Terms & Conditions of Sale
as of October 2023
2024 ikotek. All rights reserved.
These Terms and Conditions of Sale (“Terms”) govern both the sale of product (“Products”) and the provision of service (“Services”) by Ikotek USA, Inc. and its Subsidiaries (“Ikotek”) to the transacting Party (“Customer”) identified on any Purchase Order, invoice, or other order documentation unless and until Ikotek and Customer (either individually a “Party”, or collectively “Parties”) both sign a formal written agreement specifically governing the transaction of such Products and/or Services. Any legal terms or conditions found on Purchase Orders, invoices, or other Customer submitted documentation purporting to govern any transaction, other than specifying the type and quantity of Products or Services ordered, shall be null and void unless Ikotek has explicitly agreed to such terms in a written agreement with the Customer.
The Customer agrees to be bound by these Terms by placing a Purchase Order with Ikotek.
As used in this document, each capitalized word or phrase will have the following meaning:
“Affiliate” means any person, corporation, or other legal entity directly or indirectly controlling, controlled by or under common control with another person, corporation, or other legal entity. A person, corporation, or other legal entity will be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest in that corporation or other legal entity.
“Customer” means the person, corporation, or other legal entity acquiring, or seeking to acquire, Products and/or Services from Ikotek.
“Ikotek” means Ikotek USA, Inc. and any of its applicable Subsidiaries.
“Lead-Time” means the minimum amount of time prior to the desired date of delivery that a Purchase Order for a Product must be placed. The Lead-Time for each Product is called the “Product Lead Time”.
“Purchase Order” or “PO” means any document submitted to Ikotek by Customer placing an order for Products and/or Services.
“Product” means any device or component sold by Ikotek.
“Service” means any service sold or otherwise provided by or through Ikotek.
“Specification” means the description, specification and/or standards which the Customer may provide to Ikotek for manufacture or assembly of a Product.
“Subsidiary” means any person, corporation, or other legal entity directly or indirectly controlled by another person, corporation, or other legal entity. A person, corporation, or other legal entity will be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest in that corporation or other legal entity.
If there is no written agreement between Ikotek and the Customer controlling the price of the Product at the time of the Purchase Order, then the price will be Ikotek’s list price on the date the Purchase Order is submitted.
At its sole discretion, Ikotek may adjust the list price of its Products at any time and for any reason.
Prices are exclusive of all costs of installation (if any), as well as all taxes, fees, duties, and levies, however designated or imposed, including: federal, state, local, municipal, or other government excise taxes; value added taxes; goods and services taxes; sales, use, occupational or like taxes; tariffs; customs; duties; and importing fees (collectively, “Taxes”). The Customer is responsible for payment of all Taxes. If Ikotek is required to pay any Taxes or other charges, the Customer must reimburse Ikotek on demand.
The Customer’s Purchase Orders are subject to acceptance by Ikotek and Ikotek reserves the right to reject any Purchase Order for any reason. Unless agreed to in a writing signed by Ikotek, acceptance of any Purchase Order is conditioned on the Customer’s acceptance of these Terms and the waiver by the Customer of any terms contained in any order, confirmation, or any other communications of the Customer, whether previously or hereafter delivered to Ikotek, which either add to, differ from, modify, conflict with, or are otherwise inconsistent with these Terms, other than the terms in the Customer communication specifying the type and quantity of Products or Services ordered.
Product purchases are subject to a Lead-Times that are typically 3 months long but, for some products, may be longer. As a general practice, Customers submit Purchase Orders to Ikotek monthly for Products that specify delivery dates beyond the Products’ Lead-Times. Concurrently, Customers generally submit monthly to Ikotek a forecast (the “Forecast”) of that Customer’s anticipated future monthly demand for each Product. The Forecast covers the remainder of the 12 month period after the months covered by Purchase Orders.
