TERMS AND CONDITIONS OF PURCHASE OF iKAMPER SKYCAMP TENT
(Updated as of October 12, 2017)
These Terms and Conditions (“Terms”), along with the purchase order submitted by Buyer via the website of iKamper USA shall constitute an agreement between the person identified on the face of the Order ("Buyer" and “You”) and iKamper USA, Inc. ("Seller") with respect to the purchase of the iKamper Skycamp Tent (the "Goods") in accordance with and subject to these terms and conditions. Such Order will be deemed accepted by the Seller and this agreement shall become effective upon the first of the following to occur: (a) Seller making, signing, or delivering to Buyer any letter, form, or other writing or instrument acknowledging acceptance; (b) any performance by Seller under the Order; or (c) the passage of ten (10) days after Seller’s receipt of the Order without written notice to Buyer that Seller does not accept. The Order, Terms, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order, unless a separate overriding written contract has been entered into and signed by the parties. The Order expressly limits Seller's acceptance to the terms of the Order. These Terms expressly exclude any of Seller's terms and conditions of sale or any other document issued by Seller in connection with this Order.
After payment in full of the Price as specified in Section 4, Seller shall deliver the Goods at the delivery point (the “Delivery Location”), and on or around the date(s) specified in this Order (the "Delivery Date"). If no delivery date or location is specified, the parties shall agree on the Delivery Date and Delivery Location.
Buyer reserves the right to inspect the Goods on and within two (2) days after the Delivery Date. Buyer, at its sole option, may reject only all of the Goods within the two (2) days inspection period if Buyer reasonably determines that the Goods are defective or nonconforming. If Buyer requires replacement of any defective parts of the Goods, Seller shall promptly replace the nonconforming Goods pursuant to the Limited Warranty under Section 5.
4. Price and Payment
The price of the Goods is the price stated on the face of this Order (the “Price”). Buyer shall pay in full the Price for the Goods upon the agreed payment date in the Order which shall be prior to Delivery of the Goods.
5. Limited Warranty
For a period of two (2) years from the first Delivery Date, (the “Initial Limited Warranty Period”), Seller will replace any defective parts of the Goods for free without charge to Buyer. After the Limited Warranty Period and for 3 years thereafter (“Extended Limited Warranty Period”), Seller will replace any defective part at minimum cost (which shall be based on the production cost of Seller) and Buyers shall be responsible for the shipping costs thereof. The “Initial Limited Warranty Period” and “Extended Limited Warranty Period” shall collectively be referred to as the “Limited Warranty Period.” Furthermore, the parties agree and acknowledge that Seller shall not be responsible for costs or expenses for any labor in connection with any installation of the parts in connection with the Limited Warranty.
To be eligible to receive the foregoing remedies, Buyer must be in compliance with all terms and conditions of this Agreement (including the payment of all fees then due and owing). This Limited Warranty does not apply to problems arising out of or relating to: (a) Buyer’s or a third-party’s modification of or damage to the Goods or any parts thereof; (b) Buyer’s operation or use of the Goods other than as instructed and specified in the specifications and instructions provided by Seller: (c) Buyer’s combination, operation or use of the Goods with any technology (including any software, hardware, firmware, system or network) or service not specified for Buyer’s use in any documentation provided by Seller; (d) Buyer’s negligence or abuse of the Goods; (e) Buyer’s breach of any material provision of this Agreement or any other agreements related thereto; or (f) any other circumstances or causes outside of the reasonable control of Seller (including abnormal physical or weather conditions). Furthermore, the parties agree and acknowledge that the replacements of parts under the Limited Warranty in this Section shall not be offered or provided by Seller for any desired aesthetic changes, any damage to the product caused by Buyer (including without limitation, dropping the Good or mishandling the Good inconsistent with Seller’s directions), or normal wear and tear (including without limitation, scratches on the hard shell, rips in the tent fabric, discoloration in the vinyl windows). THIS SECTION 5 SETS FORTH SELLER’S ENTIRE OBLIGATION AND LIABILITY FOR THE LIMITED WARRANTY. The rights and remedies of Buyer herein are intended to be sole, exclusive and in lieu of any other rights and remedies available at law or in equity or otherwise.
