Note: For terms and conditions regarding usage of this website and White Knight marketing materials, visit: https://wkfluidhandling.com/company/terms-conditions/
THESE TERMS AND CONDITIONS OF SALE shall apply to all orders placed by buyer (“Buyer”) with GRACO FLUID HANDLING (A) INC D/B/A WHITE KNIGHT FLUID HANDLING, a Minnesota corporation (“Company”). Company will accept Buyer’s orders, sell Products, perform Services and do business only on the terms and conditions of this Agreement. Buyer, upon placing any order with Company for the purchase of Products or Services, shall be deemed to have accepted all of the terms and conditions of this Agreement without modification. Unless otherwise agreed to in a writing signed by an authorized representative of Company, any term or condition contained in any Buyer purchase order or other form or correspondence that purports to add to, or is in any way inconsistent with, this Agreement is expressly rejected.
1. Definitions. (a) “Agreement” means these Terms and Conditions of Sale and any terms or conditions stated by Company in a written quotation or sales acknowledgement relating to the Products or Services ordered by Buyer; and (b) “Products” collectively mean all items being sold by Company to Buyer, whether finished goods, equipment, parts, materials, products to be manufactured and/or installed or any combination thereof; and (c) “Services” collectively mean all services and labor expressly described in any order accepted by Company in connection with the manufacture, installation and/or servicing of the Products.
2. Orders. Buyer’s orders for Products and/or Services may be submitted to Company via facsimile to (435) 783-6128, by email to firstname.lastname@example.org, or such other method designated by the Company. Company reserves the right to reject an order for any reason.
3. Price; Taxes. Any price quoted by Company on the face hereof or in any separate document shall be good only for a period of thirty (30) days or such other time period stated in Company’s quote. Thereafter, the price for Products and Services sold hereunder shall be Company’s price in effect as of the date Company accepts Buyer’s order. All prices are stated and payable in U.S. dollars. The price for Products and Services does not include any foreign, federal, state or local sales, use, value-added, excise or other similar taxes or any tariffs, duties or other charges imposed on or measured by the use or sale of the Products or performance of Services (collectively, “Taxes”). Buyer shall pay, and reimburse Company if it pays, any and all Taxes, except for those based on Company’s income. If Company is required by any governmental authority or agency to collect and pay any Taxes on Buyer’s behalf, Company may invoice Buyer for such amounts, which Buyer shall pay in accordance with the terms of this Agreement. Tax-exempt certificates must accompany any order to which the same applies.
4. Payment. Unless different payment terms have been specifically agreed upon in writing by an authorized representative of the Company, Buyer shall pay each invoice, without deduction or setoff, within thirty (30) days of the invoice date. Interest will be added to all amounts outstanding more than thirty (30) days after the invoice due date at the rate of 1.5% per month or the maximum rate of interest allowed by applicable law, whichever is lower. In the event Buyer is in default of any of the terms or conditions of this Agreement, including, without limitation, payment of any amounts owed to Company in a timely manner, Company may: (a) defer or suspend further shipments of Products or performance of Services until Buyer reestablishes satisfactory credit; (b) cancel the unshipped or unperformed portion of any order and invoice Buyer for incurred costs and reasonable profit without any liability for Company’s failure to ship or provide the Products or perform the Services; (c) make shipment of the Products to Buyer on a C.O.D. or cash in advance basis; or (d) pursue any other remedy available under this Agreement or at law or equity.
5. Shipment of Products. Company shall ship all Products EXW (Ex Works as defined under Incoterms 2010) Company’s plant or facility. Title to and all risk of loss or damage to the Products shall pass to Buyer upon delivery of the Products at the Company’s plant or facility to the carrier or shipper for shipment. Unless Buyer provides shipping instructions, Company is authorized to make shipping arrangements on Buyer’s behalf and Buyer shall be responsible for all costs and expenses associated therewith. Company reserves the right to decline, in its sole discretion, to use any Buyer-designated carrier or shipper. Notwithstanding anything in this Agreement to the contrary, any timeframe provided by Company is a good faith estimate of the expected delivery date for Products or performance date for Services. Company will use commercially reasonable efforts to fill Buyer’s orders within the time stated but in no event shall Company be liable for any damages associated with Company’s inability to meet any such timeframes or deadlines.
