Terms and Conditions
Effective Date: January 1, 2023
Notice. These terms and conditions are the commercial terms of purchase of goods (“Goods”) from KCooper Brands, Inc. and its subsidiaries and affiliates and apply to all purchases of Goods from KCooper Brands, Inc. by any purchaser (“Purchaser”) with notice of these terms, however gained, including the use of KCooper Brands, Inc.'s website (“Website”). No additional or different terms or attempted exclusions or modifications (by way of purchase order (“P.O.”), acceptance, confirmation, communication, course of performance or otherwise, all of which may hereafter be referred to jointly and severally as “Reply”) shall be effective against KCooper Brands, Inc. in the absence of the express written consent of KCooper Brands, Inc. by an authorized officer; any attempt by Purchaser to add, exclude or modify terms shall be deemed to be material, is objected to and will be of no effect. Neither the submission of this document nor anything herein contained shall be construed to be an acceptance or confirmation of any prior or subsequent Reply; this document shall be a rejection and counter-offer with respect to any such Reply. Provisions below that apply only to certain types of goods (e.g., provisions relating to printed orders) only apply to the extent, if any, such provisions are applicable to Goods sold to Purchaser. The contract between KCooper Brands, Inc. and Purchaser, including these terms, shall be referred to as the “Agreement.” Throughout this instrument, the use of the term “include,” however conjugated, shall be without limitation; “person” shall include any individual, corporation, LLC, partnership or other entity.
All orders are subject to: (i) credit approval; (ii) rejection or modification due to required delivery date or raw material availability; and (iii) minimum order quantities. No lead times are guaranteed unless agreed to in writing by both parties. Any delivery date stated in a quotation or otherwise is based on Purchaser’s timely compliance with KCooper Brands, Inc.'s credit approval requirements and timely receipt of a P.O. and complete specifications as well as any necessary export documents and authorizations; any delay will result in delays in shipment.
Purchaser acknowledges that prices, whether they appear in the Website, on a price list, or in any other form or medium, are effective only for orders shipped on the date that they appear; KCooper Brands, Inc. may change prices at any time without notice. Prices in quotations are effective for the specific time period stated in the quotation or, if no time period is stated, 30 days. If Purchaser is an existing customer currently purchasing Goods at a certain price, KCooper Brands, Inc. may change its prices at any time upon 30 days’ written notice or upon 10 days’ written notice in case of a sudden severe increase in materials prices or other costs. Any temporary surcharge imposed by KCooper Brands, Inc.'s suppliers will be passed on to Purchaser during whatever period of time such surcharge might be in effect. Price increases for components purchased by KCooper Brands, Inc. on Purchaser’s behalf for inclusion in finished Goods shall be passed on to Purchaser without advance notice and due immediately without regard to Purchaser’s payment terms or standard payment terms in section 3 below.
Unless otherwise agreed, prices do not include:(i) printing plates; (ii) art charges; (iii) colors; (iv) labeling; (v) silk screening; (vi) co-packing; (viii) metalizing; (ix) skids; (x) freight; (xi) warehousing; (xii) brokerage fees; (xiii) upcharges for less than minimum orders or additional services and similar items; (xiv) any applicable excise, value-added, sales, use or similar taxes; or (xv) insurance. All of the foregoing will be billed as separate items and are not subject to discounts.
KCooper Brands, Inc. reserves the right to: (i) increase quantity ordered to nearest standard shipping unit; (ii) ship Purchaser or end user specific manufactured Goods within a range of plus or minus ten percent (10%); or (iii) both. Unless otherwise specifically agreed by the parties, all shipments are F.O.B. KCooper Brands, Inc.'s production facility for shipments from any of KCooper Brands, Inc.'s U.S. locations and FCA (Incoterms 2000) Supplier’s factory or shipping point as determined by Supplier for shipments from any of Supplier’s locations outside of the U.S. KCooper Brands, Inc. will select the carrier unless otherwise agreed in writing. Freight costs prepaid by KCooper Brands, Inc. shall be subject to an additional administration and handling charge; Purchaser’s resulting charges may or may not exceed the charges that Purchaser might incur if Goods are shipped collect. Goods in transit are at Purchaser’s risk. Purchaser shall be fully responsible to pay or to reimburse KCooper Brands, Inc. for carrier detention charges incurred as a result of delays caused or allowed by Purchaser. If prices include a freight component, prices shall be subject to adjustments effective immediately without notice in the event of a subsequent change in freight rates or the imposition of a fuel or other surcharge. In the case of international sales, unless otherwise agreed, Purchaser shall be fully responsible: (i) to provide KCooper Brands, Inc. prior to shipment and in writing, the ultimate destination and identity of the end-user; (ii) to pay all duties, taxes and other charges imposed by any government on Goods or on the purchase, exportation or importation of Goods; and (iii) for compliance with applicable legal requirements for exportation and importation of Goods.
