TERMS AND CONDITIONS OF USE AGREEMENTThank you for visiting expressusbdrives.ca. 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 (650) 938-3500.
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 formally accepted. Your order constitutes an offer to us to buy a Product or Products. All orders are subject to acceptance by us and we will confirm such acceptance to you by sending you an e-mail that confirms that your order has been accepted (the Order Confirmation). The contract between us (the Contract) will only be formed when we send you the Order Confirmation.
2.2 The Contract will relate only to the Product(s) whose order we have confirmed in the Order Confirmation. We will not be obliged to supply any other Product(s) which may have been part of your order until the order of such Product(s) 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 Product(s) shall be as 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.
3.3 If you have specific requirements you may order a working sample for verification purposes and we reserve the right to charge for this service.
4 Delivery4.1 Any dates specified by us for delivery of the Product(s) are intended to be an estimate and time for delivery shall not be made of the essence by notice from you or us howsoever communicated. If no dates are so specified, delivery shall be within a reasonable time.
4.2 We shall not be responsible for delays in transit, customs clearance or at any point after we have passed the Product(s) to third-party logistics companies for delivery.
4.3 We may deliver the Product(s) by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.4 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle you to repudiate or cancel any other Contract or instalment.
4.5 You shall be deemed to have accepted the Product(s) fourteen (14) days after delivery unless we are otherwise advised in writing after delivery of the Product(s) and in a form that clearly identifies the Product(s) not yet accepted and the reasons. In any event you shall be deemed to have accepted the Product(s) thirty (30) days after delivery regardless of any written notice to the contrary.
5 Non-Delivery5.1 The quantity of any consignment of Product(s) as recorded by us or our agent upon dispatch 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 Product(s) when they are ready for delivery, or we are unable to deliver the Product(s) in a timely manner because you have not provided appropriate instructions, documents, licences or authorisations or because the delivery location was unclear or not open for business when delivery was attempted: (a) risk in the Product(s) shall pass to you (including for loss or damage of any cause); (b) the Product(s) shall be deemed to have been delivered in a timely manner; and (c) we or our agent may store the Product(s) until delivery, whereupon you shall be liable for all related costs and expenses (including, without limitation, storage, insurance and logistics costs).
5.3 We shall not be liable for any non-delivery of Product(s) (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 Product(s) would in the ordinary course of events have been received.
5.4 In all circumstances any liability of ours for non-delivery of the Product(s) shall be limited to replacing the Product(s) within a reasonable time or issuing a credit note at the pro rata Contract rate against any invoice raised for such Product(s) that have not been successfully delivered.
5.5 We shall not be liable under any circumstances for consequential or other losses arising from non-delivery or late delivery of any Product(s).
5.6 We shall not be liable under any circumstances should you purchase alternative or replacement products from another source as a consequence of non-delivery or late delivery of any Product(s).
6 Cancellation of Orders6.1 You may not cancel any order or part or any order which is due for delivery within forty five (45) days.
6.2 You may not be permitted to cancel an order where we have already begun the process of customization and where the Product(s) has been rendered impossible or impractical to resell in the process. Any cancellation request will only be accepted by written notice provided you pay to us such reasonable amount of cancellation charges as we shall notify in respect thereof.
6.3 If you commit any breach of these Terms or if: (a) you have a bankruptcy order made against you or you make an arrangement or composition with your creditors, or convene a meeting of creditors (whether formal or informal), or enter into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or have a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator or notice of intention to appoint an administrator is given by you or your directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for your winding-up or for the granting of an administration order in respect of your business, or any proceedings are commenced relating to the insolvency or possible insolvency of your business; or (b) you suffer or allow any execution, whether legal or equitable, to be levied on your or obtained against you, or you fail to observe or perform any of your obligations under the Contract or any other contract between us, or you are unable to pay your debts within the meaning of section 123 of the Insolvency Act 1986 or you cease to trade; or (c) you encumber any of the Product(s) ("Insolvency Events") we may, at our discretion, cancel the contract between us and require the return of any Product(s) not yet fully paid for and over which we retain title.
