COMMERCIAL CREDIT APPLICATION TERMS & CONDITIONS
To obtain credit from Kafka Granite, LLC and/or its affiliated companies (“Kafka”), Applicant agrees to: (i) be bound by Kafka’s General Sales & Credit Terms and Conditions as amended by Kafka from time to time; (ii) update Applicant’s information contained in this Application as requested by Kafka; (iii) notify Kafka in the event Applicant’s financial condition changes in a way that could reasonably be determined to impact a creditor’s decision to extend credit. Applicant agrees that it has reviewed Kafka General Sales & Credit Terms and Conditions as set forth in this Application and agrees to be bound by the same.
GENERAL SALES & CREDIT TERMS
“Customer” hereby applies to Kafka Granite, LLC (“Kafka”) for credit to enable Customer to obtain goods and services from Kafka for business or commercial purposes only. As an inducement to Kafka to extend credit, and in consideration of Kafka agreeing to extend credit to Customer, Customer states and agrees as follows:
I. CUSTOMER REPRESENTATIONS AND WARRANTIES
Customer represents and warrants that (a) all credit information given in connection with this Application is true and correct as the date hereof, and (b) that it is financially able to comply with all payment terms and conditions specified herein or in any invoice from Kafka and such representation and warranty shall be deemed remade each time Customer accepts credit from Kafka. Customer authorizes Kafka to conduct a full investigation and authorizes bank and trade references named herein to release information to Kafka regarding Customer’s credit record.
All payments are Cash-On-Delivery (C.O.D.) unless a deposit or prepayment is required or Customer has completed a Credit Application which has been accepted by Kafka and not revoked. Customers with established credit have 31 days from the Date of Invoice to pay all balances listed on the invoice unless modified in writing by Kafka. Kafka retains all rights to extend or revoke credit, in Kafka’s sole discretion and to require updated credit information. If delivery is deferred by Customer, payment shall be due in full when Kafka is prepared to deliver the materials. The materials may thereafter, at Kafka’s option, be stored at the risk and expense of Customer.
- SPECIAL ORDERS: All special orders require a minimum deposit of 50% of the quote price prior to the commencement of work. This deposit may be increased in Kafka’s sole discretion.
- FAILURE TO PAY: In the event Customer fails to make payment in accordance with the provisions herein, Kafka: (1) shall be entitled to interest at the rate of 18% per annum, or the maximum rate allowed by law, whichever is greater; (2) reserves the right to stop production, fabrication, delivery, or fulfillment of Customer’s order until full payment, plus interest has been received and verified; and (3) reserves the right to require prepayment from Customer prior to any production, fabrication, delivery, or fulfillment.
- NSF CHECKS: Customer agrees to pay a service charge of $25.00 for any checks returned from Customer’s bank unpaid for any reason; Kafka shall have the right to demand payment on the returned check(s) in CASH or CERTIFIED funds or MONEY ORDER immediately.
All prices shall be the current published prices unless otherwise set forth in a written quotation or otherwise provided in writing by Kafka. Written quotes are valid for 30 days from the quotation date unless otherwise specified. In all other cases, prices are subject to change without notice. Kafka reserves the right to invoice at prices in effect at time of delivery, unless otherwise specified in writing.
IV. ENTIRE AGREEMENT/ORDERS
No order for Kafka materials and services that is set forth in a quotation shall be binding until Customer signs the quotation. By signing the quotation, Customer accepts and agrees to be bound by these General Sales and Credit Terms which shall void and supersede all prior agreements, terms and conditions between Kafka and Customer relating to the materials ordered and shall govern over any other prior or future agreements unless these General Sales and Credit Terms are expressly revised in writing by Kafka. No provision of these General Sales and Credit Terms shall be subject to modification or change in any manner except as agreed to in a writing signed by Kafka.
All quantities ordered are estimates only. Customer is responsible for payment of actual quantities delivered at the unit prices, subject only to changes in the unit price for orders placed after expiration of the quotation or as provided herein. Kafka is not responsible for providing excess material necessary to complete the Customer’s project if this material was not part of the quotation. Kafka does not take responsibility or liability for any factors that add or reduce the quantity of materials required for the project other than as set forth in the Customer’s written quote. When Customer determines additional material is required to complete the project it is the Customer’s sole responsibility to notify Kafka, so additional material can be ordered. Customer shall not hold Kafka liable for any costs or delays associated with ordering additional material. Additional ordered material is subject to availability and price adjustments. All material quantities are based on a per ton unit, unless otherwise specified or requested in writing by the Customer.