A. Payment terms are net 30 days from date of invoice in the currency designated by KCooper Brands, Inc. on open accounts to Purchasers with current approved credit unless otherwise agreed in writing by the parties. KCooper Brands, Inc. shall not be bound to extend credit: (i) prior to Purchaser’s compliance with credit requirements, including KCooper Brands, Inc.'s approval of a signed credit application or (ii) because it has previously done so for Purchaser or others similarly situated. If Purchaser’s purchases of Goods are made through a broker, distributor, wholesaler, filler or other intermediary (“Intermediary”), references herein to “Purchaser” shall include such Intermediary as necessary to the context and Purchaser agrees that KCooper Brands, Inc. shall be entitled to make credit decisions concerning sales to the Intermediary in KCooper Brands, Inc.'s discretion and may refuse to make sales on credit as it determines in its discretion. KCooper Brands, Inc. to the extent necessary to protect its interest in receiving payment for Goods, shall be a third party beneficiary of any purchase contract between the Intermediary and Purchaser. If KCooper Brands, Inc. makes sales of Goods to the Intermediary as an accommodation to Purchaser, Purchaser shall remain liable to KCooper Brands, Inc. for the cost of Goods sold to the extent that the Intermediary fails or refuses to pay KCooper Brands, Inc. for such Goods; Purchaser waives all suretyship defenses. In the event that Purchaser renders payment to KCooper Brands, Inc. and/or its agent in a manner purported by Purchaser to serve as payment in full of an invoice, KCooper Brands, Inc. and/or its agent’s acceptance of such payment (i) shall not act as an accord and satisfaction and (ii) shall be without prejudice to KCooper Brands, Inc.'s right to pursue additional payment of such invoice. Purchaser shall not have the right of set off unless so agreed in writing by KCooper Brands, Inc. If any payment is past due, KCooper Brands, Inc. may impose a service charge of the lesser of the maximum amount allowed by applicable law or 2% per month and may hold or cease shipments of Goods. Any amounts charged to a credit card are subject to a convenience fee of 3.5%. Purchaser agrees to pay KCooper Brands, Inc.'s attorney’s fees and expenses and other collection costs in the event collection or other enforcement efforts become necessary or appropriate in KCooper Brands, Inc.'s discretion. In addition, KCooper Brands, Inc. shall have the right to terminate this sale, to stop Goods in transit, and to suspend further performance under these terms and conditions and/or other agreements with Purchaser in the event Purchaser fails to make any payment when due, which other agreements Purchaser and KCooper Brands, Inc. hereby amend accordingly.
B. Purchaser agrees that each issuance of a P.O. constitutes a representation that it is solvent and is not presently a debtor in any insolvency or bankruptcy proceeding. In the event of insolvency, KCooper Brands, Inc.'s invoice shall constitute a demand for reclamation of the Goods identified on the invoice under UCC section 2-702 and United States Bankruptcy Code section 546(c). Purchaser:
(i) agrees to promptly notify KCooper Brands, Inc. in case of insolvency;
(ii) waives any defenses to KCooper Brands, Inc.'s right of reclamation to the Goods identified in KCooper Brands, Inc.'s invoice; and
(iii) shall promptly return possession of such Goods to KCooper Brands, Inc.
Purchaser will be responsible to pay the full P.O. price if Goods are manufactured in response to a P.O. cancelled by Purchaser (without KCooper Brands, Inc.'s fault) prior to shipment. Purchaser shall make prompt inspection of Goods. Rejection of alleged nonconforming Goods must be made in writing 30 days after delivery for non conformities reasonably discoverable on inspection, and three (3) months after delivery for latent non conformities; after that time Goods will be deemed accepted and not subject to revocation of acceptance. Failure by Purchaser to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Purchaser’s claim for such defects. Purchaser will give KCooper Brands, Inc. reasonable opportunity to examine and test Goods that are the basis for any claim. As a condition for replacement, refund or credit, KCooper Brands, Inc. may request the return of alleged nonconforming Goods in the same condition as when received, except such part as cannot be returned due to necessary testing. On request, Purchaser shall also return, if possible, tested Goods. No claim against KCooper Brands, Inc. shall be made or allowed for Goods returned without KCooper Brands, Inc.'s prior written consent. All claims for loss or damage during transit must be made against the carrier and by notation on freight bill or delivery receipt. All returns of other than nonconforming Goods must be: (i) approved in advance by KCooper Brands, Inc. (ii) of Goods in new condition and not printed or special; (iii) made within 90 days; (iv) shipped at Purchaser’s expense; and (v) accompanied by or subject to a twenty-five percent (25%) restocking charge. Credits (other than those for overpayments) expire 180 days after issuance.
If KCooper Brands, Inc. has agreed to retain an inventory or safety stock of Goods, KCooper Brands, Inc.'s obligation to produce Goods for inventory shall be subject to Purchaser’s continued compliance with this Agreement including timely payment and the responsibility to provide an accurate forecast and comply with applicable lead-times. In the event any item of Goods is discontinued or changed by Purchaser, Purchaser shall purchase and pay for all such Goods that have been manufactured and raw materials for open purchase orders for such Goods. In the event any Goods are maintained in inventory for more than ninety (90) days, Purchaser will either purchase such Goods or order the Goods scrapped and pay the purchase price as if such Goods had been purchased (and KCooper Brands, Inc. will retain the scrap) and, in such cases, payment will be due immediately at the end of the 90 day period without regard to Purchaser’s payment terms or standard payment terms above in section 3.
6. CONFIDENTIAL INFORMATION.
All non public information conveyed by KCooper Brands, Inc. regarding KCooper Brands, Inc.'s prices, costs, discounts, inventions, planned and existing products, including the Goods (some of which may also be subject to KCooper Brands, Inc.'s copyright, trademark, or patent rights), packaging, customers and distributors as well as information regarding KCooper Brands, Inc.'s business or finances and production methods, know-how and concepts used by KCooper Brands, Inc. is proprietary and confidential (“Confidential Information”). Purchaser agrees that it will not disclose any such Confidential Information to others and will advise its employees and agents of the secrecy of such Confidential Information and take all other steps necessary to protect KCooper Brands, Inc.'s Confidential Information. Purchaser shall not copy, reverse compile, reverse engineer or otherwise duplicate the Goods or any part of those Goods or copy, misuse or misappropriate any Confidential Information belonging to KCooper Brands, Inc. or any other person. KCooper Brands, Inc.'s logo and brand names belong to KCooper Brands, Inc. and are protected by trademark and other laws; Purchaser agrees that it will not use or permit any other person to use such logo or brand names without KCooper Brands, Inc.'s prior written consent which may be withheld for any reason. KCooper Brands, Inc. shall be entitled to all legal and equitable rights and remedies available under state and federal law and otherwise to protect its Confidential Information, trademarks, trade secrets and intellectual property of all kinds (all of which may be referred to hereafter as “IP”). Confidential Information shall not include information that: (i) was known to Purchaser before receipt from KCooper Brands, Inc. (ii) is or becomes publicly available through no fault of Purchaser; (iii) is rightfully received by Purchaser from a third person not bound by a duty of confidentiality; or (iv) is disclosed by Purchaser with KCooper Brands, Inc.'s prior written approval.