In the process of Ikotek working to meet the Customer’s anticipated future Product delivery demands represented by firm POs and future Forecasts, each of the following three related component-supply issues may present themselves that require Ikotek to place component orders that, while necessary to meet the anticipated demand, may not be ideally suited to minimizing the component costs in view of all possible future developments. First, some components of the Product may need to be ordered from a supplier prior to the issuance of a firm Purchase Order from the Customer in order to be received in time to manufacture the ultimate Product within the necessary timeframe (“Long Lead-Time Components"). Second, some component orders are non-cancellable and non-returnable (“NCNR Components”), so the price paid by Ikotek to a component manufacturer for a components purchase made in anticipation of fulfilling a PO or Forecast may not be reclaimed by Ikotek if the need for those components does not come to pass. And third, some components have a minimum-order-quantity (“MOQ”) requirement such that they can only be ordered in amounts each order that may exceed the quantities necessary to fulfill the firm POs and future demand for the Product(s) the components are incorporated into (“Excessive MOQ Components”).
The Customer will assume all liabilities and be responsible for payment for all purchases against Forecast with respect to Long Lead-Time Components, NCNR Components and Excessive MOQ Components not incorporated into Products or otherwise usable by Ikotek. Ikotek shall use commercially reasonable efforts to minimize this liability. Optionally, the Customer may, at its own discretion, place orders with vendors for Long-Lead-Time Components, NCNR Components, Excessive MOQ Components, or otherwise critical parts. Ikotek may take over any of such Customer POs with the vendors if there is a need for that quantity of components in the demand forecasted by the Customer.
4.2.1 Rescheduling
The Customer may request an increase in the quantity of Products specified in a PO or an advance of the delivery date specified in a PO by delivering to Ikotek a written change order (each, a “Change Order”). Ikotek may, in its sole discretion, accept or reject such a request. If accepted by Ikotek, Ikotek will use commercially reasonable efforts to accommodate any increase or advancement in demand subject to component material availability.
The Customer may request to delay a portion of the quantity of Products to be delivered by Ikotek in response to a PO by delivering to Ikotek, in writing, a Change Order; provided that no such Change Order shall be effective until acknowledged and accepted in writing by Ikotek. The new delivery date specified on the Change Order and the quantity/percentage of the original scheduled shipment that may be delayed must be agreed to by the Customer and Ikotek. Ikotek reserves the right to charge the Customer a fee for any such rescheduling or postponements.
4.2.2 Cancellation
The Customer may cancel a PO for requested delivery further out in time than the Product’s Lead-Time by written notice to Ikotek, provided that the Customer’s cancellation of any PO, or any portion thereof, shall be subject to cancellation charges which include, without limitation: (a) all costs and expenses directly incurred by Ikotek, including: fees for stopping delivery, transportation fees, storage fees, and return or resale costs, (b) if such Products are unique to the Customer, costs related to works in progress and components ordered or otherwise used in connection with such cancelled order, and (c) a fixed sum of 10% of the total price of Products to compensate for disruption in scheduling, planned production, and other indirect and administrative costs. Ikotek, in its sole discretion, may cancel or delay shipment of any orders without liability to the Customer with respect to such cancellation.
If the Product is on hold at Ikotek’s facility as a result of the Customer’s act, omission or dispute caused by the Customer, Ikotek will have the right to charge the Customer an additional 1.0% inventory fee/carrying cost per month or portion thereof until the matter is resolved to the reasonable satisfaction of Ikotek. The Customer shall promptly reimburse Ikotek for any additional charges incurred by Ikotek as a result of any Change Order made. This may include, but is not limited to, overtime charges, expediting fees, and freight.
Ikotek will manufacture Product in accordance with the Product’s Specifications. Ikotek does not know the Customer’s end-use requirements, so it is the Customer’s responsibility to determine whether the Products are safe, lawful, and suitable for their intended end-use application before purchase and use.
