1. Agreement of Sale; Acceptance:
This Agreement is by and between customer (“Customer”), and KULR Technology Corporation (“Seller”). Seller and Customer are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. This set of terms and conditions constitute an integral part of any purchase orders filled or to be filled by Seller. Some of the terms set out here may differ from those in Customer’s purchase orders and some may be new. This acceptance is conditioned on Customer’s assent to the terms set out herein in lieu of those in Customer’s purchase order. Seller’s failure to object to provisions contained in any communication from Customer shall not be deemed a waiver of the provisions contained herein. Any change in the terms contained herein must specifically be agreed to in writing by Seller before becoming binding on Seller. All purchase orders or contracts must be approved and accepted by Seller in writing. These terms shall be applicable whether or not they are attached to or enclosed with the products to be sold or sold hereunder.
2. Entire Contract:
This Agreement constitutes the final and entire agreement between Seller and Customer and supersedes any prior or contemporaneous understandings or agreements, oral or written.
The price of the products to be paid by Customer to Seller shall be specified in writing by Seller. The price for products may be revised from time to time at the sole discretion of Seller.
The price of the products does not include sales tax, import tax, use tax, excise tax, ad valorem, property tax, or other taxes now or hereafter imposed, directly or indirectly, by any governmental authority or agency with respect to the manufacture, production, sale, delivery, consumption or use of the products covered by this Agreement. Customer shall pay such taxes directly or reimburse Seller for any such taxes which it may be required to pay or collect. If an exemption from such taxes is claimed, Customer must provide a certificate of exemption at the time the purchase order is submitted to Seller.
Unless otherwise agreed to in writing by Seller, payment terms are thirty (30) days net from date of invoice or from the date of delivery, whichever date is earlier of the two dates. Seller reserves the right to require payment in advance or cash on delivery (“C.O.D.”) and otherwise to modify credit terms. When partial deliveries are made, payment shall become due in accordance with the designated terms upon submission of invoices. Seller reserves the right to add a monthly service charge allowed by law. Seller may accept partial payment in an amount less than the full amount of any invoice, but such acceptance shall not constitute a waiver of Seller’s right to collect the balance or accord and satisfaction notwithstanding Seller’s endorsement of a check or other instrument. If Customer shall fail to make any payments in accordance with the terms and provisions hereof, Seller, in addition to its other rights and remedies, but not in limitation thereof, may, at its option, defer deliveries hereunder, or under any other contract with Customer, except upon receipt of satisfactory security or of cash before delivery.
If, in the judgement of Seller, the financial condition of Customer at any time does not justify continuance of a delivery on the terms of payment originally specified, Seller may stop delivery and charge Customer an appropriate cancellation fee and/or require full or partial payment in advance. In the event any proceeding is brought by or against Customer or Seller, Seller shall be entitled to cancel any purchase order then outstanding without waiving its claim for damage or other remedies and without subjecting itself to any cancellation penalties. Each delivery hereunder shall be a separate and independent transaction and Customer shall pay for each delivery accordingly. If Customer delays delivery without Seller’s prior written consent, payments shall become due on the original delivery date.
6. Delivery; Risk of Loss; Title; Acceptance:
The products shall be shipped EXW (Incoterms 2010), Seller’s designated factory dock or distribution center (“Delivery Point”). Risks of loss pass to Customer at Delivery Point. Title shall pass to Customer at Delivery Point.
Upon delivery of products to the Delivery Point, Customer shall inspect the products to ensure that the products have arrived in acceptable condition and in the quantity as specified in the respective purchase order. Acceptance of delivered products shall be deemed to have occurred if Seller is not notified in writing by Customer of any issues regarding the delivered products within three (3) business days of delivery. Following acceptance, any defects in the products shall be subject to the warranty provisions in Section 11.
7. Delivery Date:
The date of delivery provided by Seller is an approximation based on Seller’s best judgment and prompt receipt from Customer of all necessary data regarding the products. Unless otherwise expressly stated, Seller shall have the right to deliver all of the products at one time or in portions from time to time within the time of delivery provided to Customer.
