TERMS AND CONDITIONS
These terms and conditions govern the sale of products and provisions of services by Icy Skyy and its affiliates (“Seller”). These terms and conditions and any related quote(s), and invoice(s) (collectively, “Agreement”) take precedence over Buyer’s supplemental or conflicting terms and conditions to which notice of objection is hereby given. Neither Seller’s commencement of performance or delivery shall be deemed or construed as acceptance of Buyer’s supplemental or conflicting terms and conditions. Seller’s failure to object to conflicting or additional terms will not change or add to the terms of this Agreement. Buyer’s acceptance of the product and/or services from Seller shall be deemed to constitute acceptance of the terms and conditions contained herein.
- CONTRACT: The terms of the sale contained here apply to any and all quotes, invoices, or purchase orders previously or later issued. ACCEPTANCE OF THIS OFFER IS CONDITIONAL ON THE EXPRESS ACCEPTANCE OF THE EXPRESS TERMS CONTAINED HEREIN. In the event of a conflict between the terms and conditions stated herein and any other specifications, conditions, or communications between the parties, this Agreement shall govern.
- LIMITED WARRANTY: ALL IMPLIED WARRANTIES, TERMS AND CONDITIONS (WHETHER STATUTORY OR OTHERWISE) ARE EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW AND ALL PRODUCTS ARE PROVIDED AS IS. IN PARTICULAR, SELLER MAKES NO WARRANTY WITH RESPECT TO THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS AND WARRANTIES AGAINST LATENT DEFECTS.
At Seller’s discretion, Seller can elect to (1) replace, (2) repair, or (3) provide credit for any product(s) that Buyer believes is unsatisfactory, provided that the Buyer shall, within (1) month after shipment, provide notice of such and return the product to the Seller’s factory for inspection. The Seller will not replace, repair, or provide credit for any products that have been tampered, altered, or subjected to misuse, negligence, or damage.
- DELIVERY, TITLE, AND RISK OF LOSS: For purposes of this Agreement, delivery to Buyer will occur when the products are placed in the possession of the common carrier by Seller. Title and risk of loss or damage with respect to the products shall pass to Buyer upon delivery by Seller. Freight, duty, taxes, insurance, shipping, handling or packing charges are not included in the quoted price(s) and are the responsibility of the Buyer. If the Seller pays for any of the aforementioned expenses, the Seller shall invoice the Buyer of such charges, to which the Buyer shall reimburse the Seller.
- LIMITATION OF LIABILITY: BUYER SHALL NOT BE ENTITLED TO, AND SELLER SHALL NOT BE LIABLE FOR, LOSS OF PROFITS OR REVENUE, PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEADS, BUSINESS INTERRUPTION COST, LOSS OF DATA, REMOVAL OR REINSTALLATION COSTS, INJURY TO REPUTATION, PUNITIVE DAMAGES, LOSS OF CONTRACTS OR ORDERS OR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE. BUYER’S RECOVERY FROM SELLER FOR ANY CLAIM SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE AFFECTED PRODUCTS IRRESPECTIVE OF THE NATURE OF THE CLAIM WHETHER IN CONTRACT, TORT, WARRANTY, OR OTHERWISE. BUYER WILL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON (A) SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS, (B) MODIFICATION OF ANY PRODUCTS BY ANYONE OTHER THAN SELLER, OR (C) USE IN COMBINATION WITH OTHER PRODUCTS.
