KIRK-RUDY STANDARD TERMS OF SALE[1] 

THESE STANDARD TERMS OF SALE (the "Terms of Sale") are made between Kirk-Rudy, Inc., a Georgia corporation ("Kirk-Rudy") and any individual or entity entering into a transaction for the purchase of Products from Kirk-Rudy ("Purchaser"). These Terms of Sale govern all Kirk-Rudy transactions, including the sale of any Products by Kirk-Rudy.

  1. Certain Definitions. As used in these Terms of Sale, the following terms have the meanings specified below:

"Consumables" shall mean consumable goods and items used in the operation of the Machines that may be manufactured by Kirk-Rudy or a third-party supplier and are offered for sale directly by Kirk-Rudy and through its authorized dealer network.

"Customer" shall mean an individual or entity end user that purchases Products directly from Kirk-Rudy or from an authorized dealer of Kirk-Rudy products.

"Machines" shall mean commercial print, mail, packaging, and radio frequency identification ("RFID") machines manufactured by Kirk-Rudy.

"Parts" shall mean mechanical components that are used in the operation of a Machine and may be identified and sold individually by Kirk-Rudy.

"Products" shall mean the Machines, Parts, and Consumables offered for sale by Kirk-Rudy, including any licensed software used in the operation of such Machines.

"Purchaser" shall have the meaning set forth in the Preamble.

  1. General Terms. Kirk-Rudy offers for sale the Products on the express condition that Purchaser agrees to accept and be bound by the terms and conditions set forth herein.  The use of a purchase order or any other acknowledgment, bid, estimate, confirmation, invoice form, or other document relating to the purchase of Products from Kirk-Rudy is for convenience only and will have no effect on these Terms of Sale, the contractual terms of any sale or purchase of Products, or any other contractual agreement between Kirk-Rudy and Purchaser. Purchaser's receipt of Products or Kirk-Rudy's commencement of the provision of Products hereunder will constitute Purchaser's acceptance of these Terms of Sale. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding on Kirk-Rudy unless in writing and signed by an authorized representative of Kirk-Rudy and Purchaser. Notwithstanding the foregoing, Kirk-Rudy reserves the right to make changes to these Terms of Sale at any time by providing Purchaser with notice of such changes, and such changes shall apply to orders of Products made by Purchaser thereafter. Kirk-Rudy's failure to object to terms contained in any subsequent communication from Purchaser will not be a waiver or modification of the terms set forth herein. Kirk-Rudy reserves the right to reject any order for any reason. Products purchased pursuant to these Terms of Sale may not be sold or transferred to any person or entity for purposes of resale, except by authorized dealers of Kirk-Rudy. Seller reserves the right to take any action it deems necessary to address Purchaser's violation of these Terms of Sale, including, but not limited to, the suspension of Purchaser's ability to purchase Products.

  2. Payment Terms.

(a) Machines- For orders valued under USD $50,000 the new terms will be 50% with the submission of the purchase order and the remaining 50% will be due Net 30 Days from invoice date. For orders valued at USD $50,000 or higher the new terms will be 25% with the submission of the purchase order, 50% prior to scheduling shipment and the remaining 25% will be due Net 30 Days from invoice date. In either case, your purchase order will not be scheduled for production until the initial deposit is received. For orders valued at USD $50,000 or more please be aware that we will not ship any machines until we have received at least 75% of the total order value.

(b) Ink, Parts, Software (standalone), Labor/Service, all Other: Net 30 Days from Invoice date.

(c) Late Payments. Late payments will incur a fee equal to 1.5% of the overdue amount per month or the highest allowable rate under the law, whichever is less. Kirk-Rudy reserves the right to stop delivery of Products in transit and to withhold any further deliveries, in whole or in part, if Purchaser fails to make payment to Seller when due or otherwise fails to perform its obligations under these Terms of Sale or any other agreement with Kirk-Rudy. All shipping dates are approximate only, and Kirk-Rudy will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. In the event of a delay due to any cause beyond Kirk-Rudy's reasonable control, Kirk-Rudy reserves the right to terminate the order or any part of the order so affected, or to reschedule shipment within a reasonable period of time, and Purchaser will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Purchaser's control may be placed in storage by Kirk-Rudy at Purchaser's risk and expense for Purchaser's account. 

(d) Currency. Payments must be made in United States Dollars.

