Terms and Conditions

These terms of sale apply to orders for Products and Services by all customers (“Customer”), unless Customer has entered into a separate written agreement that applies to Customer’s orders for specific Products or Services, in which case, the separate written agreement governs Customer’s purchase and use of Products and Services.

GENERAL TERMS

1. DEFINITIONS
   
   A. “Delivery” for Products occurs when Perform-X provides the Product to a carrier at Perform-X’s designated point of shipment.
   
   B. “Order” means Customer’s order of Products or Services, in any manner via verbal, purchase order or other Orders are subject to prepayment or credit approval and are subject to Perform-X acceptance.
   
   C. “Product” means the products ordered by Customer in any manner via verbal, purchase order or other. Terms applicable to specific Products are further discussed in the Product Schedules in Section 8 below. Products excludes Services and Third-Party Products.
   
   D. “Service Agreements” means service contracts, statements of work, services specifications, and any other similar mutually agreed documents.
   
   E. “Services” means collectively: (i) services for the support and maintenance of Products (“Support Services”); and (ii) consulting, installation, implementation, and other services that are not Support Services (“Professional Services”).
   
   F. “Third-Party Products” means products, equipment, hardware, software, or services that are not “Perform-X” branded. Third-Party Products may include, without limitation, Products, equipment and Services manufactured, created, licensed, or performed by or on behalf of Customer, its affiliates or Perform-X or its affiliates, and may include hardware or software installed on Products and equipment in the course of performing a Service.
   
   
2. BUYING PRODUCTS AND SERVICES
   
   A. Orders. Acceptance of one Order is independent from any other Order. Quoted prices are effective until the expiration date of the Perform-X’s quote, but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Orders may contain charges for shipping and handling.
   
   B. Changed or Discontinued Products or Services. Perform-X may revise or discontinue Products, Services, and Third-Party Products at any time, including after Customer places an Order, but prior to Perform-X’s shipment or performance. As a result, Products and Services Customer receives may differ from those ordered. However, Perform-X branded Products will materially meet or exceed all published specifications for the Products. Parts used in repairing or servicing Products may be new,
   equivalent-to-new, or reconditioned.
   
   C. Cancelation and Acceptance. Customer may not cancel Orders. Orders for Third-Party Products are subject to availability and are cancellable only by Perform-X. All Products are deemed accepted by Customer upon Delivery. Customer may request to return certain Products to Perform-X by calling Perform-X or sending an email to info@perform-x.com. Even though Customer accepts Products as stated above, Customer retains all rights and remedies set forth in the applicable Product warranty.
   
   D. Risk of Loss; Title. Risk of loss for sold Products transfers to Customer upon Delivery. Title to Products passes to Customer upon Delivery. Unless otherwise agreed, Perform-X will choose the common carrier. Customer must notify Perform-X within five (5) days of Delivery if Customer believes any part of its Order is missing, wrong, or damaged. Perform-X is not liable for any damage or loss to the Products when non-Perform-X provided shipping method is used for shipping from Perform-X to the Customer. Customer must work with their designated carrier for re-imbursement. Customer is responsible for inspecting the packages upon delivery and must note any visible damage on the proof of delivery or other delivery receipt Customer may be requested to sign. Perform-X will not be responsible for any visible shipping damages not noted on the delivery receipt.
   
   E. Payment. Unless other written arrangements have been made in advance with Perform-X, Customer must pay Perform-X’s invoice in advance prior to shipment of any Products.
   
   F. Taxes. Customer is responsible for payment of any sales, use, value added, GST, and any other similar taxes or governmental fees associated with Customer’s Order, except for taxes based on Perform-X’s net income, gross revenue, or employment obligations. Customer must also pay all freight, insurance, and taxes (including but not limited to import or export duties, sales, use, value add, and excise taxes). If Perform-X is obligated by applicable law to collect and remit any taxes or fees, then Perform-X will add the appropriate amount to Customer’s invoices as a separate line item. If Customer qualifies for a tax exemption, Customer must provide Perform-X with a valid certificate of exemption or other appropriate proof of exemption.
   
