These Terms and Conditions of Sale ("Agreement") are the only terms and conditions by which IQSS, LLC (“IQSS”) shall be bound, and they supersede all other agreements between the parties (including the terms contained in your Purchase Order(s) if any). Accordingly, such terms and conditions supersede and neither party places any reliance upon all and any prior representations (not limited to but including all descriptive materials, sales literature, price lists and all other documents issued by us) and you acknowledge that save as expressly stated hereunder, you have not been induced to enter into this Agreement by any representation whether oral or in writing by us, our employees, servants or agents and you unconditionally waive your rights to claim damages against IQSS or seek to rescind this Agreement in reliance on any statement made that is not set out or referred to in these Terms and Conditions. This acknowledgement and waiver shall not apply to fraudulent misrepresentations. The expression "you" throughout this Agreement shall mean yourself, if you are an individual purchaser or the company you are representing, if you are purchasing the Goods and/or Services on behalf of a company or other business entity. The warranties included in this Agreement are exclusive and to the fullest extent permitted by law, all conditions, warranties or representations whether express or implied by statute or common law (including without limitation the implied warranties or conditions of satisfactory quality and fitness for purpose) are hereby excluded.
ACCEPTANCE AND CANCELLATION OF ORDERS - All orders are subject to acceptance by IQSS in writing by a duly authorized agent of IQSS; any written acknowledgement of receipt of an order shall not, in and of itself, constitute such acceptance. Except for "Non-Cancelable/Non-Returnable" (NC/NR) products, Customers may cancel or re-schedule accepted orders upon the written consent of IQSS. IQSS reserves the right to allocate sales and limit quantities of selected Products among its customers in its sole discretion. Product specifications and availability are subject to change without prior notice.
QUOTATIONS AND PURCHASE ORDERS - Quotations submitted by IQSS shall be valid for the period therein stated, or where no period is stated then for a period of (30) thirty days from date that such quotation is issued by IQSS. Each Purchase Order is subject to these Terms and Conditions of Sale which may not be modified or varied without our prior written agreement. For the purpose of this Agreement the terms Goods and Services shall be defined in the Purchase Order(s). A Purchase Order is deemed to have been accepted by us only after a written Order Acknowledgement has been issued to you. We reserve the right to refuse to accept any Purchase Order for whatever reason. If at any time after we receive your Purchase Order you wish to make any modifications or additions to it, we shall endeavor to comply with your request, on the understanding that any resultant variations such as price or delivery date must be accepted by us, in writing, in advance of the change being implemented.
PRICES - All prices quoted are exclusive of state taxes, sales taxes, all other taxes, carriage, insurance, freight fees, export fees, custom duties, installation and commissioning and any of these items that are paid by us at your request shall be invoiced by us and repaid by you within 30 days of the issue of such invoice by us. While we will endeavor to maintain any price quoted, we reserve the right to vary the price. Such variation will be notified in writing 30 days prior to implementation of such price change. Prices quoted and/or agreed with you are based on the quantities of Goods or Services intended to be ordered by you over a specific period. We reserve the right to vary the price if you fail to order such quantities. Orders are billed at the prices (in US dollars) in effect at the time of shipment.
TERMS OF PAYMENT - All payments must be in US Dollars. For Domestic Orders,
Credit cards accepted are major credit cards, purchase cards and major bank debit cards. Payment via net thirty (30) days is available to businesses, schools and agencies or as otherwise specified by IQSS. For International Orders, Payment via net thirty (30) days can be established for companies having three verifiable U.S. references. You can also prepay by wire transferring the funds to our bank. We will contact you with the total amount which will include shipping charges and a $25 wire transfer fee. We will reserve stock for your order for 48 hours on orders awaiting funds. Orders will be canceled after 20 business days if funds have not been received. Customer is responsible for duties and taxes.
