Custom Products Sales Order Agreement (“Agreement”) represents the Customer’s (“You” or “Your”) order (“Order”) for the products listed on the Iconex Custom Products Sales Order Agreement and any subsequent amendments signed by both Parties. Iconex reserves the right to modify or decline an order for any Product (including in any amendment) within ten (10) calendar days of its receipt. Orders not modified or declined by ICONEX in ten (10) calendar days, or for which manufacturing or procurement have commenced, are deemed accepted. 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 agreement covering such transactions.
CUSTOM PRODUCTS
Custom 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 especially 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 this Agreement, all Products shall be considered Custom Products.
All Orders for Custom Products are “firm orders” and are non-cancelable, and the respective products are non-returnable except for warranty claims.
ICONEX may procure, manufacture, and/or ship any Custom 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 this Agreement extend to all Products procured, manufactured, and/or shipped within the above-noted tolerance range.
PRICING AND PAYMENT TERMS
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 in advance).
Payment terms are net thirty (30) days from the date of invoice. You agree to pay interest at the lower of 1.5% per month or the highest rate allowed by law for any late payment. Any claim for a credit or additional product due to short shipments or insufficient quantity must be made within thirty (30) days of delivery of the short or insufficient shipment or is deemed waived.
BILLING
Billing (including invoicing) will occur according to the option selected on the “Billing Options and Storage Parameters” section of the Agreement. If no option is selected, 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 elect to, at Your expense, have all such Products (a) shipped to You or Your designee, (b) destroyed or otherwise disposed of, 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 and/or costs associated with such further storage, (ii) bear all risk of obsolescence of the Products, (iii) 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 Term or further storage period (as applicable), You fail to elect one of the available options listed above, ICONEX will have the right to have all remaining Products destroyed or otherwise disposed of, 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 to 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 this Agreement.
International Shipping. ICONEX will be responsible to deliver Products to ICONEX warehouse or other like facilities only. You shall be responsible for all the following Freight On Board (“FOB”) charges and responsibilities: delivery to Your desired destination, unloading at destination, import duty, taxes and customs clearance freight charges, insurance, freight insurance for shipment of Products, destination terminal handling charges and all risk of loss. In the event of dunnage, penalties, or delays, You shall be responsible for the charges and associated risks.
Notwithstanding anything to the contrary, You agree to pay for all finished Custom Products (including any stored Products), all work-in-process, and all unutilized raw materials procured for any of the same not later than 30 days following the End Date or the Termination Date of the Agreement.
TITLE AND RISK OF LOSS
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 this Agreement will be of workmanlike quality and free from material defects and will meet their performance specifications, including equipment compatibility, as specified by ICONEX, for thirty (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).
ICONEX’s sole liability, 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 paid 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 this Agreement effective from the date of their delivery.
Notwithstanding anything to the contrary, ICONEX shall have no warranty obligation for Products 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 re-sale, 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.
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 THE 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 this 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 Custom 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 the original copy supplied by You. If so, ICONEX will, at its expense, create one (1) 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 marks on Products or the packaging thereof unless otherwise specified in an accepted Order.
Termination by ICONEX. ICONEX may immediately terminate this 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 this Agreement, including if You repudiate or wrongfully reject any Products. In all cases, ICONEX may recover its damages.
Inconsistent or Additional Terms. Terms contained in Your purchase 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 secrets, and trademarks). You agree to indemnify and hold ICONEX harmless against any and all claims of infringement relating to or arising out of (a) the custom 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 ON CONTRACT, STATUTE, TORT, OR OTHER LEGAL THEORY ARISING UNDER OR RELATED TO THIS AGREEMENT (“DISPUTE”) SHALL BE RESOLVED IN THE STATE COURTS OF GWINNETT COUNTY, GEORGIA. EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY STATE COURT IN GWINNETT COUNTY, GEORGIA, IN ANY PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND TO THE RESPECTIVE COURT TO WHICH AN APPEAL OF THE DECISIONS OF ANY SUCH COURT MAY BE TAKEN, AND EACH PARTY AGREES NOT TO COMMENCE, OR COOPERATE IN OR ENCOURAGE THE COMMENCEMENT OF, ANY SUCH PROCEEDING, EXCEPT IN SUCH A COURT. EACH PARTY HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT THAT IT MAY DO SO, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE THEREIN OF SUCH A PROCEEDING. EACH PARTY HEREBY AGREES THAT A FINAL JUDGMENT IN ANY SUCH PROCEEDING WILL BE CONCLUSIVE AND MAY BE ENFORCED IN ANY JURISDICTION BY SUIT ON THE JUDGMENT OR BY ANY OTHER MANNER PROVIDED BY APPLICABLE LAW. EACH PARTY HEREBY EXPRESSLY WAIVES ANY RIGHT THAT IT MAY HAVE TO A JURY TRIAL. GEORGIA LAW GOVERNS THIS AGREEMENT, INCLUDING THE RELATIONSHIPS CREATED BY IT AND THE TRANSACTIONS OCCURRING UNDER IT.
Excused Performance. A party shall be excused from any failure to comply with this Agreement, other than the tender of payment, arising from any cause beyond its reasonable control, including, for the duration thereof, including but not limited to: lack of or inability to obtain raw materials; strikes; fires; floods, severe weather, or other acts of God; carrier delay; labor disputes; riots; war; terrorism; embargo; pandemic; acts or allocations of governmental authorities whether or not valid; or where compliance with this Agreement would not be economically feasible.
Confidentiality. The pricing for Products 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 (3) years following the End Date hereof.
Entire Agreement; Amendment and Waiver. 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, and controls over Your purchase orders, acknowledgments, and the like. This Agreement cannot be amended except in a writing signed by You and an authorized ICONEX representative. No waiver of any Party’s rights under this Agreement shall be effective unless in writing signed by an authorized representative of the waiving Party.
Updated 25 January 2024