   G. Third-Party Products. Perform-X has no liability to Customer for any damages that arise out of or relate to Third-Party Products. Perform-X provides Third-Party Products “AS IS”, makes no express warranties, and disclaims all implied warranties, including merchantability, fitness for a particular purpose, title, and non-infringement as well as any warranty arising by statute, operation of law, course of dealing or performance, or usage of trade.
   
   
   
3. PRODUCT WARRANTY, EXCLUSIONS, AND DISCLAIMERS
   
   A. Product Warranty. Perform-X warrants that its Products will be free from defects in workmanship and material pursuant to the terms of this Section. The warranty periods start the day of purchase by Customer and the defect must be reported within the first 90 days of use. If there is a covered defect, Perform-X will: (i) at Perform-X’s election, repair or replace the defective Product; and
   (ii) pay the cost of transporting defective or non-conforming Products to it and returning repaired or replacement Product to Customer. Customer must notify Perform-X of any defect in replacement item within a period of ninety (90) days after the Product is Delivered or such replacement Product will be deemed to be without defect.
   
   B. Exclusions. The limited warranties do not cover any defects or costs caused by: (i) modification, alteration, repair or service of the Products by anyone other than Perform-X; (ii) physical abuse to, or misuse of, the Product thereof; or (iii) any use of the Product other than that for which it was intended or use not in accordance with Perform-X’s instructions or applicable documentation. These warranties do not apply to Third-Party Products, including component parts of the Product that were not originally manufactured by Perform-X; such items, if provided by Perform-X are sold to Customer on an “AS IS” basis. This warranty also excludes all costs arising from routine maintenance, including the replacement of any Products required by such maintenance. Perform-X reserves the right to modify, alter or improve the Products, or parts thereof, at any time without incurring an obligation to modify, alter, improve or replace the Products thereof, previously sold.
   
   
   
4. EFFECTIVE DATE; TERMINATION. These terms of sale are effective upon the earlier of Customer’s issuance of an Order to Perform-X, or Customer’s acceptance of the terms of sale. Perform-X may terminate any Orders or Services if Customer (i) does not make payment when due; or (ii) is acquired by or merged with a competitor of Perform-X or any of its affiliates. The provisions relating to payment of outstanding fees, records and audit, confidentiality, and liability will survive termination, all rights of action accruing prior to termination, along with any other provision of the terms of sale that, expressly, or by their nature and context, are intended to survive.
   
   
5. INDEMNITY. Indemnification by Customer. Customer will defend and indemnify Perform-X and its affiliates against any third party claim resulting or arising from Customer’s: (i) use or modification of the Products or Services, (ii) Third-Party Products (including Customer’s) used with, installed on, or integrated as part of the Products or Services; (ii) violation of Perform-Xs’ or its affiliates’ proprietary rights; or (iii) misrepresentation of facts regarding an export license or any allegation made against any Perform-X or its affiliates due to Customer’s violation or alleged violation of applicable export laws.
   
   
6. LIMITATION OF LIABILITY
   A. Limitations on Damages. The limitations, exclusions and disclaimers stated in these terms of sale apply to all disputes. The terms of this section are agreed allocations of risk constituting part of the consideration for Perform-Xs’ sale of Products and Services to Customer and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless whether a party has been advised of the possibility of the liabilities.(1) Limitation on Direct Damages. Except for Customer’s obligations to pay for Products and Services, Customer’s violation of the restrictions on use of Products and Services or Perform-X’s intellectual property rights, Customer’s indemnity obligation stated in Section 5 (“Indemnity”), each party’s total liability for disputes is limited to the amount Customer paid to Perform-X during the twelve months before the date that the dispute arose for the Products, Services, or both that are the subject of the dispute, but excluding amounts received as reimbursement of expenses or payment of taxes. (2) No Indirect Damages. Except for Customer’s payment obligations and violation of Perform-Xs’ intellectual property rights, NEITHER PERFORM-X NOR CUSTOMER HAS LIABILITY TO THE OTHER FOR SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR LOST PROFITS, LOSS OF REVENUE, LOSS OF DATA, OR LOSS OF USE, OR PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
   
   B. Limitation Period. Except as stated in this Section, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within twelve months after the cause of action accrues.
   
   
   
7. MISCELLANEOUS
   
   A. References. Perform-X may identify Customer as a user of Products, Services, or both, as applicable.
   
   B. Notices. The parties will provide all notices under these terms of sale in writing. Customer must provide notices to Perform-X, at the Perform-X address set forth on this website.
   
