Standard Purchase Order Terms & Conditions
These Terms constitute the entire agreement between Universal Hydrogen Co. or its undersigned affiliate (“UH2”), and the undersigned seller (together with its affiliates, “Seller”) in connection with the delivery of products (“Products”) and any specifications (“Specifications”) listed in one or more writer order executed by each of the parties from time to time in their sole discretion (each an “Order”), subject to the explicit written terms included in such Order, but only to the extent inconsistent with these Terms.
Prices and Taxes
Seller’s published and quoted prices are subject to the following, unless otherwise agreed in writing: (a) all published prices are subject to change without notice but such changes will not affect Orders previously executed; (b) shipments will be billed at the prices in effect on the date of Seller’s acceptance of UH2’s Order; (c) clerical errors are subject to correction; (d) published or quoted prices do not include taxes, duties, insurance or transportation; (d) any change Orders are subject to applicable price increases; and (e) UH2 is responsible for payment of all export and import licenses, custom fees and duties, value added taxes, turnover taxes and other taxes and costs in respect to the products sold to UH2.
If not otherwise agreed to in writing, payment for Products sold to UH2 will be made without discount, within 30 days or such other written agreed period from date of invoice, in the currency set forth in the applicable Order. In case of default of payment UH2 will pay a demand interest according to a rate of 1.5% of the unpaid amount per starting month.
Delivery and Risk; Installation
Unless otherwise specifically agreed to in writing, all deliveries are made FCA point of shipment (INCOTERMS 2000). UH2 has the risk for loss or of damage to the Products during transportation. Any dates of dispatch stated in the Order acknowledgement are only estimates by Seller, and Seller is not liable for failure to dispatch by any such date. However, Seller will make all reasonable efforts to meet its estimated dispatch date. Seller will inform UH2 and the recipient of the Products as advised by UH2 about the delivery time. If Seller anticipates or has reasonable reason to believe that a delay in the delivery will occur, Seller will notify UH2 in writing stating the cause of the delay as well as estimated new delivery dates. UH2 is responsible for requiring its installer to comply with all applicable industry standards, regulations and specifications communicated to UH2 by Seller in connection with the installation of the Products. FAILURE TO COMPLY WITH THE FOREGOING SENTENCE MAY VOID THE WARRANTY APPLICABLE TO SUCH PRODUCTS.
No Order accepted by Seller may be canceled or rescheduled except with the express written consent of Seller. If UH2 wishes to cancel all or any portion of the Order without default on the part of Seller and subject to Seller’s written approval, UH2 is liable to Seller for cancellation charges up to the value of the Order.
UH2 does not acquire any intellectual property rights relating to the Products through purchasing the Products. Any of Seller’s pre-existing intellectual property in the Products are retained by Seller.
Seller does not acquire any intellectual property rights relating to (a) any of UH2’s pre-existing intellectual property rights, (b) any improvements made in the Products by UH2 or its agents (“UH2 Improvements”) or (c) any mechanical, technical, business, personal or other data owned or licensed by UH2 or its agents (“UH2 Data”) accessed by Seller or its agents. All UH2 Data will be treated as strictly confidential and not disclosed or otherwise shared with third parties or used by Seller for any other purpose other than providing goods and services to UH2. Any modification or improvement in or to UH2 Data made by Seller or its agents is and shall be exclusively owned by UH2. Upon termination of their business relationship, all UH2 Data will be returned to UH2 or destroyed by Seller using commercial reasonable terms. All intellectual property relating to UH2 Improvements and UH2 Data are retained by UH2.
Seller agrees to fully indemnify and hold UH2 harmless in respect of any claim that using, selling, offering for sale, importing or keeping Products furnished hereunder or any product containing Products furnished hereunder constitutes infringement of any trademark, patent, utility model, petty patent innovation patent, or other intellectual property where such claim is a direct result of the utilization, the inherent features or operation of the Products. Seller’s aggregate liability for any and all claims under this Section will not exceed the purchase price received by Seller, net of taxes, duties, insurance or transportation for the Products subject to such claims.
