Terms and Conditions
General Terms of KODA Modular Houses
- General terms and conditions
- These general terms and conditions (hereinafter “General Terms”) apply to all sales agreements (hereafter, “Sales Agreement”) of KODA modular houses, directly or indirectly manufactured by Seller or Seller’s sublicensee (“Koda” or ”Modular House”).
- Seller shall be Big Sun Modular, LLC, a Delaware limited liability company, with an office location at 777 Third Avenue #2601, New York, NY 10017, and Buyer shall be the individual or company that is entering into the Agreement (collectively, “Parties”).
- Any capitalized term used and not defined herein shall have the meaning assigned to such term in the Sales Agreement.
- The Annexes attached hereto include the User Manual attached as Annex A and the Customized List of Equipment attached as Annex B (collectively, “Annexes” and together with the Sales Agreement and General Terms, this “Agreement”).
- In the event of any conflict between the Sales Agreement, these General Terms, and the Annexes, the conflicting provisions shall be given priority according to the following order of precedence: (1) modifications to the Sales Agreement and/or General Terms as published on the BSM website (https://bigsunmodular.io/) or notified to Buyer, with the latest of such taking precedence; (2) the Sales Agreement; (3) the General Terms; and (4) the Annexes.
- In order to accept the Agreement, Buyer is required to electronically accept by clicking on the Acknowledgment checkbox in the “Reserve” section of “I accept”. Buyer acknowledges that Buyer has carefully reviewed these terms, to which the Buyer is a party, fully understands and is aware of the Agreement, and understands Buyer’s rights, obligations and responsibilities herein. Buyer acknowledges that Seller has presented Buyer with the opportunity to review and agree to this Agreement. By clicking “I accept” and continuing the purchase, Buyer agrees to the Agreement.
- Sale of Modular House
2.1. Pursuant to the Sales Agreement the Seller sells and the Buyer buys the factory-prefabricated Modular House, the model and quantity of which are specified in the Sales Agreement.
2.2. The Parties have agreed that the Modular House must adhere to the technical specification and descriptions provided in the Annexes in all material respects.
- Term and delivery of Modular House
3.1. The Seller will use commercially reasonable efforts to deliver the purchased Modular House to the Buyer on or around the date and time specified in the Sales Agreement (“Delivery Dates”). However, Delivery Dates are estimates and not guaranteed.
3.2. Upon delivery of the Modular House to the Buyer, the Buyer shall sign an acknowledgement of delivery and receipt prepared by Seller. The Buyer shall, within twenty-four (24) hours of such signature and acknowledgement, inspect the Modular House and immediately notify Seller of any visible defects or deficiencies within such time.
3.3. The Buyer is solely responsible for procuring any and all necessary permits, variances, conditional use approvals, easement vacations, easements, re-zoning, and clarifications, approvals and decisions from any and all relevant authorities having jurisdiction (“AHJs”) for the Modular House and for ensuring that the delivery site is fully prepared for delivery of the Modular House, and fully accessible for delivery of the Modular House. Prior to shipping and delivery, the Buyer or Buyer’s general contractor isshall certify and guarantee to Seller that all necessary permits have been procured, and that the site to which the Modular House is to be delivered is fully prepared for delivery and fully accessible to the Seller. The Seller’s obligation to deliver the Modular House from the licensed manufacturer is contingent upon receipt of the aforementioned certification and guarantee from Buyer or the Buyer’s general contractor. The Delivery Date in the Sales Agreement will be adjusted, and Seller may be entitled to an increase in Price in the event that such certification and guarantee is not provided by the required date.
3.4. The risk of loss (including without limitation for accidental destruction and damage) of the Modular House transfers to the Buyer upon delivery of the Modular House to a common carrier at place of business of the Seller or the Seller’s licensed manufacturer as applicable. Buyer shall be responsible to purchase and maintain adequate insurance for the full value of the Modular Home prior to delivery.
