1. CUSTOMER ORDER. A Customer’s order constitutes an offer to purchase Products from New Century Cyber Technologies, Inc (“iCTABLE”). iCTABLE shall not be deemed to have accepted any order (or any portion thereof) of Customer with respect to any Products until iCTABLE dispatches such Products to the carrier for delivery to Customer as provided herein. iCTABLE’s acceptance of any order for Products is based upon the express condition that Customer accepts and agrees to be bound by all of the Terms set forth herein. Customer’s acceptance of delivery of, or payment for, any Products shall constitute Customer’s assent to such Terms. The Terms shall constitute the entire agreement and understanding of iCTABLE and Customer with respect to the transactions contemplated hereby. Such Terms shall control irrespective of any inconsistent or additional terms and conditions, whether printed or otherwise, set forth in any communication from Customer to iCTABLE, or which otherwise would be deemed established by any course of dealing, course of performance or usage of trade, unless otherwise provided herein or specifically agreed to in writing as a waiver or modification signed by an officer of iCTABLE.
2. ORDER ACKNOWLEDGMENT; INVOICES. Upon receipt of an order for Products, iCTABLE may, at its option, acknowledge such receipt by providing to Customer an “Order Acknowledgment”. No such Order Acknowledgment shall be deemed to constitute iCTABLE’s acceptance of such order or any portion thereof; such acceptance shall only occur as provided in Section 1 hereof. To the extent that any terms and conditions set forth in any such Order Acknowledgment or in any invoice delivered by iCTABLE to Customer in connection with any sale of Products hereunder (“Invoice”) are different from, inconsistent with or in addition to the Terms herein, such terms and conditions, together with those herein which are not different from or inconsistent with those in such Order Acknowledgment or Invoice, shall control and constitute the entire agreement and understanding of the parties with respect to the transactions contemplated thereby.
3. PRODUCT CHANGES. iCTABLE expressly reserves the right, at any time and without notice, to discontinue the production or change the specifications of any product, and no such change in specifications shall affect any order of such product by Customer.
4. PRICES AND PAYMENT. All prices are subject to change, at any time and without notice, to iCTABLE’s prices prevailing for its Products at the time of shipment. Unless otherwise indicated in writing by iCTABLE, prices are EXW iCTABLE’s place of manufacture or distribution of its Products. Customer shall pay and be exclusively liable for all costs of shipping, delivery, insurance and the like after iCTABLE has effected delivery of the Products to the carrier. All orders must be paid in full, including shipping, prior to delivery by iCTABLE to the carrier, through applicable means. iCTABLE reserves the right to suspend delivery until full payment is received. Customer shall not set off against or deduct from any amounts due to iCTABLE hereunder all or any part of any amounts owed or alleged to be owed by iCTABLE to Customer or any damages or losses which Customer may have sustained or allege to have sustained as a result of any breach or alleged breach by iCTABLE or any obligation of any kind to Customer (whether or not arising hereunder or in connection herewith).
5. TAXES. Prices do not include any tax or other government charge or assessment upon the sale, shipment, production or use of Products ordered or sold hereunder. Customer shall be solely responsible for, and shall pay to iCTABLE upon demand by iCTABLE, any such tax, charge or assessment (other than any such tax on or measured by iCTABLE’s income).
6. TITLE AND RISK OF LOSS. Title to all Products supplied hereunder shall pass to Customer when delivered to the carrier and thereafter, except as otherwise specifically provided herein, all risk of loss and/or damage to any Products ordered hereunder shall be borne by Customer.
7. DELIVERY. iCTABLE shall attempt in good faith to effect delivery approximately in accordance with the instructions set forth in Customer’s order or approximately on such other schedule as iCTABLE may provide to the Customer in any Order Acknowledgment or other response to an order, but iCTABLE shall not be responsible or liable for any delays or failure in such delivery. iCTABLE expressly reserves the right to effect delivery of Products ordered in any number of separate shipments. Subject to Customer’s instructions as to carrier, delivery shall be effected using such modes of transport and such carriers as iCTABLE shall deem appropriate. During any period of shortage of any product, iCTABLE shall have the right to allocate its supply of such product among its customers, including Customer, pursuant to their respective orders and contracts in any manner iCTABLE deems appropriate. iCTABLE shall in no event be responsible or liable for any delay or failure to effect delivery due to any cause which is unavoidable or beyond iCTABLE’s reasonable control and which prevents, impairs or adversely affects in any way iCTABLE’s performance under any order, including but not limited to war, fire, flood, natural disaster, strike, labor dispute, act of God, governmental action, civil disturbance, accident, or inability to obtain or use materials, labor, equipment, facilities or transportation; in such cases, iCTABLE shall have the right, at its option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time. In the event that any product or option listed in the iCTABLE Store is listed as “SOLD OUT” or “OUT OF STOCK”, then the approximate lead time will be 3 months from the date of purchase. The lead time is an estimate, is not a guarantee of delivery in that time frame, and is not grounds for cancellations, refunds, or returns.
