TERMS AND CONDITIONS FOR THE SALE OF GOODS AND SERVICES
THIS DOCUMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY.
THESE TERMS AND CONDITIONS CONSTITUTE A BINDING CONTRACT BETWEEN YOU (EITHER “YOU” OR “CUSTOMER”) AND N1 CRITICAL TECHNOLOGIES, INC., AND ITS AFFILIATES (EITHER “US”, “WE”, “OUR”, “SELLER”, OR “N1”) AND ARE REFERRED TO HEREIN AS EITHER “TERMS” OR THIS “AGREEMENT”. YOU ACCEPT THESE TERMS BY PURCHASING A GOOD (THE “GOOD(S)”) FROM US OR SHOPPING ON OUR WEBSITE (THE “SITE”) OR ENGAGING US (OR ANY OF OUR AFFILIATES) TO PERFORM OR PROCURE SERVICES (AS DEFINED HEREIN OR IN AN APPLICABLE STATEMENT OF WORK (“SOW”)). UNTIL AN ORDER OR SOW IS ACCEPTED BY US, THESE TERMS ARE SUBJECT TO CHANGE BY US WITHOUT PRIOR NOTICE TO YOU. THE TERMS FOR THE SALE OF GOODS OR PROVISION OF SERVICES ARE LIMITED TO THOSE CONTAINED HEREIN, PROVIDED, HOWEVER, THAT THE TERMS OF AN APPLICABLE SOW SHALL SUPPLEMENT THESE TERMS, BUT WHERE THERE ARE INCONSISTENCIES BETWEEN THESE TERMS AND A SOW, THESE TERMS SHALL CONTROL. ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS IN ANY FORM DELIVERED BY YOU ARE HEREBY DEEMED TO BE MATERIAL ALTERATIONS AND NOTICE OF OBJECTION TO THEM AND REJECTION OF THEM IS HEREBY GIVEN.
YOU MAY NOT ORDER OR OBTAIN GOODS OR SERVICES FROM SELLER OR THE SITE IF YOU (A) DO NOT AGREE TO THESE TERMS, OR (B) ARE NOT AT LEAST 18 YEARS OF AGE.
a. You agree that your order is an offer to buy, under these Terms, all Goods and Services listed in your order. All orders must be accepted by us, or we will not be obligated to sell the Goods or Services to you. We may choose not to accept any orders in our sole discretion.
b. Should you cancel an order without our written consent, we may recover from you a cancellation charge of not less than twenty percent (20.0%) of the purchase price, provided, however, that no order may be cancelled if (i) the Goods ordered are customized, or (ii) of the Goods are opened or unpackaged, installed, or have been connected to power subjected to a load.
2 Price and Payment Terms.
a. All prices posted are subject to change without notice. The price charged for any Goods will be the price shown in the order confirmation provided to you at the time your order is accepted. Unless expressly stated, prices do not include taxes or charges for shipping and handling. All such taxes and charges will be added to your order total and must be prepaid. Any amounts that are not paid when due shall bear interest at the lesser of: (i) 1.5% per month, or (ii) the maximum rate permitted under applicable law.
b.Terms of payment are within our sole discretion, and, unless agreed to in writing, the total payment due must be received by us at the time the order is accepted, provided, however, that:
i. Goods from manufacturer stock: Net thirty (30) days from the date of shipment with approved credit application. New customers or international shipments are required to be paid in full at the time of shipment.
ii. Customer orders of Goods: Fifty percent (50.0%) down payment upon placement of order and fifty percent (50.0%) remainder due upon shipment. New customers or international shipments are required to be paid in full at time of order.
c. Notwithstanding Sections 2.a and b in connection with Services being performed pursuant to a SOW, Customer will pay for the Services in the amounts and in accordance with any payment schedule set forth in the applicable SOW. If no payment schedule is provided, Customer will pay for the Services as invoiced by Seller or its affiliate. Except as otherwise specified on an applicable SOW, Customer will reimburse Seller for all reasonable out-of-pocket expenses incurred by Seller in connection with the performance of the Services, including, but not limited to, travel and living expenses.
d. In the event of a payment default, Customer will be responsible for all of Seller’s costs of collection, including, without limitation, attorney fees and costs. In addition, Seller reserves the right to suspend deliveries of Goods or provision of Services until payment is received. Customer hereby grants to Seller a security interest in the Goods to secure payment in full. Customer authorizes Seller to file a UCC-1 financing statement reflecting such security interest.
