Revised on November 5, 2020
1. General Scope
1.1 These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of Goods (“Goods”) and provision of services (“Services”) by X2X Ltd. (“X2X”) to the buyer (“Customer”). Unless X2X has approved of such in writing, any terms or conditions which conflict with, deviate from or modify the terms and conditions delineated herein shall not be binding on X2X irrespective of whether X2X had prior notice of such terms or conditions.
1.2 The accompanying confirmation of sale (the “Sales Confirmation”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior and contemporaneous understandings, agreements, negotiations, representations, warranties, and communication, both written and oral. These Terms prevail over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted its purchase order or such terms. Fulfillment of Customer’s order does not constitute acceptance of Customer’s terms and conditions and does not serve to modify or amend these Terms.
1.3 Notwithstanding anything to the contrary in this Agreement, X2X may, from time to time change the Services without the consent of Customer provided that such changes do not materially affect the nature or scope of the Services, of the fees or any performance dates set forth in the Sales Confirmation.
2. Contract Formation
2.1 Any offers made by X2X and not yet accepted by the Customer shall be without obligation and subject to change without notice provided that the parties have not agreed to a lock-up period.
2.2 The Customer is bound to his, her or its order for a period of four weeks after its receipt by X2X. A contract is deemed to exist upon the Customer‘s receipt of X2X‘s written Sales Confirmation regarding the order or the effective delivery of the applicable Goods to the Customer pursuant to the Terms hereof.
2.3 The scope and type of delivery for an order shall be established solely through X2X‘s written Sales Confirmation relating to such order. Any errors or omissions in X2X‘s sales prospectus, pricelists, offer documents or other related documentation may be amended without X2X incurring any liability for damages or compensation in relation to such errors or omissions.
3. Payment, Set-Off, Withholding
3.1 The purchase price for the contract shall be that price which is specified by X2X for such contract and shall apply ex works, exclusive of any value added tax; if the price is not indicated, the pricelist then in effect shall apply. If the sale has occurred through delivery to a place other than the place of performance (at the Customer‘s request), any costs incurred for packaging, shipping, freight, customs or other related costs will be charged separately. If the Customer fails to accept delivery when tendered by X2X, it must nevertheless make payment.
3.2 In the event that the manufacturing costs for the contracted Goods (including, but not limited to, wages, salaries, materials or production costs) rise subsequent to formation of the contract, X2X shall have the right to increase the purchase price in accordance therewith.
3.3 Invoices from X2X are due upon X2X making the Goods available to the Customer and are payable without deductions within 10 days of the issuance thereof. Upon a default in payment, any overdue amounts will accrue interest at a rate of 8% above the basic interest rate. X2X reserves its right to assert any further claims regarding damages resulting from a default.
3.4 The Customer can offset its payments only if its counterclaim thereto has been judicially sustained or recognized by a declaratory judgment. A right to withholding shall only apply to counterclaims arising specifically from the contract which is the subject of such withholding.
3.5 Customer agrees to reimburse X2X for all reasonable travel and out-of-pocket expenses incurred by X2X in connection with the performance of the Services.
4. Delivery of Goods and Performance of Services
4.1 The dates for delivery, making available of the Goods, and performance of Services are not binding unless a date for such has been agreed to in writing by X2X. X2X will use reasonable efforts to meet any delivery and performance dates specified in the contract, and any such dates shall be estimates only.
4.2 Unless otherwise agreed in writing by the parties, X2X shall deliver the Goods to X2X’s location (the “Delivery Point”) using X2X’s standard methods for packaging and shipping such Goods. Customer shall take delivery of the Goods within 14 days of X2X’s written notice that the Goods have been delivered to the Delivery Point. Customer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point and will unload and release all transportation equipment promptly, so X2X incurs no demurrage or other expense.
4.3 X2X is entitled to carry out advance and/or partial deliveries of the Goods. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Customer’s purchase order.