If there is a written agreement between Ikotek and the Customer regarding Specifications, Ikotek shall not make or incorporate any changes in the Specifications which affect form, fit, function, regulatory approvals, interface, interchangeability, reliability, or maintainability without the Customer’s prior written approval, which shall not be unreasonably withheld. The Customer may submit engineering change orders (“ECO”s) to the Products from time to time during the term hereof by prior written notification to Ikotek, describing the details of those engineering changes. Drawings, designs and/or specifications required thereby shall also be supplied by the Customer. The Customer shall be responsible and liable for any and all materials and products rendered obsolete or excess by such changes and, subsequent to the change, Ikotek may propose an increase or decrease in the unit price of any Products and any changes in the applicable manufacturing schedule or process.
All payments for Products or Services will be made in U.S. Dollars and payment is required by electronic transfer.
Unless otherwise agreed to by the Parties in writing, the default payment terms shall be thirty percent (30%) of the purchase price for the Products and all other related charges contemplated hereunder shall be due and payable no more than 10 days after the receipt by Ikotek of the Purchase Order. Subject to credit approval, the remaining 70% of the payment shall be due and payable net thirty (30) days after the date of Ikotek’s invoice issuance.
Invoices for partial deliveries will be payable even if delivery of all Products or Services is not complete as of the date of the invoice. If the Customer fails to make payment, Ikotek may suspend delivery of current or future orders to the Customer until payment in full is received without any liability to the Customer. The Customer may not withhold payment of any amounts due as a set-off of any claim or dispute with Ikotek. The Customer must identify any invoicing disputes within twenty-one (21) days of the date of the invoice. Any undisputed amounts must be paid on time while payments of any disputed amounts are due on resolution of the alleged dispute. Unpaid amounts accrue interest at a rate equal to the lesser of one percent (1.0%) per month or the maximum rate allowed by applicable law, from the applicable due date until paid. The Customer is responsible for paying all collection costs, court costs, interest, and legal fees that Ikotek incurs to collect any unpaid amounts for Products or Services. Ikotek reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) (or equivalent law in the applicable jurisdiction) for the Customer’s failure to pay for the Products or Services or any other breach of these Terms.
Ikotek, in its sole discretion, may require the Customer to provide sufficient evidence in advance of any order of its ability to pay Ikotek any amounts that may become due. Such evidence may include local bank affirmation of the Customer’s credit, or a letter of credit issued by a bank acceptable to Ikotek for all amounts due.
If the Customer provides payment without identifying the invoice to which the payment applies, then Ikotek may apply such payment in its sole discretion to any invoices or other amounts owed by the Customer to Ikotek. Payment terms and credit limits are subject to credit approval, which shall be determined periodically, at the sole and absolute discretion of Ikotek. The Customer grants Ikotek the right to perform any such credit and background searches as Ikotek deems necessary.
Because of changes in production levels and customer requirements, Ikotek cannot start manufacturing or commit to an estimated delivery schedule until it has received and accepted the Customer’s order. Ikotek will start the manufacturing of Products based on the available production capacity at the time of receipt of all necessary information.
Ikotek will deliver or make available the Products in a reasonable time after receiving an order, subject to component availability and other potential limitations. Any delivery date provided by Ikotek to the Customer is an estimate only, not a guarantee. Ikotek reserves the right to make partial deliveries at its discretion. Completion of the Customer’s order may be delayed by acts of God, fires, severe weather, strikes, labor shortages, government orders, rules or regulations, component suppliers’ inability or failure to provide materials or services, wars (declared and undeclared), revolution, civil commotion, blockades, embargos, sanctions, epidemics, pandemics, and other causes beyond Ikotek’s control. Ikotek will use commercially reasonable efforts to make shipments as scheduled.
Unless otherwise noted or agreed to in a writing signed by Ikotek, all shipments of Products will be EXW (Incoterms® 2021) Ikotek’s manufacturing facility (“Delivery Location”), using Ikotek’s standard method for packaging and shipping. The Customer will take possession within three (3) days of Ikotek’s notice that the Products are at the Delivery Location. Title and risk of loss to Products pass to the Customer at the time of delivery. Upon taking delivery, the Customer accepts responsibility for freight, insurance and import customs fees due at destination. If the Customer rejects or revokes acceptance of any Products for any reason, all risk of loss and/or damage to Products will remain with the Customer unless the Products are returned to Ikotek (at the Customer’s expense) to a location designated by Ikotek.
