Terms & Conditions
MUTUALLY AGREED TERMS & CONDITIONS OF SALE ULTRACAPACITOR PRODUCTS
The term “UP” as used herein shall mean UCAP Power, Inc. The term “Buyer” shall mean the party placing the Order. No contractual relationship between UP and Buyer shall arise until such time as Buyer has placed an order that has been accepted by UP and such acceptance has been indicated on a written acknowledgement.
- Sale and Purchase. All ultracapacitor products purchased hereunder (either singularly or collectively, hereinafter, “Products”) from UP are sold at the relevant prices specified herein (“Prices”) and are subject to the unqualified acceptance of these terms and conditions by Buyer. These Terms (as defined below) cannot be modified by any supplemental or conflicting purchase order, confirmation or similar form even if signed by the parties after the date hereof; it being agreed these Terms may only be modified in accordance with Section 10. Provision of any Products to or on behalf of Buyer is conditioned, and on Buyer’s order or taking delivery of or otherwise accepting, using, or distributing any Product shall constitute, Buyer’s assent to these Mutually Agreed Terms & Conditions of Sale (“Terms”) to the exclusion of all other terms. If these Terms are considered an offer, acceptance is expressly limited to such Terms. Unless expressly stated otherwise, the prices contained in any quotation shall be valid for thirty (30) days following the date of the quotation. Buyer shall only use the Products sold to it by UP for its own internal use or in the manufacture of the products and final applications produced by Buyer utilizing the Products (“Finished Products”) and may not resell any of the Products in bulk or on a stand-alone basis.
- Price, Payment and Delivery Terms.
2.1 Payment and Delivery Terms. Upon approved credit, all payments due hereunder to UP shall be paid to UP in United States Dollars (USD) not later than thirty (30) days following the date of the applicable invoice. Late payments shall bear interest at the rate of one and one-half percent (1.5%) per month or, if lower, the maximum rate allowed by law. Unless otherwise stated on the face of the Order and matching order confirmation, all Products are delivered Ex Works UP’s facility, as defined by Incoterms 2020, and title to the Products shall transfer at such point regardless of UP’s involvement in coordination or execution of delivery of the Products to a different point. UP shall use all reasonable efforts to deliver each of Buyer’s orders for the Products on the date specified in the Order, but the time of delivery shall not be of the essence. Except in the event UP breaches its obligation to use such reasonable efforts, in no event shall UP be liable for any loss, damage or penalty for delay in delivery or for failure to give notice of delay.
2.2 Price Commitment. UP commits to sell the Product identified in Exhibit B to Buyer at the Price listed in Exhibit B until the date listed in Exhibit B.
- Limited Warranty.
3.1 Limited Warranty Period. The duration of the Limited Warranty, as defined below, shall begin on the date upon which title transfers from UP to Buyer, as defined in accordance with the applicable delivery terms, and shall extend for a period of twenty-four (24) months (“Limited Warranty Period”).
3.2 Limited Warranty. For Buyer’s purchases of the Products, UP provides the following limited warranty, including, notably, the following express conditions and exclusions (collectively, “Limited Warranty”). UP warrants to Buyer that the Products delivered hereunder, which are standard products of UP, will conform to UP’s specification in effect at the time of delivery and be free of defects in material and workmanship for the Limited Warranty Period. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, THE COURSE OF DEALING, OR THE USAGE OF TRADE, AND ALL OTHER EXPRESS OR IMPLIED WARRANTIES, WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY UP AND WAIVED BY BUYER.
3.2.1. Limited Warranty Conditions. This Limited Warranty is expressly conditioned upon the following (“Limited Warranty Conditions”): (a) UP is notified in writing at Sales@UCAPPower.com by Buyer within thirty (30) days after discovery of failure by the Products to comply with the Limited Warranty; (b) Buyer obtains a Return Material Authorization (RMA) number from UP prior to returning any allegedly defective Products to UP (which shall be issued by UP, if applicable, within 5 business days from the date of Buyer’s request); (c) the allegedly defective Products are returned to UP suitably packaged, transportation charges prepaid by Buyer; and, (d) the allegedly defective Products are received by UP for adjustment no later than sixty (60) days following the issuance of valid RMA instructions and in no event later than thirty (30) days following the last day of the Limited Warranty Period.
