TERMS AND CONDITIONS
These “terms and conditions” govern the sale of product
services by Ikas Incorporated, a California Corporation as well as seller’s
third party vendors and/or service providers.
1. ORDERS:
All orders placed by buyer are subject to acceptance by seller in accordance
with these terms and conditions. Orders may not be canceled or rescheduled
without seller’s written consent. All orders must include quantities and
complete description of the goods requested for purchase. All orders should
include delivery dates. Seller may in its sole discretion allocate products to
its customers. Seller may designate certain products as “non-cancelable and
non-refundable” and the sale of such products can be subject to special terms
and conditions on the invoice or other notice to buyer.
2. PRICES:
Unit pricing for all products and services ordered by the buyer are specified
on each invoice. Whether expressed or implied, price quotations unless
otherwise stated, are subject to prior sale. Unless otherwise agreed to in
writing by seller, all prices quoted are exclusive of transportation and
insurance costs, duties, and all taxes including federal, state and local
taxes, excise and value added taxes, and other similar taxes. Buyer agrees to
pay these taxes unless buyer has provided seller with an exemption resale
certificate in the appropriate form for the jurisdiction of buyer’s place of
business and any jurisdiction to which the purchased goods are to be directly
shipped hereunder, unless the sale is otherwise exempt form these taxes. Buyer
agrees to indemnify and hold harmless seller for any liability for tax in
connection with the sale, as well as the collection or withholding thereof,
including penalties and interest thereon. When applicable, transportation and
taxes shall appear as separate items on seller’s invoice.
3. PAYMENT TERMS: Terms of payment will vary depending on the customer and type of
product purchased. All domestic first-time orders are billed by American
Express credit card or courier’s collection on delivery (COD). Terms of payment
for export orders are subject to review on a case-by-case basis. Seller may
invoice each shipment separately and each shipment will be considered a
separate and individual contract. Buyer agrees to pay such invoice pursuant to
its terms without benefit of setoff or deduction.
4. INTEREST/LATE FEES: Interest at the rate of one and one-half percent per
month may be imposed on all outstanding invoices.
5. MODIFICATION OF PAYMENT/CREDIT TERMS: Seller reserves the right to establish and or change
credit and payment terms extended to buyer at any time, with or without advance
notice, including but not limited to when in the seller’s sole opinion, buyer’s
financial condition or previous payment record warrants such action. Further,
on delinquent accounts, seller shall not be obligated to continue performance
under any agreement with buyer.
6. REJECTION OF INCONSISTENT TERMS: Any inconsistent terms contained in a purchase order
or other documents are specifically rejected. These terms and conditions take
precedence over buyer’s inconsistent terms and/or conditions to which notice of
objection is hereby given. Neither seller’s commencement of performance or
delivery shall be deemed constituted as acceptance of buyer’s different terms
and conditions. Buyer’s acceptance of the products and/or services shall be
deemed to constitute acceptance of the terms and conditions contained herein.
7. DELIVERY:
Delivery will be deemed complete and risk of loss and/or damage to any product
will pass to buyer upon delivery of carrier. Buyer acknowledges that delivery
dates provided by the seller are only estimates and seller shall not be liable
for delays in delivery or for failure to perform due to causes beyond the
control of seller, nor shall the carrier be deemed an agent of seller. In the
event of delay caused by such event, the delivery date shall be extended for a
period equal to the time lost as a consequence of the delay in delivery without
subjecting seller to any liability or penalty.
8. ACCEPTANCE/RETURNS: Shipments will be deemed to have been accepted by
buyer upon receipt of said shipments at buyer’s facility. Buyer shall perform
whatever inspections or tests buyer deems necessary as promptly as possible.
Any discrepancy in shipment quantity must be reported in writing within seven
(7) days of receipt of products. In the event of an over shipment, buyer shall
have the option to return the products to seller at seller’s expense or
alternatively, buyer may elect to retain the products (subject to adjustment of
the invoice price to account for additional items). Regardless of reason for
return, any product returns shall be subject to seller’s prior written return
merchandise authorization (RMA) and may be assessed a restocking fee of up to
twenty-five (25) percent. Returned products must be in original condition and
packaging. Unless otherwise agreed by seller in writing, return transportation
and/or other related costs must be prepaid by buyer.
9. DISCLAIMER OF WARRANTIES: The only warranty on any goods sold to buyer is the
express written warranty, if any, granted by the manufacturer. Seller makes no
representation or warranty, expressed or implied, including any implied
warranties of merchantability or fitness for particular use with respect to the
products, goods and/or services provided.
10. LIMITATION OF LIABILITY: Seller’s maximum liability to buyer shall be limited
to the amount that buyer paid to seller for the merchandise received. In no
event will seller or its suppliers be liable for special, incidental, or
consequential damages whatsoever including without limitation, those resulting
from anticipated or lost profit, lost data, business interruption, loss of
buyers, loss of market share, loss of goodwill or manufacturing expenses and
any other loss(es) that might arise as a direct or indirect result of sale or
use of the products or as a result of seller’s non-performance or inadequate
performance of its obligations, whether based on warranty, contract, tort or
any other legal theory and whether or not advised of the possibility of such
damages.
11. ASSIGNMENTS: Buyer’s rights under these terms and conditions may not be assigned
without seller’s prior written consent. However, foregoing does not limit
buyer’s right, upon making payment in full, from transferring title to the
merchandise subject to written notice to and transfer of title on the records
of seller.
12. BINDING ON SUCCESSORS: These terms and conditions shall be binding on the
heirs, executors, administrators, successors and assigns of the buyer. Buyer
further agrees that seller may assign its rights under this agreement and that
this agreement shall be binding upon and inure to the benefit of the successors
and assigns of the seller.
13. ENTIRE AGREEMENT: These terms and conditions consist of all terms which
have been agreed to upon between the parties with the exception of any (1)
credit application provided by buyer, and/or (II) additional terms as provided
on seller’s invoices. These terms and conditions replace all other discussions
and agreements, whether oral or written, expressed or implied, as relating to
those goods and services. No subsequent discussion or agreement can change the
terms of this contract unless it is expressly written, agreed and signed to by
both parties.
14. JURISDICTION: If any provision of these terms and conditions is held by a court of
competent jurisdiction to be invalid, void, unenforceable, or held to be
contrary to law, the remaining provisions will remain in full force and effect.
These terms and conditions will be governed by and construed in accordance with
the laws of the
15. ATTORNEY’S FEES: In any action at law or in equity to enforce any of
the provisions or rights under these terms and conditions and/or for collection
of amounts due, the prevailing party shall be entitled to recover from the
unsuccessful party all costs, expenses and attorney’s fees incurred therein by
the prevailing party (including without limitation, such costs, expenses and
fees on any subsequent appeals), and if such prevailing party shall recover
judgment in any such action or proceeding, such costs and expenses including
those of expert witnesses and attorney’s fees, shall be included as part of the
judgment.
16. FORCE MAJEURE: If by any reason of act of God, or force majeure such
as fire, war, terror, earthquake, strike and/or lockout, labor controversy,
civil unrest, acts of any government agencies or officers, or any order,
regulation or ruling thereof, seller is prevented from making delivery, seller
shall have the right to extend the delivery time for a reasonable period.
(August 2004)