Terms and Conditions

For hardware, software, and maintenance purchases

  1. Applicability. These terms and conditions of sale (the “Terms”) are by and between Xigent Solutions, LLC (“Seller”) and the party named in the Sales Order (the “Buyer”) and are the only terms which govern the sale of the hardware, firmware, and software described in the Sales Order (collectively, the “Products”). For the purposes of these Terms, “Sales Order” includes any Sales Orders that are defined as such by their own terms, or a quotation, sales confirmation, purchase order, invoice or offer or acceptance by Buyer to purchase Products from Seller. These Terms supersede and prevail over all prior or contemporaneous understandings, agreements, negotiations, representations, or communications between the parties, as well as any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its Sales Order or such terms to Seller. Fulfillment of Buyer’s offer to purchase Products, no matter the documentation used by Buyer to communicate its desire to purchase Products (including a purchase order of its own form or format), does not constitute acceptance of any of Buyer’s terms and conditions and shall not be deemed as an agreement by Seller to modify or amend these Terms; an offer by Buyer to purchase the Products constitutes assent to these Terms.
  2. Physical Products.
    a) Delivery. The Products will be delivered within a reasonable time after the receipt of Buyer’s Sales Order, subject to availability of finished Products. Seller shall not be liable for any delays, loss, or damage in transit. Unless otherwise agreed in writing by the parties, Seller shall deliver the Products to the location specified in the Sales Order (and if none is specified, Buyer’s place of business) (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Products. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point, and will unload and release all transportation equipment promptly so Seller incurs no demurrage or other expense. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Sales Order. Risk of loss for the Products shall transfer to Buyer FOB shipping point. Title to the Products shall transfer to Buyer upon delivery of the Products to the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Products, 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 MINNESOTA Uniform Commercial Code.

    b) Failure to Accept. If for any reason Buyer fails to accept delivery of any of the Products on the date specified in Seller’s (or its designated carrier’s) notice that the Products have been delivered at the Delivery Point, or if Seller (or its designated carrier) is unable to deliver the Products at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) the Products shall be deemed to have been delivered; and (ii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). The quantity of any installment of Products as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Products (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within ten (10) days of the date when the Products would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice for such Products to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for any non-delivery of Products

    c) Nonconforming Products. Buyer shall inspect the Products within ten (10) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products at the end of the Inspection Period unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (i) the product shipped is of a different type or specification than identified in the Sales Order; or (ii) the product’s label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (1) replace such Nonconforming Products with conforming Products, or (2) credit or refund the Price (defined below) for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility located at 2200 West 46th Street, Sioux Falls, SD 57105, or as otherwise may be specified by Seller in writing. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this section, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under these Terms to Seller.

