The term “FastCAP” as used herein shall mean FastCAP Systems Corporation, a Delaware corporation having offices at 21 Drydock Avenue, 8th Floor East, Boston MA. The term “Buyer” shall mean the party placing the purchase order. No contractual relationship between FastCAP and Buyer shall arise until such time as Buyer has placed an order incorporating the present terms and conditions that has been accepted by FastCAP and such acceptance has been indicated on a written acknowledgement.
1. Sale and Purchase. All ultracapacitor products purchased hereunder (either singularly or collectively, hereinafter, “Products”) from FastCAP are sold at the relevant prices specified herein (“Prices”) and are subject to the unqualified acceptance of these terms and conditions by Buyer. There shall be no force or effect to any different or additional general terms of any purchase order, confirmation or similar form even if signed by the parties after the date hereof. Provision of any Products to or on behalf of Buyer is conditioned on, and Buyer’s order or taking delivery of or otherwise accepting, using, or distributing any Product shall constitute, Buyer’s assent to these Terms and Conditions (“Terms”) to the exclusion of all other terms. If these Terms are considered an offer, acceptance is expressly limited to such Terms. Unless expressly stated otherwise, the prices contained in any quotation shall be valid for thirty (30) days following the date of the quotation. Buyer shall only use the Products sold to it by FastCAP in the manufacture of the products and final applications produced by Buyer utilizing the Products (“Finished Products”) and may not resell any of the Products in bulk.
2. Commercial Terms. Upon approved credit, all payments due hereunder to FastCAP shall be paid to FastCAP in United States Dollars (USD) not later than thirty (30) days following the date of the applicable invoice. Late payments shall bear interest at the rate of one and one-half percent (1.5%) per month or, if lower, the maximum rate allowed by law. Unless otherwise stated on the face of the purchase order and matching order confirmation, all Products are delivered Ex Works FastCAP’s Selected Facility, as defined by Incoterms 2010, and title to the Products shall transfer at such point regardless of FastCAP’s involvement in coordination or execution of delivery of the Products to a different point. FastCAP shall use all reasonable efforts to deliver each of Buyer's orders for the Products on the date specified in the order, but the time of delivery shall not be of the essence. In no event shall FastCAP be liable for any loss, damage or penalty for delay in delivery or for failure to give notice of delay. In addition to the price, Buyer will pay all charges, including without limitation, transportation charges and insurance premiums, and shall be responsible for all taxes (except FastCAP’s income taxes), duties, costs of compliance with export and import controls and regulations, and other governmental assessments.
3. Limited Warranty.
3.1 Limited Warranty Period. The duration of the Limited Warranty, as defined below, shall begin on the date upon which title transfers from FastCAP to Buyer, as defined in accordance with the applicable delivery terms, and shall extend for a period of twelve (12) months (“Limited Warranty Period”).
3.2 Limited Warranty. For Buyer’s purchases of the Products, FastCAP provides the following limited warranty, including, notably, the following express conditions and exclusions (collectively, “Limited Warranty”). FastCAP warrants to Buyer that the Products delivered hereunder, which are standard products of FastCAP, will conform to FastCAP’s specification in effect at the time of delivery and be free of defects in material and workmanship for the Limited Warranty Period.
THE FOREGOING LIMITED WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY IMPLIED WARRANTY ARISING FROM THE COURSE OF PERFORMANCE, THE COURSE OF DEALING, OR THE USAGE OF TRADE, AND ALL OTHER WARRANTIES, WHICH ARE HEREBY EXPRESSLY DISCLAIMED BY FASTCAP AND WAIVED BY BUYER.
3.2.1. Limited Warranty Conditions. This Limited Warranty is expressly conditioned upon the following (“Limited Warranty Conditions”): (a) FastCAP is notified in writing at email@example.com by Buyer within thirty (30) days after discovery of failure by the Products to comply with the Limited Warranty; (b) Buyer obtains a Return Material Authorization (RMA) number from FastCAP prior to returning any allegedly defective Products to FastCAP; (c) the allegedly defective Products are returned to FastCAP suitably packaged, transportation charges prepaid by Buyer; and (d) the allegedly defective Products are received by FastCAP for adjustment no later than sixty (60) days following the issuance of valid RMA instructions and in no event later than four (4) weeks following the last day of the Limited Warranty Period.
3.2.2. Limited Warranty Exclusions. This Limited Warranty specifically excludes any failure by or defects of the Products which have been caused by the following (“Limited Warranty Exclusions”): (a) misuse, abuse, neglect, improper installation or application, including, but not limited to, excessive vibration or charging, overexposure to extreme temperatures, acts of God, improper interface or interaction with other units, or malfunction of any components or equipment used with the Products; (b) failure to follow instructions or warnings on the Product or applicable manuals, including, specifically, operation temperature, voltage, shock, and vibration range warnings; (c) unauthorized repair or alteration, including, notably, breaking the seal of any of the Products; (d) collision, accident or negligence in use, storage, transportation or handling occurring after the transfer of title of the Products from FastCAP to Buyer; or (e) any other harm to or loss of the Products after the transfer of title of the Products from FastCAP to Buyer, including, for example, theft of the Products.