VI. DELIVERY AND RECEIPT OF MATERIALS
Upon receipt of shipment it is the Customer’s or Customer’s agent’s (contractor, representative, engineer, architect or other site manager) responsibility to fully inspect the materials for damage or other problems. Customers shall, at the time of delivery of furnished material, inspect the same and immediately report in writing to Kafka any shortages, damages or defects therein which are reasonably observable by proper inspection. Customer’s failure to inspect and report any shortages, damages or defects as required shall be treated as Customer’s unqualified acceptance of the material delivered. Method and route of shipment will be at the discretion of Kafka unless specified otherwise by Customer and agreed by Kafka, and any additional expense resulting from the method or route of shipment specified by Customer shall be borne by Customer.
- DELIVERY RATES: All prices are F.O.B. point of origin at Kafka Granite Crushing Facility located at 1188 Ridgeview Road, Mosinee, WI 54455 or Kafka Granite Stone Fabrication Facility located at 2288 West Highway 153, Mosinee, WI 54455. All orders are subject to delivery rate charges, and delivery rates are available upon request and are based upon the rate the day the quote is created. The delivery rate is subject to change and Customer will pay based on the freight rate at time of delivery.
- SCHEDULE: Unless otherwise agreed to in writing, Kafka shall have no responsibility or liability for material deliveries that do not meet Customer’s sequencing or schedule requirements. Delivery dates provided by Kafka in advance of actual shipment are estimates and shall not be deemed to represent fixed or guaranteed delivery dates. For materials to be fabricated pursuant to shop, architectural, or engineering drawings, Customer understands and agrees that Kafka will not commence fabrication until such drawings are approved by Customer’s engineer or architect, and Kafka will have no liability for any delay related thereto.
All orders shall include Sales Tax unless Customer has on file with Kafka or provides Kafka at the time of signing this quote, a valid exemption certificate. Customer must re-file an exemption certificate with Kafka every calendar year.
VIII. CANCELLATIONS AND RETURNS
Orders accepted by Kafka are NOT subject to cancellation, except with Kafka’s written consent. Customer shall be responsible for all costs, charges or fees incurred by Kafka to process or fulfill the order up to the time of request for cancellation. In the event such cancellation is accepted by Kafka, the costs, charges and fees may equal or exceed the full amount of the quote. Returns are not allowed unless expressly authorized in writing by Kafka prior to such return.
IX. CONTINUING AGREEMENT
The General Sales and Credit Terms, as amended, shall apply to all goods and services which Customer purchases from Kafka.
X. CREDIT LIMIT
Kafka, in Kafka’s sole discretion, shall determine Customer’s credit limit and this may be increased or decreased as Kafka determines from time to time.
XI. TERMINATION OF CREDIT
Kafka may terminate credit or restrict or withhold sales or services to Customer at any time without notice.
XII. ATTORNEYS FEES
Customer (and Guarantors, if a Personal Guaranty has been provided) agree to pay all costs, expenses and collection charges (including reasonable attorney’s fees or charges made by any agent or collection agency used for purposes of collecting any unpaid balance) incurred by Kafka in the enforcement of this Agreement and the collection of any charges due hereunder. Customer also agrees to pay all pre and postjudgment costs including any costs, attorney’s fees or expenses incurred in the defense of any claim asserted by Customer against Kafka.
XIII. CUSTOMER CHANGE OF OWNERSHIP
Customer agrees to notify Kafka by certified mail of any change of ownership and further agrees to be liable for all goods and services provided by Kafka should Customer fail to obtain Kafka’s consent to such change.
XIV. JOINT AND SEVERAL
In the event that any Quotation or other agreement is executed by more than one person, the liabilities and obligations of the undersigned shall be joint and several and the relative words shall be read as if written in the plural.