* X-Flex is designated as a Defense Article under the U.S. Munitions List. Technical Data, including samples of X-Flex, is subject to U.S. International Traffic in Arms Regulations (“ITAR”) and will be provided only to U.S. citizens or lawful permanent residents pursuant to the ITAR. Export, re export, or transfer outside of the U.S. or to non-U.S. persons inside or outside the U.S. without prior U.S. Government authorization is prohibited. It is the responsibility of the recipient to determine what applicable requirements may be and to obtain all necessary authorizations, licenses or approvals. For information on the ITAR, please refer to the U.S. Department of State web site: //pmddtc.state.gov/.
7. PRODUCT PLANNING.
Any custom descriptions and layouts supplied with a quotation, unless otherwise stated, are preliminary only and KCooper Brands, Inc. reserves the right to make modifications (after advising Purchaser) if KCooper Brands, Inc. determines that the modifications will result in increased efficiency of production or use. At any time that any such contemplated modification may result in any substantial change in appearance or function, KCooper Brands, Inc. will not make such change without Purchaser’s prior approval. Purchaser may not reject as nonconforming any Goods based on artwork or copy which Purchaser previously approved. Artwork, product design, production and packaging methods and other materials, information and IP developed in whole or in part by KCooper Brands, Inc. shall remain KCooper Brands, Inc.'s property and subject to all IP protections, including those in the preceding section on Confidential Information and IP, unless the parties enter into a written contract under which the Purchaser specifically buys the rights to such IP and KCooper Brands, Inc. makes a written assignment thereof.
8. LIMITED WARRANTY/LIMITATION OF DAMAGES.
All Goods are sold on the condition that Purchaser will examine and test samples prior to the initial purchase to determine whether the Goods: (i) meet Purchaser’s requirements and (ii) comply with all compatibility and use requirements including those referred to below in sections 10 (Thermoplastic characteristics) and 14 (Miscellaneous). Once KCooper Brands, Inc. has made samples available, Purchaser’s PO for Goods acts as confirmation of such examination and testing. Goods are warranted to: (i) be substantially free from defects in material and workmanship when sold subject to all time limitations and (ii) comply with KCooper Brands, Inc.'s published specifications within stated tolerances, but it shall be Purchaser’s responsibility to assure that such specifications and tolerances will fulfill Purchaser’s requirements regardless of whether KCooper Brands, Inc. has notice of such requirements. KCOOPER BRANDS, INC. MAKES THIS LIMITED WARRANTY IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. NO WARRANTY SHALL BE CREATED OR DEEMED TO BE CREATED BY THE USE OF THE WORDS “TAMPER EVIDENT” OR “CHILD RESISTANT” OR WORDS OF SIMILAR MEANING USED IN ANY WRITTEN OR ORAL COMMUNICATION. THERE ARE NO WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, COURSE OF DEALING, USAGE OF TRADE OR NON INFRINGMENT OR OTHERWISE ASIDE FROM THE LIMITED WARRANTY ABOVE AND THE DESCRIPTION OF THE GOODS. KCOOPER BRANDS, INC.'S LIABILITY FOR ITS ALLEGED BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, PRODUCT LIABILITY, RECALL LIABILITY, NEGLIGENCE OR OTHER CAUSE OR THEORY IS LIMITED TO REPLACEMENT OF DEFECTIVE GOODS OR REFUND OF THE PURCHASE PRICE UPON TIMELY RECEIPT OF NOTICE REGARDLESS OF WHETHER KCOOPER BRANDS, INC. HAS OR HAS NOT BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR OTHER DAMAGES. UNDER NO CIRCUMSTANCES WILL KCOOPER BRANDS, INC. BE RESPONSIBLE FOR LOSS OF USE, LOST PROFITS, INTERRUPTION OF BUSINESS, COVER OR FOR ANY OTHER SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES REGARDLESS OF CAUSE. THIS LIMITED WARRANTY IS VOID WITH REGARD TO ANY GOODS ALTERED, MISUSED OR SUBJECT TO NEGLECT OR ACCIDENT. KCOOPER BRANDS, INC. SHALL NOT BE RESPONSIBLE TO PURCHASER UNDER THIS LIMITED WARRANTY FOR FIT OR OTHER COMPATIBILITY PROBLEMS WHEN THE GOODS ARE USED WITH PRODUCTS OF ANOTHER MANUFACTURER. ALL ORAL AND WRITTEN ADVICE PROVIDED BY KCOOPER BRANDS, INC. RELATING TO THE GOODS IS SUBJECT TO THE FOREGOING DISCLAIMER OF WARRANTIES AND LIMITATION OF DAMAGES PROVISION.
