TERMS AND CONDITIONS
All terms and conditions are subject to change without notice.
Customer shall be deemed to have made an unqualified acceptance of these Terms and Conditions and it shall become the agreement between the parties on the earliest of the following to occur: (i) EXOLogix, Inc.’s (“EXOLOGIX”) receipt of Customer’s purchase order or issuance of EXOLOGIX’s Sales Order form or Customer’s acknowledgment of EXOLOGIX’s Sales Order, Acknowledgment, Invoice or these Terms and Conditions; (ii) Customer’s payment of any amounts due to EXOLOGIX; (iii) Customer’s delivery to EXOLOGIX of any material to be furnished by Customer; (iv) Customer’s receipt of the Products; or (v) any other event constituting acceptance under applicable law.
Cancellation or Modification:
Customer may not cancel or modify its order except upon terms accepted in writing by EXOLOGIX. In the event of such cancellation or modification, Customer shall compensate EXOLOGIX for all resultant costs and damages. All undelivered Products may be cancelled by EXOLOGIX, without incurring any liability to Customer, if production becomes impracticable.
F.O.B. EXOLOGIX warehouse, Salt Lake City, Utah, USA or EX WORKS EXOLOGIX warehouse, Salt Lake City, Utah, USA, pursuant to INCOTERMS 2000, as may be amended from time to time. Freight charges will be prepaid and added to the invoice. Unless otherwise requested, EXOLOGIX will select the best way for shipping based on types of products ordered. Contact EXOLOGIX if you have special shipping requirements. Customers may choose to have shipping billed directly to their shipping provider account upon request.
The EXOLOGIX warehouse is available for product shipment Monday-Friday, from 11:00am-5:00pm. Please contact the EXOLOGIX Warehouse/Shipping Manager for alternate shipping schedules.
EXOLOGIX will use its reasonable business efforts to meet scheduled delivery dates, but does not guarantee to meet such dates. Time for delivery shall not be of the essence. Failure by EXOLOGIX to make any shipments by scheduled dates does not constitute a cause for cancellation and/or for damages of any character. In the event of delay in delivery requested by Customer or caused by Customer, EXOLOGIX will store all Products at Customer’s risk and expense.
To the extent applicable, the Products and all shipments are subject to compliance with the U.S. Export Administration Act, as amended, the regulations thereunder and all other U.S. laws and regulations concerning exports and re-exports. Customer agrees to comply with all such laws and regulations.
Pricing and Specifications:
All prices are shown in U.S. dollars. All prices are subject to change up to the date of shipment without notice. Any product may be discontinued without notice. We reserve the right to change pricing prior to shipment date without notice. All sales are subject to the conditions listed in the terms and conditions contained herein.
Sales tax is the responsibility of each customer. Customers who are tax exempt will need to supply EXOLOGIX with the necessary proof of tax exemption prior to the order shipment.
All prices, discounts and transportation charges are in U.S. Dollars and are subject to change without notice. If no price is stated on EXOLOGIX’s Quotation, Sales Order, Acknowledgment, Invoice or other pricing document, prices shall be EXOLOGIX’s current prices in effect on the date of acceptance of orders by EXOLOGIX (or, in EXOLOGIX’s sole discretion, on the date of shipment) as set forth on price lists issued or modified by EXOLOGIX from time to time. All general or special taxes, duties, fees, freight and insurance costs and any other charges of any nature whatsoever, imposed on, in connection with or
measured by any transaction between EXOLOGIX and the Customer shall be paid by the Customer in addition to the prices quoted or invoiced.
Invoices are due pursuant to the payment terms indicated on the invoice. The invoice date begins the payment terms regardless of delivery date to customer. Past due invoices are subject to a late payment assessment (interest) at the rate of 18% per annum (1.5% per month).
EXOLOGIX reserves the right in its sole discretion to require prepayment from any Customer at any time and may refuse to sell and/or withhold further shipment until all overdue balances are made current. Customer shall be liable for, and shall reimburse EXOLOGIX for all costs and expenses it may incur in connection with collection of any amounts owed to EXOLOGIX or enforcement of its rights, including without limitation, reasonable attorneys’ fees and expenses, court costs, and costs of collection agencies.
Discounts are available for early payments; please contact the EXOLOGIX Accounting Department for details. All payments must be made in US dollars only and for the full amount of the invoice. EXOLOGIX is not responsible for any fees associated with customer payments.
Acceptable payment methods: Cash, Check, Cashiers Check, Official Bank Check, ACH, wire transfer, Visa, MasterCard, Discover and American Express (credit card payments may be subject to processing fees for minimum amounts, as allowed by law), or you may contact the EXOLOGIX Accounting Department to establish a line of credit.
Products cannot be returned without first contacting EXOLOGIX. In some cases a return may not be necessary, or can be resolved without the need of a return. All products to be returned must be in new, unblemished condition, unless approval is given by authorized personnel of the company. All products to be accepted for return must include a Return Authorization Number. Please contact the EXOLOGIX Customer Service Department to receive your Return Authorization Number from a customer service representative. A 15% restocking fee may apply.
This Agreement shall be governed by Utah law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in Cheyenne, Wyoming. No text or information set forth on any other purchase order, preprinted form or document shall add to or vary the terms and conditions of this Agreement.
ANY ACTION BROUGHT BY CUSTOMER MUST BE COMMENCED WITHIN 30-DAYS AFTER THE DELIVERY OF THE PRODUCTS OR THE COMPLETION OF SERVICES NOTWITHSTANDING ANY STATUTORY PERIOD OF LIMITATION TO THE CONTRARY.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between Customer and EXOLOGIX or its affiliates as a result of this agreement. The failure of EXOLOGIX to enforce any right or provision in
this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by EXOLOGIX in writing.
Alternative Dispute Resolution:
It is the policy of EXOLOGIX to attempt to settle all disputes through alternative dispute resolution techniques and to use litigation only as a last resort to settle any dispute, except in the case of collection of past-due accounts or when other circumstances dictate that litigation is advisable. Customer agrees to make a good faith attempt to settle any disputes arising out of the purchase of the Products by Customer through the use of alternative dispute resolution before instituting any litigation against EXOLOGIX.
Customer may not assign this Agreement without the prior written approval of EXOLOGIX; notwithstanding the forgoing, either party may assign this Agreement to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of Customer that results or would result in a direct competitor of EXOLOGIX directly or indirectly owning or controlling 50% or more of Customer shall entitle EXOLOGIX to terminate this Agreement for cause immediately upon written notice.
EXOLOGIX will endeavor to fill all accepted orders as soon as it is practical and consistent with production schedules. EXOLOGIX shall not be responsible for delay in delivery or failure to fill orders or other default or damage where such has been caused by an act of God, war, major disaster, terrorism,
insurrection, riot, flood, earthquake, fire, strike, lockout or other labor disturbance, delay by carriers, shortage of fuel, power, materials or supplies, operation of statutes, laws, rules or rulings of any court or government, demand for goods exceeding EXOLOGIX’s available supply, or any other cause beyond EXOLOGIX’s control affecting production or delivery. In the event of any delay in shipment or nonperformance caused by any of the foregoing, EXOLOGIX may, at its option and without liability, cancel all or any portion of its obligations to Customer and/or extend any date upon which performance