Terms of Sales
PRODUCTS AND SERVICES GENERAL TERMS AND CONDITIONS
Updated: May 2023
Unless otherwise agreed in writing and signed by an authorized representative of Xcalable Organization Inc. or its applicable subsidiary, these Products and Services General Terms and Conditions (“General Terms”), as published on Xcalable Organization’s Web site located at www.Xcalable.org at the time of sale or procurement, govern all purchases and provisioning of Products (as defined below) by the entity placing an order (“Customer”) and Xcalable Organization Inc., a Delaware corporation, or its appropriate subsidiary(ies) with which Customer transacts (individually and collectively, “Xcalable Organization”).
“Products” as used herein includes the following:
“Hardware” – all products offered by Xcalable Organization other than Services or Software;
“Software” – all software applications or other functionality provided in any format, such as installed instances of software licensed by a Vendor, software provided by a manufacturer, publisher or other service provider of the Products (“Vendor”), as a service provided via subscription access, or otherwise, including any modification or customizations and updates created by the applicable Vendor as well as any third-party software or applications embedded in or included with the software products. All Software is licensed or subscribed to as a service and not sold, and any references to “purchase” or “sale” hereunder shall be deemed to refer to the license and/or subscription and corresponding right to use when referring to Software hereunder; and
“Services” – services provided by a Vendor, Xcalable Organization or Xcalable Organization’s subcontractor which may be offered as a SKU or as separately described in a Statement of Work (SOW), and which may be subject to such additional terms as may be set forth therein or other written agreement between Customer and Xcalable Organization.
By ordering any Product, Customer accepts and agrees to be bound by and comply with these General Terms.
1. Credit.
Xcalable Organization will specify Customer’s payment terms when Customer establishes its account. Customer’s credit line and payment terms are subject to change from time to time. Xcalable Organization has the right to modify, increase, decrease or terminate Customer’s credit privileges and terms at any time.
2. Orders.
A.Resale. For all of Customer’s purchases from Xcalable Organization of Products for resale: (i) Customer is required to sell the Product within the authorized territory only, in accordance with any applicable Vendor territory limitations, and comply with all U.S. trade policies and laws as well as U.S. export control laws and regulations; (ii) if Xcalable Organization requests, Customer must provide Xcalable Organization information regarding the territories where Customer intends to resell the Products from Customer; and (iii) Customer may not resell Products outside the authorized territory without Xcalable Organization’s prior written approval.
B.End Use. For all of Customer’s purchases from Xcalable Organization for its own use: (i) Customer agrees to all agreements, policies, and other terms and conditions of the applicable Vendor for the Products it orders; (ii) Customer shall not, at any time, directly or indirectly, and shall not permit any of its users or any third parties, except as expressly agreed in writing by Xcalable Organization, to: (1) copy, modify, or create derivative works of the Products, in whole or in part; (2) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Products to any third parties; (3) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any Products, in whole or in part; (4) remove any proprietary notices from the Products; or (5) use the Products in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law, including without limitation applicable export laws.
C.Software. Customer acknowledges and agrees that all Software is provided directly by the Vendor thereof to the end user pursuant to the applicable agreement and other terms and conditions provided by the Vendor and agrees to comply with any applicable Vendor terms governing the use or resale of such Software. Xcalable Organization collects fees for the Software but the end user’s agreement is with the Vendor for any claims relating to the Software or its use, and Customer agrees to hold Xcalable Organization harmless from and against any and all such claims. Xcalable Organization provides the Software “as-is”, with all faults, and the only warranties provided for Software are provided, if at all, by the Vendor of such Software.
