Terms and Conditions
THESE TERMS AND CONDITIONS (“AGREEMENT”) APPLY TO YOUR ORDER AND PURCHASE OF HARDWARE, SOFTWARE, THIRD PARTY BRANDED SERVICES, AND XEREX NETWORK TECHNOLOGIES SKUABLE SERVICES (COLLECTIVELY, “PRODUCT”) SOLD BY XEREX NETWORK TECHNOLOGIES. You accept the terms and conditions of this Agreement, unless you have a separate purchase agreement signed by both your company and Xerex Network Technologies, in which case, that separate agreement will govern. Xerex Network Technologies may, from time to time and at its sole option, revise this Agreement without notice by posting the revised agreement on its web site. The Agreement posted on Xerex Network Technologies’ web site at the time Xerex Network Technologies accepts your order will govern that purchase.
Accuracy of Data/Corrections. Xerex Network Technologies obtains certain data directly from the manufacturer, publisher or supplier of Products and is not responsible for pricing, typographical or other errors in any such data. In addition, availability of third-party Product is subject to change without notice. Xerex Network Technologies reserves the right to cancel orders related to such errors or Product discontinuation or unavailability, and to correct this web site at any time, including pricing errors not detected until after Xerex Network Technologies’ confirmation or e-mail response.
Prices/Payment Terms. Prices are subject to change at any time prior to Xerex Network Technologies’ acceptance of your order. Payment terms are at Xerex Network Technologies’ sole discretion and all orders are subject to Xerex Network Technologies’ credit approval. You must provide appropriate credit references upon request and authorize us to obtain credit history from such references. You agree to pay the total purchase price for the Products, plus tax and shipping (to the extent shipping is not prepaid by you, including shipping charges billed to Xerex Network Technologies as a result of using your carrier account number or a carrier selected by you). Invoices are due and payable within the time frame and in the currency specified on the invoice, measured from the date of invoice. You agree to pay interest on all past-due amounts at the lower of one and one-half percent (1.5%) per month or the maximum rate allowed by law. You will be responsible for Xerex Network Technologies’ costs of collection for any payment default, including, but not limited to, court costs, filing fees and attorneys’ fees. In addition, if payments are not received as described above, Xerex Network Technologies reserves the right to suspend further deliveries until payment is received.
Credits. You must expend or apply any credits issued to you by Xerex Network Technologies for any reason within two years from the date the credit is issued. If not used within such period, credits will automatically expire. *
Taxes. Federal, state, and local sales use and excise taxes and all similar taxes and duties, (excluding taxes based on Xerex Network Technologies’ income, assets or net worth), are solely your responsibility. You may provide Xerex Network Technologies a tax exemption certificate, which will be subject to review and acceptance by Xerex Network Technologies.
Delivery/Title/Risk of Loss. Xerex Network Technologies will use commercially reasonable efforts to meet requested delivery times but does not guarantee delivery by a stated time and is not responsible for any damages due to delays or the failure to meet a stated delivery schedule. Xerex Network Technologies reserves the right to make deliveries in installments. Delay in delivery of one installment will not entitle you to cancel other installments. Product will be delivered to you FOB Destination (your designated facility), freight prepaid and added. Title and risk of loss shall pass to you when Product is delivered to your designated facility. Notwithstanding anything to the contrary in this paragraph, title to software Product remains with the applicable licensor(s), and software delivery occurs when it is first made available by the licensor or Xerex Network Technologies for your use. Your use rights and obligations related to the software are contained in the license agreement between you and the licensor(s). You hereby grant a security interest in all Products purchased under this Agreement to secure payment in full. Additionally, you authorize Xerex Network Technologies to execute and file a financing statement or other documents that are necessary to perfect Xerex Network Technologies’ security interest. The security interest granted under this provision constitutes a purchase money security interest, which shall terminate when Xerex Network Technologies has received all amounts due for the Product(s).
Third Party Services. Certain Services may be provided by third parties (“Third Party Services”). In the case of Third-Party Services, the third party shall be considered the contracting party, not Xerex Network Technologies, and the third party shall be the party responsible for providing the services to you. You will look solely to the third party for any loss, claims or damages arising from, or related to, the provision of such Third-Party Services. You specifically release Xerex Network Technologies from any and all claims arising from or relating to the purchase or provision of any such Third Parties Services.
