYER. BUYER is solely responsible for ensuring that the placement of any equipment will not interfere with any underground conduit, cabling, or gas or water lines. KSI is not responsible for any permits or approvals required for installation, all of which shall be obtained by BUYER in advance of installation.
4. DAMAGES
4.1 Inspection. BUYER is responsible for inspection of the Machinery upon delivery. BUYER hereby waives any claim or defense based on the quality of the Machinery and Ordered Accessories specified herein or any other nonconformity of the Machinery and Ordered Accessories, unless BUYER notifies KSI within two (2) business days of delivery of the Machinery of the alleged nonconformity. It is understood that compliance by BUYER with the above steps shall not constitute an admission by KSI of the merits or amounts of BUYER’s claim or defense.
5 PAYMENT TERMS AND SECURITY INTEREST
5.1 Payment Terms. Except as may be otherwise provided herein, any the Deposit and any other deposits are non-refundable (except for KSI’s failure to perform) and the full purchase price, less the Deposit for all Machinery covered by the Contract, shall be due and payable ten days after installation of the Machinery. Any amount not paid when due is subject to a 1% per annum penalty plus 1.5% per month interest computed on the number of days actually elapsed in a 360-day year.
5.2 Security Interest. To secure BUYER’s full payment of the purchase price of the Machinery, BUYER grants to KSI a security interest in the Machinery as described in the Contract. BUYER agrees that KSI may file one or more financing statements pursuant to the Uniform Commercial Code in form satisfactory to KSI, and further agrees that KSI is authorized to file such financial statements without the signature of BUYER when permitted by law. Any of the following shall constitute an “Event of Default” under the Contract: (i) BUYER’s failure to promptly pay the purchase price when due, (ii) the making or levying of any attachment or execution on the Machinery, or (iii) the filing of a petition in bankruptcy or insolvency, or for the appointment of a receiver in liquidation or a trustee, an assignment for the benefit of creditors, or the filing of any other proceeding relating to relief of debtors, by or against BUYER or for any of BUYER’s property. Upon the occurrence of an Event of Default, KSI may take any legal action available to collect all sums owing under the Contract, to enforce its right to possession of and title to the Machinery, and to enforce any and all other rights and remedies available under the Uniform Commercial Code and otherwise. This Section 5.2 of the Contract shall inure to the benefit of BUYER and KSI and their respective successors and assigns. The granting of a security interest pursuant to this Section 5.2 shall not apply when BUYER makes full payment of the purchase price of the Machinery prior to delivery.
6. GUARANTY
6.1 Guaranty. To induce KSI to enter into the Contract and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Guarantor (if any is listed in the Contract) hereby absolutely, unconditionally and jointly and severally guarantees to KSI the full and prompt payment when due of all debts and obligations incurred under the Contract. Guarantor agrees to pay all costs, expenses and reasonable attorneys’ fees paid or incurred by KSI in endeavoring to collect such debts and obligations and in enforcing this guaranty.
7. WARRANTIES / REPAIRS
7.1 Machinery Warranties. BUYER understands that the purchase price of the Machinery includes a 2-year Fanuc parts and labor warranty and a 2-year warranty on replacement parts provided by the manufacturer (collectively, the “Parts Warranty”). The Parts Warranty does not cover “wear” items, including, but not limited to, toggles and belts. Any parts shipped pursuant to the Parts Warranty shall be shipped at BUYER’s cost. The use of water-soluble coolant or oils that are incompatible with the machine components used in the Machinery voids the Parts Warranty. Damages to the machine caused by improper part setup by the BUYER or improper machine operations or bad stock are not covered by warranty. BUYER agrees to promptly reimburse KSI or its DEALER for labor plus expenses for any service calls for repairs found not to be covered by the applicable warranty.
7.2 Liability Disclaimer. EXCEPT FOR THE WARRANTIES PROVIDED BY THE MANUFACTURER EXPRESSLY SET FORTH IN THE CONTRACT (WITH RESPECT TO WHICH KSI SHALL HAVE NO LIABILITY), KSI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND TITLE. IN NO EVENT SHALL KSI BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) OF ANY KIND INCLUDING THE SAME RESULTING FROM DEFECTS OR NONCONFORMITY OF THE MACHINERY WHETHER BASED ON WARRANTY, CONTRACT, TORT OR ANY OTHER LEGAL THEORY, NOR SHALL KSI BE RESPONSIBLE OR LIABLE WITH RESPECT TO: (I) ANY ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OF ESTIMATED CYCLE TIMES OR COST OF PROCUREMENT OF SUBSTITUTE MACHINERY, SERVICES OR LOSS OF BUSINESS, (II) ANY MATTER BEYOND KSI’S REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO UNAUTHORIZED ACCESS, THEFT, OPERATOR ERRORS, SEVERE WEATHER, EARTHQUAKES OR LABOR DISPUTES. KSI IS NOT RESPONSIBLE FOR ANY DAMAGE TO BUYER’S PROPERTY OR ANY THIRD PARTY’S PROPERTY RESULTING FROM USE OF THE MACHINERY. BUYER ASSUMES ALL RISK AND LIABILITY RESULTING FROM THE USE OF THE MACHINERY, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER MACHINERY. THERE ARE NO ORAL AGREEMENTS OR WARRANTIES COLLATERAL TO OR AFFECTING THIS CONTRACT. THERE ARE NO WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION OF THIS CONTRACT AND BUYER NEITHER ASSUMES NOR AUTHORIZES ANY PERSON TO ASSUME FOR IT ANY OTHER LIABILITY. NOTWITHSTANDING ANY OTHER PROVISION OF THE CONTRACT OR APPLICABLE LAW, KSI’S MAXIMUM LIABILITY TO ANY USER ARISING OUT OF OR RELATING TO THIS CONTRACT SHALL NOT EXCEED THE AMOUNT PAID FOR THE MACHINERY FOR THE PARTICULAR SHIPMENT WITH RESPECT TO WHICH A CLAIM IS MADE.
8. MISCELLANEOUS
8.1 Approval. No consent or approval provided for herein shall be binding upon KSI unless signed on its behalf by a duly authorized officer.
8.2 Entire Agreement, Construction. The Contract and these Additional Terms and Conditions constitute the entire agreement between BUYER and KSI with respect to the purchase of the Machinery and Ordered Accessories, superseding all prior correspondence between the parties. No provision of the terms and conditions set forth herein shall be deemed waived, amended, or modified by either party unless such waiver, amendment, or modification be in writing signed by the party against whom enforcement is sought. If any part of these Additional Terms and Conditions is considered invalid or unenforceable, such provision shall be struck and all remaining provisions shall be enforced.
8.3 Notices. All notices herein shall be in writing and shall be delivered in person or sent by e-mail, registered or certified mail, postage prepaid, to the address of the other party as set forth on the Contract, or to such other address as such party shall have designated by proper notice.
8.4 Applicable Law. The laws applicable to the Contract shall be the laws of the State of Minnesota, USA, without regard to its conflict of laws. BUYER hereby consents to the jurisdiction and venue of Hennepin County, Minnesota courts for any dispute or action relating to the Contract.
8.5 Assignment and Delegation. BUYER shall not assign its rights under the Contract or any duties to which it may be subject under the Contract, without the prior express written consent of KSI.
8.6 Attorney’s Fees and Costs. In the event of a breach of this Contract by BUYER, KSI shall be entitled to all costs, including reasonable attorneys’ fees incurred by BUYER to enforce KSI’s right under the Contract.
8.7 Headings. The heading or subheadings of paragraphs contained in the Contract are used for convenience and ease of reference and shall not limit the scope or intent of the clause.
4817-0942-1601.