D. Other Terms. Additional terms and conditions may apply to the purchase and use of certain Products as specified with the description of the particular Product. Customer’s orders are offers to purchase Products subject to these General Terms. All orders are subject to Xcalable Organization’s acceptance. Xcalable Organization may decline or cancel any order for any reason at any time prior to acceptance, which occurs at time of shipment, or as otherwise specified in these General Terms. Xcalable Organization’s acceptance of Customer’s order is limited to these General Terms without any modification or exception. Additional terms and conditions on any Customer document (e.g., order) will have no effect and will not change or add to these General Terms whether or not Xcalable Organization specifically objects to those terms and conditions. Customer represents and warrants that all of Customer’s employees and agents placing orders on behalf of Customer are duly authorized to commit Customer. Customer acknowledges that by saving a credit card for future use, Customer agrees to store its card details for future payments. Customer is responsible for keeping its login information secure and safe. Anyone who has access to Customer’s account will be able to make purchases using Customer’s saved card. Customer will be liable for any transactions made on Customer’s account. Customer is responsible for monitoring its orders on a daily basis. All accepted orders are binding. Customer may not cancel or amend any accepted order without Xcalable Organization’s written consent, except in the event of a material default by Xcalable Organization with respect to such order which has not been cured by Xcalable Organization within a reasonable period of time, but not less than 10 days, following receipt of written notice from Customer of such default. Any cancellation by Customer permitted under these General Terms must be in writing and specify in reasonable detail the nature of the default. Orders for non-standard Products, including Products configured to Customer’s specifications, are non-cancelable and non-returnable.
3. Price.
Customer may purchase Products at the prices prevailing at the time of shipment, as determined by Xcalable Organization. Quoted prices are subject to change without notice and, unless specifically included in a quote or invoice, do not include any taxes, handling, shipping, transportation, duties or other charges or fees. Customer is responsible for all applicable fees, duties, and all federal, state, provincial, municipal, and other government taxes on the use, sale, import (or export), and delivery of Products. Customer must present to Xcalable Organization exemption certificates, valid in the place of delivery, prior to shipment. If Customer is offered special pricing for certain orders and such pricing is made available to Xcalable Organization by a Vendor, Customer will adhere to the applicable special pricing terms and conditions provided by the Vendor. Customer agrees to pay any service fees charged for Xcalable Organization’s pass through of special pricing and other Vendor driven benefits Customer may receive, including any marketing funding, price protection and individual rebates, and agrees that pass through and payment of such benefits will be subject to Xcalable Organization having received the benefits from Vendor. The special pricing terms may require Customer to comply with certain requirements including without limitation: (a) the sale of the Products only to specifically named customers; (b) the disclosure of customer information to Xcalable Organization and the Vendor for the purpose of end-user verification; (c) the submission of copies of customer invoices, purchase orders or shipping documents to Xcalable Organization and the Vendor; and (d) selling the Products into the authorized territory(ies) as specified by the Product’s Vendor. Subject to the special pricing terms and conditions applicable for the individual Vendor and Products, breach of the special pricing terms and conditions may entitle Xcalable Organization and/or the Vendor to reclaim and invoice Customer in full for all discounts, rebates and other special price conditions granted to Customer under the special pricing terms and conditions or special price. Customer agrees and understands that any special discounts or promotions offered by Xcalable Organization are only applicable to Products that are sold into the authorized territory(ies) as specified by the Vendor. If Customer does not sell the Products into the authorized territory(ies) as specified by the Vendor, Customer agrees to reimburse Xcalable Organization the value of special discounts and promotions and indemnify Xcalable Organization from and against all losses, claims, damages, penalties, costs, and expenses caused by Customer when failing to comply with this provision.
4. Payment.
Customer agrees to pay all charges according to the payment terms established in each invoice for Products it acquires from Xcalable Organization. Customer waives any right it may have at law, in equity, under contract or otherwise to set-off or exercise any similar remedy against Xcalable Organization in whole or in part, any sum that Xcalable Organization or any of its subsidiaries may owe Customer. Xcalable Organization may apply payments to any of Customer’s accounts. If Customer defaults on any payment to Xcalable Organization, Xcalable Organization may reschedule, suspend, or cancel any outstanding delivery or order and declare all outstanding balances under all invoices immediately due and payable. Customer agrees to pay interest in the amount of 1.5% per month, or the highest rate permitted by law, whichever is less, on any payment past due, pursuant to the terms set forth on each invoice until collected. Except as otherwise provided under applicable law, any credits provided by Xcalable Organization will automatically expire if not used within 12 months. If Customer purchases Products from Xcalable Organization through a third-party marketplace or platform, Customer hereby expressly acknowledges and agrees that these General Terms will govern such purchases, notwithstanding any third-party terms to the contrary.
