Terms and Conditions

 
All Sales by Lock Labs, Inc. dba XToolUSA (hereinafter “XToolUSA”) are expressly conditioned on these Standard Terms & Conditions of Sale (the “Terms”). By accepting an offer contained in a XToolUSA quotation to which these Terms are attached, or by otherwise purchasing goods from XToolUSA, the customer (hereafter “Buyer”) creates a legally binding agreement based upon the terms and conditions contained herein (the “Order”). Any terms or conditions included by Buyer in an acceptance of a XToolUSA offer and/or included with any purchase order for goods and/or services to be purchased by Buyer (the “Products”) shall not apply and are hereby rejected in their entirety. Acceptance of and/or performance by XToolUSA of a purchase order from Buyer for purchase of the Products shall not constitute acceptance of Buyer’s added terms and conditions, if any, unless XToolUSA’s acceptance specifically states otherwise.
 
1) PRICES. Prices are subject to change without notice and are not guaranteed. The product price(s) shall be according to XToolUSA price listed in effect at the time of acceptance of the purchase order or website order according to its authorized quotation in force at the time of acceptance of the applicable purchase order.  Pricing levels are set based on criteria found in section 19 of this agreement.
 
2) MINIMUM ADVERTISED PRICE (MAP) POLICY.  Please refer to the Minimum Advertised Price (MAP) Policy for pricing guidance.  Buyer agrees to the XToolUSA MAP Policy when advertising products.  For a copy of the current MAP Policy, please email: support@xtoolusa.com.
 
3) TAXES. Prices do not include any federal, state, municipal, or other governmental taxes, duties, levies, or other charges, including any sales, documentary, use, excise, purchase, turnover and/or import taxes, consular fees, and customs duties. The amount of any such taxes and fees will be added to the purchase price paid by Buyer.  However, should XToolUSA be obligated to pay any of the foregoing taxes, the Buyer, upon demand, shall, within fifteen (15) days, reimburse XToolUSA the total amount disbursed in respect thereof.
 
4) TERMS. Standard payment terms are Net 30 if approved on credit. XToolUSA reserves the right to add a 1½% per month carrying charge on all invoices 30 days past due. For example: an invoice dated April 15th will be considered past due on May 16th and the carrying charge will be added to the May 30th statement. If XToolUSA discovers that the Buyer’s financial condition does not warrant the above payment terms, then XToolUSA, in its absolute discretion, may demand that the Buyer pay in advance, pay cash upon delivery, or refuse Buyer’s order. In the latter case, XToolUSA cannot be held liable for any damages of any nature whatsoever for its refusal to deliver goods in whole or in part.
 
5) ORDER ACCEPTANCE. XToolUSA reserves the right to refuse any orders which may be received, and will not be bound to fill any order until it has been accepted. If the order is declined, notification will be provided within 14 working days of receipt of the order. XToolUSA makes an effort to identify and correct invalid product numbers. However, orders must contain valid, complete XToolUSA product number to avoid delays and assure that the item(s) will be shipped correctly.
 
6) ORDER MODIFICATIONS. XToolUSA will accept changes to purchase orders until they have been entered into our order processing system or processed online. Once an order has been entered, changes are permissible only with approval.
 
7) CREDIT. XToolUSA retains a purchase money security interest in all goods and materials which have been or are hereafter acquired by Buyer with credit granted by XToolUSA (“Collateral”). Upon any default by Buyer, XToolUSA shall have the rights of a secured party under the Uniform Commercial Code as adopted by the State of Nevada, as amended. XToolUSA may require Buyer to assemble the Collateral at a place designated by XToolUSA. Buyer shall reimburse XToolUSA for all costs (including reasonable attorney’s fees) incurred in collecting any amounts due to XToolUSA or executing its interest hereunder. In addition to any other right or remedy hereunder, XToolUSA shall have at all times the right to offset any obligation of Buyer to XToolUSA against any obligation of XToolUSA to Buyer. If in XToolUSA’s sole judgement any doubt arises at any time as to the ability of the Buyer to pay for the products, or if the Buyer at any time is past due in payment of any amount owing to XToolUSA, XToolUSA may (without liability and without prejudice to any other remedies, and regardless of any schedule of shipment or payment to the contrary), delay production, postpone any shipment or stop any product in transit until XToolUSA shall have received payment in full of all amounts, whether or not then due, owing to it by the Buyer. In case of any such postponement, the price of the products affected shall be the price in effect on the date of final shipment. When released, orders are subject to standard lead times which will be calculated from the release date.
 