8. INSPECTION BY CUSTOMER; CLAIMS FOR DAMAGE IN TRANSIT. Customer shall carefully examine all deliveries of Products made hereunder and within five (5) days of receipt notify iCTABLE of any alleged error, shortage, defect or non-conformity of any such Products. Any failure by Customer to examine and report shall constitute a waiver of any claim or right of Customer against iCTABLE arising hereunder or by law with respect to any such error, shortage, defect or non-conformity reasonably discoverable by such examination. Any and all claims by Customer for damage or loss in transit shall be made by Customer against the carrier.
9. RETURNS AND REFUNDS. Neither refunds, cancellations, nor returns of the payment or product will be accepted at any given time for any reason. This applies to any past, present, or future purchases or transactions to or from iCTABLE.
10. RESTRICTIONS ON USE. Customer agrees that one shall not directly or indirectly: intentionally damage the Product; operate or make use of the Products in any way violative of applicable laws and regulations; take or permit any other action which could impair iCTABLE’s rights, or damage the image or reputation of quality inherent in the Products, iCTABLE’s business, reputation, intellectual property or other unlisted valuable assets or rights.
11. SUPPORT. For any Customer problems with Products purchased from iCTABLE or an Authorized Party (“Problem”), Customer shall contact the iCTABLE Support team via email (firstname.lastname@example.org) or through Facebook (facebook.com/ictable). If a Problem requires iCTABLE Support to ship a replacement part or replace a Product (“Replacement”), Customer shall pay for the cost of the Replacement and associated shipping. unless the Problem is a valid limited warranty claim. In such cases, if Customer receives a Replacement, the original part or Product becomes the property of iCTABLE. iCTABLE reserves the right to discontinue support to any Customer that uses inappropriate or abusive language and/or behaves in a manner that is hostile.
12. LIMITED WARRANTY AND DISCLAIMERS. All hardware Products include a limited warranty and this limited warranty is only available to Customer for a certain period of time. For specific and detailed information regarding this ICTABLE limited warranty, please visit our website, ictable.com or contact us through applicable means.
13.1 Of Customer. Subject to the restrictions identified below, iCTABLE shall assume responsibility for any suit or proceeding brought against Customer which is based on a third party claim that an unaltered Product or any part thereof, furnished pursuant to these Terms infringes upon the third party’s registered copyright, trademark or patent; provided, however, that iCTABLE shall: (i) be given immediate notice in writing of the assertion of any such claim and of the threat or institution of any such suit or proceeding; (ii) have sole authority to investigate, defend and/or settle the claim, suit or proceeding; and (iii) be given any such assistance as required for the investigation, preparation, defense and settlement of the claim, suit or proceeding, subject to reimbursement by iCTABLE of Customer’s reasonable out-of-pocket expenses. This Section states Customer’s entire remedy, and iCTABLE’ entire liability subject to the limitations on liability set out in Section 13 (Limitations of Liability), for any such infringement or claim thereof, and shall control over any other conflicting or inconsistent provision in these Terms. Without the prior written consent of iCTABLE, Customer shall not incur any cost or expense in connection with such claim, suit or proceeding or make any admission, or enter into any agreement, in connection therewith. iCTABLE shall have no liability or obligation under this Section 12 for any infringement or claim thereof to the extent it is based upon: (a) production, sale or use of prototypes, outputs, or other results of the Products; (b) any method of using a Product other than methods inherent in, and necessary for, the operation of, the Product as supplied; (c) the use of any Product with any consumables, supplies, equipment, device not manufactured or supplied and certified by iCTABLE; (d) the use of any Product which has been modified by Customer or any third party without obtaining iCTABLE’s prior written authorization; (e) the result of iCTABLE’s compliance with any of Customer’s requested designs or specifications; and/or (f) Customer’s continued use of any Product after receipt of notice of infringement (collectively, “Exclusions”;).
