“IntelliPower” means IntelliPower, Incorporated.
“Buyer” means the customer identified on the purchase order acknowledgement. “Products” or “Parts” mean the goods identified in the Purchase Order Acknowledgement.
“Terms and Conditions of Sale” means these terms and conditions together with the terms set forth in the Purchase Order Acknowledgement.
2. Effect of Terms and Conditions. IntelliPower undertakes to sell and deliver the products to the Buyer on the express conditions that
(i) the Buyer assents to these Terms and Conditions of Sale, to which acceptance is expressly limited,
(ii) these Terms and Conditions of Sale constitute the complete and exclusive agreement between the Buyer and IntelliPower, superseding all prior agreements, oral or written, and all other communications between the parties relating to the subject matter hereof, and
(iii) IntelliPower is not bound by any provisions, printed or otherwise, varying from or supplementing these Terms and Conditions of Sale that may appear in any purchase order or other document of the Buyer. In the event of any conflict between the terms set forth herein and the terms set forth in the Purchase Order Acknowledgement, the terms of the Purchase Order Acknowledgement shall prevail.
3. Buyer’s Assent. The Buyer’s assent to these Terms and Conditions of Sale shall be conclusively evidenced by the Buyer’s taking possession of the products, by the Buyer’s acceptance or deemed acceptance of the products, by the Buyer’s payment for the products, or by any other evidence establishing assent.
4. Prices and Terms. All prices are subject to change by IntelliPower without prior notice to Buyer.
(i) Payments, upon acceptance from IntelliPower for net 30 terms, will be payable within 30 days for the full amount stated on the Purchase Order Acknowledgement and shall be due not later than thirty (30) days after the date of invoice. All amounts stated herein and all payments to be made hereunder are in U.S. dollars. IntelliPower may charge interest at the rate of 1½ % per month on any overdue unpaid balance.
(ii) Any sale to the Buyer is subject to final credit approval by IntelliPower.
(iii) IntelliPower reserves the right to cancel orders or decline to make deliveries hereunder whenever Buyer is in default under any of its obligations to IntelliPower or IntelliPower determines that the Buyer is not financially sound.
(iv) If delivery is made in installments, no breach by IntelliPower with respect to any installment shall be deemed to be a breach of the entire contract.
5. Taxes. Any excise, sales, use, VAT, or similar taxes imposed by any governmental authority that IntelliPower may be required to pay, or to reimburse to others, by reason of the manufacture, ownership, use, or sale of any products delivered to the Buyer shall be the responsibility of the Buyer, and IntelliPower may invoice the Buyer therefore as IntelliPower may determine.
6. Shipment and Delivery. All products are sold and prices are quoted F.O.B. the place of shipment (as defined in the Uniform Commercial Code) for products shipped from the United States and EXW - manufacturing plant (as defined in Incoterms 2000) for products shipped from outside the United States. Upon tender of the products to the designated carrier for shipment to Buyer, or if no carrier has been designated to the carrier selected by IntelliPower, all risk of loss and responsibility for damage, deterioration, or destruction of the products shall be transferred to the Buyer. Buyer is responsible for all costs of transportation, freight, duties, export or import fees and insurance. Schedule dates quoted by IntelliPower in the Purchase Order Acknowledgement are shipment dates. Shipment dates are not guaranteed and IntelliPower will not be liable for any damages for failure to ship or deliver or to ship or deliver within the time specified in the Purchase Order Acknowledgement but will use commercially reasonable efforts to make shipment within such time. IntelliPower reserves the right to deliver product up to five days earlier than Buyer’s requested delivery date. The Buyer assumes all risks of failure of performance as a result of action or inaction (including failure to grant an export license) by governmental authority or strikes, accidents, acts or omissions of carriers, fire, flood, severe weather conditions, acts of God, force majeure, acts of terrorism or other causes beyond IntelliPower’s reasonable control or within the Buyer’s reasonable control. The shipment schedule specified in the Purchase Order Acknowledgement shall be extended by the amount of any delay resulting from any such event. Unless otherwise indicated in the Purchase Order Acknowledgement, shipment may be made by the method or carrier selected by IntelliPower.
7. Inspection, Acceptance, Rejection. The Buyer agrees to exercise within (3) days following receipt, its right of rejection as to any non-conforming products delivered to Buyer by written notice to IntelliPower that states, with particularity, the nonconformity upon which the rejection is predicated. Failure to inspect or to provide written notice of rejection within such period shall constitute acceptance. In addition to such other duties as the Uniform Commercial Code may impose; the Buyer agrees that upon rejection it will comply with all reasonable instructions of IntelliPower.
8. Flexibility Policy. All requests by Buyer for cancellation or rescheduling of outstanding orders must be made in writing. The date of receipt of such written request by IntelliPower Sales will be the effective date of the notice. The term “days” means the number of calendar days until scheduled shipment date per IntelliPower’ Purchase Order Acknowledgement. This Flexibility Policy applies to orders. Once products have been shipped, they are non-returnable unless return is otherwise expressly agreed to in writing by IntelliPower. Rescheduling refers to rescheduling to later delivery dates. Rescheduling to earlier delivery dates and order increases can often be accommodated by contacting IntelliPower Customer Service. These Flexibility terms are subject to change at any time by IntelliPower.
