PRODUCTS SALES ORDER TERMS AND CONDITIONS
This Custom Products Sales Order Terms and Conditions (“T&C”) shall apply to the sale and supply of all materials, objects, components, services (‘Products”). Any order placed with ICONEX (“Order’) implies that you have read and fully accepted the T&C. The implementation of your Terms and Conditions of Purchase shall be excluded even if you refer to it in your Order unless specific prior agreement has been made in writing between you and ICONEX.
This Custom Products Sales Order Terms and Conditions (“T&C”) shall apply to the sale and supply of all materials, objects, components, services (‘Products”). Any order placed with ICONEX (“Order’) implies that you have read and fully accepted the T&C. The implementation of your Terms and Conditions of Purchase shall be excluded even if you refer to it in your Order unless specific prior agreement has been made in writing between you and ICONEX.
COMMERCIAL ORDER
lCONEX reserves the right to modify or decline an Order for any Product (Including any amendment) within ten (10) days of receipt. Orders not modified or declined by ICONEX within ten (10) days, or for which manufacturing or procurement have commenced, are deemed accepted and an agreement Is deemed to exist between you and ICONEX ("Agreement). Where there Is an existing agreement Including a Master Agreement, between you and ICONEX, that agreement shall remain in full force and effect except with respect to the Order for the Products during the Term, in which case the terms and conditions of this Agreement shall prevail.
In the event that you or ICONEX wish to process an Order via electronic data interchange ("EDI") or other electronic means, ICONEX may require you to enter into a separate ICONEX agreement covering such transactions.
PRICING
At any time before the conclusion of an Agreement, all of ICONEX's offered, quoted, published or notified prices are non-binding and are subject to alteration at any time upon no less than fourteen 14) calendar days notice and in particular may be altered to reflect any increase in cost to ICONEX caused by the imposition or levying by any governmental or other authority of any country of any importer other duty, tax, exchange rate, or charge. Unless otherwise agreed by the parties in writing prior prices will be valid and in effect on the day of the Agreement.
Subject to the terms hereof, prices are valid for up to the total order quantity of each respective Product and are subject to change for additional Product quantity, for Products shipped subsequent to the End Date, or as otherwise provided in this Agreement (including to reflect changes in raw material prices).
Unless otherwise noted, Prices do not include, and you agree to pay ICONEX for, all shipping and handling charges, all applicable finance and storage charges and/or costs, and all sales, use, or similar taxes (unless, with respect to taxes, ICONEX is provided proper exemption documentation iIn advance).
PAYMENT TERMS
All payments shall be made in the currency stated on the invoice, Payment terms are net 30 days from the date of invoice. ICONEX reserves the right to require full or partial payment in respect of any
products or services in advance of delivery of the Products.
You agree to pay interest at the lower of 1.5% per month or the highest rate allowed by law for any late payment as well as a lump sum for recovery costs pursuant to Article L. 441-6, I of the French
Commercial Code.
In the case of overdue payment, ICONEX shall be entitled to suspend the execution of pending contractual obligations or cancel pending Agreement with immediate effect. ICONEX shall notify to you its
decision by any means.
Any claim for a credit or additional product due to short shipments or insufficient quantity must be made within 15 days of delivery of the short or insufficient shipment or is deemed waived. Any
liquidated damages shall be governed by French Commercial Code.
PRODUCTS
Products are defined as products bearing your requested artwork, logo, or name; made pursuant to your specifications; packed in unique quantities, dimensions, or packaging; procured
specially on your behalf from third parties; and/or differing in any other respect from ICONEX's stock products. Notwithstanding anything to the contrary, for purposes of the T&C all Products shall be
considered Products.
All Orders for Products are “firm orders" and are non-cancellable, and the respective products are non-returnable except for warranty claims.
ICONEX may procure, manufacture, and/or ship any Product In a quantity of 10% over or under the total quantity of such product covered by an Order, including the full Term hereof. For
further clarity, and notwithstanding anything to the contrary, your obligations under the T&C extend to all Products procured, manufactured, and/or shipped within the above noted tolerance range.
