TERMS AND CONDITIONS OF OFFER
1. Payment Terms
Payment terms are within XMW Inc.'s ("XMW's) sole discretion. If XMW agrees to credit terms, invoices for Products and Services are due and payable within the period specified on the offered quotation, where period begins from the day after the date of the invoice for such Products and Services. In the event that no credit terms are specified on the quotation, invoices are due and payable within thirty (30) days after the date of the invoice. XMW may charge Customers the Bank of Korea prime lending rate plus 5% per annum on any overdue amounts.
2. Standard Terms and Conditions of Offer.
The following presents XMW's standard Terms and Conditions of Quote, and if accepted by Customer, constitutes the terms and conditions of a binding agreement between Customer and XMW.
2.1 Entire Agreement. These Terms and Conditions apply to any offer, quote, bid or proposal ("Quote") issued by XMW to Customer concerning the provision of Products or Services. Upon acceptance of the Quote by Customer, such acceptance to be evidenced by Customer execution of the Quote and its return to XMW by facsimile or courier, the terms of the Quote, together with these Terms and Conditions, become a binding agreement ("Agreement") between the parties. Unless otherwise provided in the Quote, in the case of any contradiction between the specifications set forth in these Terms and Conditions and those set forth in the Quote, the Quote shall prevail. Prior to final acceptance by the Customer, the Quote is revocable by XMW. Customer agrees that any purchase order issued to XMW concerning this Quote is issued only for the purposes of Customer's internal authorization and internal use and that none of its terms and conditions shall modify the terms and conditions of this Quote. These Terms and Conditions shall apply to the Agreement, and shall form the entire agreement between the parties related to the Product and Services and, upon Customer's acceptance of this Quote, shall supersede all earlier agreements and communications between the parties related to the Products and Services. Any attempt to alter or amend these Terms and Conditions or to enter into a new agreement concerning the Product and Services is null and void, unless it is agreed to in writing, signed by both Customer and XMW.
2.2 Price and Payment. Prices in the Offer are exclusive of any applicable sales, use, excise, value- added, business transfer, and like taxes and all customs and import export duties, fees, and charges without limitation and Customer shall pay all such amounts. Any such amounts shown on the Quote are shown for convenience only and in the event of any error, omission or change to these amounts, Customer shall be responsible for and shall pay the full amounts due. Prices shown in the Quote are subject to verification by XMW at the time of acceptance by Customer of the Quote. If Customer does not purchase and take delivery of the entire quantity of the Product and Services ordered, then Customer shall pay such additional amounts as XMW may charge for lesser quantities.
2.3 Acceptance and Delivery. Products and Services shall be accepted by Customer upon delivery, or as otherwise expressly set forth in the Quote. Products shall be delivered Ex-works XMW's facility in Daejeon Korea and Services shall be delivered as incurred. If within fourteen (14) days after delivery Customer does not advise XMW in writing that the Products and Services or any portion thereof has been rejected (including the reasons therefore), then the Products and Services in their entirety shall be deemed to have been accepted by Customer. Any risk of loss or damage, to the Products pass to Customer upon shipment from XMW's facility in Daejeon Korea. XMW retains a security interest in the Products until the full price for the Products and Services are paid. Delivery dates set forth in the Quote are estimates only, and depend upon prompt acceptance by Customer of the Quote and upon XMW's inventory of the Products or their components and the availability of provision of Services. XMW will try to meet the stated delivery dates for the Products and Services, but will not be liable to Customer or any other party for any delay in delivery of the Products and Services.
2.4 Cancellation and Rescheduling. Customer's orders are firm and non-cancellable. XMW may cancel the Agreement, in whole or in part, if Customer breaches the Terms and Conditions of the Agreement or if there is a material change in Customer's financial position. Regardless of any disclosure made by Customer to XMW, Customer will not export, directly or indirectly, the Product and Services without obtaining all required licenses from the appropriate government agencies. Customer may not reschedule shipments without written permission from XMW.