   C. Excused Performance. Except for payment of amounts due and owing, neither Perform-X nor Customer will be liable for failure to perform its obligations during any period if performance is delayed or rendered impracticable or impossible due to circumstances beyond that party’s reasonable control.
   
   D. Assignment. Customer may not assign any right or obligation, or delegate any performance, without Perform-X’s prior written consent. Even if Perform-X consents to an assignment or delegation, Customer remains responsible for all obligations to Perform-X that Customer incurred prior to the effective date of the assignment or delegation. Customer attempts to assign or delegate without Perform-X’s prior, written consent are void. Perform-X may use affiliates or other qualified subcontractors to provide Services to Customer, but Perform-X remains responsible to Customer for the performance of those Services.
   
   E. Governing Law; Informal Dispute Resolution; Attorney’s Fees. Any dispute, claim, or controversy (whether in contract, tort, or otherwise) between Perform-X and Customer is governed by the laws of the State of Colorado (excluding the conflicts of law rules) and the federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply. To the extent permitted by law, the state and federal courts located in Colorado will have exclusive jurisdiction for any disputes. Customer and Perform-X agree to submit to the personal jurisdiction of the state and federal courts located within the City and County of Denver, Colorado, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any dispute. Neither Customer nor Perform-X is entitled to join or consolidate claims by or against other customers, or pursue any claim as a representative or class action, or in private attorney general capacity. As a condition precedent to filing any lawsuit, the parties will attempt to resolve any dispute through negotiation with persons fully authorized to resolve the dispute, or through mediation utilizing a mutually agreeable mediator, rather than through litigation. The existence or results of any negotiation or mediation will be treated as confidential. Although the merits of the underlying dispute will be resolved in accordance with this Section, any party has the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction, or other equitable relief to preserve the status quo, prevent irreparable harm, avoid the expiration of any applicable limitation periods, or preserve a superior position with respect to other creditors. If the parties are unable to resolve the dispute within thirty days (or other mutually agreed time) of notice of the dispute to the other party, the parties will be free to pursue all remedies available at law or in equity. In any dispute (other than Perform-X’s efforts to collect overdue amounts from Customer) each party will bear its own attorneys’ fees and costs.
   
   F. Waiver. Failure to enforce a provision of these terms of sale will not constitute a waiver of that or any other provision of these terms of sale.
   
   G. Independent Contractors. The parties are independent contractors for all purposes and cannot obligate any other party without prior written approval. The parties do not intend anything in these terms of sale to allow any party to act as an agent or representative of a party, or the parties to act as joint venturers or partners for any purpose. No party is responsible for the acts or omissions of any other.
   
   H. Severability. If any part of these terms of sale or document that incorporates these terms of sale by reference is held unenforceable, the validity of all remaining parts will not be affected.
   
   I. Trade Compliance. Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. Products may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use, and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory that is the subject or target of, economic sanctions of the United States or other applicable jurisdictions.
   
   J. Entire Agreement; Conflicts. These terms of sale and each Order: (i) comprise the complete statement of the agreement of the parties with regard to its subject matter; and (ii) may be modified only in a writing signed by Customer and Perform-X. All terms of any Customer Order, including but not limited to (1) any terms that are inconsistent or conflict with these terms of sale, a Perform-X quote, or both, and (2) any pre-printed terms, have no legal effect and do not modify or supplement these terms of sale, even if Perform-X does not expressly object to those terms when accepting a Customer Order. No party is relying upon the representations of statements of the other that are not fully expressed in these terms of sale, and each party expressly disclaims reliance upon any representations or statements not expressly set forth in these terms of sale. Any claims by any party of fraud in the inducement based on any statements, representations, understandings, or omissions, whether oral or written, that are not fully expressed in these terms of sale or the applicable Perform-X’s quote are expressly waived and released.
   
   
8. All Perform-X Products are incorporated into these terms of sale as well as any new additions that are include or added to company product portfolio.
   
   THE FOREGOING PARTNER TERMS ARE UNDERSTOOD AND ACCEPTED ONCE AN ORDER IS PLACED AND SHIPPED TO CUSTOMER.