BILLING
Billing (including invoicing) will occur according to the option elected on the Agreement If no option is elected, the default billing option will be Ship and Bill. However, if any Storage Parameters are specified, Store and Bill terms will apply.
Ship and Bill Option. Under the Ship and Bill option, ICONEX will invoice you as the Products are shipped. All Products will be shipped without storage.
Store and Bill Option. Under the Store and Bill option. ICONEX will store up to the Storage Quantity of Products for up to the Term, ship from such storage upon your request, and invoice you as the Products are shipped.
If any Products remain in storage at the end of the Term (including for Auto-replenish operation), you agree to, at your expense, have all such Products (a) shipped to you or your designee, (b) destroyed or otherwise disposed, or (c) further stored, for up to three additional months. Irrespective of the option selected, you also agree to immediately pay the price of all such Products plus associated finance and storage charges and/or costs. Further, In the event you elect option (c), further storage, you also (i) agree to be immediately invoiced for and pay finance and storage charges any costs associated with such further storage, (ii) bear all costs of obsolescence of the Products, (ill) waive any warranty or other claims with respect to the Products, and (iv) agree to elect either option (a) or (b) above with respect to any Products remaining In storage at the end of the further storage period. If within seven days following the end of the storage for the items or further storage period (as applicable), you fail to choose one of the available options listed above, ICONEX will have the right to have all remaining Products destroyed or otherwise disposed, and you agree to Immediately pay the price of all such Products, the cost of their destruction and/or disposal, and all associated finance and storage charges and/or costs
Under the Store and Bill Option, ICONEX will assume the duties of a warehouseman, and will be responsible for losses of the Products caused only and solely by its negligence as a warehouseman (excluding. e.g., damage due to casualty losses), not to exceed the price of the applicable Products, and subject to the damage limitations contained in the T&C.
Notwithstanding anything to the contrary, you agree to pay for all finished Products (including any stored Products), any work in process, and all unutilized raw materials procured for any of the same not later than 30 days following the End Date.
DELIVERY
Unless another particular condition is expressly agreed to by ICONEX, all Products are delivered Ex Works, facility designated by ICONEX (Incoterms 2010) before loading the Product. In case of any
conflict between Incoterms and any Agreement, the later shall prevail. Delivery time of Products may be subject to production scheduled by ICONEX. The average delivery times are about 30 business
days.
These delivery times however are indicative, so that ICONEX shall not be in default nor liable for any expense, loss or damage occasioned by a delay in delivery These delivery times shall not give
grounds for cancellation of the Order or termination of the Agreement. Also, in a case of such delay, you remain liable for payment of Products and are not entitled to cancel pending order.
Unless otherwise provided, ICONEX reserves the right to do partial deliveries and invoice them separately.
TITLE AND RISK OF LOSS
In accordance with Articles 2387 and following of the French Civil Code, the Products being sold will remain the ownership of ICONEX until full payment of all amounts due to it. Title to Products and risk of loss pass to you and delivery occurs when ICONEX tenders the Products to a shipping agent for delivery to you or your designee, but not later than your or your designee's receipt of the Products.
WARRANTIES AND WARRANTY REMEDIES
ICONEX warrants that the Products it manufactures and provides you pursuant to the Agreement will be of workmanlike quality and free from materiel defects and will meet their performance specifications, including equipment compatibility, as specified by ICONEX, for 30 days following delivery. Any Products not manufactured by ICONEX shall be subject solely to the warranty provided by, and be solely supported through, those Products' manufacturer(s).
It shall be incumbent on you to prove that the Product does not conform in the foregoing warranty. If the claim is deemed found, ICONEX's sole responsibility, and your exclusive remedy, for breach of warranty shall be limited to, at ICONEX's discretion, repair, replacement, or refund/credit of the purchase price sale for warranted Products, provided you give ICONEX written notice That any such Product is non-conforming during the warranty period and return any such Products to ICONEX upon request. Where any such Products are repaired or replaced by ICONEX. the repaired or replacement Products shall be warranted according to the terms of the T&C effective from the date of their delivery.
