House of Kuipers, LLC (“HOK”) Event Terms and Conditions
1. Payment Terms
Buyer shall pay full invoice Total in accordance with the following payment terms. Payment is due upon receipt of the original invoice. Payment shall be made for the Products without regard to whether Buyer has made or may make any inspection or use of the Products. Any invoiced amount which is not paid when due will bear interest at the rate of 3.75 percent per month or the highest rate permitted by law with respect to such obligation.
The invoice Total is exclusive of any sales, use or privilege tax, customs duty or import, excise tax based on gross revenue or any similar tax or charge which might be levied as a result of the production, sale or shipment of any Products or the use of any Products by Buyer. Buyer agrees to pay and otherwise be fully responsible for any such taxes (except for taxes based on the net income of Seller). Any personal property taxes assessable on the Products after delivery shall be borne by Buyer. Seller shall have the right, but shall not be obligated, to pay any such taxes directly, in which event Buyer shall promptly reimburse Seller in the amount thereof upon presentation by Seller of evidence of payment.
3. Security Interest
Seller retains a security interest in the Products (and replacements) and all proceeds and products thereof until the full purchase price therefor (including taxes and additional charges) has been paid. Buyer’s failure to pay any amount when due shall give Seller the right to repossess and remove the Products. Such repossession and removal shall be without prejudice to any of Seller’s other remedies at law or in equity. Buyer agrees, without further consideration, at any time to do or cause to be done, executed and delivered, all such further acts and instruments as Seller may reasonably request in order to perfect and protect Seller’s security interest in the products, including, without limitation, a financing statement appropriate for filing.
Delivery of the Products to Buyer will be F.O.B. Seller’s designated site, 5304 Derry Ave Suite G, Agoura Hills, CA 91301. The Products will be shipped in Seller’s standard shipping packages to Buyer at Buyer’s address set forth below. Seller will not “drop ship” to any other location unless agreed upon in writing. Unless otherwise instructed in writing by Buyer, Seller will select the carrier. Title and risk of loss to Products purchased under this Agreement shall pass to Buyer upon delivery thereof to the carrier, whether or not the Products conform to the terms of this agreement. Shipping dates, if any, set forth in Seller’s Purchase Order are approximate only and merely represent Seller’s best estimate of the time required to make shipment. Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer as a result of any delay in delivery for any reason other than arbitrary refusal of Seller to perform. Seller may deliver Products in installments. If any shipment of Products is delayed at Buyer’s request, Seller may invoice Buyer for such Products, and risk of loss to such Products shall pass to Buyer on the date Seller is prepared to make shipment.
5. Inspection and Rejection
Buyer may not reject or revoke its acceptance of any Product(s) unless the nonconformity of such Product(s) is substantial. No nonconformity or defect in any lot or installment shall constitute grounds for claiming breach of the entire purchase order or sales agreement, and any lots or installments whose conformity Buyer does not dispute shall be paid for in accordance with these terms and conditions, regardless of any dispute concerning other shipments or installments, or undelivered products. Seller reserves the right to cure, by repair or replacement, any defects within a reasonable time after receiving written notice of such defects from the Buyer. Buyer has 7 days following delivery of Products hereunder to give Seller written notice of any claimed defect in such Products (other than latent defects not discovered by Buyer). Buyer agrees that such notice period is reasonable. Failure to give timely notice, as provided above, shall be deemed irrevocable acceptance of such Products.
6. Disclaimer of all Implied Warranties
DISCLAIMER OF ALL IMPLIED WARRANTIES
The Products covered by this contract are offered “AS IS” and “WITH ALL FAULTS.” Buyer understands and agrees that all warranties implied by the provisions of the California Uniform Commercial Code are excluded from this sale.
Seller shall in no event have obligations or liabilities to Buyer or any other person for loss of profits, loss of use or incidental, special or consequential damages, whether based on contract, tort (including negligence), strict liability or any other theory or form of action, even if Seller has been advised of the possibility thereof, arising out of or in connection with the sale, delivery, use, repair or performance of the Products or the Programs, or any failure or delay in connection with any of the foregoing. Without limiting the generality of the preceding sentence, Seller shall not be liable for personal injury or property damage.
8. Force Majeure
If the performance of this Agreement or any obligation hereunder, except the making of payments hereunder, is prevented, restricted or interfered with by reason of fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed.
Failure to make any payment when due in accordance with the terms hereof shall constitute a default. Any other material breach of this contract by either party shall constitute a default if not cured within 24 days after written notice of such breach is given.
10. No Waiver
The failure by either party to enforce at any time any of the provisions of this Agreement, or to exercise any election or option provided herein, shall in no way be construed as a waiver of such provisions or options, nor in any way to affect the validity of this Agreement or any part thereof, or the right of either party thereafter to enforce each and every such provision.
11. No Other Warranty or Representation
Buyer hereby acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation by any person or entity except for the warranties or representations specifically set forth herein and in the Purchase Order.
12. HOK Marketing Rights
Buyer agrees to allow HOK non-exclusive rights to the final custom product and relevant logos / trademarks for marketing purposes.
13. Applicable Law
This Agreement shall be governed by the laws of the State of California as such laws are applied to contracts between residents entered into and to be performed entirely within the State of California.
The invalidity in whole or in part of any of these terms and conditions shall not affect the validity or enforceability of any other term or condition.