7 Licence & Intellectual Property7.1 Customer’s Warranty of Non-Infringement
Flashbay 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.7.2 By entering into this Contract you acknowledge the fact that you are granting us a non-exclusive global licence to use your trademark(s) for the purpose of customisation of the Product(s) and their associated packaging.
7.3 You confirm that you have the right to use all trademarks, copyrights and any other intellectual property that you provide to us in the course of doing business with us.
7.4 You further acknowledge the fact that you are granting us a non-exclusive global license to use your trademark(s) in association with our Products and in marketing materials. You may withdraw such consent by informing us in writing whereby any materials already in existence shall be permitted to continue to exist and be used but no new material shall be created.
7.5 You agree to fully indemnify us against all intellectual property claims related to any and all trademarks, copyrights and any other intellectual property that you provide to us in the course of doing business with us howsoever used.
7.6 You agree that you shall have no right to reproduce any of our Product designs (whether protected or not) or purchase products embodying the design of any of our Products (whether protected or not) from third parties unconnected with us.
7.7 We grant you a non-exclusive global license to use Product(s) purchased from us anywhere in the world where such use is legal, it being your sole responsibility to determine the legality of your intended and actual use.
8 Risk and Title8.1 The Product(s) will be at your risk from the time of delivery FOB destination.
8.2 Ownership and title of the Product(s) will only pass to you when we receive full payment of all sums due (in cleared funds) in respect of the Product(s), including delivery and any other charges.
8.3 Until ownership and title of the Product(s) has passed to you, you shall: (a) hold the Product(s) on a fiduciary basis as our bailee; (b) store the Product(s) (at no cost to us) separately from all your other goods or those of any third party in such a way that they remain readily identifiable as our property; (c) not destroy, deface or obscure any identifying mark or packaging on or relating to the Product(s); and (d) maintain the Product(s) in satisfactory condition and keep them insured on our behalf for their full price against all risks to our reasonable satisfaction. On request you shall produce the policy of insurance to us.
8.4 You may resell the Product(s) before ownership and title has passed to you solely on the basis that any such sale shall be a sale of our property and you shall deal as principal when making such a sale. The proceeds of such a sale to the value of the Product(s) shall be paid to us without undue delay.
8.5 Your right to possession of the Product(s) shall terminate immediately if you experience any Insolvency Events.
8.6 We shall be entitled to recover payment for the Product(s) notwithstanding that ownership of any of the Product(s) has not passed from us to you.
8.7 You grant us, our agents and employees an irrevocable licence at any time to enter any premises where the Product(s) are or may be stored in order to inspect them, or, where your right to possession has terminated, to recover them.
8.8 On termination of the Contract, howsoever caused, our rights contained in this section 8 shall remain in effect.
9 Price and Payment9.1 The price of any Product(s) will be as quoted to you from time to time, except in cases of obvious error.
9.2 These prices are quoted inclusive of packaging, loading, unloading and carriage but exclusive of tax, delivery and insurance, the costs of which will be added to the total amount due.
9.3 Prices are liable to change at any time, but changes will not affect orders in respect of which we have already sent you an Order Confirmation.
9.4 An invoice shall be sent to you on the date of dispatch of the Product(s) or at any time following the Order Confirmation where advance payment is required.
9.5 Subject to condition 9.2, payment of the price for the Product(s) is due in the currency specified on the invoice that we send you and is to be made strictly within the term specified on the invoice.
9.6 Time for payment shall be of the essence.
9.7 No payment shall be deemed to have been received until we have received cleared funds.
9.8 All payments payable to us under the Contract shall become due immediately on its termination despite any other provision.
9.9 Our website and price lists contain a large number of Products and it is always possible that, despite our best efforts, some of the Products listed on our website or price lists may be incorrectly priced. Where we become aware of this we reserve the right to cancel any order should agreement on a corrected price not be reached.