2.5 Use of Products. Customer is solely responsible for determining and complying with the licensing requirements in any jurisdiction in which it is operating the Products. Customer will be liable for all use or misuse of the Products hereunder, irrespective of whether such use or misuse was authorized, fraudulent or otherwise. Customers will not use the Products in an abusive or fraudulent manner, including, but not limited to the following: (i) accessing or attempting to access Services by using an unauthorized device or by tampering with or altering Products; (ii) obtaining or attempting to obtain permission to use Products by providing false or misleading information; (iii) obtaining Products without having the intent to pay charges incurred; (iv) intentionally interfering with or causing disruption in the provision of Products to other Customers; or (v) using Products to further criminal activity. XMW reserves the right to terminate use of the Products of any Customer engaging in abusive or fraudulent use of the Products purchased from XMW.
2.6 Confidentiality. Except as agreed in writing or subject to an applicable Non-Disclosure Agreement between the parties, Customer shall maintain in strict confidence all information disclosed by XMW, including without limitation all technical and business data, drawings, software and know- how. Customer shall only use such information for the purposes of using the Product. Information or knowledge disclosed to XMW shall (i) not be subject to confidentiality obligations unless expressly agreed by XMW, and (ii) shall be free from restrictions, other than patent laws, as consideration or the Agreement. These confidentiality obligations shall survive the termination of the Agreement and shall continue for five (5) years thereafter.
2.7 Scope. XMW is not responsible for (i) any goods or services of any kind not supplied by XMW, or (ii) any equipment connected to the Product, or (iii) any software not authorized by XMW which operates or is resident on or with the Products, or (iv) any use or operation of the Products not strictly
in conformance with the applicable documentation, or (v) any combination of the foregoing. The specifications for the Products are those established by XMW. XMW reserves the right at any time to make minor changes to the Products. Customer part numbers, if any, are not binding to define the Products are for Customer's reference only.
2.8 License. If the Products include any software or other intellectual property ("IP"), then XMW retains ownership of all IP and grants to Customer a limited, single user, non-transferable and nonexclusive license to use the IP in accordance with the documentation only on or with the one computer or system included in the Products or otherwise owned by Customer at the time of this Agreement. If the IP rights granted are restricted in time or application (such as, but not limited to, use with a security device or key, whether tangible or intangible, then the license granted here is limited to use in strict conformance with any and all such restrictions. Customer is not authorized to make copies of the IP except that one copy may be made for nonoperational backup purposes. IP may not be copied, disclosed, rented, leased, sublicensed, modified, reverse engineered in any manner, made available on any network, or any one or more of the foregoing.
2.9 Warranty.. The Product will be free from defects in workmanship and materials for a period as defined in the table below, from the date that the Product was first purchased by Customer (the "Warranty Period").