- INDEMNIFICATION: TO THE FULL EXTENT PERMITTED BY LAW, AND TO THE EXTENT OF THE BUYER, ITS EMPLOYEES OR AGENTS NEGLIGENCE, ACTS OR OMISSIONS, THE BUYER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS SELLER, ITS OFFICERS, DIRECTORS, CUSTOMERS, AGENTS AND EMPLOYEES AND ANY OTHER PERSON OR ENTITY FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, INJURIES, FINES, PENALTIES, LOSSES, EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES), DAMAGES AND LIABILITIES OF EVERY NATURE, INCLUDING CONTRACTUAL LIABILITY (“LOSSES”), ARISING FROM OR RELATING TO THE GOODS, MATERIALS, AND/OR EQUIPMENT PROVIDED BY SELLER HEREUNDER, INCLUDING, WITHOUT LIMITATION: (I) THE BREACH OF ANY WARRANTY; (II) ANY CLAIM BASED ON THE DEATH OR BODILY INJURY TO ANY PERSON, DESTRUCTION OR DAMAGE TO PROPERTY; (III) ANY CLAIM BASED UPON NEGLIGENCE, OMISSIONS OR WILLFUL MISCONDUCT OF BUYER OR ANY OF BUYER’S AGENTS, SUBCONTRACTORS, EMPLOYEES OR ANYONE ACTING ON BEHALF OF BUYER; (IV) ANY CLAIM BASED ON INFRINGEMENT OF PATENT RIGHTS; (V) ANY CLAIM ARISING FROM THE BUYER’S VIOLATION OF LAWS; AND (VI) ANY CLAIM BY A THIRD PARTY AGAINST BUYER RELATED TO ANY DEFECTS IN OR NONCONFORMANCE OF THE GOODS, MATERIALS, AND/OR EQUIPMENT. THE BUYER’S INDEMNITY OBLIGATIONS UNDER THIS PARAGRAPH SHALL NOT BE LIMITED BY APPLICABLE WORKERS’ COMPENSATION LAWS, AND, AS RESPECTS THIS INDEMNITY, THE BUYER HEREBY EXPRESSLY WAIVES ALL IMMUNITIES AND DEFENSES THAT IT MAY HAVE UNDER SUCH LAWS. BUYER AGREES TO REIMBURSE ALL COSTS THAT MAY BE INCURRED BY SELLER IN ENFORCING THIS INDEMNITY INCLUDING, BUT NOT LIMITED TO, SELLER’S REASONABLE ATTORNEYS’ FEES AND EXPENSES INCURRED THEREIN.
- INVALIDITY/WAIVER/REMEDIES: The partial or complete invalidity of any one or more provisions of this Agreement shall not affect the validity or continuing force and effect of any other provision. The failure of Seller to insist, in any one or more instances, upon the performance of any of the terms, covenants, or conditions of this Agreement, or to exercise any right herein, shall not be construed as a waiver of relinquishment of such term, covenant, conditions or right as respects further performance. The remedies herein reserved shall be cumulative and additional to any other remedies in law or in equity.
- FORCE MAJEURE: The following events, and only the following events, shall constitute Force Majeure: (i) acts of God or of a public enemy, (ii) acts of Government in its sovereign capacity, (iii) fires, (iv) floods, (v) epidemics, (vi) quarantine restrictions, (vii) strikes, (viii) freight embargoes, and (viiii) unusually severe weather. In each instant, the failure to perform must be entirely beyond the control and without the fault or negligence of the Buyer. Each party shall give the other immediate notice of any event that such party claims is a Force Majeure condition that would prevent the party from performing its obligations hereunder, and of the cessation of the condition. A party’s notice under this provision shall include the party’s good faith estimate of the likely duration of the Force Majeure Condition.
- INTERNATIONAL USE: Recognizing the global nature of the Internet, you agree to comply with all applicable rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws, including laws from the United States or in the country you reside, regarding the transmission of technical data exported from the United States or the country in which you reside.
- CHOICE OF LAW AND VENUE: Buyer hereby agrees that this instrument and any applicable documents referenced herein shall be construed and interpreted in accordance with the laws of the laws of the United States and by the Laws of the State of California (exclusive of its provisions regarding conflicts of laws), and that the sole and exclusive venue for any dispute arising hereunder will be the state and federal courts in California and waives any objection to such jurisdiction and venue.
- ENTIRE AGREEMENT: This instrument and the accompanying quotes, invoices and/or purchase orders set forth the entire agreement between the parties and supersedes all prior representations, understandings or agreements of the parties, whether written or oral. The Agreement can be modified only in writing signed by both parties.
Questions about the Terms of Service should be sent to us at firstname.lastname@example.org.
Effective date: 3/1/2017