Signature Terms and Conditions
STANDARD TERMS AND CONDITIONS TO COMMERCIAL CONTRACTS
1. Pricing. The price of Products, as defined in the agreement (“Agreement”) giving rise to these Standard Terms and Conditions to Commercial Contracts (“Standard Terms”), shall be the prices established by Kirby Opco, LLC, d/b/a The Kirby Company (the “Company”) and in effect at the time Retailer or Dealer (hereinafter, “Customer”), as defined in the Agreement, orders Product in accordance with Section 4 below (“Price”). As such, the Company has the right to change the Price at any time, and Price increases will apply to any Product order received by the Company after the effective date of the Price increase.
2. Taxes. Customer is solely responsible for any national or local sales, use, or other tax or assessment levied or imposed as a result of Customer’s purchase of Products from the Company. Customer is responsible for providing the Company with copies of resale certificates or other documents evidencing to the Company’s reasonable satisfaction any exemption which Customer claims from any tax or assessment.
3. Payment. All payments due from Customer to the Company will be made by ACH, wire transfer, or credit card. All payments will be made in United States dollars, and standard terms – unless negotiated between the Company and Customer, approved by the Company in its sole discretion, and documented in writing, specifically referencing this Section 3 – will be: (i) paid in full at the time the order is placed by Customer, or (ii) paid in full within thirty (30) days of the date an invoice is issued by the Company (“Deferred Payment”), with the Company having the sole discretion to decide if Customer is paying in according with (i) or (ii) of this Section 3 or per other agreed upon terms. The Company’s grant of Deferred Payment on one order does not mean the Company will offer such terms on Customer’s next order. If the Company allows for Deferred Payment of Products, Customer acknowledges that it is granting to the Company a purchase money security interest in those Products. In addition, the Company reserves the right, upon written notice to Customer, to declare all sums immediately due and payable in the event of a breach by Customer of any of its obligations to the Company.
4. Orders.
4.1. Acceptance and Rejection. Customer will place all orders for the Products through means as agreed to between the Company and Customer, including, but not limited to, EDI, purchase orders, or through the Company’s dedicated order line. All orders are subject to acceptance or rejection by the Company, and an order shall be deemed to have been accepted by the Company only upon shipment by the Company. Under no circumstances shall the Company be liable to Customer for any incidental, speculative, or consequential damages arising out of any refusal or failure to accept any order of Customer except as otherwise expressly stated herein.
4.2. Fulfillment and Shipment. The Company will use its best efforts to fulfill and ship each order within the time specified in such order or, if no time is specified, within a reasonable time, Customer agrees, however, that shipment of any Products ordered from the Company may be delayed for a period of time sufficient to enable the Company to have manufactured and assembled said Products for Customer in its normal course of business. In the event the Company is unable to ship any Products within ninety (90) days from the requested shipment date, Customer will have the right to terminate (without incurring the cancellation charge referenced in Section 4.6) that portion of its order relating to such Products by sending written notice to the Company, which termination will only be effective if such notice is received by the Company prior to the date on which such Products are shipped by the Company. Upon termination of any portion of a Product order by Customer in accordance with this Section 4.2, the Company will promptly return to Customer all amounts, if any, paid by Customer with respect to such Product. Customer’s right to cancel any portion of a Product order with respect to unshipped Products pursuant to this Section 4.2 will constitute Customer’s sole and exclusive remedy arising out of or related to the Company’s failure to ship or make delivery within ninety (90) days from the requested shipment date for such Products. Notwithstanding the foregoing language in this Section 4.2, the Company has no liability to Customer if the delay in shipment is due to a Force Majeure Event as defined in Section 14 herein. The Company has no liability to Customer for Products delivered in advance of Customer’s requested delivery date.
4.3. Partial Delivery. The Company is entitled to make partial shipments of Products ordered by Customer as such Products become available for shipment, and, if Customer is to remit payment pursuant to a Deferred Payment, the Company may invoice Customer separately for each such partial shipment. Partial shipment of ordered Products will not relieve Customer from its obligation hereunder to accept future shipments of Products in satisfaction of such Product order, except to the limited extent that Customer has properly canceled the portion of such Product order relating to such future shipment as set forth in Section 4.2 above.
4.4. Quantities of Products. Should the Company deliver Product to Customer in excess of the quantity Customer ordered, Customer will either: (i) accept and pay for the excess quantity within thirty (30) days of its receipt of the excess quantity, or (ii) reject the excess quantity and return the excess Products to the Company at the Company’s expense, so long as the Company determines the carrier and method of return shipment.
4.5. Rights of the Company. The Company reserves the right to cancel, refuse shipment of, or delay shipment of any orders placed by Customer if Customer: (i) fails to make any payment as provided in these Standard Terms, (ii) fails to meet credit or financial requirements established by the Company, or (iii) otherwise fails to comply with the Agreement, which includes these Standard Terms (as these Standard Terms have been incorporated as part of the Agreement). The Company has no liability of any kind to Customer or any other person or entity should the Company cancel an order of Customer in accordance with this Section 4.5. Should Customer’s order for Products exceed the Company’s available inventory, the Company will allocate its available inventory on a basis the Company deems equitable, in its sole discretion, and without liability to Customer. No such cancellation, refusal, allocation, or delay will be deemed a breach of the Agreement by the Company.