Customer agrees to pay the entire net amount of each invoice from IQSS pursuant to the terms of each such invoice without offset or deduction. Orders are subject to credit approval by IQSS, which may in its sole discretion at any time change the terms of Customer's credit, require payment in cash, bank wire transfer or by official bank check and/or require payment of any or all amounts due or to become due for Customer's order before shipment of any or all of the Products. If IQSS reasonably believes that the Customer's ability to make payments may be impaired or if Customer fails to pay any invoice when due, IQSS may suspend delivery of any order or any remaining balance thereof until such payment is made or cancel any order or any remaining balance thereof, and Customer will remain liable to pay for any Products already shipped and all Non-Standard Products ordered by Customer. Customer agrees to submit such financial information as IQSS may reasonably require for determination of credit terms and/or continuation of credit terms.
Checks are accepted subject to collection and the date of collection will be deemed the date of payment. Any check received from Customer may be applied by IQSS against any obligation owing by Customer to IQSS under this or any other contract, regardless of any statement appearing on or referring to such check, without discharging Customer's liability for any additional amounts owing by Customer to IQSS. The acceptance by IQSS of such check will not constitute a waiver of IQSS's right to pursue the collection of any remaining balance. Invoices not paid when due will bear interest to date of payment at the annual rate of eighteen (18%) percent or such lower rate as may be the maximum permitted by law. If Customer fails to make payment when due, IQSS may pursue any legal or equitable remedies, in which event IQSS will be entitled to reimbursement for costs of collection and reasonable attorneys' fees. There is a $25.00 service charge on all returned checks.
SALES TAX - When required by law IQSS will collect Federal, State and/or Local sale, use, excise and other taxes which apply to a Customer's shipment. These taxes are in addition to the purchase price of the Products subject to an order. Customer will remit the correct tax unless they are tax exempt and IQSS has a valid signed tax exemption certificate on file.
TITLE AND RISK - (a) Title to the Goods or Services will pass to you from us on payment in full of the Purchase Price, and all risk and loss or damage to the Goods will pass to you upon handover by IQSS at its premises. (b) Until such time as payment has been received by us in accordance with paragraph (a) of this clause you shall: (i) hold the Goods as our fiduciary agent and bailee; (ii) store and label the Goods in such a manner to enable the Goods to remain separate from all other goods of yours and to be clearly identifiable as the property of IQSS. (c) IQSS shall have the right to maintain an action for price of the Goods notwithstanding that the property in the Goods shall not have passed to you. (d) In the event of any sale or other disposition of the Goods by you, before you have paid IQSS, you shall hold on trust for us the whole of the proceeds of sale and/or the relevant book debt (or if the Goods have been mixed with or incorporated into other Goods, a just proportion of the proceeds of sale and/or the relevant book debt) which proceeds shall not be mixed with any other monies or paid into an overdrawn account.
DELIVERY - All shipments by IQSS are F.O.B. point of shipment from IQSS's facility and the amount of all transportation charges will be paid to IQSS by the Customer in addition to the purchase price of the Products. Subject to IQSS's right of stoppage in transit, delivery of the Products to the carrier will constitute delivery to Customer and title and risk of loss will pass to Customer. IQSS will make reasonable efforts to initiate shipment and schedule delivery as close as possible to Customer's requested delivery date(s). Customer acknowledges that delivery dates provided by IQSS are estimates only and that IQSS will not be liable for failure to deliver on such dates. Selection of the carrier and delivery route will be made by IQSS unless specifically designated by Customer. IQSS reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle Customer to cancel any other installment(s). Delivery of any installment of Products within thirty (30) days after the date requested will constitute a timely delivery. Delivery of a quantity which varies from the quantity specified shall not relieve Customer of the obligation to accept delivery and pay for the Products delivered.
TRADE MARKS - You agree not to remove, alter or deface or allow to be removed altered or defaced any marks, names or numbers affixed to the goods without the written consent of IQSS.
FORCE MAJEURE - We shall not be in default of, or liable for any delay or failure of compliance with, this Agreement due to acts of nature and/or acts of God (including but not limited to fire or flood, epidemics, wars or riots), public enemy, acts of civil or military authority (including but not limited to any government action), freight embargo, strike, acts or omissions of you or your nominated suppliers, shortage of supplies or materials, or any other cause which is beyond our control, during such happening or event.
