These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the goods (“Goods”) and services (“Services”) by One Stop Systems, Inc., a Delaware corporation (“OSS”) to the buyer (“Buyer”) named on any quotation, confirmation of sale or invoice issued by OSS (the “Sales Confirmation”). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods and Services covered hereby, the terms and conditions of said contract will prevail to the extent they are inconsistent with these Terms.
The Sales Confirmation and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Notwithstanding anything to the contrary contained in this Agreement, OSS may, from time to time change the Services without the consent of Buyer provided such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in the Sales Confirmation.
Delivery of Goods and Performance of Services
The Goods will be delivered within a reasonable time after the receipt of Buyer’s purchase order. OSS will not be liable for any delays, loss, or damage in transit.
Unless otherwise agreed in writing by the parties, OSS will deliver the Goods to an OSS facility loading dock designated by OSS in its sole discretion (the “Pickup Location”) using OSS’s standard methods for packaging such Goods. Buyer will pre-arrange their preferred carrier and shipping method and take delivery of the Goods within ten (10) days of OSS’s written notice that the Goods have been delivered to the Pickup Location. Buyer will be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Pickup Location, and will unload and release all transportation equipment promptly so OSS incurs no demurrage or other expense.
OSS may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to OSS’s notice that the Goods have been delivered at the Pickup Location, or if OSS is unable to deliver the Goods at the Pickup Location on such date because Buyer has not provided appropriate instructions, documents, licenses, payments or authorizations: (i) risk of loss to the Goods will pass to Buyer; (ii) the Goods will be deemed to have been delivered; and (iii) OSS, at its option, may store the Goods until Buyer picks them up, whereupon Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
OSS will use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any such dates will be estimates only.
With respect to the Services, Buyer will (i) cooperate with OSS in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by OSS, for the purposes of performing the Services; (ii) respond promptly to any OSS request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for OSS to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as OSS may reasonably request to carry out the Services in a timely manner and ensure such customer materials or information are complete and accurate in all material respects; and (iv) 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.
Shipping Terms Delivery of the Goods will be made EXW (Ex-Works) (Incoterms 2020) Pickup Location.
Title and Risk of Loss Title and risk of loss passes to Buyer upon delivery of the Goods at the Pickup Location. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to OSS a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the California Uniform Commercial Code.
Buyer’s Acts or Omissions If OSS’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, OSS will not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
Inspection and Rejection of Nonconforming Goods
Buyer will inspect the Goods received under this Agreement. On the eighth (8th) day after delivery of the Goods to Buyer’s street address specified in the Sales Confirmation, Buyer will be deemed to have accepted the Goods unless it (i) earlier notifies OSS in writing of any Nonconforming Goods and (ii) furnishes such written evidence or other documentation as reasonably required by OSS. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
No return of Goods will be accepted by OSS without a Return Material Authorization (“RMA”) number issued by OSS. OSS will provide an RMA number within two (2) business days after receipt of notice from Buyer pursuant to this Section 6. The RMA number is valid for thirty (30) days and must be clearly marked on the exterior of Buyer’s return shipping container. Goods must be returned as directed by OSS and be in its original packaging. Returns of Goods packaged in electrostatic packaging will not be accepted if electrostatic packaging has been opened.
If Buyer timely notifies OSS of any Nonconforming Goods, OSS will, in its sole discretion, (i) repair or replace such Nonconforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer will ship, at its expense and risk of loss, the Nonconforming Goods to an OSS facility designated by OSS in its sole discretion. If OSS exercises its option to repair or replace Nonconforming Goods, OSS will, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at OSS’s expense and risk of loss, the repaired or replaced Goods to Buyer’s street address specified in the Sales Confirmation.
Buyer acknowledges and agrees the remedies set forth in SECTION 6(c) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods subject to BUYER’S rights under Section 9 regarding any GOODS for which BUYER has accepted delivery under this Section 6. Except as provided under SECTION 6(c), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to OSS.
Buyer will purchase the Goods and Services from OSS at the prices (the “Prices”) set forth in OSS’s published price list in force as of the date that OSS accepts Buyer’s purchase order. If the Prices should be increased by OSS before delivery of the Goods to a carrier for shipment to Buyer, then these Terms will be construed as if the increased prices were originally inserted herein, and Buyer will be billed by OSS on the basis of such increased prices.
Buyer agrees to reimburse OSS for all reasonable travel and out-of-pocket expenses incurred by OSS in connection with the performance of the Services if such expenses have been pre-approved in writing by the Buyer.
All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer will be responsible for all such charges, costs and taxes; provided, Buyer will not be responsible for any taxes imposed on, or with respect to, OSS’s income, revenues, gross receipts, personal or real property, or other assets.
Buyer will pay all invoiced amounts due to OSS within fifteen (15) days from the date of OSS’s invoice. Buyer will make all payments hereunder US dollars by check, wire transfer or automated clearing house.
Buyer will pay interest on all late payments at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer will reimburse OSS for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which OSS does not waive by the exercise of any rights hereunder), OSS will be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts when due hereunder.
Buyer will not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with OSS, whether relating to OSS’s breach, bankruptcy or otherwise.
Limited Product Warranty Subject to the provisions of this Section 9, OSS provides Buyer, for a period of one (1) year from the date the Goods are shipped to Buyer, OSS’s standard one (1) year bronze warranty in force when the Goods are shipped to Buyer, as set out in the written warranty statement on OSS’s website at: https://www.onestopsystems.com/warranty-information.
Limited Services Warranty OSS warrants to Buyer it will 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 will devote adequate resources to meet its obligations under this Agreement.