8) MINIMUM ORDERS. Orders with a value of $100.00 or less may be accepted for processing or not at XToolUSA’s option.
 
9) PRODUCT INFORMATION. Unless expressly stated in this Agreement, all information contained in the product brochures, pamphlets, or information circulars, are for reference purposes only and based on the best information available at time of publication. XToolUSA reserves the right to make reasonable changes in its products from time to time and to deliver the modified products.
 
10) INSTALLATION. Unless otherwise expressly stated, the costs and materials required for installation are not included in the prices and/or quotations.
 
11) DELIVERY; FAILURE TO ACCEPT DELIVERY. Shipping schedule estimates are based on our best judgment and are not guaranteed, nor can these estimates be considered legally binding. XToolUSA will notify Buyer if for any reason it is unable to deliver the Products as scheduled, and XToolUSA cannot be held liable for any damages of any nature resulting from these delays. If Buyer fails to accept delivery at the scheduled time, the purchase price shall become due and payable in accordance with the payment terms set forth herein, and all risks associated with the Products or parts of the Products to be delivered, shall be borne by the Buyer. Buyer shall be responsible for all storage and handling costs incurred and to be incurred as a result thereof.
 
12) FREIGHT ALLOWANCE. All shipments are F.O.B. Shipping Point, Las Vegas, NV, USA. The risk of loss related to the Products shall transfer to Buyer when the Products are accepted by the carrier. Any cartage, inside delivery or handling charges between freight destination and customer warehouse are to be paid by the customer. Freight will be prepaid on orders for $10,000 or more net to one destination within the 48 contiguous states by the routing of our choice. If customer specifies other routing, the difference will be invoiced. Priority shipments are not prepaid and may be subject to special handling charges. Should Buyer request a shipping method or carrier different than XToolUSA’s standard, then the full amount of the shipping cost will be invoiced to the Buyer.
 
13) TITLE. Ownership of the Products shall remain with XToolUSA until full payment of the sale price has been received. Until complete payment has been received, Buyer undertakes to warrant and keep the goods free and clear of all liens, other charges or encumbrances.
 
14) DROP SHIP POLICY. This policy applies to all products that are available for drop ship from XToolUSA: a) XToolUSA, if requested, will drop ship designated product. Provided the value of the product(s) meets the minimum prepaid shipping policy of $10,000 there will be NO freight charges added. If the value of the product(s) is less than $10,000 the freight charges will be added to the invoice.  b) Drop shipped machines will be priced at applicable distributor level price with no additional special pricing or discounts.  An additional fee may be added to each item to be drop shipped.  Prices will be determined by the amount of handling needed to process the Order.  Prices are subject to change by XToolUSA without notice. c) This policy applies products specifically designated for drop ship service by XToolUSA, all other products cannot be included. d) Due to documentation requirements that include invoice pricing to cross the US Border, no machines or products will be drop shipped outside the United States.
 
15) CLAIMS. All claims for shipping and invoicing differences must be submitted within fifteen (15) working days after receipt of shipment. Upon request, XToolUSA will provide the customer with information necessary to secure Proof of Delivery from carrier.
 
16) VARIANCE. Any claims that the quantity and description of goods delivered and the quantity and description of goods ordered do not conform to this Agreement are waived unless the Purchaser advises XToolUSA’s in writing, within fifteen (15) days from the date of receipt of the product(s).
 
17) RETURNS. All requests to return goods must be approved in advance by XToolUSA and must be made within six months from date of invoice. No merchandise is to be returned without a Return Merchandise Authorization (RMA) number from XToolUSA. An RMA number will be assigned and a label will be sent from the factory for the returnable merchandise only. This number must be marked clearly on the outside of the carton(s) to assure proper handling. RMA numbers are valid for only 60 days from day of issue. All components must be included in one package even if broken or defective. All returns are to be shipped prepaid and are subject to a handling charge. Product(s) made to order are not returnable. The issuance of an RMA number does not imply that credit will be issued. All credits issued will be based on our acceptance after inspection of the returned item(s).
 