PURCHASER SHALL HOLD HARMLESS AND INDEMNIFY KCOOPER BRANDS, INC. FROM AND AGAINST ANY EXPENSES, CLAIMS OR CAUSES OF ACTION (INCLUDING KCOOPER BRANDS, INC.'s ATTORNEY’S FEES AND EXPENSES) AS A RESULT OF (i) DEATH, BODILY INJURY, PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT OF PURCHASER’S MARKETING, ADVERTISING, SALE, DISTRIBUTION OR USE OF THE GOODS (INCLUDING ANY CLAIMS OR CAUSES OF ACTION BASED ON ITEMS FOR WHICH OR WITH WHICH THE GOODS ARE USED) EXCEPT TO THE EXTENT CAUSED SOLELY BY KCOOPER BRANDS, INC.'S GROSS NEGLIGENCE; (ii) PURCHASER’S VIOLATION OF ANY APPLICABLE LAW OR STANDARD IN THE MARKETING, ADVERTISING, LABELING (OR IMPROPER OR INADEQUATE LABELING), SALE, DISTRIBUTION OR USE OF THE GOODS OR THE ITEMS WITH WHICH OR FOR WHICH THE GOODS ARE USED; (iii) ANY ALLEGED PATENT, TRADEMARK, TRADE DRESS, COPYRIGHT, TRADE SECRET OR OTHER IP INFRINGEMENT BASED ON PURCHASER’S SAMPLES, MOCK-UPS OR SPECIFICATIONS; (iv) ANY ILLEGAL, FALSE, MISLEADING OR DECEPTIVE INFORMATION THAT PURCHASER INSTRUCTS KCOOPER BRANDS, INC. TO PRINT ON OR OTHERWISE APPLY TO OR USE WITH THE GOODS; AND (v) ANY ENVIRONMENTAL POLLUTION, CONTAMINATION OR DAMAGE (INCLUDING, IN ADDITION TO THE ABOVE, FINES AND PENALTIES TO THE EXTENT ALLOWED BY LAW, CLEAN-UP AND OTHER REMEDIAL OR CONTAINMENT COSTS AND LEGAL, TECHNICAL OR SIMILAR FEES AND EXPENSES) ARISING OUT OF SUCH POLLUTION, CONTAMINATION OR DAMAGE TO THE ENVIRONMENT OR NATURAL RESOURCES OCCURRING IN CONNECTION WITH PURCHASER’S USE OF ANY GOODS REGARDLESS OF CAUSE, INCLUDING PURCHASER’S NEGLIGENCE, STRICT LIABILITY, OR OTHER ACT OR OMISSION . PURCHASER WARRANTS THAT CUSTOM GOODS ORDERED BASED ON PURCHASER’S SAMPLES, MOCKUPS OR SPECIFICATIONS DO NOT INFRINGE ANY TRADE DRESS, COPYRIGHT, TRADE SECRET OR OTHER IP RIGHTS OF OTHERS OR ANY LETTERS PATENT GRANTED BY ANY COUNTRY. KCOOPER BRANDS, INC. RESERVES THE RIGHT (BUT SHALL HAVE NO DUTY) TO DISCONTINUE DELIVERIES OF ANY GOODS, THE MANUFACTURE, SALE OR USE OF WHICH MIGHT: (i) INFRINGE ANY TRADE DRESS, COPYRIGHT, TRADE SECRET, PATENT OR OTHER IP RIGHTS; or (ii) VIOLATE ANY FOREIGN, FEDERAL, STATE OR LOCAL LAW, REGULATION OR ORDER.
10. THERMOPLASTIC CHARACTERISTICS.
To obtain expected benefits and service from thermoplastics (including Goods) and minimize potential complications, AND PRIOR TO THE ISSUANCE OF A P.O., Purchaser must: (i) be familiar with and allow for the working characteristics of thermoplastics and print on thermoplastics; (ii) determine and allow for the impact of environmental conditions and chemical substances on the appearance, durability, stiffness, and other attributes and uses of the Goods, as well as the effects of permeability, transmission rates and other compatibility factors and the effects of contact or use with hydrocarbons, oxidizing acids and essential oils; (iii) determine and implement proper handling and storage techniques; and (iv) establish and implement suitable environmental and time parameters for (a) exposure to sunlight in particular and weather in general; (b) exposure to artificial light; and (c) temperature, pressure, vacuum, and other ambient factors as they may vary during or as the result of transportation, storage, stacking, handling and filling. IT IS RECOMMENDED THAT DOUBLE-FACED PALLETS BE USED. IT IS PURCHASER’S RESPONSIBILITY TO: (1) EVALUATE COMPATIBILITY WITH FILLED OR FINISHED PRODUCT; (2) EVALUATE COMPATIBILITY WITH ANY OTHER MANUFACTURER’S PRODUCTS WITH WHICH THE GOODS ARE INTENDED TO FIT OR BE USED; (3) DETERMINE MAXIMUM LOAD CAPABILITY WITH FILLED PRODUCT BEFORE STACKING; AND (4) CONSIDER THE EFFECT OF REAL WORLD USE AND ENVIRONMENTAL FACTORS.
11. TECHNICAL ADVICE.
At Purchaser’s request, KCooper Brands, Inc. may furnish such technical assistance, information and safety advice as it has available with respect to the use of the Goods. KCooper Brands, Inc. assumes no obligation or liability for any technical assistance, information or safety advice it furnishes concerning the Goods, the parties agreeing (unless otherwise specifically agreed to in writing by KCooper Brands, Inc.), that all such advice is given without charge or warranty and accepted by Purchaser at Purchaser’s risk and Purchaser assumes sole responsibility for the results obtained in reliance thereon.
