These General Terms and Conditions of Sale (“Terms”) apply to all deliveries of products and services (“Products”) from X Stream Designs, Inc. or its Affiliates (each of which is referred to as “X Stream Designs”) to any customer (“Customer”). In these Terms “Affiliate” shall mean any entity that directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control by X Stream Designs at such time.
No terms and conditions other than these Terms shall be binding upon X Stream Designs and the Customer unless agreed to in writing by both X Stream Designs and Customer. All terms and conditions contained in any prior communication, which are different from or in addition to the Terms, shall not be binding on X Stream Designs unless otherwise expressly agreed in writing by both X Stream Designs and Customer. Any additional, different, or conflicting terms proposed by Customer in any offer, acceptance, confirmation (including any Customer purchase order or specifications) or otherwise, (a) are requests for material alterations to these Terms, (b) are hereby rejected and objected to by X Stream Designs, and (c) will not be binding in any way on X Stream Designs.
X Stream Designs shall not be deemed to have accepted an order until a written, including electronic, acceptance of the Customer’s purchase order by X Stream Designs is received by Customer or X Stream Designs has received a written, including electronic, timely and unconditional acceptance by Customer of X Stream Designs’ quotation.
The Products are hereby offered for sale at prices to be established by X Stream Designs. X Stream Designs reserves the right to adjust accepted prices for non-delivered Products in the event of alterations in rates of exchange, variations in costs of materials, a sub-supplier’s price increases, changes in wages, state requisitions or similar conditions over which X Stream Designs has no or limited control.
Unless otherwise specified on X Stream Designs’ invoice, order confirmation, acknowledgment or otherwise agreed to by the parties in writing, Customer will pay for all goods on a net thirty (30) day basis. In the event that X Stream Designs does not approve credit to the Customer, or if at any time X Stream Designs reverses its prior approval of credit for any reason, terms of payment shall be C.O.D., or immediate partial, or full advance payment, or a combination of the foregoing methods, all as X Stream Designs may then, or thereafter from time to time, elect or specify. All payments shall be in U.S. dollars
X Stream Designs reserves the right to assess reasonable interest charges on any amounts not paid by the date such payments are due and reserves the right to withhold shipment or to require other adequate assurances of performance of Customer’s payment obligations.
X Stream Designs’ price for its Products are exclusive of any federal, state, or local sales, use, or excise taxes levied upon, or measured by, the sale, the sales price, or use of Products required in the performance of any order. X Stream Designs will list separately on its invoice any such taxes applicable to any such goods or transaction, and payable by Customer, with respect to which Customer does not furnish to X Stream Designs evidence of exemption.
X Stream Designs will use commercially reasonable efforts to meet the delivery dates, specifications, and quantities as set forth in Customer’s purchase order. If X Stream Designs does not ship on the promised date, Customer is entitled to request a reasonable, revised shipment date in writing without undue delay. No claims can be made by the Customer as a result of the delay and X Stream Designs will not be liable for damages or delays in delivery due to causes beyond its reasonable control.
Unless otherwise agreed in writing, X Stream Designs may make delivery in installments. All installments will be separately invoiced and paid as billed without regard to subsequent deliveries. Failure to pay any installment when due will excuse X Stream Designs from making all future deliveries.
X Stream Designs and its Affiliates shall be entitled to set off their own claims against the Customer, in event of Customer’s possible claims against any of said companies.
While X Stream Designs attempts to provide helpful and accurate information on the weight, dimensions, capacity, and performance capabilities of the Products in catalogues, literature, brochures and advertisements, and on its website, the Customer should not rely on any such information, and no such information is binding on X Stream Designs, unless explicit reference to the specific information in question is made in a written offer from X Stream Designs and/or a written order acceptance by X Stream Designs. Specific demands from the Customer are only binding if and to the extent they have been accepted by X Stream Designs in writing.
Any non-public information, including but not limited to, drawings, descriptions and any other technical documents which X Stream Designs makes available to the Customer (“Confidential Information”) shall remain the property of X Stream Designs and shall be treated as confidential by Customer and its representatives and must not, without the written consent of X Stream Designs, be copied, reproduced, or transferred to third parties or be used for other purposes than those intended when the Confidential Information was made available. Confidential Information shall be returned upon X Stream Designs’ request.10. Alterations
X Stream Designs reserves the right to make, without notice to Customer, alterations to a Product that do not materially affect agreed specifications or the Product’s form, fit or function.
