END USER TERMS AND CONDITIONS FOR USE OF THE FLEETQI™
By opening the packaging containing this FleetQi™ (“Product”) or by using such Product in any manner, you are consenting and agreeing to be bound by the following terms and conditions. You are also agreeing that the following terms and conditions constitute a legally valid and binding contract that is enforceable against you. If you do not agree to all of the terms and conditions set forth below, you must promptly return the Product for a full refund prior to using them in any manner.1. Acceptance — ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THE TERMS AND CONDITIONS CONTAINED HEREIN, AND UPON BUYER’S ASSENT THERETO. NO VARIATION OF THESE TERMS AND CONDITIONS SHALL BE BINDING UPON ELECTRONIXIQ LLC (“XiQ”) UNLESS AGREED TO IN WRITING AND SIGNED BY AN AUTHORIZED REPRESENTATIVE OF XiQ.
For purposes of this agreement, “Seller” shall mean either XiQ, if the Product is purchased or otherwise acquired directly from XiQ, or a XiQ authorized reseller. Buyer, by accepting the Product, shall be deemed to have assented to the terms and conditions set forth herein, notwithstanding any terms contained in any prior or later communications from Buyer and whether or not Seller shall specifically or expressly object to any such terms.
Notwithstanding Buyer’s acceptance thereof, if the FleetQi™ is purchased or otherwise acquired directly from XiQ, XiQ warrants that for a period of twelve (12) months from date of delivery that: (i) the Product shall conform in all material respects with the Product Specifications provided by XiQ with the Product, and (ii) the FleetQi™ products are free from defects in materials and workmanship. The warranty provided herein specifically excludes any software or hardware not provided by XiQ. If Product is purchased from a XiQ authorized reseller, any additional warranty obligations shall be provided in writing directly by such XiQ authorized reseller to Buyer. THIS WARRANTY IS EXCLUSIVE AND XiQ MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. Seller’s warranties made in connection with this sale shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the Product in any manner, has failed to use the Product in accordance with industry standards or practices, or has failed to use the Product in accordance with instructions, if any, furnished by Seller.
BUYER’S EXCLUSIVE REMEDY WITH RESPECT TO PRODUCT PROVED TO SELLER’S SATISFACTION TO BE DEFECTIVE OR NONCONFORMING SHALL BE REPLACEMENT OF SUCH PRODUCTS WITHOUT CHARGE OR REFUND OF THE PURCHASE PRICE, IN SELLER’S SOLE DISCRETION, UPON THE RETURN OF SUCH PRODUCTS IN ACCORDANCE WITH SELLER’S INSTRUCTIONS BELOW. NEITHER SELLER NOR XiQ NOR ANY OF ITS AFFILIATES SHALL IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCT, EVEN IF SELLER OR XiQ OR ITS AFFILIATE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE SAVINGS, LOSS OF PRODUCTS OF BUYER OR OTHER USE OR ANY LIABILITY OF BUYER TO A THIRD PARTY ON ACCOUNT OF SUCH LOSS, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT, INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER’S GROSS NEGLIGENCE.
In the event that the FleetQi™ fails to conform to the warranty set forth herein, during the warranty period: (i) Buyer shall notify XiQ in a timely manner in writing that such FleetQi™, as applicable, failed to conform and shall furnish a detailed explanation of any alleged nonconformity; (ii) Buyer, at its expense, will contact either XiQ or a XiQ trained service engineer to assess the issue and identify the defective FleetQi™, as applicable; and (ii) at XiQ’s option and election, Buyer shall either return such nonconforming FleetQi™ to XiQ (at its manufacturing facility or at a place designated by XiQ) or destroy such FleetQi™, as applicable, and provide XiQ with written certification of destruction. In the event that a FleetQi™, as applicable, is returned to XiQ’s manufacturing facility, XiQ may analyze such FleetQi™, as applicable, for nonconformities. In the event that XiQ determines that such XiQ, as applicable, is conforming, the FleetQi™, as applicable, shall be shipped to Buyer and Buyer shall be responsible for the payment for such FleetQi™, as applicable, and related shipping charges. In the event that XiQ determines that such FleetQi™, as applicable, is nonconforming, XiQ shall be responsible for the payment for such FleetQi™, as applicable, and related shipping charges. Except as expressly provided herein, Buyer shall not have the right to return a FleetQi™, as applicable, to XiQ without XiQ’s prior written consent.
Buyer has the responsibility and hereby expressly assumes the risk to verify the hazards and to conduct any further research necessary to learn the hazards involved in using the FleetQi™ Product. Buyer also has the duty to warn Buyer’s customers, employees, agents, assigns, officers, successors and any auxiliary or third party personnel (such as freight handlers, etc.) of any and all risks involved in using or handling the Product. Buyer agrees to comply with instructions, if any, furnished by Seller or XiQ relating to the use of the Product and to not misuse the Product in any manner. Buyer shall not reverse engineer, decompile, disassemble or modify the FleetQi™ Product. Buyer acknowledges that XiQ retains ownership of all patents, trademarks, trade secrets and other proprietary rights relating to or residing in the FleetQi™ Product and Buyer receives no rights to such intellectual property rights by virtue of its purchase of Product other than as expressly set forth herein. Buyer shall have no right to use any trademarks owned or licensed to XiQ without the express written permission of XiQ.