Xcalable Terms and Conditions of Sale
IMPORTANT: PLEASE READ THESE TERMS AND CONDITIONS OF SALE CAREFULLY.
THESE TERMS AND CONDITIONS OF SALE (“TERMS”) GOVERN PURCHASES OF PRODUCTS (DEFINED BELOW) FROM XCALABLE ., ALL OF WHICH DO BUSINESS AS XCALABLE (COLLECTIVELY “XCALABLE”). ANY ADDITIONAL OR DIFFERENT TERMS IN ANY FORM DELIVERED BY YOU (“CLIENT”) ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN. SUCH ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS CONTAINED IN ANY FORM PROVIDED BY CLIENT, SUCH AS A PURCHASE ORDER, WILL BE NULL AND VOID.
BY PLACING AN ORDER FOR PRODUCTS (THE “PRODUCTS”) DESCRIBED IN XCALABLE’S SALES QUOTE, INVOICE, PURCHASE ORDER FORM, OR OTHER DOCUMENTATION PROVIDED BY XCALABLE (COLLECTIVELY, “XCALABLE ORDER FORMS”), CLIENT AGREES TO BE BOUND BY AND ACCEPTS THESE TERMS UNLESS CLIENT AND XCALABLE HAVE SIGNED A SEPARATE AGREEMENT WHICH EXPRESSLY OVERRIDES THESE TERMS, IN WHICH CASE THE SEPARATE AGREEMENT WILL CONTROL.
GENERAL DESCRIPTIONS OF THE PRODUCTS POSTED ON ANY XCALABLE WEBSITE DO NOT CONSTITUTE PART OF THE AGREEMENT BETWEEN XCALABLE AND CLIENT.
Application & Acceptance
Xcalable’s acceptance of an order is subject to Client’s assent to these Terms, which shall be presumed from Client’s acknowledgment or submission of an order, acceptance of Products or services, and/or the payment of an invoice. Client agrees that no writing shall be required to make an order legally binding, notwithstanding contrary requirements in any law, and Client agrees not to contest the validity or enforceability of a genuine order under the provisions of a statute of frauds or any other applicable law. These Terms govern the relationship between Client and Xcalable with respect to Client’s purchase of the Products and constitute a binding contract between Client and Xcalable. These Terms are subject to change without prior notice, except that the Terms posted on Xcalable’s website at the time Client initially places or modifies an order will govern the order or order modification in question.
Governing Law
THIS AGREEMENT IS GOVERNED BY AND SHALL BE CONSTRUED UNDER THE LAWS OF THE STATE OF DELAWARE. ANY DISPUTE BETWEEN THE PARTIES SHALL BE BROUGHT EXCLUSIVELY IN THE STATE OR FEDERAL COURTS SITTING IN DELAWARE. Except in the case of nonpayment, neither party may institute any action in any form arising out of these Terms more than one (1) year after the conduct or event giving rise to the cause of action occurred. The rights and remedies provided Xcalable under these Terms are cumulative, are in addition to, and do not limit or prejudice any other right or remedy of Xcalable at law or in equity.
Shipping & Risk of Loss
Title to Products and risk of loss or damage during shipment pass from Xcalable to Client upon delivery to the specified destination (F.O.B. Destination, freight prepaid and added). Notwithstanding the foregoing, title to software will remain with the applicable licensor(s), and Client’s rights therein are contained in the license agreement between such licensor(s) and Client.
Xcalable charges shipping and handling fees for every shipment, unless a special promotion or contract term provides otherwise; such cost includes the freight charged by the carrier, packaging, and handling, but does not necessarily equal a direct pass-through of such cost to Client. Client will be responsible for all shipping and related charges.
Delivery times are estimates only and Xcalable shall not be liable for delays of any kind including but not limited to delays which result from any circumstances beyond Xcalable’s control, including without limitation, product unavailability, carrier delays, delays due to fire, severe weather conditions, failure of power, labor problems, acts of war, terrorism, general insurrection, acts of God or acts of any government or agency.
Non-US or Export Sales
Transactions that involve an export of Products, including but not limited to commodities, software or technology, are subject to the Export Administration Regulations. Such Products were exported from the United States by Xcalable in accordance with the Export Administration Regulations. Diversion of the Products contrary to U.S. law is explicitly prohibited. Client expressly represents and warrants that it is eligible to receive products under U.S. law and agrees that it shall not export, re-export, or provide such items to any country, entity or person in contravention of regulations currently imposed by the U.S. Government without obtaining prior authorization from the United States Government. In addition, there are other countries, individuals or entities for which export is restricted, prohibited or for which an export license may otherwise be required. It is solely the responsibility of the Client to ensure it is in compliance with all U.S. export regulations. Manufacturers’ warranties for exported products may vary or may be null and void for products exported outside the United States.