4.6. Cancellation by Customer. Customer may cancel an order without penalty up to seven (7) days before the scheduled date of shipment. Any cancellation by Customer after the seventh (7th) day before the scheduled date of shipment will be subject to a cancellation charge of ten percent (10%) of the shipment value. If Customer cancels within seven (7) days before the scheduled date of shipment and Customer has paid for Products, the Company will refund the Price paid by Customer.
4.7. Changes by Customer. If Customer makes a change (excluding a cancellation) to its original order at any time and the change causes an increase in the cost of or the time required for performance of the order, the Company is entitled to an adjustment in the Price, Customer’s requested delivery date, or both.
4.8. Customer’s Terms and Conditions are Void. Each order placed by Customer for Products will be deemed to incorporate these Standard Terms, and terms and conditions in Customer’s purchase order and/or Product order are inapplicable, stricken, and void; no other terms and conditions except these Standard Terms shall apply.
5. Transportation. Products shall be shipped to Customer FOB Cleveland, Ohio or warehouse, wholesaler, or manufacturer with which the Company has a preset arrangement. All transportation and insurance expenses and all risk of loss or damage shall be borne by Customer immediately after Product leaves the Company’s facilities in Cleveland, Ohio, any warehouse with which the Company has a contract for interim storage, or any wholesaler or manufacturer authorized by the company. The Company, at all times, retains all rights to stop Products in transit or reclaim and seize Products for repurchase at the Price paid by Customer (less a reasonable restocking fee as determined in the Company’s sole discretion, plus transportation and storage costs) if Customer is in breach of the Agreement.
6. Acceptance of Product and Costs.
6.1. Acceptance. In the event of any shortage, damage, or discrepancy in or to a shipment of Products, Customer shall promptly report the same to the Company and furnish such written evidence or other documentation as the Company deems appropriate. The Company shall not be liable for any such shortage, damage, or discrepancy unless the Company has received notice and evidence thereof from Customer within three (3) business days after delivery of Products to Customer’s designated, final location. If such evidence demonstrates to the Company’s reasonable satisfaction that the Company is responsible for such shortage, damage, or discrepancy, the Company shall promptly deliver additional or substitute Products to Customer. The Company is in no way responsible for damage to Products caused during shipment to Customer.
6.2. Costs. In the event the Company incurs attorney’s fees or costs associated with any collection effort arising out of the Company’s sale of Products to Customer (including the costs of Products or amounts due from Customer), Customer agrees to pay the Company’s reasonable fees and costs associated therewith, plus statutory interest as permitted by law accruing from the date payment was due.
7. Trademark License.
7.1. Terms of Use. The Company hereby grants to Customer a non-exclusive and non-transferable, without power to sublicense, in accordance with policies announced by the Company from time to time, license to use the Company’s trademarks, service marks, symbols, logotypes, emblems, and all derivations thereof (collectively, “Company Marks”) in connection with the Service Requirements (as defined in the Agreement); provided, however, that: (i) such license does not include the right to use any Company Mark as a part of Customer’s registered corporate or trade name or to grant licensing authority to other vendors for the purpose of resale, and (ii) all rights and licenses granted herein or pursuant hereto shall terminate automatically upon the termination of the Agreement for any reason. Prior to the use of any Company Mark in any form of advertising or printed document, Customer must receive advance written approval from the Company. Upon termination of the Agreement, Customer shall immediately and permanently cease and desist from using any Company Mark.
7.2. Company Ownership. The Parties, as defined in the Agreement, hereby acknowledge and agree that, as between the Parties, the Company has and shall retain exclusive title and ownership rights in the Company Marks. Customer acknowledges the Company’s right, title, and interest in and to all Company Marks, and Customer will not, at any time, do or cause to be done any act contesting or in any way impairing or tending to impair any part of such Company Marks, including the Company’s ownership of all Company Marks and the validity of any registrations of the Company Marks. Any goodwill associated with the use of any Company Marks by Customer shall inure to the sole benefit of the Company.
7.3. Packaging. Customer shall not repackage Products for resale under Customer’s trademark(s), nor shall Customer sell Products to others who repackage the Products under a different trademark or otherwise violate the Company Marks.
8. Warranty and Recall.
8.1. Warranty. The only warranty applicable to Products is that set forth in the Company’s Quick Start Guide, Owner Care Program, and/or at www.kirby.com (hereinafter referred to as the “Warranty”), as the same may be amended by the Company from time to time. The Company makes no warranty whatsoever to Customer. Customer shall inform its customers of the terms of the Warranty. Customer is responsible for any and all representations, warranties, and statements accompanying any Products resold by Customer to the extent these representations, warranties, and statements were not compliant with the Company’s Warranty.
8.2. Recall by the Company. Product may be recalled by the Company for any of the following reasons: (i) where required by applicable law, (ii) following an order to recall by any regulatory authority, or (iii) where the Company determines that recall is necessary or advisable for safety reasons. If the Company determines that any Product should be recalled because of safety reasons, the Company shall notify Customer of the reason for the recall in writing within two (2) business days of such determination, and Customer shall proceed with the recall in accordance with the Company’s recall procedures and/or reasonable instructions provided by the Company.
