Terms and Conditions of Sale

ACCEPTANCE. This document contains very important information regarding Buyer’s rights and obligations, as well as conditions, limitations, and exclusions that might apply to Buyer. Please read it carefully. These Terms apply to all purchase orders (“Orders”) that are accepted by Konik Heavy Duty Products (“Konik”), a division of Oscar Winski Company, Inc. These Terms form the basis of the agreement between Konik and Buyer. By placing an order for products or services, Buyer affirms that Buyer is of legal age to enter into this agreement, and Buyer accepts and is bound by these Terms. Any terms or conditions stated by Buyer in an Order, proposed supply agreement or in any other communication prior or subsequent hereto shall not be binding on Konik if in conflict with or in addition to any of the provisions of these Terms, nor shall any such communication by Buyer serve as an objection, explicit or otherwise, to these Terms. If Buyer’s Order or offer to purchase is expressly conditional upon Konik’s adherence to Buyer’s terms and conditions, then these Terms shall operate as a counteroffer, expressly conditioned upon the Buyer’s acceptance of these Terms. Whether these Terms operate as an acceptance or a counteroffer, the acceptance by Buyer of any goods provided hereunder shall constitute acceptance by Buyer of these Terms and relinquishment and waiver of any right to limit acceptance or object to these Terms under the Uniform Commercial Code.
AMENDMENTS. These Terms and Conditions of Sale apply to the purchase and sale of products and services through email, phone, fax, or mail. These Terms are subject to change by Konik (referred to as “us”, “we”, or “our” as the context may require) without prior written notice at any time, in our sole discretion. Buyer should review these Terms prior to purchasing any product or services.
ORDER ACCEPTANCE AND CHANGES OR CANCELLATION OF ORDERS. Buyer agrees that Buyer’s order is an offer to buy, under these Terms and Conditions of Sale, all products and services listed in Buyer’s order. All orders must be accepted by us, or we will not be obligated to sell the products or services to Buyer. We may choose not to accept any orders in our sole discretion. After having received Buyer’s order, we will send Buyer a confirmation email with Buyer’s order number and details of the items Buyer has ordered. Acceptance of Buyer’s order and the formation of the contract of sale between Konik and Buyer will not take place unless and until Buyer has received Konik’s order confirmation email. Any Order placed with and accepted by Konik with respect to a standard product may be modified or canceled by Buyer only until shipping has been arranged by Konik and upon terms that indemnify Konik against loss. If Konik does authorize cancellation or modification, a 10% restocking fee shall apply. Any Order placed with and accepted by Konik with respect to a custom product cannot be modified or canceled by Buyer. Konik may cancel all or any part of an Order and discontinue its performance thereunder without liability to Buyer in the event Buyer materially breaches these Terms and Conditions of Sale, becomes insolvent, files or is the subject of a bankruptcy, or is the subject of a receivership, liquidation, dissolution or similar proceeding.
PRICE. Unless otherwise agreed to in writing, all prices are in U.S. dollars. Payment terms shall be net thirty (30) days from the date of invoice. Amounts unpaid after the payment term shall accrue interest compounded monthly at the annual rate of 18% or the maximum legal rate, if less. Price quotations shall be subject to change by Konik with thirty (30) days advance verbal or written notice to Buyer and invoicing will be based on prices in effect at time of order which may reflect changes in the prices of raw materials or other factors. All Orders placed based on price quotations on special items not listed in Konik’s standard catalogue as “Standard Products” will be subject to Konik’s written acceptance and shall include cancellation charges of 110% of the actual cost of labor and material expended by Konik at the time of cancellation. Konik’s price does not include applicable sales, use, excise, GST, VAT or similar taxes and the amount of any such tax that Konik may be required to pay or collect will be added to each invoice unless the Buyer has furnished Konik with an appropriate exemption certification which is acceptable to the taxing authorities.
