Terms & Conditions
TERMS AND CONDITIONS
By submission of an executed estimate to Kind Manufacturing (“Order”) you (“Customer”) agree to the following Terms and Conditions.
1. ACCEPTANCE: Customer’s execution of its Order shall constitute an offer to Kind Manufacturing to perform the services and provide the goods pursuant to the express terms of its Order (“Services” and “Goods”, respectively). Kind Manufacturing shall be deemed to have accepted this Order upon Kind Manufacturing’s execution of the Order. Any proposal for additional or different terms or any attempt by Customer to vary in any degree any of the terms is rejected. Any changes to this Order must be approved by the parties in writing.
2. GOODS PRODUCTION DETAILS:
3. GOODS DELIVERY. The standard delivery lead-time for the Goods shall be four (4) weeks after Kind Manufacturing’s acceptance of this Order. All deliveries of the Goods shall be ExWorks Roselle, New Jersey. Title to, and risks of loss of or damage to, the Goods shall be transferred from Kind Manufacturing to Customer upon the delivery to Customer’s carrier.
4. FEES & RETAINER
a. RETAINER: First-time Customers will pay a $5,000 retainer upon Kind Manufacturing’s acceptance of any Order. Such retainer may be applied to contract manufacturing, procurement, or label design services. This retainer is non-refundable. Kind Manufacturing shall bill its services to the retainer. Upon depletion of retainer, Customer shall pay additional fees, if any, upon the presentment of an invoice by Kind Manufacturing.
Customer shall submit all payments by electronic transfer using the following payment details. To receive credit for your payment, email remittance advice to firstname.lastname@example.org. Remittance advice should note the merchant account name, invoice number, amount paid, and date of payment.
6. REMEDIES FOR NON-PAYMENT: If Customer fails to make any payment when due, Kind Manufacturing reserves the right to suspend performance. Customer agrees to pay a charge on all amounts past due at the rate of 1.5% per month (18% per year) or the maximum lawful rate, whichever is less. In the event of non-payment, Customer agrees to pay Kind Manufacturing reasonable attorney fees and costs, if any, incurred by Kind Manufacturing to collect payment, and all applicable interest charges.
7. CANCELLATIONS: Customer may cancel it’s order prior to production. Cancellations must be submitted in writing. Upon cancellation, Customer shall be entitled to a refund of the Purchase Price, less any setup fees and costs incurred by Kind Manufacturing. The return of Components shall be at Customer’s expense, including Kind Manufacturing’s fees to facilitate the return. Refunds shall be delivered to Customer within thirty (30) days following notice of cancellation. THIS ORDER MAY NOT BE CANCELLED AT ANYTIME FOLLOWING THE START OF PRODUCTION. CUSTOMER ACKNOWLEDGES THAT THE GOODS CREATED HEREUNDER ARE MANUFACTURED EXCLUSIVELY FOR CUSTOMER AND, AS SUCH, KIND MANUFACTURING DOES NOT ACCEPT RETURNS.
8. EXCUSABLE DELAYS: Kind Manufacturing shall have no liability if its performance is delayed or prevented by causes beyond its reasonable control, including, without limitation, acts of nature, labor disputes, government priorities, transportation delays, insolvency or other inability to perform by Kind Manufacturing’s vendors, or any other commercial impracticability. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay.
9. CUSTOMER CLAIMS: Claims for any non-conforming Goods must be made by Customer, in writing, within five (5) days of Customer’s receipt of such Goods and must state with particularity all material facts concerning the claim then known to Customer. Failure by Customer to give notice within such five (5) day period shall constitute an unqualified acceptance of such Goods by Customer, and a waiver of any right to reject or revoke acceptance of such Goods.
10. USE AND SAFETY: Kind Manufacturing does not guarantee that the Goods conform to any plans, specifications or intended use. Customer is solely responsible for determining whether the Goods are acceptable for Customer’s intended purpose and end use. KIND MANUFACTURING EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND/OR INDEMNIFICATIONS RELATED TO PRODUCT SAFETY AND/OR INTENDED USE. Customer shall defend, indemnify and hold harmless Kind Manufacturing, and any person acting for or on behalf of Kind Manufacturing, from and against any and all actions, causes of action, suits, proceedings, claims, liabilities, losses, expenses and damages of any kind or character, together with all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses, and all other litigation costs and expenses, interest and penalties) based on an allegation that (i) Customer’s use and/or resale of the Goods conflict with any law; or (ii) the Goods fail to comply with any labeling or product safety law.
11. KIND MANUFACTURING WARRANTIES: Kind Manufacturing warrants that all Goods sold are new and free and clear of any security interests or liens. Customer’s exclusive remedy for breach of such warranties shall be replacement with new Goods or termination of any security interests or liens. Kind Manufacturing MAKES NO OTHER WARRANTIES WRITTEN OR ORAL, EXPRESS, IMPLIED OR BY STATUTE. NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.
12. CUSTOMER’S INTELLECTUAL PROPERTY: Customer represents and warrants that Customer is the sole owner of all right, title and interest in and to the graphic(s), trademark(s) and/or logo(s) delivered to Kind Manufacturing. Kind Manufacturing acknowledges that the Customer Intellectual Property Rights are and shall remain the sole property of Customer, and Customer shall maintain the exclusive right to control the Customer Intellectual Property Rights. Kind Manufacturing shall not use the Customer Intellectual Property Rights in any manner other than as expressly permitted by this Order. Customer shall defend, indemnify and hold harmless Kind Manufacturing, and any person acting for or on behalf of Kind Manufacturing, from and against any and all actions, causes of action, suits, proceedings, claims, liabilities, losses, expenses and damages of any kind or character, together with all costs and expenses (including, without limitation, reasonable attorneys' fees and expenses, and all other litigation costs and expenses, interest and penalties) based on an allegation that the use by Kind Manufacturing of any Customer Intellectual Property Rights that Customer authorized Kind Manufacturing to use pursuant to this Order constitutes an infringement of patents, design rights, copyrights, trademarks or any other intellectual property or proprietary rights owned or controlled by third persons.
13. LIMITATIONS OF LIABILITY:UNLESS APPLICABLE LAW OTHERWISE REQUIRES, KIND MANUFACTURING’S TOTAL LIABILITY TO CUSTOMER RELATING TO OR ARISING OUT OF THIS ORDER IS LIMITED TO THE PURCHASE PRICE OF THIS ORDER. KIND MANUFACTURING SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY SPECIAL, INCIDENTAL, DIRECT, CONSEQUENTIAL OR PENAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, BACK CHARGES, LABOR COSTS, COSTS OF REMOVAL, REPLACEMENT, LOSS OF EFFICIENCY, LOSS OF PROFITS OR REVENUES, LOSS OF USE OF THE GOODS OR ANY ASSOCIATED GOODS, DAMAGE TO ASSOCIATED GOODS, LATENESS OR DELAYS IN DELIVERY, UNAVAILABILITY OF GOODS, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME, OR CLAIMS FROM CUSTOMER OR OTHER PARTIES).
14. GOVERNING LAW: This Order and all disputes related to this Order shall be governed by the laws of the State of New York, without giving effect to its conflict of law rules.
15. MANDATORY ARBITRATION: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules Expedited Procedure, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.