TERMS AND CONDITIONS

THESE ‘TERMS AND CONDITIONS’ ARE ESTABLISHED BY KOHLTECH, LLC FOR THE SPECIFIC PURPOSE OF GOVERNING THIS TRANSACTION.  YOU SHOULD READ THESE ‘TERMS AND CONDITIONS’ IN THEIR ENTIRETY.  THEY ARE THE ONLY ‘TERMS AND CONDITIONS’ THAT THE PARTIES TO THIS TRANSACTION SHALL ADHERE TO, EVEN IF YOU FORWARD KOHLTECH, LLC ‘TERMS AND CONDITIONS’ THAT YOU CLAIM “SUPERCEDE” OR OTHERWISE INVALIDATE THESE ‘TERMS AND CONDITIONS.’  ANY CHANGES TO THESE ‘TERMS AND CONDITIONS’ SHALL BE APPROVED IN WRITING AND SIGNED AND DATED BY A DESIGNATED KOHLTECH, LLC REPRESENTATIVE.

 

“PURCHASE ORDER” DEFINED.  As used herein, the term “Purchase Order” shall include any Kohltech-approved documentation reflecting an order for goods or services that has been received by Kohltech, LLC and shall also include any attached or related ‘Vendor Stocking Agreement,’ these ‘Terms and Conditions,’ and any other similar document issued in relation to such transaction and included with any of the aforementioned documents.

 

NO ADDITIONAL TERMS.  Additional terms are hereby rejected in their entirety and therefore shall not be binding upon Kohltech, LLC. To the contrary, Kohltech, LLC insists upon strict compliance with the Purchase Order (as defined).  If the Purchase Order is deemed to be an acceptance of a prior offer by Kohltech, LLC, such acceptance is conditioned upon Buyer’s assent to all additional or different terms and conditions contained herein.  No revision to the Purchase Order shall be valid unless in writing and signed by an authorized representative of Kohltech, LLC.

 

COMPLETE AGREEMENT.  The Purchase Order constitutes the entire agreement between Kohltech, LLC and the Buyer relating to the goods and/or services which are the subject to this transaction and shall therefore supersede all prior negotiations, proposals, and writings.

 

CUSTOM PRODUCTS.  Custom Products designed and/or manufactured by Kohltech specifically for a customer, are NON-CANCELLABLE under any circumstances.  Any acceptance of alteration or partial cancellation of a Purchase Order issued to Kohltech, must be agreed upon in writing signed by an authorized representative of Kohltech and returned to the customer. 

 

BLANKET / LONG TERM ORDERS. Purchase Orders received by Kohltech that designate delivery dates over the course of multiple months and/or years, may not be altered from the original dates in the Purchase Order without the express written approval by a representative of Kohltech

 

DELAYED DELIVERY. From time to time customers request to delay a delivery by 30 or more days from the original dates listed in the Purchase Order.  Kohltech reserves the right to approve or disapprove of any request at its sole discretion.  Acceptance of an instance of delay does not guarantee any future acceptance.  Each request must be made and accepted independently of any other request. 

ADVANCE PAYMENTS.  Custom designed or manufactured orders may require a deposit, or payment in full prior to shipment.  Deposits or up-front payments are non-refundable. 

 

ACCEPTANCE AND PAYMENT.  The Purchase Order shall be deemed agreed to by Buyer, and shall become a binding contract on all terms, upon receipt of Kohltech’s Order Confirmation.  Contract fulfillment will be based upon: (i) your acknowledging receipt of the goods or services through electronic or physical notice or signature or (ii) any payment under the Purchase Order, whichever occurs first.  Payment is due to Kohltech, LLC at the time of receipt or otherwise agreed upon payment terms

 

CREDIT CARD PAYMENTS.  Credit card payments, when accepted, are non-refundable. Any dispute over the quality of products, or adherence to design specifications that the Buyer deems non-conforming or defective, must be addressed through the Kohltech Warranty process.  No credit card charges may be reversed or “charged back” without written prior authorization from Kohltech, LLC.  By making payment with a credit card, Buyer acknowledges and accepts these payment terms in full.  In the event that the Buyer attempts to reverse or charge back a credit card payment, Buyer understands that Kohltech will provide a complete copy of these Terms and Conditions to any credit card issuer. 

 

CREDIT CARDS & TRANSACTION FEES.  Kohltech LLC pays transaction fees for the use of Credit Cards or other payments services by our customers.  These fees are not considered part of the contract offer pricing provided by Kohltech in our quoting process.  Any payment made by credit card, or other service upon which the issuer charges fees shall be added to the total amount due by the customer.  Customer agrees to pay all associated fees and that such fees are due and owed to Kohltech based on the customer’s use of credit or alternative payment services. 

