Terms

Unless otherwise expressly agreed in a writing signed by an officer of iPromo, all sales are subject to the following terms and conditions (“Standard Terms”). These Standard Terms are incorporated by this reference into every offer to sell, Quote, Order, purchase, Order Acknowledgement and invoice issued by Seller.

The price for a Product shall be the price stated at the Website or in Seller’s final Quote for the Product or in Seller’s Order Acknowledgement; provided, however, that prices are subject to change without notice until such time as Seller finalizes and accepts an Order in writing. Unless otherwise stated in a Quote, prices for the Product which are stated in a Quote are valid for thirty (30) days from the Quote date. Buyer shall pay any extra costs incurred by Seller as a result of any changes or modifications to Product specifications requested by Buyer. Prices are exclusive of all taxes, fees, duties, levies or other governmental assessments (“Taxes“) and, unless otherwise stated at the Website or in a Quote, also exclude costs including but not limited to shipping and handling charges, freight, insurance and other costs which may be separately billed to Buyer. All Taxes related to Product shall be paid by Buyer, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate acceptable to the relevant taxing authorities.

Shipping, delivery and performance dates are estimates only, calculated from the date of receipt of Buyer’s Order and any drawings, specifications, designs, samples or other information reasonably requested by Seller to manufacture or source the Products, and time is not of the essence. Seller shall not incur any liability, nor shall any Order be canceled, because or as a result of any delays in meeting shipping or delivery dates or schedules. Seller reserves the right to recalculate any projected shipping, delivery or performance dates upon finalization of Buyer’s Order or at anytime thereafter. Seller may ship all the Products at one time or in portions from time to time. Unless otherwise agreed by Seller in writing, all shipments to points in the U.S. will be delivered by Seller FOB Seller’s facility or other location designated by Seller, and all shipments to points outside the U.S. will be delivered by Seller EXW Seller’s facility (as such term is defined in Incoterms 2010) or other location designated by Seller; provided, however, that unless Buyer advises Seller that it will arrange and take responsibility for shipment of Products from Seller’s facility or other location designated by Seller, Seller will arrange for its freight forwarder and/or carrier(s) to transport the Products to Buyer’s specified location at Buyer’s cost. Title to and risk of loss or damage for all Products will pass to Buyer upon Seller’s delivery of the Products to the carrier or as otherwise provided above. In all cases of damage and/or loss to Products in transit, Buyer will be responsible for making claim(s) against the carrier; provided, however, that Seller will provide reasonable assistance with damage and/or loss claims. Loss of or damage to Products after Products are delivered to the carrier will not relieve Buyer of any obligations for payment or other obligations in the Order. Unless otherwise agreed by Seller in writing, shipping, freight, handling, insurance, and related costs are the sole responsibility of Buyer.

Buyer must inspect delivered Products and report claims for damages, shortages or receipt of wrong products which are discoverable on a visual inspection within 48 hours of delivery (or within five [5] days if the damage or defect is not discoverable on a visual inspection) or the Products will be deemed irrevocably accepted and such claims will be deemed waived. However, shipping damage claims must be made by Buyer directly with the shipping company in accordance with such company’s policies, which generally require such claims to be made prior to the time the carrier of the Products leaves the delivery destination. Buyer will advise Seller of any such claims. For any valid claim timely made that does not result from the actions of a carrier, Seller, at its option, may repair the Product, or replace the Product with an identical or substantially similar product, or refund or credit the purchase price to Buyer for the affected Product. THESE ARE BUYER’S SOLE AND EXCLUSIVE REMEDIES WITH RESPECT TO SELLER FOR DAMAGED OR MISSING PRODUCT. For defective product, the warranty remedies described herein, if any, shall apply.

EXCEPT AS PROVIDED IN SECTION 9 BELOW, OR UNLESS OTHERWISE AUTHORIZED BY SELLER IN WRITING, ALL SALES ARE FINAL AND NO RETURNS OR REFUNDS ARE ALLOWED OTHER THAN AS PROVIDED HEREIN. For damaged or missing Product, see Section 7 herein. For defective Product, see Section 11 herein.

After acceptance of an order by seller, a sale is final and cannot be cancelled or changed by buyer without seller’s written consent; provided, however, that for any product imported on behalf of buyer, in the event the product fails to ship within 30 days after the quoted delivery date, then buyer may, at its option, cancel any portion of the order pertaining to such product prior to the shipment of the product. Once the imported product is in transit, the sale is final and cannot be cancelled or changed by buyer.