3.5. The Buyer acknowledges that special knowledge, skills, tools, licensing and equipment may be required for assembly and disassembly of the Modular House, including but not limited to connection to and disconnection from utility lines and lifting and transport. The Buyer hereby acknowledges that the Buyer understands these actions can only be properly performed by a specialist with special knowledge and expertise concerning these actions. The Buyer is solely responsible for ensuring that each of the above-referenced actions is only performed by individuals who have the special knowledge and equipment necessary to competently perform the above-referenced tasks. The Parties agree that except in the event of gross negligence or willful misconduct by the Seller, the Seller does not, and shall not, have any liability for any damage, loss, claim or injury that occurs as a result of the above-referenced actions, including any damage or injury to, or caused by, the Modular House.
- Pricing and invoice management
4.1. The Buyer shall pay the Seller the amounts set forth in the Sales Agreement (the “Price”) at the times set forth in the Sales Agreement.
4.2.The Price includes only the costs and expenses relating to the manufacture of the Modular House and does not include any other costs or expenses, including without limitation the cost of delivery, transport, shipping, unloading, placement of the Modular Home, installation of the Modular Home, building permits, zoning, land acquisition, real property entitlement, demolition, excavation, landscaping, site preparation, foundation design and construction, utility hookup to the Modular House, or the assembly, installation, and connection to utility lines unless explicitly agreed otherwise by the Parties. The Price is exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Buyer. The Buyer shall be responsible for all such charges, costs and taxes, provided that the Buyer shall not be responsible for any taxes imposed on, or with respect to, the Seller’s income, revenues, or gross receipts. The Buyer will directly pay third-party service providers for any services relating to the Modular House, or, if mutually agreed in writing, reimburse the Seller for any such third-party costs and expenses paid directly by the Seller.
4.3. The Buyer understands and agrees that the Price also does not include the cost of after-sales services, maintenance, spare parts, or replacement parts (except with respect to costs arising from any defects in the Modular House that are covered by the warranty set forth in Section 5.1 hereof or any original manufacturer warranty as may be further set forth in the User Manual attached as Annex A). Further, the Buyer agrees that if, during the performance of this Agreement, the price of the materials used to build the Modular House significantly increases, through no fault of the Seller or the Seller’s third-party manufacturer, the Price shall be equitably adjusted by an amount reasonably necessary to cover any such significant price increases. In such case, the Seller will provide the Buyer with written notice via email and/or publication on the BSM website (https://bigsunmodular.io/) at least fourteen (14) days prior to the price increase.
4.4. If the Parties have agreed that the Buyer will make an advance payment (“Deposit”) to the Seller and the Buyer fails to make the Deposit in a timely manner, the Seller has no obligation to perform any of its obligations under this Agreement until the Buyer has paid the Deposit in full. THE BUYER AGREES THAT DEPOSIT OF ANY KIND SHALL BE NON-REFUNDABLE.
4.5. Time is of the essence for Buyer’s payment obligations hereunder. If the Buyer fails to pay the Price in a timely manner, time being of the essence, Buyer shall pay interest at the lesser of the amount set forth in the Sales Agreement and the maximum amount chargeable under applicable law and shall reimburse Seller for all reasonable costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
4.6. Unless otherwise agreed by the Parties, the Buyer will pay all financial obligations arising from this Agreement (including without limitation with respect to the Price) within fourteen (14) days from the date of any invoice from Seller.
4.7. Unless otherwise agreed by the Parties, legal title to the Modular House belongs to the Seller until the Seller receives full payment of the Price from the Buyer.
4.8. In the event the Buyer purchases services from the Seller relating to the Modular House that are not included in the Price, the Buyer will pay the Seller the then-current list price of the Seller for such services.