XV. SECURITY AGREEMENT AND LIEN RIGHTS
As security for all obligations now and hereafter owing to Kafka, Customer hereby grants to Kafka a purchase money security interest in the goods Kafka has sold to Customer and a security interest in all of Customer’s inventory, fixtures, equipment, accounts, documents, instruments, chattel paper and general intangibles of Customer. To the fullest extent allowable by law Kafka retains all lien rights and claims against property for supplying materials to the Customer. Customer shall by fully responsible for all payments and claims. If Customer is not the Owner or responsible party for liens, then Customer will, on behalf of Kafka, notify all necessary parties to comply with all requirements under the law to establish and maintain Kafka’s lien rights. Upon full payment Kafka will release all lien claims against Customer and the project.
NOTICE OF LIEN RIGHTS
AS REQUIRED BY THE WISCONSIN CONSTRUCTION LIEN LAW, Kafka HEREBY NOTIFIES CUSTOMER THAT PERSONS OR COMPANIES FURNISHING LABOR OR MATERIALS FOR THE CONSTRUCTION ON CUSTOMER’S LAND MAY HAVE LIEN RIGHTS ON CUSTOMER’S LAND AND BUILDINGS IF NOT PAID. THOSE ENTITLED TO LIEN RIGHTS, IN ADDITION TO THE UNDERSIGNED Kafka, ARE THOSE WHO CONTRACT DIRECTLY WITH THE CUSTOMER OR THOSE WHO GIVE THE CUSTOMER NOTICE WITHIN 60 DAYS AFTER THEY FIRST FURNISH LABOR OR MATERIALS FOR THE CONSTRUCTION. ACCORDINGLY, CUSTOMER PROBABLY WILL RECEIVE NOTICES FROM THOSE WHO FURNISH LABOR OR MATERIALS FOR THE CONSTRUCTION, AND SHOULD GIVE A COPY OF EACH NOTICE RECEIVED TO HIS/HER LENDER, IF ANY. Kafka AGREES TO COOPERATE WITH THE CUSTOMER AND HIS/HER LENDER, IF ANY, TO SEE THAT ALL POTENTIAL LIEN CLAIMANTS ARE DULY PAID.
Customer acknowledges that Customer has selected and ordered materials based on Customer’s own skill and judgment and agrees that Customer is responsible for ensuring that the materials selected are fit for Customer’s purpose. Kafka shall not be responsible for any selection made by Customer and will not have any liability to Customer for any loss, damages, costs or expenses suffered by Customer as a result thereof. Kafka warrants only that such goods have been produced in accordance with·Kafka’s standard practices with regard to materials and workmanship and no samples or prior description of materials shall constitute an express warranty. If materials are nonconforming, Kafka, at its option will either: (i) allow Customer to return the materials and receive a refund or (ii) repair or replace the materials. No materials are to be returned to Kafka without Kafka’s prior written consent. Kafka HEREBY DISCLAIMS ANY AND ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Kafka shall have no obligation under this warranty if damage occurs because of improper handling, installation, modification, abuse or misapplication by Customer or others.
XVII. LIMITATION OF LIABILITY
Kafka’s liability on any claim for loss or damage arising out of this transaction or from performance or breach thereof or connected with any materials or services supplied hereunder, or the sale, resale, operation or use of materials, whether based on breach of contract, warranty, tort (including but not limited to negligence, misrepresentation and strict liability) or other grounds, shall not exceed the price allocable to such materials or services or part thereof involved in the claim, regardless of cause or fault. Customer’s remedies are limited to the return of non-conforming materials and a refund of the price, or to the repair and replacement of non-conforming goods subject to the provisions of Paragraph XVI. This limitation of liability and remedies reflects a deliberate and bargained-for allocation of risks between Kafka and Customer and constitutes the basis of the parties’ bargain, without which Kafka would not have agreed to the price or terms of this transaction.
When Customer orders a product with stabilizing additives, Customer understands and acknowledges Kafka is only responsible for the crushing of Kafka aggregates and blending of the stabilizing additive with Kafka aggregates. Kafka does not manufacture these stabilizing additives. Kafka is not liable for any problems that may be associated with the performance of products containing stabilizing additives, how the product is used and/or installation problems that may occur with the final product. Kafka is not responsible for the products’ failure or any loss, damage, or injury related to the application, installation, maintenance or use of products containing stabilizing additives.
Customer further acknowledges and understands that stone is a natural material and color variations may occur. Customer is encouraged to request complimentary samples before ordering, as well as any complimentary test data that is available by KG. Additional testing is the responsibility of the Customer. Granite, marble and quartz are general classifications. The person signing below certifies he/she is authorized to act on behalf of Customer.