Limited Warranty. PRODUCTS MANUFACTURED, PUBLISHED OR PROVIDED BY THIRD PARTIES ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTY BY XEREX NETWORK TECHNOLOGIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. Xerex Network Technologies shall pass through to you, to the extent available, any manufacturer’s/publisher’s/supplier’s written warranties associated with third party Products purchased from Xerex Network Technologies. Although Third Party Services are considered “Product” and you may purchase such services through Xerex Network Technologies, Xerex Network Technologies is not obligated to provide the services disclaims any warranty relating to Third Party Services. Xerex Network Technologies accepts no liability for any claims arising out of any act or omission, including negligence, by your third-party service provider; and any amounts associated with Third Party Services, including but not limited to taxes, will be collected solely in our capacity as an independent reseller of such Product.
PRODUCT CODES BEGINNING WITH “IVC” (XEREX NETWORK TECHNOLOGIES VALUE CENTER) ARE SOLD “AS IS.” IVC Products have been previously opened and/or the box has been damaged. IVC Products are not offered or sold as “new.” The manufacturer’s or publisher’s warranty, if any, will apply and provide the sole coverage for such IVC Products. You must look to the manufacturer, publisher or supplier of third party Products for recovery on any claim of liability and will hold Xerex Network Technologies harmless from any claim of negligence or breach of warranty.
PRODUCTS PRODUCED SOLELY BY XEREX NETWORK TECHNOLOGIES (“XEREX NETWORK TECHNOLOGIES PRODUCT”) ARE PROVIDED WITH ONLY THOSE WARRANTIES EXPRESSLY SET FORTH IN THE XEREX NETWORK TECHNOLOGIES PRODUCT SPECIFICATION. Your sole remedy and Company’s sole obligation for breach of this warranty will be reasonable efforts to correct any non-conformance or, if this cannot be accomplished, then Company will issue you a credit for, or a refund of, the purchase price and original freight paid for the Xerex Network Technologies Product.
Disclaimer of Warranty. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND YOUR SOLE AND EXCLUSIVE REMEDIES. XEREX NETWORK TECHNOLOGIES DISCLAIMS ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, OR ANY WARRANTY RELATING TO THIRD PARTY SERVICES. No agent or employee of Xerex Network Technologies or any other party is authorized to make any warranty in addition to those made in this Agreement.
Limitations on Use. You agree and represent that you are buying Product for your own internal use and not for resale. If Product purchased under this Agreement is intended for export, it may be subject to export regulations. You accept full responsibility for and agree to comply fully with all export regulations, including obtaining export licenses. The export of Products may also alter or void the manufacturer’s or publisher’s warranty. PRODUCTS OFFERED BY XEREX NETWORK TECHNOLOGIES ARE NOT DESIGNED FOR USE IN LIFE SUPPORT, LIFE SUSTAINING, NUCLEAR SYSTEMS OR OTHER APPLICATIONS IN WHICH FAILURE OF SUCH PRODUCTS COULD REASONABLY BE EXPECTED TO RESULT IN PERSONAL INJURY, LOSS OF LIFE OR CATASTROPHIC PROPERTY DAMAGE. USE IN ANY SUCH APPLICATIONS IS AT YOUR SOLE RISK.
Limitation of Liability. XEREX NETWORK TECHNOLOGIES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF INCOME, PROFITS, DATA, OPERATIONAL EFFICIENCY, USE OR INFORMATION, ARISING UNDER THIS AGREEMENT REGARDLESS OF THE FORM OF ACTION OR THEORY OF RELIEF, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Any liability for direct damages arising under this Agreement, regardless of the form of action or theory of relief, is limited to the purchase price of the Product. No action arising out of the transactions under this Agreement may be brought by you more than one (1) year after the damage, loss or expense occurred. Xerex Network Technologies is not liable for any claim made by a third party or made by you for a third party.
Termination. You may cancel any order for Product at no charge up to five (5) business days prior to scheduled shipment upon written notice to Xerex Network Technologies, unless such Product has been modified or otherwise reconfigured in accordance with your specifications. Cancellation shall not relieve your duty to pay for Products shipped, services performed, or expenses incurred by Xerex Network Technologies prior to such notice. If an order is cancelled prior to shipment, your sole remedy and Xerex Network Technologies’ sole obligation will be a full refund of the purchase price paid for the Product. Cancellation of orders following shipment must be made in accordance with the return policies of the manufacturer, publisher, or supplier of the Product.