- Warranty; Liability
5.1. The Seller agrees to pass through, to the extent transferable, all warranties from the licensor or the original equipmentthird party manufacturers to parts of the Modular House as may be further detailed per the User Manual attached as Annex A. The warranties shall include a one (1) year limited warranty from completion of the Koda from the third party manufacturers [and the Buyer may contact the sales department of BSM to arrange for the warranty to be provided by the applicable third party manufacturer for the specific Koda] (collectively, “Pass-Through Warranty.”). In the case that the Buyer wants to extend the warranty, Buyer may do so directly with the third-party manufacturers. EXCEPT AS EXPRESSLY SET FORTH HEREIN, TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT AND WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH HEREIN, THE MODULAR HOUSE IS PROVIDED BY THE SELLER TO THE BUYER AS-IS WITHOUT WARRANTIES OF ANY KIND.
5.2 The Parties agree that immediately upon delivery of the Modular House the Buyer will inspect the Modular House and confirm within twenty-four (24) hours that it corresponds to the agreed terms and conditions and is free of defects. Additionally, within the Pass-through Warranty Period, the Buyer shall may notify the Seller of any defects found on the Modular House within thirty (30) days from the moment when the Buyer discovers or should discover the defect of the Modular House. Upon notifying the Seller of a defect of the Modular House, the Buyer will undertake to describe to the Seller in writing and via submission of photographs of the defect in sufficient detail. If the Buyer fails to notify the Seller of a defect during the provided term and/or fails to describe the defects in sufficient detail, the warranty is void with respect to such defect and the Seller shall have no liability with respect thereto. The Buyer acknowledges and agrees that the Modular House must be used and maintained (including, yet not limited to, regular inspections and maintenance) in adherence to the User Manual attached as Annex A. Buyer is solely responsible for confirming suitability of the design of the Modular House for its use. The Parties acknowledge and agree that the Seller is not liable for any design or manufacturing defects and that if any liability to the Buyer due to a design or manufacturing defect may arise, any such liability may be due to a design or manufacturing defect as a result of the design of a third-party licensor and/or the manufacturing of a third-party manufacturer as applicable. Parties further agree that the Seller is not liable for any defects of the Modular House if such defects occur as a result of improper, negligent, or undue use of, neglect to, accident to, improper testing related to, improper installation of, improper storage of, improper handling of, or any unsuitable use of the Modular House or if the Buyer fails to maintain the Modular House in adherence to the User Manual attached as Annex A. The Parties acknowledge and agree that the implementation of regular inspections and maintenance does not constitute the object of this Agreement and such services, if contractually agreed to be provided by the Seller, will be subject to separate written agreement and invoicing.
5.3. THE PARTIES AGREE THAT THE SELLER’S LIABILITY TO THE BUYER BASED ON THIS AGREEMENT SHALL BE LIMITED TO, AND SHALL NOT EXCEED, THE LESSER OF THE PRICE OF THE SALES AGREEMENT OR THE AGGREGATE AMOUNT PAID BY THE BUYER TO THE SELLER UNDER THIS AGREEMENT. THE PARTIES FURTHER AGREE THAT IN NO EVENT SHALL THE SELLER BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, EXEMPLARY, INDIRECT, SPECIAL, INCIDENTAL OR PUNITIVE DAMAGES EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
5.4. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE REMEDIES SET FORTH HEREIN, AS LIMITED IN SECTION 5.3 HEREIN, SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND THE SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH HEREIN.
5.5. If the Buyer fails to accept the Modular House on the due date and in the location prescribed in the Sales Agreement, or as prescribed in any Modification made thereto and agreed upon by the Parties, or if delivery of the Modular House proves otherwise impossible due to reasons related to the Buyer (e.g., the ground underlying the Modular House has not been properly prepared), the Seller has the right to demand reimbursement from the Buyer for any and all expenses related to the delay in delivery of the Modular House, including without limitation costs and expenses relating to transportation, storage or warehousing.
- Intellectual property and processing of personal data
6.1. All documents and information of which the Buyer has or will have access to based on or concerning this Agreement are protected by intellectual property rights of the Seller or a third-party licensor, including copyright.
