Product Sale - Terms and Conditions
Please carefully read the Terms and Conditions ('Terms') below. Your purchase requires that you agree to the Terms. If you do not understand the Terms or do not accept any part of the Terms, do not place an order.
The following terms and conditions will govern the sale of Nuvation Energy’s ("Nuvation") products ("Product") to any individual, entity, or organization ("Customer") as set forth in this quotation.
ORDER ACCEPTANCE – Customer shall submit a purchase order to Nuvation. An order is considered accepted only when Nuvation issues an Order Acknowledgement document to Customer which either matches the purchase order or includes changes that have been confirmed with Customer.
Customer agrees any terms or conditions contained or referenced in Customer's purchase order are non-binding, null, and void. The terms and conditions stated herein shall exclusively govern the sale.
LICENSE – Upon receipt of the Product order, Nuvation grants to Customer a worldwide non-exclusive, non-transferable, irrevocable (subject to Customer's compliance with the terms and conditions 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. Customer shall not redistribute, modify, reverse engineer, derive source code from, or prepare derivative works of the embedded software.
The foregoing license does not entitle Customer 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 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. Customer 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. Customer irrevocably waives and releases any claim to title and ownership rights (including copyright ownership) to any software provided with the Product.
CONDITIONS - Products are not intended to be used, nor shall it be used in or with any “critical application” including, without limitation, life support systems, medical applications, connections to implanted medical devices, nuclear facilities or systems, aircraft navigation systems or electronics, or any other applications where product failure could lead to injury of persons or loss of life or property damage.
Customer acknowledges and agrees that the Product Limited Warranty and Nuvation’s obligations hereunder shall be null and void in the event of any such use in connection with any critical application.
PRICE – 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. Customer shall be responsible for all shipping costs and taxes.
PAYMENT – Nuvation shall issue a(n) invoice(s) to Customer on order acknowledgement and/or when Product order is 'ready-to-ship', based on the terms of the quote. Typical payment terms will be 50% due on order, 50% when ready-to-ship. “Ready-to-ship” refers to when a product has completed manufacturing, is packed for shipment, and would be sent out barring customer readiness with shipping arrangements or any other request for delayed delivery.
Payment terms on first payments are due immediately to start processing the order, and subsequent payments are net thirty (30) calendar days from date of invoice unless otherwise specified on the face of this quotation. A one and one-half percent (1.5 %) 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 incurs any expense collecting a past due invoice, Customer 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, tariffs or any other taxes imposed by federal, state, county or municipal authority upon Nuvation's transfer and delivery of goods hereunder shall be paid by the Customer.
DELIVERY – Nuvation shall use its best efforts to make deliveries in the quantities and at the times specified in Customer's accepted purchase order. Nuvation shall not be liable for delays or defaults in deliveries due to causes beyond Nuvation's control and without its sole fault or negligence.
SHIPPING – Unless otherwise stated, all shipments are made Incoterms EXW (Ex Works) from Nuvation's manufacturer's factory.
Customer is responsible for all shipping arrangements, costs, insurance, and export clearance from this point. Customer agrees to provide proof of export if required by local regulations. Nuvation will notify Customer when goods are ready for collection.
Special crating, packaging, etc. are not captured in the pricing presented and can be quoted as an extra charge upon request.
RISK OF LOSS – The risk of loss or damage to the Product shall pass to Customer when Product is made available for shipping at Nuvation’s manufacturer's factory.
TITLE TRANSFER – Title to and ownership of the Product shall pass to Customer upon full payment of the purchase price.
EXPORT – Customer is responsible to ensure that it complies with all applicable export control and international trade laws of both the U.S. and Canada. This includes, but is not limited to, the U.S. Export Administration Regulations (EAR), International Traffic in Arms Regulations (ITAR), economic sanctions administered by the Office of Foreign Assets Control (OFAC), as well as Canadian regulations such as the Export and Import Permits Act (EIPA) and related regulations, including the Export Control List (ECL), and the Controlled Goods Program (CGP).
Customer shall obtain all necessary permits and licenses for the export, re-export, or transfer of goods. Customer acknowledges that items exported to the U.S. may be subject to U.S. re-export controls. Customer will indemnify and hold Nuvation harmless for any liability arising from Customer's non-compliance with applicable export control laws and regulations of both countries.
INSPECTION – Customer shall perform incoming inspection and testing and may reject those products that do not meet Nuvation's specifications, provided however, that any such inspection or testing performed by the Customer hereunder must be done within ten (10) calendar days of the receipt of any shipment included hereunder, and Nuvation must be informed of those results within an additional five (5) calendar days. Customer's failure to perform as specified herein shall result in a waiver of any right to rejection.
CANCELLATION – Unless otherwise agreed in writing by Nuvation, all products purchased are designated as NCNR (Non-Cancellable and Non-Returnable). All purchases and payments are non-cancellable and non-refundable, and such products are not returnable except for valid warranty claims for which Nuvation has issued a Return Material Authorization (“RMA”).
WARRANTY – Please refer to the 'Product Limited Warranty' statement for warranty details and 'Making a Warranty Claim'. Products shall not be returned without an RMA number from Nuvation.
LIMITATION OF LIABILITY – In no event shall Nuvation be liable to Customer for any direct, indirect, consequential, incidental or exemplary damages related to Customer'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 Customer's customers for damages.
FORCE MAJEURE – Neither Nuvation nor Customer 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.
GENERAL – 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.
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 Customer's purchase order or shipping release forms or elsewhere, shall be binding on Nuvation unless hereafter made in writing and signed by its authorized representative. These terms and conditions supersede any proposals, any prior quotation, and any understandings, oral, written, or implied, between the parties.
Waiver by Nuvation or Customer of any breach of these provisions shall not be construed as a waiver of any other breach.
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 Contracts for the International Sales of Goods (CISG) does not apply; all terms must be construed in accordance with the Uniform Commercial Code as enacted in the State of California.
The parties irrevocably submit and agree to the jurisdiction of the state and federal courts of the State of California in the county of Santa Clara.
If any provision of these terms and conditions 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.