KNOX REFRIGERATION, INC. — TERMS AND CONDITIONS OF LEASE/SALE
Thank you for your order as a Customer of Knox Refrigeration, Inc. (“Knox”). By signing and checking out on your order and providing Knox with all necessary information online to process the order, you are agreeing that the shopping cart terms and the following terms and conditions become the contract of the Customer with Knox for the leasing or purchase of the equipment and services described in the order placed in the shopping cart.
1. The quoted price for any item is only valid for thirty (30) days and Knox is not responsible for any typographical errors in an order. No terms not stated herein are acceptable to Knox and are not part of the agreement. All drawings and other work product prepared or furnished by Knox with regard to an order are the property of Knox and may not be copied or otherwise reproduced in any manner or medium without Knox’s prior written consent. Knox reserves the right to limit the number of orders it accepts in a particular period of time.
2. All equipment has been selected based entirely upon and in reliance upon information provided by the Customer. Title to the equipment shall not pass to the Customer until payment in full has been received and confirmed by Knox. Acceptance of the delivery of the equipment is confirmation of the authority of the person signing this agreement for the Customer to bind the Customer to the agreement. Any modifications to the equipment for or after installation may affect the performance of the equipment and void any warranty. All modifications are therefore at the sole risk of the Customer and Customer releases Knox from any liability arising from any such modification. No contractor installing the equipment is an agent of Knox or has authority to bind Knox to any agreement or promise or problem with the installation.
3. Customer is responsible for providing all site preparation and access necessary for the installation and for the intended use and function of the equipment. In addition, the Customer understands that the equipment being purchased must be installed at a site where the temperature and humidity do not exceed 75° Fahrenheit and 55% relative humidity. Risk of loss passes to the Customer upon delivery of the equipment to Customer’s site unless otherwise provided in the agreement.
4. Payment shall be in accordance with and in one of the forms provided for in the terms set out by Knox as to the order, in lawful currency of the United States of America, and in immediately available funds without setoff or other deduction of any nature. Any monies paid on account toward the purchase price of equipment being bought are deposit monies that are nonrefundable unless Knox fails to deliver the equipment for some reason not caused by Customer. If the Customer does not take delivery of the equipment within the agreed-upon time for installation or tries to cancel the agreement, the deposit monies are forfeited to Knox as liquidated damages due to the difficulty and uncertainty of measuring actual damages, but Knox may still pursue other remedies, including Knox retaining the equipment for resale. Interest shall be due and payable on any unpaid balance owing to Knox at the rate of one and one-half percent (1.5%) per month and shall continue to accrue and be paid so long as any amounts due under this agreement remain outstanding even after, including without limitation, default, maturity, acceleration, recovery of judgment, bankruptcy, insolvency proceedings of any kind or the happening of any other similar event. Customer (and any guarantor jointly and severally) agree(s) to pay any attorney’s fees and costs incurred by Knox in connection with the enforcement of this agreement, whether or not legal action is commenced, including but not limited to, fees and costs incurred by Knox in any bankruptcy or insolvency proceedings of any kind, and the amount of such fees and costs shall be part of any judgment in addition to any fees or costs allowed by statute or rule of the court.
5. Customer must accept delivery of the equipment within one hundred and twenty (120) days of the date of it places the order or Customer shall pay a late charge equal to five percent (5%) of the total contracted for price stated in this agreement. Customer shall then also be responsible for any other expenses charged to or incurred by Knox in that event, including any restocking, storage, or shipping charges.
6. Costs of any delivery or installation arranged as a convenience by Knox are as indicated in the order or acknowledgement by Knox. Removal of equipment from the common/freight carrier’s vehicle and placement in the Customer’s location is Customer’s sole responsibility and may require a forklift or other special equipment on the part of the Customer. The Customer will also need sufficient personnel for this process. Installation at other than normal business hours shall be at additional charge to Customer. The price does not include any taxes, including sales or use taxes, and all taxes and tax filings shall be the sole responsibility of the Customer. If Knox is required to collect or pay any such tax, Customer shall reimburse Knox promptly the amount of the taxes and any associated expenses incurred by Knox after demand for payment is made on the Customer.
