Terms of Sale
Acceptance of terms
In the absence of a written agreement signed by Komar Alliance LLC (“Komar”) all sales by Komar and its subsidiaries and affiliates to any person and/or entity (including its subsidiaries and affiliates) that purchase units of products (the “Products”) from Komar(the “Buyer”)specified in any quotation, purchase order acceptance or invoice issued by Komar with respect to the Products that includes a reference to these Standard Terms of Sale (these “Terms of Sale”) will be governed by these Terms of Sale. If the terms and conditions of any offer from Buyer or any other Buyer issued document differ from these Terms of Sale, these Terms of Sale shall be construed as a counteroffer and will not be effective as an acceptance of Buyer’s terms and conditions, which are hereby rejected. THESE TERMS OF SALE, TOGETHER WITH THE TERMS SPECIFIED BY KOMAR IN ANY QUOTATION, PURCHASE ORDER ACCEPTANCE OR INVOICE ISSUED BY KOMAR WITH RESPECT TO THE PRODUCTS SHALL BE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE TERMS OF SALE BETWEEN BUYER AND KOMAR. Buyer’s failure to dissent to these Terms of Sale in writing within five (5) days of receipt thereof or Buyer’s acceptance of the Products shall constitute acceptance of these Terms of Sale. No addition to or modification of these Terms of Sale will be effective unless made in writing signed by Komar.
Quotation and prices
Unless otherwise agreed to in writing by Komar, all prices included on any quotation issued by Komar shall be exclusive of shipping, insurance, taxes, license, fees, customs duties and other charges related thereto, and Buyer shall pay all such charges related thereto; provided that, if Komar, in its sole discretion, chooses to pay any such charges, Buyer shall reimburse Komar immediately in full upon demand for any such fees or charges.
Unless otherwise agreed to in writing by Komar, all payments are due and payable in U.S. dollars within thirty (30) days from the invoice date. Komar reserves the right to require alternative payment terms, including, without limitation, a letter of credit, cash on delivery, credit card payment, or payment in advance. Payments not made by the due date may incur, at the sole discretion of Komar, a late payment service charge of the lesser of one and one-half percent (1.5%) per month or the maximum rate permitted by law, computed from the date payment was due. Komar reserves the right to seek collection of all overdue amounts (including by referral to third party collectors). If, for any reason, any invoice becomes overdue, Buyer, or its agent, agrees to pay all costs of collection, including, but not limited to, reasonable attorney fees and costs associated with such collection.
Shipping and delivery dates are estimates only, and in no event shall Komar be liable for any delay in delivery or assume any liability in connection with shipment. All Products shall be delivered F.O.B. Komar’s place of shipment. Title to Products passes from Komar to Buyer upon shipment to Buyer. Loss or damage that occurs during shipping by a carrier is the responsibility of the Buyer. Shipment costs shall be prepaid by Buyer if requested by Komar.
At Komar’s discretion and when written approval has been given, Buyer may return unwanted Products within thirty (30) days of the delivery date. Buyer is responsible for risk of loss, as well as shipping and handling fees for all returns and Buyer shall pay a twenty five percent (25%) restocking charge on any unwanted Products returned to Komar. Where custom goods or non-stock goods are involved, Buyer shall be responsible for all related work in progress; however, Komar shall take reasonable steps to mitigate damages upon receipt of written cancellation notice from Buyer. Buyer must contact Komar directly to obtain A Return-Goods-Authorization (RGA) number prior to any return of Products.
All Products delivered hereunder shall be deemed accepted by Buyer, unless written notice of defect or nonconformity is received by Komar within ten (10) days of receipt of Products at Buyer’s designated receiving address; provided that Buyer may only reject Products for failure to meet the Products specification. It is the responsibility of Buyer to inspect goods upon receipt and make notations on the Bill of Lading as to non-conformity or dispute of quantities of Products received by Buyer prior to signing the Bill of Lading.
Any information that Komar or the Buyer receive or otherwise have access to incidental to or in connection with these Terms of Sale (collectively, the “Confidential Information”), shall be and remain the property of the disclosing party. Confidential Information shall not include information which: (i) was in the possession of the receiving party at the time it was first disclosed by the disclosing party; (ii) was in the public domain at the time it was disclosed to the receiving party; (iii) enters the public domain through sources independent of the receiving party and through no breach of this provision by the receiving party; (iv) is made available by the disclosing party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality to the disclosing party; or (vi) was at any time developed by the receiving party independently of any disclosure by the disclosing party. Confidential Information may not be shared with third parties unless such disclosure is to the receiving party’s personnel, including employees, agents and subcontractors, on a “need-to-know” basis in connection with these Terms of Sale, so long as such personnel have agreed in writing to treat such Confidential Information under terms at least as restrictive as those herein. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. In no event shall Buyer acquire any right, title or interest in and to any Product or process information, including related know how, either existing or developed during the course of the business relationship between Komar and Buyer.
ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND OTHER THAN SUCH WARRANTY AS MAY BE PROVIDED IN WRITING TO BUYER BY OR ON BEHALF OF THE MANUFACTURER OF THE PRODUCTS (FOR WHICH WARRANTY SUCH MANUFACTURER SHALL BE SOLELY LIABLE), AND NO OTHER WARRANTIES, EITHER EXPRESSED OR IMPLIED ARE MADE WITH RESPECT TO THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT. BUYER ACKNOWLEDGES THAT KOMAR IS AN INDEPENDENT DISTRIBUTOR OF THE PRODUCTS AND NOT THE MANUFACTURER. KOMAR DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE PRODUCTS WILL BE ERROR FREE. KOMAR EXPRESSLY DISCLAIMS ANY WARRANTIES. FURTHER, ANY WARRANTIES WHICH MAY BE PROVIDED DO NOT COVER DAMAGE DUE TO EXTERNAL CAUSES, SUCH AS ACCIDENT, ABUSE, MISUSE, USAGE NOT IN ACCORDANCE WITH A PRODUCT’S INSTRIBUTIONS, NORMAL WEAR AND TEAR.
Limitation of liability
It is the sole obligation and responsibility of Buyer of the Products to determine the character of the merchandise and to select suitable Products for the purpose intended. To the extent not prohibited by applicable law: (a) Komar’s aggregate liability to Buyer from claims related to the Products, whether for breach of contract, statuteor in tort, including negligence, is limited to the amounts Buyer has paid to Komar for the Products; and (b) KOMAR WILL NOT BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THESE TERMS OF SALE, THE PRODUCTS OR THE SALE, INSTALLATION, MAINTENANCE, USE, PERFORMANCE OR NON-PERFORMANCE OF THE PRODUCTS (INCLUDING, BUT NOT LIMITED TO, REPLACEMENT COSTS OR LOSS OF BUSINESS, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE), HOWEVER THEY ARISE, WHETHER FOR BREACH OF CONTRACT, STATUTEOR IN TORT, INCLUDING NEGLIGENCE, EVEN IF KOMAR HAS BEEN PREVOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. These limitations, exclusions and disclaimers shall apply to all claims for damages, whether based in contract, warranty, strict liability, negligence, tort or otherwise. The parties acknowledge that if Komar provides the Products to Buyer, it does so in reliance upon the limitations of liability and the disclaimers of warranties and damages set forth herein, and that the same form an essential basis of the bargain between the parties. Liability for damages will be limited and excluded as set forth in this paragraph, even if any exclusive remedy provided for in these Terms of Sale fails of its essential purpose.
Independent contractor relationship; assignment; subcontracting
The parties are independent contractors. No provision of these Terms of Sale will or shall be deemed to create an association, trust, partnership, joint venture or other entity or similar legal relationship between Komar and Buyer, or impose a trust, partnership or fiduciary duty, obligation, or liability on or with respect to such entities. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. Komar has the right to assign, subcontract or delegate in whole or in part these Terms of Sale, or any rights, duties, obligations or liabilities under these Terms of Sale, by operation of law or otherwise. Otherwise, neither party may assign these Terms of Sale without the permission of the other.
Neither party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under these Terms of Sale during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot or the intervention of any governmental authority (a “Force Majeure”). In such event, however, the delayed party must promptly provide the other party with written notice of the Force Majeure. The delayed party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than 30 days, then the other party may immediately terminate the agreement, in whole or in part, by giving written notice to the delayed party.
Buyer acknowledges reading these Terms of Sale, understands them and agrees to be bound by them. A waiver of any provision of this agreement shall not be construed as a waiver or modification of any other term hereof. With respect to all orders accepted by Komar, disputes arising in connection with these Terms of Sale shall be governed by the laws of the State of California, without regard to principles of conflicts of laws. Application of the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded. Each party hereby consents to the jurisdiction of any state or federal court located in Los Angeles County, California with respect to any proceeding arising hereunder. The parties agree that any dispute shall be brought exclusively in the state or federal courts located in Los Angeles County, California, and agree to waive any and all objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
In the event any provision of these Terms of Sale is held by a tribunal of competent jurisdiction to be contrary to the law, the remaining provisions of the Terms of Sale will remain in full force and effect. All sections herein relating to payment, ownership, confidentiality, indemnification and duties of defense, representations and warranties, waiver and provisions which by their terms extend beyond the Term shall survive the termination of theseTerms of Sale.
These Terms of Sale and the operative provisions of any quotation, purchase order acceptance or invoice issued by Komar, sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them. No party shall be bound by any condition, definition, warranty, or representations, other than as expressly set forth or provided for in a purchase order acceptance, invoice or these Terms of Sale, or as may be, on or subsequent to the date hereof set forth in writing and signed by the party to be bound thereby. Neither these Terms of Sale, or any quotation, purchase order acceptance or invoice issued by Komar may be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.