  1. Pricing.

(a) Pricing. Kirk-Rudy maintains a current price list for all current accounts for all Kirk-Rudy Products and shall make such price list available to Purchaser upon request. Kirk-Rudy reserves the sole right to determine the prices it charges Purchaser, including any applicable discounts to be offered to Purchaser. All price quotes from Kirk-Rudy will be valid for thirty (30) days, unless otherwise stated in writing. All purchase orders must indicate the quantity, product identifier, and price for all Products to be purchased. If no price is specified, the price shall be Kirk-Rudy's standard price in effect at the time the Purchase Order is accepted for each Product listed in the Purchase Order. In the event of a conflict between the terms set forth on any purchase order and Kirk-Rudy's then-current price list, the price set forth on Kirk-Rudy's then-current price list shall control, unless Kirk-Rudy agrees to Purchaser's alternate price in a writing, signed by an authorized representative of Kirk-Rudy.

(b) Taxes. The listed prices for the Products exclude all sales, value added, and other taxes and duties imposed with respect to the sale, delivery, or use of any Products. All taxes and duties are to be paid by Purchaser. If the Purchaser intends to claim any tax or duty exemption, Purchaser may be required to provide a resale exemption certificate to Kirk-Rudy upon request.

  1. Delivery.

(a) Domestic Shipments. If Purchaser will receive the Products in the United States, the Products will be shipped free on board ("FOB") Kirk-Rudy's shipping point. Subject to Kirk-Rudy's right to stop delivery of Products in transit as described herein, risk of loss for any Products will pass to Purchaser upon delivery of possession of the Products to Kirk-Rudy's shipping point located in Woodstock, Georgia for loading and transport by the designated carrier. Kirk-Rudy will retain title to the Products until Purchaser has paid for the Products in full. Notwithstanding the foregoing, title to any software incorporated within or forming a part of the Products shall at all times remain with Kirk-Rudy or the licensor thereof.  Kirk-Rudy will have the right, at its election, to make partial shipments of any purchase order to invoice each shipment separately.

(b) International Shipments. If Purchaser will receive Products in any country outside of the United States, the Products will be shipped Free Carrier ("FCA", as defined in IncoTerms® 2020) Kirk-Rudy's shipping point. Subject to Kirk-Rudy's right to stop delivery of Products in transit as described herein, risk of loss for any Products will pass to Purchaser upon delivery of possession of the Products to Kirk-Rudy's shipping point located in Woodstock, Georgia for loading and transport by the designated carrier. Kirk-Rudy will retain title to the Products until Purchaser has paid for the Products in full. Notwithstanding the foregoing, title to any software incorporated within or forming a part of the Products shall at all times remain with Kirk-Rudy or the licensor thereof.  Kirk-Rudy will have the right, at its election, to make partial shipments of any purchase order to invoice each shipment separately.

(c) Shipping Timeframes. Kirk-Rudy undertakes during the term of these Terms of Sale to use commercially reasonable efforts to supply the Products to Purchaser to meet Purchaser's requirements subject to Kirk-Rudy's production schedules and orders accepted from Kirk-Rudy's other customers. Kirk-Rudy encourages Purchaser to inquire about current delivery estimates at the time of submitting a purchase order, provided, that any projected delivery time frame from Kirk-Rudy is an estimate and should not be considered a binding commitment to provide Purchaser with the Products within such time frame. Purchaser acknowledges that Kirk-Rudy shall have no liability in connection with any loss or claim in connection with any projected delivery time frame provided by Kirk-Rudy.

  1. Limited Warranty.

(a) Limited Warranty. The following sets forth the limited warranty ("Limited Warranty") provided by Kirk-Rudy with respect to all Machines and Parts sold by Kirk-Rudy, except for inkjet printheads and any additional Products or categories of Products listed on Exhibit A. Under the Limited Warranty, Kirk-Rudy warrants that all Machines and Parts sold by Kirk-Rudy will operate or perform substantially in conformance with Kirk-Rudy's published specifications and be free from defects in material and workmanship, when subjected to normal, proper, and intended storage and usage by properly trained personnel, for 90 days from shipment of the Machine by Kirk-Rudy to Purchaser (the "Warranty Period"). During the Warranty Period, Kirk-Rudy, at its sole option, will (i) repair or replace any defective Machines and Parts such that the Machines and Parts operate in substantial conformance with Kirk-Rudy's published specifications or (ii) refund Purchaser the price Purchaser paid for such Machine or Part covered under the Limited Warranty (taking into account any refunds, discounts, or credits Purchaser received). The Warranty Period shall only cover the time from the purchase of the original Product and shall not be reset or extended to cover any repaired or replacement Products. If Kirk-Rudy provides replacement Products to fulfill this warranty, such Products may be new or refurbished, at Kirk-Rudy's sole discretion. Kirk-Rudy's obligations under this Limited Warranty are subject to Purchaser's prompt notice to Kirk-Rudy in writing upon the discovery of any defect, which shall include the product model and serial number if available and details of the warranty claim, and reasonable cooperation with any instructions of Kirk-Rudy.

