This Agreement is by and between Koken USA, Incorporated, a Massachussets corporation, (the Seller), and its customer (the Buyer). Seller and Buyer are collectively referred to in this Agreement individually as "Party" and collectively as the "Parties."
Description: Sale of Goods
1.Seller shall transfer and deliver to Buyer, and Buyer shall pay for and accept, the goods identified in Schedule A, which is attached to this Agreement and incorporated by reference (hereinafter “Goods”).
2.The Goods shall be delivered by Seller on or by when the best estimate when delivery can be made.
3.All prices of the Goods are F.O.B. Place of Shipment.
4. Quotations of shipping dates are based on best information available from Seller’s suppliers. Seller is not liable for any damage arising from any delay or late delivery beyond its control or the control of its suppliers. Shipping charges advertised are an estimate and are subject to change based on the weight of the items(s) ordered.
5. Once the order has been shipped from our facility, Koken USA assumes no responsibility for delayed, lost, and or damaged shipments. If your order is delayed, lost, and or damaged a claim must be filed through the shipping carrier. Please keep in mind that it can take up to 1-8 business days to process claim through UPS & FEDEX. Our customer service representatives are available to help facilitate the expediting of this claim.
Delivery in Lots
6. Buyer shall have the right to demand all of the Goods at one time during the period stated in Paragraph 2, or in portions from time to time.
a. If "Complete" is selected as the ship option additional delays may be incurred due to item(s) availability.
b. If "Partial" is selected as the ship option then additional shipping charges may be incurred due to multiple shipments.
7. Established payment terms are terms seller has agreed to but are not limited to Net 30. Payments not received by the required due date are subject to an ACCOUNT HOLD and or a 5% LATE FEE per month of the amount due. Collection fees may apply.
Method of Tender
8. Identification of the Goods under Commercial Code Section 2501 shall occur at the moment this Agreement is signed by the Parties and or goods delivered. Risk of loss of the goods shall pass to the Buyer upon shipment by Seller.
9. Title to the goods shall remain with the Seller until Buyer takes physical possession of the goods.
Cancellation of Orders
10. Buyer shall provide a written request for the cancellation of orders for Goods, which have been placed by Buyer with Seller. Merchandize that has been special ordered by Seller may incur a Twenty Five Percent (25%) Cancellation Charge.
11. If you would like to change any information on your order please contact our customer service department for further assistance. Spare parts are non-returnable, non-cancelable, and are non-refundable. Merchandise that has been special ordered and not normally stocked by us may incur a 25% cancellation charge. Once your order has shipped permission for any return merchandise must be secured from our customer service department. The return of non-defective merchandise, when authorized, may incur 25% re-stocking fee, at our discretion.We accept returns for items within the first 30 days of receiving your merchandise. You may return it for a prompt merchandise exchange, credit, or refund within 30 days of receiving your order as long as all merchandise is returned in new condition (unused and in original factory condition), with all original boxes (including all packaging materials), documentation, instructions, and accessories. All returns are subject to our inspection and approval. Personalized and custom items, and shipping and handling charges are non-refundable, and return shipping charges are the sole responsibility of the purchaser. To initiate a return, please call our Customer Service Dept. at (978) 455-0672. You are responsible for arranging the return shipment of the product. We reserve the right to deny a full refund of the purchase price if the product is not returned in the manner mentioned above. Items that are returned damaged or without proper packaging materials are subject to a 25% restocking fee (if we approve the item to be returned). For all returns and cancellations that "shipped free", a shipping charge equal to the cost of the round trip of the shipment will be withheld from the refund. It is important to save all packaging and not destroy boxes in case of a return.
Disclaimer of Express Warranties
12. Seller warrants that the Goods are as described in this Agreement, but no other express warranty is made in respect to the Goods. Goods manufactured by any party other than Seller and sold by Seller will carry that manufacture’s warranty, limited to the repair or replacement of the particular product at the discretion of the manufacturer. Seller will assist in facilitating the applicable warranty on behalf of Buyer, but is not responsible for said warranty. If any model or sample was shown Buyer, that model or sample was used merely to illustrate the general type and quality of the goods and not to represent that the Goods would necessarily conform to the model or sample.
