This Support Services Agreement ("Agreement") and the associated Support Plan(s) govern support provided to Customer by One Stop Systems (OSS), a corporation having its principal place of business at 2235 Enterprise St, Suite 110, Escondido CA 92029 USA and its majority-owned subsidiaries (collectively, "OSS").

By purchasing Support Services Customer accepts this Agreement and the applicable Support Plans, which are hereby incorporated by reference.

1. Definitions.
   1. “Customer” means an end user of a supported OSS Product that has purchased Support Services from OSS or an authorized OSS reseller or distributor.
   2. “Customer Support Center” means OSS web-based support available at the URL: https://www.onestopsystems.com/pages/support that provides the Customer access to a database of software and other available releases, technical tools, frequently asked questions, product documentation, technical notes, product information, bug reporting, case initiation and resolution tools.
   3. “Incident” means a report by Customer that a Product is not performing in substantial conformance to its documented specifications or is otherwise experiencing a problem.
   4. “Product” means an OSS hardware or software product (including hardware and software bundled together).
   5. “Software Release” means a new production version and commercial release of the OSS licensed software.
   6. “Support Plan” means the description of the technical support services that OSS offers for specific Products, which OSS publishes in the Customer Support Center.
2. OSS Support Services.  Subject to this Agreement and throughout the Term, OSS shall provide the Support Services described below and better detailed in the applicable Support Plan(s) with respect to a particular Product so long as: (a) the Support Plan expressly applies to such Product; and (b) OSS has accepted a valid purchase order (or other mutually agreed ordering document) for such Support Services.
   1. Technical Support. OSS will make reasonable efforts to provide Customer with remote access to OSS qualified staff and OSS self-help tools to answer questions and address Incidents related to Products covered by Support Services. Customer will access technical support by phone, electronic mail or the Customer Support Center. The Support Plan will identify the hours for phone or electronic mail Support Services. OSS may provide Customer with access to its case management system through which Customer may view, post and receive updates to Incidents reported by Customer. OSS, in its sole discretion, may change Support Plans at any time; provided that changes made by OSS will not result in a material reduction in the level of Support Services provided during the period for which Customer has already paid. Updated Support Plan(s) will be available at the Customer Support Center.
   2. Hardware Replacement. OSS will replace defective hardware Products pursuant to the applicable warranty and Return Material Authorization (”RMA”) terms. If advance replacement shipment is provided under the applicable Support Plan, Customer must return the defective Products following the RMA instructions within thirty (30) days of advance replacement shipment. If Products returned are not received within 30 days of advance replacement shipments, OSS reserves the right to invoice Customer at the then-current list price. Additional Hardware Replacement Support Services are described in the applicable Support Plan and may be purchased.
   3. Software Releases. If a Support Plan entitles Customer to Software Releases for a Product, OSS will use commercially reasonable efforts to provide Customer access to all such Software Releases when these are made generally available to other OSS Support Services Customers.
   4. Incidents Excluded from Support. Notwithstanding any provision herein or in the applicable Support Plan, Support Services do not include assistance with any of the following: (a) Products not manufactured or licensed by OSS or Incidents caused by third party technology, including but not limited to changes to the operating system or the hardware environment in which a Product operates; (b) Products that have been improperly installed or that have been modified by someone other than an authorized OSS representative; (c) Products damaged - whether by fire, water, humidity, virus, impact, power surge or otherwise - unless such damage is the result of the gross negligence or willful misconduct of OSS, its agents or employees; (d) Products obtained from any party other than OSS or an  authorized OSS reseller or distributor; (e) Products that OSS no longer supports; (f) Products used in a manner other than for which they were designed or licensed; (g) Incidents caused by the use of a Product in an environment not specified in the applicable Product documentation; and (h) Incidents that are a failure to implement a Software Release made available by OSS.
3. Customer Obligations and Service Conditions. Customer shall make reasonable efforts to identify the cause of the failure and use the knowledge base, manuals and other technical information to debug the Product prior to contacting OSS. Customer shall also comply with the following as well as with any additional requirements included in the applicable Support Plan(s) or communicated by OSS, including via the Customer Support Center.
   1. Maintaining Supported Software Releases. Customer may be required to upgrade to a more recent Software Release in order to resolve an Incident. Notwithstanding anything to the contrary in this Agreement, OSS's obligation to provide Support Services for software shall be limited to the most recent major version/Software Release.
   2. Network Access. Customer will provide OSS or its authorized service representative sufficient access to the affected Products and will designate a primary technical contact. OSS is not responsible for any failure to provide Support Services where Customer has refused a reasonable request for access to Customer’s technical assets and records.