XVIII. WAIVER OF CONSEQUENTIAL DAMAGES
Kafka shall not under any circumstances be liable, whether as a result of breach of contract, warranty, tort (including but not limited to negligence, misrepresentation and strict liability) or other grounds for incidental, special or consequential damages including, but not limited to, loss of profits or revenue, loss of use of goods, materials, equipment or associated products, business interruption, cost of capital, cost of substitute materials, facilities or services, downtime costs, liquidated or delay damages, or claims of clients or customers of Customer for such damage.
Customer shall indemnify, defend, and hold harmless Kafka from and against all claims, liabilities, costs and expenses (including, but not limited to, those related to injury or to death of Customer’s employees or others) arising from or connected with the possession, handling, incorporation into construction, or other use of the materials by Customer or others. Customer also agrees to indemnify, defend, and hold harmless Kafka from any patent or other intellectual property claims related to any Kafka materials made in accordance with designs or specifications of Customer or provided by Customer in relation to Customer’s project.
XX. CONSTRUCTION; JURISDICTION; WAIVER OF JURY TRIAL
This quote shall be deemed to have been entered into and consummated in the State of Wisconsin and shall be governed by and construed pursuant to the laws, without regard to the law of conflicts, of the State of Wisconsin. The Marathon County Circuit Court in the State of Wisconsin shall have exclusive jurisdiction and venue over any dispute arising hereunder. To the fullest extent permitted by law, the right to a jury trial is waived by all parties.
XXI. SEVERABILITY OF TERMS
If any portion or provision of this Agreement shall be deemed to be unenforceable or void under applicable law, such term or provision shall not affect the remainder of this Agreement, all of which terms shall remain fully enforceable.
This information is given in strict confidence for the sole purpose of establishing credit with Kafka. I(We) hereby authorize Kafka to request and obtain credit and financial record information from any of Customer’s trade, bank or other references concerning the status of Customer’s business and credit and by our signature below consent to and direct the trade, bank and other references to provide such information. If credit is extended by Kafka, Customer agrees to abide by and be bound by Kafka’s General Sales and Credit Terms, as amended by Kafka from time to time.
I, (“we” in the event more than one person signs this Guarantee), for and in consideration of the extension of Credit by Kafka Granite, LLC or affiliated companies (“Kafka”) to the Applicant identified above, hereby personally guarantee, (jointly and severally if there is more than one guarantor), the full and prompt payment to Kafka of all indebtedness or other liability which Applicant at any time owes to Kafka, together with interest and all costs of collection, including costs of enforcing this Guarantee. I(we) waive diligence on the part of Kafka in the collection of any indebtedness, and agree that Kafka will be under no obligation to notify me(us) of the acceptance of the Guarantee or of any credit extended in consideration of this Guarantee, or of any renewals or extensions of the indebtedness. Kafka will have the privilege of granting renewals and extensions, as it may deem proper. The liability of the undersigned shall not be affected by the amount of credit requested or extended. I(we) waive notice of nonpayment, protest and notice of protest with respect to the indebtedness covered by this Guarantee. It will not be necessary for Kafka, in order to enforce payment by me(us) of the indebtedness, to first institute suit or to pursue or exhaust its remedies against Applicant or against any other security, which Kafka may have. This is a continuing guarantee and may only be revoked if Applicant serves written notice of revocation by certified mail, return receipt requested, upon Kafka at the above-indicated address. A revocation will not affect any of my(our) obligations under this Guarantee with respect to indebtedness incurred pursuant to the Guarantee nor will it affect any obligation of any other guarantor signing this Guarantee. If this Guarantee is signed by more than one person, suit may be brought against the guarantors, jointly and severally, and against any one or more of them without impairing the rights of Kafka, its successors or assigns, against the other guarantors; and Kafka may compromise and settle with any one of the guarantors for the sum or sums as Kafka may see fit and release any of the guarantors from all further liability to Kafka for the indebtedness without impairing the right of Kafka to demand and collect the balance of the indebtedness from other guarantors not so released.
The undersigned hereby guarantees all indebtedness of the Applicant to Kafka and agrees to the credit terms and conditions, as they may be amended from time to time.