After acceptance of an order by seller, for COVID, Flu or RSV test kit orders a sale is final and cannot be cancelled or changed by buyer without seller’s written consent; provided, however, that, in the event the product fails to ship within 45 days after the final order date then buyer may, at its option, cancel any portion of the order pertaining to such product prior to the shipment of the product. Once the COVID, Flu or RSV test kit product is in transit, the sale is final and cannot be cancelled or changed by buyer.

Any other changes to an Order requested by Buyer will require the prior written approval of Seller, which approval may be subject to price adjustments or changes to delivery dates as determined on a case-by-case basis. Buyer assumes all responsibility for errors in specifications and Buyer Materials provided to Seller and/or for Products approved by Buyer. Clerical errors in Orders are subject to correction by Seller. Seller may, with or without notice, cancel all or any part of an Order at any time (including after an Order has been submitted or accepted) without liability to Buyer except to refund to Buyer any amounts paid by Buyer for Product not delivered by Seller.

Seller shall not be labile for any delay or failure of performance where such delay or failure arises from a cause beyond Seller’s reasonable control (a “Force Majeure Event“). In such event Seller may, at its option and without obligation or liability to Buyer (except to refund to Buyer any amounts paid by Buyer for Product not delivered by Seller), cancel all or any part of an Order, or may delay delivery of Products. Causes beyond Seller’s reasonable control shall include, but not be limited to, fires, floods, severe weather, earthquakes, accidents, riots, civil disorder, acts of war or terrorism, strikes or other labor difficulties, disease, viruses, epidemics, contamination, equipment failure, utilities interruption, inability or delay in obtaining materials or products, carrier delays, embargoes, or any law, order, regulation or other action adopted or taken by any governmental authority, or any other cause not reasonably within Seller’s control, whether or not specifically mentioned herein.

SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS NOT MANUFACTURED BY SELLER. Such Products carry the original manufacturer’s warranty (if any) and Buyer must submit warranty claims regarding such Products to the original manufacturer in accordance with such manufacturer’s warranty policies. With respect to Products that are manufactured solely by Seller, Seller warrants to Buyer that such Products will be free from defects in material and workmanship under normal use for a warranty period of thirty (30) days following shipment from Seller. Any disposable Products manufactured by Seller are warranted for single use only. The warranty does not cover and Seller will have no warranty obligation whatsoever with respect to any damage to a Product caused by or associated with: (a) usage not in accordance with Product instructions or usage for a purpose not indicated on the labeling; (b) abuse, misuse, neglect, improper maintenance or storage, accident, vandalism, or the negligence of any party other than Seller; (c) a Force Majeure Event; (d) use of unauthorized third party consumables and accessories with the Product; or (e) modifications or alterations to a Product not authorized by Seller (f) exceeding of the expiration date or shelf life of the Product while in the Buyer’s possession. Seller’s obligations under this limited warranty are contingent on Buyer’s full payment of the Product purchase price. SELLER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS WARRANTIES ARISING FROM COURSE OF DEALING AND USAGE OF TRADE, AND SELLER DOES NOT REPRESENT OR WARRANT THAT ANY PRODUCT WILL MEET BUYER’S REQUIREMENTS. Notice of a defective Product under Seller warranty must be given to Seller in writing within fourteen (14) days of delivery. For COVID, Flu or RSV test kit products, notice of a defective Product under Seller warranty must be given to Seller in writing within thirty (30) days of delivery. Any oral or written statement concerning the Products inconsistent with the warranty set forth herein will be of no force or effect. Seller’s sole liability, and Buyer’s exclusive remedy, for a defect in a Product manufactured solely by Seller that is covered under the warranty will be, at Seller’s option, for Seller to either replace or repair the defective Product(s), or refund or credit the purchase price to Buyer.

Unless otherwise expressly stated in writing by Seller, no claim or representation is made or intended (a) that any Product has been cleared, approved, registered or otherwise qualified by Seller with any federal, state, local, provincial, foreign or any other governmental or quasi-governmental agency or regulatory body (collectively, “Regulatory Agencies “) or under any laws, rules or regulations, including but not limited to those governing healthcare and medical products (collectively, “ Regulatory Laws “), (b) that any Product will satisfy the requirements of any Regulatory Agencies or Regulatory Laws, or (c) that any Product or its performance is suitable, safe or effective, or has been validated for, any specific use or application. Nothing herein or in any Order shall require Seller to violate any applicable law.