12. FORCE MAJEURE.
If KCooper Brands, Inc. is prevented from or delayed in performing by a force majeure event, it shall not be liable or responsible for its failure to timely perform, but shall perform as soon as possible after the force majeure event ceases. References to force majeure shall refer to circumstances that are beyond KCooper Brands, Inc.'s control and that affect production or transportation, including acts of God, acts of war, acts of government, terrorism, riots, labor strikes, labor lockouts, interruption in telecommunication transmission or product transportation, materials shortages or delays or sudden severe increases in materials prices or other costs, accident, fire, water damage, flood, earthquake, windstorm, other natural disasters and catastrophes, and compliance by KCooper Brands, Inc. with any order, action, direction or request of any governmental officer, department, agency, authority, or committee thereof. A force majeure event shall also include Supplier’s suspension of operation or closure of a facility that produces Goods because the operation of, or Goods from, that facility fails to comply with, or becomes uneconomical because of compliance with, any applicable law or governmental regulation, order, decree or request. This provision is intended to be interpreted to expand rather than limit the application of the Uniform Commercial Code (“UCC”) section 2-615, as adopted by the law of the applicable jurisdiction set forth in the governing law provision in the Agreement or if there is no such agreement or provision, as adopted in the State of Colorado.
A. The Agreement shall be interpreted under Colorado law without regard to choice of law principles and shall not be governed in whole or in part by the United Nations Convention on Contracts for the International Sale of Goods; as allowed by that convention, the parties specifically disclaim its application. Purchaser consents to jurisdiction of state and federal courts in Colorado and venue of Arapahoe County to resolve any dispute between the parties; provided, however, that KCooper Brands, Inc. may institute an action for equitable relief in a different jurisdiction at the site of an alleged wrong. For all matters not covered by the terms of the Agreement, the UCC shall control. Each party waives any right to trial by jury in enforcement of this Agreement. Until receiving payment in full, KCooper Brands, Inc. shall have all rights of a seller under the UCC in addition to those in the Agreement and otherwise, including rights of a secured party (under article 9 of the UCC) and rights of reclamation (under the UCC and the U.S. Bankruptcy Code). All remedies are intended to be cumulative and in addition to all other remedies available at law and in equity. To the extent it may apply, the limitation period in Colorado Code 26-1-2-725 is reduced to one (1) year. The parties shall not contest the validity or enforceability of any electronic transmissions based on the provisions of the statute of frauds; such transmissions will be governed by the Colorado Uniform Electronic Transactions Act.
B. Purchaser will be responsible to comply with all applicable laws, including the export control laws in effect in the United States, Canada and Europe and applicable regulations which may be issued from time to time concerning the exporting, importing and re-exporting of Goods. Purchaser acknowledges that shipments of Goods are subject to the export laws of the United States, including United States Department of State and Department of Commerce regulations (including but not limited to the U.S. Arms Export Control Act (22 USC 2778 et seq.), the International Traffic in Arms Regulations (22 CFR 120-130), the Export Administration Regulations (15 CFR Parts 730-774) and the International Emergency Economic Powers Act (50 U.S.C. 1701 – 1706) and that a license from the Department of State or the Department of Commerce may be required prior to export of Goods. Purchaser agrees to comply with all applicable licensing requirements. Purchaser also agrees to comply with the United States Foreign Corrupt Practices Act, and shall indemnify KCooper Brands, Inc. for any failure to comply or violation of such act. Purchaser shall, at its sole cost and expense, obtain and maintain in effect all permits, licenses and other consents necessary to the conduct of activities under the Agreement. Additionally, for U.S. export licensing purposes, Purchaser shall provide to KCooper Brands, Inc. any and all documentation required to complete any and all applicable United States of America State Department or Commerce Department license applications. It will further be Purchaser’s responsibility to inform KCooper Brands, Inc. of the applicability of and compliance with testing and legal requirements (including local laws) with respect to any P.O.
C. Purchaser will be responsible to provide notice to KCooper Brands, Inc. if Purchaser intends that any Goods will be “Children’s Products” as defined by the federal Consumer Product Safety Act of 1972 (15USC2051 et seq.), as amended, including the Consumer Product Safety Improvement Act of 2008 (“CPSIA”), and will provide notice to KCooper Brands, Inc. if any Goods are subject to CPSIA but not obvious by the nature or appearance of the Goods as ordered. If Purchaser fails to provide such notice and fails to comply with CPSIA with respect to any Goods that are: (i) not obvious by their nature or appearance as subject to CPSIA or (ii) modified by Purchaser so as to be subject to CPSIA, Purchaser will indemnify KCooper Brands, Inc. as provided in Section 9 above for such failure. Products that are subject to CPSIA can be found at the Consumer Product Safety Commission website: www.cpsc.gov/businfo/reg1.html. Additional information is available at: www.cpsc.gov/ABOUT/Cpsia/faq/103faq.html.
D. GOODS AND SERVICES SOLD HEREUNDER ARE NEITHER FOR USE IN ANY NUCLEAR OR RELATED APPLICATIONS, NOR FOR USE AS COMPONENTS IN LIFE SUPPORT DEVICES OR SYSTEMS INTENDED FOR SURGICAL IMPLANT INTO THE BODY OR INTENDED TO SUPPORT OR SUSTAIN LIFE, WITHOUT KCOOPER BRANDS, INC.'S PRIOR WRITTEN CONSENT. Purchaser accepts the Goods with the foregoing understanding, agrees to communicate the same in writing to any subsequent purchasers or users and to defend, indemnify and hold harmless KCooper Brands, Inc. from any claims, losses, suits, judgments and damages, including incidental and consequential damages, arising from such use, whether the cause of action is based in tort, contract or otherwise, including allegations that KCooper Brands, Inc.'s liability is based on negligence or strict liability.