9.10 We are under no obligation to provide the Product to you at an incorrect lower price even after we have sent you an Order Confirmation.
9.11 Payment for Products may be made by bank transfer, credit or debit card.
9.12 You shall make all payments due under the Contract in full without any deduction whether by way of set-off, counter claim, discount, abatement or otherwise unless you have a valid court order requiring an amount equal to such deduction to be paid by us to you.
9.13 We reserve the right to take any of the following courses of action if you fail to pay us any sum due pursuant to the Contract: (a) to charge you a one-off administration fee of USD$25.00 or the equivalent in the currency of the Order; and (b) to charge you any costs relating to debt collection charges incurred by us because of your late payment; and (c) to claim interest from you on such sums from the due date for payment at the annual rate of 4% above the base lending rate from time to time of Bank of America, accruing on a daily basis until payment is made, whether before or after any judgment.
10 Quality10.1 Where we are not the manufacturer of the Product(s), we shall endeavour to transfer to you the benefit of any warranty or guarantee given to us.
10.2 We warrant that (subject to the other provisions of these Conditions) upon delivery and for a period of one hundred and eighty (180) days from the date of delivery, the Product(s) shall be of the satisfactory quality expected of promotional items.
10.3 We shall not be liable for a breach of the warranty in condition 10.2 unless:(a) you give written notice of the defect to us, within 7 days of the time when you discover or ought to have discovered the defect; and (b) we are given a reasonable opportunity after receiving the notice to examine such Product(s) and you (if asked to do so by us) return such Product(s) to our place of business at your cost for the examination to take place there.
10.4 We shall not be liable for a breach of the warranty in condition 10.2 if: (a) you make any further use of such Product(s) after giving such notice; or (b) the defect arises because you fail to follow our oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Product(s) or (if there are none) good trade practice; or (c) you alter or repair such Product(s) without our written consent.
10.5 Subject to condition 10.3 and condition 10.4, if any of the Product(s) do not conform with the warranty in condition 10.2 we shall at our option repair or replace such Product(s) (or the defective part) or refund the price of such Product(s) at the pro rata Contract rate.
10.6 Where we elect to replace defective Product(s) we reserve the right to supply the replacement Product(s) without the original customisation features.
10.7 If we comply with condition 10.5 we shall have no further or consequential liability for a breach of the warranty in condition 10.2 in respect of such Product(s) and any Product(s) replaced shall belong to us.
11 Our Liability11.1 Subject to the other provisions of these Terms we shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Product(s) (even if caused by our negligence), nor shall any delay entitle you to terminate or rescind the Contract unless such delay exceeds 180 days.
11.2 We shall not be liable for any direct, indirect, consequential or other loss, injury or adverse effect caused through use of the Product(s) beyond that expected from normal use of promotional items.
11.3 We shall not be liable for any direct, indirect, consequential or other loss, injury or adverse effect caused to third parties that you provide the Product(s) to, such liability being your sole responsibility.
11.4 Where you have requested us to transfer your data onto a Product we shall not be liable for the content or the quality of such data or the quality or effectiveness of its transfer.
11.5 We shall not be liable for any data loss or corruption experienced when using the Product(s) and you are expected to maintain effective backup copies of all data.
11.6 We shall not be liable for any claims relating to performance (speed, useable capacity, lifecycle and similar parameters) of any Product(s) provided that at the time of dispatch the Product(s) were suitable for use as basic promotional items.
11.7 Our liability for losses you suffer as a result of us breaking this agreement is strictly limited to the lesser of the purchase price of the Product(s) you purchased in your individual Order or the actual losses incurred (with evidence to be provided) and in all cases we shall not be liable for any losses which result from costs that you incurred without our written agreement.
11.8 This does not include or limit in any way our liability where such liability cannot be disclaimed or limited under California law.
12 Import Duty, Local Laws & Obligations12.1 If you order Product(s) from our website for delivery outside the US, they may be subject to import duties and taxes which are levied when the delivery reaches the specified destination. You will be responsible for payment of any such import duties and taxes. Please note that we have no control over these charges and cannot predict their amount. Please contact your local customs office for further information before placing your order.