3.2.2. Limited Warranty Exclusions. This Limited Warranty specifically excludes any failure by or defects of the Products which have been caused by the following (“Limited Warranty Exclusions”): (a) misuse, abuse, neglect, improper storage, installation or application, including, but not limited to, excessive vibration or charging, overexposure to extreme temperatures or moisture, acts of God, improper interface or interaction with other units, or malfunction of any components or equipment used with the Products so long as the malfunction of such components or equipment is not first caused by, or the result of, a defect or malfunction in the Product; (b) failure to follow instructions or warnings on the Product or applicable manuals, including, specifically, mounting and cabling methodologies; (c) unauthorized repair or alteration, including, notably, breaking the seal of any of the Products; or (d) collision, accident or negligence in use, storage, transportation or handling occurring after the transfer of title of the Products from UP to Buyer; or (e) any other harm to or loss of the Products, except as caused directly by UP, after the transfer of title of the Products from UP to Buyer, including, for example, theft of the Products.
3.3 Limited Warranty Remedy. UP’s sole liability and Buyer’s sole and exclusive remedy for a breach of the foregoing Limited Warranty shall be for UP, in its sole and reasonable discretion, to repair or replace such Products, except in any case in which UP is unable to either repair or replace any Product which fails under warranty within ninety (90) days, whereby UP shall reimburse Buyer for the cost of the warrantable Product including shipping costs paid by Buyer. In the event that any one or more of the above Limited Warranty Conditions is not satisfied or the Products have been subjected to any of the scenarios within the Limited Warranty Exclusions, UP shall have no liability under this Limited Warranty whatsoever. This Limited Warranty extends only to Buyer and not to any subsequent purchaser or owner of the Product. Buyer shall ensure that the limitations and disclaimers of this Limited Warranty, including, specifically, the Limited Warranty Conditions and Limited Warranty Exclusions, are applicable to any such subsequent purchaser or owner of the Product. All claims by Buyer for damages not affecting the Product itself, such as, but not limited to, loss of use, loss of orders, loss of profits, claims by third parties or claims for indirect or consequential damages, irrespective of the legal basis for such claims, shall be excluded. NO EMPLOYEEOR REPRESENTATIVE OF UP IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY FOR ANY PRODUCTS EXCEPT VIA A FORMAL WRITTEN AMENDMENT TO THESE TERMS SIGNED BY AN AUTHORIZED OFFICER OF UP.
- Returns. Buyer may return only those Products which fail to conform to the Limited Warranty set forth above.
- Indemnification. UP shall hold Buyer and its affiliates, officers, directors, agents and employees harmless from liability resulting from infringement by the Products of any United States patent or copyright issued as of the date of these Terms, provided that upon Buyer obtaining knowledge of such infringement, Buyer must promptly notify UP of any and all threats, claims and proceedings related thereto and give UP reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise; UP will not be responsible for any settlement it does not approve in writing. The foregoing obligation of UP does not apply with respect to Products or portions or components: (i) not supplied by UP; (ii) made in whole or in part in accordance to Buyer specifications or requests; (iii) which are modified after shipment, if the alleged infringement relates to such modification; (iv) combined, processed or used with other products, processes or materials where the alleged infringement relates to such combination, process or use; (v) where Buyer continues allegedly infringing activities after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, to the extent such use would have prevented liability; or (vi) where the infringement is incident to use of the Product but does not result primarily from the Product and its intended application. Buyer will indemnify UP and its officers, directors, agents and employees from all damages, settlements, attorneys’ fees and expenses: (i) related to a claim of infringement or misappropriation excluded from UP’s indemnity obligation by the immediately preceding sentence; or (ii) in connection with Buyer’s negligent activities regarding the Products or its failure to effectively pass on to its direct or indirect customers UP’s liability and warranty limitations and disclaimers.
