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THE CUSTOMER AGREES TO THE FOLLOWING TERMS AND CONDITIONS:
TERM. Upon approval by IKONIK, this term shall run month-to-month subject to written cancellation by either party.
PRICES. Prices for the Products are as set forth on the website. Payment is due (100%) when the order is placed. Prices for products may be adjusted by IKONIK from time to time with said changes reflected on the website.
Customer and Seller agree that the Contract Products purchased by Customer may only be resold by Customer at or above the Seller’s suggested retail prices (MSRP), and as may be amended from time to time by Seller at its discretion. Any violation of this MSRP term by Customer shall be considered a Termination for Cause.
PURCHASE ORDERS/RELEASES/FORECASTS. On a regular basis, Customer shall place orders on the IKONIK website. Orders submitted are effective when confirmed by IKONIK. IKONIK will use its best efforts to provide such confirmation within five (5) business days after receipt of the order. In addition to the foregoing, the Customer shall, by October 31 of each year, give IKONIK a good faith estimate of its projected purchases for the next applicable year.
DELIVERY AND PACKAGING. All Products shall be sold F.O.B. Point of Shipment. Title and risk of loss or damage shall pass at the F.O.B. point. Products shall be delivered in quantities and at the times specified as confirmed by IKONIK. If IKONIK fails to deliver Products in such quantities and/or at such times, Customer may request expedited delivery. Any additional cost due to such an expedited delivery shall be borne by IKONIK except in the cases of Force Majeure or where the delay was caused by the Customer. If IKONIK has reason to believe that deliveries will not be made in time, they will notify Customer immediately of the anticipated delay. Delivery of Products will be made in appropriate packaging meeting industry standards, or as otherwise directed by the Customer. Any additional packaging cost due to such Customer direction will be borne by Customer. The size of the packing unit shall be agreed upon by the parties.
FORCE MAJEURE. Neither party shall be responsible for any acts or omissions of the other party, nor for events beyond its reasonable control (hereinafter "Force Majeure"), including but not limited to acts of God, changes of laws or regulations or other acts of government, labor disputes, strikes, riots, fires, floods, wars, embargoes, inability to obtain necessary material, machinery or transportation, provided that the party which has reason to believe that due to Force Majeure it will not be able to perform according to this Agreement, shall give to the other party a written notice setting forth the cause and expected time of the delay or inability to perform.
INSPECTION AND ACCEPTANCE. Immediately upon receipt of a shipment of products, the Customer shall verify the packaging conditions. If the packaging shows signs of damage, an inspection of the products shall be made not later than the next business day after receipt of the shipment. If packaging is not damaged, the inspection shall be made no later than the third (3rd) business day after the arrival of the shipment. If defects, shortages, or excess quantities are found during such inspection, Customer shall notify IKONIK thereof no later than the next business day. A shipment shall be deemed accepted if IKONIK does not receive notification as set forth above. After acceptance in case of excess quantities, payment will also be due for the excess part of the shipment. If defects, shortages, or excess quantities are found during the inspection mentioned in Subsection 6.1 above (and, with respect to defects and shortages, have not been caused after the passage of risk to Customer), Customer shall have the following remedies: In case of defects, the parties, by mutual agreement, shall determine the actions to be taken which may include, without limitation, sorting and/or rework by either of the parties or return of the damaged Products by Customer. It is understood that the costs of such sorting, rework, or return shall be borne by IKONIK. In case of shortages, Customer may request expedited delivery of replenishments and IKONIK shall bear all additional costs of such expedited delivery. In case of excess quantities, a corresponding reduction on the next shipment shall be made.
