XProduct – Terms and Conditions

Terms and Conditions

Terms and Conditions

These Terms and Conditions of X-PRODUCT constitute the Agreement governing your use of X-PRODUCT consulting and parts supply services provided through the website or otherwise provided through X-PRODUCT.

General Provisions

These terms and conditions coupled with any quote that you accept form a legally binding contract between you and X-PRODUCT (the “Agreement”) governing your use of X-PRODUCT services and any parts supply service. If you choose to use our website and/or services, the terms described below are effective. If you choose to manually request a quote or place an order via electronic mail, phone or otherwise, the terms described below are effective upon your submission of an enquiry or quote request and should be read in conjunction with any other Terms and Conditions that may be provided along with the quote. You are deemed to have accepted this Agreement without modification upon the first time you access the Website or otherwise request a quote. Additionally, we require you to expressly acknowledge your agreement to these terms prior to requesting and / or accepting a quote.

Customer Responsibilities

As our customer, you are responsible for all orders placed and for ensuring that all information provided in a quotation is accurate and complete. If you use the Website, you agree that you shall not use any device, software or routine, including but not limited to any viruses, Trojan horses, worms, time bombs or cancel bots, intended to damage or interfere with the proper working of the Website or to intercept or expropriate any system, data or personal information from the website.

Orders and Payments

Once you have obtained a quote which may include parts sourcing and supply services, you may accept such quote and submit your order requesting that service. The total fees for each order will include the applicable quote, all applicable taxes and all applicable shipping charges and any unforeseen charges.

X-PRODUCT reserves the right to adjust the price in the event that

the delivery period is extended for any of the reasons
the nature of scope of Goods or Services is changed;
the documents provided by you are not in conformity with the actual circumstances or are incomplete; or
the price was agreed upon in a currency other than Australian Dollar (AUD) and the exchange rate AUD / foreign currency at the time of placing the order deviates by more than +/- 1% from the exchange rate that was published at 12 noon Australian time by Reuters on the day of the submittal of the tender; or
laws, regulations or generally accepted rules of interpretation are changed after the submittal of the tender.

Any unforeseen additional logistics charges such as customs charges, insurances, import duties, tariffs etc., or updates required to packaging and freight costs will be transferred directly onto you on the associated parts invoice or on a separate invoice for immediate payment.

To submit an order, you must pay all fees either (i) in advance through the use of your credit card or by electronic funds transfer (ii) pursuant to such credit terms or as prior approved by X-PRODUCT or as noted within the Terms section of the quote supplied. Once you respond by email or writing with a request to proceed order, you may or may not receive an electronic confirmation. Your request to proceed order is binding on both you and X-PRODUCT and may not be cancelled except by agreement.

Delivery Period

The Time of delivery is specified in the Quotation. Compliance with the delivery period is conditional upon you fulfilling all its contractual and non-contractual obligations to X-PRODUCT.

X-PRODUCT may have to adjust the time of delivery if

the information required for performance of the contract is not made available to X-PRODUCT in time or is incomplete, or if you subsequently changes such information; or
you or a third party is in delay with work it has to execute, or you are in delay with the performance of your contractual obligations; or
impediments exist which X-PRODUCT, despite the use of the required level of care cannot prevent, regardless of whether such impediments arise at X-PRODUCT or a third party’s premises. Such impediments include significant operating breakdowns, accidents, labour conflicts, late or deficient delivery of raw materials, semi-finished or finished products, important work parts being rejected, measures taken or omissions by any state authorities; or
any other circumstances arise for which X-PRODUCT is not responsible.

X-PRODUCT will not be liable for any damage or penalty for delay in delivery, or for failure to give notice of delay. However, X-PRODUCT will use all reasonable efforts to give notice of delays.

Delays will not be grounds for cancellation. X-PRODUCT will not compensate for any damage or additional cost that may occurs through the delay.

Inspection and Acceptance of Supply

Insofar as it is normal practice, X-PRODUCT shall inspect the Supply before dispatch. If the Client requests further testing, such as an acceptance test, this shall be agreed in writing and paid for by the Client.

The Client shall inspect the Supply within 30 days and shall immediately notify X-PRODUCT in writing of any defects. If the Client fails to do so, the Supply shall be deemed to be accepted.

To the extent that X-PRODUCT is responsible for the notified defects, X-PRODUCT shall remedy such defects as soon as possible, and the Client shall give X-PRODUCT sufficient opportunity to do so. After remedy of such defects, an acceptance test shall be carried out at the request of the Client or of X-PRODUCT, provided that such acceptance test has been agreed upon in accordance with this Clause.

Acceptance shall also be deemed as having taken place:

if the Client or its representative does not participate in a possible acceptance test;
if the acceptance test cannot be carried out on the date arranged for reasons for which X-PRODUCT is not responsible;
if the Client refuses to sign the acceptance report;
as soon as the Client puts the Supply to use, places it in its warehouse or implicitly accepts the Supply in any other way;
if the Client refuses acceptance without being entitled to do so.

