1.1 These Terms are part of one or more of the following documents between CARDINAL KINETIC and CUSTOMER (“CUSTOMER”) and shall govern and be incorporated into each of the applicable documents:  (i) a request for proposal (“RFP”); (ii) a quote or a quotation submitted by CARDINAL KINETIC (“Quotation”); (iii) a sales order or purchase order submitted by CUSTOMER (“Order”); or (iv) a purchase order acknowledgement and pertinent documents containing detailed information regarding the Equipment (the “PO Acknowledgement”).  The Quotation, Purchase Order, PO Acknowledgment, and these Terms (including any invoice, change order, amendment or addition thereto) shall be referred to as a “Contract Document” or, collectively, as the “Contract Documents.”

1.2 EACH CONTRACT DOCUMENT BETWEEN CARDINAL KINETIC AND CUSTOMER IS MADE SUBJECT TO AND IS EXPRESSLY LIMITED TO THESE TERMS.  THE ACCEPTANCE OF ANY PURCHASE ORDER BY CARDINAL KINETIC IS MADE EXPRESSLY CONDITIONAL UPON CUSTOMER’S ASSENT TO THESE TERMS.  THE PARTIES INTEND THAT THESE TERMS SHALL EXCLUSIVELY CONTROL THE RELATIONSHIP OF THE PARTIES WITH RESPECT TO THE EQUIPMENT BEING PURCHASED PURSUANT TO THE CONTRACT DOCUMENTS, AND IN THE EVENT OF ANY INCONSISTENCY BETWEEN ANY CONTRACT DOCUMENT AND THESE TERMS, THESE TERMS SHALL CONTROL AND SHALL BE BINDING ON THE PARTIES.  UNDER NO CIRCUMSTANCES SHALL THE CONTRACT DOCUMENTS INCLUDE ANY TERMS AND CONDITIONS PROPOSED BY CUSTOMER, WHETHER INCLUDED ON CUSTOMER’S PURCHASE ORDER, INVOICE OR WRITTEN ACCEPTANCE OF CARDINAL KINETIC’S QUOTATION OR OTHERWISE, UNLESS SUCH CUSTOMER TERMS ARE EXPRESSLY ACKNOWLEDGED, IN WRITING, AND EXECUTED BY AN AUTHORIZED PERSON ON BEHALF OF CARDINAL KINETIC. 

2.1 All deliveries are Ex Works and Title to the Equipment and all risk of loss of or damage to the Equipment shall pass to CUSTOMER when the Equipment is made available to, as applicable, CUSTOMER’S carrier or a common carrier, at CARDINAL KINETIC’s dock in Erlanger, Kentucky.

 

2.2 Notwithstanding the foregoing, CARDINAL KINETIC shall have, and CUSTOMER hereby expressly grants to CARDINAL KINETIC, a purchase money security interest, pursuant to the provisions of the Uniform Commercial Code as adopted in the State of Kentucky (“UCC”), in the Equipment until CUSTOMER pays CARDINAL KINETIC in full. CUSTOMER CUSTOMER agrees to execute and deliver all documents reasonably required in order for CARDINAL KINETIC to attach and perfect its purchase money security interest in the Equipment.  CARDINAL KINETIC shall release its purchase money security interest when CUSTOMER pays CARDINAL KINETIC in full.

3.1 Payment for CARDINAL KINETIC Equipment, Third-Party Equipment and Equipment is due from CUSTOMER, as applicable, as set forth in the RFP, Quotation, Order or as set forth in the applicable Contract Documents.  CARDINAL KINETIC will assess a 1.5% per month service charge or the maximum amount allowed by law (whichever is greater) on any amounts not paid in accordance with the Contract Documents. Payment can be made by major credit cards, money order, wire transfer or check. If payment is made by check that is not a cashier’s or certified check, the order will not be completed until the check is cleared for good funds. Conditional credit, at CARDINAL KINETIC’s sole and exclusive discretion, may be extended by CARDINAL KINETIC to CUSTOMER upon commercially proof of creditworthiness.   All amounts shall be paid in United States Dollars unless expressly otherwise agreed between the parties.