6. Disclaimer of Warranties
EXCEPT AS SET FORTH IN SECTION 5, NEITHER SELLER, ITS AFFILIATES NOR ITS SUBCONTRACTORS MAKE ANY WARRANTY, REPRESENTATION, CONDITION OR AGREEMENT WITH RESPECT TO THE GOODS AND THE GOODS ARE PROVIDED “AS-IS.” SELLER AND ITS AFFILIATES EXPRESSLY DISCLAIM AND EXCLUDE TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ALL IMPLIED AND STATUTORY WARRANTIES (INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE). WITHOUT LIMITING THE FOREGOING, SELLER MAKES NO WARRANTY OF ANY KIND THAT THE GOODS, OR ANY OTHER SELLER OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET BUYER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER SELLER, ITS AFFILAITES NOT ITS SUBCONTRACTORS IS LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN ANY WAY OUT OF THE USE OF THE GOODS, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOST REVENUE, OR THE COST OF ANY SUBSTITUTE EQUIPMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND EVEN IF A PARTY IS INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
7. Assumption of Risk/Release of Waiver of Liability
Buyer agrees that the engagement in any use of the Goods, including without limitation, installing and placing the iKAMPER SKYCAMP Tents above a motor vehicle or a trailer and engaging use of the Goods, Buyer does so at his/her own risk and assumes the risk of any and all personal, physical, or property injury and/or damage he/she may suffer with respect to the use of the Goods. This includes personal injury (and death) or property damage sustained during use and/or resulting from using the Goods. Buyer agrees that, by purchasing the Good, he/she is voluntarily participating in the aforementioned activities and assume all risk of injury, illness, damage, or loss to you or your property that might result in, including without limitation, any loss of any personal property.
Buyer represents that he/she has read all warning and safety precautions provided by Seller and is aware of the risks of using, handling and installing the Goods (whether stated by Seller or not), including without limitation: (1) that use of caution is required when climbing up and down the ladder; (2) placing the ladder at a wrong angle and/or falling from the ladder could cause serious property damage, bodily injury or even death; (3) falling off the Skycamp tent could cause serious property damage, bodily injury or even death; jumping, shaking, or engaging in violent movements inside the tent can lead to serious property damage, bodily injury or even death; (4) children must be supervised by the competent adult; (5) using or handling the tent in a state of intoxication can lead to serious property damage, bodily injury or even death; (6) the Goods, Skycamp tent, is not fire-proof; and (7) if the Skycamp tent comes off the vehicle or trailer while driving, it could cause serious property damage, bodily injury or death.
Furthermore, the parties expressly agree and acknowledge that it is Buyer’s sole responsibility to determine whether his/her motor vehicle or trailer is suitable and safe for use and installation of the Goods. Buyer understands that installing the Skycamp tents on a motor vehicle without taking the necessary precautions could cause damage to the roof rack, cross bars, and/or the vehicle.Buyer understands that the cross bars should be at least 30 inches apart and have a dynamic weight load of 165 lbs or more, and users must check the mounting brackets daily to make sure its securely fastened. Buyer further agrees that he/she will comply with all applicable warning, instructions and specifications provided by Seller with respect to the use and handling of the Goods.