If the Customer fails to accept delivery of Products on the date set forth in Ikotek’s notice that it has delivered the Products to the Delivery Location, or if Ikotek cannot deliver the Products to the Delivery Location on the date because the Customer failed to provide appropriate instructions, documents, license, or authorizations, then: (a) the Products will be deemed delivered to the Customer; and (b) Ikotek, at its option, may (i) store the Products until the Customer takes possession of them, at which time the Customer will be liable for all costs and expenses resulting therefrom (including the cost of storage and insurance), or (ii) ship the Products to the Customer at the Customer’s cost.
Products may be subject to export or resale restriction or regulation, and the Customer acknowledges that it will comply with such regulations and restrictions.
The Customer agrees to inspect the Products at the Customer’s sole cost and expense within five (5) days after receipt (“Inspection Period”). The Products are considered accepted at the end of the Inspection Period unless the Customer notifies Ikotek in writing of the nonconforming Products and provides evidence or other documentation required by Ikotek.
If the Customer fails to inspect and accept the Products within the time frame as set forth in this Section, the Customer shall be deemed to have accepted the Products and to waive its rights to:
(i) Claim the items shipped are different from what is identified on the Customer’s purchase order or other order confirmation document; or
(ii) Claim the labels or packaging incorrectly identifies them; or
(iii) Claim any quantity shortfall in the delivery.
The Customer shall give Ikotek prompt written notice of any rejection based upon the nature and/or the quantity of the Products received as set forth in Section 8.1. All rejected Products must be returned as instructed by Ikotek. Products may not be returned to Ikotek without Ikotek’s written authorization.
Upon any material failure of any of the Products to meet the Specifications, the Customer’s exclusive remedy is outlined in Section 9.2.
Ikotek warrants that Products shall:
(i) be free from defects in workmanship;
(ii) have been manufactured and assembled in accordance with the commercial standards identified in the Specifications; and
(iii) conform to its respective Specifications.
This limited warranty is only for the benefit of the original Customer and is not transferrable. This limited warranty does not apply to Products that are: (a) damaged by disaster or other causes beyond Ikotek’s control; (b) subject to normal wear and tear; or (c) not properly stored or maintained in accordance with Ikotek’s instructions. This limited warranty is void if: (a) the Customer modifies or allows a third party to modify the Products; (b) the Customer uses the Products for non-approved uses or in non-approved ways; or (c) the Customer fails to pay for Products in full.
Ikotek makes no other warranty, express or implied, with respect to any Product. The warranty period is twelve (12) months starting from the date of delivery of any Product to the Customer (“Warranty Period”).
Upon a breach of the foregoing warranties, Ikotek’s sole liability and the Customer’s exclusive remedy shall be as follows. The Customer shall return the affected Product(s) to Ikotek in accordance with Ikotek’s standard Return Materials Authorization (“RMA”) process. As part of the RMA process, any shipping costs related to sending the defective Products back to Ikotek shall be borne by the Customer. Ikotek shall, at its sole discretion and at its expense, repair or replace any defective Products returned by the Customer during the Warranty Period. After repair or replacement of the Products, the Warranty Period shall be effective for the remainder of the initial 12 months.
If there is no defect found on the Product return, Ikotek shall have the right to charge the Customer a reasonable fee to cover the labor. If Ikotek is unable to identify the cause of any Product failure, the Customer will provide reasonable technical support to determine the root failure cause. If Ikotek and the Customer are jointly unable to identify a root cause, the Customer will take back the defective Product and either issue a PO for a replacement Product or dispose of the Product without replacement.
As for materials, components and parts that are purchased from the Customer’s Approved Manufacturer’s List (AML), Ikotek shall not independently warrant such items but shall pass through to the Customer, if so permitted, any and all warranties from the respective manufacturers thereof. Ikotek shall not be responsible for any defect caused by product misuse, accident, disaster, neglect, abuse, improper handling, testing, or installation, or by alterations, modifications or repairs by customers or third parties. Ikotek hereby disclaims and does not make any express, implied or statutory warranties, including but not limited to any implied warranty of merchantability or fitness for any particular purpose or use or respecting infringement.