Customer’s payment obligations to Xcalable Organization are not dependent on payment to Customer by any end-user or other third-party, and in no event will Customer be relieved of Customer’s payment obligation(s) to Xcalable Organization hereunder when due, in whole or in part, based on any failure or inability of Customer to collect payment from any third-party.
5. Transportation.
All deliveries of Hardware to destinations in the United States, excluding its territories and possessions, will be made FOB origin Xcalable Organization’s designated location and deliveries of Products to destinations outside of the United States will be made Ex Works (Incoterms 2020). Title to and risk of loss, damage or delay to Hardware will pass to Customer upon Xcalable Organization’s tender of the Hardware to the transportation provider. After transportation of a shipment of Products from Xcalable Organization has commenced, Customer will not divert the shipment to a different consignee or destination point without Xcalable Organization’s written approval. If Xcalable Organization arranges transport on Xcalable Organization’s account, transportation will be arranged, and charges will be added to Customer’s invoice in accordance with Xcalable Organization’s transportation policy at the time of shipment unless waived by an authorized representative of Xcalable Organization in writing. Xcalable Organization is not responsible for spotting, switching, demurrage or other transportation charges unless agreed in writing. Xcalable Organization is not liable for any delays in delivery or for partial or early deliveries. If Customer directs Xcalable Organization to charge transportation fees to a third-party account number or to ship “freight collect”, Customer is responsible for all transportation and accessorial charges associated with the order and remains responsible for cargo loss and damage in transit claims with the transportation provider. Xcalable Organization is not liable for any Customer requirements not stated in these General Terms. Customer or the consignee receiving delivery must accept deliveries of all shipments, including partially damaged or “short” shipments, and must inspect the Products and secure written acknowledgement from the transportation provider for any shortages, loss, damage or nonconformance. Customer must notify Xcalable Organization in writing within three days of receipt of any delivery of any shortages or non-conforming Products. If Customer fails to notify Xcalable Organization with such three-day period of any shortages or non-conforming Products, the Products will be considered accepted.
Customer will have the exclusive responsibility for filing claims for cargo loss, damage, or delay (“Cargo Claims”) with the appropriate transportation provider. Upon Customer’s written request, Xcalable Organization will assist Customer in filing Cargo Claims with the transportation provider; such assistance to be limited to furnishing Customer such information and documentation needed to establish the quantity and condition of the Products at origin. Customer will file Cargo Claims in writing with the appropriate transportation provider within nine months of delivery of the shipment or, in the case of delay or non-delivery, within nine months of the date the shipment should have been delivered. Lawsuits for cargo loss, damage or delay must be filed no later than two years from the date a claim is denied, in whole or in part, by the transportation provider.
6. Returns.
Customer may only return Products as permitted in these General Terms. Products are otherwise non-returnable, and the prices and fees are non-refundable. Products damaged after receipt may not be returned. In order to be eligible to receive credit for returned Products, Customer must adhere to Xcalable Organization’s current returns processing guidelines. Customer must obtain a valid return merchandise authorization number (“RMA”) from Xcalable Organization for all returns prior to returning any Product. Xcalable Organization has no obligation to issue RMAs. Customer is responsible for ensuring that the RMA is clearly visible on the address label of the Product packaging and for complying with all other Xcalable Organization requirements provided to Customer when the RMA is issued. Unless otherwise agreed in writing by Xcalable Organization, all Product returns from Customer are FOB destination Xcalable Organization’s designated facility, and title and risk of loss will transfer to Xcalable Organization upon receipt and acceptance of returned Products at Xcalable Organization’s facility. Xcalable Organization may refuse delivery of any package without a valid, clearly visible RMA. Except for defective or damaged Products, all Products must be returned with the original packaging intact (including manufacturer’s shrink wrap) and otherwise in unused, resalable condition. Credit will be provided for Product returned in accordance with Xcalable Organization’s return policies at the time the RMA is issued. If Customer returns any Products without Xcalable Organization’s authorization or does not comply with Xcalable Organization’s return requirements, those Products may be subject to return to the shipping location and, if refused, Xcalable Organization may consider the Products abandoned and dispose of them, without crediting Customer’s account. Xcalable Organization may charge a restocking fee for handling any Product that is not returned in accordance with these General Terms. Xcalable Organization’s sole liability for any returned Products will be acceptance of their return and issuance of credits pursuant to Xcalable Organization’s returns processing guidelines.