Unless otherwise agreed by Seller in writing, Buyer agrees that it is purchasing the Products for its own use and not for resale. Accordingly, unless otherwise agreed by Seller in writing, Products purchased pursuant to an Order may not be sold or transferred to any person or entity for purposes of resale. Buyer acknowledges that the Products sold under an Order, and the transaction contemplated by an Order, may be subject to U.S. customs and export control laws and regulations (including but not limited to restrictions on persons, entities and countries who may receive the Products), as well as customs and export laws and regulations of the country in which the Products are received. Buyer acknowledges and agrees that it is Buyer’s sole responsibility to comply with and abide by all such applicable laws and regulations and that Buyer will not export or transfer Products for export in violation of any such laws.

If the Product requires medical device registration with the U.S. Food and Drug Administration (is a “Medical Device“), then in addition to the other terms and conditions herein: (a) Buyer must ensure that the Medical Device users are fully qualified in the use and operation of the Medical Device; (b) all clinical and medical treatment, diagnostic and cost reporting and billing decisions regarding the Medical Device are Buyer’s sole responsibility; and (c) Buyer represents and warrants that it is, and at all times will be, in full compliance with all applicable Regulatory Laws regulating healthcare, medical products and Medical Devices.

Buyer shall defend, indemnify and hold the Seller, and its officers, directors, employees and agents (hereafter collectively, including the Seller, the “Seller-Affiliated Entities“), harmless from and against any and all losses, damages, liabilities, claims, demands, lawsuits and expenses, including court costs and attorneys’ fees (collectively, “Claims“), that such entities may incur arising out of or in any way resulting from, whether directly or indirectly: (a) Buyer’s sale, marketing, distribution or use of the Products; (b) any act or omission of Buyer, its affiliated companies, or the officers, directors, employees, agents, representatives, subcontractors or distributors of each; (c) any breach of an Order or these Standard Terms, or the representations and warranties of Buyer herein; (d) any storage or use of Products that is not in accordance with the packaging labeling and instructions of the manufacturer; (e) any specifications or requirements furnished by Buyer for the Product; (f) any negligent act, omission or intentional misconduct on the part of Buyer, its affiliated companies, or the officers, directors, employees, agents, representatives, subcontractors or distributors of each; or (g) any cleaning, sterilization of or modifications to the Product or any combination of the Product with any other products, materials or chemicals. Upon the commencement of any Claim to which this indemnification applies, Seller shall promptly notify Buyer, and Buyer shall assume and diligently conduct the entire defense thereof, including any appeals, at its own sole cost and expense, and shall pay and discharge any and all settlement amounts, judgments or decrees which may be rendered; provided, however, that Buyer shall not enter into any settlement or compromise of a Claim without Seller’s prior written consent, which consent shall not be unreasonably withheld. Without releasing any obligation, liability or undertaking of Buyer, Seller, insofar as its interests are affected, may at its sole election supersede Buyer in any such defense and thereafter assume and conduct the same according to its sole discretion in which event Buyer shall cooperate with Seller in such defense in such manner as Seller shall require.

Buyer shall not use, either directly or indirectly, in whole or in part, any character, design, symbol, logo, trademark, service mark, trade name, corporate name, or other mark, name, title, visual or audio representation, copyright, patent or other intellectual property rights that are owned or licensed by Seller (collectively, “Seller Materials“) except in the manner and to the extent that Seller may specifically authorize in writing prior to any such use. An Order does not convey any right, title, interest or license (either explicitly, by implication or estoppel) relative to the Seller Materials or the intellectual property rights of any manufacturer of Products. All Seller Materials and the intellectual property rights of any manufacturer of Products will remain the property of Seller or the manufacturer, as applicable.

During the course of Buyer’s dealings with Seller with respect to an Order or potential Order, Buyer may gain access to sensitive and/or proprietary or confidential proprietary information relating to the business of Seller, its parent, subsidiaries and affiliated companies, and/or their actual or potential clients, customers, suppliers, distributors or vendors, including, but not limited to the identity of such entities and the pricing and availability of Seller’s products (collectively, “Confidential Information“). Buyer agrees that neither it nor any of its representatives will, at any time, directly or indirectly: (a) make use of any Confidential Information except for the execution and fulfillment of an Order with Seller; or (b) disclose any Confidential Information to any other person or entity other than as authorized by Seller in writing. More specifically, but without limitation, Buyer agrees that neither Buyer nor its representatives will, either directly or indirectly, attempt to contact, contact, correspond or communicate with, solicit, or enter into any contract or agreement with, any client, customer, supplier, distributor or vendor, or potential client, customer, supplier, distributor or vendor, of Seller with respect to the products that are referred to in the Order without the prior written authorization of Seller. If Buyer has not done so already, and if requested by Seller, Buyer agrees to sign Seller’s standard mutual non-disclosure agreement (“Seller NDA“) and return such signed document to Seller within the time requested by Seller. Buyer agree to disclose Confidential Information to its employees and representatives on a need-to-know basis only. The obligations of this Section shall remain in effect until rescinded in writing by Seller.