6. Import/Export. Buyer shall maintain all licenses, permits, registrations, certifications and other legally required documents for the exportation and/or importation of the Products. Buyer shall be responsible for all cost and expenses relating to a Product’s transit across another country’s border, including, without limitation, payment of any custom duties, fees or charges imposed or levied upon the Products or the Buyer. Buyer shall also comply with all United States export control rules and regulations. Buyer shall not name Company as the shipper or importer of record in connection with any Products.
7. Product Changes. Buyer may not make any changes in the designs or specifications for the Products unless Company approves of such changes in writing. If any change accepted by Company in writing causes an increase or decrease in the price or the time required for performance, an equitable adjustment shall be made by the Parties to the price and/or the delivery schedule for the Products, and the applicable order and this Agreement shall be deemed modified accordingly.
8. Cancellation of Orders & Returns.
(a) Cancellation. Buyer may not cancel an accepted order without Company’s prior written consent, which it may withhold in its sole discretion.
(b) Returns. Subject to the terms set forth in this Section 8(b), Buyer may return non-custom-made Products to Company by no later than fourteen (14) calendar after the date of delivery, provided such Products are undamaged and in their original packaging. A restocking fee of 20% of the original purchase price for all Products returned under this Section 8(b) shall apply. All returns must first receive a Return Materials Authorization (“RMA”) from the Company’s shipping department. No returned Products will be accepted by Company without an RMA clearly posted on the outside of the return package. Buyer shall be responsible for all shipping charges to return any Products to Company under this Section 8(b). After application of the 20% restocking fee, a credit will be issued by Company to Buyer for the returned Products.
9. Inspection. Buyer shall inspect all Products within thirty (30) days after delivery. Buyer must notify Company in writing of its intent to reject any shipment of Products prior to the expiration of such thirty (30) day period. Buyer’s written notice shall specifically identify the Products rejected, including a detailed description of the grounds for the rejection and what, if any, defects Buyer alleges exist. If Buyer has not delivered a written notice of rejection to Company within thirty (30) days after delivery, Buyer shall be deemed to have accepted the Products.
10. Limited Warranties.
(a) Limited Product Warranty. Each Product sold under this Agreement shall be covered by Company’s standard express warranty for such Product in effect at the time of delivery (individually referred to as a “Product Warranty” and collectively as the “Product Warranties”). Each Product Warranty is incorporated by reference into this Agreement as though fully set forth herein. Current copies of the Product Warranties can be found in the applicable White Knight Owner’s Manual (“Owner’s Manual”) at https://wkfluidhandling.com/resources/owners-manuals/. By placing an order, Buyer agrees to be bound by the applicable Product Warranties and acknowledges that each Product Warranty sets forth certain terms, conditions, limitations and exclusive remedies for all claims, demands and losses based upon the failure of, or defects in, a Product that is the subject matter of the Product Warranty and that, upon expiration of the applicable warranty period set forth in the Product Warranty, all liability with respect to such claims, demands and losses for defects or non-compliance shall terminate. In addition to those warranty provisions set forth in the Owner’s Manual, the terms and conditions set forth in Sections 10(a)(i) to 10(a)(v) shall apply to all Products. In the event of any conflict between the terms and conditions in this Section 10 and a Product Warranty set forth in an Owner’s Manual, this Section 10 shall govern and control.
(i) The Product Warranties do not apply to or cover any defects, damages or losses arising from: (A) inaccuracy or incompleteness of any Buyer-furnished specifications, designs or other data relating to the Products, (B) normal wear and tear, abuse, neglect or improper storage, handling, maintenance or use of the Products; or (C) unauthorized alterations or modifications of the Products; (D) failure to follow instructions and technical guidelines set forth in the applicable Owner’s Manual; and (E) any OEM Parts which may be part of or incorporated into a Product. Such OEM Parts shall be exclusively governed by Section 10(a)(iv) below.