All claims by the Client arising from or in connection with defects in the Supply are regulated expressly and exhaustively by this Clause. Other and further claims are excluded.

Termination of the Contract by X-PRODUCT

The contract shall be amended as appropriate if unforeseen events substantially change the economic effect or the content of the Supply or substantially affect the fulfilment of the contract by X-PRODUCT, or if provision of the Supply subsequently becomes entirely or partially impossible. Insofar as such amendment is not economically justifiable, X-PRODUCT may terminate the contract or the individual provisions affected thereby.

If X-PRODUCT intends to terminate the contract, it shall, after having recognised the consequences thereof, immediately inform the Client even if an extension of the delivery time has previously been agreed. In the event of a termination of the contract, X-PRODUCT shall be entitled to payment for those parts of the Supply which have already been made. Claims for damages by the Client are excluded.

Successors and Assigns

This Agreement shall inure to the benefit of the successors and assigns of X-PRODUCT and, subject to the restrictions on transfer herein set forth, be binding upon you and your successors and assigns.

Contractor Status

The Parties are and shall remain independent contractors with respect to each other, and nothing in this Agreement shall be construed to place the Parties in the relationship of partners, joint ventures, fiduciaries or agents, nor grant any right or authority to assume or create an obligation or responsibility, express or implied, on behalf of or in the name of the other or bind the other in any manner whatsoever.

Entire Agreement

X-PRODUCT terms and conditions constitute the entire agreement between the parties with respect to the subject matter hereof and supersedes and merges all prior agreements or understandings, whether written or oral. No modification, amendment or waiver of any provision of this Agreement shall be valid or binding unless in writing and executed by both of the Parties. Any other purported modification, amendment or waiver of any provision of this Agreement shall be null and void. No waiver by any party of any breach, or the failure of any party to enforce any of the terms and conditions of this Agreement, shall affect, limit or waive that party’s right to enforce and compel compliance with all terms and conditions of this Agreement, or to terminate this Agreement according to its terms.

Severability

If one or more provisions of this Agreement are held to be unenforceable under applicable law, the parties agree to renegotiate such provision in good faith. In the event that the parties cannot reach a mutually agreeable and enforceable replacement for such provision, then (i) such provision shall be excluded from this Agreement, (ii) the balance of this Agreement shall be interpreted as if such provision were so excluded and (iii) the balance of this Agreement shall be enforceable in accordance with its terms.

Title and Risk of Loss

Delivery occurs Ex Works on the actual shipping date, and title and the risk of loss transfer to you upon shipment.

Warranty

All products produced and sold by the Parts supply service are warranted to conform with such specifications as mutually agreed upon by the parties. In the event that, within three (5) business days of your receipt of the product, you shall determine that any product is not in conformity with such specifications, you shall return such product to X-PRODUCT for analysis. We will have five (5) business days to complete our analysis of such product. If the product does not meet the agreed upon specifications, X-PRODUCT shall, at our sole option, either (i) replace such product with a corresponding product that meets such specifications, or (ii) accept for return such product for credit or refund.

THE FOREGOING WARRANTIES ARE IN LIEU OF ANY OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR INTENDED OR PURPOSES, EACH OF WHICH IS HEREBY DISCLAIMED. WE ALSO DO NOT GUARANTEE CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OUR WEBSITE OR SERVICES AND HEREBY NOTIFY YOU THAT OPERATION OF THE WEBSITE MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL. USE THE WEBSITE AT YOUR OWN RISK.

X-PRODUCT will not be responsible to you for consequential, exemplary or incidental damages (such as loss of profit or employee’s time) regardless of the reason. In no event shall the liability and/or obligations of X-PRODUCT arising out of the purchase of products via the Parts supply service by you or others exceed the purchase price of the products.

Customer Indemnification

You agree to indemnify X-PRODUCT, its affiliates, parent and subsidiaries and its Parts supply service from and against any and all claims and damages of any kind (including attorney’s fees) resulting from your use of the Parts supply service, the Website, or from your breach of any provision of this Agreement.

Confidentiality

X-PRODUCT is committed to maintaining the confidentiality of the confidential information that you submit in connection with receiving a quote or ordering parts or services. We acknowledge and agree that any specifications or documentation, including. stl or other build files that you submit may contain valuable proprietary information, ideas and expressions. Accordingly, X-PRODUCT will use a reasonable degree of care to keep such confidential information confidential, and shall not use or disclose such confidential information except as required to perform the parts supply services. The foregoing confidentiality obligation does not apply to information in our possession before your disclosure, information that is generally publicly available, information received by us from a third-party without a confidentiality obligation to you or to any disclosure of information required by law or court order. You recognise that X-PRODUCT provides similar services to others. We will not, however, use your confidential information in performing those services.