7. Warranties/Indemnities.
Customer acknowledges that Xcalable Organization is not the manufacturer of the Products. Product warranties, if any, are provided by the Vendor of the Products. Xcalable EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND COVENANTS, EITHER EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ANY PRODUCTS, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. ALL PRODUCTS AND INFORMATION ARE PROVIDED OR MADE AVAILABLE TO CUSTOMER “AS IS.” CUSTOMER SHALL NOT USE OR RESELL THE PRODUCTS IN ANY MANNER NOT EXPRESSLY PERMITTED BY THE VENDOR OF SUCH PRODUCT(S), INCLUDING FOR ANY INHERENTLY DANGEROUS USE, AS THE PRODUCTS ARE NOT SPECIFICALLY DEVELOPED OR PROVIDED BY ITS VENDOR FOR SUCH USES, EXCEPT AS A VENDOR MAY EXPRESSLY AGREE OTHERWISE. WITHOUT LIMITATION OF THE FOREGOING, CUSTOMER SHALL NOT USE THE PRODUCTS IN CONNECTION WITH ANY OPERATIONS OF NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATIONS.
To the extent authorized, Xcalable Organization will pass through to Customer any transferable Product warranties, indemnities, and remedies provided to Xcalable Organization by the Vendor including any such warranties and indemnities for intellectual property infringement. Customer’s, its affiliates’, and their respective customers’ sole and exclusive remedy relating to the Products will be the remedy afforded by the applicable Vendor of such Products to such parties. Services performed by Xcalable Organization itself (and not by any Vendor or subcontractor) will be performed in a professional and workmanlike manner in accordance with the applicable quotation or SOW. Any applicable warranty period for such Services will be specified in the service description or SOW. As its sole remedy, Customer may request Xcalable Organization re-perform such Services that do not conform to the warranty within the applicable warranty period. Customer warrants and represents it will investigate the validity and accuracy of all orders for Products placed with Xcalable Organization, including orders for delivery of Products to third parties or to non-Customer destinations, and that Customer is solely responsible for the accuracy of all shipment and delivery instructions to Xcalable Organization. Under no circumstances will Xcalable Organization be obligated to investigate, validate, confirm, or reconfirm Customer’s delivery orders, shipment or delivery instructions or the identity of consignee/receiving personnel at destination, nor will Xcalable Organization be liable for incorrect or inaccurate shipment instructions or consignee or destination information.
Xcalable IS NOT RESPONSIBLE FOR AND HAS NO DUTY TO DEFEND, INDEMNIFY, OR HOLD HARMLESS CUSTOMER, ITS AFFILIATES, THEIR CUSTOMERS, OR ANY OTHER PARTY, FROM OR AGAINST ANY CLAIMS, DEMANDS, OR CAUSES OF ACTION, INCLUDING ANY DAMAGES, COSTS OR EXPENSES INCURRED BY SUCH PARTIES, ARISING FROM OR RELATING TO THE ACTUAL OR ALLEGED PRODUCT LIABILITY, BREACH OF SECURITY, LOSS OF DATA, OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS RELATED (DIRECTLY OR INDIRECTLY) TO THE MANUFACTURE, SALE, OR USE OF THE PRODUCTS. Customer warrants that it has all necessary legal rights to all intellectual property it provides to Xcalable Organization. CUSTOMER WILL INDEMNIFY, DEFEND AND HOLD HARMLESS Xcalable, ITS AFFILIATES, AND ITS VENDORS, AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY LIABILITIES, LOSSES, DAMAGES, COSTS OR EXPENSES OF ANY KIND (INCLUDING REASONABLE ATTORNEYS’ FEES AND DISBURSEMENTS) ARISING OR RESULTING FROM CLAIMS, DEMANDS, ACTIONS OR PROCEEDINGS OF ANY KIND ARISING FROM OR RELATING TO: (i) CUSTOMER’S USE, MARKETING, DISTRIBUTION OR SALE OF PRODUCTS IN A MANNER OTHER THAN AS SPECIFIED IN PRODUCT DESCRIPTIONS OR SPECIFICATIONS; (ii) Xcalable’S OR ITS VENDOR’S COMPLIANCE WITH DESIGNS, SPECIFICATIONS, OR INSTRUCTIONS PROVIDED BY CUSTOMER; (iii) CUSTOMER’S BREACH OF THESE GENERAL TERMS OR OTHER AGREEMENT WITHXcalable OR ACTS OR OMISSIONS OF CUSTOMER, ITS AFFILIATES, ITS AGENTS, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS OR DIRECTORS; OR (iv) VIOLATION OR ALLEGED VIOLATION OF ANY APPLICABLE LAWS OR REGULATIONS BY CUSTOMER OR ITS AFFILIATES.
