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Terms & Conditions
All sales of equipment shall be pursuant to a written sale agreement that incorporates the following terms and conditions: TITLE AND OWNERSHIP OWNER WARRANTS THAT OWNER HAS GOOD, UNENCUMBERED TITLE TO THE EQUIPMENT AND CONVEYS SUCH TITLE TO BUYER. OWNER WARRANTS THAT: (1) THE PRODUCTS SOLD TO BUYER HEREUNDER WILL BE FREE AND CLEAR OF ALL LIENS AND ENCUMBRANCES; (2) OWNER HAS THE RIGHT TO SELL SAID PRODUCTS; AND (3) AT TIME OF SALE OWNER HAS TITLE IN AND FULL OWNERSHIP OF SAID PRODUCTS. OWNER WILL USE ALL REASONABLE EFFORTS TO CURE ANY BREACH OF THE FOREGOING WARRANTY WITHIN A COMMERCIALLY REASONABLE TIME AFTER IT RECEIVES WRITTEN NOTICE OF SUCH BREACH FROM BUYER. DELIVERY, RISK OF LOSS AND PAYMENT FOR EQUIPMENT LOCATED IN EUROPE, SHIPPING TERMS ARE EXW (INCOTERMS 2000) OWNER'S FACILITY IN EUROPE. FOR EQUIPMENT LOCATED IN THE USA, SHIPPING TERMS ARE DDU (INCOTERMS 2000) AT A DESTINATION PORT OUTSIDE OF THE USA TO BE DETERMINED. OWNER'S LIABILITY FOR DELIVERY SHALL CEASE AND TITLE AND ALL RISK OF LOSS OR DAMAGE SHALL PASS TO BUYER UPON OWNER MAKING THE EQUIPMENT AVAILABLE TO BUYER ON THE DELIVERY DATE AT OWNER'S FACILITY FOR EQUIPMENT BASED IN EUROPE AND AT A DESTINATION PORT TO BE DETERMINED FOR EQUIPMENT BASED IN THE USA, REGARDLESS OF ANY PROVISION FOR PAYMENT OF FREIGHT OR INSURANCE OR THE FORM OF SHIPPING DOCUMENTS. EQUIPMENT HELD BY OWNER FOR BUYER SHALL BE AT BUYER'S RISK AND EXPENSE. FOR THE EQUIPMENT IN EUROPE, THE BUYER SHALL BE RESPONSIBLE FOR PACKING AND LOADING THE EQUIPMENT FOR SHIPMENT AND/OR FOR CLEARING THE EQUIPMENT FOR EXPORT. FOR THE EQUIPMENT IN THE USA, THE BUYER SHALL BE RESPONSIBLE FOR PACKING AND CRATING COSTS. BUYER SHALL PAY ALL BROKERAGE, PACKING, CRATING, LOADING, TRANSPORTATION, EXPORT, CUSTOMS AND INSURANCE COSTS. STATED PRICES DO NOT INCLUDE ANY CUSTOMS DUTIES, SALES, USE, VALUE ADDED, EXCISE, GOODS AND SERVICES, FEDERAL, STATE, LOCAL OR OTHER SIMILAR TAXES. ALL SUCH DUTIES OR TAXES SHALL BE PAID BY BUYER, OR, IN LIEU THEREOF, BUYER SHALL PROVIDE OWNER WITH AN APPROPRIATE RESALE OR EXEMPTION CERTIFICATE. BUYER SHALL MAKE PAYMENT IN FULL, PRIOR TO TRANSFER OF THE EQUIPMENT. PAYMENT SHALL BE MADE IN U.S. DOLLARS BY EITHER A CASHIER'S CHECK OR WIRE TRANSFER. NO WARRANTY OF ANY KIND UNLESS SPECIFIED IN WRITING, THE EQUIPMENT AND ANY INCLUDED SOFTWARE IS USED AND SHALL BE SOLD "AS IS" AND "WHERE IS", WITH ALL FAULTS, DEFECTS AND WITHOUT ANY WARRANTY OF ANY KIND (INCLUDING, WITHOUT LIMITATION, WARRANTY OF Y2K COMPLIANCE). OWNER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE AND NONINFRINGEMENT OF THIRD PARTY RIGHTS. OWNER DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN ANY SOFTWARE WILL MEET BUYER'S REQUIREMENTS, OR THAT THE OPERATION OF SUCH SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY OWNER OR ANY REPRESENTATIVE OF OWNER SHALL CREATE ANY WARRANTY. BUYER SHALL ACCEPT AND BEAR ALL RISKS OF USE OF EQUIPMENT AND SOFTWARE. OWNER DOES NOT AND SHALL NOT WARRANT THAT THE EQUIPMENT OR SOFTWARE IS FREE OF CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT BY ANY THIRD PARTY (INCLUDING, BUT NOT LIMITED TO, PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INFRINGEMENT) AND OWNER HEREBY DISCLAIMS ANY SUCH WARRANTY. LIMITATION OF LIABILITY IN NO EVENT SHALL OWNER BE LIABLE FOR ANY DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES) RESULTING FROM OWNER'S PERFORMANCE, FAILURE TO PERFORM OR DELAY IN PERFORMING THE TERMS OF ANY SALE AGREEMENT BETWEEN BUYER AND OWNER OR THE FURNISHING, PERFORMANCE, CONDITION OR USE OF ANY EQUIPMENT OR SOFTWARE SOLD PURSUANT THERETO, WHETHER