(ii) As a prerequisite to making any claim under a Product Warranty, Buyer must give written notice to Company of any suspected defect in the Product promptly after discovery, but in no event later than expiration of the warranty period set forth in the applicable Product Warranty. Such notice shall specifically identify the suspected defect, the original delivery date, complete customer identification and location information, and any other information reasonably requested by the Company. Company shall not be liable for any warranty claim if Buyer fails to give such written notice prior to the expiration of the warranty period. Further, Buyer may not return any Products to Company under a Product Warranty without first obtaining an RMA issued by the Company. The Company will not accept any responsibility for Products returned to Company without an RMA.
(iii) COMPANY’S SOLE OBLIGATION, AND BUYER’S EXCLUSIVE REMEDY, FOR ANY BREACH OF A PRODUCT WARRANTY SHALL BE FOR COMPANY, AT ITS OPTION, TO REPAIR, REPLACE, OR REFUND THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS THAT FAIL TO CONFORM WITH THE APPLICABLE PRODUCT WARRANTY. REPLACEMENT PRODUCTS ARE WARRANTED FOR SIX (6) MONTHS OR THE BALANCE OF THE ORIGINAL WARRANTY PERIOD, WHICHEVER IS LONGER.
(iv) Buyer acknowledges that some Products sold under this Agreement may incorporate parts, components, or other items manufactured by third-parties, including, without limitation, hoses and tubes (collectively, “OEM Parts”). With respect to OEM Parts, Company’s sole obligation and Buyer’s exclusive remedy shall be to assign to Buyer any assignable original equipment manufacturer’s warranty applicable to the OEM Parts and to engage in commercially reasonable efforts to assist Buyer to process a claim with the OEM Parts manufacturer under such assigned warranty.
(v) COMPANY’S PRODUCT WARRANTY, AS SET FORTH IN THE APPLICABLE OWNER’S MANUAL AND SUPPLEMENTED BY THIS SECTION 10(a), IS THE SOLE AND EXCLUSIVE WARRANTY OF COMPANY WITH RESPECT TO THE PRODUCT DESCRIBED THEREIN, AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED, STATUTORY OR OTHERWISE. COMPANY HEREBY DISCLAIMS ANY AND ALL OTHER EXPRESS, IMPLIED OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.
(b) Limited Services Warranty. Company warrants to Buyer, for a period of sixty (60) days from the date of performance, that any Services performed by Company, including, without limitation, services relating to installation, maintenance, repair, consultation or technical advice of any Product, shall be performed in a workmanlike manner and in accordance with generally accepted industry standards. As a prerequisite to making any claim under this limited Services warranty, Buyer must give written notice to Company of any suspected non-conformity or defect in the Services prior to the expiration of the above-referenced warranty period. Such notice shall specifically identify the suspected defect, the original performance date, complete customer identification and location information. Company shall not be liable for any warranty claim if Buyer fails to give such written notice prior to the expiration of the warranty period. Company’s sole obligation, and Buyer’s exclusive remedy, for any breach of the limited Services warranty stated in this Section 10(b) shall be for Company, at its option, to (i) re-perform the defective Service; or (ii) refund the purchase price paid by Buyer for defective Services. EXCEPT AS SET FORTH ABOVE IN THIS SECTION 10(b), COMPANY HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICES, USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR NON-INFRINGEMENT.
11. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL COMPANY OR ANY OF ITS AFFILIATES OR SUBSIDIARIES BE LIABLE TO BUYER OR ANY OF ITS AFFILIATES OR SUBSIDIARIES FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXAMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR REVENUE, DOWN TIME, DIMINUTION IN VALUE OR OTHER ECONOMIC LOSSES), WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF THE SAME HAS BEEN SPECIFICALLY ADVISED OF THE POSSIBILITIES OF SUCH DAMAGES. COMPANY’S CUMULATIVE LIABILITY FOR ALL CLAIMS RELATING IN ANY MANNER TO ANY PRODUCTS FURNISHED OR SERVICES PERFORMED UNDER THIS AGREEMENT, REGARDLESS OF THE TYPE OR NATURE OF THE ACTION, SHALL BE LIMITED TO BUYER’S DIRECT ACTUAL DAMAGES NOT EXCEEDING THE AMOUNT ACTUALLY PAID TO COMPANY BY BUYER FOR THE PRODUCTS OR SERVICES WHICH ARE THE SUBJECT OF THE APPLICABLE CLAIM. COMPANY HAS RELIED ON THE FOREGOING LIMITATION AND BUYER EXPRESSLY ACKNOWLEDGES THAT THIS PROVISION IS ESSENTIAL IN THE ESTABLISHMENT OF THE PRICING OF THE PRODUCTS AND SERVICES. THE LIMITATIONS ON, AND EXCLUSIONS FROM, LIABILITY SET FORTH IN THIS SECTION SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
12. Product Recall. If Company or any governmental agency or authority having jurisdiction over the Products finds at any time that a Product contains a safety hazard, an unsafe condition, a serious defect or deficiency making it necessary that the affected Products be recalled, withdrawn or retrofitted (collectively, a “Recall”), Company shall be responsible for undertaking all appropriate corrective actions, as determined by Company. In the event that Buyer reasonably believes that a Recall may be necessary with respect to any Product, Buyer shall immediately notify Company in writing setting forth, in reasonable detail, the grounds for the proposed Recall. To the fullest extent permitted by applicable law, Buyer may not initiate a Recall of Products without the prior written consent of Company. Buyer shall cooperate and assist Company in connection with any Recall of Products initiated or authorized by Company. Buyer shall also consult with Company before making any statements to the public or a governmental agency or authority concerning safety hazards affecting Products, except where such consultation would interfere with the timely notification required to be given under any applicable law or regulation.
13. Buyer’s Indemnification. To the fullest extent permitted by applicable law, Buyer shall defend, indemnify and hold Company and its affiliates and subsidiaries and their respective officers, directors, owners and agents harmless from and against any and all claims, losses, damages, liabilities and expenses (including, without limitation, reasonable attorneys’ fees and other costs and expenses of litigation) resulting from or otherwise connected with any of the following: (a) bodily injury, death or property damage caused by Buyer or its employees’ or agents’ acts or omissions with respect to the Products or Services; or (b) any design, requirement, specification, material or other component supplied or approved by Buyer for the design and manufacture of any Product or performance of any Services, including, without limitation, any third-party claim that such design, requirement, specification, material or other component infringes upon or misappropriates any patent, patent application, copyright, trademark, trade dress, trade secret or other intellectual property right; and (c) any breach of the terms and conditions of this Agreement by Buyer or its employees and agents.
14. Company’s Intellectual Property Rights. Company shall retain all rights in its intellectual and industrial property, including all rights under patents, patent applications, copyrights, trademarks, trade dress, trade secrets, confidential information, or other intellectual or industrial property rights owned by or licensed to Company which may be protected by law, and nothing in this Agreement shall be deemed or construed to be a transfer or license of any of Company’s intellectual property. Buyer shall obtain rights to such intellectual property only to the extent that Company may grant such rights in writing, whether by license or otherwise, signed by an authorized representative of Company.
15. Confidentiality. All documentation or information provided by Company to Buyer which is marked as confidential, or which from its nature or the context in which it is given should reasonably be understood to be confidential or of a proprietary nature, shall be held by Buyer in strict confidence. Buyer shall not use or disclose such information to any person or business, other than an employee and agent of Buyer who has a need to know the information to enable Buyer to perform its duties and obligations under this Agreement; provided, however, that such employees and agents be required to maintain the information at all times in strict confidence in accordance with this Agreement. Buyer shall be responsible for any breach of this Section by its employees or agents.
16. Excused Performance; Allocation. Company shall not be liable for any delay or failure to perform this Agreement due to any reason beyond the Company’s reasonable control, including, without limitation: acts of God; acts or war (declared or undeclared); civil unrest; acts of terrorism; changes in laws or regulations; acts or requests of governmental agencies; strikes, lockouts or other labor conditions; shortages of raw materials; fire, floods or other natural disasters; explosions or other damage to plant or facilities; absence of normal transportation. Company reserves the right to allocate its inventory of Products in any manner it may determine from time to time, in its sole discretion.
17. No Waiver. No waiver of this Agreement or any of its provisions is valid unless expressly agreed to in writing signed by Company. No waiver by Company of any default under this Agreement is a waiver of any other or subsequent default. The failure of Company to insist upon strict and timely performance of any term or condition of this Agreement shall not be deemed a waiver of any right or remedy that Company may have under this Agreement or at law or equity, and shall not be deemed a waiver of any subsequent default by Buyer in performance of the terms and conditions of this Agreement.