KCooper Brands, Inc. may terminate the Agreement immediately on Purchaser’s bankruptcy or other insolvency. The Agreement shall be binding upon and inure to the benefit of the parties and their successors and assigns but is non-assignable by Purchaser in the absence of KCooper Brands, Inc.'s express written consent. Nothing contained in the Agreement shall be construed to make the parties partners or joint venturers. Any waiver(s) of Purchaser’s noncompliance with these terms shall not be binding on KCooper Brands, Inc. with respect to any continuing or subsequent noncompliance. KCooper Brands, Inc. reserves the right to display samples of any Goods it produces, decorated or undecorated. To the extent necessary to preserve the parties’ rights, all terms of the Agreement shall survive acceptance of and payment for Goods sold as well as cancellation, termination or expiration of the Agreement, including the provisions of sections 3, 6, 7, 8, 9, 10, 13 and 14 of these terms and conditions. There shall be no third party beneficiaries of the Agreement unless the parties specifically identify such beneficiaries in writing. Section headings are inserted for convenience and shall not add to or detract from the Agreement. The Agreement may be amended or altered only in a written document executed by both parties. KCooper Brands, Inc. shall not be contractually bound to any provision except as agreed in a writing executed by an authorized officer of KCooper Brands, Inc. The invalidity of any provision of the Agreement shall not affect the force or validity of the remaining provisions. In the event that KCooper Brands, Inc. has possession of a mold or other equipment owned by Purchaser, KCooper Brands, Inc.'s maintenance and repair obligations shall be limited to those to which it has agreed in writing. The prevailing party in any litigation to enforce the Agreement shall be entitled to recover its reasonable attorneys’ fees and expenses.
Website Terms and Conditions
Welcome to the web site operated by KCooper Brands, Inc. KCooper Brands, Inc.’s web site is located at KCooperBrands.com (“Site”).
This page explains the terms and conditions (“Terms and Conditions”) under which you (the “User”) may use the Site. By accessing, browsing and/or using the Site, the User acknowledges that User has read, understood and agreed to be bound by these Terms and Conditions. Use of the Site constitutes a binding agreement between the User and KCooper Brands, Inc.
If you do not accept these terms and conditions, do not use this site.
User should visit this page periodically to review the Terms and Conditions. User acknowledges and agrees that the Terms and Conditions currently in effect as of this date may be modified or amended by KCooper Brands, Inc. from time to time. User’s continued use of the Site after a modification or amendment shall constitute acceptance and agreement to the modified Terms and Conditions. KCooper Brands, Inc. may terminate this Site at any time. In addition, KCooper Brands, Inc. reserves the right to change the format, organization, and content of the Site, at anytime, without notice.
Any claim relating to, and use of, the Site and the materials contained on the Site are governed by and construed in accordance with the laws of the state of Colorado (regardless of the laws that might be applicable under principles of conflicts of law). User irrevocably consents to the exclusive jurisdiction and venue of the Colorado District Court of Denver, Colorado in all disputes arising out of or relating to these Terms and Conditions or the use of the Site.
The Site is controlled and operated by KCooper Brands, Inc. from its offices within the United States. KCooper Brands, Inc. makes no representation that the contents of the Site are appropriate or available for use in other locations outside the United States. Access to the Site is prohibited in territories where the contents of the Site are illegal.
3. REGISTRATION / USER’S ACCOUNT.
To access certain features of the Site, User will be required to register an account (“Account”) with KCooper Brands, Inc. on the form provided on the Site (“Registration”). User agrees to provide true, accurate, current and complete information during Registration and to maintain and promptly update the information User provides to keep it true, accurate, current and complete. User agrees not to: (i) select a username that, to User’s knowledge, is already used by another person/entity; (ii) use a username in which another person/entity has rights without such person’s/entity’s authorization; or (iii) use a username or password that KCooper Brands, Inc. in its sole discretion, deems offensive or inappropriate. It is User’s responsibility to maintain the confidentiality of its password and User agrees to accept responsibility for all activities that occur under its Account. User may not transfer, assign or sell its Account to any third party. KCooper Brands, Inc. will have the right to rely upon any information received from any person/entity using User’s username and password and KCooper Brands, Inc. will incur no liability arising out of such reliance.
KCooper Brands, Inc. has no obligation to verify the authenticity of any Registration information. IF USER PROVIDES ANY INFORMATION THAT IS FALSE, MISLEADING, INACCURATE, NOT CURRENT OR INCOMPLETE DURING REGISTRATION OR OTHERWISE, KCOOPER BRANDS, INC. HAS THE RIGHT TO SUSPEND OR TERMINATE USER’S ACCOUNT AND REFUSE ANY AND ALL CURRENT OR FUTURE USE OF THE SITE (OR ANY PORTION THEREOF). ANY ACTIVITIES THAT ARE ILLEGALLY CARRIED ON WITHIN THE SITE WILL BE REPORTED TO THE APPROPRIATE FEDERAL, STATE OR LOCAL AUTHORITIES.
For questions related to updating or changing User’s Account information, please send an e-mail to CTrujillo@KCooperBrands.com or contact us at KCooper Brands, Inc., 6155 S Main St., Suite 215, Aurora, CO 80016.
4. LICENSE TO SUBMITTED CONTENT.
By posting messages or otherwise submitting any opinions, ideas, suggestions, and other feedback to KCooper Brands, Inc. through the Site or otherwise, User is granting KCooper Brands, Inc. a cost free, royalty-free, perpetual, non-exclusive, unrestricted, worldwide license to use the submitted content without restriction, including, without limitation, the right to copy, store, reproduce, modify, adapt, display, translate, transmit, perform, publish, create derivative works from, and to sublicense these rights to third parties. The foregoing license shall include the right to exploit any property rights in such submitted content, including but not limited to rights under copyright, trademark, service mark or patent laws under any relevant jurisdiction. Nothing contained in these Terms and Conditions shall limit or otherwise affect these rights.