DUE TO A BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE, OR OTHERWISE. INDEMNIFICATION BUYER, ON BEHALF OF ITSELF AND ITS EMPLOYEES AND AGENTS, SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS OWNER AND XL TECHNOLOGY, LLC AND THEIR RESPECTIVE SUBSIDIARIES, PARENT COMPANIES, AFFILIATES, DIRECTORS, OFFICERS, AGENTS, PARTNERS, MANAGERS AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITIES, CLAIMS, DEMANDS, DAMAGES, CAUSES OF ACTION, LOSSES, COSTS, EXPENSES AND ATTORNEY'S FEES ARISING OUT OF ANY USE OF THE EQUIPMENT, BUYER'S BREACH OF THE DEFINITIVE SALE AGREEMENT AND ANY OTHER MATTER PERTAINING TO THE EQUIPMENT AND ANY ASSOCIATED SOFTWARE AFTER THE CONSUMMATION OF A SALE THEREOF TO BUYER. EXPORT CONTROL AND SANCTIONS COMPLIANCE THE SALE OF THE EQUIPMENT MAY BE SUBJECT TO APPROVAL OF EXPORT CONTROL AUTHORITIES AND EUROPEAN CUSTOMS REGULATORS. IF BUYER WISHES TO RESELL THE EQUIPMENT, PURCHASER AGREES TO COMPLY WITH ALL APPLICABLE EXPORT AND REEXPORT CONTROL LAWS AND REGULATIONS (INCLUDING, WITHOUT LIMITATION, THE EXPORT ADMINISTRATION REGULATIONS ("EAR") MAINTAINED BY THE UNITED STATES DEPARTMENT OF COMMERCE AND THE FOREIGN ASSETS CONTROL REGULATIONS OF THE U.S. TREASURY DEPARTMENT). SPECIFICALLY, BUYER COVENANTS THAT IT SHALL NOT - DIRECTLY OT INDIRECTLY - SELL, TRANSPORT, TRANSFER, PROVIDE, DIVERT, LOAN, LEASE, CONSIGN, OR OTHERWISE DISPOSE OF ANY EQUIPMENT, SERVICES, SOFTWARE, SOURCE CODE, OR TECHNOLOGY RECEIVED IN CONNECTION WITH THIS AGREEMENT TO ANY PERSON, ENTITY, OR DESTINATION PROHIBITED BY THE LAWS OR REGULATIONS OF THE UNITED STATES WITHOUT OBTAINING PRIOR AUTHORIZATION FROM APPLICABLE GOVERNMENT AUTHORITIES AS REQUIRED BY THOSE LAWS AND REGULATIONS. BUYER'S BREACH OF THIS EXPORT CONTROL AND SANCTIONS COMPLIANCE CLAUSE SHALL CONSTITUTE CAUSE FOR IMMEDIATE TERMINATION OF THIS AGREEMENT. THIS EXPORT CONTROL CLAUSE SHALL SURVIVE TERMINATION OR CANCELLATION OF THIS AGREEMENT. VAT COMPLIANCE AND COLLECTION FOR EQUIPMENT LOCATED IN EUROPE, EXCEPT UNDER THE CONDITIONS SET FORTH BELOW, ALL SALES ARE SUBJECT TO VALUE ADDED TAX ("VAT"), WHICH MUST BE COLLECTED PRIOR TO SHIPMENT AND REPORTED TO THE APPLICABLE GOVERNMENTAL AUTHORITIES. SALES SATISFYING THE FOLLOWING CONDITIONS ARE NOT SUBJECT TO VAT COLLECTION BUT ARE SUBJECT TO VAT REPORTING REQUIREMENTS: * 1. EQUIPMENT THAT IS SOLD AND EXPORTED FROM THE EUROPEAN UNION ("EU") WITHIN 30 DAYS AFTER PURCHASE. TITLE TO THE SUBJECT EQUIPMENT CANNOT SUBSEQUENTLY BE TRANSFERRED TO ANY OTHER PARTY PRIOR TO EXPORT. BUYER SHALL PROVIDE TO OWNER A CUSTOMS DECLARATION FORM ACCEPTABLE TO OWNER DOCUMENTING THE EXPORT OF THE SUBJECT EQUIPMENT * 2. EQUIPMENT PURCHASED BY ENTITIES WITH A VAT REGISTRATION NUMBER AND WHICH ARE SHIPPED WITHIN THE EU; BUYER SHALL PROVIDE A "CMR" FORM TO SELLER DOCUMENTING THE SHIPMENT OF THE RELEVANT EQUIPMENT WITHIN THE EU. THE PURCHASE AND THE SHIPMENT ARE REPORTABLE IN VAT FILINGS AND EU SALES LISTINGS. FOR EQUIPMENT LOCATED IN THE USA, ALL SALES THAT ARE SUBJECT TO VAT UPON THE DELIVERY OF EQUIPMENT DDU THE DESTINATION PORT, IS THE OBLIGATION OF THE BUYER AND MUST BE REPORTED TO THE APPLICABLE GOVERNMENTAL AUTHORITIES, UNLESS EXEMPT FROM VAT PAYMENT AND REPORTING REQUIREMENTS UNDER AN APPLICABLE EXCEPTION ACCEPTABLE TO THE OWNER. BUYER SHALL REIMBURSE OWNER WITHIN FIVE (5) DAYS AFTER DEMAND FOR ANY LOSS, COST OR DAMAGE (INCLUDING, WITHOUT LIMITATION, OWNER'S ATTORNEY'S FEES AND COSTS OF COLLECTION) INCURRED BY OWNER AS A RESULT OF BUYER'S FAILURE TO COMPLY WITH THE FOREGOING AND BUYER HEREBY INDEMNIFIES OWNER FROM ALL SUCH LOSSES, COSTS AND EXPENSES. |
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