Ikotek shall not be liable to uphold any future warranty status or service obligation upon termination, withdrawal, or disengagement of business by or with the Customer, unless:
(i) The Parties agree in a writing signed by both Parties that such warranty status or obligation shall continue after disengagement, withdrawal, or termination; and
(ii) The Customer agrees to provide and does provide full support, including staffing support and non-recurring engineering charges (NRE), to the extent the same were provided or needed in the original manufacture of the Products.
Excluding claims or damages arising out of one Party’s misappropriation of the other Party’s intellectual property or confidential information or claims for indemnification under Section 10, under no circumstance shall either Party be liable to the other, or to any other person or entity, for special, indirect, incidental, punitive or consequential damages, lost profits or lost business, or cost of procurement of substitute goods or services based upon breach of warranty, breach of contract, tort, statutory claim or any other legal or equitable theory pertaining to its performance under the Terms.
TO THE FULLEST EXTENT PERMITTED BY LAW, AND EXCEPT AS OTHERWISE PROVIDED HEREIN, ALL PRODUCTS AND SERVICES ARE PROVIDED “AS IS” AND IKOTEK EXPRESSLY EXCLUDES AND DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR NONINFRINGEMENT. LABELING ON PRODUCTS AND PACKAGING IS INTENDED SOLELY FOR COMPLIANCE WITH APPLICABLE LAW AND IKOTEK DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, THAT ARISE FROM SUCH LABELING OTHER THAN AS REQUIRED BY APPLICABLE LAW. IN NO EVENT SHALL IKOTEK BE RESPONSIBLE UNDER ITS WARRANTY FOR ANY DEFECT CAUSED BY NEGLIGENCE OF THE CUSTOMER OR A THIRD PARTY, MISUSE OF A PRODUCT, OR MISTREATEMENT OF A PRODUCT. IKOTEK WILL HAVE NO RESPONSIBILITY FOR ANY PRODUCT ALTERED OR MODIFIED IN ANY WAY. IKOTEK WILL HAVE NO RESPONSIBILITY IF ANY DEFECT OR FAILURE IS CAUSED BY NONCOMPATABILITY OF THE PRODUCTS WITH OTHER COMPONENTS USED BY THE CUSTOMER. IKOTEK WILL HAVE NO RESPONSIBILITY FOR NONSTANDARD PRODUCTS, OR PRODUCTS PURCHASED OR ACQUIRED THROUGH UNAUTHORIZED CHANNELS. THE WARRANTY OF REPLACEMENT PRODUCTS WILL TERMINATE WITH THE WARRANTY OF THE ORIGINAL PRODUCT.
The Customer agrees to defend, indemnify, and hold harmless Ikotek and its directors, officers, employees, agents, and Affiliates from and against any and all damages, liabilities, costs, and expenses (including reasonable attorney fees and court costs) arising out of (a) any acts, omissions, misstatements, or misrepresentations of the Customer or its representatives, arising out of or relating to the Customer’s purchase, handling, transportation, export, re-export, re-transfer, import, possession, use, modification, demonstration, marketing, sale, disposition, distribution, or maintenance of the Products or Services; (b) improper use or disclosure of Ikotek’s intellectual property including trademarks, patents, copyrights, and proprietary marketing and business systems information; (c) any intentional misconduct or negligent act or omission of the Customer, its employee, or its agents; (d) any contractual obligation assumed by the Customer to a third-party; (e) any misuse or modification of Products or Services by the Customer or its employees or agents; (f) personal injury, death, or property damage caused by the Customer’s products in which Ikotek products are included; or (g) the Customer’s failure to comply with any law, rule, or regulation applicable to these Terms or the performance of the Customer’s obligations under these Terms.