LIMITED MANUFACTURER’S WARRANTY
Client understands that Xcalable is not the manufacturer of the Products purchased by Client hereunder and the only warranties offered are those of the manufacturer, not Xcalable. In purchasing the Products, Client is relying on the manufacturer’s specifications only and is not relying on any statements, specifications in brochures, photographs or other illustrations representing the products that may be provided by Xcalable.
XCALABLE HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES EITHER EXPRESS OR IMPLIED, RELATED TO THE PRODUCTS SOLD, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF TITLE, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGMENT. THIS DISCLAIMER DOES NOT AFFECT THE TERMS OF THE MANUFACTURER’S WARRANTY, IF ANY. Client expressly waives any claim that it may have against Xcalable based on any product liability or infringement or alleged infringement of any patent, copyright, trade secret or other intellectual property rights (each a “Claim”) with respect to any Product and also waives any right to indemnification from Xcalable against any such Claim made against Client by a third party. Client acknowledges that no employee of Xcalable is authorized to make any representation or warranty on behalf of Xcalable or any of its Affiliates that is not in this Agreement.
Xcalable makes no warranties to Client and Client hereby acknowledges that Xcalable makes no warranties in regard to the applicability of all laws and regulations affecting, without limitation the manufacture, performance, sale, packaging and labeling of the Products which are in force within Client’s territory.
Client further acknowledges and agrees that Xcalable makes no representations, warranties or assurances that the Products are designed for or suitable for use in any high risk environment, including but not limited to aircraft or automobile safety devices or navigation, life support systems or medical devices, nuclear facilities, or weapon systems, and Client agrees to indemnify Xcalable in Xcalable with any such use of the Products. Client further agrees to review and comply with the manufacturer’s disclaimers and restrictions regarding the use of the Products in high risk environments.
Client shall be solely responsible for daily back-up and other protection of its data and software against loss, damage or corruption. Client shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted as a result of the Products. XCALABLE AND ITS SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN XCALABLE WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CLIENT ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE PRODUCTS.
Pricing, Availability & Corrections
The prices of the Products are listed on Xcalable’s website, quotes, or catalogs. Prices are subject to change without notice. Xcalable reserves the right to make adjustments to pricing and Products offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes and errors in advertisements. Xcalable reserves the right to update or correct any errors or omissions in any order, at any time and without prior notice. Xcalable reserves the right to cancel or refuse any order based on incorrect pricing or availability. Therefore, Xcalable cannot guarantee that it will be able to fulfill Client’s orders.
Limitation of Liability
XCALABLE SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTIAL, PUNITIVE, OR OTHER INDIRECT DAMAGES, REGARDLESS OF THE CAUSE OF ACTION, AND EVEN IF CLIENT HAS ADVISED XCALABLE OF THE POSSIBILITY OF SUCH DAMAGES.
THE MAXIMUM AMOUNT OF DIRECT DAMAGES XCALABLE WILL BE LIABLE FOR IS AN AMOUNT EQUAL TO THE AMOUNTS PAID BY CLIENT TO XCALABLE FOR THE PRODUCTS OR SERVICES ABOUT WHICH A CLAIM HAS BEEN MADE, OR THE SUM OF $10,000.00, WHICHEVER IS GREATER.
THE FOREGOING LIMITATIONS SHALL NOT APPLY IN THE EVENT OF XCALABLE’S GROSS NEGLIGENCE OR WILLFUL MALFEASANCE.
Orders, Payment, Returns & Cancellations
Orders are not binding upon Xcalable until accepted by Xcalable. Payment is due as set forth in the Xcalable Order Form issued to Client for the Products. Terms of payment are within Xcalable’s sole discretion. Invoices are due and payable within the time period specified on the invoice, measured from the date of invoice. Xcalable may invoice parts of an order separately. If Client elects to finance an order through a third-party and Xcalable is not paid by that third-party for any reason, Client agrees to promptly pay Xcalable (no more than 7 days from the third-party’s rejection of payment) all amounts owed under the order.