 

RIGHT OF ENFORCEMENT.  Kohltech, LLC shall have the right to enforce all provisions of, and avail itself of all related rights flowing from, the Purchase Order.  The parties may also exercise any rights which may be provided in law or at equity.

 

RESERVATION OF RIGHTS.  Kohltech, LLC’s failure to enforce any term, condition, or instruction, as well as its failure to exercise any right, privilege, or waiver of any breach shall not subsequently waive any such term, condition, instruction, or right or privilege.

 

TITLE AND OWNERSHIP.  Until delivery to Buyer’s designated site and receipt of full payment, Kohltech, LLC warrants full and unrestricted title to Buyer for all goods supplied under the Purchase Order, free and clear of any and all defects, liens, restrictions, reservations, security interests, and encumbrances.

 

INTELLECTUAL PROPERTY.  All intellectual property of Kohltech, LLC shall be the sole and exclusive property Kohltech, LLC.  This shall include but is not limited to drawings, specifications, photographs, ingredients, designs and other engineering and manufacturing information.  Kohltech, LLC’s intellectual property shall not be used, reproduced, disclosed, or transmitted by any party that does not own it without express written consent of Kohltech, LLC. Upon final completion of this transaction, Buyer shall promptly return to the Kohltech, LLC or otherwise destroy all of the intellectual property which came into possession of Buyer at any time.

 

WARRANTIES. Kohltech, LLC warrants to Buyer that the goods purchased will conform to the specifications, drawings, samples, and other descriptions and representations of the Purchase Order and will in all respects meet the requirements of the Purchase Order.  Kohltech, LLC also warrants that the goods will be merchantable and free from defects in material and workmanship, do not infringe of any patent or copyright and, further, will satisfactorily fulfill all conditions specified in the Purchase Order.  Kohltech, LLC shall provide Buyer with all manufacturer warranties and any specific guarantee or warranty forms.

 

LIENS.  Kohltech, LLC hereby warrants that all goods are free and clear of liens, claims, and encumbrances.  Kohltech, LLC agrees to indemnify, defend, and hold Buyer harmless from all liens, including but not limited to laborers’, materialmen’s, and/or mechanics’ liens arising from or attaching to Kohltech, LLC’s goods.

 

CHANGE ORDERS.  Buyer may request changes in quantities, specifications, and delivery dates. Price differences resulting from such changes shall be adjusted in writing after Kohltech, LLC’s receipt of Buyer’s request for a change order.  Kohltech, LLC shall only be deemed to have agreed to the change order by issuing a written order signed by an authorized representative, thereby making changes in any one or more of the following: (a) place or time of delivery; (b) designs or specifications; (c) quantity of items purchased; and (d) method of shipment or packing.  If any such change causes a material increase or decrease in the cost or time of performance, equitable adjustment will be made in price or delivery schedule or both.

 

CANCELLATION.  Kohltech, LLC shall have the right to cancel all or any unperformed part of the Purchase Order at any time by written notice to Buyer if for reasons beyond Kohltech, LLC’s immediate control Kohltech, LLC cannot comply with the Purchase Order.  Refund to Buyer, if any, shall be promptly made based upon the portion of the Purchase Order satisfactorily performed to the date of cancellation, substantiated by documentation.  Buyer shall not be entitled to any loss of prospective profits, contribution to overhead, or incidental, consequential, or other damages because of such cancellation.

 

SHIPMENT.  Kohltech, LLC will create a ‘Notice of Shipment’ for each Purchase Order.  The ‘Notice of Shipment’ will include a Purchase Order number, quantity and description of goods, and manner of transportation used.  Goods shall be prepared, packed, and shipped in a manner that will comply with all applicable regulations and that will prevent damage in transit.

 

HARMFUL MATERIALS.  Upon Buyer’s written request, Kohltech, LLC agrees to furnish ‘Material Safety Sheets’ as required by 29 CFR Subsection 1910.1200, as well as a list of all ingredients and their quantities which are contained in materials purchased hereunder.

 

RECEIPT, INSPECTION, AND NOTIFICATION OF DEFECTS.  All goods delivered to Buyer shall be inspected by Buyer as soon as reasonably possible upon receipt.  Upon inspection, Buyer shall reject all or any portion of the goods that Buyer deems non-conforming or defective, with proper documentation of such defect, in writing and upon presentation to an authorized representative of Kohltech, LLC.  Any rejected materials shall be returned to Kohltech, LLC within a reasonable time after written notice thereof.  Buyer’s failure to inspect the goods or notify Kohltech, LLC of an alleged defect shall unconditionally relieve Kohltech, LLC of any liability under its warranties or any other term of the Purchase Order.

