Kowabunga LLC
General Terms and Conditions of Sale
1. SCOPE OF APPLICABILITY
1.1 These General Terms and Conditions of Sale (“GTCS”) apply to all sales of goods by Kowabunga LLC (“Kowabunga”) notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other communication from the purchaser (“Buyer”) of such goods. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by Kowabunga unless and until Kowabunga expressly confirms our acceptance in writing.
1.2 Kowabunga reserves the right to change these GTCS at any time. Kowabunga will give Buyer thirty calendar days’ notice of any changes by posting notice on our website (www.kbung.com/general-terms-and-conditions-of-sale-gtcs).
2. OFFERS, PURCHASE ORDERS, ORDER CONFIRMATIONS, AND CHANGES
2.1 All offers made by Kowabunga are open for acceptance within seven (7) calendar days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the goods offered.
2.2 All purchase orders issued by Buyer to Kowabunga shall specify as a minimum the type and quantity of goods requested, applicable unit prices, delivery place and requested delivery dates. No purchase order shall be binding on Kowabunga unless and until confirmed by Kowabunga in writing.
2.3 All purchase orders issued by Buyer to Kowabunga are considered firm and cannot be cancelled without written authorization from Kowabunga. Any changes to the order may incur additional charges and delay delivery date. In the event of changes to the order pursuant to this paragraph, the cost of any materials expended to date will be billed to Buyer and Buyer agrees to pay such billed amount(s) to Kowabunga in accordance with relevant Terms of Payment (See 4.1 herein).
3. PRICES
3.1 All prices identified in Kowabunga’s published price lists include estimated taxes, import duties, trade tariffs, and other fees, costs, and/or charges under current United States laws and regulations as of the time of publication/issuance.
3.2 All prices identified in Kowabunga’s published price lists do not include inland freight nor palletization charges.
3.3 Thirty (30) days after the publication by any governmental agency that additional estimated taxes, import duties, trade tariffs, freight, palletization, and/or other fees, costs, and charges (“Additional Amounts”) may become due and owing with respect to the class/kind of goods sold by Kowabunga to Buyer, Kowabunga reserves the right to amend its price list(s) to raise the prices listed therein to include such Additional Amounts. Kowabunga will use its best efforts to provide Buyer with a copy of such revised price list(s), or notice of the publication/issuance thereof, as soon as practicable. Buyer agrees that such increased prices will apply to any portion of purchased merchandise that is: (1) covered by a sales conformation(s), sales order(s), invoice(s) and/or any other documents (collectively “Sales Documents”) issued prior to such relevant governmental agency publication; and (2) scheduled to be imported into the United States more than fifty-nine (59) days after such publication. In such case, and as soon as practicable, Kowabunga will provide Buyer with revised Sales Documents (“Revised Sales Documents”) reflecting the new prices applicable to such undelivered. Buyer agrees to remit to Kowabunga all Additional Amounts identified in any Revised Sales Documents within fifteen (15) calendar days of the date of such Revised Sales Documents. If any Additional Amounts become due and owing after Kowabunga’s delivery of the goods to Buyer, Buyer agrees to remit such Additional Amounts to Kowabunga within fifteen (15) calendar days of Kowabunga’s written notification of such to Buyer.
4. TERMS OF PAYMENT
4.1 Unless expressly stated otherwise in our order confirmation, payment for goods shall be made according to the payment terms agreed to in the order confirmation, without offset or deduction.
4.2 If Buyer fails to pay any invoice by the relevant due date, Kowabunga may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination to Buyer within seven (7) calendar days of the expiration of the grace period. Additionally, Kowabunga may charge Buyer interest from the due date to the date of payment at the rate of 1½ % per month. This shall be in addition to, and not in limitation of, any other rights or remedies to which Kowabunga are or may be entitled at law or in equity.
5. TITLE
5.1 Title to goods delivered shall remain vested in Kowabunga and shall not pass to Buyer until the goods have been paid for in full. If Buyer fails to pay any invoice within fourteen calendar days of the due date of payment, Kowabunga may retake the goods covered by the invoice. Buyer must insure all goods delivered to their full replacement value until title to the goods has passed to Buyer.
6. TERMS OF DELIVERY AND LATE DELIVERY
6.1 Unless expressly stated otherwise in our order confirmation, all deliveries of goods shall be: DDP Buyer’s Place of Delivery (Incoterms 2020). “Buyer’s Place of Delivery” shall mean: The “Ship To” address identified in the relevant invoice issued by Kowabunga. The risk of loss of or damage to goods shall pass from Kowabunga to Buyer in accordance with the agreed delivery term.