WARRANTY. IKONIK warrants that the products will be free of defects in design (to the extent IKONIK furnishes the design), material, and workmanship. The warranty shall be for a period of 365 days following Customer’s sale of the Product to its Customer. However, the warranty period shall in no event start later than 6 months after delivery of the Product to the Customer. IKONIK will provide Customer with replacements free of charge or, at IKONIK's option, credit in a fair amount not to exceed the purchase price, for all the Products that prove to be defective within the warranty period, provided, however, that Customer has returned to IKONIK 100% or a statistically relevant share as mutually agreed upon of any Product claimed to be defective. All shipping charges for defective Products will be borne by IKONIK. If a recall is determined to be legally required in whole or part, due to a Product non-compliance with the above warranty, the parties will negotiate reimbursement of a fair and mutually agreeable share of Customer's direct recall expenses. Such allocations shall take into consideration the portion of each party's responsibility, the cost of the Products involved, other causes of the recall, and the nature of the evidence concerning the defect and its causes. In no event shall IKONIK's liability hereunder exceed 10% of the average yearly net invoiced value of the aggregate sales to Customer of the Products concerned, nor shall IKONIK be liable for mark-ups or profit margins normally accruing to Customer or its distributors and dealers, nor for costs of handling, administration, Customer inducement or for incidental, consequential, special or punitive damages (including but not limited to damages due to interruption of the business, lost profits, or damage to reputation) whether incurred by Customer, its distributors, dealers or original Customers. IKONIK's obligation set forth above is conditional upon the following: If there is evidence that IKONIK is responsible, in whole or in part, for Product non-compliance with the above warranty which may give rise to a recall required by law, Customer shall give prompt written notice to IKONIK together with all information available to Customer, keep IKONIK at all times fully informed and use its best efforts to reach an agreement with IKONIK on the actions to be taken. Prior to any recall involving the Products, Customer shall give IKONIK the opportunity to perform a full investigation, including but not limited to inspection of the Products and (if applicable) any other product with or into which the Product has been used or installed and testing (including destructive testing if possible). In addition, Customer shall make available to IKONIK all relevant information it has or can reasonably acquire, including but not limited to Product history, accident investigation reports, witness statements, analysis, and tests, and shall give IKONIK full support for such investigation. Customer shall not respond to inquiries from any Federal or State agency relating to the Products without prior consultation with IKONIK. Customer shall use its best efforts to return all Products replaced in the recall campaign.
THE WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IKONIK ASSUMES NO LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES EXCEPT AS SPECIFICALLY SET OUT HEREIN. THE REMEDIES SET FORTH IN THIS SECTION REPRESENT THE BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ANY IKONIK BREACH OF WARRANTY. FURTHER, IMPROPER INSTALLATION, MISUSE, USE IN APPLICATIONS OUTSIDE NORMAL PRODUCT USES, FAILURE TO MAINTAIN IN ACCORDANCE WITH APPLICABLE MAINTENANCE INSTRUCTIONS, ALTERATION OR DAMAGE TO THE PRODUCT, OR SIMILAR CIRCUMSTANCES SHALL VOID THE ABOVE WARRANTY.
INDEMNIFICATION. IKONIK agrees to indemnify and hold Customer harmless for and from any costs, expenses, or liabilities (including reasonable attorney's fees) arising out of any claims, suits, actions or legal proceedings (hereinafter "Claims") brought against Customer to the extent such Claims are based on: (a) personal injury, including death, or property damage caused by any defects or non-conformities in the Products with respect to their manufacture, workmanship, material or design (unless the material or design in question has been specified by Customer); or (b) infringement upon any third party intellectual property rights in the U.S. by the manufacture, use or sale of the Products, provided such infringement is not due to Customer's requirements nor to use of the Products in combination with other products not supplied by IKONIK, nor to use of the Products in a way not reasonably foreseeable by IKONIK. IKONIK's obligations set forth above are contingent upon the following: Customer shall notify IKONIK promptly of any Claim and shall afford IKONIK the right to control the defense of such Claim unless otherwise agreed upon. If the parties agree that Customer will control the defense of the Claim, Customer will keep IKONIK always informed and any significant steps in the defense or settlement of the Claim shall be agreed upon. The party controlling the defense shall receive full support for the defense from the other party at no cost. In some cases, IKONIK shall have the option to (a) procure for Customer a license for the allegedly infringing Product; (b) modify the Product in such a way that it no longer infringes; or (c) replace the Product with a similar non-infringing product.
CONFIDENTIALITY. With respect to any confidential information disclosed by one party to the other party for the purpose of this Agreement (hereinafter referred to as "Confidential Information"), the receiving party agrees that for the term of this Agreement and a period of 3 years after expiration of its initial term or any subsequent term, it will prevent disclosure to others of the Confidential Information it received from the disclosing party and will use such Confidential Information only for the purpose of this Agreement. The receiving party shall limit dissemination of the other's Confidential Information to only its employees who have a need to know for the purpose of this Agreement. Specifically excluded from the foregoing obligation is all Confidential Information that is:
a) already known to the receiving party at the time of disclosure as evidenced by the records of the receiving party, or thereafter is independently developed by the receiving party without breach of this Agreement.
b) already in the public domain at the time of disclosure, or thereafter becomes known through no wrongful act of the receiving party.
c) rightfully received from a third party without breach of this Agreement; or
d) furnished by the disclosing party to a third party without a similar restriction on its rights.
e) produced by the receiving party because of a court order or other governmental action, provided the receiving party will promptly notify the disclosing party and, as far as is permissible without placing the disclosing party under penalty of law, give it an opportunity to appear and to object to such production before producing the requested information. In any event, the receiving party shall use its best efforts to have the information produced accepted by the court or governmental agency in confidence.