   3. Configuration Files and Backups. Customer is responsible to maintain sufficient backup files of its data and systems configurations that can be used to restore its devices and services. OSS is not responsible for any loss of data or system information.
   4. System Information. Customer shall provide information reasonably requested by OSS, including but not limited to Product serial number, software license key or serial number, operating system configuration, installation address and contact name, email address and telephone number. If Customer changes the location of a Product, Customer shall notify OSS of the new location immediately. OSS shall not be responsible for lapses or delays in Support Services associated with Customer's failure to provide such required notice.
   5. Responsibility for Third Party Material and Equipment Usage Rights. Customer understands and agrees that OSS’s ability to provide Support Services for a Product is preconditioned upon Customer’s procuring and maintaining wherever applicable, third party materials and equipment necessary or reasonably expected to be linked to such Product. Customer is solely and exclusively responsible to obtain the ownership and rights to use applicable third party materials and equipment in connection with the operation of a Product.
4. Support Services Fees.
   1. Support Services Fee. If Customer purchases Support Services from a third party, the amount of the fee and timing of payment shall be agreed between Customer and the third party. If Customer purchases Support Services directly from OSS, OSS will charge its then-current fee for Support Services, as set forth in an OSS quote or similar document. Fees for Support Services purchased from OSS shall be invoiced in advance and payment shall be due 15 days from the invoice date. OSS may also offer additional Support Services against payment of per incident support fee(s). OSS's prices do not include taxes.
   2. Renewal. For Support Services that are renewable, no less than thirty (30) days prior to the expiration of the initial and subsequent renewal terms, Customer will receive a notice of expiration and invoice or quotation notification for annual fees for subsequent one-year terms of any Support Plans (or if applicable, pro-rated fees). If Customer wishes to continue receiving Support Services under any Support Plans, it shall provide a purchase order matching the quotation on or before the expiration date of the Support Plans in question, after which Customer will be invoiced in accordance with terms of this Agreement.
   3. Reinstatement of Support. If: (a) the warranty has ended, or (b) a previously purchased Support Plan has expired or has been terminated, OSS, in its sole discretion, may agree to inspect the Product and place the Product under a new Support Plan. In that event, Customer must pay a non-refundable reinstatement fee and/or hardware inspection fee billed at the then-current rate in addition to the new Support Plan fees.
   4. End of Support Life. OSS may elect, in its sole discretion and at any time, to cease providing Support Services for the Products, including different versions of any software Product. The End of Life (EOL) announcement for a Product may identify the last Support Services date or End of Service (EOS) date for such Product. Products on EOL status may have a reduced level of services available during the final three years of the EOL time period due to material availability. In the event of an EOS for a software Product, OSS may choose to either: (a) provide Support Services for that version of the software Product until the end of Customer’s then-current Support period, at which time Support for that version will automatically terminate; or (b) issue Customer a prorated refund or credit of amounts actually received by OSS for the Support Services that will no longer be provided. Customer may not purchase a Support Plan(s) for Products that have reached EOS or are within one (1) year of EOS. A given Product’s Support Plan may contain supplemental terms addressing EOS and EOL.
5. Confidential Information.
   1. Definition. "Confidential Information" means the terms and conditions of this Agreement and information provided by the Disclosing Party to the Receiving Party that relates to the subject matter of this Agreement and is (a) marked by the Disclosing Party as confidential or designated as confidential in writing shortly after an oral disclosure and (b) the terms and pricing under this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that is: (c) publicly available; (d) already known to the Receiving Party at the time of Disclosure without any obligation of confidentiality; (e) lawfully disclosed to the Receiving Party by a third party; (f) independently developed by the Receiving Party; or (g) disclosed pursuant to a legal requirement or order.
   2. Confidentiality Obligations. Each party agrees not to disclose each other’s Confidential Information to any third party other than those set forth in the following sentence for a period of three years from the date of the Disclosing Party’s disclosure of the Confidential Information to the Receiving Party. Confidential Information may be disclosed only to those employees or agents or subcontractors who are required to protect it against unauthorized disclosure in a manner no less protective than under this Agreement. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement or orders submitted under this Agreement in any legal proceeding arising from or in connection with this Agreement or disclosing the Confidential Information to a governmental entity as required by law.
6. Proprietary Materials; Information Provided by Others.