5. USE RESTRICTIONS.
All content included on the Site, such as text, graphics, button icons, images, and software (“Material”), is the exclusive property of KCooper Brands, Inc. or others, and protected by U.S. and international copyright laws. KCooper Brands, Inc. authorizes the User to view and download the Material of this Site only for non-commercial use, provided that the User retains all copyright and other proprietary notices contained in the original Material on any copies of the Material. The User may not modify the Material on this Site in any way or reproduce or publicly display, perform, or distribute or otherwise use the Material for any public or commercial purpose. For purposes of these Terms and Conditions, any use of the Material on any other web site or networked computer environment for any purpose is prohibited.
The trademarks, service marks and logos (“Trademarks”) used and displayed on the Site are registered and unregistered Trademarks of KCooper Brands, Inc. and others. Nothing on the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed on the Site, without the written permission of the Trademark owner.
6. ADDITIONAL USE LIMITATIONS.
User is prohibited from violating or attempting to violate any security features of the Site, including, without limitation, (i) accessing content or data not intended for User, or logging onto a server or account that User is not authorized to access; (ii) attempting to probe, scan, or test the vulnerability of the Site, or any associated system or network, or to breach security or authentication measures without proper authorization; (iii) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to the Site, overloading, “flooding”, “spamming”, “mail bombing”, or “crashing”; (iv) using the Site to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (v) using any automatic or manual process to monitor or copy any portion of the Site without KCooper Brands, Inc.’s prior written permission; (vi) introducing any viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; or (vii) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by KCooper Brands, Inc. in providing the Site. Any violation of system or network security may subject User to civil and/or criminal liability.
Any conduct by User that, in KCooper Brands, Inc.’s opinion, restricts or inhibits any other user from using or enjoying the Site will not be permitted. User acknowledges and agrees that KCooper Brands, Inc., in its sole discretion, may at any time for any reason or no reason suspend, terminate, or restrict User’s access to or use of the Site, or any portion thereof, with or without notice, unless otherwise prohibited by applicable law.
User shall not post or transmit through the Site any information, data, or material (collectively, “Posted Materials”) which violates or infringes, in any way, the rights of others, or which is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, harassing, or otherwise objectionable to a reasonable person. Further, User shall not post or transmit through the Site any information, data, or material which encourages conduct that would constitute a criminal offense, give rise to liability or otherwise violate any law or administrative ruling or guidelines, or is in violation of these Terms and Conditions. User hereby acknowledges and agrees that User is solely responsible for the Posted Materials User posts to or transmits through the Site, including, without limitation, the creation, dissemination, publication and/or transmission of such Posted Materials. KCooper Brands, Inc. shall have no liability of any kind whatsoever to User or any third party arising from or related to User’s Posted Materials, including, without limitation, the creation, dissemination, publication and/or transmission of User’s Posted Materials through the Site or otherwise.
KCooper Brands, Inc. respects the intellectual property of others, and KCooper Brands, Inc. asks User to do the same. If User believes that User’s work has been copied in a way that constitutes copyright infringement or that there is infringing material available on or through the Site, please provide our Copyright Agent the following information:
An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
A description of the copyrighted work that User claims has been infringed;
A description of where the material that User claims is infringing is located on the Site;
User’s address, telephone number, and email address;
Statement by User that User has a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
A statement by User, made under penalty of perjury, that the above information in User’s Notice is accurate and that User is the copyright owner or authorized to act on the copyright owner’s behalf.
Our Copyright Agent for Notice of Claims of Copyright Infringement on the Site can be reached by mailing a letter to the Copyright Agent at KCooper Brands, Inc., 6155 S Main St., Suite 215, Aurora, CO 80016.
THE SITE IS PROVIDED ON AN “AS IS” BASIS, WITH ALL FAULTS. KCOOPER BRANDS, INC. MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES RIGHTS, AND THE WARRANTY OF FITNESS FOR PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCES WILL KCOOPER BRANDS, INC., ITS SUPPLIERS OR OTHER THIRD PARTIES REFERENCED ON, OR INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE BE LIABLE FOR ANY DIRECT, INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, COSTS AND EXPENSES OF ANY TYPE INCURRED, LOST PROFITS, LOST DATA OR PROGRAMS, AND BUSINESS INTERRUPTION) ARISING OUT OF USER’S ACCESS TO, USE OF, INABILITY TO USE OR THE RESULTS OF USE OF THE SITE, ANY WEBSITES LINKED TO THE SITE, OR ANY MATERIALS AND/OR USER CONTENT CONTAINED ON ANY OR ALL SUCH SITES (INCLUDING BUT NOT LIMITED TO DAMAGES CAUSED BY OR RESULTING FROM A FAILURE OF PERFORMANCE, ERROR, OMISSION, LINKING TO OTHER WEBSITES, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, OR DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY COMPUTER OR SYSTEM), WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY AND WHETHER OR NOT KCOOPER BRANDS, INC. WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, IF USER RESIDES OUTSIDE THE UNITED STATES, INFORMATION PUBLISHED AT THIS SITE MAY REFER TO PRODUCTS, PROGRAMS OR SERVICES THAT ARE NOT AVAILABLE IN USER’S COUNTRY.