No license, express or implied, in the Confidential Information or any proprietary right relating thereto is granted by the disclosing party. The receiving party shall have no right to reduce such information to use or practice, or to manufacture products which embody or are derived from such information or have been manufactured.
TERMINATION. At any time, the following occurs, IKONIK may terminate doing business with Customer:
a) breach of a material term of this Agreement and the failure to cure such default within 30 days following receipt of written notice from the other party specifying the default.
b) Customer is unable to pay its liabilities when due, or shall make any assignment for the benefit of creditors, or files any petition under Chapter 7, 11, or 13 of Title 11 United States Code, or file a voluntary petition bankruptcy or be adjudicated as bankrupt or insolvent, or if any trustee in bankruptcy or receiver shall be appointed under the laws of the United States or of the several states, or if A similar event occurs with respect to such party under the laws of a foreign country.
c) suspension of business activity by the Customer.
SURVIVAL OBLIGATIONS. The rights and obligations set forth above shall survive the expiration or termination of this Agreement.
NO IMPLIED WAIVERS. The failure of either party at any time to require performance by the other party of any provisions hereof shall in no way affect the full right of such party to require such performance at any time thereafter. The waiver by either party hereto of a breach or alleged breach of any provision hereof shall not constitute a waiver of any succeeding breach of the same or any other provision, nor shall such waiver constitute a waiver of the provision itself.
AMAZON AND MARKETPLACE SALES. Customer will not under any circumstances resell Seller’s Products to or on Amazon.com, via Amazon Vendor Central, Amazon Vendor Express, Fulfillment by Amazon (FBA), Fulfillment by Merchant (FBM), Seller Fulfilled Prime (SFP), FBA Onsite, or in any other manner that currently exists or may hereafter be developed on the Amazon sales platform (collectively “Amazon.com”), or on Walmart.com, Jet.com, Rakuten.com, Buy.com, Ebay, Alibaba, or any other third-party marketplace (collectively “Third Party Marketplaces”). Seller reserves the right to immediately cease all sales to Customer for any Customer violation of the terms of this Agreement.
NOTICES. All notices required or sought to be given under this Agreement shall be in writing and shall be deemed to have been made on the day when delivered personally or on the third business day after being sent to IKONIK or Customer.
ARBITRATION. The parties agree to submit all disputes between them relating to this Agreement or the breach, alleged breach, or interpretation thereof to binding arbitration, except that this provision shall not apply to requests for injunctive relief, within thirty (30) days after either party notifies the other in writing that it is submitting a dispute to arbitration, one (1) arbitrator shall be chosen under the then-current Rules of the American Arbitration Association ("AAA") for commercial disputes. Neither party may object to any arbitrator appointed by AAA. The arbitration will be held in Salt Lake City, Utah, and shall be conducted according to the Rules of the AAA. The arbitration award must be by a written decision containing findings of fact and conclusions of law and shall be final and binding. It may be entered in and enforced by any court of competent jurisdiction. The party prevailing in the arbitration or other legal proceedings shall be entitled to recover its costs including reasonable attorney's fees incurred due to the arbitration or other legal proceedings.
GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Utah without regard to its choice of laws and rules.
NON-ASSIGNABILITY. Neither this Agreement nor any rights and obligations of this Agreement may be assigned without the prior written consent of the other party, which consent will not be unreasonably withheld. Assignments due to a corporate reorganization by IKONIK shall not be deemed to be assignments hereunder.
RELATIONSHIP OF THE PARTIES. This is a supply agreement. Nothing in this Agreement nor during performance under this Agreement shall be construed to create a relationship of principal and agent, joint venture, partnership, association, or employment between the parties. Neither party shall represent to any third party that it is the agent or employee of the other.
SEVERABILITY. If any provisions of this Agreement are declared to be invalid, such provisions shall be severed from this Agreement and the other provisions shall remain in full force and effect. The parties shall replace the invalid provision with another valid provision that comes as close as possible to the parties' original intent regarding the invalid provision.
MODIFICATION. This Agreement contains the entire understanding between the parties with respect to the subject matter of this Agreement and supersedes all oral agreements and negotiations between the parties. Any alterations, variations, modifications, or waivers of the provisions of this Agreement shall be valid only when they have been reduced to writing and duly signed by the parties. The terms of this Section shall not be deemed to have been waived by oral agreement, course of performance, or by any other means other than a written agreement expressly providing for such waiver.