3.2 Prices set forth in the Contract Documents do not include any of the following:  (i) cost of permits and fees required by local government agencies; (ii) federal, state and local taxes; or (iii) the testing for the documentation of and/or removal of any hazardous materials.  All additional charges or costs not specifically set forth in the Contract Documents shall be the sole and exclusive responsibility of the CUSTOMER. CUSTOMER is also solely responsible for any applicable transaction taxes, including, without limitation, any excise, value-added, consumption, duties, tariffs, sales, use or similar taxes (but specifically excluding taxes on CARDINAL KINETIC’S income) and fees, changes, expenses, penalties and costs related thereto. It is CUSTOMER’S responsibility to provide any applicable exemption certificates to CARDINAL KINETIC.

3.3 In the event the amounts charged by CARDINAL KINETIC’S Third Party Equipment suppliers or licensors increase, for reasons beyond CARDINAL KINETIC’s control, CARDINAL KINETIC reserves the right to increase to the extent of any such increase in costs.  In the event of any increase in the price, upon the request of the CUSTOMER, CARDINAL KINETIC shall provide to the CUSTOMER an itemized statement with clear and sufficient detail documenting the increases by the suppliers.  At the option of the CUSTOMER, all costs for Third Party Equipment may be fixed, at any time upon payment in full by the CUSTOMER of the cost of same and upon confirmation by the supplier that the cost has been purchased without any increase in the amounts included in the contract Document.

The shipping date identified in the Purchase Order is an estimated shipping date only; CARDINAL KINETIC reserves the right to vary such shipping date, for commercially reasonable or other good faith reasons.  CARDINAL KINETIC shall not incur any additional expenses or costs or bear any liability associated with any such extension of the shipping date. CARDINAL KINETIC’S shipping terms are Ex Works, CARDINAL KINETIC’S dock in Erlanger, Kentucky.

Except with respect to the payment of monies by CUSTOMER to CARDINAL KINETIC due hereunder, neither party shall be responsible or liable to the other party for delay or prevention of or failure to perform under the Contract Documents for any loss or damage due to causes beyond its reasonable control including, but not limited to, any of the following events:  epidemics, pandemics, or other health crises, explosions, acts of God, fires, civil disobedience, war, acts of terrorism, riots, strikes, walkouts, insurrections, insurgencies, work stoppages, labor disputes, floods, windstorms, weather events or other natural disasters, unavailability of suitable transportation, governmental orders, changes in laws or other governmental requirements, unforeseeable local conditions, or shortages of labor or materials.

CARDINAL KINETIC may, by written notice to CUSTOMER, cancel CUSTOMER’S order if CUSTOMER:  (i) fails to perform any of the terms and conditions contained in the Contract Documents, and CUSTOMER does not cure such failure to CARDINAL KINETIC’s satisfaction within a period of ten (10) days after receipt of written notice from CARDINAL KINETIC; (ii) becomes insolvent, makes an assignment in favor of creditors, or becomes subject to any bankruptcy, dissolution or similar proceeding; or (iii) is unable to comply with all applicable laws or regulations.  As a nonexclusive alternative to cancellation, CARDINAL KINETIC may, in its sole discretion, by written notice to CUSTOMER, and without any liability of CARDINAL KINETIC to CUSTOMER whatsoever, suspend any of its obligations under the Contract Documents for any reason referenced in subsections (i) through (iii) above.

It is CUSTOMER’S sole and exclusive responsibility to ensure that the Equipment (i) meets CUSTOMER’S needs and requirements and is suitable for CUSTOMER’S particular use and purpose and (ii) complies with all local laws, rules, regulations, standards or codes that govern CUSTOMER and its business. CARDINAL KINETIC shall not have any liability for any specifications supplied by CUSTOMER or changes made by CARDINAL KINETIC at CUSTOMER’s request. 

8.1 CARDINAL KINETIC warrants to the CUSTOMER, provided CUSTOMER is the original purchaser of the CARDINAL KINETIC Equipment, that the CARDINAL KINETIC Equipment shall be free from material defects in materials and workmanship for a period of twenty-four (24) months from the date of purchase of Cardinal Kinetic Equipment (“CARDINAL KINETIC Equipment Warranty Period”) provided, that such CARDINAL KINETIC Equipment is carefully operated and maintained in accordance with the recommended instruction manuals, directions, guides and procedures.  The foregoing warranty is not transferable and is available only to the above described CUSTOMER.