18. Modification. No modification of this Agreement or any of its provisions by Buyer is valid unless expressly agreed to in a writing signed by Company and signed by an authorized representative of the Company.
19. Severability. If any court of competent jurisdiction determines that any provision of this Agreement is invalid or unenforceable, then such invalidity or unenforceability shall have no effect on the other provisions hereof, which shall remain valid, binding and enforceable and in full force and effect, and such invalid or unenforceable provision shall be construed in a manner so as to give the maximum valid and enforceable effect to the intent of the parties expressed in this Agreement.
20. Independent Contractor. Company shall operate as an independent contractor in supplying any Products and/or performing any Services under this Agreement. The officers, employees and agents of one party shall not be considered officers, employees or agents of the other party for any purpose whatsoever. Buyer is not authorized to assume or create any obligation or responsibility, including but not limited to, contractual obligations and obligations based on warranties or guarantees, on behalf of or in the name of Company.
21. Assignment. Buyer may not assign this Agreement or any of its rights, duties or obligations under this Agreement without Company’s prior written consent.
22. Remedies. Each of the rights and remedies of Company under this Agreement is cumulative and in addition to any other or further remedies provided under this Agreement or at law or in equity.
23. Attorneys’ Fees. In the event Company is required to retain legal counsel or to engage in any litigation or arbitration to enforce or interpret the terms and conditions of this Agreement or to collect any sums due Company under this Agreement, Company shall be entitled to recover all of its reasonable attorneys’ fees and costs and expenses of litigation or arbitration from Buyer.
24. Survival. All of the agreements, representations, warranties, and indemnities made by Buyer in this Agreement shall survive the expiration or termination of this Agreement, subject only to the applicable statutes of limitation.
25. Governing Law. The Agreement shall be construed and governed under the laws of the State of Utah, without application of conflict of law principles. Further, the Parties hereby exclude the United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended.
26. DISPUTE RESOLUTION. Any dispute, claim or counter-claim arising out of or relating to this Agreement, or the breach hereof (collectively, a “Dispute”), shall be resolved in accordance with the following:
(a) Buyer Located in the United States. If Buyer’s principal place of business is located in the United States, then any Dispute shall be initiated and prosecuted exclusively in the United States District Court for the District of Utah or any state court sitting in Summit County, Utah, and those courts hearing direct appeals therefrom. Each Party hereto waives any right it may have to assert the doctrine of “forum non conveniens” or to object to venue to the extent any action or proceeding is brought in accordance with this Section 26(a). Company and Buyer each consents to and waives any objection to the exercise of personal jurisdiction over it by the courts described in this Section 26(a). COMPANY AND BUYER VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY WITH RESPECT OF ANY LITIGATION RELATING TO THIS AGREEMENT.
(b) Buyer Located Outside of the United States. If Buyer’s principal place of business is located outside of the United States, then any Dispute shall be submitted to binding arbitration before a single arbitrator, with such arbitration being conducted in accordance with the Rules of Arbitration and Conciliation of the International Chamber of Commerce (“ICC”) then in effect. The place of arbitration shall be Salt Lake City, Utah. The arbitration shall be conducted in the English language, including, without limitation, the presentment of all testimony and evidence, and judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator’s decision shall be in writing. The arbitrator’s decision shall also be final and non-appealable. Unless the arbitrator finds that exceptional circumstances justify delay, the hearing will be completed, and an award rendered, within thirty (30) days after commencement of the hearing. The arbitrator shall have the authority to settle such Dispute by finding that a Party should be enjoined from certain actions or be compelled to undertake certain actions, and in such event a court of competent jurisdiction may enter an order enjoining and/or compelling such actions as found by the arbitrator. However, notwithstanding the foregoing, Buyer and Company expressly agree that a court of competent jurisdiction may enter a temporary restraining order or an order enjoining a breach of this Agreement pending a final award or further order by the arbitrator. Such remedy, however, shall be cumulative and nonexclusive, and shall be in addition to any other remedy to which the parties may be entitled.