11a. X Stream Designs warrants that, during the Warranty Period, the Product will, with normal use and service, be free from faulty parts, manufacture or workmanship.
11b X Stream Designs extends the following warranty for all X Stream Designs Products unless otherwise stated, to the original owner/purchaser of the Product for a period of 12-months, from date of shipment.
This warranty shall be voided if the article in question is improperly installed, applied, operated or maintained; subjected to overload, misuse, negligence or an accident; or repaired or altered outside of the X Stream Designs warehouse or by anyone other than an authorized X Stream Designs service partner under direction of X Stream Designs. Products manufactured by others, but supplied by X Stream Designs as part of a X Stream Designs Product, are not warranted by X Stream Designs, and Customer’s sole recourse if any such product should fail shall be under the warranty, if any, of such other manufacturer.
Customer’s sole and exclusive remedy against X Stream Designs and X Stream Designs’ only obligation, for breach of warranty, shall be, at X Stream Designs’ option, the repair or replacement (with either a refurbished or new Product) of any Product that on X Stream Designs’ examination is found to be defective at the time of delivery due to faulty workmanship and/or defective material, but only if the Customer submits a claim in writing to X Stream Designs within the warranty period.
When making a warranty claim, the Customer must request an RMA from X Stream Designs. Upon issuance of the RMA, the Customer will forward the Product to X Stream Designs for evaluation. Freight and insurance will be paid for by the Customer. The Customer is responsible for repackaging Products returned in suitable packing material to prevent damage in transit. If X Stream Designs ascertains that the Product is defective due to faulty workmanship and/or defective material, X Stream Designs shall send the repaired Product or a replacement Product to the Customer. X Stream Designs may choose the method of delivery and will pay freight and insurance and credit the Customer for freight and insurance costs resulting from return shipment from the Customer to X Stream Designs authorized by the RMA. Products or product parts which have been replaced shall be the property of and retained by X Stream Designs. If X Stream Designs’ determines that the Product is not defective due to faulty workmanship and/or defective material or that the warranty has been voided, the Product shall be returned to the Customer, if the Customer requests. In such case, freight and insurance shall be paid by the Customer.
If you do not wish to be bound by any of the provisions in this warranty, please return the product(s) immediately to X Stream Designs.
X Stream Designs, Inc.
Customer Service Department
2120 Jimmy Durante Blvd., Suite 115
Del Mar, CA 92014
EXCEPT FOR THE WARRANTIES STATED IN SECTION 11, THE PRODUCTS ARE SUPPLIED “AS IS”, “WHERE IS” AND “WITH ALL FAULTS”. X STREAM DESIGNS DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS, EITHER EXPRESS OR IMPLIED, ARISING BY OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Customer shall indemnify, defend and hold X Stream Designs harmless from all claims, including but not limited to all claims filed by third parties, for injuries, harms, losses or damages of any kind, (a) caused by or resulting from, (i) the Product after it has been delivered, (ii) the improper use, repair, maintenance or operation of the Product by Customer, (iii) the failure of Customer to adequately train personnel in the operation of the Product, or (iv) the Customer’s failure to comply with applicable laws or regulations or (b) to products manufactured by the Customer or to products of which the Customer’s products form a part.
The Customer consents to the jurisdiction of any court or arbitral tribunal in which any third party files a claim for injuries, harms, losses or damages allegedly caused by any Product sold to Customer.
IN NO EVENT SHALL X STREAM DESIGNS BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES ARISING OUT OF ANY BREACH OF WARRANTY, FAULTY PRODUCT, DELAY IN THE DELIVERY OF THE PRODUCT, PRODUCT LIABILITY, FAILURE TO WARN, RECALL OR OTHERWISE, IRRESPECTIVE OF THE CAUSE, INCLUDING BUT NOT LIMITED TO, LOSS OF PRODUCTION, LOSS OF PROFIT AND LOSS OF GOODWILL.
Claims or complaints as to defects and/or delay in delivery of the Products or other claims shall be submitted in writing by Customer to X Stream Designs without undue delay.