8.2 During the CARDINAL KINETIC Equipment Warranty Period, if the CARDINAL KINETIC Equipment fails to perform in accordance with the specifications due to defective material or workmanship, CUSTOMER shall promptly notify CARDINAL KINETIC of such defect and request a Return Goods Authorization Identifier (“RGA”). The RGA shall only be given and authorized for CARDINAL KINETIC Equipment that is covered within the applicable CARDINAL KINETIC Equipment Warranty Period as determined by the product serial number and CARDINAL KINETIC sales records. CUSTOMER shall be responsible (“Ex Works”) for inbound and outbound shipment of defective CARDINAL KINETIC Equipment, including for any applicable freight and insurance costs. The risk of loss shall remain with CUSTOMER until receipt of the CARDINAL KINETIC Equipment by CARDINAL KINETIC. CARDINAL KINETIC shall have the right to refuse receipt of any shipment that does not have an authorized RGA. CUSTOMER shall be solely responsible for all risk of loss or damage related to any shipment that does not have an authorized RGA.

8.3 Upon inspection by CARDINAL KINETIC, if the CARDINAL KINETIC Equipment is found to have a defect covered by the foregoing warranty, CARDINAL KINETIC may, at its option, repair or replace the CARDINAL KINETIC Equipment or applicable parts thereof at no cost to CUSTOMER.

 

8.4 Upon inspection, if the CARDINAL KINETIC Equipment is found to have a defect not covered by the foregoing warranty, upon issuance of a purchase order by CUSTOMER authorizing the repairs, the following charges shall apply: $75.00 USD testing fee, cost of repairing the defective CARDINAL KINETIC Equipment, $75.00 USD return fee and all applicable freight and insurance charges. The risk of loss shall pass to CUSTOMER when the CARDINAL KINETIC Equipment is made available to a common carrier or CUSTOMER’s carrier at CARDINAL KINETIC’s facility.

8.5 The foregoing warranty does not extend in any way to consumable components, which, under normal usage, have an inherent life shorter than twenty-four (24) months.  The foregoing warranty shall also not apply to: any part of the CARDINAL KINETIC Equipment that has been subjected to misuse, abuse, neglect, improper storage, improper installation, improper wiring, improper voltage non-compliance with CARDINAL KINETIC’S instructions or improper handling, or modifications by CUSTOMER or parties other than CARDINAL KINETIC or the integration thereof with other systems, products and equipment made by any party other than CARDINAL KINETIC or damage caused by fire, flood, wind and lightning.  Unless otherwise agreed in writing prior to the commencement of work, CARDINAL KINETIC shall not be liable for any labor charges by CUSTOMER or any third party for modifications or repairs. 

8.6 In any and all events, CUSTOMER’S remedies with regard to CARDINAL KINETIC Equipment shall consist exclusively and solely of those in this Section 8 and CARDINAL KINETIC shall under no circumstances return, refund or credit any monies for the CARDINAL KINETIC Equipment purchased by CUSTOMER.

With regard to Third Party Equipment purchased or licensed by CARDINAL KINETIC from the manufacturer or licensor for re-sale or licensing, the original manufacturer’s / licensor’s warranties shall, to the extent permitted by law, extend and inure to the benefit of the CUSTOMER.  CARDINAL KINETIC DOES NOT WARRANT AND HEREBY EXPRESSLY DISCLAIMS ANY WARRANTY OR LIABILITY FOR ANY EQUIPMENT, PARTS, SOFTWARE, HARDWARE AND ACCESSORIES PURCHASED OR LICENSED BY CARDINAL KINETIC FOR RESALE OR FOR LICENSING TO CUSTOMER. CUSTOMER shall be solely responsible for complying with the applicable terms and conditions and restrictions and limitations related to the Third-Party Equipment.