This indemnity will not apply in respect of any claims which result from: (i) compliance with UH2’s designs, specification or instruction; (ii) modification of the Products by a party other than Seller after delivery by Seller; or (iii) use of the Products where such use is not inherent in normal operation of the Product or where Seller is able to specify a use that is not subject to the claim. Seller may assign, transfer, subcontract or delegate its responsibilities under an Order without prior approval of UH2.
Seller may, in its sole discretion, choose to settle any claim for a sum equal to or less than its liability under this Section. If as a result of any suit or settlement UH2 is prohibited from selling, offering for sale, importing or keeping Products furnished hereunder, Seller will, in its sole discretion and at its expense, either replace them with products to which such prohibition does not apply, or return an equitable portion of the selling price and transportation costs thereof.
Seller may use photos and video of any Products and installations, including on Customer’s site, in any of its product, marketing or promotional materials.
Seller warrants to UH2 that the Products will function, in all material respects, as specified in the Specifications for a period of 12 months from the date of delivery. Product defects detectable at the time of inspection are to be notified to Seller in writing immediately or, at the latest, five days following delivery of the Products. If no such notice has been given, then the Products are deemed accepted by UH2. UH2 will notify Seller in writing of defects detected during the warranty period, but at a later stage than the receipt of the Products, immediately, and within five days from the defect was found by UH2. In the event of a timely and rightful notification by UH2 under this Section, Seller will, at its own discretion, either repair or replace the defective products or, if such repair is not reasonably feasible, refund the purchase price upon the return of the defective Product. Seller will have 30 days after receipt of written notice specifying a warranty issue to review such claim, confirm applicability of warranty and remedy the claim or commence a diligent attempt to 2 remedy such claim. If Seller opts to replace the Products, Seller’s liability is limited to the cost of the nonconforming component and excludes the cost of labor or equipment required to install the replacement component. If Seller requires nonconforming Product to be returned to Seller’s facility, returned material must comply with the packing and shipping conditions of the original material. Seller will apply reasonable efforts to have such returned material replaced within 30 days from receipt of returned Products. Repair, re-delivery or refund of the purchase price as specified above is UH2’s sole remedy for breach of warranty.
SELLER’S WARRANTY IN THIS SECTION IS IN LIEU OF AND EXCLUDES (AND SELLER EXPRESSLY DISCLAIMS) ALL OTHER WARRANTIES WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE AND ANY WARRANTY OF NON-INFRINGEMENT. SELLER DOES NOT WARRANT THAT THE PRODUCTS WILL CONFORM TO THE SPECIFICATIONS IN ALL RESPECTS; PRODUCTS MAY HAVE MINOR VARIATIONS IN COLOR, SIZE, MAKEUP OR OTHERWISE FROM Order TO Order. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION, THE PRODUCTS ARE SOLD ON AN AS IS, WHERE IS BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER.
Force Majeure and Other Contingencies
In the event delivery of any Order is delayed due to a force majeure beyond the control of Seller, the parties will attempt to find a solution commercially reasonable and acceptable to each of the parties in their sole discretion. In the event the parties are unable to find a mutually acceptable solution, or the force majeure continues or is expected to last longer than 10 days, UH2 is entitled to terminate the applicable Order with no penalty or amounts due, and any amounts previously paid shall be immediately refunded.
LIMITATION OF LIABILITY
In no event will either party be liable for incidental, consequential or other indirect or special damages. In addition, with respect to any Order, Seller will not be liable for any claims by UH2 in excess of 2.0x the purchase price of such Order, other than in the case of the indemnity in Section 6, or a breach of such Section, or for fraud, intentional breach or wilful misconduct.
Choice of Law
These Terms are governed by and subject to the laws of the location in which the Seller affiliate fulfilling the Order is located.