12.2 Please also note that you must comply with all applicable laws and regulations of the country for which the Product(s) are destined. We will not be liable for any breach by you of any such laws.
12.3 Where such obligations exist you will assume the role of Producer of the Product(s) and will assume all obligations of the Producer without limitation. Where a competent court or authority asserts that we are subject to Producer obligations you will indemnify us in full against such obligations.
12.4 Where we import Product(s) in our name for delivery to you you will assume all responsibilities of the Importer as if the Product(s) had been imported in your name and will indemnify us against all associated and arising costs.
13 Written Communications13.1 When using our website, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For contractual purposes, you agree to this electronic means of communication and you acknowledge that all contracts, notices, information and other communications that we provide to you electronically comply with any legal requirement that such communications be in writing. This condition does not affect your statutory rights.
13.2 All notices given by you to us must be sent to us by email at . Any legal notices must be sent to us as provided by California law.
13.3 Notices will be deemed received and properly served immediately when posted on our website, 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to demonstrate, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
14 Transfer of Rights and Obligations14.1 The contract between you and us is binding on you and us and on our respective successors and assigns.
14.2 You may not transfer, assign, charge or otherwise dispose of a Contract, or any of your rights or obligations arising under it, without our prior written consent.
14.3 We may transfer, assign, charge, sub-contract or otherwise dispose of a Contract, or any of our rights or obligations arising under it, at any time during the term of the Contract without notice.
15 Events Outside Our Control15.1 We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under a Contract that is caused by events outside our reasonable control (a "Force Majeure Event").
15.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following: strikes, lock-outs or other industrial action (whether or not relating to our workforce); civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic, adverse weather conditions or other natural disaster or acts of God; impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; impossibility of the use of public or private telecommunications networks; and the acts, decrees, legislation, regulations or restrictions of any government.
15.3 Our performance under any Contract is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Contract may be performed despite the Force Majeure Event.
16 Waiver16.1 If we fail, at any time during the term of a Contract, to insist upon strict performance of any of your obligations under the Contract or any of these Terms, or if we fail to exercise any of the rights or remedies to which we are entitled under the Contract, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
17 Severability17.1 If any of these Terms or any provisions of a Contract are determined by any competent court or authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law. The severed term will be replaced by a lawful term modified in the minimum way possible to achieve as close to the original intention as possible.
18 Entire Agreement18.1 These Terms and any document expressly referred to in them represent the entire agreement between us in relation to the subject matter of any Contract and supersede any prior agreement, understanding or arrangement between us, whether oral or in writing.
18.2 These Terms may not be varied or replaced by any Terms and Conditions supplied by you at any time before or after an Order is placed unless agreed in writing by a Director of our company.
18.3 In the event of any conflict between these Terms and any Terms and Conditions accepted by us according to clause 18.2 it is these Terms that will prevail regardless of any wording to the contrary in the other Terms and Conditions.
19 Our Right to Vary These Terms and Conditions19.1 We have the right to revise and amend these Terms from time to time in order to, without limitation, reflect changes in market conditions affecting our business, changes in technology, changes in payment methods and changes in relevant laws and regulatory requirements.
19.2 You will be subject to the policies and Terms in force at the time that you order Product(s) from us, unless any change to those policies or these Terms are required to be made by law or governmental authority (in which case it will apply to orders previously placed by you as required by law), or if we notify you of the change to those policies or these Terms before we send you the Order Confirmation (in which case we have the right to assume that you have accepted the change to the Terms, unless you notify us to the contrary within seven (7) working days of receipt by you of the Product(s)).
20 Law and Jurisdiction20.1 Contracts for the purchase of Product(s) through our website will be governed by the laws of the State of California (without regard to the conflict of law principles thereof) and of the United States of America.
20.2 Any legal action or proceeding with respect to this Agreement shall be brought and maintained in the State of California, County of Santa Clara.