X3 Innovations Terms of Sale
TERMS AND CONDITIONS OF COMMERCIAL SALE
In these Terms and Conditions of Commercial Sale (the “Terms and Conditions”), “Seller” shall mean: X3 Innovations.
1. OFFER, CONFIRMATION OR AGREEMENT
These Terms and Conditions apply to and form an integral part of:
1.1 all quotations and offers (hereinafter both referred to as “Offer”) of Seller to Buyer,
1.2 all acceptances, acknowledgements or confirmations by Seller (hereinafter all referred to as “Confirmation”) of any order of Buyer, including without limitation orders of Buyer resulting from any pricing or other framework agreement between any Buyer and Seller, unless explicitly agreed otherwise in writing between Seller and Buyer,
1.3 any agreement resulting from such Offer or Confirmation, and
1.4 any agreement incorporating these Terms and Conditions by reference (both types of agreements referred to under Sections 1(c) and 1(d) shall hereinafter be referred to as an “Agreement”), regarding the sale by Seller and purchase by Buyer of goods (“Products”), unless Seller explicitly agrees in writing to the exclusion hereof.
These Terms and Conditions shall constitute all of the terms and conditions of any Offer, Confirmation and Agreement between Seller and Buyer relating to the sale by Seller and purchase by Buyer of Products. Any terms and conditions set forth on any document or documents issued by Buyer (including “Pull Documents” as defined below) either before or after issuance of any document by Seller setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Seller, and any such document shall be wholly inapplicable to any sale made by Seller and shall not be binding in any way on Seller. No Offer, Confirmation or Agreement constitutes an acceptance by Seller of any other terms and conditions, and Seller does not intend to enter into an agreement other than under these Terms and Conditions.
Any Offer is expressly made conditional on Buyer's assent to all of the terms contained in the Offer without deviation. Acceptance by Buyer of an Offer may be evidenced by (i) Buyer's written or verbal assent or the written or verbal assent of any representative of Buyer, (ii) Buyer's acceptance of delivery of the Products or payment of purchase price for the first installment of the Products (if applicable), or any such acceptance by any representative of Buyer, or (iii) other conduct by Buyer or any representative of Buyer consistent with acceptance of the Offer.
In the event that any Offer or Confirmation is sent in response to Buyer's blanket purchase order, the terms and conditions of that Offer or Confirmation, including these Terms and Conditions, shall apply to any “pull” by Buyer or delivery by Seller, irrespective of whether Buyer submits additional purchase orders (electronically or otherwise) (“Pull Documents”) and whether Seller provides a Confirmation to such additional purchase orders. All terms and conditions of such Pull Documents are hereby rejected.
Seller’s Offers are open for acceptance within the period stated by Seller in the Offer or, when no period is stated, within thirty (30) days from the date of the Offer, but any Offer may be withdrawn or revoked by Seller at any time prior to the receipt by Seller of Buyer's acceptance related thereto.
If Seller receives an order from Buyer for the sale by Seller and purchase by Buyer of Products and such order is not a response to an Offer by Seller, or if Seller receives an order or acceptance by Buyer which deviates from Seller's Offer, such order or acceptance, respectively, shall be deemed to be a request for an Offer only.
An acceptance by Buyer of any Offer made by an order gatherer, liaison officer, agent or sales representative for Seller shall constitute an Agreement between Seller and Buyer upon explicit Confirmation by Seller itself.
In these Terms and Conditions, the term “Affiliate(s)” shall mean: (a) with respect to Seller, X3. and any entity that is Controlled by X3 Innovations and (b) with respect to Buyer, any entity that Controls, is Controlled by or is under common Control with Buyer; where “Control” means the direct or indirect beneficial ownership of greater than fifty percent (50%) of the voting stock, or decision-making authority in the event that there is no voting stock, in another entity. An entity may be considered an Affiliate only when such Control exists. Seller and its Affiliates are individually and/or collectively referred to herein as “X3”.
2. PRODUCTS, QUANTITIES AND PRICING
Prices in any Offer, Confirmation or Agreement are in United States Dollars and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. Seller will add taxes, duties and similar levies to the sales price where Seller is required by law to pay or collect them and will be paid by Buyer together with the price.
3. RIGHTS IN DOCUMENTATION AND INTELLECTUAL PROPERTY
Unless provided otherwise in a separate agreement between Seller and Buyer, the following terms apply to Products (including all products of X3 Innovations, unless stated otherwise) and documentation provided or made available to Buyer in connection with Products:
With respect to Products, documentation, and portions thereof, Buyer is not authorized to and agrees that it will not: (i) reverse engineer; (ii) modify or create derivative works; (iii) remove or alter any proprietary markings or notices. Should Buyer create any modifications or derivative works of Products, documentation or a portion thererof, Buyer irrevocably assigns and agrees to assign all right, title and interest in any such modifications or derivative works to Seller.