6.2. The Parties acknowledge and agree that all intellectual property concerning the Modular House (including without limitation trademarks, business names, patents, utility models, trade secrets and know how) constitute the sole property of the Seller or a third-party licensor as applicable, unless otherwise provided herein, and the Buyer has no right to use or incorporate said intellectual property unless otherwise agreed by the Seller and/or a third-party licensor, as applicable, in writing. None of the provisions of this Agreement can be interpreted to mean that the Seller grants the Buyer a license and permission to use or change the intellectual property of the Seller or any applicable licensor.
6.3. Any information provided to the Buyer by the Seller or any of its agents or representatives, including but not limited to, drawings, descriptions, customer information, the production process, estimates, and financial data, is confidential information of the Seller. The Buyer shall not disclose or use such confidential information or any other confidential or proprietary information of the Seller without the Seller’s prior written consent.
6.4. By signing these General Terms, the Buyer grants the Seller consent to process (record, arrange, store etc.) the Buyer’s personal data for the following purposes: communication with the Buyer and making offers to the Buyer, management and analysis of the customer base, implementation of customer satisfaction surveys, and performance of the Seller’s obligations arising from the law.
6.5. If Buyer is a business entity, the Buyer hereby grants to the Seller a limited, non-transferable, non-sublicensable, royalty-free, and non-exclusive license to reproduce, use and display its names, trademarks, trade names, logos and/or services marks (“Marks”) for purposes of press releases, publicity, branding, marketing and distribution of Modular Houses of the Seller as set forth in this Agreement and for no other purpose. Seller acknowledges that any such Marks remain the proprietary property of the Buyer and the Seller shall have no right to use any such Marks outside the scope of this Agreement. To enable the Seller to perform its obligations under this Agreement, the Buyer grants to the Seller a non-exclusive license to copy, modify, display, store, use, transmit and display (including on and via the Internet) such content of the Buyer, solely to the extent necessary for purposes of marketing with regard to the purchase and sale of Modular Houses and not for any purpose outside the scope of this Agreement. The Seller will not claim ownership of any such content of the Buyer, and the Buyer is solely responsible for the content.
- Termination of Agreement
7.1. Either Party may terminate this Agreement if the other Party has materially breached the Agreement and fails to cure the breach within twenty-one (21) business days of being provided written notice of the breach by the other party.
7.2. Notwithstanding the foregoing, it is agreed that the Seller will not be deemed to be in material breach of this Agreement for failure to timely deliver the Modular House to the Buyer unless the Seller has failed to use commercially reasonable efforts to deliver the Modular House within thirty (30) days of the delivery date specified in the Sales Agreement, as may be modified by the Parties in writing, and such failure by the Seller is due to matters within the Seller’s reasonable control (and not due to any Force Majeure Event as defined in Section 8.8 or other matter outside the Seller’s reasonable control). The Seller disclaims any liability or responsibility, and the Buyer shall hold the Seller harmless, for the late or non-delivery of Modular House in case that the Buyer fails to fulfill the obligations in Section 3.3 and 4.4. The Buyer acknowledges that it has no right to delay or defer delivery or acceptance.
- Final Provisions
8.1. The Parties shall send any notices and notifications relating to performance of this Agreement by e-mail or by registered mail to the address in the Sales Agreement. If a notice was sent to the address noted in the Sales Agreement, the other Party is deemed to have received the notice within five (5) working days from mailing of the notice, and within one (1) working day if sent by e-mail.
8.2. This Agreement shall be governed by and interpreted under the laws of New York without regard to its conflict of law rules.