(b) Limited Warranty for Inkjet Printheads. For inkjet printheads, Kirk-Rudy offers a six (6) month limited warranty for damage to the printhead resulting from electrical failure and will repair, replace, or refund such inkjet printheads (the "Inkjet Printhead Limited Warranty"). Kirk-Rudy does not offer any warranty for physical damage or clogged printheads, which result from improper maintenance, misuse or storage. Kirk-Rudy will provide an initial supply of approved materials for maintenance of all inkjet printheads and will provide documentation and instructions for proper maintenance. The Purchaser or Customer is responsible for complying with all instructions to avoid damage or clogs to the printheads.

(c) Non-Application of Warranty. In no event shall Kirk-Rudy have any obligation to fulfill a warranty claim for any Products as a result of (i) normal wear and tear, (ii) accident, disaster, or force majeure event, (iii) misuse, fault or negligence of or by Purchaser or any end user customer of Purchaser, (iv) use of any Product in a manner for which it was not designed, (v) events or elements unrelated to the operation of the Product, including power failure, electrical power surge, or third-party interference with Purchaser or a Customer's network, (vi) cosmetic defects, (vii) failure to store, handle, or transport the Products in accordance with Kirk-Rudy's specifications or applicable laws, (viii) use of the Products in any manner outside of Kirk-Rudy's published instructions, (ix) use of the Products in combination with equipment, software, or supplies not provided by Seller or approved by Seller for use in Seller's Products, or (x) use beyond the recommended limits for use. This Limited Warranty only applies to Machines and Parts sold by Kirk-Rudy and shall not apply to any Consumables.

(d) Warranty Cannot be Transferred. Kirk-Rudy will only fulfill warranty claims for Products purchased directly from Kirk-Rudy or directly from an authorized dealer of Kirk-Rudy Products. Kirk-Rudy may require documentation, in its sole discretion, supporting a proof of purchase and application of the warranty before fulfilling any warranty claim. This Limited Warranty does not transfer to any subsequent purchasers or on the resale of Kirk-Rudy Machines from a Customer and may not be transferred or assigned by a Customer. Purchaser may transfer this Limited Warranty only if it is an authorized dealer of Kirk-Rudy and may only transfer the Limited Warranty to a Customer who is the initial buyer of such Product. It is the responsibility of Purchaser or Purchaser's end user to cooperate fully with any requests of Kirk-Rudy in connection with a warranty claim. Failure to timely respond to requests of Kirk-Rudy that materially impact Kirk-Rudy's ability to assess and respond to a warranty claim will result in such warranty claim being void.

(e) Third-Party Products. Notwithstanding the foregoing, Products licensed, sold, or otherwise provided by Kirk-Rudy that are obtained from or manufactured by an original manufacturer or third-party supplier other than Kirk-Rudy are not warranted by Kirk-Rudy and Kirk-Rudy disclaims all warranties associated with the accuracy of any original manufacturer or third-party supplier product information, but Kirk-Rudy agrees to assign to Purchaser any warranty rights in such Product that Kirk-Rudy may have from the original manufacturer or third-party supplier to the extent assignment is permitted by the original manufacturer or third-party supplier.

(f) IMMEDIATE VOIDING OF WARRANTY. ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN KIRK-RUDY OR AN AUTHORIZED DEALER OF KIRK-RUDY WITHOUT KIRK-RUDY'S PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS OR CONSUMABLES NOT SUPPLIED BY KIRK-RUDY, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.

