1. GENERAL
All sales are made only to and in accordance with the following terms and conditions, none of which may be revised, modified or amended by any other form or document unless agreed to in a signed writing by Kango, Inc. (“Kango”). Any term, condition or proposal submitted to Kango, whether oral or in writing, that is inconsistent with or in addition to the Terms and Conditions set forth herein is objected to and shall not form any part of the agreement between Kango and the Buyer. Kango’s failure to respond or object to any such additional or contradictory terms shall not be construed in any manner as approval or acquiescence thereto.
2. PRICES
Our prices are quoted on an ex-works basis, excluding taxes. All prices reflect Buyer’s net cost in U.S currency. The prices do not include freight, applicable federal, state and local taxes, charges and duties, or special crating requirements for export shipping. Invoices are drawn up on the basis of the price list applicable when the goods are delivered. Prices and delivery lead times stated in quotations are valid for thirty (30) days and changing circumstances may result in variations thereafter.
3. TERMS OF PAYMENT
Our invoices are payable by account transfer with a term of net 30 days. No minimum order required.
Any overdue amounts are subject to late payment penalties of 1.5% per month. As these penalties are agreed by both parties they shall be applicable without formal notice.
In the event that an installment is not paid on time, the entire remaining balance shall automatically become due and deliveries shall be suspended.
4. TECHNICAL SPECIFICATIONS; WARRANTY
All characteristics, dimensions, weight, etc., listed in our documentation are for information only. We reserve the right to make any changes we deem necessary to our Products. Kango warrants to the Buyer that the Product sold to Buyer is free of defects in the suitability of materials and workmanship. THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED.
5. DISCLAIMER OF ALL OTHER WARRANTIES
Except as expressly set forth above, Kango hereby disclaims all other warranties of any kind or nature, EITHER express or implied, including but not limited to any warranty of merchantability or fitness for a particular purpose.
6. DELIVERY LEAD TIME
Delivery lead times are given for information only and shall not be binding. Lead times are calculated from the date of the order acknowledgement. Except as provided by law, no delay shall entitle the Buyer to cancel an order or claim any allowances or penalties.
7. DELIVERY; RECEIPT
Unless otherwise agreed to in writing: (a) delivery of the Product will be in accordance with Kango’s shipping policy then in effect; (b) all Products will be shipped F.O.B. Kango’s warehouse or plant; and (c) all risk of loss or damage will pass to Buyer upon delivery by Kango to a common carrier or to the Buyer’s representative. (Buyer should obtain such insurance as it may determine.) Delivery will be subject to any payment provisions herein or as otherwise agreed and Kango’s receipt of any information or documentation as may be necessary for the import of the Products to be delivered.
8. INSPECTION
Buyer should thoroughly inspect all items for damage before accepting delivery. Buyer must notify Kango in writing (fax or e-mail is satisfactory) within five (5) business days following the delivery. Failure to give notice shall be deemed to be full acceptance. Such notice shall be sufficiently detailed to advise Kango of the rejection. Although Kango’s responsibility for loss or damage ceases when the Products are accepted for shipment by the carrier, Kango will, if notified timely, file a damage claim with the carrier if chosen by Kango, issue a credit for the damaged goods and promptly ship to the Buyer replacement Product, all in accordance with and subject to the Terms and Conditions set forth herein. Buyer shall, at Kango’s option, return damaged Products to Kango pursuant to Kango’s instructions.
9. LIMITATION OF LIABILITY
Kango’S liability with respect to any Products delivered to Buyer shall be limited to replacement of the Products or return of the purchase price. In no event shall Kango be liable for any special, consequential, incidental, punitive or exemplary damages, including, but not limited to, damages for lost profits, loss of use, lost data or for any damages or sums paid by Buyer to third parties, even if Kango has been advised of the possibility of such damages. The foregoing limitation of liability shall apply whether the claim is based upon principles of contract, warranty, negligence or other tort, breach of any statutory duty, principles of indemnity or contribution, the failure of any limited or exclusive remedy to achieve its essential purpose, or otherwise. Except as set forth herein, Kango will not be liable for any damage, loss, cost or expense for breach of warranty.
10. RETURNS
No goods may be returned without our prior written approval. Packaging and transport costs shall be borne by the Buyer. Requests to return goods shall be made within 8 working days of the goods being received by the Buyer. Goods returned must be in strictly new condition.
11. EXECUTION OF ORDERS; EXCUSED NON-PERFORMANCE
We shall be relieved of our obligation to deliver in the event of an Act of God, force majeure or any situation, reason or cause beyond Kango’s control, including strikes, rioting, fire, flooding or serious accidents involving the machinery in our manufacturing plants, transport failures, unavailability of materials.
12. JURISDICTION; CHOICE OF LAW
Buyer agrees that any dispute or controversy shall be governed, interpreted and construed by Ohio law and any dispute or controversy hereunder shall be prosecuted exclusively in courts located in Pickaway County, Ohio. In no event shall any existing treaty or any United Nations convention on contracts for the sale of goods be applicable to any agreements between Kango and the Buyer. Buyer agrees that if Kango is successful in any action brought against Buyer or in any action initiated by Buyer, Kango will be entitled to recover reasonable attorneys’ fees incurred therein.
13. OWNERSHIP CLAUSE
The Buyer personally undertakes not to dispose of the goods purchased by any means whatsoever, either in full ownership or as collateral, until the price has been paid in full.
Should the Buyer refuse to return any unpaid goods, a simple summary order shall be sufficient to dissolve the sale and authorise the repossession of the said goods and Kango shall be deemed to have a purchase money security interest in such goods.
Any down payments received shall be retained as damages.
Despite the ownership clause, all risks relating to transport or which may arise after taking possession of the goods shall be assumed by the Buyer, who should take out appropriate insurance at its own expense.
14. WAIVER
No waiver by Kango of one or more of these Terms and Conditions or any defaults hereunder shall constitute a waiver of the remaining terms and conditions or of any future defaults hereunder. No failure or delay by Kango in exercising or enforcing any right hereunder shall operate as a waiver thereof or preclude any other exercise or enforcement of rights hereunder.
15. SEVERABILITY
Any provision of these Terms and Conditions that is prohibited or unenforceable under the laws of the State of Ohio shall be ineffective to the extent of such prohibition or unenforceability, without impairing or invalidating the remaining provisions of these terms and conditions.