PAYMENT - All sums payable in respect of the Goods or Services invoiced by IQSS must be paid within 30 days from invoice date, unless otherwise agreed in writing by IQSS. Time shall be of the essence and interest shall accrue on all outstanding accounts from the date upon which payment falls due until the actual date of payment being received by us at a rate of 5% above the US base bank rate from time to time and shall accrue at such rate after as well as before any judgment.
If you default on payment of any sums owing to us, then we shall be entitled to withhold delivery of the Goods or Services and of any further Goods or Services ordered by you and to cancel any contract for the same and to treat the Agreement as repudiated by you and to recover damages accordingly or to affirm the Agreement and to recover the purchase price from you. In the event of non-payment by you by the due date we shall be entitled, in addition to all other rights, to enter upon your land or premises where the Goods may for the time being be and recover possession of them. We may use such force as is necessary to enter the premises and remove the Goods. Without prejudice to other provisions of this clause, if IQSS has granted credit facilities to you and you default in any payment thereunder, IQSS shall be entitled to withdraw or vary such credit facility at any time by summary notice without either giving any reason for so doing or incurring any liability to you thereby. In the event that legal action is taken by IQSS against you for breach of any payment obligations hereunder or otherwise, you shall be responsible for all costs and disbursements incurred by IQSS (including, but not limited to, legal and/or attorney's fees) on an indemnity basis.
LIMITED WARRANTY - IQSS agrees to transfer to Customer whatever transferable warranties IQSS receives from the manufacturer of products sold to Customer. IQSS makes no other warranty, express or implied, with respect to the Products. IN PARTICULAR, IQSS MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR RESPECTING INFRINGEMENT. IQSS's liability arising out of any sale of products to Customer is expressly limited to either (1) Refund of the purchase price paid by Customer for such products (without interest), or (2) Repair and/or replacement of such products, at IQSS's election, and such remedies shall be exclusive and in lieu of all others. Customer must notify IQSS within 15 days from date of shipment of any defective product. This warranty is in lieu of any and all other warranties, whether oral, written, expressed, implied or statutory. IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY ARE SPECIFICALLY EXCLUDED AND SHALL NOT APPLY. Customer's obligations and IQSS's remedies, with respect to defective or nonconforming products, are solely and exclusively as stated herein. Further, no warranty will apply if the Product has been subject to misuse, static discharge, neglect, accident or modification, or has been altered in any way.
DEFECTS WARRANTY - We warrant that Products, with the exception of Software, shall be free from defects in workmanship for a period of 45 days (or other period of time stated in the invoiced issue by us and as covered by manufacturer warranty) from handover by IQSS at its premises. We will at our option either repair, replace or refund the price you have paid for the Product (with the exception of Software) which has failed within the warranty period by reason of faulty design (other than any design made, furnished or specified by you) or workmanship provided that:
(a) you notify us immediately of the failure and obtain written return merchandise authorization (RMA) from IQSS for the prompt return of Product, carriage paid by you, with a full written report on the failure unless we agree to inspect in situ.
(b) the Product has been properly stored, installed, and maintained and used having regard in particular to the applicable specifications and instructions relating to the Product.
(c) our liability in the case of Products not of our manufacture shall in no circumstances extend beyond any corresponding liability to us of the manufacturer of such Product.
(d) the Product has not been repaired or modified by a third party other than IQSS.
(e) all warranty seals if any on the Product are intact.
We shall pay for the transport and shipping costs associated with returning the Product to you.
If, upon inspection, it is found that the returned Product is not defective within the terms of our Warranty, you shall pay our standard repair charges to repair the Products including inspection costs and all transport and shipping costs associated with returning the Product to you. Products supplied under these Terms and Conditions (excluding software) either will be newly manufactured or will have been reassembled or reconditioned from serviceable new and used parts, and will have been thoroughly inspected and tested for good working order.