8.3. The Parties agree to arbitrate any and all disputes or claims the Parties could not resolve with informal negotiation as arising from or relating to this Agreement, whether the disputes or claims arise in tort, contract, or pursuant to a statute, regulation or ordinance now in existence of which may in the future be enacted or recognized, pursuant to the applicable rules of arbitration of the American Arbitration Association (“AAA Rules”) before one neutral arbitrator. The venue of arbitration shall be New York, New York. Any situation not expressly covered by this Agreement shall be decided in accordance with the AAA Rules. Such arbitration of the disputes and claims shall be the sole and exclusive method of resolving any and all existing and future disputes or claims arising out of this Agreement, which shall be binding and final. Each party shall bear its own costs of the arbitration and share equally the cost of the arbitrator. The parties expressly waive all rights to a court or jury trial for any and all disputes arising out of this Agreement.
8.4. The Parties confirm that they are not subject to any restrictions or hindrances which would prevent them from performing their obligations under this Agreement.
8.5. This Agreement may only be amended in a writing that has been signed by all Parties. This Agreement contains the entire agreement of the Parties.
8.6. The Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the Seller, and any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the Buyer of any of its obligations under this Agreement. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and assigns. The Seller may assign it rights and obligations under this Agreement at any time, and may retain subcontractors to perform any of its obligations under this Agreement.
8.7. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same agreement. Any counterpart may be executed by facsimile, PDF or other electronic format and such electronic signature shall be deemed an original.
8.8. Neither Party shall be liable to the other by reason of any failure or delay in the performance of its obligations hereunder for any cause beyond the reasonable control of such party, including but not limited to electrical outages, acts of God, acts of nature, government regulations, embargoes, epidemics, terrorist acts, work stoppages, power blackouts, riots, civil disorder, employment strike, inability to secure products or services or transportation facilities, acts or omissions of transportation carriers, supply shortages, insurrection, war, pandemics, fires, flood, earthquakes and explosions (“Force Majeure Event”); provided that the affected party gives written notice of the cause of the delay to the other party within forty-eight (48) hours of the start of the Force Majeure Event and that each party shall use commercially reasonable efforts to resolve any issue that arises due to a Force Majeure Event.
8.9 To the fullest extent permitted by law, Buyer shall indemnify, defend and hold harmless Seller and its employees, officers, directors, agents and assigns (the “Indemnitees”) from any and all third-party claims, actions, costs, expenses (including reasonable attorneys’ fees and expenses), damages, liabilities, penalties, losses, obligations, demands and liens of any kind arising out of or resulting from its failure to perform its obligations under this Agreement or arising out of or resulting from its negligent acts and omissions related to this Agreement. Notwithstanding the foregoing, Buyer shall not be required to indemnify Indemnitees for their own negligence, willful misconduct, or fraud. Buyer is solely responsible for obtaining and maintaining insurance sufficient to insure for the risks associated with Buyer’s indemnity obligations herein.
8.10 The Agreement is the complete integration of all understandings between the Parties as to the subject matter of the Agreement. No prior, contemporaneous or subsequent addition, deletion, or other modification has any force or effect, unless embodied in the Agreement in writing. No oral representation by any officer or employee of the Seller at variance with the terms of the Agreement or any written amendment to the Agreement will have any force or effect or bind the Seller.
8.11 The terms of the Agreement and any exhibits and attachments that by reasonable implication contemplate continued performance, rights, or compliance beyond expiration or termination of the Agreement survive the Agreement and will continue to be enforceable. Without limiting the generality of this provision, the Buyer’s obligations to provide insurance and to indemnify the Seller will survive for a period equal to any and all relevant statutes of limitation, plus the time necessary to fully resolve any claims, matters, or actions begun within that period.
8.12 Buyer has had the opportunity to review the Agreement and hire counsel to advise regarding the Agreement. The Agreement will not be construed against any party merely because any provisions of the Agreement were prepared by a particular party.
8.13 If a court of competent jurisdiction finds any provision of the Agreement or any portion of it to be invalid, illegal, or unenforceable, the validity of the remaining portions or provisions will not be affected, if the intent of the Parties can be fulfilled.
To obtain a copy of the User Manual, please contact firstname.lastname@example.org.
To obtain a copy of the Customized List of Equipment, please contact email@example.com.