6.2 The delivery dates of goods shall be those set forth in our order confirmation. Shipping dates are approximate whether or not specifically set forth on the face of any Sales Documents or Revised Sales Documents. Kowabunga shall not pay or be liable for any penalty or any damages, either liquidated or otherwise for late delivery. Shipping dates are dependent upon prompt receipt from Buyer of all information necessary for the proper processing of Buyer’s order. In the event there is any delay by Buyer in furnishing complete information, the date of shipment may be extended for a reasonable time, taking into account Kowabunga’s production schedule.
6.3 Kowabunga shall not be liable for any nonperformance or delay in the delivery or shipment of Goods, or any other delay in performance under any Sales Documents or Revised Sales Documents, when such nonperformance or delay is caused directly or indirectly by any cause beyond Kowabunga’s reasonable control (whether or not now in contemplation of either of the parties), including but not limited to force majeure, acts of God, acts of Buyer, strikes, labor disputes, epidemics, floods, quarantine restrictions, civil commotion, war, hostilities, insurrection, riot, rules, law, orders, actions, seizures, requisitions, priorities, preferences, instructions, regulations, restrictions or actions of any government or any agency or subdivision thereof; casualties, fires, accidents, embargoes, quotas, transportation delays, shortages of labor, materials, goods, fuel, power or transportation facilities, detention of goods by customs authorities, sinking of vessels, loss of goods in public or private warehouses, or inability to procure or delay in procuring materials, goods, labor or manufacturing facilities from Kowabunga’s usual sources or in its usual manner. In any such event Kowabunga shall have the right, at its election and without any liability to Buyer, to: (i) cancel all or any portions of a purchase; (ii) perform as so restricted or modified, and Buyer shall accept such restricted or modified performance; and/or (iii) perform within a reasonable time after the cause for nonperformance or delay has terminated.
6.4 Delay in delivery of any installment shall not relieve Buyer of its obligation to accept subsequent deliveries or pay for prior deliveries.
6.5 Kowabunga reserve the right to make delivery in instalments.
7. ACCEPTANCE OF GOODS
7.1 Buyer must inspect goods delivered upon receipt. Buyer is deemed to have accepted goods delivered unless written notice of rejection specifying the reasons for rejection is received by Kowabunga within five (5) calendar days after delivery of the goods.
8. WARRANTY
8.1 Kowabunga warrant that upon delivery and for a period of three (3) months from the date of delivery goods purchased will conform in all material respects to the applicable manufacturer’s specifications for such goods and will be free from material defects in workmanship, material and design under normal use. The warranty does not cover damage resulting from misuse, negligent handling, lack of reasonable maintenance and care, accident or abuse by anyone other than Kowabunga.
8.2 With respect to goods which do not conform to the warranty our liability is limited, at our election, to: (i) refund of the purchase price for such goods less a reasonable amount for usage; (ii) repair of such goods; and/or (iii) replace such goods; provided, however, that such goods must be returned to Kowabunga, along with acceptable evidence of purchase, within fourteen (14) calendar days after Buyer discovered the lack of conformity or ought to have discovered it.
8.3 Kowabunga make no other warranty, express or implied, with respect to goods delivered, and the warranty constitutes our sole obligation in respect of any lack of conformity of goods delivered (except title). Kowabunga makes no warranty with respect to the merchantability of goods delivered or their suitability or fitness for any particular purpose.
9. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
9.1 If any goods delivered are held to infringe a third party’s patent, utility model, design, trademark or other intellectual property right and Buyer are enjoined from using same, Kowabunga will, at our option and expense: (i) procure for Buyer the right to continue using the goods; (ii) replace the goods with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (iii) modify the goods to make them non-infringing; and/or (iv) refund the purchase price of the goods less a reasonable amount for usage. The foregoing states Kowabunga’s sole liability for intellectual property rights infringement.
10. LIMITATION OF LIABILITY
10.1 Neither Kowabunga nor Buyer will be entitled to, and neither party shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, re-procurement costs, loss of data, injury to reputation or loss of customers. Buyer’s recovery from Kowabunga for any claim shall not exceed the purchase price for the goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
10.2 Kowabunga shall not be liable for any claims based on our compliance with Buyer’s designs, specifications or instructions or repair, modification or alteration of any goods by parties other than Kowabunga or Buyer or use in combination with other goods.
11. MISCELLANEOUS
11.1 The United Nations Convention for the International Sale of Goods shall not apply to these GTCS or to any contracts of sale entered into between Kowabunga and Buyer.
11.2 No waiver of any provision of these GTCS shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of these GTCS shall not constitute a waiver of such provision or any other provision(s) of these GTCS.
11.3 Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.
11.4 These GTCS and all contracts or other documents of sale entered into by and between Kowabunga and Buyer shall be governed by and construed in accordance with the laws of New Jersey without giving effect to any choice of law or conflict of law provisions. Any suits, actions or proceedings that may be instituted by either party against the other shall be instituted exclusively before the competent courts of New Jersey, however, without prejudice to our right to bring suits, actions or proceedings in any other court which would have jurisdiction if this provision had not been incorporated into these GTCS.