WE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL LOSS OR DAMAGE WHATSOEVER AS A RESULT OF ANY DEFECT IN THE PRODUCTS. WE SHALL HAVE NO LIABILITY WHATSOEVER FOR OR AS A RESULT OF THE CONDITION OF THE PRODUCTS OR THEIR FITNESS OR SUITABILITY FOR ANY PARTICULAR PURPOSE.
DEAD ON ARRIVAL (DOA) PRODUCT: SYSTEM FAILURE OUT OF THE BOX -
Any Product is considered DOA if it shows symptoms of a hardware failure, preventing basic operability, upon its first use out of the box. DOA must be reported to IQSS within 15 calendar days of the invoice date, and a written return merchandise authorization (RMA) from IQSS must be obtained by the Customer for the prompt return of the DOA Product to IQSS. IQSS Technical Support will determine whether the product is DOA and offer a replacement or to service the Product. Product must be deemed DOA by IQSS within 15 calendar days of the invoice date in order to receive a replacement unit. If the product is deemed DOA by IQSS Technical Support more than 15 calendar days after the invoice date, IQSS's standard product defect warranty will apply. Shipping will be arranged at IQSS's expense for all products determined by IQSS Technical Support to be DOA. IQSS reserves the right to test returned DOA product. If the condition of the product is misrepresented by the Customer, IQSS may impose a $400 handling fee.
LIMITATION OF LIABILITIES - IN NO EVENT SHALL IQSS BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE including, but not limited to, damages resulting from loss of profit or revenue, recall costs, claims for service interruptions or failure to supply downtime, testing, installations or removal costs, costs of substitute products, property damage, personal injury, death or legal expenses. Customer's recovery from IQSS for any claim shall not exceed the purchase price paid by Customer for the goods, irrespective of the nature of the claim, whether in warrant, contract or otherwise. CUSTOMER SHALL INDEMNIFY, DEFEND AND HOLD IQSS HARMLESS FROM ANY CLAIMS BROUGHT BY ANY PARTY REGARDING PRODUCTS SUPPLIED BY IQSS AND INCORPORATED INTO THE CUSTOMER'S PRODUCT.
PRODUCT SAFETY NOTICE AND RESTRICTIONS - Products are intended for commercial use only. Products are traceable at the manufacturer's level only. There is no lot level traceability. IQSS does not determine the specifications; conduct any performance or safety testing of any products that it sells. Specification sheets provided to customers are produced by the manufacturer or transcribed from information provided by the manufacturer. IQSS does not participate in any product safety engineering, product safety review or product safety testing. IQSS cannot provide any safety testing, safety evaluation or safety engineering services. Products sold by IQSS are not designed, intended or authorized for use in life support, life sustaining, human implantable, nuclear facilities, flight control systems, or other applications in which the failure of such Products could result in personal injury, loss of life or catastrophic property damage. If Customer uses or sells the Products for use in any such applications: (1) Customer acknowledges that such use or sale is at Customer's sole risk; (2) Customer agrees that IQSS and the manufacturer of the Products are not liable, in whole or in part, for any claim or damage arising from such use; and (3) CUSTOMER AGREES TO INDEMNIFY, DEFEND AND HOLD IQSS AND THE MANUFACTURER OF THE PRODUCTS HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, COSTS, EXPENSES AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH SUCH USE OR SALE.
STATEMENTS AND ADVICE- If statements or advice, technical or otherwise, are offered or given to Customer, such statements or advice will be deemed to be given as an accommodation to Customer and without charge and IQSS shall have no responsibility or liability for the content or use of such statements or advice. IQSS Technical support is provided by telephone and therefore extremely limited in scope which prevents us from the direct participation in the design of any customer products. We do not conduct product suitability studies or engineering reviews of products that we sell nor for the final product that a customer produces.