8. Delays In Deliveries:
Seller shall be excused for delay in performance of this Agreement, may suspend performance and shall under no circumstances be responsible for failure to fill any purchase order or purchase orders when due to: acts of God or of the public enemy; fires; floods; riots; strikes; freight embargoes or transportation delays; shortage of labor, inability or delay in securing fuel, material supplies, or power at current prices or on account of shortages thereof; excessive demand for products over the available supply; customs duties or surcharges; any existing or future laws or acts of the Federal or of any state government (including specifically but not exclusively any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Seller’s business; or any cause beyond Seller’s reasonable control.
9. Reschedule; Cancellation:
Customer may reschedule the delivery of the products by giving Seller a written notice at least thirty (30) days before the delivery date of the products. A rescheduled delivery date can be delayed by up to a maximum of thirty (30) days from the original delivery date. Only one (1) reschedule is allowed per purchase order.
Orders for products may be cancelled with written notice to Seller outside of forty-five (45) days from the delivery date.
10. Licenses; Intellectual Property:
Seller’s sale of products does not grant to Customer or any third parties, directly or indirectly, an express or implied license under any intellectual property rights of Seller. With respect to Seller’s products, Seller is the sole owner to all intellectual property (“IP”) rights and/or has proper licenses to such Seller products. If any IP is created under this agreement, Seller shall be the sole owner of such created IP. Customer shall reasonably assist Seller to secure registration and/or defense of any IP rights (including any created IP) upon Seller’s request to Customer.
Seller warrants that the products manufactured by Seller when delivered are free from material defects in material and workmanship; provided, however, Seller shall have no obligation or liability under this warranty unless Seller receives prompt written notice from Customer specifying such defect no later than one (1) year from the date of delivery (the “Warranty Period”). Deviations from the specifications of the products which do not materially affect performance of the products covered hereby shall not be deemed to constitute material defects of the products or workmanship and not be deemed failure to comply with the specifications referred to herein. In the event of material defects developing within the Warranty Period under normal and proper use, Customer agrees that its sole and exclusive remedy shall require only that Seller, at Seller’s option, repair, modify or replace the nonconforming products EXW Delivery Point or accept the return of the non-conforming products and refund the purchase price or part thereof, giving effect to the use or value received by Customer. No products shall be returned to Seller without Seller’s prior written consent and the proper issuance of a RMA by Seller. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS WARRANTY CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO IT WITH REGARD TO SAID DEFECTIVE PRODUCTS. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION 11, ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, ALL GUARANTIES, AND ALL REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OF TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES OF NONINFRINGMENT WITH RESPECT TO THE PRODUCTS FURNISHED BY SELLER HEREUNDER ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY SELLER. No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty relating to the products other than as specifically provided herein.
12. Laws, Code, Regulations, and Safety Devices:
Compliance with laws, codes, and regulations relating to the products and their use is the sole responsibility of Customer, and Seller makes no warranty or representation with respect thereto. Customer assumes the responsibility for providing and installing any and all devices for the protection of safety and health and shall indemnify and hold harmless Seller against any expense, loss, or damage which Seller may incur or sustain as a result of Customer’s failure to do so.
In no event shall Seller’s obligation and liability under this Agreement extend to indirect, punitive, special, incidental or consequential damages or losses Customer may suffer or incur in connection therewith, such as but not limited to loss of revenue or profits, damages or losses as a result of Customer’s inability to operate, or shut down of, its plant or operations, loss of use of the products or associated products or cost of substitute products, facilities or services, inability to fulfill contracts with third parties, injury to good will, claims of customers and the like, nor shall it extend to damages or losses Customer may suffer or incur as a result of claims, suits or other proceedings made or instituted against Customer by third parties, whether public or private in nature.
14. Limitation of Liability:
Notwithstanding other provisions in this Agreement, Seller’s maximum liability under this Agreement shall be limited to the aggregate amount paid by Customer to Seller in the year before the date of the claim under the particular purchase order giving rise to the claim.
15. Limitation of Actions:
No action against Seller for breach hereof shall be commenced more than one (1) year after the first date given rise to the cause of action.