3. Shipment; Title; Risk of Loss.
a. The Goods will be delivered within a reasonable time after the receipt of Customer’s order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer.
b. Title to Goods and risk of loss or damage during shipment pass from Seller to Customer upon delivery to the carrier (F.O.B. Origin, freight collect).
c. Any facility unable to receive a standard long truck freight delivery should notify Seller for alternative Unloading and placement are the responsibility of the installing contractor or Customer.
a. Customers may order services (collectively, “Service(s)“) from or through Seller or its affiliates. Services may also be provided by third-party original equipment manufacturers, licensors, vendors, or other service providers (“Third-Party”), including, without limitation, startup, commissioning, and warranty services (“Third Party Services“). In the case of Third Party Services, Customer shall consider the Third-Party to be the contracting party and the Third-Party shall be the party responsible for providing the services to the Customer, Customer will look solely to the Third-Party for any loss, claims or damages arising from or related to the provision of such Third-Party Services; and Customer hereby releases Seller and its affiliates from any and all claims arising from or relating to the purchase or provision of any Third Party Services.
b. Startup services are Third-Party Services and require two (2) weeks lead-time. Installation of the Goods must be complete before startup personnel arrives to site. Any startup events requiring rescheduling due to incomplete installation or site conditions prohibiting startup on prescheduled date will be subject to an additional startup fee in Seller’s discretion.
c. Where Services are ordered from Seller in a SOW, each SOW hereby incorporates these Terms and constitutes a separate agreement with respect to the Services performed. In the event of an addition to or a conflict between any term or condition of the SOW and these Terms, these Terms will control, except as expressly amended in the applicable SOW by specific reference to this Agreement. Each such amendment will be applicable only with respect to such SOW and not to future SOW. Changes to the scope of the Services described in a SOW will be made only in a writing executed by authorized representatives of both parties.
d. With respect to the Services (whether provided by Seller or a Third-Party), Customer shall (i) cooperate in all matters relating to the Services and provide access to its employees, facilities, and premises as may reasonably be requested for the purposes of performing the Services; (ii) respond promptly to any request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for the performance of the Services in accordance with the requirements of this Agreement (or the applicable SOW); (iii) provide any documentation or information as may be requested to carry out the Services in a timely manner, and ensure that such documentation and information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
e. Customer shall maintain adequate insurance coverage to protect Seller or Third-Party, as applicable, and Customer’s premises, and Customer agrees to indemnify and hold Seller, Third-Party and their respective agents and employees harmless from any loss, cost, damage or expense (including, but not limited to, attorneys’ fees and expenses) arising out of any death, injury or property damage occurring in connection with the performance of the Services, other than solely as a result of Seller’s or Third-Party’s gross negligence or willful misconduct.
5. Goods Not for Resale or Export.
You agree to comply with all applicable laws and regulations of the various states and of the United States including all Export Regulations, as defined below. You represent and warrant that you are buying Goods or Services from the Site for your own use only, and not for resale or export. Products and services purchased from the Site may be controlled for export purposes by export regulations, including but not limited to, the Export Administration Act of 1979 (50 U.S.C. 2401-2410), the Export Administration Regulations promulgated thereunder (15 C.F.R. 768-799), the International Traffic in Arms Regulations (22 C.F.R. 120-128 and 130) and their successor and supplemental regulations (collectively, “Export Regulations”).
a. Limited Warranty.
i. For Goods manufactured and sold by Seller, the sole limited warranty for such Goods can be found on the Site as follows:
ii. For Services provided by Seller, Seller warrants to Customer that Services shall be provided using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
b. WARRANTY DISCLAIMER. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6(a), SELLER HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES RELATING TO GOODS AND SERVICES, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. FOR AVOIDANCE OF DOUBT, CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT SELLER MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE GOODS ARE DESIGNED FOR OR SUITABLE FOR USE IN ANY HIGH-RISK ENVIRONMENT, INCLUDING, WITHOUT LIMITATION, AIRCRAFT OR AUTOMOBILE SAFETY DEVICES OR NAVIGATION, LIFE SUPPORT SYSTEMS OR MEDICAL DEVICES, NUCLEAR FACILITIES, OR WEAPON SYSTEMS, AND CUSTOMER AGREES TO HOLD HARMLESS AND INDEMNIFY SELLER IN CONNECTION WITH ANY SUCH USE OF THE GOODS.