18) RETURNS FOR CREDIT. In order to return new merchandise, the Buyer must obtain a Return Merchandise Authorization (RMA) number from XToolUSA Customer Service. There is a twenty-five percent (25%) restocking charge applied to all returns of new product. Custom products cannot be returned for credit for any reason other than product failure. Credit will not be offered for product that is returned incomplete or damaged.
 
19) MINIMUM ANNUAL SALES VOLUME. XToolUSA reserves the right to discontinue direct sales to any customer who does not meet the minimum annual sales volumes (Tier Level 1 distributors). The minimum annual sales volumes are set at the discretion of XToolUSA and are based on markets served and other relevant factors.  XToolUSA reserves the right to modify the amounts from time to time without notice.
    a) TIME PERIODS: For purposes of this section, one (1) month is a calendar month from the 1st through the last day of the month.  Three (3) months is the from the 1st day in the first month through the last day of the third month after that date.  One (1) year is a calendar year from the 1st day in the first month through the day before the first day in the next        calendar year.
    b) LEVELS: There are three pricing levels for distributors based on qualifying purchases in a specific time period.  The pricing level will be granted for: Tier Level 1: purchases from XToolUSA in the amount of $500,000 in one (1) year; or $50,000 per month for three (3) months; or $100,000 in one (1) month.  Tier Level 2: purchases from XToolUSA in the amount of $200,000 in one (1) year; or $20,000 per month for three (3) months; or $40,000 in one (1) month.  Tier Level 3: purchases from XToolUSA in the amount of $50,000 in one (1) year; or $5,000 per month for three (3) months; or $10,000 in one (1) month.
    c) LEVEL CHANGE: After a distributor qualifies for a certain pricing level, the distributor will be able to purchase product at that pricing level for three (3) months after qualifying, regardless of purchase levels during the three (3) month period.  If the annual requirement is met, the pricing level will remain for a full year, regardless of purchase levels during the year.  A distributor that meets the requirements for their pricing level will receive credit for the difference between the pricing level paid and the pricing level earned during the current month of qualification.  Any previous purchases will not be eligible for the credit.  This will be issued in the form of a store credit.  Purchases made with store credit will be considered qualified purchases for purposes of pricing qualifications.
    d) FAILURE TO MEET MINIMUM SALES VOLUME: If a distributor fails to maintain the minimum requirements for a Tier Level 1 distributor, the distributorship will be reviewed on a case by case basis to determine the continuation or termination of the distributorship.  If the distributorship is terminated, a relationship with a Tier Level 3 Distributor will be allowed to continue the flow of product.
 
20) PROMOTION OF PRODUCTS. Buyer shall sell and promote the Products in a manner which will enhance the image and good will of XToolUSA. The use of XToolUSA’s trademarks and name is strictly prohibited without prior written consent of XToolUSA.
 
21) SOFTWARE AND PRODUCT DOCUMENTATION. Certain of XToolUSA’s products may have software and/or firmware either included with or embedded in the products (the “Software”) and may include product documentation. This Software and Product Documentation section applies to those Products that include either Software or product documentation.
    a) LICENSE: Subject to Buyer’s timely payment in full of all amounts owed to XToolUSA pursuant to the Order, as of the date of receipt of the applicable Products, XToolUSA grants to Buyer a non-exclusive, non-transferable, revocable (as permitted herein) license to use the Software solely in connection with the Products, and to use the product documentation in connection with the operation of the Products; in each case, solely in the course of Buyer’s normal business operations. XToolUSA shall retain all title, right and interest, including all intellectual property rights, in and to all of the Software and product documentation except for the express license rights granted to Buyer in these Terms. Subject to Buyer’s timely payment in full of all amounts owed to XToolUSA pursuant to the Order and compliance with the terms of this Section, Buyer shall have the right to use the Software in perpetuity so long as the Software is used only in connection with the Products. In no event may Buyer use the Software to establish a duplicate system at any other location. Notwithstanding any other provision of these Terms, except as necessary to fulfill XToolUSA’s warranty obligations under these Terms, Buyer is not entitled to receive any update, upgrade or other release of the Software other than the Software embedded in or included with the product when shipped. Any update, upgrade or other release of the Software not included at the time of shipping of a product may be subject to additional charges.
    b) RESTRICTIONS: Buyer shall not, and shall not permit any third party to: (i) copy, modify, or create derivative works or improvements of the Software or product documentation; (ii) remove, disable, or otherwise create or implement any workaround to, any security features contained in the Software; (iii) remove, delete or alter any trademarks, copyright notices, or other intellectual property rights notices of XToolUSA or its licensors, if any, from the Software or product documentation; (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Software or product documentation available to any person or entity; or (v) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Software, in whole or in part.
    c) LICENSE TERMINATION: XToolUSA has the right to terminate any or all of the rights granted to Buyer pursuant to this Section, upon notice to Buyer, if Buyer breaches any of the terms of this Section.
 