7. Delivery of the equipment will be by a freight carrier unaffiliated with Knox and there are often carrier limitations in connection with any loss of or damage to equipment. Knox recommends that the Customer therefore inspect all packaging and the equipment for any damage or signs of damage to the equipment before signing anything acknowledging delivery and any damage which is discovered should be specifically noted on the carrier’s freight bill. Though Knox may assist the Customer in the event of freight damage, the Customer is the party to make the freight claim and Customer releases Knox from any liability for equipment lost or damaged while in the possession of or under the control of any party other than Knox, including any freight carrier. Customer shall be solely responsible for any inspections, permits, licenses or approvals required for the equipment, its delivery and its installation. Customer shall also comply with all laws, ordinances and requirements of all governmental authorities now in force, or which may hereafter be in force, pertaining to the equipment. Knox asks that the Customer contact Knox as soon as delivery is complete to confirm delivery and the signing of the freight bill and any other required documents, and to identify any damage to or other concerns with the delivery or the equipment. All packaging should be preserved until you are satisfied that there is no damage to the equipment; this is to be done for inspection purposes should it become necessary to make a freight claim.
8. Knox will use reasonable efforts to help arrange deliveries where required by Customer and to coordinate the installation of the equipment in accordance with requested dates, but such dates are not guaranteed by Knox and are done for the convenience of the Customer. Customer is responsible for all necessary arrangements with any trade union or other personnel involved for or with removal of the equipment from the carrier’s vehicle and the installation of the equipment. Knox shall not be liable for any loss or other expense incurred by Customer resulting from any delay in shipping, delivery, installation or other cause beyond Knox’s reasonable control. Customer consents to the use of its name and to the photographing or other reproduction, editing, exhibition, and use of the installation site without compensation in such content and as many times as Knox may determine in perpetuity in any medium for Knox’s commercial or promotional purposes.
9. THE MANUFACTURER’S WARRANTY OF THE EQUIPMENT IS EXCLUSIVE, AND THE TERMS SET OUT IN THOSE WARRANTY PROVISIONS ARE INSTEAD OF ALL OTHER GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY GUARANTEE OR WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY EXCLUDED. KNOX DOES NOT WARRANT THE EQUIPMENT. Knox is not responsible for any freight charges related to the shipment of covered warranty parts. In no event, regardless of the type of claim, shall Knox’s liability exceed the purchase or lease price of the equipment (as applicable) and Knox shall not be liable for indirect, special, incidental, consequential, or punitive damages.
10. Customer represents that it is financially able to complete its lease or purchase, as stated in the agreement, of the equipment from Knox without any financing or other third party approval, including credit card approval. It is solely Customer’s obligation to obtain any such approval and to fulfill any conditions to said approval and to satisfy any leasing conditions. Customer shall remain responsible to lease or purchase, as stated in the agreement, the equipment regardless of any actions taken by a third party lessor or lender. Knox may decline or otherwise condition any credit card order where the Customer’s address is different from the cardholder’s address and on any “card not present” transaction. Customer shall be responsible for any charge back or other fees assessed against Knox on any credit card or check purchase, regardless of the reason for the assessment.
11. The agreement, upon acceptance of an order by Knox, and any Exhibits or Schedules to the order constitute the entire agreement between Knox and Customer pertaining to the equipment and supersede all prior agreements, representations, and discussions between them, and may not be changed except by a writing signed by both parties. A signed copy of this agreement sent by facsimile or e-mail or an electronic signature on the agreement is acceptable. Customer’s authorization, in any form, to proceed with its order is acceptance of the terms of this agreement. No waiver of any provisions of this agreement is binding unless it is in writing and signed by both parties.
12. This agreement is deemed to have been made and performed in Pennsylvania and is governed by, and construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without resort to conflicts of laws of any state. Knox and Customer further agree to the exclusive jurisdiction of the courts of the Commonwealth of Pennsylvania sitting with venue only in Delaware County or Montgomery County and the United States District Court for the Eastern District of Pennsylvania (where federal jurisdiction is available and invoked) with respect to any action, claim, dispute or controversy arising out of or relating to the agreement. Any trade terms in the agreement (e.g., F.O.B.) shall have the meanings given to such terms in the Uniform Commercial Code (UCC), as adopted in the Commonwealth of Pennsylvania as of the effective date of this agreement.