16. Customer’s Default; Termination:
Customer shall be liable to Seller for all damages or losses including loss of reasonable profits, and for costs and expenses, including attorney’s fees, sustained by Seller and arising from Customer’s default under, or breach of, any of the terms and conditions of this Agreement. In the event of any such default or breach, Seller may, without any obligation or liability to Customer, terminate this Agreement forthwith by written notice to Customer and such action by Seller shall not be deemed a waiver of any right or remedy with respect to such default or breach. On termination of this Agreement for any reason, Sections 2-8 and 10-22 shall survive. Termination will not prejudice either Party to require performance of any obligation due at the time of termination.
17. Confidential Information:
Unless covered by separate non-disclosure agreement executed by the Parties, Customer acknowledges that all information and materials which come into Customer’s possession or knowledge in connection with this Agreement and which is marked, identified, accepted as confidential or proprietary, or may be deemed confidential or proprietary by its nature or by the circumstances of its disclosure (“Confidential Information”), consists of confidential or proprietary information, where the improper disclosure or use of which will be damaging to Seller. Therefore, Customer agrees to hold all Confidential Information in confidence, to disclose Confidential Information only to those of its employees having a need to know, not to disclose Confidential Information to any other party, and not to use Confidential Information other than for the performance of this Agreement. Customer agrees that it will not use any of Seller’s Confidential Information, and to the fullest extent permissible under applicable law, will not modify, reverse engineer, reverse assemble, synthesize or in any way misuse any Seller’s products or other Seller’s Confidential Information.
18. Export License:
Any exportation of the products purchased or to be purchased hereunder must comply with U.S. export laws and regulations. Customer agrees to comply with all applicable export regulations which control the products it purchases from Seller, including the Export Administration Regulations administered by the US Department of Commerce and the International Traffic in Arms Regulations administered by the US Department of State. Customer agrees to indemnify and hold harmless Seller from any and all fines, claims, damages, losses, costs and expenses (including reasonable attorney’s fees) incurred by Seller as a result of any breach of this Section 18 by Customer.
No right or interest in this Agreement shall be assigned by Customer without prior written agreement by Seller. No delegation of any obligation owed, or the performance of any obligation by Customer shall be made without prior written agreement by Seller.
20. Governing Law:
The interpretation and performance of this Agreement shall be in accordance with and shall be exclusively controlled by the laws of the State of California without regard to principles of conflicts of law, and that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement or to the transactions between Customer and Seller. Customer consents to the exclusive jurisdiction and venue of the federal and state courts located in Santa Clara County, California.
If a disagreement, controversy, or claim of any kind arises between Customer and Seller, both Parties shall meet in good faith to attempt to resolve such disagreement, controversy, or claim. If the Parties cannot resolve the disagreement, controversy, or claim, then a binding arbitration shall be held and be administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. As a minimum set of rules, the Parties agree the arbitration shall be held by a single arbitrator mutually acceptable to both Parties. If the Parties cannot agree on a single arbitrator, each Party shall identify one independent individual who shall appoint a single arbitrator. The decision of the arbitrator shall be considered as a final and binding solution of the disagreement, controversy, or claim, which may be entered as a judgement by any court of competent jurisdiction. The arbitration shall be held in Santa Clara County, California. Neither Party shall sue the other Party except for the enforcement of the arbitrator’s decision.
22. Modifications; Waiver; Severability; Headings:
No waiver, alteration or modification of any of the provisions hereof shall be binding on Seller unless made in writing and agreed to by a duly authorized official of Seller. Any change made by Seller will be deemed accepted by Customer unless within five (5) days from notice of such change Customer notifies Seller of Customer’s exception to such change. A waiver by Seller of any default or of any of the terms and conditions of sale shall not be deemed to be a continuing waiver of any other default or of any other of these terms and conditions of sale, but shall apply solely to the instance to which the waiver is directed. If any provision of this Agreement is adjudged to be unenforceable in whole or in part, such adjudication shall not affect the validity of the remainder of this Agreement. Each provision of this Agreement is severable from every other provision and constitutes a separate, distinct and binding covenant. Headings are inserted solely for convenience of reference, shall not constitute a part of this Agreement and shall not otherwise affect the interpretation hereof.