Sales Order Standard Terms and Conditions
ATTACHED AND MADE A PART OF SALES ORDER SUBMITTED TO XTELESIS CORPORATION AND ARE INCORPORATED BY REFERENCE THEREIN
No order for the purchase of equipment or services shall be binding upon Xtelesis until accepted in writing by an authorized representative of Xtelesis or by shipment or other performance of such order. Any such order shall be subject to these Terms and Conditions and acceptance shall be expressly conditioned on assent to such Terms and Conditions. This assent shall be deemed given unless Customer shall expressly notify Xtelesis to the contrary prior to any shipment or other performance of an order by Xtelesis and, in any event, within five (5) days after receipt of any acknowledgement or confirmation of such order.
No order accepted by Xtelesis may be altered or modified by purchaser unless agreed to in writing by an authorized representative of Xtelesis. No such order may be canceled or terminated except upon payment of Xtelesis’ loss, damage or expense arising from such cancellation or termination.
No modified or other conditions will be recognized by Xtelesis unless specifically agreed to in writing. Failure of Xtelesis to object to provisions contained in any purchase order or other communication from Customer (including without limitation, penalty clauses of any kind) shall not be construed as a waiver of these Conditions nor an acceptance of any such provisions.
The customer quote, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, statements of work, instructions and other information, whether physically attached or incorporated by reference (collectively the “Xtelesis Sales Order Order”), constitutes the entire and exclusive agreement between Xtelesis Corporation (“Xtelesis”) and the Customer identified in the Xtelesis Sales Order. Notwithstanding the foregoing, if a master agreement covering procurement of the Products or Work described in the Xtelesis Sales Order exists between Customer and Xtelesis, the terms of such master agreement shall prevail over any inconsistent terms herein.
ALL GOODS SOLD UNDER THE XTELESIS SALES ORDER ARE SOLD AND/OR DELIVERED WITHOUT WARRANTY OF ANY KIND, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT UNLESS SUCH GOODS ARE WARRANTED BY A MANUFACTURER THEREOF WITHOUT ANY LIABILITY THEREUNDER BEING THAT OF XTELESIS. However, nothing herein shall permit Xtelesis to interfere in any way with the warranty of any manufacturer that rightfully passes to the Customer. Xtelesis shall take all reasonable steps to inform the customer of the manufacturer's warranty provisions and assist, where appropriate, in the validation of any such warrant.
Limitation of Liability.
IN NO EVENT WILL XTELESIS, ITS OFFICERS, DIRECTORS AND EMPLOYEES HAVE ANY LIABILITY TO CUSTOMER OR ANY OTHER PERSON FOR ANY CONSEQUENTIAL, COMPENSATORY, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR OTHER DAMAGES INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, USE, DATA OR BUSINESS FOR ANY CLAIM OR LOSSES CAUSED BY ANY ACT, ERROR, DELAY OR OMISSION OF XTELESIS, REGARDLESS OF THE THEORY OF LIABILITY ALLEGED OR WHETHER THE CLAIM IS BASED UPON CONTRACT, TORT, BREACH OF STATUTORY DUTY, INDEMNITY, CONTRIBUTION OR OTHERWISE.
Compliance with Law.
Customer acknowledges and agrees that certain goods delivered under the Xtelesis Sales Order may be covered by copyrights, patents and export regulations and Customer agrees to abide by all such copyrights, patents and export regulations as well as any other applicable laws and regulations of any governmental authority..
Customer understands that this Xtelesis Sales Order is subject to normal credit approval checks by Xtelesis. In the event that the credit of Customer, in the sole judgment of Xtelesis, is unacceptable, the terms of the Xtelesis Sales Order may be revised or the Customer may cancel the order upon notification by Xtelesis within 5 business days of the date of the Xtelesis Sales Order that Customer's credit is not satisfactory. Xtelesis shall consider the order cancelled upon such notification, and Xtelesis shall have no further obligations hereunder, unless other terms satisfactory to Xtelesis, in its sole judgment, are agreed upon between Customer and Xtelesis.
Invoice, Payment Terms and Finance Charges.
Xtelesis will invoice Customer upon delivery for all goods purchased and semi-monthly for all services performed for the immediate preceding semi-monthly period under the Xtelesis Sales Order. Payment will be due Net/30. Any invoice not timely paid will accrue a FINANCE CHARGE of 1% per month of the unpaid balance at the first of each month that a past due invoice remains unpaid.
Xtelesis shall retain a security interest in all goods delivered under the Xtelesis sales Order until all invoices with regard to the Xtelesis Sales Order are paid in full. Xtelesis shall be authorized to require a UCC1 filing from the Customer with respect to all delivered goods sold under the Xtelesis Sales Order. Any such UCC1 will be relinquished upon full payment of all invoices associated with the Xtelesis Sales Order.
The return of any goods delivered under the Xtelesis Sales Order shall be subject to an approved Return Merchandise Authorization ("RMA") from Xtelesis. Xtelesis shall use its best efforts to enable Customer to return any goods that any Distributor or Manufacturer from whom the goods were obtained will allow.
Delivery of goods shall be made at the time and location specified in the Xtelesis Sales Order. Xtelesis does not guarantee such delivery dates, but will use its best efforts to obtain the goods from its suppliers for a timely delivery. In the event that a delivery will be delayed by more than five business days, Xtelesis will notify Customer as early as possible. Customer may not refuse delivery of goods ordered under the Xtelesis Sales Order unless such delivery date will be delayed by more than twenty business days, and Xtelesis has been advised of such refusal at least ten business days prior to the scheduled delivery date.
Except as otherwise may be stated in quotations, price sheets, catalogs, or other Xtelesis publications, freight charges will be prepaid and added to the Customer’s invoice based on point of original shipment. No allowance will be made in lieu of freight charges if purchaser accepts product or equipment at an Xtelesis shipping point.
Method and route of shipment will be at the discretion of Xtelesis unless Customer shall specify otherwise.
Unless otherwise contracted for in a signed agreement, all Engineering Services to be performed by Xtelesis shall be on a time and material basis including charges for travel time and travel cost reimbursement, such reimbursement to include charges for miles driven by Xtelesis engineers at $.50 per mile.
Miscellaneous travel and shipping charges:
Please note that Xtelesis quotes generally do not represent travel and shipping charges. These will be added to your final invoice.
Customer shall remit to Xtelesis, when invoiced for such, all sales taxes due in the jurisdiction to which goods are delivered or services are performed. In the event that Customer is exempt from any such sales tax, a proper exemption certificate shall be supplied to Xtelesis with the signed Xtelesis Sales Order. In the event that any goods and/or services subject to the Xtelesis Sales Order are to be leased through a third party lessor, Customer or such third party lessor agrees to provide Xtelesis with the required information for exemption from any such sales tax. Unless proper exemption information is timely supplied to Xtelesis, such sales tax shall be remitted to Xtelesis upon invoice therefore.
Customer agrees to indemnify, defend and hold harmless Xtelesis from any loss caused by Customer's breach of these Terms and Conditions.
Choice of Law.
These terms and conditions and the Xtelesis Sales Order shall be governed and construed in accordance with the laws of California, without regard to its conflicts of law provisions.