NON-CANCELABLE/NON-RETURNABLE PRODUCTS - From time to time, IQSS will notify Customer of a product that is Non-Cancelable/Non-Returnable, "NC/NR", upon determining that an order requires such conditions of sale. Customer understands that "NC/NR" products are CUSTOM-CONFIGURED PRODUCTS which are built to Customer’s specifications, specifically for the Customer. Irrespective of circumstances the Customer agrees that "NC/NR" products may not be cancelled, returned or re-scheduled by the Customer. IQSS may waive the restrictions contained in the foregoing sentence only upon the written approval of IQSS. If granted such a waiver may require Customer to pay restocking charges, cancellation fees, or other costs and maybe be authorized only in writing by an officer of the IQSS. Should Customer’s account become delinquent by more than 10 days or exceed the credit limit established by IQSS, then IQSS has the right to immediately delay deliveries and change payment terms. Should Customer become insolvent or IQSS determine that Customer is unable or unwilling to abide by this agreement, then IQSS may immediately seek applicable legal remedies to obtain payment and recover damages. IQSS makes no guarantee of delivery. Delivery delays shall not be considered a breech of agreement by IQSS, nor a reason for Customer to cancel "NC/NR" products, refuse deliveries of "NC/NR" products, return "NC/NR" products or delay payments to IQSS, except upon the written approval of an officer of IQSS. Claims by Customer of defective "NC/NR" products must be made in writing within 45 days after shipment of product. "IQSS’s Limited Warranty" shall apply to all claims of defective products.
SUPPLIER'S WARRANTY AND LIABILITY - IQSS shall discharge its obligations hereunder with reasonable skill and care and in accordance with its own established internal procedures.
- With the exception of paragraph (e) below, the aggregate liability of IQSS in respect of any loss or damage to you shall be limited to damages which shall in no event exceed the purchase price of the Goods and/or Services purchased by you under this Agreement.
- Notwithstanding any other provision in this Agreement, IQSS expressly excludes liability for indirect, special or consequential loss or damage in respect of the Goods and/or Services, including but not limited to loss or damage to data or to other equipment or property, (whether or not the same may be in IQSS's care, custody or control) or for loss of profit, business, revenue, goodwill or anticipated savings.
- In the event that any exclusion or limitation of liability contained in these Terms and Conditions shall be held to be invalid for any reason under any applicable rule of law, it shall to that extent be deemed to be omitted but if IQSS then becomes liable for loss or damage which would otherwise have been excluded, such liability shall be subject to the other limitations and provisions set out in this Agreement.
- IQSS does not exclude liability for death or personal injury to the extent that the same arises directly from the negligence of IQSS or its employees.
- IQSS shall not be liable for any loss of and/or damage to any consigned material supplied to us by you or any third party. You shall retain title to, and be solely responsible for any and all risk in such material.
- A person who is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) to enforce any term of this Agreement. This provision does not affect any right or remedy of any person which exists or is available otherwise than pursuant to that Act.
CONFIDENTIALITY - Except with our written consent or as required by law you shall not use or disclose to any other person any information relating to the Goods or Services or to this Agreement, where such information is indicated by us either expressly or by implication as being confidential, except to your employees obligated to hold such information and to whom disclosure is necessary.
ASSIGNMENT - You shall not, without our prior written consent assign any of your rights or obligations hereunder to any other person or company.
EXPORT CONTROL - You undertake to comply with and not to do anything which would render us in contravention of any Export Regulations.
CANCELLATION - No cancellation of any Purchase Order shall be accepted unless; (a) the cancellation is received in writing, and (b) we accept your cancellation conditional upon you agreeing within a reasonable time to pay us: the sales value of that part of the Goods completed and work done in connection with the Purchase Order and any components and/or materials purchased by us which cannot reasonably be used elsewhere within a reasonable period; any other costs and liabilities which we incur by reason of your cancellation. Any extra cost or liability incurred by us due to suspension of work or rescheduling of deliveries of Goods or Services arising out of or resulting from your instructions or lack of or mistaken instructions or to any interruptions or delays attributable to you shall be added to the price of Goods or Services and paid for accordingly.