c. Customer acknowledges that goods manufactured by a third party (“Third-Party Goods”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. THIRD PARTY GOODS ARE NOT COVERED BY THE WARRANTY IN SECTION 6(a). SELLER RESELLS AND PASSES THROUGH THE THIRD-PARTY GOODS ON AN “AS-IS, WHEN AVAILABLE” BASIS. EACH OF THE THIRD-PARTY GOODS MAY BE SUBJECT TO WARRANTY, END-USER LICENSE, INTELLECTUAL PROPERTY INDEMNITY, OR OTHER TERMS AVAILABLE FROM THE APPLICABLE THIRD-PARTY. SELLER HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES RELATING TO SUCH THIRD-PARTY GOODS, WHETHER WRITTEN, ORAL, EXPRESSED, OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. IN ADDITION, COMPANY DOES NOT REPRESENT OR WARRANT THAT ANY THIRD-PARTY GOODS, INCLUDING HARDWARE, SOFTWARE OR THIRD-PARTY SERVICES, WILL BE FREE FROM ERRORS, DEFECTS OR INFRINGEMENT. CUSTOMER FURTHER AGREES TO REVIEW AND COMPLY WITH THIRD-PARTY DISCLAIMERS AND RESTRICTIONS REGARDING THE USE OF THE GOODS IN HIGH-RISK ENVIRONMENTS.
d. Customer shall be solely responsible for daily back-up and other protection of its data and software against loss, damage, or corruption. Customer shall be solely responsible for reconstructing data (including but not limited to data located on disk files and memories) and software that may be lost, damaged or corrupted during the performance of Services. SELLER, ITS AFFILIATES, AND ITS AND THEIR SUPPLIERS, SUBCONTRACTORS AND AGENTS ARE HEREBY RELEASED AND SHALL CONTINUE TO BE RELEASED FROM ALL LIABILITY IN CONNECTION WITH THE LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE, AND CUSTOMER ASSUMES ALL RISK OF LOSS, DAMAGE OR CORRUPTION OF DATA AND SOFTWARE IN ANY WAY RELATED TO OR RESULTING FROM THE SERVICES.
7. Limitation of Liability.
a. IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER OR $50,000, WHICHEVER IS LESS.
8. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Customer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Customer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party.
9. Return of Goods. Absent the written consent of Seller, Customer shall not be permitted to return Goods if one or more of the following has occurred: (a) the Goods are opened or unpackaged, (b) the Goods are installed, or (c) the Goods have been connected to power or loads.
10. Dispute Resolution.
a. Equitable Relief. Either Party may seek equitable remedies, including specific performance and injunctive relief, for a breach of the other Party’s obligations under this Agreement. The Parties further agree that violation by Customer of the provisions contained in Section 8 would cause irreparable harm to the Seller not adequately compensable by monetary damages. Thus, in addition to other relief, the Parties agree that temporary and permanent injunctive relief is an appropriate remedy to prevent any actual or threatened violation of such provisions or to enforce such provisions according to their terms. The prevailing party in an action for injunctive relief under this Section shall be entitled to recover its costs of enforcement, including reasonable attorneys’ fees.
b. Party Representatives. Except for certain emergency judicial relief authorized in accordance with applicable law, which may be brought at any time, the Parties agree that upon receipt of a written notice from either Party of the existence of a dispute between them, the Parties shall submit the dispute for informal resolution to their designated senior management who are not legal personnel. Any dispute remaining unresolved after a period of thirty (30) days after the receipt of such written notice of a dispute by the other Party may be submitted to any court having competent jurisdiction in accordance with Section 10(d).
c. Choice of Law. The validity, construction, and interpretation of this Agreement and the rights, duties, and obligations of the Parties hereto shall be governed by the laws of Wisconsin.
d. Venue and Jurisdiction. The Parties hereby irrevocably consent to venue and the personal jurisdiction (to the fullest extent permitted by applicable law) of the state and federal courts located in Rock County, Wisconsin for the resolution of any disputes arising hereunder.
a. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under this Agreement.
b. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
c. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
d. Notices. Except as otherwise specified in the Agreement, all notices, requests, approvals, consents, and other communications required or permitted under this Agreement shall be in writing and shall be personally delivered or sent by (i) first class U.S. mail, registered or certified, return receipt requested, postage pre-paid; or (ii) U.S. express mail, or other, similar overnight courier service to the address of the other Party first written above. Notices shall be deemed given on the day received by the Party to whom the notice is addressed. Notices to Customer shall be given to Customer at the most recent address available to Seller. Notices to Seller shall be given as follows:
N1 Critical Technologies, Inc 2949 Venture Drive #190, Janesville, WI 53546 with a copy to: firstname.lastname@example.org
e. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
f. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorized representative of each party.
g. Merger. This Agreement contains the entire understanding of the parties with respect to the matters contained herein and supersedes and replaces in its entirety all prior communications and contemporaneous agreements and understandings, whether oral, written, electronic or implied, if any, between the parties with respect to the subject matter hereof.
h. Force Majeure. The Seller shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
ELECTRONIC SIGNATURES (OR COPIES OF SIGNATURES SENT VIA ELECTRONIC MEANS) ARE THE EQUIVALENT OF WRITTEN AND SIGNED DOCUMENTS.