CUSTOMER makes the following representations,  warranties and covenants, as applicable: (1) CUSTOMER is a company duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization and has the full power and authority to execute and deliver the Contract Documents and to perform its obligations under this Contract Documents; (2) Neither the execution, delivery and performance of the Contract Documents nor the consummation by CUSTOMER of the transactions contemplated in  the  Contract Documents will conflict with, violate or result in a breach of (a) any applicable law, regulation, order, writ, injunction, decree, determination or award of any governmental authority, (b) any of the terms, conditions or provisions of the certificate of organization, bylaws or other governing documents of CUSTOMER, or (c) any material agreement or instrument to which CUSTOMER is or may be bound or to which any of its material properties, assets or businesses is subject; (3) There are no actions, suits, proceedings or investigations pending or, to the knowledge of CUSTOMER, threatened against or affecting CUSTOMER or any of its properties, assets or businesses in, before or by any governmental authority which could, if adversely determined, reasonably be expected to have a material adverse effect on CUSTOMER’s ability to perform its obligations under the  Contract Documents and that CUSTOMER has not received any currently effective notice of any default; (4) CUSTOMER will ensure that all the facts, information, intellectual property, materials, and documents provided by CUSTOMER to CARDINAL KINETIC are accurate, timely, non-infringing and in good condition; (5) CUSTOMER is solely responsible for determining whether any specifications associated with the CARDINAL KINETIC Equipment and  Third-Party Equipment are fit and sufficient for the purposes for which CUSTOMER intends to use them; (6) CUSTOMER will install, operate and maintain the CARDINAL KINETIC Equipment and Third-Party Equipment in accordance with all applicable codes, standards, instructions, operating manuals, regulations, governmental requirements, safety, storage and handling procedures and industry standards; (7) CUSTOMER is solely responsible for any modifications to the CARDINAL KINETIC Equipment, Third-Party Equipment or integration thereof with other equipment, products and systems made by any party other than that of CARDINAL KINETIC and (8) CUSTOMER will ensure that its employees and agents utilize all mechanical, electronic and electrical safety systems, warning signs and other safety procedures and devices that are provided with, or are recommended to be used in conjunction with, the Equipment and will not disconnect, disassemble or use the Equipment without the same.

  

CUSTOMER shall defend, indemnify and hold CARDINAL KINETIC, its affiliates, and their respective officers, directors, employees, agents, contractors and insurers harmless from and against any loss, damage, liability, claim, demand, action, cost and expense (including reasonable attorneys’ fees and costs at all stages of appeal) arising out of or relating to:  (i) personal injury (including death), property damage or any other damage caused or alleged to be caused by the negligence, willful misconduct, bad faith or any other act or omission of CUSTOMER, its employees, agents or subcontractors, (ii) any breach of these Terms by CUSTOMER or its employees, agents or subcontractors, and (iii) any infringement or alleged infringement of any patent, design, trade name, copyright, trademark, trade secret or other intellectual property right relating to the Equipment based on information furnished to CARDINAL KINETIC by CUSTOMER, CARDINAL KINETIC’s use thereof or otherwise.  Upon receipt of notice, CUSTOMER shall promptly assume the defense of any third-party suit or proceeding covered by its indemnification obligations hereunder.  CUSTOMER shall not settle or compromise any claims against CARDINAL KINETIC without CARDINAL KINETIC’s prior written consent. CARDINAL KINETIC shall have the right to participate in such litigation.

These Terms set forth the final and entire agreement of the parties with respect to the subject matter hereof.  Any and all previous agreements and understandings between the parties regarding the subject matter hereof, whether written or oral, are superseded by these Terms. The rights, duties and obligations under the Contract Documents may not be assigned by CUSTOMER without the prior written consent of CARDINAL KINETIC.  CARDINAL KINETIC reserves the right to transfer and assign these Terms to a third party or a company related to or affiliated with CARDINAL KINETIC.  CARDINAL KINETIC shall provide written notice to CUSTOMER in the event that it makes any such transfer and assignment and such transfer and assignment shall be effective on the date of such written notice.  These Terms shall inure to the benefit of and be binding upon the parties and their respective successors and authorized assigns. Any provision hereof may be waived at any time by the party entitled to the benefit thereof by a written instrument duly executed by such party.  The failure to enforce at any time any of the provisions, or to require at any time performance by the other party of any of the provisions, shall in no way be construed to be a waiver of such provision, nor in any way affect the validity of these Terms or any part of hereof, or the right of any party thereafter to enforce each and every such provision in accordance with these Terms. These Terms shall be governed by and interpreted and enforced in accordance with the laws of the Commonwealth of Kentucky, U.S.A., without regard to any principle of conflicts of law which would apply the laws of another jurisdiction. Any legal suit, action or proceeding arising out of or related to the Contract Documents or the Services shall be instituted in the federal courts of the United States or the courts of the Commonwealth of Kentucky, in each case, located in County of Boone, and each Party irrevocably submits to the exclusive jurisdiction of such courts in such suit, action or proceedings. All section headings are for convenience only and shall in no way modify or restrict any of the terms or provisions of these Terms. These Terms shall be construed and interpreted so as to be enforceable to the fullest extent permitted by law, and the unenforceability of any provision shall not affect any other provision hereof. CUSTOMER’S representations, warranties, covenants, duties and obligations set forth in these Terms as well as CARDINAL KINETIC’s rights and remedies thereunder shall survive the expiration or termination of this Agreement.