Client is solely responsible for, and will indemnify and hold Xcalable harmless from, any applicable sales, use or other taxes or federal, state or local fees or assessments associated with the order. Client must claim any exemption from such taxes, fees or assessments at the time of purchase and provide Xcalable with the necessary supporting documentation. Any sales, use or other applicable tax or fees or assessments is based on the location to which the order is shipped.
Orders may be returned or cancelled only upon the original manufacturer’s, supplier’s, licensor’s, provider’s, etc. (collectively, the “manufacturer”) (i) agreement to accept return or cancellation, (ii) release of Xcalable from its payment obligations, and (iii) refund to Xcalable of all payments made in association with the order. Client agrees to pay the costs of return packaging, shipping, and handling, as well as any restocking fees that a manufacturer may charge in association with an accepted return or cancellation. Should a manufacturer refuse to allow return or cancellation, then Client must pay Xcalable all amounts owed under the order. For more information on returns, please read Xcalable’s Returns Policy or contact your Xcalable Account Manager.
Termination of any automatically renewing order is subject to the notice requirements of the manufacturer. Client must notify its Xcalable Account Manager in writing of its intent to not renew such orders at least 30 days in advance of the deadline established by the manufacturer for non-renewal notices. Client must pay for any orders which renew because of Client’s failure to provide timely notice as specified herein.
Client hereby grants to Xcalable a security interest in the Products to secure payment in full. Client authorizes Xcalable to file a financing statement reflecting such security interest. In addition, if payments are not received as described above, Xcalable reserves the right to suspend services until payment is received.
Client will reimburse Xcalable for all costs and attorneys’ fees incurred by Xcalable in enforcing Client’s payment obligations and these Terms.
Equal Opportunity Employer
Xcalable is an equal opportunity employer and federal contractor or subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, sexual orientation, gender identity or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.
Professional Services
Client’s purchase of any professional services to be performed by Xcalable or a designated third party are governed by the Professional Services Terms and Conditions.
Third Party Resold Services
In addition to these Terms, Client’s purchase of any Third Party Resold Services, which includes software-as-a-service, infrastructure-as-a-service, platform-as-a-service, and any other cloud-based software, applications, services, functions or resources made available for use by Client or its end-users on demand, via the internet, or through a third-party provider’s services, are also governed by the Additional Terms and Conditions for Third Party Resold Services, which form a part of and are hereby integrated into these Terms.
Vendor License Agreements
If the Products include software or other products acquired pursuant to a subscription or other licensing arrangement, the manufacturer of such products may require end users to agree to additional terms and conditions, including an End User License Agreement (“EULA”) or similar agreement. It is the Client’s or other end user’s responsibility to make themselves aware of, review, understand and agree to any such additional terms and conditions and/or the terms of any such EULA or other agreement. By accepting these Terms, Client is acknowledging to Xcalable that it has reviewed, understands, and agrees to the terms of any EULA or similar agreement applicable to the Products it is purchasing from Xcalable.
Miscellaneous
Xcalable may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products or assign the right to receive payments, without Client’s consent. Client may not assign these Terms, or any of its rights or obligations herein without the prior written consent of Xcalable. Subject to the restrictions on assignment contained herein, these will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
Except as supplemented by the Professional Services Terms and Conditions and/or The Terms and Conditions for Third Party Resold Services (as applicable), no provision of these Terms will be deemed waived, amended or modified by either party unless such waiver, amendment or modification is in writing and signed by both parties, and specifically references the provision of these Terms to be modified.
Notices provided under this Agreement to Xcalable will be given in writing and deemed received upon the earlier of actual receipt or three (3) days after mailing if mailed postage prepaid by regular mail or airmail or one (1) day after such notice is sent by an overnight delivery service, in each case to:
Xcalable, Inc. d/b/a Xcaleable
Notices provided under this Agreement to Client will be given in writing and deemed received either (a) upon the earlier of actual receipt or (b) three (3) days after mailing if mailed postage prepaid by regular mail or airmail or (c) one (1) day after such notice is sent by an overnight delivery service or (d) if sent by email, on the next business day after being sent (as recorded on the device from which Xcalable sent the email) unless Xcalable receives an automated message that the email has not been delivered.
Any delay or failure by either party to exercise any right or remedy will not constitute a waiver of that party to thereafter enforce such rights.
These Terms constitute the entire agreement between Client and Xcalable relating to the sale of the Products.
In the event any section or portion of a section of these Terms are deemed unlawful or unenforceable, that section or portion of a section shall be stricken from the Terms, and the remaining terms shall continue in full force and effect.