Terms and Conditions for
“Company” shall mean Icosa Design, LLC and/or DEKA
- Acceptance; Agreement. These Terms and Conditions are an integral part of Company’s offer and form the basis of any agreement (the “Agreement”) resulting from Company’s Quote (the “Quote”) for the goods and/or services described (the “Work”). THESE TERMS AND CONDITIONS ARE SUBJECT TO PERIODIC CHANGE OR AMENDMENT. The party to whom this offer is made or an authorized agent (“Customer”) accepts the Quote and places an Order by paying the Deposit set forth in the Quote to Company within 10 days from the date of the Quote. Upon Customer’s acceptance of the Quote by paying the Deposit, these Terms and Conditions shall control the Agreement. If Customer’s Order is conditioned upon Company’s acceptance or assent to terms and conditions other than those expressed herein, return of such Order by Company with Company’s terms and conditions serves as Company’s notice of objection to Customer’s terms and conditions and as Company’s counter-offer to provide Work in accordance with the Quote and these Terms and Conditions. If Customer does not reject or object in writing to Company within 10 days, Company’s counter-offer will be deemed accepted. Customer’s acceptance of the Work will in any event constitute an acceptance by Customer of these Terms and Conditions.
- Pricing and Taxes. Unless otherwise noted, the Price set forth in the Quote includes, if required by law, all sales, consumer, use and similar taxes legally enacted as of the date hereof for equipment and material installed by Company.
- Exclusions from Work. Company’s obligation is limited to the Work, as defined by the Design Documents and the Quote, both of which are available in the Company’s online Client Portal, and does not include any modifications to the Work. In no event shall Company be required to perform work Company reasonably believes is outside of the defined Work without an email from Customer that approves the extra work.
- Design Documents. Company shall be entitled to rely upon the accuracy and completeness of any plans and specifications, including drawings, 3D models, and other information, provided by Customer. If such plans and specifications are not complete at the time of acceptance of the Quote, they will require completion before detailing, material purchases, or fabrication can commence, and Company reserves the right to additional compensation for the production of such plans and specifications, which shall become the Design Documents when completed.
- Right to Subcontract. Company may retain one or more subcontractors to perform any portion of the Work, in whole or in part, and Company’s obligations and rights hereunder shall not thereby be limited or affected.
- Performance. Company shall perform the Work in accordance with industry standards generally applicable in the area under similar circumstances as of the time Company performs the Work. Company may refuse to perform any Work where working conditions could endanger property or put at risk the safety of persons.
- Payment. Customer shall pay Company’s invoices within 30 days of the Customer taking possession of the Work. If Company, at its sole discretion, becomes concerned about Customer’s ability to pay for the Work, Company may request assurances from Customer of Customer’s ability to pay, and absent such assurances acceptable to Company, Company may suspend performance. Customer shall be liable to Company for additional sums stemming from any resulting delay and disruption to Company’s operations. Nonpayment after 30 days is subject to a monthly late payment charge, which shall be 3% per month compounded monthly. Additionally, should it be necessary for Company to seek payment through legal recourse, Company shall be entitled to recover its reasonable legal fees and costs.
- Time for Completion. Except to the extent otherwise expressly agreed in writing signed by Company, all dates provided by Company or its representatives for commencement, progress or completion are estimates only. While Company shall use commercially reasonable efforts to meet such estimated dates, Company shall not be responsible for any damages for its failure to do so.
- Completion. Notwithstanding any other term or condition herein, when Company informs Customer that the Work has been completed, Customer shall inspect the Work and shall specifically identify, in writing, any items not believed to meet the conditions of the Quote. Customer agrees to re-inspect such items as soon as Company informs Customer that all such items have been completed. The initial acceptance inspection shall take place within 10 days from the date when Company informs Customer that the Work has been completed. Any subsequent re-inspection of excepted items shall take place within 5 days from the date when Company informs Customer that the excepted items have been completed. Customer’s failure to cooperate and complete any of said inspections within the required time limits shall constitute complete acceptance of the Work as of 10 days from date when Company informs Customer that the Work, or the excepted items, if applicable, has/have been completed.
- Modification and Cancelation. Customer may not modify or cancel the Agreement in whole or in part without Company’s prior written consent, to be given or denied in Company’s sole and absolute discretion, and which Company may condition upon an adjustment of price and/or other terms and Customer’s payment to Company for the modification or cancellation. In the case of cancellation, at a minimum, Customer shall be responsible for paying, at applicable prices (as may be set forth in the Quote), for all materials or completed components that are allocable to Customer at the time of Company’s receipt of Customer’s request for cancellation. Additionally, Customer shall be responsible for paying all costs, direct and indirect, which have been incurred by Company at the time of Company’s receipt of the notice of cancellation in addition to a markup for profit and overhead.