8.3. Customer’s Recall Obligations. If Customer determines that any Product should be recalled, or if Customer becomes aware that a recall is required by law, then Customer shall notify the Company in writing within two (2) business days of such determination and shall consult with the Company regarding the most appropriate course of action. The Company shall review the written notice and provide a written response to Customer within three (3) business days of receipt of Customer’s notice. The Company and Customer shall cooperate and assist each other in any recall actions.
8.4. The Company’s Recall Obligations. Following the decision to recall any Product, the Company shall provide Customer with a prepared statement for use in response to any inquiries regarding any recall of Product, and Customer shall use such prepared statement to respond to any inquiries received with regard to the recall and shall not make any other statement regarding such recall. If any Product is recalled and the recall is determined to have been caused by a defect, non-conformance, or non-compliance of any Product that is the responsibility of the Company, the Company shall reimburse Customer for the direct and substantiated out-of-pocket costs incurred as a result of the recall, including: (i) investigating and/or inspecting the affected Products; (ii) notifying Customer’s customers; (iii) repairing, or where repair of the Products is impracticable or impossible, replacing the recalled Product; and (iv) packing and shipping the recalled Products. Notwithstanding the foregoing, the Company shall not reimburse any costs associated with the recall to the extent that such recall is due to the fault, negligence, willful misconduct, or wrongdoing of Customer or any of Customer’s employees, directors, members, or agents or due to a breach of this Agreement by Customer.
9. Confidentiality. In connection with the Agreement, at all times during and afterward:
9.1. Confidential Information. Customer shall keep confidential and hold in the strictest confidence all information disclosed to Customer by the Company or by any of the Company’s representatives, agents, or other independent contractors, including, but not limited to, the Company’s authorized wholesalers, whether disclosed or made accessible to Customer before, on, or after the execution of the Agreement, pursuant to or in connection with the Agreement, regardless of the medium on which the information is stored, recorded, conveyed, or communicated, whether or not in writing, oral or observable, and whether or not specifically identified as "confidential" or "proprietary," including, but not limited to: (i) cost, pricing, profit, production, forecast, and other accounting, economic, business planning, and financial data; (ii) technical drawings, designs, blueprints, artistic and scientific data, formulas, samples, ingredients, Product specifications, manufacturing processes and systems, quality control procedures, and business methods, processes, operating techniques, and “know how;” (iii) ideas for research and development; (iv) information about the Company’s other customers and suppliers; (v) business and marketing plans and strategies; (vi) summaries, excerpts, compilations, and notes prepared or related to any of the preceding information; (vii) any information that is a “trade secret” of the Company as that term is defined in the Uniform Trade Secrets Act of the U.S. (“Trade Secret”); and (viii) any other information relating to, disclosed, accessed, received, stored, or collected by or on behalf of the Company that is, or should be reasonably understood to be, confidential to Customer (collectively, “Confidential Information”).
9.2. Limited Disclosures. Customer will hold all Confidential Information in the strictest confidence, utilizing the same degree of protective care that normally prudent businesspeople would use to protect the confidence of their own confidential and/or proprietary information with Customer using, at a minimum, reasonable care. Customer will use Confidential Information solely for the purpose contemplated by the Agreement, unless otherwise agreed to in writing by the Company. Confidential Information may be disclosed by Customer to Customer’s Employees and Contractors, as defined in the Agreement, agents, directors, financing sources, and professional advisors who have a need to know and who are bound by confidentiality obligations at least as restrictive as herein, with the limited disclosures contemplated herein only to such extent as is necessary for the purposes contemplated by the Agreement or as is required by law and subject in each case to Customer using its best endeavors to ensure that the person in question keeps the Confidential Information confidential and does not use the Confidential Information except for the purposes for which the disclosure is made. Customer will not, directly, or indirectly, reveal, report, publish, disclose, or otherwise transfer any Confidential Information to any other third party at any time except as expressly authorized in writing by the Company prior to any such revelation, report, publication, or disclosure. Customer will promptly notify the Company if Customer discovers that Confidential Information has been lost, used without authorization, or disclosed without authorization. Customer will not reproduce Confidential Information except as required for fulfilling its obligations under the Agreement, in which case Customer will retain and reproduce all confidential or proprietary notices that appear on the original.
Except for Trade Secrets, Customer’s obligations under this Section 9 do not extend to information that Customer can demonstrate by legally sufficient evidence: (i) is or becomes generally publicly available through no fault of Customer (provided that in so doing, Customer shall not disclose any other Confidential Information which is not public knowledge); (ii) was known to Customer prior to its being disclosed to Customer by the Company, as evidenced by written documentation; (iii) is disclosed by Customer only after obtaining written approval from the Company; (iv) is received by Customer from a third party who has the right to make the disclosure and is not under an obligation of confidentiality to the Company; (v) is independently developed by Customer without using or referring to the Company’s Confidential Information; or (vi) is legally required to be disclosed.
If Customer becomes subject to a court order or subpoena that requires Customer to disclose Confidential Information, Customer shall, to the extent permitted by law, promptly notify the Company of the terms and the circumstances surrounding its issuance; consult in good faith regarding possible responses and make best efforts to narrow the order's scope, obtain a protective order from the court, or produce documents to the court or government body under seal with appropriate instructions regarding preservation of the information's confidentiality; and if disclosure is required to prevent contempt sanctions or other penalties, disclose only the Confidential Information that is legally required to be disclosed, consistent with a reasonable interpretation of the order or subpoena.