Governing Law. THIS AGREEMENT AND ALL ORDERS SHALL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES. ANY ARBITRATION, ENFORCEMENT OF AN ARBITRATION OR LITIGATION WILL BE BROUGHT EXCLUSIVELY IN LOS ANGELES COUNTY, CALIFORNIA AND YOU CONSENT TO THE JURISDICTION OF THE FEDERAL AND STATE COURTS LOCATED THEREIN, SUBMIT TO THE JURISDICTION THEREOF AND WAIVE THE RIGHT TO CHANGE VENUE. YOU FURTHER CONSENT TO THE EXERCISE OF PERSONAL JURISDICTION BY ANY SUCH COURT WITH RESPECT TO ANY SUCH PROCEEDING. The United Nations Convention on Contracts for the International Sale of Goods will not apply to the order. Both parties are solely obligated to address and resolve all disputes associated with this Agreement or any order, including any damages or injuries to Your affiliates, and all claims related to this Agreement or any order will be brought by you in Los Angeles County, California as provided in this Agreement.
Arbitration. Any claim, dispute, or controversy (whether in contract, tort or otherwise, whether preexisting, present or future, and including, but not limited to, statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) arising from or relating to the Product or Third Party Services, the interpretation or application of this Agreement or any order or the breach, termination or validity thereof, the relationships which result from this Agreement or any order (including, to the full extent permitted by applicable law, relationships with third parties who are not signatories hereto), or Xerex Network Technologies’ or any of its affiliates’ advertising or marketing WILL BE RESOLVED BY FINAL CONFIDENTIAL AND BINDING ARBITRATION IN Los Angeles County, California, INSTEAD OF IN COURT, except that (a) You may take claims to small claims court, if You qualify for hearing by such court, and (b) if You fail to timely pay amounts due, Xerex Network Technologies may assign Your account for collection and the collection agency may pursue such claims in court limited strictly to the collection of the past due debt and any interest or cost of collection permissible under applicable law or this Agreement. Arbitration under this Agreement shall be conducted under the rules then prevailing of the American Arbitration Association. The arbitrator’s award shall be binding and may be entered as a judgment in any court of competent jurisdiction. THE RULES GOVERNING ARBITRATION ARE DIFFERENT THAN THOSE IN COURT. ARBITRATION DOES NOT INVOLVE A JUDGE OR JURY AND REVIEW IS LIMITED, BUT AN ARBITRATOR CAN AWARD THE SAME DAMAGES AS A COURT. EXCEPT AS MAY OTHERWISE BE PROVIDED IN THE AMERICAN ARBITRATION ASSOCIATION RULES OR AS OTHERWISE REQUIRED UNDER APPLICABLE LAW, YOU UNDERSTAND THAT BY INITIATING THIS ARBITRATION PARAGRAPH YOU ARE GIVING UP YOUR RIGHT TO A TRIAL IN COURT OR ADMINISTRATIVE PROCEEDING, EITHER WITH OR WITHOUT A JURY, AS A MEANS BY WHICH TO SETTLE YOUR DISPUTE. Notwithstanding any choice of law provision included in this Agreement, this arbitration agreement is subject to the Federal Arbitration Act (9 U.S.C. §§ 1-16).
Assignment. Xerex Network Technologies may assign or subcontract all or any portion of its rights or obligations with respect to the sale of Products and/or assign the right to receive payments without your consent. You may not assign this Agreement or any of its rights or obligations without the prior written consent of Xerex Network Technologies. Subject to the restrictions in assignment contained in this provision, this Agreement will be binding on and inure to the benefit of the parties hereto and their successors and assigns.
Force Majeure. Xerex Network Technologies will not be liable for failure to fulfill its obligations under this Agreement or for delays in delivery or performance due to causes beyond its reasonable control. Xerex Network Technologies’ time for performance of any such obligation will be extended for the time period of such delay, or Xerex Network Technologies may, at its options, cancel any order or remaining part thereof, without liability, upon notice to you.
Miscellaneous. No provision of this Agreement may be waived, amended or modified by either party except by a written agreement signed by both you and Xerex Network Technologies. 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. The relationship between Xerex Network Technologies and you is that of independent contractors and not that of employer/employee, partnership, or joint venture. If any part of this Agreement is found by a court of competent jurisdiction to be invalid, illegal, or unenforceable, all other parts will still remain in effect. Notices to be provided under this Agreement must be in writing and will be deemed received upon the earlier of: 1) actual receipt; 2) three (3) days after mailing, if mailed postage prepaid by regular mail or airmail; or 3) one (1) day after such notice is sent by courier or facsimile transmission. The terms and conditions applicable to all returns are set forth in Xerex Network Technologies’ Return Policy (below). Terms in effect at the time of Product purchase shall apply to any requested returns.