 

REMEDIES.  All alleged defective or nonconforming goods shall be subject to inspection and approval by Kohltech, LLC at a reasonable time after delivery.  Upon receiving sufficient evidence of a defect, Kohltech, LLC may issue a refund for such goods, issue a credit for such goods, repair them, replace them.  However, such actions in relation to nonconforming or defective goods shall not limit or impair Kohltech, LLC’s right to assert any legal or equitable remedy.  All costs and expenses incurred shall be chargeable to Kohltech, LLC.  Should it become necessary for Buyer to store any goods rejected under the Purchase Order while using good faith measures to coordinate return of the goods to Kohltech, LLC, Buyer will hold any such goods at Kohltech, LLC’s risk and expense, including storage charges.  Upon late or partial delivery or performance by Kohltech, LLC, Buyer may, at its option, approve a revised delivery schedule or cancel the order.  No other remedies shall be acceptable.

 

INDEMNIFICATION.  Kohltech, LLC agrees to indemnify, hold harmless, and defend Buyer against all claims by third parties asserting an ownership interest, lien, encumbrance, security interest, or any other interest in the goods identified in the Purchase Order against Buyer.  However, Kohltech, LLC shall not be responsible for consequential, incidental, or punitive damages for the loss of services, loss of profits, loss of product, or business interruption.

 

WAIVER.  Any failure by Kohltech, LLC at any time, or from time to time, to enforce or require the strict compliance and performance of any of the terms or conditions of the Purchase Order shall not constitute a waiver of such terms or conditions and shall not affect or impair such terms or conditions in any way or the right of the Kohltech, LLC at any time to avail itself of such remedies as it may have for any breach or breaches of such terms and conditions.

 

CONFLICT IN TERMS.  In the event of a conflict between the terms and conditions of the Purchase Order and any subsequent documents, including without limitation, confirmations, invoices, statements, published rate or price schedules, or any other documents used by either party in the normal course of business, the terms and conditions of the Purchase Order shall prevail unless express written reference is made therein to amending specific provisions of the Purchase Order and the same is signed by a duly authorized representative of Kohltech, LLC and a duly authorized representative of Buyer.

 

COMPLIANCE WITH LAWS; ILLEGALITY.  The parties shall comply with all applicable federal, state, and local rules, regulations, codes, and laws in all facets of this transaction.  In case any one or more of the provisions contained in the Purchase Order should be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired. 

ASSIGNMENT.  Kohltech, LLC shall not assign, delegate, sublet, or subcontract its rights or performance under the Purchase Order without the express written consent of Buyer.

 

SURVIVAL. The provisions of the Purchase Order shall survive beyond the time of the acceptance of the goods to the extent necessary to give effect to any provisions herein and to enforce such rights and obligations.

 

APPLICABLE LAW/VENUE.  The Purchase Order shall be governed by the laws of the State of New Jersey without regard to conflict of law rules which could direct or refer the laws of another jurisdiction.

 

DISPUTE RESOLUTION.  Any dispute or controversy arising out of or relating to the Purchase Order shall first be subject to dispute resolution through mediation.  Mediation shall have the same legal and jurisdictional parameters of any legal proceeding, taking place in the State of New Jersey.    Should mediation not come to a mutually agreed upon resolution, the dispute shall be subject to litigation  in a court of competent jurisdiction in the State of New Jersey, and may not be commenced in any other court or tribunal.  Buyer hereby expressly agrees that Kohltech, LLC shall be entitled to all legal fees that Kohltech, LLC incurs in enforcing its rights under the Purchase Order.

 

FORCE MAJEURE.  In the event of strikes,  slowdowns, lockouts, or similar labor problems, riot, wars, interactions, civil commotions, terrorist acts, any government action or inaction (whether valid or invalid), fires, accidents, explosions, floods, or other similar occurrences beyond  Kohltech, LLC’s  control  or  occurring  without  Kohltech, LLC’s  fault  or  negligence  which  affect its ability to deliver the goods or services covered by the Purchase Order, Buyer may: (a) suspend or cancel shipment or (b) purchase materials and services from other sources and reduce its schedules to Kohltech, LLC in such quantity.  Any delay or failure of Kohltech, LLC to perform hereunder shall be excused if and to the extent such delay or failure results from any occurrences without Kohltech, LLC’s fault or negligence, provided that Kohltech, LLC notifies Buyer in writing of the existence of such occurrence and the anticipated duration of the delay immediately upon learning of the occurrence.

 

LIMITATION ON KOHLTECH’S LIABILITY.  Kohltech, LLC’s liability for any claim arising out of or relating to the Purchase Order shall be limited to the price of the materials or services or unit thereof which gives rise to the claim.

 

NOTICES.  Notices required to be given hereunder shall be effective if hand delivered, sent by generally recognized overnight courier service (charges prepaid), mailed to the address listed on the Purchase Order via regular or certified mailing, or sent via electronic mail (i.e., email).  Notice via facsimile is not acceptable.

 

TERM OF AGREEMENT.  The Purchase Order shall be effective as of the date signed and shall continue in full force and effect while governed by the terms hereunder, unless otherwise terminated in writing.