(g) DISCLAIMER OF OTHER WARRANTIES. KIRK-RUDY'S OBLIGATIONS TO REPAIR, REPLACE, OR REFUND PURCHASER SHALL BE THE SOLE REMEDY OF PURCHASER IN THE EVENT OF A DEFECTIVE PRODUCT. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, KIRK-RUDY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW. KIRK-RUDY DOES NOT WARRANT THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.

(h) These Terms of Sale contain the entire Limited Warranty given by Kirk-Rudy in respect of the Products. Nothing in Kirk-Rudy's product literature, marketing materials, advertisements and technical specifications expand or enlarge the scope of this Limited Warranty. There are no terms, promises, conditions or warranties regarding the Products other than those expressly contained herein. Kirk-Rudy specifically does not authorize any person, including, but not limited to, any authorized dealer or other contractor, agent, representative, or employee of Kirk-Rudy, to extend the time, scope, terms or conditions of this Limited Warranty or to create or assume for Kirk-Rudy any other obligation or liability with respect to the Products or other products designed, manufactured or sold by Kirk-Rudy. All terms of this Limited Warranty are contractual and not mere recitals, and constitute material terms of this Limited Warranty. It is agreed and acknowledged that the provisions of this Limited Warranty allocate the risks between Kirk-Rudy and the Purchaser or Customer, that Kirk-Rudy's pricing reflects this allocation of risk, and but for this allocation and limitation of liability, Kirk-Rudy would not have entered into this Limited Warranty.

  1. Warranty Process.

(a) With five (5) business days of delivery, the Purchase or Customer, as may be applicable, shall inspect any Products received for conformity and visible defects. The Purchaser or Customer shall give Kirk-Rudy immediate written, specific and detailed notice of any non-conformities or defects regarding the Product. Upon receipt of the written notice of claim, Kirk-Rudy shall have the right (but not the obligation) to inspect the Product. In the event a defect covered by this Limited Warranty is discovered, Kirk-Rudy will, at Kirk-Rudy's discretion, repair or replace the covered  Product or any covered component of such Product or refund the purchase price paid by Purchaser for such Product.

(b) In the event the Purchaser or Customer submits a warranty claim that, in the sole reasonable discretion of Kirk-Rudy, is unfounded, the Customer shall reimburse Kirk-Rudy all reasonable costs incurred by Kirk-Rudy in evaluating the warranty claim (i.e. travel, lodging, expert evaluations, etc.). Kirk-Rudy must approve, in advance and in writing, all repairs or replacements covered under or performed pursuant to this Limited Warranty. Any warranty repairs or service must be performed exclusively by Kirk-Rudy, an authorized contractor of Kirk-Rudy, an authorized dealer of Kirk-Rudy Products, or by another servicing facility pre-approved in writing by Kirk-Rudy. Acceptance of any Limited Warranty claim is not an admission that any Product or any of its component parts are defective. The Purchaser or Customer forfeits any rights it may have under this Limited Warranty if the Purchaser or Customer does not follow the procedure described herein. The Limited Warranty Product shall be Customer's or Purchaser's sole and exclusive remedy for any claims with regards to the Products or these Terms of Sale.

  1. Product Acceptance.

(a) Upon delivery of Products, the Purchaser or end user has a ten (10)-day window to inspect the Products to identify any discrepancies in the type or quantity of Products delivered. If any discrepancies are found, Purchaser or end user      has the right to reject the Products by sending a detailed written notice, including relevant photographic or video evidence, to Kirk-Rudy outlining such discrepancies. Kirk-Rudy reserves the right to request any additional information required to evaluate Purchaser's claim and Purchaser shall be responsible for timely and accurately responding to such requests. Kirk-Rudy will address any verified discrepancies by (i) accepting the return of any incorrectly shipped Product(s) and upon receipt of such Product(s), promptly delivering the correct Product(s) or (ii) by promptly sending the missing items from the order. In the case of an incorrect Product shipment, the Purchaser or Customer must email their written notice to RMA@kirkrudy.com to seek pre-approval and issuance of a Return Material Authorization ("RMA") number prior to returning the Products. All returned Products must be accompanied by an RMA number issued by Kirk-Rudy and should include a written description the relevant discrepancies. Unauthorized returns will not be accepted and no replacement Product(s) will be provided.

(b) Acceptance of the Kirk-Rudy equipment will be considered final under any of the following conditions: (a) upon receiving an acceptance notice from the customer; or (b) if ten (10) days have passed since the delivery and the customer has not provided a rejection notice.