Disclaimer of Implied Warranties
13. The Goods are being sold on an "as is" basis. The entire risk as to the quality and performance of the Goods is with the Buyer. Should the Goods prove defective following their purchase, the Buyer and not the Seller assumes the entire cost of all necessary servicing or repair.
14. The price to be paid by Buyer shall be that contained on the Seller's price list last published before the date of actual delivery of the goods.
Time of Payment
15. Buyer shall pay for the goods at the time and place of delivery, or by established payment terms.
16. Payment for Goods that are purchased from Seller will be subject to the following terms and conditions: a) Accounts may be placed on a HOLD status if payments are not received by Seller on the due date identified in Paragraph 15 herein. This HOLD will remain until all payments on all open invoices, including collection fees, have been received by Seller; b)The purchase price shall be deemed satisfied if the total invoice amount is paid in full within the established payment terms from the billing date shown on the original invoice.
Right of Inspection
17. Buyer shall have the right to inspect the Goods at the time and place of delivery before paying or accepting them. Buyer has 48 hours to file a claim of damaged, lost, or missing items. Claims filed after 48 hours may not be honored.
Method of Payment
18. Payment shall be made in cash, check, or by credit card.
Accepting PO NET 30 with approval by Accounting Department
19. Buyer and Seller shall have all remedies afforded each by the Uniform Commercial Code.
Successors and Assigns
20. All of the provisions of this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, if any, successors, and assigns.
Choice of Law
21. This Agreement shall be construed in accordance with and governed by the laws of the State of Massachusettes.
22. Any controversy, claim or dispute between the Parties hereto arising out of or related to this Agreement or the breach thereof, which cannot be settled amicably by the Parties, shall be submitted for binding arbitration in accordance with the provisions contained herein and in accordance with the Commercial Arbitration Rules of the American Arbitration Association ("Rules"); provided, however, that notwithstanding any provisions of such Rules, the Parties shall have the right to take depositions and obtain discovery regarding the subject matter of the arbitration, as provided in the Massachusettes Code of Civil Procedure. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator shall determine all questions of fact and law relating to any controversy, claim or dispute hereunder, including but not limited to whether or not any such controversy, claim or dispute is subject to the arbitration provisions contained herein. All arbitration proceedings shall be held in the State of Massachcusettes. Notice of the demand for arbitration shall be filed in writing with the other party to this Agreement and with the American Arbitration Association.
23. Should either Party hereto, or any heir, personal representative, successor or assign of either Party hereto, resort to legal proceedings in connection with this Agreement their relationship with the Company, the Party or Parties prevailing in such legal proceedings shall be entitled, in addition to such other relief as may be granted, to recover its or their reasonable attorneys’ fees and costs in such legal proceedings from the non-prevailing Party or Parties.
24. Any and all notices, demands, or other communications required or desired to be given hereunder by any Party shall be in writing and shall be validly given or made to another Party if personally served, or if deposited in the United States mail, certified or registered, postage prepaid, return receipt requested. If such notice or demand is served personally, notice shall be deemed constructively made at the time of such personal service. If such notice, demand or other communication is given by mail; such notice shall be conclusively deemed given five days after deposit thereof in the United States mail addressed to the Party to whom such notice.
25. No amendment, change or modification of this Agreement shall be valid unless in writing signed by the Parties hereto.
Entire Understanding of Parties
26. This Agreement and any exhibit attached constitute the entire understanding and agreement of the Parties, and any and all prior agreements, understandings, and representations are hereby terminated and canceled in their entirety and are of no further force and effect.
Unenforceability of Provisions/Severability
27. If any provision of this Agreement, or any portion thereof, is held to be invalid and unenforceable, then the remainder of this Agreement shall nevertheless remain in full force and effect.
Authority of Seller's Agents
28. No agent, employee, or representative of Seller has any authority to bind Seller to any affirmation, representation, or warranty concerning the Goods sold under this Agreement, and unless an affirmation, representation, or warranty made by an agent, employee, or representative is specifically included within this written Agreement, it has not constituted a part of the basis of this bargain and shall not in any way be enforceable.
29. No claim or right arising out of a breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved Party.
32. Currently Koken USA only collects and remits sales tax for items shipped inside the state of Massachusettes as required by law, and does not apply sales tax for items shipped outside of Massachusettes. If you have tax-exempt status, please contact our Accounting Department and provide a valid state tax-exempt certification prior to purchase.