   1. Licensed Materials. Subject to the limitations set forth below in this Section 6, Customer hereby grants OSS, and OSS hereby accepts, access to and use of Customer’s and/or its third party licensor’s proprietary material (the “Licensed Materials”) solely for the purposes of providing Support Services. Customer warrants and represents that it has, or will use commercially reasonable efforts to obtain, the right and authority to grant such access to and use of all Licensed Materials to OSS hereunder. OSS shall not make any copies, distribute, reproduce, modify, transmit, reverse engineer, disassemble, decompile, prepare derivative works, of any Licensed Materials, except as necessary to provide support and as approved by Customer.
   2. Feedback. To the maximum extent permitted under applicable law, OSS will own all right, title, and interest in and to any feedback (e.g., information, suggestions, ideas or comments) provided by Customer in connection with the Support Services or any product (including any derivative work associated with a product), and Customer hereby assigns any and all rights in the feedback to OSS. OSS may use the feedback, free of charge, without obtaining your consent.
7. Disclaimer of Warranty and Limitation of Liability.
   1. Disclaimer of Warranty. THIS AGREEMENT DEFINES A SERVICE ARRANGEMENT AND NOT A PRODUCT WARRANTY. SUPPORT SERVICES (INCLUDING ANY DELIVERABLES) PROVIDED HEREUNDER ARE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PROVIDED "AS IS" WITHOUT ANY WARRANTY WHATSOEVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES AND CONDITIONS WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, ARE DISCLAIMED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, CONDITION, OWNERSHIP, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR OF NON-INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS AND ANY WARRANTIES ARISING DUE TO CUSTOM OF TRADE OR COURSE OF USAGE.
   2. Limitation of Liability. To the extent not prohibited by applicable law, under no circumstances will OSS be liable to Customer nor to Customer’s affiliates or partners under any contract, strict liability, negligence, or other legal or equitable theory, for any indirect, incidental, special, punitive or consequential damages or lost profits. Notwithstanding anything else in this Agreement or otherwise, and without limiting the foregoing, OSS will not be liable for any amounts in excess of the aggregate amounts paid to OSS for the specific Support Plan(s) giving rise to the liability in question in the twelve (12) months preceding the event giving rise to such liability.
8. Term and Termination.
   1. Term, Expiration, Renewals. The term of each Support Plan shall be the period identified in the applicable purchase order and shall begin on date of shipment of the Product by OSS. For software Products, the date of shipment shall be the date of delivery unless otherwise noted in Customer's order acknowledgement. If the applicable quote or OSS confirmation document does not state the term, the initial term shall be one (1) year. Upon expiration of the initial term and acceptance by OSS of a valid purchase order for a Support Plan renewal term, the Support Services will automatically be renewed for successive periods as specified in the applicable purchase order.
   2. Termination. OSS may terminate all or some Support Plan(s) or this Agreement for breach effective immediately by written notice if Customer breaches the terms of any software license agreement with OSS or this Agreement and upon thirty (30) days’ prior written notice for all other material breaches that Customer fails to cure within such notice period. Either party may terminate all or some Support Services upon the bankruptcy or insolvency of the other party. Customer may terminate all or some Support Plan(s) or this agreement upon thirty (30) days’ prior written notice to OSS. Notwithstanding the foregoing and irrespective of whether a termination of a Support Plan or of this Agreement is for cause or for convenience, OSS shall have no obligation to refund or credit any prepaid fees for Support Plan(s) even if termination occurs prior to the end of a Support Plan period. Upon termination of the Support Plan for a Product or of this Agreement: a) OSS shall have no further Support Services obligation for all affected Products; and b) Customer shall cease using all OSS Support Services for the affected Products, including the Customer Support Center.
   3. Survival. Sections 4, 5, 6, 7 and 9.1, and all financial obligations to OSS arising in connection with the Support Services or this Agreement shall survive termination or expiration of the Support Services and continue in full force and effect.
9. Miscellaneous.
   1. Governing Law and Venue. Without giving effect to principles of conflict of laws, this Agreement shall be governed by: (i) the laws of the State of California, USA. Any dispute arising out of this Agreement shall be finally settled under the ICC Rules of Arbitration including those governing arbitrators selection. The language of the arbitration shall be English. The place of arbitration shall be San Diego County, California, USA. This Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods. Customer will comply with applicable export and trade laws and regulations associated with the Support Services and provide sufficient and timely information to OSS to achieve such compliance.
   2. Entire Agreement/ No Waiver. This Agreement and the Support Plan(s) constitute the entire agreement between the parties and supersede any prior agreements between them with respect to its subject matter. Failure of any party to enforce any of the terms of this Agreement shall not constitute a waiver of that party’s right thereafter to enforce each and every term of this Agreement.
   3. Force Majeure. Except for Customer's payment obligations to OSS, neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the reasonable control and without negligence of the parties.
   4. Assignment. Neither this Agreement, nor any right or interest hereunder may be assigned or transferred by Customer (including by operation of law) to any third party without the prior written consent of OSS.
   5. Invalidity. If any portion of this Agreement is held invalid, such invalidity shall not reflect the validity of the remaining portions of this Agreement.