Entire Agreement. This Agreement constitutes the entire agreement between us regarding your purchase of Products from Xerex Network Technologies and supersedes and replaces any previous communications, representations, or agreements. XEREX NETWORK TECHNOLOGIES EXPRESSLY LIMITS ACCEPTANCE OF ORDERS FOR PRODUCTS TO THE TERMS AND CONDITIONS HEREIN. Any additional or different terms or conditions contained in any purchase order or other documents provided by you are considered material alterations to this Agreement, expressly rejected and will not be binding upon Xerex Network Technologies.
Return Policy
Policy: Unless you have a separate written agreement with Xerex Network Technologies, the return of hardware and software purchased from Xerex Network Technologies (collectively, “Product”) is subject to specific manufacturer, publisher, or distributor restrictions. Such suppliers may provide limited or no returns of Products. If the supplier accepts returns, you may return Product and Xerex Network Technologies will assist in its replacement, grant you a refund or credit against future purchases in an amount equal to the original purchase price and freight paid for the Product less any applicable restocking fees within 30 days or at Xerex Network Technologies’ sole discretion. You are responsible for shipping charges and risk of loss on all return shipments. Returns are also subject to the rights of return processes below. If you fail to return Product within the applicable Return Policy period or if the Product does not meet the rights of return and processes under this Return Policy, the Product is considered accepted by you and not returnable.
Rights of return:
Permitted product returns:
Hardware: If permitted by the manufacturer’s return policy, hardware, accessories, peripherals and parts may be returned if: 1) the packaging is unopened and still in the manufacturer’s sealed package, and 2) returned within 30 days from the date of shipment.
Software: Software may be returned if permitted by the publisher’s return policy, If the publisher does not allow the return of software, you may not return the software to Xerex Network Technologies.
Damaged products: Packages that are obviously damaged should be refused at the time of original delivery attempt. If damaged Products are accepted from the carrier, contact Xerex Network Technologies’ Client Services within 7 days after receipt of shipment to arrange for a carrier inspection and a pickup of the damaged Products. All damages should be noted on the carrier delivery record prior to the driver leaving your premises. Please save the Product and all original box and packaging. Timely receipt of this information is necessary to file a damage claim with the freight carrier and avoid delays in returns and replacements.
Order discrepancies: All order discrepancies (shortages, mislabeled product, or overages) must be reported to Xerex Network Technologies’ Client Services Department within 5 days of receipt of shipment.
Defective/Dead on Arrival (DOA): Report DOAs to Xerex Network Technologies’ Client Services within 10 days of receipt of shipment. Some manufacturers and publishers require DOAs to be handled directly through them. In such cases, Xerex Network Technologies’ Client Services will provide the manufacturer’s contact information.
Non-returnable product (not all inclusive): The following Products cannot be returned to Xerex Network Technologies:
Discontinued items
Special order items
Items for which manufacturers will not accept returns
Custom configurations of systems
Open units, and/or units that require repackaging
Units in an unsuitable resale condition
Closeout, remanufactured and refurbished Products
Process: All returns must have an Xerex Network Technologies Return Materials Authorization (RMA) number. If the return meets Xerex Network Technologies’ return guidelines, you may obtain an RMA number by contacting:
Xerex Network Technologies Client Services at 323-843-1736. Xerex Network Technologies Client Services business hours are 9AM to 5PM Pacific Standard Time; or
By email at sales@xntsystems.com .
In order to expedite a return, please have the following information on hand when requesting an RMA number: Client Account Number, Invoice Number, Serial Number (if applicable), the nature of the issue and whether the manufacturer’s seal has been broken.
Once the RMA number is issued, please note:
RMA numbers issued by Xerex Network Technologies are good for 15 business days only. Product authorized for return must be received within such time period at the facility identified on your RMA instructions.
RMA numbers cannot be extended or reissued.
Clearly mark each address label of each package being returned with the RMA number. DO NOT WRITE ON THE VENDOR’S BOX.
Xerex Network Technologies strongly recommends using a reputable shipping carrier capable of providing proof of delivery, as well as properly packing and fully insuring return shipments.
All returns MUST be 100% complete and contain:
ALL original boxes and packing material
Original UPC codes on the manufacturer’s or publisher’s boxes
All blank warranty cards, accessories and documentation provided by the manufacturer or publisher
Incomplete returns may be returned to sender or subject to a minimum 20% restocking fee at Xerex Network Technologies’ sole discretion.
Refund Policy: To the fullest extent permissible under applicable law, customer agrees that customer’s sole remedy shall be to return Product in accordance with the terms of these terms of use and sale and, if applicable, to obtain a refund or credit in the amount of the purchase price paid by customer to us, less all sums, if any, customer owes us, within 30 days or at Xerex Network Technologies’ sole discretion.