22) WARRANTY. 
    a) XToolUSA’s standard Limited Warranty for the Products that is in effect as of the date of the order shall apply to Buyer’s purchase of the Products. Specific new product warranties may vary according to products and if different, a copy of the applicable Limited Warranty is available upon request by emailing the following address: support@xtoolusa.com.  Third party product(s) sold by XToolUSA are warranted only to the extent provided by the original manufacturer’s warranty and Buyer must refer to the original manufacturer’s warranty in such case.  Refurbished or reconditioned XToolUSA products are warranted for a ninety (90) day period from date of shipment. Failure of the Buyer to notify XToolUSA within the time limit set in this section shall constitute Buyer’s waiver to have the malfunction or damage remedied.  b) DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN XTOOLUSA’S STANDARD LIMITED WARRANTY FOR THE PRODUCTS, XTOOLUSA MAKES NO WARRANTIES OF ANY KIND OR NATURE FOR ANY PRODUCTS, SOFTWARE, OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF QUALITY, CONDITION, DESCRIPTION, COMPLIANCE WITH SAMPLE, PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USE, OR TRADE, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, TO THE FULLEST EXTENT PERMITTED BY LAW.
 
23) STANDARD WARRANTY.  The express warranties as set out herein, are the exclusive warranties provided under this Agreement and are in lieu of any other warranties, expressed or implied, statutory or otherwise, including but not limited to warranty of fitness for a particular purpose and merchantability. No distributor, dealer, sales representative and alike is authorized to bind XToolUSA to any other warranty Agreement.  XToolUSA will, at their discretion and at no charge, either repair, exchange or replace the product provided it is returned complete to XToolUSA during the warranty period. However, Buyer is responsible for the labor to remove and reinstall the product(s) from Buyer’s premises or work area.  Defective parts, which have been replaced, become the property of XToolUSA who may dispose of them in any manner. Replacement parts become the property of the Buyer upon their delivery.  XToolUSA is not liable for any defects in materials, designs, drawings or information provided by the Buyer, nor for information which is missing and could not be reasonably identified as such, by XToolUSA. XToolUSA does not warrant the following:
    (a) Normal wear and tear from use;
    (b) Cutting wheels, bits, batteries, and other consumable parts used or supplied with the product;
    (c) Damage of any nature to hardware or machine finishes;
    (d) Faulty or defective product operation(s) caused by unusual or unforeseeable use or conditions;
    (e) Improper installation, operation or maintenance of the product;
    (f)  Any product or system in which XToolUSA product(s) is incorporated;
    (g) Force majeure as defined by section 28 of this Agreement;
    (h) Repairs or alterations carried out by anyone other than XToolUSA;
 
24) LIMITATION OF LIABILITY. The total liability of XToolUSA for all claims of any kind whether in contract, tort or otherwise, arising out of, connected with, or resulting from XToolUSA’s performance or breach of these Terms, or Products or services furnished hereunder, shall in no event exceed the total purchase price for the Products or services in the Order giving rise to the claim. XToolUSA shall not under any circumstances be held liable for loss of profits or revenues, loss of use of product or any other product software, system, or facility, loss of data or information, lack or loss of productivity, interest charges or cost of capital, cost of substitute product, software, systems or services, cost of purchases or replacement power, downtime costs, special damages, incidental damages, liquidated damages, special damages, or consequential damages.
 
25) ASSIGNMENT. Buyer may not assign any rights or obligations under the Order without prior written consent of XToolUSA. XToolUSA may assign or transfer all of its rights and obligations under the Order without Buyer’s consent to any successor or entity pursuant to a merger, spin-off, conversion, or other corporate reorganization or restructuring, a change of control, or the sale of all or substantially all of its assets, so long as the assignee assumes all obligations of XToolUSA under the Order. For all permitted assignments, these Terms shall bind and inure to the benefit of the parties and their successors and assigns. This section will survive the expiration or termination of the Order.
 
