Terms and Conditions
ACCEPTANCE – The following terms and conditions will govern the sale of Nuvation Energy’s products (“Products”) set forth in this quotation. To place an order, Buyer shall submit a purchase order to Nuvation Energy that is accepted by Nuvation Energy issuing an invoice to Buyer matching the purchase order. Buyer agrees any terms or conditions contained in Buyer’s purchase order are non-binding and are null and void, and the terms and conditions set forth below shall govern the sale.
LICENSE - Upon receipt of the Product order, Nuvation Energy grants to Buyer a world-wide non-exclusive, non-transferable, irrevocable (subject to Buyer’s compliance with the terms herein), perpetual license to use the software embedded in the Product, as supplied in and on the Product hardware sold under these terms and conditions. Buyer shall not re-distribute, modify, reverse engineer, derive source code from, or prepare derivative works of the embedded software. The foregoing license does not entitle Buyer to use the software or any technology or intellectual property contained within the Product as reference or inspiration for developing or creating another product in any way based upon the Nuvation Energy products.
PROPRIETARY RIGHTS - All intellectual property rights contained in the Product and all components thereof are and will remain the sole and exclusive property of Nuvation Energy. Buyer acknowledges and agrees that it has no rights or claims of any type to the intellectual property contained in the Product other than the licenses granted herein. Buyer irrevocably waives and releases any claim to title and ownership rights (including copyright ownership) to any software provided with the Product.
RISK OF LOSS - Unless otherwise specifically agreed to in writing by Nuvation Energy, all sales made under this quotation shall be considered from Nuvation Energy's manufacturer’s factory and title and risk of loss to the Product shall pass to Buyer consistent with shipping terms on the quotation.
PRICE - All prices are based on shipments made from Nuvation Energy's manufacturer’s factory. Price quotations shall remain in effect for the period of time specified in the quotation, but if no such time period is specified, billing shall be based on prices in effect at the time of shipment. Unless specifically included in the price quotation, such quotations will not include supplying pre-production or evaluation samples or supplying test data of any kind. Buyer shall be responsible for all shipping costs.
PAYMENT - Payment terms are net fifteen (15) days from date of invoice unless otherwise specified on the face of this quotation. A one and one half percent (1 1/2%) service charge will be added for every month or part of a month that the amount due remains unpaid after its due date. In the event Nuvation Energy incurs any expense collecting a past due invoice, Buyer shall pay for all collection costs, including attorney’s fees and court costs, if any, incurred in collection.
TAXES - All sales and/or use taxes, custom duties or any other taxes imposed by Federal, state, county or municipal authority upon Nuvation Energy’s transfer and delivery of goods hereunder shall be paid by the Buyer.
DELIVERY - Nuvation Energy shall use its best efforts to make deliveries in the quantities and at the times specified in Buyer’s accepted purchase order. Unless the Buyer specifies shipping instructions, shipment and delivery will be made by the carrier and in the manner designated by the Nuvation Energy. Nuvation Energy shall not be liable for delays or defaults in deliveries due to causes beyond Nuvation Energy's control and without its fault or negligence.
INSPECTION - Buyer shall perform incoming inspection and testing and may reject those products that do not meet Nuvation Energy’s specifications, provided however, that any such inspection or testing performed by the Buyer hereunder must be done within ten (10) days of the receipt of any shipment included hereunder, and Nuvation Energy must be informed of those results within an additional five (5) days. Buyer's failure to perform as specified herein shall result in a waiver of any right to rejection.
WARRANTY - Nuvation Energy warrants that (a) upon delivery good title to the products included hereunder, free and clear of all liens of whatsoever kind or nature, will vest in the Buyer, and (b) that the products delivered will conform to the specifications and be free of defects in material and workmanship for a period of one year from date of delivery. Notwithstanding the foregoing, samples and prototypes are provided “AS IS,” WITHOUT WARRANTY OF ANY KIND. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE UNLESS OTHERWISE SPECIFICALLY STATED IN WRITING BY NUVATION ENERGY.
LIMITATION OF LIABILITY - In no event shall Nuvation Energy be liable to Buyer for any direct, consequential, incidental or exemplary damages related to Buyer’s use of the Product, including but not limited to loss due to fire or destruction of batteries or related equipment, loss of profit or revenue, loss of use of machinery or equipment, labor costs, downtime costs or claims of Buyer's customers for damages.
FORCE MAJEURE - Neither Nuvation Energy nor Buyer shall be liable to the other for default or delay in delivering or accepting goods hereunder if caused by an act of God, war, mobilization, riot, strike, embargo, shortage of utility, facility, material or labor, delay in transportation, breakdown or accident, or compliance with or action taken to carry out the extent or purpose of any law or regulation.
EXPORT - Buyer is responsible to ensure that it complies with all applicable U.S. export and international trade control laws, including but not limited to the U.S. Department of Commerce’s Export Administration Regulations (EAR), the U.S. Department of State’s International Traffic in Arms Regulations (ITAR), and all economic and trade sanctions administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (OFAC). Buyer will indemnify Nuvation Energy for Buyer’s non-compliance with applicable export control laws.
GENERAL - (a) Any clause required to be included in an agreement of this type by any applicable law or administrative regulation having the effect of law shall be deemed to be incorporated herein. (b) No terms or conditions other than those stated herein, and no agreement or understanding, oral or written, in any way purporting to modify these terms or conditions, whether contained in Buyer's purchase order or shipping release forms or elsewhere, shall be binding on Nuvation Energy unless hereafter made in writing and signed by its authorized representative. All proposals, negotiations, and representations, if any made prior to and with reference hereto, are merged herein. (c) Waiver by Nuvation Energy or Buyer of any breach of these provisions shall not be construed as a waiver of any other breach. (d) The validity, construction, and performance of the parties’ agreement are governed by the law of the State of California, without regard to its conflicts of law provisions. The U.N. Convention on Agreements for the International Sales of Goods does not apply; all terms must be construed in accordance with the Uniform Commercial Code as enacted in the State of California. (e) The parties irrevocably submit and agree to the jurisdiction of the state and federal courts of the State of California. (f) If any provision of these Terms of Sale is held by a court of competent jurisdiction to be contrary to law or public policy, the remaining provisions will remain in full force and effect.