Terms and Conditions

Terms and Conditions of Sale
 

Last updated: March, 2021
 

Power BtoB, LLC (“Seller”) in consideration for acceptance of Buyer’s purchase order for Seller’s products and services (collectively “Goods”) as the same is referred to in the accepted purchase order of even date and in which these Terms and Conditions are incorporated therein and constitute a material part of the purchase order, Seller accepts Buyer’s order. These Terms and Conditions are also fully incorporated in any price list or schedule, quotation, acknowledgement or invoice from Seller relating to the Goods and constitute the complete and exclusive statement of terms governing the sale of the Goods. Buyer’s acceptance of the Goods shall serve as Buyer’s agreement to the Terms and Conditions contained herein. These Terms and Conditions may only be modified by an instrument in writing and signed by Buyer and a duly authorized representative of Seller.
 

Prices:
Unless otherwise specified in writing by Seller, the price quoted or specified by Seller for the Goods shall remain in effect for 30 days after the date of Seller's quotation or acknowledgment of Buyer's order for the Goods, whichever occurs first, provided an unconditional authorization from Buyer for the shipment of the Goods is received and accepted by Seller within such time period. Seller reserves the right to modify or cancel Seller’s quotation or modify a time of shipment or date of deliverable at any time during the sixty (60) day period following Seller’s quotation or at any time before Buyer’s unconditional authorization for shipment of Goods. If such authorization is not received by Seller within such 60 day period, Seller shall have the right to change the price of the Goods to Seller's price for the Goods at the time of shipment. All prices are exclusive of taxes, transportation and insurance, which shall be borne by Buyer, and valid based upon minimum quantities stated within Seller’s quotation. Seller reserves the right to revise price at any time due to documented cost increases.
 

Quote Validity Period:
Unless otherwise agreed upon in writing, Seller’s quotation is valid for a period of 60 days from the date noted on the quote.
 

Taxes:
Any current or future tax or governmental charge (or increase in same), including any value added tax, affecting Seller's costs of production, sale, or shipment, or which Seller is otherwise required to pay or collect in connection with the sale, purchase, delivery, storage, processing, use or consumption of Goods, shall be for Buyer's account and shall be added to the price or billed to Buyer separately, at Seller's election.
 

Terms of Payment:
Unless otherwise specified by Seller, terms are net 15 days from date of Seller's invoice in U.S. currency. Seller shall have the right, among all other remedies available to Seller under law, either to terminate this agreement or suspend further performance under this Agreement or at Seller’s election any other agreements with Buyer in the event Buyer fails to make any payment under this Agreement when due and Buyer hereby consents to any such election by Seller.
 

Shipment and Delivery:
While Seller will use all reasonable commercial efforts to maintain the delivery date(s) acknowledged or quoted by Seller, all shipping dates are approximate and not guaranteed. Seller reserves the right to make partial shipments. Seller, at its option, shall not be bound to tender delivery of any Goods for which Buyer has not provided shipping instructions and other required information. 

 Limited Warranty:
Subject to the limitations of Section 6, Seller warrants that the Goods manufactured by Seller will be free from defects in workmanship and will conform to the specifications under which such Goods are sold at the time of shipment under normal use and regular service and maintenance for one year from the date of manufacture by Seller. The warranties set forth in sections 5 and 7 are the only warranties given by Seller with respect to the Goods and are in lieu of and exclude all other warranties, express or implied, arising by operation of law or otherwise, including without limitation, merchantability and fitness for a particular purpose whether or not the purpose or use has been disclosed to Seller in specifications, drawings or otherwise, and whether or not Seller's Products are specifically designed and/or manufactured by Seller for Buyer's use or purpose. The warranties given herein do not extend to any losses or damages due to misuse, accident, abuse, neglect, negligence (other than Seller's), unauthorized modification or alteration, use beyond rated capacity, environmental conditions, improper installation, repair, handling, maintenance or application or any other cause not the fault of Seller. To the extent that Buyer or its agents have supplied specifications, information, representation of operating conditions or other data to Seller in the selection or design of the Goods and the preparation of Seller's quotation, and in the event that actual operating conditions or other conditions differ from those represented by Buyer and determined detrimental to the Goods by Seller, all warranties contained herein shall be null and void. The physical property values given in Seller’s product technical data sheets are typical values only and such values do not represent, and are not construed as product specifications. If within 30 days after Buyer's discovery of any warranty defects within the warranty period, Buyer notifies Seller thereof in writing, Seller shall, at its option and as Buyer's exclusive remedy, repair, correct or replace per its return policy, or refund the purchase price for, that portion of the Goods found by Seller to be defective. Failure by Buyer to give such written notice within the applicable time period shall be deemed an absolute and unconditional waiver of Buyer's claim for such defects. Advance written permission to return Goods must be obtained from Seller. Such Goods must be shipped transportation prepaid to Seller. Returns made without proper written permission will not be accepted by Seller. Seller reserves the right to inspect Goods prior to authorizing return. Goods repaired or replaced during the warranty period shall be covered by the foregoing warranties for the remainder of the original warranty period or 90 days from the date of shipment, whichever is longer. Buyer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from the use of Goods, either alone or in combination with other products/components. Pre-Production (prototype, engineering verification test, or design verification test) units are sold where is, as is, with all faults" without warranty of any kind, express or implied, including, without limitation, implied warranties of merchantability or fitness for intended purpose.
 