Tooling

Unless otherwise agreed to by X-PRODUCT in the order, if any products that you order require tooling, such tooling will remain the proprietary property of X-PRODUCT and any costs related to such tooling will be your responsibility. X-PRODUCT will provide adequate tooling for the quantity specified in the order. Future orders submitted for similar products may require new tooling and related costs. Any injection mould tooling will not be stored or maintained indefinitely and as such will be maintained for a period of no less than two years prior to disposal.

Privacy

The Privacy Policy relating to the Parts supply service is located on our website. Such policy is operated by reference into this Agreement and may be modified by X-PRODUCT from time to time in its sole discretion.

Dispute Resolution Customer and X-PRODUCT shall endeavour to resolve any controversy, claim or dispute arising out of or relating to the Agreement, or the performance or breach thereof, by negotiation. Both X-PRODUCT and Customer will comply with all laws applicable to the Agreement.

All notices given under the Agreement will be effective when received in writing. Notices to the Customer and X-PRODUCT will be sent to the address provided in the Agreement.
Changes to the Agreement must be in writing and must be signed by both parties.

Terms and Conditions: Extended

Client or Customer means the person or entity that places an Order with X-PRODUCT for Services and/or supply of Goods (Supply)

Order means a Purchase Order or written request for Services and/or Goods submitted in writing by the Client to X-PRODUCT.

An Order will become binding on X-PRODUCT and the Client as soon the Client has been provided with a written request to proceed, an order acceptance and/or a confirmation of payment.

Services means the Services provided by X-PRODUCT to the client at the clients request pursuant to an Order.

Goods means goods provided by X-PRODUCT to the client at the clients request pursuant to an Order.

Quotations provided by X-PRODUCT to the Client for the supply Services and/or Goods are valid only if they have been provided in writing by X-PRODUCT. Quotations for services and/or goods are valid for 30 calendar days unless otherwise specified in writing by X-PRODUCT.

Any verbal quotation requires written confirmation by X-PRODUCT.

Price means the price for Services or Goods as stated in the Quotation and agreed to in the Order or as otherwise agreed to in writing by X-PRODUCT.

Prices quoted apply only to the deliveries and quantities specified in the quotation. Any goods are subject to the incoterm EXW unless specified different in writing by X-PRODUCT. All services and goods are without all applicable taxes (including GST) unless otherwise noted.

Delivery means the delivery of information and/or goods. Information can be delivered in form of reports & presentations or email and phone.

Goods are delivered according to the specifications agreed in the Quotation.

Payment means the payment of services and/or goods as quoted by X-PRODUCT and accepted by the Client the order confirmation. The client agrees to pay the total amount as stipulated within the quote and strictly within the time frame noted. Any upfront payment to commence work or deposits in kind are non-refundable.

Third Party

To facilitate end to end product development services and to support design, engineering and part manufacturing activities, X-PRODUCT may engage third party entities, suppliers or vendors (Third Party). X-Product will use its commercially reasonable efforts to identify and engage with such Third Party at the most reasonable prices available subject to the satisfaction of other commercially important terms and conditions including quality, quantity and reliability of the supply or services, applying a degree of effort to achieving such reasonable prices that is no less rigorous than what it would apply for X-PRODUCT’s own use.

Cancellation and Change

No Order may be cancelled or altered by the Client without the prior written consent from X-PRODUCT. The Client agrees to indemnify X-PRODUCT against all losses and expenses associated with or arising out of any variation of an Order permitted by X-PRODUCT. If X-PRODUCT approves a cancellation of an Order, in whole or in part, X-PRODUCT will be entitled to payment for all work performed.

Intellectual Property Rights (IPR)

X-PRODUCT does not trade, sell, grant, transfer or assign any IPR to the Client in the course of performing its obligations under these Terms & Conditions including any Intellectual Property Rights in the Services.

Liability

X-PRODUCT excludes all liability to a maximum extent permitted by law. Any liability is to direct damages only and to the maximum value of the fees charged in the project by X-PRODUCT. Any compensation for indirect loss or damage such as, but not limited to, claims for loss of production, revenue, profit including interest, business, contracts or opportunity and increased cost of capital, financing or overhead incurred to the Client is excluded.

Where Goods are supplied to the Client, X-PRODUCT liability is limited to:

the costs of replacing the Goods or
the costs of obtaining equivalent Goods or
the costs of repairing the Goods, whatever is the lowest amount.

Governing Law

These Terms and Conditions are governed by the laws of Victoria, Australia. The parties agree that any action brought by either party to interpret or enforce any provision of this Agreement shall be brought in, and each party agrees to, and does hereby, submit to the jurisdiction and venue of, the appropriate state or federal court for the district encompassing X-PRODUCT’s principal place of business.

By accepting a Quotation and placing an Order with X-PRODUCT the client is accepting these Terms and Conditions.

Subject to change

Please note that these Terms and Conditions are subject to change without notice. Please refer to Terms and Conditions provided with our quote and the extended X-PRODUCT Terms and Conditions available through our website.

Terms and Conditions

X-PRODUCT™

Collins Street, Melbourne 3000 (reception)
Lygon Street, Carlton 3053