- Force Majeure. Company’s duty to perform under this Agreement is contingent upon the non-occurrence of an Event of Force Majeure. If Company shall be unable to carry out any material obligation under this Agreement due to an Event of Force Majeure, this Agreement shall at Company’s election (i) remain in effect but Company’s obligations shall be suspended until the uncontrollable event terminates or (ii) be terminated upon 10 days notice to Customer, in which event Customer shall pay Company for all parts of the Work furnished to the date of termination. An “Event of Force Majeure” shall mean any cause or event beyond the control of Company. Without limiting the foregoing, “Event of Force Majeure” includes: acts of God; acts of terrorism, war or the public enemy; flood; earthquake; tornado; storm; fire; civil disobedience; pandemic insurrections; riots; labor/labor disputes; labor/labor or material shortages; sabotage; restraint by court order or public authority (whether valid or invalid), and action or non-action by or inability to obtain or keep in force the necessary governmental authorizations, permits, licenses, certificates or approvals if not caused by Company; and the requirements of any applicable government in any manner that diverts either the material or the finished product to the direct or indirect benefit of the government.
- Customer’s Breach. Each of the following events or conditions shall constitute a breach by Customer and shall give Company the right, without an election of remedies, to terminate this Agreement or suspend performance by delivery of written notice declaring termination, upon which event Customer shall be liable to Company for all Work furnished to date and all damages sustained by Company (including lost profit and overhead): (1) Any failure by Customer to pay amounts when due; or (2) any general assignment by Customer for the benefit of its creditors, or if Customer becomes bankrupt or insolvent or takes the benefit of any statute for bankrupt or insolvent debtors, or makes or proposes to make any proposal or arrangement with creditors, or if any steps are taken for the winding up or other termination of Customer or the liquidation of its assets, or if a trustee, receiver, or similar person is appointed over any of the assets or interests of Customer; or (3) Any failure by Customer to perform or comply with any material provision of this Agreement.
- Indemnity. Customer shall indemnify, defend and hold harmless Company from any and all claims, actions, costs, expenses, damages and liabilities, including reasonable attorneys’ fees, resulting from death or bodily injury or damage to real or tangible personal property, to the extent caused by the negligence or misconduct of Customer or its respective employees or other authorized agents in connection with their activities relating to this Agreement. The duty to indemnify will continue in full force and effect, notwithstanding the expiration or early termination hereof.
- Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT CONSEQUENTIAL, OR PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING WITHOUT LIMITATION BUSINESS INTERRUPTION, LOST DATA, LOST REVENUE, LOST PROFITS, LOST DOLLAR SAVINGS, OR LOST ENERGY USE SAVINGS, EVEN IF A PARTY HAS BEEN ADVISED OF SUCH POSSIBLE DAMAGES OR IF SAME WERE REASONABLY FORESEEABLE AND REGARDLESS OF WHETHER THE CAUSE OF ACTION IS FRAMED IN CONTRACT, NEGLIGENCE, ANY OTHER TORT, WARRANTY, STRICT LIABILITY, OR PRODUCT LIABILITY). In no event will Company’s liability in connection with the provision of products or services or otherwise under this Agreement exceed the entire amount paid to Company by Customer under this Agreement.
- Limited Warranty. Company warrants for a period of three (3) months from the date of delivery of the Work to Customer (“Warranty Period”) that the Work shall be free of latent defects in fabrication (the “Warranty”). If such defect is discovered within the Warranty Period and Customer provides written notice of such defect within the Warranty Period, Company will correct the defect or furnish replacement Work or, at Company’s option, parts therefor for Work not conforming to this Warranty. Exclusions from this Warranty include damage or failure arising from: wear and tear; corrosion, erosion, deterioration; Customer’s failure to maintain; misuse, and modifications made by others; and limitations or defects in the nature of the materials specified by Customer. Notwithstanding the foregoing, no warranty shall apply until Company has been paid in full for the Work and then the Warranty shall be limited to the lesser of Company’s cost to correct the defective Work and/or the purchase price of the Work. Additionally, all warranties provided herein terminate upon termination or cancellation of this Agreement. THE WARRANTY AND LIABILITY SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES AND LIABILITIES, WHETHER IN CONTRACT OR IN NEGLIGENCE, EXPRESS OR IMPLIED, IN LAW OR IN FACT, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND/OR OTHERS ARISING FROM COURSE OF DEALING OR TRADE.
- Commencement of Statutory Limitation Period. Except as to warranty claims, as may be applicable, any applicable statutes of limitation for acts or failures to act shall commence to run, and any alleged cause of action stemming therefrom shall be deemed to have accrued, in any and all events not later than the date that Customer first takes possession of the Work.
- General. Except as provided below, to the maximum extent provided by law, this Agreement is made and shall be interpreted and enforced in accordance with the laws of the State of California. Any dispute arising under or relating to this Agreement that is not disposed of by agreement shall be decided by litigation in a court of competent jurisdiction located in Alameda County. This Agreement contains all of the agreements, representations and understandings of the parties and supersedes all previous understandings, commitments or agreements, oral or written, related to the subject matter hereof. This Agreement may not be amended, modified or terminated except by a writing signed by the parties hereto. No documents shall be incorporated herein by reference except to the extent Company is a signatory thereon. If any term or condition of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, all other terms and conditions of this Agreement will nevertheless remain in full force and effect as long as the economic or legal substance of the transaction contemplated hereby is not affected in a manner adverse to any party hereto. Customer may not assign, transfer, or convey this Agreement, or any part hereof, or its right, title or interest herein, without the written consent of the Company. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of Customer’s permitted successors and assigns.