(c) Return shipments must be made at Purchaser's or end user's own expense and must be sent prepaid. The items eligible for return should have been purchased within a strict ten (10) day window from the date of Purchaser's or Customer's RMA request to qualify for consideration. 

(d) Upon receipt, Kirk-Rudy's quality control team will inspect the returned items. Following this evaluation, Kirk-Rudy will determine the eligibility of the items for refund or credit, in Kirk-Rudy's sole discretion. Kindly note that all items returned as a result of incorrect ordering or changes in market preferences will be subject to a non-negotiable twenty-five percent (25%) restocking fee.

  1. Limitation of Liability. KIRK-RUDY SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOST BUSINESS OPPORTUNITIES, DAMAGE TO GOODWILL OR REPUTATION, OR LOSS OF DATA, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF KIRK-RUDY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREWITHIN, THE LIABILITY OF KIRK-RUDY UNDER THESE TERMS OF SALE (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE, BUT EXCLUDING LIABILITY OF KIRK-RUDY FOR BREACH OF WARRANTY (THE SOLE REMEDY FOR WHICH SHALL BE AS PROVIDED UNDER SECTION 7 ABOVE)) SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY PURCHASER FOR THE PRODUCT(S) GIVING RISE TO ANY CLAIM IN THE PRECEDING TWELVE (12) MONTH PERIOD.

  2. Unauthorized Use of Third-Party Products or Service Providers. Kirk-Rudy Products are only for use as set forth in accordance with the written specifications and documentation provided by Kirk-Rudy in connection with the Products. Purchasers and Customers should only use Consumables and Parts offered by Kirk-Rudy in the Products. The Products may not function as expected if third-party products not approved for use are incorporated into the Products. Kirk-Rudy Products similarly should not be used, in whole or in part, in any third-party products or machines except as expressly authorized in writing by Kirk-Rudy. Only Kirk-Rudy's qualified service personnel, authorized dealers, and third-party service providers engaged by and approved in writing by Kirk-Rudy are permitted to perform any servicing or repairs to Kirk-Rudy Products. Serious injury or death may result through improper use. Purchaser is responsible for communicating these restrictions to its employees, contractors, agents, and any other personnel who might use or be in a facility where the Products are in use and is responsible for communicating these limitations to any Customer or subsequent purchaser of the Products. Purchaser shall indemnify, defend, and hold Kirk-Rudy and its officers, directors, employees, representatives, successors, and assigns (collectively "Indemnified Parties") harmless from any and all claims, liabilities, losses, damages or expenses (including reasonable attorneys' fees, costs, and expenses) (collectively "Losses") incurred by the Indemnified Parties arising from or alleged to have arisen, directly or indirectly, from any unauthorized or improper use of the Products.

  3. Compliance with U.S. Export Laws. Purchaser acknowledges and understands that the Products may be subject to restrictions upon export from the United States and upon resale after export. Purchaser therefore represents and warrants that it shall comply fully with all relevant regulations of the U.S. Department of Commerce, with the U.S. Export Administration Act, and with any other import, export, and re-export control laws or regulations of the United States or the jurisdiction in which Purchaser or any end user of the Products may be located. Purchaser will fully cooperate with Kirk-Rudy in connection with any official or unofficial audit or inspection related to applicable export or import control laws or regulations and shall fully indemnify and hold Kirk-Rudy harmless from, or in connection with, any violation of this Section by Purchaser or its employees, consultants, agents, or customers.

  4. Force Majeure. Neither Party shall be liable for failure or delay in the performance of its obligations under these Terms of Sale, except for the payment of money, if such failure or delay is due to causes beyond its reasonable control, including natural catastrophes, governmental acts or omissions, labor disputes, civil disturbances, war, riots, fires, floods, inclement weather, pandemics, epidemics, local disease outbreaks, public health emergencies or difficulties in procuring labor or materials. Each Party shall use commercially reasonable efforts to notify the other Party of the occurrence of such an event within five (5) business days of its occurrence and shall use commercially reasonable efforts to seek to mitigate the effects of such an event.

  5. Assignment. Purchaser may not delegate any duties or assign any rights, claims, or obligations under these Terms of Sale. Kirk-Rudy may assign its rights, claims, and obligations under these Terms of Sale, in Kirk-Rudy's sole discretion.