SHIPMENT AND RISK OF LOSS. Konik will arrange for shipment of the products to Buyer. Buyer will pay all shipping and handling charges specified during the ordering process. Unless otherwise agreed to in writing by Konik, all quotations are EXW (INCOTERMS 2020) Konik’s warehouse, and do not include transportation cost to Buyer’s location. Title and risk of loss pass to Buyer upon our transfer of the products to the carrier/delivery. Shipment dates provided by Konik are approximate and are based on prompt receipt of all necessary information regarding the Order, provided however, Konik is not liable for any expense, loss or damage whatsoever suffered by Buyer as a result of Konik’s failure to deliver goods by the specified date.
SETOFF. Neither Buyer nor any assignee of Buyer shall have a right to claim compensation or to set off against any amounts which become payable to Konik under this agreement or otherwise.
WARRANTIES AND DISCLAIMER. THIS LIMITED WARRANTY GIVES BUYER SPECIFIC LEGAL RIGHTS AND BUYER MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE. THIS LIMITED WARRANTY CAN ALSO BE FOUND AT WWW.KONIKPRODUCTS.COM.COM/WARRANTY AND IN THE DOCUMENTATION WE PROVIDE WITH THE PRODUCTS. WE WARRANT THAT DURING THE WARRANTY PERIOD, THE PRODUCTS PURCHASED WILL BE FREE FROM DEFECTS IN MATERIALS AND WORKMANSHIP FOR A PERIOD OF SEVEN (7) CALENDAR DAYS FROM THE DATE OF SHIPMENT TO BUYER OR WHEN BUYER STARTS INSTALLATION AND TO MEET KONIK’S SPECIFICATIONS FOR SUCH GOODS AT THE TIME OF DELIVERY. WE ALSO WARRANT THAT DURING THE WARRANTY PERIOD THE SERVICES PURCHASED WILL BE PERFORMED IN A WORKMANLIKE MANNER AND IN ACCORDANCE WITH GENERALLY RECOGNIZED INDUSTRY STANDARDS FOR SIMILAR SERVICES. KONIK ASSUMES NO RESPONSIBILITY FOR BUYER’S DESIGNS, DRAWINGS, PLANS, OR SPECIFICATIONS. THE ABOVE STATED WARRANTIES ARE THE SOLE WARRANTIES AND ANY OTHER WARRANTIES, EXPRESSED OR IMPLIED OR IMPOSED BY OPERATION OF LAW, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MECHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO BUYER. KONIK’S RESPONSIBILITY FOR DEFECTIVE PRODUCTS SHALL BE LIMITED TO THE REPLACEMENT OF THE NONMODIFIED NONCONFORMING GOODS AT THE ORIGINAL DELIVERY POINT. REPLACEMENT OF THE NONCONFORMING GOODS SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY AND ALL WARRANTIES, INCLUDING LIMITED LIABILITY BASED IN CONTRACT, TORT, OR STRICT LIABILITY. NEITHER ANY PERFORMANCE OR OTHER CONDUCT, NOR ANY ORAL OR WRITTEN INFORMATION, STATEMENT OR ADVICE PROVIDED BY US OR ANY OF OUR SUPPLIERS, AGENTS OR EMPLOYEES WILL CREATE A WARRANTY, OR IN ANY WAY INCREASE THE SCOPE OR DURATION OF THIS LIMITED WARRANTY. BUYER SHALL INDEMNIFY KONIK FOR THIRD PARTY DAMAGES.
1. This limited warranty extends only to the original purchaser of products and services from Konik. It does not extend to any subsequent or other owner or transferee of the product or any transferee or other beneficiary of the service.
2. This limited warranty covers during the Warranty Period (as defined below) defects in materials and workmanship in products and services purchased from Konik.
3. This limited warranty does not cover any damages due to:
  1. Transportation;
  2. Storage;
  3. Improper use;
  4. Failure to follow the product instructions or to perform any preventative maintenance;
  5. Modifications;
  6. Combination or use with any products, materials, processes, systems or other matter not provided or authorized in writing by Konik;
  7. Unauthorized repair;
  8. Normal wear and tear; or
  9. External causes such as accidents, abuse, or other actions or events beyond our reasonable control.
4. This limited warranty starts on the date of delivery to Buyer and lasts for seven (7) calendar days (the “Warranty Period”). The Warranty Period is not extended if Konik replaces a warranted product or re-perform a warranted service. Konik may change the availability of this limited warranty at its discretion, but any changes will not be retroactive.