9.3. Term and Return of Confidential Information. The obligations regarding Confidential Information shall remain in full force and effect for the maximum time allowable by applicable law, unless the Company provides written documentation stating otherwise or unless the Confidential Information comes within the public domain without the direct or indirect violation by Customer. The confidentiality obligations with respect to any Confidential Information that constitutes a Trade Secret shall remain in full force and effect for as long as such Confidential Information retains its status as a Trade Secret and as long as permissible by law.
Upon the termination of the Agreement, Customer will, at the written request of the Company: (i) provide such Confidential Information in Customer’s possession via a mutually agreed upon secure transmission format, including returning to the Company all subsets of data in Customer’s possession or reasonable control, or (ii) immediately and securely destroy all such Confidential Information in Customer’s possession or reasonable control (including any and all copies in any format) in accordance with applicable law and in a manner that makes the Confidential Information non-readable and non-retrievable.
9.4. Rights and Reimbursement. The Company retains all rights in the Confidential Information, including any improvements, enhancements, or modifications to the Confidential Information which may arise as a result of the Agreement. The Company’s disclosure of any Confidential Information to Customer shall not be construed by implication or otherwise to convey any proprietary rights and/or intellectual property rights to Customer, nor to grant any license to Customer relating to such Confidential Information. Except for Customer’s fulfillment of the Service Requirements, Customer shall not use the Confidential Information for any commercial use, nor will Customer use the same for its individual benefit or the benefit of any third party. Nothing in the Agreement shall be construed as granting Customer the right to use the Confidential Information which becomes known through an improper act or omission of Customer. Customer shall not commercialize or exploit in any way whatsoever any Confidential Information disclosed to it by the Company without the prior written consent of the Company. Accordingly, Customer shall not copy, reproduce, or reduce to writing any part of the Confidential Information unless the Company grants written permission. No rights or obligations in respect of the Confidential Information, other than those expressly stated in the Agreement or herein, are granted to Customer or are to be implied from the Agreement.
The Company retains the right to determine, in its sole discretion, what information it makes available to Customer, so long as Customer is able to fulfill the Service Requirements. The Company makes no representation or warranties (express, implied, or statutory) concerning the completeness or accuracy of the Confidential Information disclosed.
If Customer refuses or fails to comply with any provision of this Section 9 or with any provision of the Agreement, Customer shall promptly reimburse the Company for all costs, attorneys’ fees, and other expenses incurred by the Company in connection with the enforcement of this Section 9 or with any provision of the Agreement; provided, however, that the remedies provided herein shall not be exclusive of other remedies available to the Company.
9.5. Product Confidential Information. Customer and Customer’s Employees and Contractors are required to keep confidential any information regarding the Products, including, but not limited to, the existence of the Products and their future availability for purchase (“Product Confidential Information”), until: (i) the Company notifies Customer, in writing, that the Product Confidential Information may be disclosed, and Customer subsequently notifies its Employees and Contractors that the Product Confidential Information may be disclosed, or (ii) until the Product Confidential Information comes within the public domain, without the direct or indirect violation by Customer or Customer’s Employees and Contractors, whichever comes first between (i) and (ii) of this Section 9.5.
10. Insurance. Customer shall procure and maintain, at its sole expense, any adequate and any legally required insurance coverage for Customer and its performance of the Service Requirements, including, but not limited to, the following primary and/or excess insurance coverages or their equivalents: (i) statutory worker’s compensation insurance; (ii) employer’s/professional liability insurance; (iii) automobile liability insurance; (iv) commercial general liability insurance, including products/completed operations, contractual liability, and advertising injury coverage; (v) all-risk property coverage insurance, including transit and theft coverage for goods, whether or not owned by Customer, that have been ordered by Customer and are in the care, custody, or control of the Company, its agents, or contractors; and (vi) cyber insurance, all in a form and substance reasonably satisfactory to the Company. Such insurance shall provide for coverage in an amount adequate to fulfill Customer's indemnification obligations to the Company under Section 12.2 of these Standard Terms, and these insurance requirements are in addition to, and not in lieu of, Customer’s indemnification requirements. Customer shall name the Company as an additional insured under all aforementioned insurance policies/coverages. Upon the Company’s request, Customer shall provide the Company with a copy of Customer’s certificate of insurance indicating the foregoing coverage and supply written notice to the Company at least thirty (30) days prior to the cancellation, reduction, or non-renewal of such coverages.
11. Compliance with Applicable Law.
11.1. General Compliance. To protect the integrity of the Kirby® brand, Customer warrants and represents that at all times it shall be in compliance with the requirements of any local, regional, county, state, and/or federal law related to the Agreement and/or the performance of the Service Requirements. Specifically, Customer and Customer’s Employees and Contractors must, at all times: (i) comply with all laws, rules, and regulations applicable to (a) safety in connection with performance of the Service Requirements, (b) anti-bribery and anti-corruption, (c) antitrust or similar regulatory laws or regulations which make it illegal for Customer and Customer’s Employees and Contractors to fix prices for Products or conspire or agree to fix prices for Products, and (d) harassment, discrimination, and retaliation; (ii) hold and maintain, throughout provision of the Service Requirements, all licenses, permits, registrations, and other authorizations necessary for Customer to perform the Service Requirements, copies of which Customer will provide to the Company upon request; (iii) notify the Company immediately after becoming aware that any license, permit, registration, or authorization required for Customer to perform the Service Requirements has expired, been lost, or suspended; (iv) not violate or infringe any third party’s rights in proprietary or confidential information in performing the Service Requirements; and (v) not create any lien on the Company’s property or assets, including any deliverables, and waive all rights to any lien.