By purchasing the Goods, Buyer agrees on behalf of himself/herself (and all of his/her personal representatives, heirs, executors, administrators, agents, and assigns) to release and discharge Seller (and its affiliates, related entities, and their respective employees, agents, subcontractors, representatives, successors, and assigns) from any and all claims or causes of action (known or unknown) arising out of the as a result of his/her use of the Goods, due to any cause whatsoever, including without limitation, use, installation, maintenance, sale, or adjustment of the Goods. This waiver and release of liability includes, without limitation, injuries which may occur as a result of (a) your use of Goods which may malfunction or break, (b) improper maintenance of Goods by Buyer, (c) improper installation of the Goods not in compliance with Seller’s instructions and specifications; and/or (d) slipping or tripping and falling while using the Goods, including without limitation, installing/placing the Goods above a motor vehicle or trailer. BUYER EXPRESSLY AGREES THAT THE FOREGOING RELEASE, WAIVER, ASSUMPTION OF RISK IS INTENDED TO BE AS BROAD AND INCLUSIVE AS PERMITTED BY APPLICABLE LAW AND THAT IF ANY PORTION THEREOF IS HELD INVALID, IT IS AGREED THAT THE BALANCE SHALL, NOTWITHSTANDING, CONTINUE IN FULL LEGAL FORCE AND EFFECT. THIS RELEASE IS NOT INTENDED AS AN ATTEMPTED RELEASE OF CLAIMS OF GROSS NEGLIGENCE OR INTENTIONAL ACTS. YOU ACKNOWLEDGE THAT YOU HAVE CAREFULLY READ THIS WAIVER AND RELEASE AND FULLY UNDERSTAND THAT IT IS A RELEASE OF LIABILITY, EXPRESS ASSUMPTION OF RISK. YOU ARE AWARE AND AGREE THAT BY EXECUTING THIS WAIVER AND RELEASE, YOU ARE GIVING UP YOUR RIGHT TO BRING A LEGAL ACTION OR ASSERT A CLAIM AGAINST SELLER (AND ITS AFFILIATES, RELATED ENTITIES, AND THEIR RESPECTIVE EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS SUCCESSORS, AND ASSIGNS) FOR ANY DEFECT IN THE GOODS. YOU HAVE READ AND VOLUNTARILY SIGNED THE WAIVER AND RELEASE AND FURTHER AGREE THAT NO ORAL REPRESENTATIONS, STATEMENTS, OR INDUCEMENT APART FROM THE FOREGOING WRITTEN AGREEMENT HAVE BEEN MADE. In providing the releases described above, Buyer does hereby irrevocably waive the provisions of and all of the rights and benefits conferred by Section 1542 of the Civil Code of the State of California, which provides as follows: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
8. Change Order
Any changes to the Order (each, a “Change Order”) shall be agreed by the parties by executing a written Change Order.
Either party may terminate the Order, in whole or in part, for any reason upon ten (10) days' prior written notice to the other party if before delivery of the Goods.
10. Shipping Terms
Delivery shall be made in accordance with the Terms of this Order. The Order number must appear on all documents pertaining to the Order, invoices, packing lists, correspondence, and all shipping documents. Seller shall not substitute material or ship more than the quantity ordered. Buyer shall be solely responsible for and pay, all costs of delivering the Goods to the Delivery Location, including, without limitation, all shipping and freight costs and all duties, fees, tariffs or similar analogous taxes on imports/exports of the Goods (“Customs Duties”).
Unless specified otherwise on the face of the Order, the prices are exclusive of, and Buyer shall be solely responsible for and pay, all federal, state, and local taxes, including, but not limited to, value added tax, goods and services tax, sales, use or consumption tax.
12. Title and Risk of Loss
Unless otherwise specified in the Order, risk of loss of the Goods remains with Seller and title will not pass to Buyer until the Goods are delivered to and accepted by Buyer at the Delivery Location.
13. Waiver and Release of Liens
Upon Seller receipt of amounts properly invoiced, Seller waives and releases all rights to, for itself and its subcontractors, and at its sole cost shall obtain prompt removal of any lien fixed against Buyer, for Goods or Services performed under this Order.
15. Relationship of the Parties
The Seller is an independent contractor of Buyer. Nothing contained herein shall be construed as creating any agency, partnership, employment or fiduciary relationship. Neither party shall have authority to bind the other party in any manner whatsoever.
16. Governing Law and Venue
This agreement and any terms related thereto shall be governed by the laws of California. All claims and disputes arising under or relating to this agreement are to be settled by binding arbitration in the State of California, County of Los Angeles. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in commercial sale of goods and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
All notices, consents, claims, demands, waivers and communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (return receipt requested, postage prepaid). A Notice is effective only upon receipt of the receiving party, and if the party giving the Notice has complied with the requirements of this Section.
18. Inconsistent Terms
These Terms shall supersede and prevail over any other prior terms and conditions relating to the subject matter hereto. Any separate written overriding agreement signed by both parties shall govern over the terms of this agreement.
If any term or provision of this agreement is found invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of this agreement or invalidate or render unenforceable such term in any other jurisdiction.
Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations under this agreement without Seller’s prior written consent. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment shall relieve Buyer of any of its obligations hereunder. No modification, alteration or amendment of the Order or this agreement shall be binding unless agreed to in writing and signed by Seller. No waiver by any party of any of the provisions of the agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this agreement by Seller shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, or privilege hereunder preclude any other exercise of any additional right, remedy, or privilege.