If Buyer is in default of any of the terms herein, Buyer’s license to software and documentation will automatically terminate. Buyer shall indemnify X3 against and hold X3 harmless from any damage or costs arising from or in connection with any violation or breach of the provisions of this Section 3 and Buyer shall reimburse all costs and expenses incurred by X3 in defending any claim, demand, suit or proceeding arising from or in connection with such violation or breach.
4.1 Unless agreed otherwise between Seller and Buyer in writing, Seller may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable Incoterm. Net payment is before delivery unless agreed otherwise between Seller and Buyer in writing.
4.2 Payment by Buyer of non-recurring charges (as may be made to Seller for special design, engineering work or production materials) shall not convey title to any design, engineering work or production materials, and title shall remain in Seller.
4.3 Buyer shall not offset, withhold or reduce any payment(s) due by it to Seller. The payment of fees and charges is a covenant of Buyer that is independent of the other covenants made by the parties hereunder.
4.4 If Seller incurs exchange rate losses due to Buyer's failure to pay when payments are due, Seller shall be entitled to equivalent compensation from Buyer for such losses.
4.5 In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Seller shall have the right to refuse performance of any work and delivery of any Products until payments are brought current and Seller may suspend, delay or cancel any credit, delivery or any other performance by Seller. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under these Terms and Conditions or at law or in equity.
5. DELIVERY AND QUANTITIES
5.1 Products shall be delivered EXW Incoterms® 2010 at Seller's warehouse or other facility designated by Seller, unless otherwise agreed in writing between Seller and Buyer. Delivery dates communicated or acknowledged by Seller are approximate only, and Seller shall not be liable for, nor shall Seller be in breach of its obligations to Buyer, because of any delivery made within a reasonable time before or after the stated delivery date. Seller agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the agreed delivery date.
5.2 Buyer will give Seller written notice of failure to deliver and thirty (30) days within which to cure. If Seller does not cure within thirty (30) days, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement.
5.3 Title in the Products shall pass to Buyer at Seller’s point of shipment. Risk of loss in the Products shall pass to Buyer upon Seller's delivery in accordance with the applicable Incoterm
6. CUSTOM PRODUCT
Seller shall have exclusive rights to goods designed and manufactured for the unique needs of Buyer, to Buyer's specifications or requirements (“Custom Product”).
7. RESCHEDULING AND CANCELLATION
No order, Agreement or any part thereof may be rescheduled or cancelled without Seller’s prior written consent.
8. FORCE MAJEURE
Seller shall not be liable for any failure or delay in performance if:
8.1 such failure or delay results from the fact that Seller’s manufacturing volume of the Products concerned is lower than anticipated due to interruptions in the manufacturing process; or
8.2 such failure or delay does not result from its fault; or
8.3 such failure or delay is caused by Force Majeure as defined below or by law.
In case of such a non-attributable failure, the performance of the relevant part(s) of the Agreement will be suspended for the period such non-attributable failure continues, without Seller being responsible or liable to
Buyer for any damage resulting therefrom.
The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond Seller’s reasonable control (whether or not foreseeable at the time of the Offer, Confirmation or Agreement) as a result of which Seller cannot reasonably be required to execute its obligations. Such circumstances or occurrences include but are not restricted to: acts of God, war, civil war, terrorism, insurrections, strikes, fires, floods, earthquakes, labor disputes, epidemics, governmental regulations and/or similar acts, freight embargoes, non-availability of any permits, licenses and/or authorizations required, defaults or delays of suppliers or subcontractors and/or inability or impracticability to secure transportation, facilities, fuel, energy, labor, materials or components. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Seller to extend for a period of three (3) consecutive months), Seller shall be entitled to cancel all or any part of the Agreement without any liability of Seller towards Buyer. In the event Seller’s production is curtailed, for any reason, Seller shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in Seller’s Offer, Confirmation or Agreement, as the case may be.
9. LIMITED WARRANTY AND DISCLAIMER
9.1 Seller warrants that under normal use the Products, at the time of delivery to Buyer and for a period of twelve (12) months thereafter (or such other period as may be agreed-upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to Seller’s specifications for such Products, or such other specifications as Seller has agreed to in writing, as applicable.