11.2. Data Protection Compliance. Customer and Customer’s Employees and Contractors shall comply with all applicable data protection requirements and shall not perform Customer’s obligations under this Agreement in such a way as to cause the Company to breach any of its obligations under applicable privacy laws. When Customer, pursuant to the Service Requirements, collects, processes, or uses personal data, it shall: (i) collect, process, or use the personal data only to the extent, and in such manner, as is necessary for the provision of the Service Requirements or as is required by law or any regulatory body; (ii) implement appropriate technological measures to protect against accidental loss, destruction, damage, alteration, or disclosure (these measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, or damage to the personal data); (iii) take reasonable steps to ensure the reliability of Customer’s Employees and Contractors who have access to the personal data, to provide information about this Section 11.2 to its Employees and Contractors, and to ensure its Employees and Contractors are acting in compliance with this Section 11.2; (iv) immediately notify the Company of a request from any legal body to turn over all or any portion of the personal data in Customer's possession or any complaint or request relating to the Company's obligations under any data protection regime; and (v) not sell, give away, or share any data, reports, or information of any kind or nature which includes, identifies, or lists information related to any other entities associated with or under contract with the Company and ensure Customer’s Employees and Contractors are not selling, giving away, or sharing this information.
12. Indemnification.
12.1. Company’s Indemnification. The Company shall indemnify, defend, and hold Customer harmless from and against any and all liability, damage, or expense incurred in connection with any claim, demand, or suit (any “Claim”) based on: (i) infringement of any United States patent by reason of Customer’s promotion of any unaltered Product, or (ii) infringement of any trademark by reason of Customer’s use of any trademark licensed hereunder; provided, however, that for the Company to indemnify, Customer shall give the Company prompt written notice of any such Claim, permit the Company to defend or settle any Claim, and provide the Company with every reasonable assistance the Company may request in resisting such Claim. The foregoing indemnification obligation shall not apply if Customer is alleged to be responsible for any negligence, misconduct, or wrongdoing in connection with any such Claim. The Company’s indemnification obligations are limited in accordance with Section 13 below.
12.2. Customer’s Indemnification. Customer agrees to indemnify and hold harmless the Company and its members, employees, agents, representatives, affiliates, subsidiaries, related entities, constituent companies, and customers (collectively, the “Company Indemnitees”) from and against any and all liability, damage, loss, expense, fees, including attorney fees, and judgment incurred by any Company Indemnitees in connection with any claim, demand, or suit (any “Demand”) based in whole or in part on the actual or alleged: (i) breach, acts, omissions, negligence, and/or willful misconduct of Customer, Customer’s Employees and Contractors, or Customer’s agents with respect to the Agreement and/or the Service Requirements; (ii) statements, representations, or omissions made by Customer, Customer’s Employees and Contractors, and/or Customer’s agents in connection with Products, except to the extent expressly permitted under the Agreement; (iii) tax liabilities and responsibilities for payment of all applicable taxes, including, but not limited to, all payroll taxes, self-employment taxes, workers’ compensation premiums, and any contribution imposed or required under applicable law with respect to Customer and its Employees and Contractors; and (iv) costs of Customer’s business, including, but not limited to, the expense and responsibility for any and all applicable insurance; local, county, regional, state, or federal licenses, permits, and taxes; and assessments of any and all regulatory agencies, boards, or municipalities. In connection with any Demand, the Company shall give Customer prompt written notice of any such Demand and provide Customer with every reasonable assistance which Customer may request in resisting such Demand.
13. Limitation of Liability. For any situations in which Customer incurs any expenses, damages, or other liabilities (including without limitation, reasonable attorney’s fees) in connection with the Agreement and/or the Service Requirements, the Company’s liability shall be limited to proven, direct, and actual damages, and the Company’s maximum liability to Customer hereunder will not exceed the amount Customer paid for any Products giving rise to the liability. In no event will the Company be liable for consequential, punitive, indirect, reliance, or incidental damages; lost profits; and/or the costs or procurement of substitute goods or services, however caused and on any theory of liability (including, but not limited to, negligence or strict liability) and whether or not the Company has been advised of the possibility of such damages. The Company shall not incur any liability whatsoever to Customer for any delay or breach by Company if the same is due to a Force Majeure Event.
14. Force Majeure. Neither Party will be liable for failure to perform any of its obligations under the Agreement during any period in which that Party cannot perform due to acts of God beyond the Party’s control, including, but not limited to, any present or future law, regulation, or order; earthquake; flood; fire; epidemic; pandemic; accident; explosion; casualty; riot; civil disturbance; war or armed conflict; act of terrorism or threat thereof; labor controversy (including, but not limited to, threatened or actual lockout, boycott, or strike); delay of a common carrier; inability without fault on the Company’s part to obtain sufficient Products, other goods, or services required in the conduct of its business; or by reason of any other cause or causes of any similar or dissimilar nature (all of the foregoing being herein referred to as “Force Majeure Event”), provided that the Party so delayed immediately notifies the other Party of the delay and uses reasonable efforts to mitigate the Force Majeure Event’s effects and resume performance as quickly as possible.