This Limited Warranty is not transferable. During the Warranty Period, the Product, or if necessary, one or more of the Product components, will be repaired or replaced at XMW's option, without charge to Customer for either parts or labor. Based on an agreement between XMW and a designated XMW reseller or distributor (the "Distributor"), this Limited Warranty for the Warranty Period shall be honored by either XMW or the Distributor. In order for XMW or the Distributor to repair or replace the Product or the component(s) thereof in accordance with this Limited Warranty, Customer must ship the Product or component(s) thereof requiring repair or replacement in a properly protected shipping container such as an anti-static bag, surrounded on all sides with solid foam cushioning of a minimum two (2) inches thick, sealed in a sturdy shipping container. The Product or component(s) thereof must be shipped to XMW at or the Distributor, as the case may be, together with a "Return Material Authorization" number which number is issued by XMW's Customer Service department, clearly visible on the outside of the shipping container. Customer must ship the Product(s) thereof via courier or postal service which can provide proof of delivery. All charges for packaging, shipping, insurance, or any taxes or duties levied, assessed, or imposed in connection with the return of the Product(s) thereof for repair or replacement under this Limited Warranty is Customer's responsibility. This Limited Warranty does not apply to normal wear and tear, or if any component of the Product is opened or repaired by someone not authorized to do so by XMW, and does not cover repair or replacement of any Product damaged by: misuse, moisture or liquids, proximity or exposure to heat, accident, abuse, neglect, misapplication, electrostatic discharge, mishandling, mechanical alteration, or defects due to repairs or modifications made by anyone other than XMW. This Limited Warranty does not cover physical damage to the surface of the Product, including cracks or scratches on the monitor screen. This Limited Warranty does not apply to any equipment other than the Product as defined in this Limited Warranty. This Limited Warranty also does not apply if the malfunction results from the use of the Product in conjunction with accessories, products, services or ancillary or peripheral equipment not expressly approved or provided by XMW specifically for use with Customer's particular Product, and where it is determined by XMW that such malfunction is not the fault of the Product itself. Additionally, if malfunction results from the failure of the user to abide by the operating manual, the Limited Warranty may be void, and if it is not void, it shall not apply. Data backup is the responsibility of the user of the Product. Neither XMW nor the reseller or distributor through whom Customer purchased the Product is responsible for data that may be damaged or lost at any time, including, without limitation data lost or damaged during the use or servicing of the Product. As the Product is designed to operate with satellite communications equipment provided by third party providers, we cannot guarantee or warrant that Customer's Product access will always be available or that it will always function properly. For this and other reasons, the Product should not be relied upon for the transmission of data relating to emergency or life-threatening or mission critical situations, and XMW disclaims any liability on its behalf, on behalf of the Distributor for events or damages resulting from such reliance or the failure of any third party satellite communications service to perform or to be available for Customer use through the Product. XMW will not be responsible for any warranties or guarantees provided by the Distributor or any other party. Any repair or replacement pursuant to this Limited Warranty may be requested by Customer from the Distributor. XMW does not warrant that any software bundled or included with the Product or sold in connection therewith the Product ("Software") will be free of defect or error. Updates or patches ("Updates") for the Software may be made available to Customer from time to time as XMW deems appropriate, at no further expense to Customers with a valid support contract. The provision of Updates to Customer does not in any way imply or convey to Customer any rights to the Software, or access to feature enhancements, code revisions, or functionality upgrades thereof. Customer shall only have access to Updates during the Warranty Period.
2.10 Excusable Delay. XMW is not responsible for any delay caused by any event or contingency which is not within the direct control of XMW. XMW shall be entitled to a schedule and price adjustment in the event of such excusable delay.
2.11 Assignment. This Agreement may not be transferred or assigned by Customer without the express written consent of XMW, which may be withheld for any or no reason.
2.12 Waiver. Waiver by XMW of any right, remedy, or breach of a term or condition of the Quote or Agreement shall not be construed as a waiver of any other right, remedy, or breach of the same or another term or condition.
2.13 Interpretation. The Quote shall be interpreted with all changes to number and gender as the context requires. INCOTERMS 2010 applies. Headings are for convenience only. The Agreement shall be interpreted with all changes to number and gender as the context requires. The parties hereto confirm that it is their wish that this contract and all related documents hereto shall be in English.
2.14 Equipment substitution. Over time, components and technology within the Product proposed and their options will advance with better specifications and performance. XMW reserves the right to substitute new technology in its products as required by the introduction of new components and technology in the market or due to existing components being withdrawn.
2.15 Labeling. The Customer shall not in any way alter, deface, remove, cover up or mutilate in any manner whatsoever, any trademark, serial or model number, symbol, brand or trade name which the Company or a manufacturer may attach or fix to or make a part of the Products. The Customer shall not affix to the Products any additional label, symbol, trademark, brand or trade name other than those designated by the Company unless previously approved by the Company.
2.16 Applicable Law. The laws of the Republic of Korea applicable therein, without reference to its conflicts of laws jurisprudence, apply to and govern the Quote and the Agreement.