  6. Notice. Any notice required or permitted hereunder or in connection herewith shall be in writing and mailed by registered or certified mail, postage prepaid, return receipt requested, or sent prepaid overnight courier service, and addressed to:

Kirk-Rudy, Inc.

                                             125 Lorraine Parkway

                                             Woodstock, GA 30188

  1. Section Headings; Form and Construction.

(a) The headings of Sections in these Terms of Sale are provided for convenience only and will not affect the construction or interpretation of these Terms of Sale.  All references to "Section" or "Sections" refer to the corresponding Section or Sections of these Terms of Sale.  All words used in these Terms of Sale will be construed to be of such gender or number as the circumstances require.  Unless otherwise expressly provided, the word "including" does not limit the preceding words or terms and shall include the term "including without limitation".  When the term "Company" is used in these Terms of Sale, such term shall also be deemed to include the Company.  For purposes of these Terms of Sale, "Affiliate" means any entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with, the Company.

(b) The English language version of these Terms of Sale is and shall be deemed to be the only version of these Terms of Sale. All communications relating to these Terms of Sale, both formal and informal (including, without limitation, all Notices), shall be in English. If Dealer transmits any information to Kirk-Rudy in any other language, Kirk-Rudy shall be permitted to have such documents translated, and Dealer shall pay all costs and expenses related to any such translation. If Dealer has these Terms of Sale translated for the purpose of submitting it to any local, provincial, or national government or official body, Kirk-Rudy shall have the right to review and correct the translation prior to submission thereof. All hearings related to any dispute concerning these Terms of Sale shall be in English.

  1. Complete Understanding. These Terms of Sale constitute the sole and complete understanding between the Parties with respect to the matters set forth herein and supersedes all contemporaneous statements, promises, understandings or agreements. Kirk-Rudy may update these Terms of Sale upon providing Purchaser written notice thirty (30) days in advance of any such change or modification to the Terms of Sale. No modification to these Terms of Sale will be binding on Kirk-Rudy unless in writing and signed by an authorized officer of Kirk-Rudy.

  2. Governing Law and Jurisdiction.

(a) These Terms of Sale shall be governed by, and construed in accordance with, the internal laws of the state of Georgia, U.S.A., without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded from these Terms of Sale.

(b) If a dispute arises, the Party claiming that such a dispute exists shall provide written notice of the dispute to the other Party and the Parties will seek to resolve the dispute through good faith negotiation for thirty (30) days. If the Parties are unable to resolve the dispute after thirty (30) days, either Party may submit the dispute to the jurisdiction of the federal or state courts located in Cherokee County, Georgia, U.S.A., which shall retain exclusive jurisdiction of such matter. Each of the Parties hereto irrevocably waives, to the fullest extent permitted by law, any objection which it may now or hereafter have to the laying of the venue of any such proceeding brought in such a court and any claim that any such proceeding brought in such a court has been brought in an inconvenient forum.

(c) If the forum selection set forth in paragraph (b) of this Section is not deemed void or otherwise invalidated under applicable law, the Parties agree that any dispute will be settled through binding arbitration administered by the International Center for Dispute Resolution ("ICDR") in accordance with its International Arbitration Rules. The Parties will endeavor to minimize the cost and inconvenience of conducting the arbitration, provided, that all hearings shall be conducted in person in Atlanta, Georgia. The arbitration shall be conducted by a single arbitrator selected by the Parties from ICDR's panel of arbitrators, or, if they are unable to agree on the selection, by a single arbitrator appointed by ICDR, provided, that, in addition to other qualifications required by ICDR, the arbitrator shall be a retired or active judge or attorney who has been in practice at least ten (10) years. The Parties understand that this arbitration procedure shall be the sole remedy for any controversy or claim arising out of or relating to these Terms of Sale or the breach thereof that is otherwise not able to be settled as set forth in paragraph (b) of this Section, and in such an instance, the Parties expressly waive their right to file a lawsuit in any civil court against one another for such disputes. Notwithstanding the foregoing, Kirk-Rudy may at any time seek injunctive relief in a court of competent jurisdiction. The Parties acknowledge that this arbitration agreement is entered into in connection with a transaction involving interstate commerce. Accordingly, this arbitration agreement and any proceeding thereunder shall be governed by the Federal Arbitration Act, 9 U.S.C. §§1-16.

Last Updated May 15, 2024