26) TERMINATION. If Buyer does not fulfill its obligations or is in default or breach of these Terms, XToolUSA may then terminate the Order by notice in writing. XToolUSA has the right to claim compensation for any loss it incurs as a result of Buyer’s default, in addition to any other rights or recourse available to XToolUSA at law or in equity.  If the Buyer terminates this Agreement, in whole or in part, by written notice, XToolUSA will, upon receipt of the termination notice, cease the performance of the Order and/or contract according to the instructions of the Buyer. In such a case, Buyer shall be invoiced for costs incurred depending on the nature of the product.
 
27) MODIFICATIONS, AMENDMENTS, AND WAIVERS. These Terms may not be modified or amended, including by custom, usage of trade, or course of dealing, except by an instrument in writing signed by duly authorized representatives of both Buyer and XToolUSA. Performance of any obligation required of a party under these Terms may be waived only by a written waiver signed by a duly authorized representative of the other party, which waiver shall be effective only with respect to the specific obligation described therein. The waiver by either party of a breach of any obligation of the other shall not operate or be construed as a waiver of any subsequent breach of the same provision or any other provision of these Terms.
 
28) FORCE MAJEURE. Should a delay in performance (including production and/ or delivery) be caused by a Force Majeure event, the time of performance shall be extended by a reasonable amount of time with regard to all applicable circumstances. Upon mutual agreement, the parties shall set a new date for performance. Except as to payments due hereunder, neither party shall be liable for failure to perform hereunder for the duration of and to the extent such failure is occasioned by a Force Majeure event which is defined as follows: war, riots, insurrections, fire, flood, extreme weather, explosions, strikes and other labor or industrial disturbances, accidents, Government, State, Provincial or Municipal regulations and/or ordinances, an act of God, embargos, blockades, delay in obtaining materials, legal restrictions, currency regulations, or any cause or condition beyond the reasonable control of the parties. Where such conditions continue for more than three (3) months, either party shall be free to terminate the Order. In the case of termination, XToolUSA shall be paid the value proportionate to the Order price for any finished Products and work-in-progress, if any, along with additional costs incurred as of the date of termination.
 
29) APPLICABLE LAW. These Terms and all Orders shall be governed by and construed in accordance with the laws of the State of Nevada, USA, without regard to the conflict of law provisions thereof. For the purposes of all legal proceedings, the state and federal courts of Las Vegas, Nevada, USA, shall have the exclusive jurisdiction to entertain any action arising under these Terms and all Orders. Each party hereto hereby irrevocably attorns to the jurisdiction of the courts of Las Vegas, Nevada, USA.
 
30) WAIVER OF JURY TRIAL.
    a) WAIVER OF JURY TRIAL: EACH PARTY HEREBY IRREVOCABLY WAIVES ITS RIGHTS TO TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THESE TERMS OR THE TRANSACTION OR TRANSACTIONS RELATING TO ITS SUBJECT MATTER, INCLUDING ANY AND ALL ORDERS. 
 
31) SEVERABILITY. Any term, condition or provision of these Terms, or any part thereof, which is or may be found to be prohibited or unenforceable in any jurisdiction shall, as regards such jurisdiction and to the extent of such prohibition or unenforceability, be deemed to be severed from these Terms, and the remaining terms, conditions and provisions of these Terms shall remain in full force and effect.
 
32) WAIVER. Any act or omission by XToolUSA will not constitute or be deemed to be a waiver of the rights granted to XToolUSA by the terms of this Agreement.
 
33) ENTIRE AGREEMENT. These Terms and any related quotations constitute the entire understanding and contract between the parties and supersede any and all prior and contemporaneous, oral or written representations, communications, understandings, and agreements between the parties with respect to the subject matter hereof. The parties acknowledge and agree that neither of the parties is entering into the Order on the basis of any representations or promises not expressly contained in these Terms and any related quotation(s).
 
34) EXPORT LAW ASSURANCES. The parties acknowledge that neither the Products or any included Software will be exported except as authorized by law in the relevant jurisdictions.