LIMITED PRODUCT WARRANTY

          One Stop Systems, Inc. (“we”, “our” or “OSS”) extends this limited warranty only to the original purchaser (“you” or “your”) of the product that is the subject of the sale (the “Product”). It does not extend to any subsequent owner or other transferee of the Product.

          This limited warranty covers defects in workmanship and materials of the Product for the OSS Warranty Period (as defined in section 4 below).

          This limited warranty does not cover: (a) damage caused by failure to provide a suitable installation environment; (b) damage caused by failure to provide a suitable storage environment (c) damage caused by use of the Product for purposes other than those for which it was designed; (d) damage caused by failure to follow the Product instructions or to perform any preventive maintenance; (e) damage caused by unauthorized repair; (f) damage caused by normal wear and tear; (g) damage caused by disasters such as fire, flood, wind, and lightning; (h) damage caused by unauthorized attachments or modifications; (i) damage caused by external causes such as accidents, abuse, or other actions or events beyond our reasonable control; or (j) damage during shipment.

1. This limited warranty starts on the date we ship the Product to you and lasts for one (1) year (the “Standard Warranty Period”).
2. You may purchase an extension of the Standard Warranty Period in accordance with our Silver, Gold or OEM Services service plans. See available service plans on our website at https://onestopsystems.com/pages/support-and-warranty-plans.
3. The Standard Warranty Period and any extension purchased by you will collectively be referred to herein as the “OSS Warranty Period.”
4. The OSS Warranty Period is not extended if we repair or replace the Product. We may change the availability of this limited warranty at our discretion, but any changes will not be retroactive.

          To obtain warranty service:

1. You must contact our Support Department during the Warranty Period to obtain a Return Merchandise Authorization (“RMA”) number. No warranty service will be provided without an RMA number; and
2. You can contact our Support Department for an RMA number as follows:

i. With our Bronze service plan, by: (A) the customer portal on our website (https://onestopsystems.com/pages/support-form); or (B) emailing support@onestopsystems.com.
ii. With our Silver service plan, by: (A) the customer portal on our website (https://onestopsystems.com/pages/support-form); (B) emailing support@onestopsystems.com; or (C) calling (877) 438-2724.
iii. With our Gold service plan, by: (A) the customer portal on our website (https://onestopsystems.com/pages/support-form); (B) emailing support@onestopsystems.com; or (C) calling the telephone number provided in your Gold service plan warranty welcome letter.


3. Within thirty (30) days of receiving your RMA number, you must ship, at your expense and risk of loss, such allegedly defective Product to us at our facility located at 2235 Enterprise Street, Suite 110, Escondido, California 92029 or Industriestraße 51, D - 82194 Gröbenzell, Germany; as determined in our sole discretion.