4.4 With respect to the Services, Customer shall (a) cooperate with X2X in all matters relating to the Services and provide such access to Customer’s premises, and such office accommodation and other facilities as may reasonably be requested by X2X, for the purposes of performing the Services; (b) respond promptly to any X2X request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for X2X to perform Services in accordance with the requirements of this Agreement; (c) provide such Customer’s materials or information as X2X may reasonably request and Customer considers reasonably necessary to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
4.5 In the event that X2X is unable to deliver or make the Goods or Services available to the Customer due to events of force majeure lasting for a period of three months or more, X2X‘s obligation to deliver or make the Goods and Services available shall be deemed extinguished in its entirety.
4.6 X2X shall be entitled to postpone delivery or availability of the Goods and Services for the entire duration of the force majeure events.
4.7 Events of force majeure shall be deemed to be any events which are beyond X2X‘s control and which make delivery impossible or unreasonably difficult, including, for example, strikes, pandemic, lawful lockouts, war, import or export prohibitions, scarcity of energy supplies or raw materials, or the delayed delivery to X2X of goods and services required for the performance of its obligations hereunder for reasons beyond X2X‘s control. If X2X is released from its obligations as described in Section 4.5 above, the Customer shall be entitled to rescind the applicable contract. Compensation for damages for nonperformance can be claimed by the Customer only if the default in delivery is due to X2X‘s gross negligence or is intentionally caused by X2X.
5. Transfer of Risk
5.1 The risk of loss or damage to the Goods passes to the Customer as soon as X2X has dispatched the Goods from its premises (i.e., plant, factory or warehouse) or upon the surrendering of the Goods to the applicable carrier or to the Customer itself. The above shall also apply in the event that X2X serves as the carrier for the Goods.
5.2 If the forwarding or collection of the Goods is delayed due to reasons attributable to the Customer, the risk of loss shall be transferred to the Customer upon the readiness of the Goods for dispatch.
6. Defective Goods
6.1 The Customer must inspect the delivered Goods immediately upon their receipt. The Customer must notify X2X in writing of any apparent defects within one week of the Goods‘ receipt. X2X must be notified of hidden defects in writing within two weeks of their emergence but in no event later than one year after delivery of such Goods. In the event that the Customer fails to meet the aforementioned notification obligations, the Goods shall be deemed to have been accepted as-is and the rights set forth in Sections 6.2 and 6.3 below shall not be in effect.
6.2 In the event that the Customer has notified X2X of defects in a timely manner and is thus eligible to make a claim for reperformance, X2X shall have the right, at its own cost, either to remedy the defect or to redeliver conforming Goods.
6.3 If X2X twice fails to remedy a defect, X2X is otherwise unable to accomplish its re-performance obligation, or fails to do so within a timely period reasonably set forth by the Customer, the Customer shall be entitled to reduce the purchase price under the contract or to cancel the contract. Instead of seeking performance, the Customer can make a claim for damages or for compensation of expenses. However, if the Customer elects to rescind the contract it shall have no right to make any claim for damages with respect to the defective Goods.
6.4 Provided that X2X has not acted fraudulently, any claims of the Customer regarding the Goods shall become void and unenforceable one year after delivery of the applicable Goods.
6.5 In the event that the Goods are received without defect and the Customer wishes to return the Goods, including instances where the Goods have been ordered in error, X2X reserves the right to charge a fee up to 15% of the total cost of the Goods in respect to incurred costs relating to re-stocking. Goods must be returned in saleable condition and in all original packaging. Any accessories must be in same saleable condition and in all original packaging. X2X will credit the Customer the full amount paid minus the restocking fee upon receipt of the Goods in acceptable condition as detailed above. Any shipping fees will not be credited.
7. Limited Warranty
7.1 X2X warrants to Customer that for a period of one (1) year from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to their published specifications and will be free from material defects in material and workmanship.
7.2 X2X warrants to Customer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement.
7.3 EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 7.1 AND 7.2, X2X MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
7.4 Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 7.1. For the avoidance of doubt, X2X MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
7.5 X2X shall not be liable for a breach of the warranties set forth in Sections 7.1 and 7.2 unless: (i) Customer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to X2X within 30 days of the time when Customer discovers or ought to have discovered the defect; (ii) if applicable, X2X is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 7.1 to examine such Goods and Customer (if requested to do so by X2X) returns such Goods to X2X's place of business at X2X’s cost for the examination to take place there; and (iii) X2X reasonably verifies Customer's claim that the Goods or Services are defective.