5. With respect to any defective products during the Warranty Period, Konik will replace such products (or the defective part) free of charge. Konik will also pay for shipping and handling fees to return the replacement product to Buyer if Konik agrees to replace the defective product.
6. To obtain warranty service, Buyer must call 765-637-4900 or email Konik’s Customer Service Department at sales@konikproducts.com during the Warranty Period to obtain a Return Merchandise Authorization (“RMA”) number. No warranty service will be provided without an RMA number. The buyer will need to provide the order number along with specific details and/or pictures to support the claim. The claim will be reviewed, and an RMA will be provided if the claim is approved.
INSPECTION AND ACCEPTANCE. Buyer shall have seven (7) calendar days after delivery (the “Rejection Period”), to inspect the goods and either accept or reject them. Failure to inspect the goods within the Rejection Period shall constitute a waiver of Buyer’s right of inspection. Failure to inspect and/or reject the goods within the Rejection Period shall constitute an unqualified and irrevocable acceptance of the goods by Buyer and a waiver of any and all claims by Buyer for nonconforming goods or delivery and Buyer shall be bound to pay for the goods in accordance with these Terms and Conditions of Sale. To reject any nonconforming goods, Buyer must immediately (and in any event, within the Rejection Period) notify Konik in writing that Buyer considers the goods nonconforming. Such notification shall identify each and every alleged nonconformity and describe that portion of the shipment being rejected. Buyer shall give the Konik a full and reasonable opportunity to investigate all claims and shall return any allegedly defective goods upon request. All claims or requests for return must comply with Konik’s RMA procedure (see Section 7f above).
GOODS NOT FOR RESALE OR EXPORT. Buyer agrees to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. Buyer represents and warrants that Buyer is buying products or services from Konik for Buyer’s own use, and not for resale or export. Products and services purchased from Konik may be controlled for export purposes by export regulations, including but not limited to, the Export Control Reform Act of 2018 (ECRA) (Title XVII, Subtitle B of Pub. L. No. 115-232), the Export Administration Regulations (15 C.F.R. 768-799) for which ECRA is permanent statutory authority, the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations”).
CREDITWORTHINESS OF BUYER; TERMINATION. By placing an Order with Konik or by accepting goods delivered by Konik, Buyer represents that it is not insolvent. For the purposes of these Terms and Conditions of Sale, Buyer is insolvent if (i) Buyer fails to pay its obligations in accordance with these Terms and Conditions of Sale and in the ordinary course of business or (ii) the amount of Buyer’s liabilities exceed the value of its assets in accordance with generally accepted accounting principles. Buyer shall provide verified certificates on a quarterly basis, ensuring that it is not insolvent on the basis of both definitions of insolvency described herein. In the event that Buyer becomes insolvent before delivery of the goods, Buyer shall immediately notify Konik. A failure to so notify Konik shall be construed as a reaffirmation by Buyer of Buyer’s solvency at the time of delivery. Konik shall have the right to stop delivery of the goods, whether delivery is by carrier or any other means, if the Buyer becomes insolvent and to stop delivery or terminate wholly or partly every supply agreement between Konik and Buyer if Buyer: (i) repudiates these Terms and Conditions of Sale or any other supply agreement between Konik and Buyer, (ii) fails to make a payment due before delivery arising from these Terms and Conditions of Sale or any other supply agreement between Konik and Buyer, (iii) fails to provide any letter of credit, bill of exchange or any other security required, (iv) rejects, returns or fails to take delivery of any goods tendered by Konik other than in accordance with the provisions herein, (v) or if for any other reason Konik has a right to withhold or reclaim the goods regardless of whether they are to be shipped directly to Buyer or to some third party as may be designated by Buyer. Upon termination, Konik shall have no further obligation under these Terms and Conditions of Sale, but in no event shall termination discharge Buyer of its obligation to pay in a timely fashion or of any other obligation owing under these Terms and Conditions of Sale or any other supply agreement between Konik and Buyer. Notwithstanding any other provision to the contrary, Konik reserves the right to ship goods to Buyer under reservation.