8. Limitation of Liability.
Xcalable Organization will have no liability for: (i) failure to allocate or reserve any Product for Customer; (ii) failure to deliver Products within a specified time period; (iii) availability and/or delays in delivery of Products; (iv) discontinuation of Products, product lines, or any part thereof; (v) cancellation of any orders; or (vi) shortages on shipments of Product shipped under seal where the seal is not intact upon delivery by the transportation provider. THE ONLY LIABILITY Xcalable WILL HAVE WITH RESPECT TO ANY DAMAGED OR DEFECTIVE PRODUCTS WILL BE THE RETURN RIGHTS DESCRIBED HEREIN. CUSTOMER AGREES THAT IXcalable’S LIABILITY FOR DAMAGES ARISING UNDER THESE GENERAL TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WILL BE LIMITED TO ACTUAL, PROVEN, DIRECT DAMAGES AND WILL NOT EXCEED THE NET AMOUNT PAID TO Xcalable BY CUSTOMER FOR THAT PRODUCT WHICH IS THE SUBJECT OF THE CLAIM. TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER WAIVES ANY CLAIMS, DEMANDS, CAUSES OF ACTION, OR RECOVERIES FOR INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR OTHERWISE WITH RESPECT TO THE SALE OF THE PRODUCTS, FAILURE TO PERFORM IN ACCORDANCE WITH THE GENERAL TERMS, OR ANY PRODUCTS OR INFORMATION, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INJURY TO PERSONS OR PROPERTY, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION OR LOSS OF GOODWILL, LOSS OF DATA, OR SECURITY BREACH, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, AND EVEN IF Xcalable HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING ANY TORT OR STATUTORY CAUSES OF ACTION. CUSTOMER EXPRESSLY WAIVES ALL CLAIMS FOR THOSE DAMAGES. THIS PROVISION WILL SURVIVE ANY TERMINATION OF THESE GENERAL TERMS. THE OBLIGATIONS OF Xcalable. AND ANY OF ITS SUBSIDIARIES UNDER THESE GENERAL TERMS ARE THE SEVERAL OBLIGATIONS OF EACH SUCH ENTITY, AND NOTHING HEREIN WILL CREATE ANY JOINT AND SEVERAL LIABILITY BETWEEN OR AMONG Xcalable AND ANY OF ITS SUBSIDIARIES.
9. Publicity.
Except for any announcement intended solely for internal distribution by either party or any disclosure required by legal, accounting, or regulatory requirements, all media releases, public announcements, or public disclosures by either party or its employees or agents relating to these General Terms, the relationship between Xcalable Organization and Customer, or including the marks of the other party or any affiliate of that party, must be approved in writing by the other party prior to release.