Buyer shall have no right, either voluntarily or by operation of law, to assign, sublicense, subcontract, transfer or otherwise dispose of all or any part of its interests, obligations or rights under any Order without the prior written consent of Seller. Any such attempted act by Buyer without such consent shall be void and shall constitute a material default and breach of any outstanding Orders. Seller shall have the right, either voluntarily or by operation of law, to assign, sublicense, subcontract, transfer or otherwise dispose of all or any part of its interests, obligations or rights under an Order (including the right to receive payment), without the prior written consent of Buyer. Each Order is entered into solely by and between, and may be enforced only by, the Buyer and Seller (and the Seller’s permitted assigns) and, except to the extent expressly provided for herein, is not intended to confer on any other person any rights, remedies, obligations or liabilities under or by reason of the Order.

It is agreed that the substantive and procedural laws of the State of Illinois (except for its conflict of laws provisions) shall apply in all respects to the interpretation and enforcement of each Order. Buyer irrevocably consents to the jurisdiction of the courts of the State of Illinois, with venue in Cook County or, in the alternative and to the extent that a basis for federal jurisdiction exists, in the United States District Court for the Northern District of Illinois. Buyer waives its objection to such forums, whether on the basis of inconvenience, lack of personal jurisdiction or otherwise. Buyer agrees that any action or lawsuit resulting from any breach or alleged breach of an Order by Seller, or with respect to any Products, must be commenced within one year after the cause of action has accrued.

In the event of any dispute between the parties concerning the terms and provisions of an Order or these Standard Terms, or if it becomes necessary for Seller to undertake collection efforts against Buyer, then the prevailing party in any legal action shall be entitled to collect from the other party all third-party fees, costs and expenses incurred in such dispute, including without limitation, the recovery of reasonable fees and expenses of third-party attorneys, accountants and experts, and all fees, costs and expenses of any appeals. Buyer will be liable to Seller for all costs of collection incurred by Seller (including but not limited to collection agency fees and costs as well as reasonable attorneys’ fees and expenses), regardless of whether a lawsuit is commenced.

Effective as of August 19, 2021.

• Payment & Invoicing
  a. For a first-time customer of iPromo, the first order must be prepaid. Following completion of the first payment, the customer must complete a credit application. Client must be approved for credit terms to participate in the SwagCloud program.
  b. Once credit application is completed and approved, Purchase Orders and monthly invoices will be billed at the approved terms. If a customer fails to pay invoices within 30 days iPromo reserves the right to hold future orders until past dues are resolved.
  c. The following fees will be invoiced monthly:
  Storage Fees
  Fulfillment Fees
  Outbound Shipping Costs
  d. Storage fees are not prorated, charges will be in full each month whether a box is stored for 1 day or for the full month.
  
  
• Optional Services

         a. Optional services requested by customer will be automatically added to customer’s monthly invoice.

• Additional Fees
  a. Additional fees for cancelled orders, change orders, returned orders or shipment re-routing will be automatically added to the customer’s monthly invoice.
• Storage
  a. Product purchased from iPromo will be stored at the iPromo fulfillment center. Once received at the fulfillment center, product will be added to customer’s storage and included on the customer’s monthly invoice.
  b. Storage fees are not prorated, charges will be in full each month whether a box is stored for 1 day or for the full month.
• Customer Provided Product
  a. Upon request by the customer and following approval by iPromo, customer may send previously purchased inventory to the iPromo fulfillment center to be stored and released upon request.
  b. All customer-provided inventory requests must be made in email and must include a completed iPromo Inventory Request Form.
  c. Once approved by iPromo, customer is allowed to ship inventory to the iPromo Fulfillment Center at their own expense. iPromo is not responsible for product that is missing or damaged in Client-Provided Inventory shipments.