Terms and Conditions

Kyeros, Inc. ("Seller") will sell and convey to Buyer and Buyer will purchase from Seller the personal property (the "Product" or "Products") described on the invoices ("P.O.s") as shipped with the Products to Buyer when ordered by any means from Seller, upon the terms and conditions set forth below (the “Terms”). If the terms and conditions set forth below conflict with the terms and conditions in any agreement between Seller and Buyer that incorporates these Terms (the “Master Agreement”), the terms and conditions in the Master Agreement shall control. Any capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Master Agreement.

 

1. TERMS: Buyer agrees to pay to Seller the amount indicated on the P.O., net 30 days (U.S. Funds only), for Buyer's purchase of any Products.  A service charge and a monthly interest charge will be assessed to all past due amounts as provided below.  Accounts 60 days past due will be placed on C.O.D. status until the account is paid in full and reopened.  All prices are F.C.A. Seller’s facility in Indianapolis, Indiana.  International sales will require additional payment arrangements.

 

2. RESTOCKING CHARGE: Seller, in its sole discretion, may accept returns of Products. For accepted returns, a restocking charge of twenty percent (20%) of the applicable Product price will be charged if returned for reasons other than an identified defect of Product.

 

3. WARRANTIES: THE EXPRESS WARRANTIES CONTAINED HEREIN ARE SELLER’S SOLE WARRANTIES OF ITS PRODUCTS. SELLER MAKES NO FURTHER OR ADDITIONAL WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND BUYER’S REMEDY SET FORTH HEREIN IS THE SOLE AND EXCLUSIVE REMEDY. THESE WARRANTIES ARE SUBJECT TO CHANGE FROM TIME TO TIME FOR PRODUCTS MANUFACTURED OR REPAIRED AFTER SUCH CHANGE.

 

4. LIMITATION OF LIABILITY: Seller shall not under any circumstances be liable to Buyer or any third party for special, indirect, incidental, or consequential damages, including, without limitation, loss of profits or revenues, loss or damage to other property or equipment (including any loss of material stored or shipped in the product), cost of capital, or of purchased or replacement goods, or expense, delay or inconvenience caused by or arising from the purchase, sale, use, repair or inability to use the Products or by any performance or non‑performance under, or breach of, the Master Agreement. Seller's sole liability for any defective Product shall be its repair or its replacement pursuant to the express warranties as applicable at the time of manufacture or repair of Product.

 

5. DELINQUENT PAYMENTS: (a) Service Charge. Since it would be difficult or impossible to determine Seller's actual damages caused by late payments, if any payment to Seller is not paid within 10 days of the date it is due, Buyer shall pay to Seller an amount equal to 5% of any late payment (but not less than $15 nor more than $100) to compensate Seller for its expenses occasioned by such late payment. Seller and Buyer agree that such service charge shall not constitute a penalty. (b) Interest.  Buyer shall also pay Seller interest on such late payment at the highest rate permitted by applicable law, but not more than 1.5% per month. (c) Collection Costs.  Buyer shall pay to Seller all costs of collection (including the fees of any collection agency to whom this Agreement may be referred) plus reasonable attorney's fees (which attorney's fees shall not be less than 25% of amounts due unless a lower amount is specified by applicable law).

 

6. GOVERNING LAW: All disputes between the parties, whether or not arising out of these Terms, will be governed by the laws of the State of Indiana. The Indiana state and federal courts will have personal jurisdiction of both Buyer and Seller.  All lawsuits relating to any disputes between Buyer and Seller will be brought only in a state or federal court located in Marion County, Indiana.  Buyer hereby waives its right to a trial by jury in any action, proceeding, claim or counterclaim whether in contract or tort, at law or in equity, arising out of or relating in any way to these Terms and all other disputes between the parties.

 

7. REMEDIES: Upon the occurrence of an event of default under these Terms, Seller shall have the right to exercise any one or more of the following remedies in order to protect the interests and reasonable expectations of Seller: (a) Seller may recover from Buyer all amounts then due, and all amounts to become due shall be accelerated and become immediately due and payable; (b) Seller may require Buyer to assemble the Products and make them available to Seller at a time which is reasonably convenient and at a place designated by Seller; (c) Seller may take possession of any and all items of Product, wherever located, without demand or notice, without any court order or other process of law and without liability to Buyer for any damages occasioned by such taking of possession.  Any such taking of possession shall not constitute a termination of these Terms unless and until Seller so elects in writing; (d) Seller may declare immediately due and payable expenses of taking possession of the Products and for collection, including, without limitation, court costs and attorney's fees; and (e) Seller may pursue any other available remedy at law or in equity.  No right or remedy herein conferred or reserved to Seller is exclusive of any right or remedy provided or permitted at law or in equity but each shall be cumulative of every other right or remedy is given hereunder, or now or hereafter existing at law or in equity, by statute or otherwise, and may be enforced concurrently therewith or from time to time.

 

8. MITIGATION: If Seller repossesses the Products prior to payment by Buyer of all amounts due hereunder, Seller may sell the Products, AS IS, WHERE IS, free and clear of all rights of Buyer at either public or private sale and apply the net proceeds (after deducting expenses of sale) to the obligation of Buyer hereunder. Buyer shall remain liable for any deficiency.  Seller may dispose of the Products in any commercially reasonable place and manner and Buyer waives any notice of time, place, and manner of sale.

 

9. INTEGRATION: These Terms, consisting of the front and back of this page, along with any Master Agreement (and any exhibits, addenda or amendments thereto) of which these Terms may be a part, constitutes the sole and complete agreement between Seller and the Buyer with respect to the purchase of the Products.