CONFIDENTIALITY. It may become necessary for Konik to disclose to Buyer information that Konik considers confidential and/or proprietary. Buyer shall have a duty to protect all information that is disclosed by Konik in any manner. Buyer shall not disclose Konik’s information to any third party without the prior written consent of Konik and shall limit its disclosure to its employees having a need to know such information. Buyer shall protect Konik’s information by using the same degree of care (but not less than a commercially reasonable degree of care) used to prevent the unauthorized disclosure of Buyer’s own information of a similar nature.
FORCE MAJEURE. Notwithstanding any provision hereof to the contrary, Konik shall not be liable for any delays, defaults, loss, damages or expenses, arising by reason of fire, flood, earthquake, explosion, acts of God, labor disputes, civil unrest, inability to secure materials, pandemic, epidemic, state of war or conflict or acts of governments, invasion, hostilities, terrorist threats or acts, riot, embargoes or blockages in effect on or after the date of this Agreement, national or regional emergency, whether such failure or delay is incurred, suffered, or caused by Konik, Konik’s affiliate, subsidiary, subcontractor or independent manufacturer or carrier, if such failure or delay is, in whole or in part beyond the reasonable control of Konik. Konik may either delay shipment of the goods until shipment is feasible or may cancel the sale altogether, in either case without incurring liability for breach of any agreement. Risk of expense caused by this clause will be borne by the Buyer.
GOVERNING LAW; CHOICE OF FORUM. In the event of any dispute hereunder, the laws of the State of Indiana shall govern the validity, performance, enforcement and any other aspect of these Terms and Conditions of Sale notwithstanding any other jurisdiction’s choice of law rules to the contrary. The parties hereto expressly agree that any and all actions concerning any dispute arising under these Terms and Conditions of Sale shall be filed and maintained only in a state or federal court of competent jurisdiction sitting in the State of Indiana.
RELATIONSHIP OF PARTIES. Konik and Buyer are independent contracting parties and nothing in these Terms and conditions of Sale will make either party the agent, partner, joint venturer or legal representative of the other for any purpose, nor does it grant either party any authority to assume or to create any obligation on behalf of or in the name of the other.
ASSIGNMENT. Buyer will not assign any of Buyer’s rights or delegate any of Buyer’s obligations under these Terms without our prior written consent. Any purported assignment or delegation in violation of this Section 15 is null and void. No assignment or delegation relieves Buyer of any of Buyer’s obligations under these Terms.
NO THIRD-PARTY BENEFICIARIES. These Terms do not and are not intended to confer any rights or remedies upon any person other than Buyer.
SEVERABILITY, TERMINATION, EFFECT ON PRICE. Should any paragraph, sentence, term or other provision of these Terms and Conditions of Sale be invalid or unenforceable under the law of the place where it is to be performed or be declared invalid or unenforceable by a court or other competent authority having jurisdiction over the matter, Konik may elect to either: (i) terminate this agreement if not fully performed by it, or (ii) consider this agreement severable as to such provision, and such provision shall thereafter be deemed severed and inoperative. In such latter event, the remainder of this agreement shall be in full force and effect as if such severed provision were never a part of the same. In addition, if such severance shall have an adverse financial impact on Konik, Konik shall have further right to an appropriate upward adjustment in the price of goods sold or to be sold hereunder.
WAIVER OF BREACH. Failure of Konik to enforce any of the terms, conditions and limitations of these Terms and Conditions of Sale shall not be construed as a waiver thereof or a waiver of any other terms, conditions or limitations herein or on the face hereof, and the failure of Konik to exercise any rights arising from default of Buyer or otherwise shall not be deemed to be a waiver of such right or any other right. The terms, conditions and limitations herein and on the face hereof may be enforced and the rights of Konik may be enforced at any time in whole or in part.
LIMITATIONS ON ACTIONS. Any action by or on behalf of Buyer or its successors or assigns for breach of this agreement must be commenced within one year after the cause of action has accrued.
ENTIRE AGREEMENT. These Terms and Conditions of Sale, together with the terms of any quotations or Order acknowledgments issued by Konik, constitute the entire agreement between Konik and Buyer with respect to the matter contained herein and supersedes all prior oral and written representations and agreements.