10. Public Sector.
When purchasing Products for resale to or in support of public sector customers, including those in the federal, state, and local governments and education markets, Customer agrees to provide all applicable public sector customer requirements to Xcalable Organization at the time that Customer requests a quote or places an order. The Customer will send those terms to Xcalable Organization, along with the order or request for quote including the procuring or receiving government agency and if available the applicable prime contract number. Xcalable Organization’s receipt of those terms does not constitute acceptance of said terms or acceptance of an order. Questions regarding acceptance of flow-down terms and conditions should be directed to Xcalable Organization at publicsector_programs@ingrammicro.com. Customer understands and agrees that Xcalable Organization is a distributor of “Commercial Items” as defined in Federal Acquisition Regulation (“FAR”) 2.101. Customer further agrees that, for federal contracts, Customer will only flow-down to Xcalable Organization the clauses that are required to be inserted in a subcontract for Commercial Items, as set forth in FAR 52.244-6(c)(1) or an applicable agency FAR supplement. To the extent that Customer believes that additional FAR and/or agency FAR supplemental clauses apply because they are mandatory flow-downs to which the Customer has agreed to with its federal government customer, Customer will list those clauses, and the basis for their inclusion, in the email to Xcalable Organization. Customer will receive only those rights in technical data provided by the Vendors. In no event will Customer receive unlimited rights in data, software, or intellectual property rights provided by the Vendors or any other third party.
11. Support, Site Access, and Security Requirements.
When purchasing Products for resale, and to ensure proper implementation, warranty, service, and support of the customer environment, Customer agrees to provide written guidance of any security requirements for access to facilities, systems, and networks that is necessary for Customer’s performance of an order. The guidance should outline all the security requirements associated with information, networks and systems being supported and accessed including requirements for personnel. In the case of public sector customers including any Federal, State or Local Government agency, Prime Contractor or Subcontractor, the Customer must provide the same written guidance of any security requirements as stated above and include all applicable security forms and contract flow down clauses. All contracts and orders for Federal Government customers must provide security guidance in accordance with Federal Acquisition Regulations, including but not limited to FAR clause 52.204-2, Security Requirements and FAR Subpart 4.4 – Safeguarding Classified Information within Industry, by providing a Form DD-254 when applicable. The security guidance provided will be coordinated through Xcalable Organization’s Security Office and all applicable requirements will be communicated to the Vendor. It is expected that all security requirements and guidelines will be specified to include issuance of a Form DD-254 where needed. The requirements will be provided to and extend to all subcontractors and will cover the entire period of performance including the full warranty support period for the solution provided.
12. Data Privacy.
Customer hereby grants Xcalable Organization and the applicable Vendors a non-exclusive, non-transferable, royalty-free, worldwide right to use the electronic data specifically pertaining to Customer and/or Customer’s users and customers that is processed by Xcalable Organization and the Vendors (collectively, “Data”) strictly for the limited purpose of providing the Products to Customer and/or Customer’s customers. If Customer is a reseller, Customer agrees that Customer has received proper consent from Customer’s customers to provide their information to Xcalable Organization and Vendors for use in connection with Products or Customer complies with an alternative legal basis for providing their information to Xcalable Organization. By Customer’s or Customer’s customers’ use of the Products, Customer agrees that Xcalable may process Data in accordance with our Privacy Statement, available at (Privacy Statement). Customer or Customer’s customers’ use of Products may also be subject to the privacy policies of the Vendor.
13. Intellectual Property.
Nothing herein grants any rights to either party in any intellectual property of the other except for the limited rights expressly set forth herein. Any property developed by you using Services performed by Xcalable Organization belong to Xcalable Organization – this includes the development of service connectors (a software mechanism capable of processing requests that relates such Services to Customer’s or a third party’s environment) used or developed for interacting with such Services.
14. Inspection of Records.
Customer will permit the inspection of all records pertaining to the business relationship with Xcalable Organization by authorized agents or representatives of Xcalable Organization and the audit and verification of all charges and reimbursements within the scope of these General Terms. Xcalable Organization agrees to notify Customer of its desire to inspect its records at least 10 days in advance.
15. Restrictions.
Customer agrees to adhere to all applicable Vendor terms and conditions, channel policies and program requirements, including without limitation, Vendor’s restrictions regarding Product use, distribution, resale, prohibited customers, territory, etc. Customer is solely responsible for ensuring its adherence to any and all such restrictions. Customer may not alter or modify the Products in any way or combine the Products with any other product or material not authorized by Xcalable Organization and/or the Vendor, as applicable.