          If our inspection and testing reveals, to our reasonable satisfaction, that such Product is defective and any such defect has not been caused or contributed to by any of the factors described under section 3 above:

1. During the OSS Warranty Period, we will correct any defect in workmanship or material with either new or refurbished replacement parts; and such repair, including both parts and labor, will be performed at our expense.
2. If we are unable to repair the Product after a reasonable number of attempts, we will, at our option, either (i) replace the Product or (ii) provide you a full refund of the purchase price of the Product.
3. Further, if you purchased an extension of the Standard Warranty Period with our Silver or Gold service plans, if you desire, we will cross ship new or refurbished replacement parts to you from our stock, or if not in stock, upon first availability, while we inspect and test your allegedly defective Product (Gold service plan will cross ship within two (2)-business days of availability). If our inspection and testing reveals, to our reasonable satisfaction, that such Product is not defective, you will be responsible and pay for such replacement Product cross shipped to you at our price in effect at the time such Product was cross shipped to you.
4. We will also, at our expense and risk of loss, ship the repaired or replacement Product to you as follows:

i. With our Bronze service plan, via FedEx or UPS ground service.
ii. With our Silver service plan, via FedEx or UPS 2-day.
iii. With our Gold service plan, via FedEx or UPS next afternoon.


5. If you desire, we can ship the repaired or replacement Product to you via an expedited shipping method, but you will be responsible for and pay the additional cost.

          If our inspection and testing reveals, to our reasonable satisfaction, that such Product is not defective, we may charge you an inspection and testing fee of $275.00 US.

          YES.
          TO THE MAXIMUM EXTENT PERMITTED BY LAW:

1. THE REMEDIES DESCRIBED IN SECTION 6 ABOVE ARE YOUR SOLE AND EXCLUSIVE REMEDIES AND OUR ENTIRE LIABILITY FOR ANY BREACH OF THIS LIMITED WARRANTY.
2. IN NO EVENT WILL WE BE LIABLE TO YOU 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 LIMITED WARRANTY, REGARDLESS OF: (i) WHETHER THE DAMAGES WERE FORESEEABLE; (ii) WHETHER OR NOT WE WERE 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.
3. IN NO EVENT WILL OUR AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS LIMITED WARRANTY, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO US FOR THE PRODUCT.

          YES.
          TO THE MAXIMUM EXTENT PERMITTED BY LAW, THIS LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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.

          Yes. Unless modified in a writing signed by both parties, this limited warranty is understood to be the complete and exclusive agreement between the parties, superseding all oral or written prior agreements and all other communications between the parties relating to the subject matter of this limited warranty, including statements made by our salespersons. No employee of OSS or any other party is authorized to make any warranty in addition to those made in this limited warranty. THEREFORE, YOU ARE WARNED TO CHECK THIS LIMITED WARRANTY CAREFULLY TO SEE IT CORRECTLY REFLECTS THOSE TERMS THAT ARE IMPORTANT TO YOU.

          This limited warranty allocates the risks of Product failure between us and you. This allocation is recognized by both parties and is reflected in the price of the Product. You acknowledge you have read this limited warranty, understand it, and are bound by its terms.

General Terms and Conditions of Sale

1. Applicability
1. 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.
2. 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.
3. 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.
2. Delivery of Goods and Performance of Services
1. 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.
2. 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.
3. 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.
4. 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).
5. 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.
6. 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.
3. Shipping Terms Delivery of the Goods will be made EXW (Ex-Works) (Incoterms 2020) Pickup Location.
4. 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.
5. 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.
6. Inspection and Rejection of Nonconforming Goods
1. 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.
2. 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.
3. 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.
4. 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.
7. Prices
1. 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.
2. 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.
3. 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.
8. Payment Terms
1. Buyer will pay all invoiced amounts due to OSS within thirty (30) days from the date of OSS’s invoice. Buyer will make all payments hereunder US dollars by check, wire transfer or automated clearing house.
2. 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.
3. 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.
9. Limited Warranties
1. 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.
2. 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.
3. 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.
4. Limitations on Limited Product Warranty. The limited product warranty set forth in Section 9(a) is subject to certain limitations as set out in the written warranty statement on OSS’s website at: https://www.onestopsystems.com/warranty-information.
5. Extent of Liability. Notwithstanding anything in this Agreement to the contrary,
1. 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.
2. 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.
6. Exclusive Remedies THE REMEDIES SET FORTH IN SECTION 9(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.
10. Limitation of Liability
1. 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.
2. 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.
3. THE FOREGOING LIMITATIONS AND EXCLUSIONS APPLY EVEN IF THE BUYER’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.
4. 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).
11. 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, “OSS Indemnified 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.
12. Installation; Software; and Technical Advice and Data
1. 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.
2. 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.
3. 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.
13. No Use of Goods in Life Support Applications Goods 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
14. 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.
15. 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.
16. 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.
17. 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.
18. 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.
19. 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.
20. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.