3.3 Limited Warranty Remedy. FastCAP’s sole liability and Buyer’s sole and exclusive remedy for a breach of the foregoing Limited Warranty shall be for FastCAP, in its sole and reasonable discretion, to repair or replace such Products. In the event that any one or more of the above Limited Warranty Conditions is not satisfied or the Products have been subjected to any of the scenarios within the Limited Warranty Exclusions, FastCAP shall have no liability under this Limited Warranty whatsoever. This Limited Warranty extends only to Buyer and not to any subsequent purchaser or owner of the Product and Buyer shall ensure that the limitations and disclaimers of this Limited Warranty, including, specifically, the Limited Warranty Conditions and Limited Warranty Exclusions, are applicable to such subsequent purchase or owner of the Product. All claims by Buyer for damages not affecting the Product itself, such as, but not limited to, loss of use, loss of orders, loss of profits, claims by third parties or claims for indirect or consequential damages, irrespective of the legal basis for such claims, shall be excluded. NO EMPLOYEE OR REPRESENTATIVE OF FASTCAP IS AUTHORIZED TO MODIFY THIS LIMITED WARRANTY FOR ANY PRODUCTS EXCEPT VIA A FORMAL WRITTEN AMENDMENT TO THESE TERMS.
4. Returns. Buyer may return only those Products which fail to conform to the Limited Warranty set forth above.
5. Indemnification. FastCAP shall hold Buyer and its officers, directors, agents and employees harmless from liability resulting from infringement by the Products of any United States patent or copyright issued as of the date of these Terms, provided FastCAP is promptly notified in writing of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over the defense and all negotiations for a settlement or compromise; FastCAP will not be responsible for any settlement it does not approve in writing. The foregoing obligation of FastCAP does not apply with respect to Products or portions or components: (i) not supplied by FastCAP, (ii) made in whole or in part in accordance to Buyer specifications or requests, (iii) which are modified after shipment, if the alleged infringement relates to such modification, (iv) combined, processed or used with other products, processes or materials where the alleged infringement relates to such combination, process or use, (v) where Buyer continues allegedly infringing activities after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the infringement is incident to use of the Product but does not result primarily from the Product and its intended application. Buyer will indemnify FastCAP and its officers, directors, agents and employees from all damages, settlements, attorneys' fees and expenses: (i) related to a claim of infringement or misappropriation excluded from FastCAP's indemnity obligation by the immediately preceding sentence, or (ii) in connection with Buyer's activities regarding the Products or its failure to effectively pass on to its direct or indirect customers FastCAP's liability and warranty limitations and disclaimers.
6. Intellectual Property. Any reverse engineering, disassembly, copying, decoding is strictly forbidden for any goods sold under this contract. If the Products contain any intellectual property of FastCAP, only a non-exclusive, nontransferable, non-assignable license for the standard commercial use of the Products is granted to the Buyer. For the avoidance of doubt, the aforementioned limited license does not include any license to FastCAP intellectual property covering apparatuses and systems (and methods of use thereof) that include ultracapacitors as a component part.
7. Limited Liability. EXCEPT FOR BODILY INJURY, FASTCAP WILL NOT BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THESE TERMS UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY AMOUNTS IN EXCESS IN THE AGGREGATE OF THE AMOUNTS PAYABLE TO FASTCAP HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO DATE THE CAUSE OF ACTION AROSE, UNLESS DAMAGES RESULTED FROM GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, OR (II) ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR (III) COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES. FASTCAP SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND ITS REASONABLE CONTROL OR FOR ANY ALLOCATION OF PRODUCTS BETWEEN ITS CUSTOMERS IN THE EVENT OF A SHORTAGE. Buyer further acknowledges that the pricing and terms would have been different if there had been a different allocation of risk.
8. High Risk Activities; Indemnity. Unless otherwise agreed to in writing between FastCAP and the Buyer, the Products are not designed, manufactured, or intended for use in hazardous environments requiring fail-safe performance where the failure of the product could lead to death, personal injury, or significant environmental damage (“High Risk Activities”). Use of the Products in High Risk Activities is not authorized, and Buyer shall indemnify and hold harmless, FastCAP and its affiliates and shareholders from any liability, damages, costs and expenses (including, without limitation, the costs and fees of attorneys and other professionals) arising from or relating to any violation of Buyer’s obligations under any of these Terms or any use of the Products by Buyer or any party obtaining use or exposure to the Products through Buyer.
9. Compliance with Laws. Buyer shall comply with all laws and regulations, including, but not limited to, those pertaining to export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control (“OFAC”), or other United States or foreign agency or authority, and not export, or allow the export or re-export of any Product (or any product incorporating such Product) in violation of any such restrictions, laws or regulations; Buyer shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the transport and/or export of the Products, as the case may be, of Products to any location and shall demonstrate to FastCAP compliance with all applicable laws and regulations prior to delivery thereof by FastCAP.
10. General. All notices under these Terms shall be in writing, and shall be deemed given when personally delivered, when sent by confirmed fax, or three days after being sent by prepaid certified or registered mail to the address of the party to be noticed as set forth herein or such other address as such party last provided to the other by written notice. Buyer shall not have any right or ability to assign, transfer, or sublicense any obligation or benefit under these Terms and any attempt to do so shall be void. FastCAP may assign these Terms or the underlying purchase order in whole or in part. The failure of either party to enforce its rights under these Terms at any time for any period shall not be construed as a waiver of such rights. These Terms supersede all proposals, oral or written, all negotiations, conversations, or discussions between or among parties relating to the subject matter of these Terms and all past dealing or industry custom. No changes or modifications or waivers are to be made to these Terms unless evidenced in writing and signed for and on behalf of both parties. In the event that any provision of these Terms shall be determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that these Terms shall otherwise remain in full force and effect and enforceable. These Terms shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts (without regard to the conflicts of laws provisions thereof or the United Nations Convention on the International Sale of Goods). In any action or proceeding to enforce rights under these Terms, which shall be brought within the proper courts within Boston, Massachusetts, the prevailing party will be entitled to recover costs and attorneys’ fees.