If the Product is delivered with embedded software, Customer obtains a non-exclusive, software license in form of a right to use the software solely for the purposes set out in the applicable specification of the Product. Aside from this, Customer obtains no rights in form of license, patent, copyright, trademark or other proprietary right connected to the Products. Customer shall not obtain any rights to source codes to such software.
X Stream Designs, at its’ election, may defend any suit or proceeding brought against Customer as far as the same is based on a claim that any Product of X Stream Designs’ design furnished hereunder or any part thereof, constitutes an infringement of any United States or Canadian patent, if notified promptly in writing and given authority, information and assistance for the defense of the same and if such alleged infringement is not the result of the design or other special requirements specified by Customer or the application or use to which such Product is put to use by Customer or others. In the event that X Stream Designs elects to defend such suit or proceeding, X Stream Designs will pay all damages and costs awarded in such suit or proceeding against Customer. In the event that such Product or part in such suit is held to infringe any such patent and use thereof is enjoined, X Stream Designs will, at its option, (a) procure Customer with the right to continue use of such Product or part, (b) replace same with non-infringing Product(s) or parts, (c) modify the same so that it becomes non-infringing, or (d) remove said Product or part and refund the purchase price and the transportation and installation costs thereof. The foregoing states the entire liability of X Stream Designs to Customer for patent infringement.
Customer is hereby advised and put on notice that Products may be subject to export controls and regulations of the United States, another country of manufacture or a country of transshipment, and export may require a valid export license. X Stream Designs’ acceptance of Customer’s order and delivery of the Products is expressly conditioned on compliance by Customer with all applicable export controls. X Stream Designs is under no obligation to sell or deliver the Products until all required export licenses have been granted. No Products sold to Customer may be exported unless such export complies fully with all applicable export regulations. Customer shall be responsible for obtaining all required export licenses and for all expenses of obtaining such licenses.
X Stream Designs is entitled to cancel orders or suspend or delay delivery of Products and will not be liable for such cancellation, suspension, or any non-delivery, faulty or delayed delivery which partly or wholly is caused by circumstances beyond X Stream Designs’ control, including, but not limited to, riots, civil unrest, war, terrorism, fire, insurrection, requisition, seizure, embargo or defects or delays in deliveries by sub-contractors, strikes, lockouts, slow downs, lack of transportation, scarcity of materials, accidents in product testing, and insufficient supplies of energy. Any of Customer’s contractual rights are suspended or become void in any such circumstances referred to in this clause. Customer is not entitled to any kind of damages or to make a claim whatsoever in case of cancellation or delayed delivery due to such circumstances.
If one or more of the terms and conditions in these Terms or any part of a term is deemed invalid, unenforceable, illegal or inoperable, the validity, enforceability, legality or operability of all further terms and conditions shall not be affected or diminished thereby.
Any dispute between the parties concerning or arising from (a) a purchase of a Product or (b) any damages, injuries, losses or harms allegedly caused by any Product shall be decided under California law.
Any such dispute which the parties themselves are unable to resolve shall be referred to and settled by arbitration in San Diego, California. Such courts shall have exclusive jurisdiction and venue for resolution of all such disputes and the parties hereto do hereby irrevocably submit to such jurisdiction and venue, and waive any objection to the contrary hereafter.
The Parties may refer the enforcement of any arbitral award to any competent court. English shall be the language to be used in the arbitration proceeding unless otherwise agreed between the parties. The arbitration proceedings and the arbitral award shall be confidential and involved persons on both sides are pledged to secrecy.
Buyer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, distribution, marketing, and service of the goods and related technology, including without limitation, tax and foreign exchange legislation, and/or regulations.
These Terms contain the complete and final agreement between Customer and X Stream Designs and supersede all other and further agreements, representations, warranties, covenants, promises, and other contractual obligations between the parties in respect of the subject hereof unless otherwise agreed to in a writing signed by X Stream Designs. These Terms may be amended, modified or waived only by a written instrument that refers expressly to this paragraph and is signed by an authorized representative of X Stream Designs. E-mails and electronic on-line, Internet or other terms of Customer shall not be deemed a means of modifying or amending these Terms.