  3. Software. Any software applications or programs included in the Products (collectively, the “Software”) is provided to Buyer under license from the third-party owner of such Software (the “Licensor”), and Buyer’s right to use the Software is limited to the specifications set forth in the applicable Sales Order, including, without limitation, the number of authorized users or seats, license term, permitted locations, and any other use restrictions identified therein. The license to the Software is granted directly by the Licensor to Buyer, and Seller is not a party to such license; accordingly, Buyer acknowledges that Licensor may require Buyer to agree to additional terms and conditions as a condition of Buyer’s receipt and use of the Software, and Buyer agrees to comply with all such terms. Software shall be deemed “delivered” when it is made available to Buyer in accordance with the Licensor’s specifications and procedures, or when Seller notifies Buyer that the Software has been delivered, whichever occurs first. BUYER HEREBY WAIVES, RELEASES, AND FOREVER DISCHARGES SELLER AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO THE SOFTWARE, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS RELATED TO (A) THE CONFORMITY, PERFORMANCE, OR FUNCTIONALITY OF THE SOFTWARE; (B) INFRINGEMENT OR MISAPPROPRIATION OF ANY INTELLECTUAL PROPERTY RIGHTS; (C) FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY; (D) ERRORS, BUGS, VIRUSES, OR DEFECTS IN THE SOFTWARE; (E) ANY ACTS OR OMISSIONS OF THE LICENSOR; OR (F) THE LICENSOR’S FAILURE TO PERFORM ITS OBLIGATIONS UNDER THE LICENSE AGREEMENT. Buyer’s sole recourse for any claims related to the Software shall be against the Licensor pursuant to the terms of the applicable license agreement, and Buyer agrees to look solely to the Licensor for any warranty, support, indemnification, or other remedies (unless Buyer and Seller parties to a separate agreement that provides otherwise).
  4. Maintenance and Support. Seller may offer for resale to Buyer certain maintenance, support, or service plans provided by the manufacturer or Licensor of the Products or Software (each, a “Maintenance Plan”), as identified in the applicable Sales Order. Buyer acknowledges and agrees that: (a) Maintenance Plans are provided and fulfilled solely by the applicable manufacturer or Licensor, and Seller acts only as a reseller of such Maintenance Plans; (b) the scope, duration, service levels, and other terms of each Maintenance Plan are determined exclusively by the applicable manufacturer or Licensor, and Buyer shall be bound by and comply with all such terms; (c) Seller may, in its sole discretion, perform certain ancillary services in connection with a Maintenance Plan, including, without limitation, the installation of patches, updates, or upgrades to the Products or Software, but Seller shall have no obligation to do so unless expressly set forth in the applicable Sales Order or the manufacturer’s or Licensor’s instructions; and (d) for any maintenance or support services not performed directly by Seller, Buyer shall contact the applicable manufacturer or Licensor directly to obtain service under the Maintenance Plan. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO ANY MAINTENANCE PLAN, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY REGARDING THE AVAILABILITY, TIMELINESS, QUALITY, OR ADEQUACY OF SUPPORT OR SERVICES PROVIDED THEREUNDER. BUYER HEREBY WAIVES, RELEASES, AND FOREVER DISCHARGES SELLER AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, LOSSES, DAMAGES, LIABILITIES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES) ARISING OUT OF OR RELATED TO ANY MAINTENANCE PLAN, INCLUDING, WITHOUT LIMITATION, ANY FAILURE BY THE MANUFACTURER OR LICENSOR TO PERFORM ITS OBLIGATIONS THEREUNDER. Buyer’s sole recourse for any claims related to a Maintenance Plan shall be against the applicable manufacturer or Licensor pursuant to the terms of such Maintenance Plan.
  5. Fees; Price Changes. For the Products, Buyer shall pay Seller the fees and costs set forth and described in the Sales Order (the “Fees“). Buyer acknowledges and agrees that the actual price for each Product listed in a Sales Order (the “Price”) is subject to change (and such changes may occur daily). At the time the Products are tendered by Seller to its designated carrier for shipment, Seller will invoice Buyer for the Fees for such Products according to the Prices then in-effect (which may be different than the Prices set forth in the Sales Order). All Fees 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 shall be responsible for all such charges, costs and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
  6. Payment Terms. Buyer shall pay all amounts invoiced by Seller within thirty (30) days from the date of invoice. Buyer shall make all payments hereunder by wire transfer or check and in US dollars. Payment by credit card is limited to $5,000.00 per payment, unless prior written approval is granted by Seller to Buyer. If a payment is not made to Seller when due, Buyer shall pay interest on all unpaid amounts at the rate of 1.5% per month or the rate permitted by applicable law, whichever is lower, calculated daily and compounded monthly. Buyer shall reimburse Seller 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 Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Products and stop Products in transit if Buyer fails to pay any amounts when due and such failure continues for ten (10) days following written notice thereof. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
  7. Limited Warranty. Seller does not manufacture or control any of the Products. The availability of Products through Seller does not indicate an affiliation with or endorsement of any product, service, or manufacturer. Accordingly, Seller does not provide any warranties with respect to the Products. The Products may be covered by the manufacturer’s warranty as detailed in the product’s description included with the Products. To obtain warranty service for defective products, please follow the instructions included in the manufacturer’s warranty. ALL PRODUCTS ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY BY SELLER WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY; WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR 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. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. YOU AFFIRM THAT SELLER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.
  8. Limitation of Liability. If Seller’s performance of its obligations under these Terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under these Terms 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. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY, OR ANY OF THEIR OFFICERS, DIRECTORS, AGENTS, OR CONTRACTORS, FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’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 FEES PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER or $1,000.00, WHICHEVER IS GREATER.