15. Non-solicitation. Neither Party shall, directly or indirectly, solicit, hire, retain, or otherwise engage any person who is or was an employee of the other Party during the period of time beginning on the date on which such employee became an employee of a Party and ending on the later of: (i) the date which is twelve (12) months following the date on which such employee ceased to be an employee of the Party, or (ii) twelve (12) months following the effective date of the termination of the Agreement, whichever period is longer. Nothing in this Section 15 shall prohibit a Party from using general job postings or advertisements not specifically targeted at the other Party’s employees or hiring individuals who respond to such general postings without any direct or indirect solicitation.
16. Term and Termination.
16.1. Term. The Agreement shall remain in force, unless terminated as provided herein, for twenty-four (24) months from the Effective Date as defined in the Agreement (“Initial Term”). Unless terminated, the Agreement shall be automatically renewed for successive terms of twelve (12) months each (“Renewal Term”) unless the Party not seeking renewal notifies the other Party, not less than thirty (30) days prior to the expiration of the Initial Term or any yearly Renewal Term thereafter, of its intention not to renew this Agreement.
16.2. Without Cause Termination. Either Party shall have the right to terminate the Agreement without cause (subject to state law, if applicable) at any time by giving written notice to the other Party not less than thirty (30) days prior to the effective date of such termination.
16.3. Immediate Termination by the Company. The Agreement shall, at the option of the Company, immediately terminate upon any of the following events: (i) death of Customer’s signatory to the Agreement; (ii) any change in the ownership or managerial authority of Customer; (iii) Customer going bankrupt; (iv) the placing of Customer’s business in the hands of a receiver or trustee; (v) Customer’s dissolution; (vi) the institution of proceedings for the reorganization of Customer; or (vii) Customer’s signatory to the Agreement being charged or indicted with any crime involving fraud, theft, violence, or moral turpitude. Any changes in the ownership structure of Customer must be reported to the Company immediately and never to exceed seven (7) days from the effective date of the change.
16.4. Immediate Termination by Either Party for Cause. So long as the non-breaching Party has provided notice to the breaching Party, giving the breaching party fifteen (15) business days to cure a material violation and the violation remains uncured after those fifteen (15) business days, the non-breaching Party may terminate the Agreement for cause effective on such date as specified in the written notice of termination given to the breaching Party. The following events shall be deemed to have triggered a material violation: (i) the other Party’s breach of any covenant or obligation contained in the Agreement (including, but not limited to, these Standard Terms), or (ii) false or fraudulent conduct of any kind by the other Party.
16.5. Financial Responsibility. In no event will the termination of the Agreement operate as a cancellation of any indebtedness owing to one Party by the other at the time of such termination. Neither Party shall be entitled to any termination or similar fees.
17. Effect of Termination. Upon termination of the Agreement for any reason noted in Section 16 of these Standard Terms:
17.1. Company Documents. Customer shall return to the Company, upon the Company’s request and expense, all documents in Customer’s possession regarding Products, including Price information, maintenance manuals, exploded diagrams, parts and service manuals, service bulletins, sales aids, and other publications of the Company.
17.2. Commitments. Customer shall be solely responsible for all commitments incurred or assumed by it, and the Company shall not be held responsible in any manner therefore, irrespective of any suggestion or recommendation with respect thereto by Customer or any of Customer’s Employees and Contractors, unless the Company has expressly agreed in writing to assume the responsibility. Furthermore, Customer shall be responsible for all orders placed in accordance with Section 4.
17.3. Return of Products. Unless otherwise agreed in writing between the Parties, Customer shall not be entitled to return any Products, whether upon termination of the Agreement or for any reason whatsoever during the Initial Term or Renewal Term.
17.4. Repurchase and Inspection of Products.
17.4.1. Repurchase. The Company may, at its option, reacquire any or all Products then in Customer’s possession at the Price originally paid by Customer for such Products (or, if the Products are not in unopened, factory-sealed boxes, fifty percent (50%) of such Price), less the following deductions when applicable: (i) any unpaid warehouse and/or transportation fees due and owing from Customer; (ii) with opened boxes, the costs of any minor repairs the Company needs to make to a Product unit and/or the costs of any replacement parts that must be put on the Product unit; and (iii) any other amounts Customer has given written permission to the Company to withhold from the refund price.
17.4.2. Inspection. Not more than three (3) business days after the effective date of the termination of the Agreement, Customer shall deliver to the Company an itemized list showing all Product, new/unused and used, owned by Customer on the effective date of such termination, including the serial numbers of all Product listed thereon. Within a reasonable amount of time thereafter, the Company will decide which Products it wishes to repurchase, if any. Customer shall ship to the Company Products the Company has requested upon receipt of shipping instructions from the Company. Repurchased Products shall be shipped FOB Customer’s location. Upon receipt of Products, the Company shall have the right to inspect and approve Products so shipped and take the deductions noted in Section 17.3.1; the transaction shall be complete only upon such inspection and approval by the Company. The payment terms of any such repurchased Products by the Company shall be net thirty (30) days after the Company’s approval.