9.2 Seller’s sole and exclusive obligation, and Buyer's sole and exclusive right, with respect to claims under this warranty shall be limited, at Seller’s option, either to (a) the replacement or repair of a defective or non-conforming Product, or (b) an appropriate credit for the purchase price thereof. Seller will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become Seller’s property as soon as they have been replaced or credited for.
9.3 Notwithstanding the foregoing, Seller shall have no obligations for breach of warranty if the alleged defect or non-conformance is found to have occurred as a result of: environmental or stress testing, misuse, neglect, improper installation, accident, improper repair, alteration, modification, improper storage, improper transportation or improper handling of the Products, after the risk of loss in the Products has passed to Buyer.
9.4 Buyer may ship Products returned under warranty claims to Seller’s designated facility only so long as the returns are in conformance with Seller’s then-current return material authorization policy and are accompanied by a duly completed return material authorization form issued by Seller. Where warranty adjustment is made, Seller will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.
9.5 THE EXPRESS WARRANTY GRANTED ABOVE SHALL EXTEND DIRECTLY TO BUYER AND NOT TO BUYER'S CUSTOMERS, AGENTS OR REPRESENTATIVES. THE EXPRESS WARRANTY GRANTED ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. ALL OTHER WARRANTIES ARE HEREBY SPECIFICALLY DISCLAIMED BY SELLER.
9.6 Subject to the exclusions and limitations set forth in Section 11 of these Terms and Conditions, the foregoing states the entire liability of Seller in connection with defective or non-conforming Products supplied hereunder.h. Subject to the exclusions and limitations set forth in Section 11 of these Terms and Conditions, the foregoing states the entire liability of Seller in connection with defective or non-conforming Products supplied hereunder.
Except for non-confidential documentation provided to Buyer for distribution with a corresponding Product, Buyer acknowledges that all technical, commercial and financial information (including without limitation any source code) disclosed to Buyer by X3 is the confidential information of X3. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transactions contemplated herein.
11. BREACH AND TERMINATION
Without prejudice to any rights or remedies Seller may have under these Terms and Conditions or the Agreement or at law, Seller may, by written notice to Buyer, terminate with immediate effect any Agreement, or any part thereof, without any liability whatsoever, if:
11.1 Buyer fails to make payment for any Products to Seller when due;
11.2 Buyer fails to accept conforming Products supplied hereunder;
11.3 any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or
11.4 Buyer violates or breaches any of the provisions of these Terms and Conditions and/or the Agreement.
Upon occurrence of any of the events referred to under Sections 17(a) through 17(d) above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.
In the event of cancellation, termination or expiration of any Agreement the terms and conditions destined to survive such cancellation, termination or expiration (which shall include without limitation all defined terms and Sections 4, 8 through 17 and 20 through 25 of these Terms and Conditions) shall survive.
12. PRODUCT AND PRODUCTION CHANGES
Seller reserves the right to make at any time Product and/or production changes. In such event Seller represents that said changes shall not negatively affect form, fit or function of the Products and their performance characteristics.
13. DISCONTINUATION OF PRODUCT
Seller reserves the right to discontinue manufacturing and sale of Products at any time. If however at any time during the term of an Agreement under which Seller sells and Buyer purchases Products on a regular basis, such regularly sold and purchased Products are to be permanently discontinued (“Discontinued Product”), Seller shall use its reasonable commercial efforts to give Buyer prior written notice of such discontinuance and shall use reasonable commercial efforts to accept last-time-buy orders for such Discontinued Product all in accordance with Seller’s product discontinuation process and general information related thereto as published on Seller’s website.
All notices and communications to be given under these Terms and Conditions shall be in writing and shall be deemed delivered upon hand delivery, confirmed facsimile communication, or three (3) days after deposit in the mail of the home country of the party, postage prepaid, by certified, registered, first class or equivalent mail, addressed to the parties at their addresses set forth on the Offer, Confirmations and/or Agreement.
15. RELATIONSHIP OF PARTIES
The parties hereto intend to establish a relationship of buyer and seller and as such are independent contractors with neither party having authority as an agent or legal representative of the other to create any obligation, express or implied, on behalf of the other.
16. MODIFICATIONS AND CHANGES
Seller reserves the right to make any amendments or modifications to these Terms and Conditions at any time. Such amendments and modifications shall have effect: (1) on all Offers, Confirmations and Agreements referring to such amended or modified Terms and Conditions as from the date of such Offer, Confirmation or Agreement, and (2) on any existing Agreement thirty (30) days from notification of such amendments or modifications by Seller to Buyer, unless Buyer has notified Seller within such thirty (30) days period that it objects thereto.