This is a binding agreement between Xmark Holding, LLC ("Xmark") and you ("Buyer"). By using the internet site located at xmarkco.com (the "Site") or any services provided in connection with the Site, you agree to abide by these Terms and Conditions of Sale. YOU ALSO REPRESENT THAT YOU ARE AT LEAST 18 YEARS OLD AND THAT YOU ARE LEGALLY AUTHORIZED TO ENTER INTO THIS AGREEMENT ON BEHALF OF ANY ENTITY.
Terms or provisions of the Buyer's order which are inconsistent with or in addition to the terms and conditions contained herein shall not be binding on either party unless expressly accepted in writing by Xmark. Xmark's failure to object to any provision contained in a communication from Buyer shall not be a waiver of these terms and conditions. This contract may not be modified or rescinded except by a writing signed by Xmark and Buyer. If any terms and conditions of sale are declared by an arbitrator, or court or other body having jurisdiction, to be invalid or unenforceable, the remaining terms and provisions shall remain in full force and effect.
All sales (domestic and international) are made F.O.B. origin of shipment. Title and risk of loss shall pass to Buyer when products are delivered to carrier unless otherwise agreed to in writing by Xmark.
Purchases made via this Site will be charged to Buyer's credit card or checking account prior to shipment of material from Xmark's facility. Xmark may modify or withdraw credit or payment terms if, in its sole opinion, the payment record or financial condition of buyer warrants. Xmark reserves the right to modify or withdraw credit terms at any time without notice and to require guarantees, security or payment in advance of the amount of sale. Xmark may setoff any amount due from Buyer to Xmark, whether or not under this contract, from any amounts due to Buyer under this contact. Unless otherwise agreed in writing between Buyer and Xmark, title to and risk of loss of the products pass to Buyer upon delivery to the carrier at Xmark's facility. Each shipment or delivery shall be deemed to have been sold under a separate and independent contract. Xmark reserves the right to require from Buyer full or partial payment or other adequate assurance of performance before manufacture or shipment. Xmark reserves the right to suspend its performance until such payment or adequate assurance of performance is received. Late payments are subject to 2% interest per month (24% per annum) on the unpaid balance. In the event of a default, Buyer agrees to pay Xmark's reasonable attorney's fees, if any, incurred by Xmark in collection of damages from Buyer.
All Xmark prices are subject to change without notice. Prices do not include any present or future sales, use, excise, value added or similar taxes and, where applicable, such taxes shall be billed as a separate item and paid by Buyer.
Any tax or other government charge upon the provision of services, or the production, sale, shipment, transfer, consumption or use of the products, which Xmark is required to pay or collect from Buyer, shall be paid by Buyer to Xmark unless Buyer furnishes Xmark with exemption certificates acceptable to taxing authorities. Such amount shall be due whether or not included in invoice.
Orders may not be canceled or rescheduled without Xmark's written consent and are subject to cancellation or reschedule charges determined by Xmark. All international orders are contingent upon approval of export licenses required by the Government.
Xmark shall not be liable for non-delivery or delay in performance when such delay or failure is directly or indirectly caused by, or in any manner arises from, delay or failure to deliver by Xmark's suppliers, fires, earthquakes, floods, hurricanes, accidents, riots, war, government interference, embargoes, strikes, shortages of labor, or other causes (whether or not similar to those specified) beyond its control. Delivery shall be deemed suspended so long as such causes delay performance. Xmark agrees to make, and Buyer will accept, deliveries at a reasonable time after remedy of such causes. Quoted times ARO (after receipt of order) are approximate.
Goods may not be returned without the proper written consent of Xmark in the form of an RMA (Return Material Authorization). Errors determined to be the fault of Buyer are subject to the specific return rules of Xmark and/or each specific manufacturer of the product. Material supplied in error by Xmark will be returned directly to Xmark with no restocking charge assessed within thirty (30) days of shipment by Xmark. Full credit and reimbursement for freight and taxes will be given to Buyer. If the Buyer chooses to return items for any other reason, a 15% restocking fee will apply. Xmark will not accept a return unless it is shipped within thirty (30) days of receipt.
Xmark passes on and assigns to Buyer the warranties made to Xmark by its suppliers, including any such warranty that the products at the time of shipment to Buyer will be free from defects in material and workmanship and will be materially in accordance with specifications provided by the manufacturer. Xmark's sole and exclusive warranty in its entirety shall be deemed limited to and shall not extend beyond assigning such manufacturers' warranties to Buyer. Buyer shall proceed exclusively and directly against such supplier at Xmark's request. This warranty does not cover wear and tear and shall be ineffective and shall not apply to products that have been subjected to misuse or abuse, neglect, accident, damage, improper installation or maintenance or any other limitation of warranty by manufacturer. Buyer will inspect the products upon delivery and will promptly notify Xmark in writing of any defect in the products. No agent, employee or representative of Xmark has any authority to bind Xmark to any representation, affirmation or warranty concerning the products, and any such representation, affirmation or warranty shall not be deemed to have become a part of the basis of this contract and shall be unenforceable.
THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF, AND BUYER WAIVES ALL OTHER WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND OF ANY OTHER TYPE, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW (STATUTORY OR OTHERWISE) AND WHETHER OR NOT OCCASIONED BY XMARK'S NEGLIGENCE.
LIMITATION OF LIABILITY. IN NO EVENT SHALL XMARK OR ITS SUPPLIERS BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, INCLUDING SUCH DAMAGES OCCASIONED BY XMARK'S NEGLIGENCE, nor shall Xmark's liability on any claims for damages arising out of or connected with the contract or the manufacture, sale, delivery or use of the products exceed the purchase price of the products and/or services giving rise to the claim.
Buyer understands that products supplied by Xmark may be subject to the jurisdiction of U.S. export controls and trade sanctions, and Buyer represents and warrants that it will not violate U.S. export-related laws with respect to products supplied by Xmark.
No order is assignable without Xmark's prior written approval and any attempted assignment without such consent shall be null and void. If any of the terms or conditions of sale are declared by an arbitrator, or court or other body having jurisdiction, to be invalid or unenforceable, the remaining terms and provisions shall remain in full force and effect.
This transaction shall be governed and interpreted by the local laws of the state of Idaho, U.S.A. excluding the Convention on Contracts for the International Sale of Goods. Buyer hereby irrevocably consents to the exclusive jurisdiction of the state or federal courts of Canyon County, Idaho, in all disputes arising out of or related to the use of this Site.
If you have any specific questions, please contact us at:
Xmark Holding, LLC
119 S. Valley Dr. Suite A, Nampa, ID 83686