- 0-90 days prior to acknowledged shipment date: no cancellation permitted
- 91 days or more: 100% cancellation permitted with no restrictions
- 0-90 days: no rescheduling permitted
- 91 days or more: 100% rescheduling provided
(i) reschedule date is within 180 days of original scheduled shipment date
(ii) only one reschedule per line item per purchase order permitted
(iii) once rescheduled, no longer subject to cancellation
9. Intellectual Property. IntelliPower-Provided Intellectual Property: Any intellectual property, technical data, or other information owned by or provided by IntelliPower to Buyer under this Agreement shall remain the exclusive property of IntelliPower. Buyer shall treat this IntelliPower-provided or IntelliPower-owned intellectual property, technical data, and other information in accordance with the terms of the applicable non-disclosure agreement or Agreement provision concerning proprietary information. If there is no non-disclosure agreement or Agreement provision concerning proprietary information, Buyer shall receive a limited, non exclusive, revocable, non-transferrable, non-sublicensable license to this IntelliPower-provided or IntelliPower-owned intellectual property, technical data, and other information only for the period of performance of this Agreement and only permitting the intellectual property, technical data, and other information to be used to perform this Agreement.
IntelliPower Name, Trademarks, and Images: For the sake of clarity, Buyer has no right to use outside of performance of this Purchase Order any Intellectual Property to which IntelliPower owns; this specifically includes IntelliPower images and trademarks. Nothing in this Agreement permits Buyer to use publicly or with any third parties IntelliPower's name, trademarks or IntelliPower-owned images. Buyer can only receive the right to use such names, trademarks, or images through a separate agreement with IntelliPower. If Buyer receives such a right to use IntelliPower names, trademarks, or images, such use must be consistent with IntelliPower's usage guidelines, which will be provided if and when Buyer is permitted to use IntelliPower names, trademarks, or images.
10. Warranty. IntelliPower warrants that its products will be free from defects in materials and workmanship and will perform in accordance with the specifications for such product for one (1) year following the date of shipment. This warranty does not apply to products damaged by abuse, accident, misuse, neglect, alteration, repair, disaster, improper installation or improper testing.
If IntelliPower determines that the product is defective as provided in the foregoing paragraph, IntelliPower will, at its option, repair or replace the product. To obtain a replacement or repaired product under this warranty, the Buyer must contact IntelliPower Sales within the warranty period to obtain a Return Material Authorization and shipping instructions. The Buyer must return the product in the original packaging and pay all charges incurred in shipping the product back to IntelliPower. In shipping the product back to IntelliPower, the Buyer assumes all risk of damage or loss in transit. If IntelliPower determines that the product is defective, IntelliPower will pay any shipping charges in sending the replacement or repaired product to the Buyer.
THIS WARRANTY IS BUYER'S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM, WHETHER IN CONTRACT, TORT OR OTHERWISE, AND IS IN LIEU OF ANY OTHER WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY OF NON-INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES. ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED.
11. Limitation of Liability and Remedy. IntelliPower shall have no liability for any indirect, incidental, special or consequential damages in connection with the transactions contemplated hereby or arising from the use or inability to use the product, including without limitation, damages due to business interruption, lost profits or lost goodwill, claims of third parties, or injury to person or property, whether based upon breach of contract, negligence, strict liability, tort or other legal theory. In no event shall IntelliPower’ total liability arising from the sale or use of, or inability to use, IntelliPower’s product exceed the price paid for the product. If Buyer becomes listed on any restricted party list including, but not limited to, the Denied Persons List, Unverified List, Entity List, Specially Designated Nationals List and Debarred List, or if Buyer has any export privileges denied, suspended, or revoked by the government. Buyer shall be responsible for all losses costs, claims, causes of action, damages, liabilities and expenses, including attorneys' fees, all expenses of litigation and/or settlement, and court costs, arising from any violation of the above laws and regulations, or breach by Buyer, its officers, employees, agents, suppliers, or subcontractors at any tier, of the obligations under this clause.
12. Disputes/Arbitration. The parties will attempt in good faith to resolve any controversy or claim arising out of or relating to this Agreement informally. If the matter has not been resolved pursuant to informal negotiations, such controversy or claim shall be resolved by means of binding arbitration before a single neutral arbitrator in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association, including the Optional Rules for Emergency Measures of Protection. The parties shall mutually agree upon the individual who shall act as arbitrator. If the parties are unable to agree upon a neutral arbitrator, a list of potential arbitrators (no more than 10) shall be obtained by IntelliPower from the American Arbitration Association. The parties, starting with IntelliPower, will alternately strike names from the list until only one-name remains; the remaining person shall be the arbitrator.
No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the applicable statute of limitation. The arbitration shall be held in Orange County, California or any other place agreed upon at the time by the parties. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party 's actual damages.
A party may apply to the arbitrator for injunctive relief until an arbitration award is rendered or the dispute is otherwise resolved. A party also may, without waiving any other remedy, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party pending the arbitrator's appointment or decision on the merits of the dispute. The arbitrator's compensation and costs shall be shared equally by the parties.
13. Compliance with Law; Export Control. Buyer shall comply with all laws, ordinances, rules and regulations applicable to Buyer in connection with this transaction. Buyer agrees not to export or reexport the products, separately or as a part of a system, without compliance with applicable U.S. Export Control Laws.
(i) No modification of these Terms and Conditions of Sale shall be of any force or effect unless signed by an authorized representative of IntelliPower making specific reference hereto.
(ii) IntelliPower may assign its rights and delegate its duties hereunder to any successor in interest to substantially all of its business and operations.
(iii) This agreement shall be governed and construed in accordance with the laws of the State of California and the United States of America without regard to the conflict of law provisions thereof.