Kinetic Six Limited Terms and Conditions
1. Terms and Conditions.
The terms and conditions contained in this, Kinetic Six Limited Terms and Conditions, shall apply to any equipment sold or rented and/or airtime sold (hereinafter collectively referred to as "Products" and "Services") furnished to Customer pursuant to this Agreement.
Subject to the provisions of these Terms and Conditions, completion of Seller's standard installation procedures on Products installed by Seller without seasonable objection and/or use or acceptance of and "Product" and/or "Services" is deemed an acceptance of Kinetic Six Limited "Products and "Services."
3. Payment and Credit.
Unless otherwise agreed in writing, payment for Products and/or Services under any Agreement shall be made before tender of any Products or Services by Kinetic Six Limited. Kinetic Six Limited shall issue invoices on or after the date of delivery. If in Kinetic Six Limited's judgment, the financial condition of Customer at any time does not justify the commencement or continuance of delivery on the terms specified in this Agreement, Seller may, in addition to all other remedies it may have at law or in equity, make a written demand for full or partial payment in advance, suspend performance until that payment is made, or cancel Customer's order. If Customer fails to pay any charges when due and payable, Customer agrees that Seller shall have the right to invoice and Customer shall pay all costs, including reasonable attorneys' fees expended in collecting overdue charges and a late payment charge of 1.5% per month but not in excess of the lawful maximum on the unpaid balance.
4. Terms of Shipment.
Absent any special agreement, all products shall be shipped FedEx from Seller's facility and billed to the Customer. The carrier shall not be construed to be an agent of Seller. Seller reserves the right to make partial shipments.
5. Insurance on Shipments.
Kinetic Six Limited shall provide ''All Risk'' transit insurance coverage on all Products shipped to Customer. That insurance coverage shall begin when the Products are tendered by Seller to the carrier and shall terminate upon Customer's receipt of the Products. Customer shall pay an insurance charge based on a rate charged by carrier to Kinetic Six Limited. Settlement of all claims shall be made on the basis of repair or replacement, at Seller's option.
6. Rejection of Products.
Customer may, cancel or reject the shipment of any Product provided that Kinetic Six Limited receives written confirmation of any cancellation within five (5) business days of receiving such product; however, Customer shall pay a 15% restocking fee for any such product.
7. Security Interest.
Customer hereby grants Seller a security interest in the Products to secure their full payment. Customer agrees that upon Seller's request, it will execute and deliver to Seller a financing statement and other documents evidencing this security interest, which is satisfactory for filing with the appropriate authority.
8. Support Services.
Customer shall be entitled to support services for Products and Services provided pursuant to this Agreement. ''Support services'' include assistance in implementing, understanding, operating such Products and Services.
9. Integration of Agreement.
Any instrument documenting a transaction between Kinetic Six Limited and Customer contains the entire agreement between the parties relating to the rights granted and the obligations assumed. Any oral representations or modifications concerning this instrument shall be of no force or effect, except for subsequent modifications in writing signed by the party to be charged.
10. Entirety and Severability Provisions.
No partial invalidity of this agreement shall affect the validity or enforceability of the remainder.
11. Choice of Law.
Any Agreement shall be governed by and construed in accordance with the Uniform Commercial Code--Sales. Wherever the term ''Uniform Commercial Code'' is used, it shall be construed as meaning the Uniform Commercial Code as adopted in the State of Florida, as effective and in force on the date of this Agreement. The parties expressly agree that any contract shall be deemed to have been made in and shall be performed in Broward County, Florida, and that all questions concerning the validity, interpretation, or performance of any terms or provisions of this contract or of any rights or obligations of the parties under this contract shall be governed by and resolved in accordance with the laws of Florida.
12. Nonassignability Clause.
This agreement shall not be assigned by either party without the prior written consent of the other party.
Any notice to be given under this agreement by either party to the other shall be in writing and may be effected by personal delivery or registered or certified mail.
Before Kinetic Six Limited is bound by any of the obligations under any agreement, Customer must first satisfactorily meet contracted payment obligations.
15. Force Majeure Clause.
The parties understand that performance by Kinetic Six Limited may be interrupted or delayed by an occurrence outside of its control, including but not limited to the following: an act of God, war, riot, sovereign conduct, or conduct of third parties. If that should occur, Kinetic Six Limited shall be excused from performance for as long as it is reasonably necessary to complete performance. In case of any dispute as to the reasonableness of a resulting delay in performance, the parties shall submit the matter to arbitration or for the decision of an expert agreed on by both parties.
This agreement may be terminated at the option of Kinetic Six Limited without prejudice to any other remedy at law, in equity, or elsewhere under this agreement, by giving written notice of termination to Customer on the occurrence of any of the following events of default: a. Adjudication of Customer as a voluntary or involuntary bankrupt; b. Institution of any proceeding for a reorganization or rearrangement of the affairs of Customer; c. Making of an assignment for the benefit of creditors of Customer; d. Insolvency of Customer or appointment of a receiver of assets or property; e. Allowance of any money judgment against Customer to remain unsatisfied for a period of 30 days or longer; or f. Default in the performance of any obligation or payment of any indebtedness under this agreement by Customer for a period of 14 days or to pay debts as they become due.
Any controversy or claim arising out of or relating to this contract, or the breach of this contract shall be settled by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
18. Liquidated Damages Provision.
Because the actual damages that Kinetic Six Limited would sustain if Customer breached his/her obligation under any airtime agreement are uncertain because of unknown use at this time and would be impossible or very difficult to ascertain accurately, the parties agree in good faith that the sum of $5,000 would be reasonable and just compensation for the harm caused by such breach. Therefore, Customer promises to pay and Kinetic Six Limited agrees to accept that sum as liquidated damages, and not as a penalty, in the event of a breach of that obligation.
19. Attorneys' Fees.
If any action, at law or in equity, including an action for declaratory relief, is brought to enforce or interpret this contract, the prevailing party shall be entitled to recover reasonable attorneys' fees from the other party, including fees at both the trial and appellate levels, in addition to any other relief that may be awarded.
20. Cumulative Remedy Provision.
The rights and remedies granted to Kinetic Six Limited in this agreement in the event of default are cumulative, and the exercise of any right or remedy shall be without prejudice to the enforcement of any other right or remedy authorized by law or this agreement.
21. Disclaimer of Warranty.
THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, WHICH EXTEND BEYOND THE DESCRIPTION ON THE FACE OF ANY CONTRACT ENTERED INTO BETWEEN KINETIC SIX LIMITED AND CUSTOMER.
22. Consequential Damages.
CUSTOMER AGREES THAT KINETIC SIX LIMITED SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OR FOR THE LOSS OF PROFIT, REVENUE, OR DATA ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF SELLER SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
Customer and Kinetic Six Limited agree that no failure to exercise and no delay in exercising any right, power, or privilege under this Agreement on the part of either party shall operate as a waiver of any right, power, or privilege under this Agreement.