7.6 X2X shall not be liable for a breach of the warranty set forth in Sections 7.1 or 7.2 if: (i) Customer makes any further use of such Goods after giving such notice; (ii) the defect arises because Customer failed to follow X2X’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Customer alters or repairs such Goods without the prior written consent of X2X.
7.7 Subject to Sections 7.5 and 7.6, with respect to any such Goods during the Warranty Period, X2X shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if X2X so requests, Customer shall, at X2X’s expense, return such Goods to X2X.
7.8 Subject to Sections 7.5 and 7.6, with respect to any Services subject to a claim under the warranty set forth in Section 7.2, X2X shall, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate.
7.9 THE REMEDIES SET FORTH IN SECTIONS 7.7 and 7.8 SHALL BE THE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND X2X'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 7.1 and 7.2, RESPECTIVELY.
9. Limitation of Liability
9.1 IN NO EVENT SHALL X2X BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE,REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT X2X HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
9.2 IN NO EVENT SHALL X2X'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO X2X FOR THE GOODS AND SERVICES SOLD HEREUNDER or $500, WHICHEVER IS LESS.
9.3 To the extent that X2X‘s liability is excluded or limited, such exclusion or limitation shall apply to any persons or entities (including, but not limited to X2X’s parent company and affiliates) employed by X2X in the performance of its contractual obligations.
10. Retention of Title
10.1 Ownership of the delivered Goods shall remain with X2X until it has received full payment for such Goods. Title to the Goods shall first pass to the Customer upon X2X‘s receipt of all payments which are due under the current applicable contract.
10.2 Prior to obtaining title to the Goods, the Customer is not entitled to pledge, to assign by way of security, to process or to alter the Goods. The Customer is, however, authorized to sell the Goods to third parties in the ordinary course of business unless a non-assignability agreement regarding the consideration exists between the Customer and the third party. If a third party acquires an interest in the Goods through a resale to such party, the Customer agrees to assign to X2X all of its correlating rights and claims against such third party. X2X hereby accepts such assignment.
10.3 Any combination, amalgamation and/or processing of the Goods shall be deemed to have been made on behalf of X2X. X2X shall acquire title to the resulting product in the ratio of the invoiced value of the Goods and Services provided by X2X to the total invoiced value of the resulting product. If the Goods have been re-sold to a third party, the assignment of rights and claims performed in accordance with Section 10.2 above shall be valid solely up to the amount of the invoiced value of Goods and Services provided by X2X.
10.4 Upon a default in payment by the Customer, X2X has the right to disclose to any applicable third party that it holds an interest in the Goods pursuant to the assignment delineated above and to assert any of its claims directly. The Customer is obligated to provide and deliver to X2X all documentation required for the assertion of such claims. The Customer must also make available to X2X, completely and in a timely fashion, all information about any events that might affect the obligations described above.
11. Confidential Information
All non-public, confidential or proprietary information of X2X, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by X2X to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by X2X in writing. Upon X2X’s request, Customer shall promptly return all documents and other materials received from X2X. X2X shall be entitled to injunctive relief for any violation of this Section 11. This Section 11 does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
12. Data Privacy
13. Jurisdiction; Governing Law
13.1 The parties hereto agree that the exclusive jurisdiction for any transaction and/or contract between the parties will be subject to the laws of England and Wales.
13.2 The relationship of the parties hereto shall be exclusively governed by and in all respects construed in accordance with the laws of England and Wales with no application whatsoever of the United Nations sales law.
14.1 Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. If a legal Notice is served upon X2X, Customer will also email a copy of the Notice to X2X’s Legal Department at: firstname.lastname@example.org.
14.2 Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any applicable jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
14.3 Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following: Limitation of Liability, Jurisdiction and Survival.