The sale of Products and Services under these Terms do not convey any express or implied license under any patent, copyright, trademark, or other proprietary rights owned or controlled by Ikotek or its Affiliates and/or Subsidiaries beyond those fully embodied by the individual item sold, whether relating more generally to the Products or Services sold or any manufacturing process or other matter. All rights under any such patent, copyright, trademark, or other proprietary rights are expressly reserved by Ikotek.
The Customer shall not remove or omit any copyright or other proprietary notices placed or included by Ikotek on any Product or in the Product software, documentation or other materials provided with the Product.
Nothing in these Terms will be construed as a sale, assignment, or transfer of product software to the Customer or to any of the Customer’s customers, except that each customer which purchases a Customer product containing an Ikotek Product will have a limited license to use and execute the Ikotek software as required for the use of such Customer product, and for no other purpose. Except with the prior written consent of Ikotek, the Customer shall not (a) disassemble, decompile, decode, reverse engineer, alter, modify, adapt, or create any derivative works based on the software; (b) copy the software; or (c) distribute the software apart from the associated Ikotek Products.
The Customer represents and warrants that it owns or has the legal right to use any designs and Specifications it provided as input to the manufacture of the Products, that the designs and Specifications do not infringe on any patent, trademark, trade secret, copyright, or other proprietary right, and that the Customer has no knowledge of any claim of infringement, either threatened or pending.
The Customer shall defend, indemnify and hold Ikotek harmless from and against any claims or liabilities for, or by reason of, any alleged infringement of any patent, trademark, trade secret, copyright or other proprietary right caused by Ikotek’s use and reliance upon any Product Specification, design or Communications Standard in manufacturing the Product, or arising out of the Products being incorporated by or at the request of the Customer into another Product or system which infringes, or is alleged to infringe, upon any patent, trademark, trade secret, copyright, or other proprietary right.
The Parties acknowledge that through this transaction they may become aware of the other Party’s confidential, secret, or proprietary information such as its bidding, pricing, suppliers, customer lists, research, development, engineering, internal operations, inventory control, data processing, technical data, and other procedures or systems (collectively “Confidential Information”). The Parties agree that disclosure of such Confidential Information would materially and adversely affect the other Party.
The Parties agree to maintain the confidentiality and secrecy of such Confidential Information, and not to disclose it to any person, firm, or other entity, or to utilize the Confidential Information in any manner or form, except as may be expressly required by these Terms.
Notwithstanding anything to the contrary, the confidentiality provisions of this Section shall survive indefinitely. The Parties agree to exclude from these confidentiality obligations any Confidential Information that the receiving Party can show is: (a) wholly and independently developed by the receiving Party without the use of the other Party’s Confidential Information; (b) is known or becomes known to the general public without breach of these Terms; (c) was known by the receiving Party at or before the time of disclosure by the other Party as evidenced by documentation in the receiving Party’s possession; (d) approved for release by written authorization of the other Party, but only to the extent of and subject to such conditions as may be imposed in such written authorization; (e) disclosed in response to a valid order of a court, regulatory, administrative, or other governmental agency, but only to the extent and for the purposes stated in such order; provided, however, that the receiving Party shall first notify the other Party in writing of the order and reasonably cooperate with the other Party if the other Party desires to seek an appropriate protective order or otherwise object to the disclosure; or (f) received rightfully and without confidential limitation by the receiving Party from a third party.
Except for the Customer’s payment obligations under these Terms, nonperformance under these Terms will be excused, and neither Party will bear any resulting liability to the other to the extent that such performance is rendered commercially impracticable or delayed by an act of God, nature or any other cause beyond the reasonable control of the non-performing Party (including, without limitation, acts of terrorism, war, flooding, civil unrest, any pandemic or epidemic related developments or restrictions or the adjustment thereof).