17.5. Non-disparagement. Customer agrees not to make any statement or take any action which disparages, defames, and/or slanders the Company and/or its management, employees, independent contractors, Products, and/or its practices (whether during the term of this Agreement and/or at any time thereafter).
17.6. Trademarks. Customer shall immediately and permanently discontinue and cease and desist, as of the effective date of the termination, from: (i) using in any advertising, display, telephone directory or listing, or printed matter whatsoever, the words “authorized” and/or any other word or words suggesting that Customer remains authorized by the Company to service, repair, or sell Products; (ii) using, in any advertising, sign, display, telephone directory or listing, or printed matter whatsoever, any Company Marks; (iii) using any written reproduction or colorable imitation of words and/or phrases connotating a continued relationship with the Company; and (iv) engaging in any other activity or practice which would tend to indicate, suggest, or represent, either directly or indirectly, that Customer is authorized by the Company to repair, service, or sell Products.
17.7. Costs of Enforcement. If Customer refuses or fails to comply with any of the provisions of this Section 17, Customer shall reimburse the Company for all reasonable costs, attorneys’ fees, and/or other expenses incurred by the Company in connection with the enforcement of said provisions; provided, however, that the remedies provided herein shall not be exclusive of other remedies available to the Company.
18. Arbitration Agreement.
18.1. Agreement to Arbitrate. The Company and Customer mutually agree that any dispute, controversy, or claim arising out of or relating to this Agreement or the breach/alleged breach thereof and all other aspects of Customer’s relationship with the Company, past, present, or future, shall be determined by private, binding arbitration administered the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules (“AAA Rules”) then pertaining.
18.2. Role of Arbitrator. The Company and Customer mutually agree that the arbitrator shall have sole power to determine all jurisdictional and substantive issues attendant to disputes or claims (including, without limitation, third-party claims) arising under, concerning, or relating to this Agreement, its arbitrability, its interpretation, its validity (including, but not limited to, any claim that all or any part of this Agreement is void or voidable), its termination, or its subject matter, with the only exceptions being that the arbitrator shall not have power to hear, arbitrate, or decide issues related to the enforceability, conscionability, or voidability of Class Action Waivers as defined in Section 18.3 or to issue temporary or permanent injunctive relief as contemplated by Section 18.5.9. The arbitrator shall resolve all matters between the Parties by confidential and binding arbitration.
18.3. Class Action Waiver. The Company and Customer mutually agree to waive their rights to a court or jury trial and that by entering into this agreement to arbitrate, both Parties waive their right to have any dispute or claim brought, heard, or arbitrated as a class action, collective or consolidated action, and/or representative action (“Class Action Waiver). Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by the United States District Court for the Northern District of Ohio, Eastern Division, or the Court of Common Pleas, Cuyahoga County, Ohio and not by an arbitrator. In any case in which: (i) the dispute is filed as a class, collective, representative, or private attorney general action, and (ii) there is a final judicial determination that all or part of the Class Action Waiver is unenforceable, the class, collective, representative, and/or private attorney general action to that extent must be litigated in the United States District Court for the Northern District of Ohio, Eastern Division, or the Court of Common Pleas, Cuyahoga County, Ohio, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
18.4. Acknowledgement of Independent Contractor Status. Customer agrees and acknowledges that it is an independent contractor and that entering into this arbitration agreement does not change Customer’s status as an independent contractor as a matter of fact or at law. Any disputes in this regard shall be subject to arbitration as provided in this arbitration agreement.
18.5. Arbitration Terms. Any arbitration shall be governed by the AAA, subject to the following agreement of the Parties:
18.5.1. The arbitration shall be heard by one (1) arbitrator selected in accordance with the AAA Rules. The arbitrator shall be an attorney with experience in the law underlying the dispute.
18.5.2. All proceedings shall be presented in writing and argued orally in the English language.
18.5.3. If the Parties cannot otherwise agree on a place for the arbitration, the arbitration shall take place in Cleveland, Ohio, USA, also its seat. All awards shall be deemed to have been issued in Cleveland, Ohio, USA, the place of the arbitration.
18.5.4. Unless applicable law provides otherwise, as determined solely by the arbitrator, the Parties agree that the Company and Customer shall each initially pay half of the AAA’s administrative fees and half of the arbitrator’s fees and costs.
18.5.5. The arbitrator may issue preliminary and interim orders (including subpoenas to third parties) requiring production of information and disclosures sufficient to permit the Company and Customer to prepare their claims and/or defenses, taking into consideration that arbitration is designed to be a speedy and efficient method for resolving disputes.
18.5.6. Except as provided in the Class Action Waiver, the arbitrator may award all remedies to which a Party is entitled under applicable law and which would otherwise be available in a court of law. The arbitrator shall apply the laws of the State of Ohio, federal substantive law, or both, as is applicable.
17.5.7. The arbitrator may hear dispositive motions and will apply the standards of the United States Federal Rules of Civil Procedure governing such motions.
18.5.8. The arbitrator shall issue a reasoned, written award, with findings of fact and conclusions of law.
18.5.9. The arbitrator shall have no authority to entertain or grant either the Company or Customer temporary or preliminary injunctive relief which, if required, will be pursued in the United States District Court for the Northern District of Ohio, Eastern Division, or the Court of Common Pleas, Cuyahoga County, Ohio.
