TERMS AND CONDITIONS OF USE AGREEMENTThank you for visiting expressusbdrives.com. Flashbay, Inc. (“Flashbay,” “we,” “us”) respects your privacy including the privacy of the personal information that you provide to us.
1 Information About UsFlashbay’s offices are located at 569 Clyde Avenue, Unit 500, Mountain View, California 94043 and you may also contact us by email at or by phone at 888-400-0408.
Flashbay engages only in Business to Business sales (B2B), and does not sell to individual consumers. The following are therefore business to business terms and conditions.
2 How the Contract is formed between You and Us2.1 After placing an order, you may receive an e-mail from us acknowledging that we have received your order. Please note that this does not mean that your order has been accepted. Your order constitutes an offer to us to buy a Product. All orders are subject to acceptance by us and we will confirm such acceptance to you by sending you an e-mail that confirms your order has been accepted (the Order Confirmation). The contract between us (Contract) will only be formed when we send you the Order Confirmation. 2.2 The Contract will relate only to those Products whose order we have confirmed in the Order Confirmation. We will not be obliged to supply any other Products which may have been part of your order until the order of such Products has been confirmed in a separate Order Confirmation. 2.3 Any quotation is given on the basis that no Contract shall come into existence until we send the Order Confirmation. Due to the fact that our products include components with daily fluctuating cost, we reserve the right to revise any quotations for our Product and related services without prior notice.
3 Description3.1 The quantity and description of the Products shall be set out in our quotation or Order Confirmation. 3.2 All samples, drawings, descriptive matter, specifications and advertising we issue and any descriptions or illustrations contained in our catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them.
4 Delivery4.1 Any dates specified by us for delivery of the Products are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time. 4.2 If we deliver to you a quantity of Products of up to 5% more or less than the quantity ordered, you shall not be entitled to object to or reject the Products or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate. 4.3 We may deliver the Products by separate installments. Each separate installment shall be invoiced and paid for in accordance with the provisions of the Contract. 4.4 Each installment shall be a separate Contract and no cancellation or termination of any one Contract relating to an installment shall entitle you to repudiate or cancel any other Contract or installment. 4.5 You shall be deemed to have accepted the Products after fourteen (14) days after delivery unless we are otherwise advised.
5 Non-Delivery5.1 The quantity of any consignment of Products as recorded by us or our agent upon Order from our or our agent's place of business shall be conclusive evidence of the quantity received by you on delivery unless you can provide conclusive evidence proving the contrary. 5.2 If for any reason you fail to accept delivery of any of the Products when they are ready for delivery, or we are unable to deliver the Products on time because you have not provided appropriate instructions, documents, licenses or authorizations: (a) risk in the Products shall pass to you (including for loss or damage caused by our negligence); (b) the Products shall be deemed to have been delivered; and (c) we or our agent may store the Products until delivery, whereupon you shall be liable for all related costs and expenses (including, without limitation, storage and insurance). 5.3 We shall not be liable for any non-delivery of Products (even if caused by our negligence) unless you give written notice to us of the non-delivery within seven (7) days of the date when the Products would in the ordinary course of events have been received. 5.4 Any liability of ours for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Products.
6 Cancellation of Order6.1 You may not cancel any order or part or any order which is due for delivery within forty five (45) days. You may not be permitted to cancel an order where we have already begun the process of customization and where the Product has been rendered impossible to resell in the process. Any cancellation request will only be accepted by written notice provided you pay to us such amount of cancellation charges as we shall notify in respect thereof. 6.2 If you breach any of these Terms or if: (a) you shall generally not pay your debts as such debts become due, or shall admit in writing your inability to pay your debts generally, or shall make a general assignment for the benefit of creditors or any proceeding shall be instituted by or against you seeking to adjudicate you as bankrupt or insolvent, or seeking liquidation, winding up, reorganization, arrangement, adjustment, protection, relief from debts under any law relating to bankruptcy, insolvency or reorganization or relief of debtors, or seeking the entry of an order for relief of the appointment of a receiver, trustee, or other similar official for you or any substantial part of your property; or (b) you encumber or in any way any of the Products (“Insolvency Events”) we may, at our discretion, cancel the contract between us.
7 Customer’s Warranty of Non-InfringementFlashbay supplies custom promotional USB Flash Drives, branded USB Cards and other products that are marked with the Customer’s logo, word, picture, number, name, or symbol or combination of those things provided by the Customer (“Customer mark”). Flashbay does not undertake to investigate the Customer’s right to use such Customer mark and Customer warrants that Customer has full and unlimited right to use Customer marks and that all such Customer marks do not infringe any trademark, copyright or patent or other intellectual property right of any other party.
Customer agrees to indemnify Flashbay and hold Flashbay harmless against any claim of intellectual property infringement: Customer agrees as part of its contract with Flashbay to defend and indemnify Flashbay and to hold Flashbay harmless against any and all claims by any third party that any such Customer mark infringes any trademark, copyright or patent or other intellectual property right of any other party. Customer agrees to reimburse Flashbay's reasonable out-of-pocket expenses, including any costs and attorneys’ fees incurred in defense against any such claim of infringement.
Disclaimer of duty to indemnify for intellectual property infringement as to any claim arising from any Customer mark: As part of this Agreement, Customer understands and agrees that Flashbay specifically disclaims any warranty that the goods shall be delivered free of the rightful claim of any third person by way of claim of infringement of any intellectual property right arising from or relating to a Customer mark under Section 2-312(3) of the California Commercial Code or any such provision of law enacting the same provision of the Uniform Commercial Code.