  9. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under these Terms or any resale of the Products by Buyer. The Products may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, re-export, or release any Products to any jurisdiction or country to which, or any party to whom, the export, re-export, or release of any Products is prohibited by applicable federal law, regulation, or rule. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller is not responsible for determining whether any third-party product to be used with a Product satisfies regulatory requirements of the country to which such Product is to be delivered, and Seller shall not be obligated to provide any Products where prohibited by law or failing to satisfy the local regulatory requirements. Seller may terminate these Terms if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Products. Buyer shall be responsible for any breach of this section by its, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, partners/members/shareholders, customers, agents, distributors, resellers, or vendors.
  10. Government Entities. Buyer shall not resell Products to any governmental authority or its respective agencies without Seller’s prior written consent. Unless otherwise separately agreed in writing between Seller and Buyer, no provisions required in any United States government contract or subcontract related thereto shall be a part of these Terms or imposed upon or binding upon Seller, and these Terms shall not be deemed an acceptance of any government provisions that may be included or reference in Buyer’s request for quotation, Sales Order, or any other document. The software and any documentation provided with the Products and Services are “commercial items” as that term is defined at 48 C.F.R. 12.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all United States government end-users acquire the software and documentation with only those rights set forth herein.
  11. Intellectual Property. All right, title, and interest in and to the trademarks and service marks used by Seller is exclusively with Seller or its licensors; these Terms do not assign to Buyer and Buyer shall not acquire via these Terms any patent rights, trademark rights, copyrights, trade secret rights, or other intellectual property rights in any of Seller’s, or its licensors’, businesses or assets.
  12. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under these Terms and such failure continues for thirty (30) days after Buyer’s receipt of written notice of nonpayment; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; (c) breaches or violates any other agreement between the parties; (d) or Seller terminates any other agreement between the parties; (e) undergoes a change in control; or (f) 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 creditor. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms including, but not limited to, the following provisions: Limitation of Liability, Waiver, Relationship of the parties, No third-party beneficiaries, Notices, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
  13. Confidential Information. All non-public, confidential or proprietary information of Seller (“Confidential Information”), including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller 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 “confidential” in connection with these Terms is confidential, and Buyer may solely use such information for the purposes of performing its obligations under these Terms and may not disclose or copy such information unless authorized in advance by Seller in writing. Upon Seller’s request or termination of these Terms (whichever is earlier), Buyer shall promptly return Confidential Information excluding information or materials Seller provided to Buyer as services or deliverables. Seller shall be entitled to injunctive relief for any violation of this Section. This Section 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. Notwithstanding the above restrictions on the disclosure of Confidential Information, Buyer may disclose Confidential Information pursuant to a legal obligation requiring such disclosure; in which case, Buyer shall promptly notify Seller of any such obligation to disclose, and Buyer shall only disclose such Confidential Information to the extent legally required and shall otherwise protect the Confidential Information in accordance with the confidentiality obligations of this Section.
  14. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached these Terms, for any failure or delay in fulfilling or performing any term of these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, declaration of pandemic, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of ninety (90) days, Buyer shall be entitled to give notice in writing to Seller to terminate these Terms.
  15. Assignment. Buyer shall not assign, transfer, or convey any of its rights or obligations under these Terms, whether by operation of law or otherwise, nor undergo a merger, sale of its business or assets to which these Terms relate, reorganization, or change of control, without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under these Terms. Seller reserves the right to change the terms of any Sales Order, including the Fees, at any time upon notice to Buyer of the same if Seller reasonably believes the acts or omissions of Buyer will materially impact the subject matter of a Sales Order.
  16. Relationship of the Parties. Seller and Buyer are independent contractors. Neither party is an agent, representative, partner, or employee of the other. Neither party has authority to enter into contracts, make representations, or incur obligations on behalf of the other. These Terms are solely between Seller and Buyer. No other person or entity has any rights under these Terms.
  17. Governing Law; Disputes. All matters arising out of or relating to these Terms are governed by and construed in accordance with the internal laws of the State of Minnesota without giving effect to any choice or conflict of law provision or rule (whether of the State of Minnesota or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Minnesota. Any legal suit, action, or proceeding arising out of or relating to these Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Minnesota in each case located in the County of Hennepin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
  18. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Order or to such other address that may be designated by the receiving party in writing. All Notices shall 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 these Terms, 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. Notwithstanding the foregoing, Seller may advise Buyer of changes in Fees or Products via email, which shall be deemed given when sent by Seller.
  19. Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and signed by an authorized representative of each party; except that, Seller may amend these Terms at any time by posting an updated version at xigentsolutions.com/terms, or such other URL as is designated by Seller from time to time. Once posted, such version of the Terms shall apply to all Sales Orders with retroactive effect, as of the “Last Updated” date above.
  20. Severability. If any provision of these Terms is found to be invalid or unenforceable, the remaining provisions will continue in full force and effect. Waiver. Seller’s failure to enforce any provision of these Terms does not waive its right to enforce that provision later. Any waiver must be in writing and signed by Seller to be effective.
  21. Electronic Transactions. Buyer agrees to conduct business with Seller electronically. Buyer consents to receive all communications, agreements, notices, and disclosures from Seller in electronic form, including via email or through Seller’s website. Electronic records and signatures shall have the same legal effect as their paper equivalents. Buyer may withdraw this consent by providing written notice to Seller, but doing so may limit Buyer’s ability to transact with Seller.