Compliance with any federal, state, provincial or local laws, regulations, and directives (“Laws”) relating to the installation, operation, or use of Products is the sole responsibility of the Customer. In addition, the Customer shall comply with all applicable Laws related to anti-bribery, anti-corruption, anti-slavery and human trafficking legislation (including without limitation the United Kingdom Bribery Act 2010 (UKBA), the US Foreign Corrupt Practices Act 1977 (as amended) (FCPA), or any other applicable national, state, provincial or territorial anti-bribery or anti-corruption law or statutes) and, as such, will make no offer, payment, or gift, will not promise to pay or give, and will not authorize, directly or indirectly, the promise or payment of, any money or anything of value to any government official, any political party or its officials, or any person while knowing or having reason to know that all or a portion of such money or item of value will be offered, given, or promised for the purpose of influencing any decision or act to assist Ikotek or the Customer or otherwise obtaining any improper advantage or benefit.
These Terms will be construed, interpreted, enforced, and applied in accordance with the internal laws of the State of New York, USA. The Customer irrevocably agrees and unconditionally submits to Judicial Arbitration and Mediation Services (JAMS) in accordance with JAMS Streamlined Arbitration Rules and Procedures or such other rules as may be agreed upon between the Customer and Ikotek. The Customer acknowledges that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms.
THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR NONCONFORMING PRODUCTS OR SERVICES IS REPLACEMENT OF THE SAME OR A CREDIT OF THE PURCHASE PRICE PAID, WHICHEVER OPTION IKOTEK CHOOSES. NOTWITHSTANDING THE ABOVE, IKOTEK’S LIABILITY UNDER THESE TERMS SHALL NOT EXCEED THE AMOUNT PAID OR PAYABLE FROM THE CUSTOMER TO IKOTEK IN CONNECTION WITH PRODUCTS OR SERVICES PURCHASED BY THE CUSTOMER DURING THE SIX (6) MONTH PERIOD PRECEDING THE APPLICABLE CLAIM. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER FOR CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY, OR OTHER INDIRECT DAMAGES OR FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE DAMAGES ARISING OUT OF ANY ORDER HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION APPLIES EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGE, LOSS, OR LIABILITY FROM INTENTIONAL ACTS, PRODUCT LIABILITY, DEATH, OR PERSONAL INJURY. NOTHING IN THIS SECTION WILL BE INTERPRETED AS EXCLUDING LIABILITY IN THOSE JURISDICTIONS THAT CANNOT UNDER APPLICABLE LAW BE EXCLUDED. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATIONS OF RISK AND FIND IT REASONABLE, AND THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES
Unless and until Ikotek and the Customer both sign a formal written agreement specifically governing this transaction of Products and/or Services, these Terms constitute the entire agreement of the Parties and supersede all prior negotiations, proposals, agreements, and understandings, whether oral or written, relating to the products to be purchased hereunder or otherwise relating to the subject matter of these Terms. Any representation, warranty, course of dealing or trade usage not expressly contained or referenced herein shall not be binding on Ikotek.
Either Party may freely assign these Terms without the prior consent of the other Party in connection with a transfer of all or substantially all of its business or assets, whether by corporate reorganization, acquisition, sale of assets or merger, provided such transferring Party has provided at least thirty (30) days’ notice to the other Party.
Subject to the foregoing, the Customer shall not assign or transfer any rights or claim under this agreement without Ikotek’s prior written consent. Any assignment made without Ikotek’s consent is void. If Ikotek authorizes an assignment, the Customer remains jointly and severally liable with assignee for the performance of the obligations in these Terms. Ikotek may assign its rights and obligation to any Affiliate, or to any purchaser of all or substantially all Ikotek’s assets. These Terms will be binding on and inure to the benefit of the successors and permitted assigns.
If any provision of these Terms shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions shall remain in full force and effect.
Failure or delay on the part of Ikotek to exercise any right, power, privilege, or remedy shall not constitute a waiver.
Ikotek reserves the right to alter, modify, redesign, or discontinue the Products or any components of the Products and to change its service, warranty, support, or other policies, without notice and without any obligation to the Customer.
Ikotek may update these Terms from time to time at its sole discretion. The updated Terms shall apply to all Purchase Orders submitted after the effective date of the updates.