- Software. Any software incorporated into or provided for use in a Product is not sold, but rather is licensed solely for use in that Product. Such license is non-exclusive, non-sublicensable and does not include the right to (and Buyer will not) modify, reverse engineer (except to the extent applicable law prohibits reverse engineering restrictions), incorporate or use in any other works, create derivatives of, or copy any portion of such software, or to use the software or product for the benefit of any third party.
- Limited Liability. EXCEPT THIRD PARTY CLAIMS FOR WHICH UP IS REQUIRED TO PROVIDE INDEMNIFICATION, UP WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE GREATER OF (A) THE AMOUNTS PAYABLE BY BUYER OR BUYER WHOLLY OWNED SUBSIDIARY OR AFFILIATE, AS APPLICABLE, TO UP HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE THE CAUSE OF ACTION AROSE OR (B) $250,000 PER BUYER OR BUYER WHOLLY OWNED SUBSIDIARY OR AFFILIATE, AS APPLICABLE, UNLESS DAMAGES RESULTED FROM GROSS NEGLIGENCE, VIOLATION OF LAW, OR INTENTIONAL MISCONDUCT, OR (II) ANYINCIDENTAL OR CONSEQUENTIAL DAMAGES OR (III) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. FOR THE AVOIDANCE OF DOUBT, THE $250,000 AMOUNT IN CLAUSE (B) ABOVE SHALL BE SPECIFIC TO THE RESPECTIVE BUYER OR BUYER WHOLLY-OWNED SUBSIDIARY OR AFFILIATE, AS APPLICABLE, AND SHALL NOT BE AGGREGATED FOR THE CONTRACT AS A WHOLE. UP SHALL HAVE NO LIABILITY FOR ANY DELAY IN DELIVERY OF THE PRODUCT DUE TO MATTERS BEYOND ITS REASONABLE CONTROL. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IF INJURY OR DAMAGES ARE A DIRECT RESULT OF BUYER’S OR BUYER’S EMPLOYEES FAILURE TO STRICTLY COMPLY WITH ALL SAFETY REGULATIONS, SAFETY AND RISK MITIGATION PROCEDURES OR SIMILAR POLICIES OR PROCEEDURES RELATED TO THE OPERATION OF ITS ASSETS OR FACILITIES, THEN SUCH DAMAGES SHALL BE ALLOCATED BETWEEN UP AND BUYER IN PROPORTION TO THEIR RESPECTIVE DEGREES OF FAULT.
- Compliance with Laws. UP and Buyer shall comply with all laws and regulations, including, but not limited to, those pertaining to export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Product (or any product incorporating such Product) in violation of any such restrictions, laws or regulations.
- General. All notices under these Terms shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed fax, or three days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. Buyer shall not have any right or ability to assign, transfer, or sublicense any obligation or benefit under these Terms and any attempt to do so shall be void; provided, Buyer shall be permitted to assign its rights under this Agreement to any affiliate or third party purchaser that acquires ownership of a majority of Buyer’s right, title and interest in the business or assets pertaining to the Product. Buyer shall provide UP with notice of such assignment. UP may not assign these Terms or the underlying purchase order in whole or in part without the consent of Buyer, which shall not be unreasonably withheld. The failure of either party to enforce its rights under these Terms at any time for any period shall not be construed as a waiver of such rights. These Terms supersede all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of these Terms and all past dealing or industry custom. No changes or modifications or waivers are to be made to these Terms unless evidenced in writing and signed for and on behalf of both parties, subject to the limitations in Section 1. In the event that any provision of these Terms shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. These Terms shall be governed by and construed in accordance with the laws of the State of California (without regard to the conflicts of laws provisions thereof or the United Nations Convention on the International Sale of Goods). In any action or proceeding to enforce rights under these Terms, which shall be brought within the proper courts within the State of California, the prevailing party will be entitled to recover costs and attorneys’ fees.