SOFTWARE - If an order includes software or other intellectual property, such software or other intellectual property is provided by IQSS to Customer subject to the copyright and user license, the terms and conditions of which are set forth in the license agreement accompanying such software or other intellectual property. Nothing herein shall be construed to grant any rights or license to use any software or other intellectual property in any manner or for any purpose not expressly permitted by such license agreement. Unopened software maybe returned for credit. Opened software may not be returned unless defective. With respect to all operating system software and applications to be supplied hereunder, the following provisions shall apply.
(a) Where you have been furnished with a IQSS or a third party software license, the same must be signed and returned to us within seven (7) days or as otherwise specified in the said license unless the said license is a "shrink wrap" license. In the event that you fail to sign and return the said license in accordance with this sub-clause:
- IQSS reserves the right to withhold release of the software; or
- if the same has been delivered, to collect the software from you.
(b) In the absence of a IQSS or a third party software license being furnished to you on issue of IQSS's letter of acceptance or upon delivery of the software, you hereby accept a non-exclusive, non-transferable license to use the software upon the terms of this Agreement where the same shall apply including the following:
- You undertake not to copy, reproduce, translate, adapt, vary or modify the software nor to communicate the same to any third party without IQSS's consent and to use the software only on the equipment specified or for the use with which the software is licensed.
- The license hereby granted shall continue until IQSS terminates the license at its sole discretion by written notice.
INSTALLATION - You shall be solely responsible for installation of the Goods and Services.
INTELLECTUAL PROPERTY - No transfer or license of any intellectual property right whatever is given or implied by these Terms and Conditions Of Sale. If there is to be any such transfer or license by either party, it must be expressly agreed in writing by the parties, as must any dealing with any intellectual property rights which may be created by any activity by the parties under any agreement between them. Such express agreement must be made at the same time as, or before, any agreement based upon these Terms and Conditions Of Sale. You undertake that you will not infringe the intellectual property in the Goods where such property belongs to IQSS. You undertake that you will not copy or otherwise reproduce (other than for normal system operation), translate, adapt, vary, modify, disassemble, decompile or reverse engineer the whole or part of the software save solely in the circumstances permitted by the legal protection of Computer programs.
CHANGES TO GOODS AND SERVICES - IQSS reserves the right to change any aspect of any of the Goods and Services supplied at its sole discretion, including but not limited to changes in the description, part number, catalogue details, packaging, marketing materials, specifications, instructions or technical changes within the Goods and Services themselves.
INSOLVENCY - We shall have the right to terminate the Agreement forthwith if you become insolvent or bankrupt or make any arrangement with your creditors or suffer a receiver or administrative receiver to be appointed over your assets or (in the event that you are a body corporate) you enter into liquidation or suffer or allow or undergo any equivalent insolvency process under the laws of any jurisdiction throughout the world and in any such circumstances we shall have no further obligation hereunder and the price for Goods delivered shall become immediately due and payable.
REPRESENTATION - Unless otherwise permitted under the terms of a separate and fully executed Distribution Agreement entered into between you and IQSS, it is agreed and understood that you are not the agent or representative of IQSS and that you have no authority or power to bind, contract in the name of, or to create a liability against IQSS in any way or for any purpose and that you will not hold yourself out to third parties as having any such authority or power.
COMPLIANCE WITH REGULATIONS - You warrant that you will comply with the provisions of all relevant statutes, regulations and by-laws and that you have obtained every necessary license or consent that may be required in connection with the on-sale and or use of the equipment supplied.
WAIVER - Failure of either party to enforce, at any time, any provisions, of this Agreement shall not be construed as a waiver of such provision or of any other provisions, or of the right of such party thereafter to enforce such provision.
SEVERANCE - Any provision of this Agreement which is or may be void or enforceable shall to the extent of such invalidity be deemed severable and shall not affect any other provision of this Agreement.
APPLICABLE LAW - Any controversy or claim of whatever nature arising out of or relating to this contract, its formation or breach thereof shall be governed by the Laws of the State of California and the applicable laws of the United States whose Courts shall be the exclusive Courts of competent jurisdiction. You agree to bring any claims arising under this agreement exclusively in the courts of the State of California in Orange County.