Notwithstanding anything to the contrary, ICONEX shall have no warranty obligation for Products or Materials that have been subjected to misuse, neglect, alteration, improper storage or installation, extreme temperature or humidity conditions, or Improper testing.
If a Product Is purchased for resale, the associated warranty may be passed through to the end user, subject to the limitations and requirements herein.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT. ICONEX UNDERTAKES NO LIABILITY FOR THE QUALITY OF ANY PRODUCTS, INCLUDING THAT THEY WILL BE FIT FOR ANY PARTICULAR PURPOSE FOR WHICH YOU MAY BE BUYING THEM REGARDLESS OF WHETHER ICONEX IS AWARE OF ANY SUCH PURPOSE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE ARISING FROM A COURSE OF DEALING OR TRADE USAGE, ARE DISCLAIMED.
LIMITATION OF LIABILITY
ICONEX SHALL NOT BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR LOSS OF PROFITS, REVENUE, DATA, OR TIME, OR FOR ANY INCIDENTAL, INDIRECT, LIQUIDATED, SPECIAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, EVEN IF ICONEX IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FOR FURTHER CLARITY, ICONEX SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY DELAY IN MANUFACTURING OR SHIPMENT.
EXCEPT FOR CLAIMS FOR BODILY INJURY OR DEATH, ICONEX'S TOTAL LIABILITY FOR ANY CLAIMS ARISING UNDER OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE PRICE YOU ACTUALLY PAID FOR THE PARTICULAR PRODUCT(S) CAUSING DAMAGE. EACH CLAUSE OF THIS SECTION IS SEPARATE FROM THE OTHERS AND FROM THE REMEDY LIMITATIONS AND EXCLUSIONS IN THIS AGREEMENT AND WILL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF A REMEDY OR TERMINATION OF THIS AGREEMENT.
SPECIFIC REMEDIES, BANKRUPTCY, AND SECURITY INTEREST
Your failure to timely pay for Products, or their wrongful rejection, permits ICONEX, in addition to other available remedies at law or equity, to terminate an Agreement or any activities under It, and to reclaim and recover Products for which payment in full has not been made. On the occurrence of either party’s bankruptcy or insolvency, remaining work by, and obligations of, ICONEX (Including manufacturing, storage, and/or delivery of Products) under this Agreement shall automatically cease, unless both parties elect expressly in writing to have the same continue. Notwithstanding anything to the contrary (including any termination of this Agreement), your obligations regarding any finished Products, all work-in-process, and all unutilized raw materials procured for any of the same, shall continue. You grant ICONEX a purchase money security interest in all Products sold pursuant to this Agreement and agree to provide all necessary assistance to allow ICONEX to perfect Its security interest. You appoint ICONEX as your attorney-in-fact to sign as your agent all documents necessary to create,. attach. and perfect such security interest in any collection action, you shall be liable to ICONEX for its costs of collection, including expenses and reasonable attorneys' fees.
GENERAL
Proofs, Test Runs, Logo. ICONEX may require you to approve a printing proof based on original copy supplied by you. If so, ICONEX will, at its expense, create one (I) proof and provide it to you. ICONEX may also require you to approve a test run. Approved proofs or test runs shall supersede performance or other specifications to the extent of any conflict unless otherwise agreed in writing by ICONEX you agree to pay for all reasonable costs incurred by ICONEX in performing a test run or altering any proof. ICONEX may place Its logo or other identifying mark on Products or the packaging thereof unless otherwise specified in an Agreement.
Termination by ICONEX
ICONEX may immediately terminate an Agreement or any transaction under it if you become insolvent or bankrupt, make an assignment for the benefit of creditors, or cease to do business or materially breach an Agreement, including if you repudiate or wrongfully reject any Products. In all cases, ICONEX may recover its damages. ICONEX shall notify to you its decision by any means
Inconsistent or Additional Terms
Terms contained in your Orders or other forms that are inconsistent with these terms, or are in addition to them, shall be of no force or effect, and for purposes of the Uniform Commercial Code are deemed rejected.