Disclaimer of Warranties EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 9(a) AND 9(b), AND ANY ADDITIONAL WARRANTIES PURCHASED BY BUYER FROM OSS, OSS MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; OR (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Extent of Liability. Notwithstanding anything in this Agreement to the contrary,
if any Good is proven to not conform with limited product warranty set forth in Section 9(a) during the applicable warranty period, the extent of OSS’s liability in connection therewith is as set out in the written warranty statement on OSS’s website: https://www.onestopsystems.com/warranty-information.
if any Services are proven to not conform with limited services warranty set forth in Section 9(b), OSS will, 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.
Exclusive Remedies THE REMEDIES SET FORTH IN SECTION9(e) WILL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND OSS’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 9(a) and 9(b), RESPECTIVELY.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 10(d),IN NO EVENT WILL OSS OR ANY OSS REPRESENTATIVE BE LIABLE TO BUYER OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF: (i) WHETHER THE DAMAGES WERE FORESEEABLE; (ii) WHETHER OR NOT OSS WAS ADVISED OF THE POSSIBILITY OF THE DAMAGES; AND (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE) ON WHICH THE CLAIM IS BASED.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EXCEPT AS OTHERWISE PROVIDED IN SUBSECTION 10(d), IN NO EVENT WILL OSS’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 OSS FOR THE GOODS AND SERVICES SOLD HEREUNDER.
THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THE BUYER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 10 WILL NOT APPLY TO LIABILITY RESULTING FROM OSS’S GROSS NEGLIGENCE, FRAUD, WILLFUL MISCONDUCT, OR VIOLATION OF LAW (WHETHER WILLFUL OR NEGLIGENT).
Indemnification To the maximum extent permitted by law, Buyer will indemnify, hold harmless, and defend OSS and its officers, directors, partners, managers, members, shareholders, employees, agents, affiliates, successors, and permitted assigns (collectively, “OSSIndemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers suffered, incurred, or sustained by any of the OSS Indemnified Parties or to which any of the OSS Indemnified Parties becomes subject, resulting from, arising out of, or relating to any claim: (a) that the Goods or Services infringe upon the proprietary or other rights of any third party (except as may have been caused by a modification by OSS); and (b) of loss or damage resulting from the Goods or Services and the use thereof.
Installation; Software; and Technical Advice and Data
Installation Except to the extent provided as a Service by OSS to Buyer, Buyer will be solely responsible for the installation of the Goods, including without limitation the obtaining of all permits, licenses or certificates required for the installation of the Goods.
Software Any software sold, bundled, or packaged with Goods may be software owned by OSS (“OSS’s Software”) or third-party software (“Third-Party Software”). Buyer’s rights, licenses and obligations regarding OSS’s Software will be governed by the terms of a separate software license agreement between Buyer and OSS. Buyer’s rights, licenses and obligations regarding Third-Party Software will be governed by the terms of a separate software license agreement between Buyer’s and the vendor of such Third Party Software. Buyer agrees to look directly to the licensing party in connection with all maintenance, support, infringement, and warranty claims relating to OSS Software or Third-Party Software delivered to Buyer in connection with Goods.
Technical Data and Advice Any technical data and advice offered or given by OSS to Buyer in connection with the use of any Goods is (i) provided by OSS to Buyer as an accommodation without charge and warranty of any kind; (ii) such technical data and advice is OSS confidential information governed by Section 17 of these Terms, and (iii) OSS has no responsibility or liability whatsoever for the content or use of such technical data or advice.
No Use of Goods in Life Support ApplicationsGoods are not authorized to, and may not, be used in life support equipment or for applications in which the failure or malfunction of the Goods would create a situation in which personal injury or death is likely to occur; and Buyer will not use Goods for the abovementioned use. Any such use of Goods is at Buyer’s sole risk. Without limiting Buyer’s other indemnification obligations in this Agreement, Buyer will indemnity, hold harmless and defend OSS and the Indemnified Parties in connection with any such uses or sales pursuant to and in accordance with Section 11 of this Agreement
Compliance with Law Each party will comply with all applicable laws, regulations, and ordinances. Each party will maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Each party will comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement, and Buyer will comply with all export and import laws of all countries involved in any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. OSS may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Goods.
Termination In addition to any remedies that may be provided under these Terms, OSS may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
Waiver No waiver by either party of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by such party. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
Non-Public Proprietary Information All non-public or proprietary information of OSS, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, technical data, technical advice, business operations, customer lists, pricing, discounts, or rebates, disclosed by OSS to Buyer, 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 “proprietary” in connection with this Agreement is solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by OSS in writing. Upon OSS’s request, Buyer will promptly return all documents and other materials received from OSS. OSS will be entitled to injunctive relief for any violation of this Section 17. This Section 17 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Force Majeure No party will be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to OSS hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, explosion, pandemic, epidemic or quarantine; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities. The Impacted Party will use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party will resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.
Assignment Neither party will assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed; provided, however, either party may assign its rights or delegate its obligations, in whole only, without such consent and upon ten (10) days prior written notice to the other party, to an entity that acquires all or substantially all of the business or assets of such party to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, or otherwise. Any purported assignment or delegation in violation of this Section 19 is null and void. No assignment or delegation relieves the assigning party of any of its obligations under this Agreement.
Relationship of the Parties The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries Subject to the next sentence, this Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. OSS and Buyer hereby designate the OSS Indemnified Parties as third-party beneficiaries of Section 11 with the right to enforce this provision.
Governing Law All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
Submission to Jurisdiction Any legal suit, action, or proceeding arising out of or relating to this Agreement will be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Diego and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
Notices All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) will 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. All Notices will be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 24.
Severability If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
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 provisions: Limitation of Liability, Indemnification, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
Amendment and Modification These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
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