16. General.
Neither party will be responsible for delays in performance due to events of force majeure, including, without limitation, fire, flood, tornado, earthquake, war, riot, insurrection, strike, lockout, slowdown, epidemic, quarantine restriction, delay in transportation, labor shortage or strikes, materials or manufacturing facility shortage, accidents, boycott, embargo or any act or regulation of government or governmental authority and other contingencies beyond such party’s control resulting in impossibility or delay of performance.
Each party agrees to abide by all laws and regulations applicable to its performance of its obligations under these General Terms.
Neither party has made, and will not make, any direct or indirect payment, offer to pay, or authorization to pay, any money, gift, promise to give, or authorization of the giving, of anything of value to any government official, or the immediate family of any such official, for the purpose of influencing an act or decision of the government or such individual in order to assist, directly or indirectly, Customer or Xcalable Organization in obtaining or retaining business, or securing an improper advantage. If Customer delivers the Products to its customer who may use the Products outside the United States, Customer will advise its customer that the Products are controlled for export by the U.S. Department of Commerce and that the Products may require authorization prior to export from the United States or re-export. Customer and Xcalable Organization are independent contractors. Nothing stated in these General Terms will be construed as creating the relationship of employer/employee, franchisor/franchisee, partners, or principal/agent between the parties. Neither party will make any warranty, guarantee or representation, whether written or oral, on the other party’s behalf.
These General Terms will be construed and enforced in accordance with the laws of the State of California, excluding its conflicts of law rules, and the parties agree to and submit to personal jurisdiction and exclusive venue in the state and federal courts situated in Orange County, California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these General Terms. Customer must pay to Xcalable Organization all costs and expenses, including without limitation, reasonable attorney’s fees and the fees of any collection agency and court costs, incurred by Xcalable Organization in exercising any of its rights or remedies under, or enforcing or defending any of the terms, conditions, or provisions of, these General Terms.
All notices, requests, demands, and other communications must be in writing and may be given by: (i) personal delivery; (ii) registered or certified mail, return receipt requested; or (iii) nationally recognized courier services to the party at its official corporate address. Notices to Xcalable Organization must be sent to: Xcalable Organization Inc., 3351 Michelson Drive, Suite 100, Irvine, CA 92612-0697, Attention: Legal Department.
Customer may not assign or delegate its rights or duties under these General Terms, by operation of law or otherwise, in whole or in part, without the prior written consent of Xcalable Organization. Any direct or indirect change of control of Customer will be deemed an assignment. Any attempted assignment by Customer without that consent will be null and void without any force or effect. Xcalable Organization’s affiliates may perform its obligations arising under these General Terms.
These General Terms will be binding upon and, except as otherwise provided herein, will inure to the benefit of the parties hereto and their respective successors and assigns.
If any provision of these General Terms is held to be unenforceable, the enforceability of the remaining provisions will not in any way be affected.
Failure or delay of either party to exercise a right under these General Terms will not operate as a waiver, nor will any single or partial exercise of a right preclude any other future exercise of that right.
The parties agree to use electronic signatures and that their respective electronic signatures will be legally enforceable.
No termination of these General Terms will affect any rights or obligations of either party which: (i) are vested pursuant to these General Terms as of the effective date of such termination; or (ii) by their sense and context are intended to survive completion of performance or termination of these General Terms, including, without limitation, Confidentiality, Warranties / Indemnities, and Limitation of Liability, all of which will survive.
These General Terms are intended to be the sole and complete statement of the obligations and rights of the parties as to all matters covered in these General Terms, and supersede all previous understandings, agreements, negotiations, and proposals; however, the purchase, sale, resale, and marketing of any Services we make available is additionally governed by separate written agreement(s) between us and is supplemented by these General Terms.
These General Terms may be modified by Xcalable Organization from time to time in its sole discretion. It is Customer’s responsibility to check these General Terms regularly. Any modification to these General Terms will be effective once posted on the Site. Further orders of Products after any such modification will signify Customer’s acceptance of such updated General Terms.
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