18.6. Administrative Agency. Regardless of any other terms of this arbitration agreement, claims may be brought before and remedies awarded by an administrative agency if applicable law permits access to such an agency notwithstanding the existence of an agreement to arbitrate.
18.7. AAA Rules. The AAA Rules may be found at www.adr.org or by searching for “AAA Commercial Arbitration Rules” using a service such as www.google.com or www.bing.com.
18.8. Final Award and Agreement. The award or decision rendered by the arbitrator shall be final, binding, and enforceable upon the Parties. To the extent that any court action is permitted consistent with or to enforce this Section 18, including, but not limited to, the enforcement/entry of an award, the Company and Customer irrevocably and unconditionally submit to the jurisdiction of United States District Court for the Northern District of Ohio, Eastern Division, or the Court of Common Pleas, Cuyahoga County, Ohio and waive any defenses to such enforcement based on lack of personal jurisdiction or inconvenient forum. This arbitration agreement is the full and complete agreement relating to the formal resolution of disputes covered by this arbitration agreement. Except as stated with regard to the Class Action Waiver above, in the event any portion of this arbitration agreement is deemed unenforceable, the remainder of this arbitration agreement will be enforceable.
19. Applicable Law. This Agreement shall be construed under and governed by the law of the State of Ohio without giving effect to the choice of law principles of any jurisdiction.
20. Notice. Any written notice required pursuant to the Agreement shall be signed, where applicable, by an authorized representative of the sending Party and sent: (i) by registered or recorded delivery or express mail with a receipt confirming delivery to the addresses of the Parties indicated in the Agreement, or (ii) via email, with emails to the Company sent to legal@kirby.com and marketing@kirby.com, and emails to Customer sent to the last known contact information on record with the Company. Any written notice sent by registered or recorded delivery or express mail with a receipt confirming delivery shall be deemed to have been delivered on the date indicated in the delivery receipt, unless that date is a non-business day, in which case the delivery date shall be deemed the next business day. Any written notice sent by email shall be deemed to have been delivered on the day following the date of the transmission, unless the day following the date of transmission is a non-business day, in which case the delivery date shall be deemed the next business day.
21. Communications from the Company. Customer agrees to receive communications from the Company by email and other electronic means. Customer further consents to receive autodialed or prerecorded calls and text messages from the Company at any telephone number that Customer has provided to the Company or that the Company has otherwise obtained. The Company may place such calls and texts to: (i) troubleshoot problems Customer may experience with Products; (ii) poll Customer’s opinions through surveys or questionnaires; (iii) contact Customer with offers and promotions; or (iv) as otherwise necessary to enforce the Agreement, Company policies, or applicable law. Standard telephone minute and text charges may apply. Customer may opt out of any or all electronic messaging by contacting the Company.
22. Severability. In the event any term, phrase, clause, or provision of the Agreement, including, but not limited to, these Standard Terms, shall be deemed invalid, illegal, or unenforceable in any respect or cannot be reformed to be enforceable as described above, the same shall be severable and the other provisions of the Agreement shall not, in any way, be affected or impaired thereby. If any term or other provision of the Agreement is invalid, illegal, or incapable of being enforced by any rule of applicable law or public policy, all other conditions and provisions of the Agreement, including, but not limited to, these Standard Terms, shall nevertheless remain in full force and effect. Upon such determination that any term or other provision of the Agreement is invalid, illegal, or incapable of being enforced, such term or other provision shall be replaced with a term or provision that is valid, legal, and enforceable and most closely gives effect to the original intent of the invalid, illegal, or unenforceable term or provision; provided, however, that if such term or provision cannot be replaced in such a manner, then the Parties shall negotiate in good faith to modify the Agreement so as to affect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated herein are consummated as originally contemplated to the fullest extent possible.
23. No Waiver. Failure of Party to enforce any provision of the Agreement, including, but not limited to, these Standard Terms, or to require performance by the other Party of any provision of the Agreement, including, but not limited to, these Standard Terms, shall not be construed to be a waiver of such provision or of the right of the Party thereafter to enforce each and every provision of the Agreement. No delay or omission on the part of a Party in exercising any right shall operate as a waiver of such right or any other right. A waiver on one or more occasions shall not be construed as a bar to or waiver of any right or remedy on future occasion.
24. Remedies. The remedies of the Company under the Agreement, including, but not limited to, these Standard Terms, are cumulative, and the exercise of any one or more of the remedies provided under the Agreement shall not be construed as an election or as a waiver of any of the other remedies of the Company provided under the Agreement, existing by law, or otherwise.
25. Assignment. The Agreement may not be assigned by Customer, in whole or in part, except with the prior written consent of the Company and only then if the assignee agrees to assume each and every obligation of the Agreement. Any assignment or transfer of any type, without the prior written approval of the Company made at the Company’s sole discretion, shall be void and of no effect.
26. Headings. The section headings of the Agreement, including, but not limited to, these Standard Terms, are for purposes of reference only and shall not be referred to in interpreting their provisions.
27. Survival. Terms and conditions which, by their nature, are expected to survive the Agreement’s termination (including, but not limited to, provisions within these Standard Terms and any Exhibits) shall survive this Agreement’s cancellation, termination, or expiration.