13.2. Of iCTABLE. Customer shall defend, indemnify, and hold harmless iCTABLE and its affiliates, and their employees, officers, and directors, against any claim, suit or proceeding arising out of or relating to any Exclusions; provided that Customer shall not settle any claim or enter into any agreement that affects iCTABLE’s rights or interests without iCTABLE’s prior written consent; and that if Customer does not diligently defend against such claim, suit, or proceeding, iCTABLE shall be entitled to obtain its own legal counsel to direct the defense thereof at Customer’s sole cost and expense.
14. LIMITATIONS OF LIABILITY.
NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INCLUDING WITHOUT LIMITATION iCTABLE’S INDEMNIFICATION LIABILITY UNDER SECTION 13 (INDEMNIFICATION), IN NO EVENT SHALL iCTABLE OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR DIRECT DAMAGES OR OTHER LOSSES OR LIABILITIES DIRECTLY RELATING TO THE PRODUCTS OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE USE OF PRODUCTS, IF AND TO THE EXTENT SUCH DIRECT DAMAGES OR LOSSES EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) THAT DIRECTLY GAVE RISE TO THE DAMAGES OR OTHER LOSSES OR LIABILITIES CLAIMED, REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE
Notwithstanding anything herein to the contrary, in no event shall iCTABLE or any of its respective officers, directors, employees, shareholders, affiliates, agents, successors or assigns, nor any party involved in the creation or production of the Products be liable to Customer or anyone else for any indirect, special, punitive, incidental or consequential damages (including, without limitation, those resulting from lost profits, lost data or business interruption) arising out of the use, inability to use, or the results of use of the Products, whether based on warranty, contract, tort or any other legal theory and whether or not advised of the possibility of such damages.
The foregoing limitations of liability do not apply to the extent prohibited by law; Customer shall refer to local laws for any such prohibitions.
15. iCTABLE’S TRADEMARKS. Certain trademarks, trade names, service marks and logos used on or in association with the Products are registered and unregistered trademarks, trade names and service marks of iCTABLE and its affiliates. Neither Customer nor anyone else is granted by implication, estoppel, or otherwise, any license or right to use any trademarks, trade names, service marks or logos without the written permission of iCTABLE.
16. MODIFICATION AND CANCELLATION. Except as expressly provided herein, the terms and conditions hereof may not be modified, terminated, or repudiated, in whole or in part, except by a writing executed by an authorized officer of iCTABLE. iCTABLE may, at its option, treat any attempted modification, termination or repudiation to which it does not assent in writing as a breach of the entire agreement hereunder and recover from Customer all of iCTABLE’s damages, including without limitation special, indirect, consequential and incidental damages (“Damages”) resulting therefrom or arising in connection therewith. In the event that Customer (a) breaches any of the terms and conditions hereof, (b) becomes unable to conduct its normal business operations (including to meet its obligations as they mature) or the subject of any proceeding under any state or federal bankruptcy law or other law for the benefit of creditors or relief of debtors or (c) makes any assignment for the benefit of creditors, then iCTABLE may immediately (x) cancel or terminate any and all agreements with or obligations to Customer relating to sales of Products in whole or in such part as iCTABLE may deem expedient and (y) recover from Customer all of iCTABLE’s Damages resulting therefrom or in connection therewith.
17. EXPORT COMPLIANCE. Customer shall comply with all applicable laws, rules and regulations with respect to use of the Product, abide by all applicable foreign trade/export restrictions or similar rules, and not transfer, export or re-export the Product to Lebanon or any country that violates any applicable export controls administered by the United States of America.
18. WAIVER. Any waiver by iCTABLE of the performance or breach of any provision hereof shall be in writing and executed by an authorized officer of iCTABLE, and no such waiver shall constitute a waiver of the subsequent performance or breach of the same or any other provision.
19. SEVERABILITY. The invalidity or non-enforceability, in whole or in part, of any provision hereof shall not affect in any way the validity and enforceability of the remainder of such or any other provision.
20. GOVERNING LAW. These terms and conditions and the transactions contemplated hereby shall be governed by, and construed and interpreted in accordance with, the laws of the State of California, U.S.A., without regard to the choice-of-law principles thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this agreement. Any action seeking legal or equitable relief arising out of or relating to these Terms or the Manual will be brought only in the courts of the State of California or the United States District Court for the District of Los Angeles.