ANY OPINIONS, STATEMENTS, SERVICES, OFFERS OR OTHER INFORMATION OR CONTENT EXPRESSED OR MADE AVAILABLE IN THE SITE BY ANY THIRD PARTY ARE THOSE OF THE RESPECTIVE AUTHOR(S) OR DISTRIBUTOR(S) AND NOT OF KCOOPER BRANDS, INC. USER ACKNOWLEDGES AND AGREES THAT KCOOPER BRANDS, INC. IS NOT OBLIGATED TO AND WILL NOT AS A STANDARD PRACTICE MONITOR AND/OR POLICE ANY ITEMS OR MATERIALS THAT ARE POSTED ON THE SITE BY THIRD PARTIES. USER FURTHER ACKNOWLEDGES AND AGREES THAT KCOOPER BRANDS, INC. SHALL HAVE NO RESPONSIBILITY TO USER, OR TO ANY THIRD PARTY, FOR OR HAVE ANY OBLIGATION (INCLUDING WITHOUT LIMITATION OBLIGATIONS OF CONFIDENTIALITY) WITH RESPECT TO ITEMS THAT ARE POSTED ON THE SITE BY USER OR ANY THIRD PARTIES.
The Site contains links to third party web sites. These links are provided solely as a convenience to User and not as an endorsement by KCooper Brands, Inc. of the content on such third-party web sites. KCooper Brands, Inc. is not responsible for the content of linked third-party sites and does not make any representations regarding the content or accuracy of information on such third-party sites. If User accesses any of the third-party web sites linked to this Site, User does so entirely at his or her own risk.
USER HEREBY RELEASES AND FOREVER DISCHARGES KCOOPER BRANDS, INC. AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM ANY AND ALL MANNER OF LIABILITY, CLAIMS, COUNTERCLAIMS, DEMANDS, SETOFFS, DAMAGES, OR CAUSES OF ACTION, WHICH USER NOW HAS OR WHICH MAY HEREAFTER ACCRUE, WHETHER HERETOFORE ASSERTED OR UNASSERTED, KNOWN OR UNKNOWN, ARISING OUT OF, OR IN ANY WAY RELATING TO THE SITE AND/OR THE USE OF THE SITE BY THE USER, SPECIFICALLY INCLUDING BUT NOT LIMITED TO ANY CLAIMS BASED IN WHOLE OR IN PART UPON THE ALLEGED NEGLIGENCE OF KCOOPER BRANDS, INC., IN OPERATING THE SITE OR OTHERWISE.
USER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS KCOOPER BRANDS, INC., AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL LOSSES, COSTS, LIABILITIES, OBLIGATIONS, DAMAGES, DEFICIENCIES, EXPENSES, ACTIONS, SUITS, PROCEEDINGS, DEMANDS, ASSESSMENTS AND/OR JUDGMENTS, INCLUDING REASONABLE ATTORNEYS’ FEES, THAT ARE CAUSED BY, OR RESULT OR ARISE FROM (I) ANY BREACH BY THE USER OF ANY OF THESE TERMS AND CONDITIONS; (II) USER’S FORUM POSTINGS; (III) COMMUNICATIONS BETWEEN USER, OTHER USERS, AND/OR OTHER THIRD PARTIES; AND (IV) INTELLECTUAL PROPERTY INFRINGEMENT VIOLATIONS AND VIOLATION OF LAWS BY USER.
10. USER INFORMATION.
KCooper Brands, Inc. makes no warranties or representations about the security of the information User provides and disclaims all liability associated with the unauthorized disclosure or use of User’s information by a third party. USER HEREBY RELEASES, FOREVER DISCHARGES, AND HOLDS HARMLESS KCOOPER BRANDS, INC. AND ITS OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, FROM AND AGAINST ANY AND ALL MANNER OF LIABILITY, CLAIMS, COUNTERCLAIMS, DEMANDS, SETOFFS, DAMAGES, OR CAUSES OF ACTION, WHICH YOU NOW HAVE OR WHICH MAY HEREAFTER ACCRUE, WHETHER HERETOFORE ASSERTED OR UNASSERTED, KNOWN OR UNKNOWN, ARISING OUT OF, OR IN ANY WAY RELATING TO THE UNAUTHORIZED DISCLOSURE OR USE OF USER’S INFORMATION OR ANY CONSEQUENCES RESULTING THEREFROM.
Anyone linking to the Site must comply with all applicable laws. A site that links to KCooper Brands, Inc.’s Site:
may link to, but not replicate, content on this Site;
shall not create a browser or border environment around content on this Site;
shall not imply that KCooper Brands, Inc. is endorsing it or its products;
shall not misrepresent its relationship with KCooper Brands, Inc.;
shall not present false information about KCooper Brands, Inc.’s products or services;
shall not use KCooper Brands, Inc.’s trademarks without permission;
shall not contain content that could be construed as distasteful, offensive or controversial, and should contain only content that is appropriate for all age groups; and
shall comply with any other requirements of KCooper Brands, Inc. for linking to the Site.
User’s correspondence or business dealings with advertisers found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between the User and such advertiser. User hereby releases KCooper Brands, Inc. of, and agrees that KCooper Brands, Inc. shall not be responsible or liable for any loss, damage or claim (including negligence) of any sort incurred as the result of any such dealings or as the result of the presence of advertisers on the Site.
13. GENERAL PROVISIONS.
If any provision of these Terms and Conditions is declared by a court to be invalid, illegal, or unenforceable, such provision shall be deemed severable from this agreement and the other provisions shall remain in full force and effect. The failure of KCooper Brands, Inc. to exercise or enforce any right or provision of these Terms and Conditions shall not constitute a waiver of such right or provision. These Terms and Conditions constitute the entire agreement between KCooper Brands, Inc. and User with respect to User’s use of the Site, and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral with respect to this subject matter. No agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by these Terms and Conditions.