Limitation of Liability:
The sole and exclusive remedy for breach of any warranty hereunder (other than the warranty provided under section 7) shall be limited to repair, correction or replacement, or refund of the purchase price under section 5. Seller shall not be liable for any damages caused by delay in Seller’s timely performance to supply the Goods to Buyer. In no event, regardless of the form of the claim or cause of action (whether based in contract, infringement, negligence, strict liability, other tort or otherwise), shall Seller's liability to Buyer or to Buyer’s customers and end users, exceed the price paid by Buyer for the specific Goods provided by Seller giving rise to the claim or cause of action. Buyer agrees that in no event shall Seller's liability to Buyer or its customers and end users, include any special, incidental, consequential or punitive damages. The term "consequential damages" shall include, but is not limited to, loss of anticipated profits, business interruption, loss of use, revenue, reputation and data, costs incurred, including without limitation, for capital, fuel, power and loss or damage to property or equipment. It is expressly understood that any technical advice furnished by Seller with respect to the use of the Goods is given without charge, and Seller assumes no obligation or liability for the advice given, or results obtained, all such advice being given and accepted at Buyer's risk. Seller’s aggregate liability for any and all claims, liabilities, expenses, and all other damages or remedies arising under these terms, whether such claims are in contract, negligence (which for avoidance of doubt will include willful misconduct and gross negligence), or other tort, strict liability, warranty, indemnity, or other type of liability, shall in no event exceed ten percent (10%) of the trailing twelve (12) month revenue with Buyer.
 

Patents and Copyrights:
Seller warrants that the Goods sold, expressly excepting any Goods made for Buyer according to Buyer's specifications, do not infringe any valid U.S. patent or copyright in existence as of the date of shipment. This warranty is given on the condition that Buyer promptly notifies Seller of any claim or suit involving Buyer in which such infringement is alleged and cooperates fully with Seller and permits Seller to control completely the defense, settlement or compromise of any such allegation of infringement. Seller's warranty as to utility patents only applies to infringement arising solely out of the inherent operation according to Seller's specifications and instructions of such Goods. In the event such Goodsare held to infringe such a U.S. patent or copyright in such suit, and the use of such Goods is enjoined, or in the case of a compromise or settlement by Seller, Seller shall have the right at its option and expense, to procure for Buyer, the right to continue using such Goods, or replace them with non infringing Goods, or modify same to become non-infringing, or grant Buyer a credit for the depreciated value of such Goods and accept return of them. In the event of the foregoing, Seller may also, at its option, cancel the agreement as to future deliveries of such Goods, without liability. In no event shall Seller be liable for any incidental, consequential or punitive damages.
 

Excuse of Performance, Force Majeure:
Seller shall not be liable for delays in performance or for non-performance due to any cause beyond its reasonable control including, but not limited to, acts of god; acts of buyer; war; fire; flood; weather; sabotage; epidemics; strikes or labor disputes; civil disturbances or riots; governmental requests, restrictions, allocations, laws, regulations, orders, invasions, insurrections of a larger extent, or actions; unavailability of or delays in transportation; default of suppliers; or unforeseen circumstances or any events or causes beyond Seller's reasonable control. Deliveries or other performance may be suspended for an appropriate period of time or cancelled by Seller upon notice to Buyer in the event of any of the foregoing, but the balance of the agreement shall otherwise remain unaffected as a result of the foregoing. If Seller determines that its ability to supply the total demand for the Goods, or to obtain material used directly or indirectly in the manufacture of the Goods, is hindered, limited or made impracticable due to causes set forth in the preceding paragraph, Seller may allocate its available supply of the Goods or such material(without obligation to acquire other supplies of any such Goods or material) among its purchasers on such basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.
 