Infringement
ICONEX assumes no liability to you or any third party for the Infringement actual or alleged of any intellectual property (including patents, copyrights, trade 5000015, and trademarks) You agree to Indemnify and hold ICONEX harmless against any and all claims of infringement relating to or arising out of (a) aspects of any Products, including for actual or alleged infringement relating to or arising out of your artwork, logo, specifications, or packaging and (b) Products procured specifically on your behalf.
Disputes and Governing Law
Except for disputes relating to intellectual property, any dispute, whether based in contract, statute, tort or other legal theory, arising under or related to an Agreement ("Dispute') shall be resolved by arbitration. Further, any Dispute shall be noticed in writing by the party initiating the dispute to the other party within two years of the date the underlying cause of action accrued, or forever be waived. The arbitration shall be concluded by a single arbitrator under the then current rules of the International Chamber of Commerce in Paris, France except for the arbitrator's fees which the parties will split equally, each party shall pay its own attorney fees and other expenses associated with any arbitration. The arbitrator's decision and award will be final. and binding and may be entered in any court with jurisdiction If a party files a court action asserting a claim subject to arbitration, the party filing the court action will pay the other party & costs and expenses incurred In compelling arbitration, including attorney's fees Except for its laws regarding conflicts of law and arbitrability, French law governs any Agreement, including the relationships created by it and the transactions occurring under it. Language of the arbitration shall be English.
Excused Performance
A party shall be excused from any failure to comply with any Agreement, other than tender of payment, arising from any cause beyond its reasonable control. including, for the duration thereof, such matters as: lack of or inability to obtain raw materials, strike, fires, floods, severe weather, or other acts of God; carrier delay, labor disputes; riots: war: terrorism; embargo, acts or allocations of governmental authorities (regardless of validity); or where compliance with an Agreement would not be economically feasible; or In cases, where ICONEX itself is not the manufacturer of any product, or provider of any service sold to you; failure by a regular supplier for any reason to supply such product as well as modification of such product by the manufacturer which was not foreseen by ICONEX at the time of the offer, quotation or Order.
Confidentiality.
The terms and conditions or any Agreement, including pricing for Products, and any technical, commercial, economic and other Information and data concerning ICONEX's business, Including without limitations, its formulas, product specifications, services, plans, programs, processes, products, codes, operations and Customers, which may come with your knowledge, your affiliates, officers or employees in the performance of any Agreement, are confidential and, except as required by law or to enforce the terms hereof, shall not be disclosed by either party to any third party absent the express written permission of the other party during Term and for three years following the End Date hereof. Any such information provided by ICONEX to you in writing or other tangible mode shall be returned to ICONEX either upon ICONEX's first request or upon termination of the Agreement.
Personal data protection
Your personal data collected in relation to any Agreement are processed in accordance with our data protection policy available on and in compliance with EU Regulation 2016/679 dated April 27, 2016.
Entire Agreement and Amendment
This Agreement is the entire agreement between ICONEX and you with respect to the subject matter hereof and supersedes all prior or contemporaneous communications. Including oral and written proposals, rules over your purchase orders, acknowledgements, and others. This Agreement cannot be amended unless in writing signed by you and an authorized ICONEX representative. No waiver of either party's rights under this Agreement will be effective unless in writing signed by an authorized representative of the waiving party.
Successors
Any Agreements will be binding upon and inure to the benefit of the respective successors and permitted assigns of each party Buyer may not assign in whole or in part any Agreement without Supplier's written consent.
Waiver
Either party's waiver of any breach or failure to enforce any of the terms and conditions of this Agreement at any time shall not be in any manner a limit or waiver of such party's right thereafter to enforce or compel strict compliance with any Agreement. Waiver of any default at any given time shall not act to waive the same or any other default.
Severability
If any section, paragraph, sentence or clause of any Agreement shall be adjudged Illegal, invalid or unenforceable. such illegality, invalidity or unenforceability shalt not affect the legality, validity or enforceability of this Agreement as a whole or of any section, subsection, sentence or clause hereof not so adjudged, if the essential terms and conditions of this Agreement for each party remain valid, binding, and enforceable.