Termination:
In the event of Buyer cancellation, for convenience or default, Buyer assumes all liability to Seller for payment of the (a) Goods delivered, (b) finished good inventory, (c) work in process, and (d) raw materials on order at time of cancellation required per any and all purchase orders, stocking agreements, VMI, Min/Max requirements, blanket orders, material agreements, or releases.
 

Non-Cancellation:
Buyer may not cancel, terminate for convenience, or direct suspension of manufacture, except on mutually acceptable terms.
 

Changes:
Buyer may request changes or additions to the Goods consistent with Seller's specifications and criteria. In the event such changes or additions are accepted by Seller, Seller may revise the price, license fees and dates of delivery. Seller reserves the right to change designs and specifications for the Goods without prior notice to Buyer, except with respect to Goods made to order for Buyer. Seller shall have no obligation to install or make such change in any Goods manufactured prior to the date of such change.
 

Drawings and Data:
Timely performance by Seller is contingent upon Buyer’s supplying to Seller, when needed, all required technical information, including drawing approval, and all required commercial documentation. All drawings furnished by Seller to Buyer are proprietary and remain the exclusive property of Seller, and are to be used by Buyer only for the purpose of operating and maintaining the Product(s), and not for manufacture of duplicate or similar requirement or parts by others.
 

Custom Tooling, Dies, Fixtures, and Production Equipment:
All production equipment, including custom tooling, dies, and fixtures shall be Seller’s property which Seller be free to move, transfer, dispose of, or use in any manner or for any purpose whatsoever, including but not limited to production of products for other customers.
 

Assignment:
Buyer shall not assign its rights or delegate its duties hereunder or any interest herein without the prior written consent of Seller, and any such assignment, without such consent, shall be void.
 

Buyer’s Purchase Orders:
Orders received in response to Seller quotations are subject to acceptance by Seller. When accepted, Seller will furnish specified goods at quoted prices according to the schedule in Seller’s sales order acknowledgment. In the event of changes, Seller reserves the right to suspend manufacture and delivery of goods on Buyer’s order pending mutual acceptance of the revisions. Seller reserves the right to discontinue deliveries under Buyer’s order by reason of unfavorable changed in Buyer’s financial condition, credit status, or payment history.
 

Intellectual Property:
Seller's intellectual property, including without limitation, all patents, copyrights, trade secrets, trade-dress and any other intellectual property of any kind (including without limitation, that which exists in the underlying technology), furnished by Seller to Buyer in connection with this agreement is the property of Seller and Seller retains all rights, including without limitation, exclusive rights of use, licensing, and sale. Possession of Goods, pre-production units, specifications, prints or drawings, or any other materials does not convey to Buyer any rights or license thereto. If Seller, or any person employed by or working under the direction of Seller, conceives or first reduces to practice: (a) any invention whether by virtue of experimental, development or research activities, including engineering related thereto and whether or not patentable; (b) any reduction to practice of any subject matter, application or discovery which could be patented or copyrighted; or (c) any improvement in the design of the Goods or any alternative or improved method of accomplishing production of the Goods, referred to as “Inventions”, such Inventions shall be owned by Seller and deemed confidential and the propriety property of Seller.
 

Buyer's Compliance with Laws:
In connection with the transactions contemplated by this agreement, Buyer is familiar with and shall fully comply with all applicable laws, regulations, rules and other requirements of the United States and of any applicable state, foreign and local governmental body in connection with the purchase, license, receipt, use, transfer and disposal of the Goods.
 

Export/Import:
Buyer agrees that all applicable import and export control laws, regulations, orders and requirements, including without limitation those of the United States and Canada, and the jurisdictions in which the Seller and Buyer are established or from which Goods may be supplied, will apply to their receipt and use. In no event shall Buyer use, transfer, release, import, export, Goods in violation of such applicable laws, regulations, orders or requirements.
 

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