Standard Terms and Conditions of Sale
Updated September 21, 2012
“Seller” means Perpetua Power Source Technologies, Inc.,
“Buyer” means the legal entity purchasing Goods from
Seller. “Goods” means the products offered by Seller
and/or purchased by Buyer. “Offer” means any quote,
proposal, or offer to sell Goods provided by Seller to Buyer. “Order”
means any purchase order or similar instrument issued by Buyer to
Seller to purchase Goods.
These Terms and Conditions constitute the entire exclusive agreement
between Seller and Buyer regarding the purchase and sale of Seller's
renewable energy devices and/or systems ("Products").
Unless specifically agreed to in writing by a duly authorized representative
of Seller, Seller objects to, and is not bound by, any terms and
conditions that differ from or add to the terms and conditions specified
herein. Any conduct by Buyer indicating acceptance of these Terms
and Conditions, and any acceptance by Buyer of any Products, shall
constitute Buyer's acceptance of these Terms and Conditions. Seller’s
acceptance of an Order or Buyer’s receipt of goods, whichever
occurs first, will conclusively evidence Buyers’ unconditional
acceptance of these terms and conditions.
All offers to purchase Products (“Orders”) are subject
to acceptance by PERPETUA. PERPETUA reserves the right to allocate
the sale of Products among its customers. Orders for special, custom,
or value-added Products, and Products specifically identified by
PERPETUA as non-standard, are non-cancelable and nonrefundable.
4. PRICES AND PAYMENT TERMS.
Unless stated otherwise in writing by Seller, all prices are stated
in U.S. dollars, exclusive of all federal, state or other government,
excise, use, occupational, sales, value added tax (VAT), export,
import or custom fees or duties or like taxes or duties now in force
or enacted in the future ("Taxes"). The prices offered
apply only to the specific quantities, specifications, and delivery
schedules set forth in Seller’s Offer. In addition to the
prices quoted or invoiced, Buyer shall pay any Taxes imposed by
any government authority on, or measured by, the transaction between
Seller and Buyer, unless the Buyer provides Seller with a tax exemption
certificate acceptable to the applicable taxing authority. All Products
are invoiced upon shipment. Payment is due thirty (30) days after
the date of invoice subject to credit approval of Buyer by Seller.
Seller may change payment terms at any time, including requiring
payment prior to delivery. Each shipment is a separate and independent
transaction and payment must be made by Buyer accordingly.
5. SHIPPING TERMS AND RISK OF
LOSS. Unless stated otherwise, all prices
for domestic deliveries are F.O.B. Seller’s place of shipment,
as defined in the Uniform Commercial Code (UCC), and all prices
for international deliveries are Ex-Works,
as defined by INCOTERMS 2000. Risk of loss for Goods will transfer
to Buyer when Seller tenders products to the freight forwarder at
Seller’s designated facility or upon Seller presenting Goods
to carrier. Any non-standard or special packing or packaging requirements
requested by Buyer are subject to Seller approval and provided at
additional cost to Buyer. Delivery dates are estimates. Seller will
use commercially reasonable efforts to meet desired delivery dates,
but will not be liable to Buyer in any way for, nor responsible
for any losses caused as a result of, any late shipment. Seller
shall not be responsible for any delays in delivery caused by strikes,
flood, fire, other natural disaster or act of God, scarcity of the
materials needed to procure the Products, governmental restrictions,
or any other cause beyond the reasonable control of Seller.
6. CUSTOM PRODUCT.
Buyer acknowledges that if this purchase is a special Order, the
provisions of this paragraph supersede any conflicting general terms
of these Terms and Conditions. Seller shall have exclusive rights
to goods designed and manufactured for the unique needs of Buyer
to Buyer's specifications or requirements ("Custom Product").
Seller shall retain all rights, title, and interest to and possession
of designs, masks and manufacturing processes. Individual segments
or parts of Custom Product designs may be used by Seller in other
designs and may not be used by Buyer except as a part of Custom
Product designed and manufactured by Seller. Prices and/or schedules
for Custom Products are subject to change by Seller if any specifications
are revised or supplemented or there are unforeseen difficulties
with the design. All Custom Product is subject to a cancellation
fee of 100% of the purchase price if canceled at any time after
the order is placed. Custom Product shall be described in the purchase
order at or before the time that its manufacture or assembly begins.
7. SALE CONVEYS NO LICENSE.
The Products are offered for sale and are sold by Seller subject
to the condition that such sale does not convey any license, expressly
or by implication, estoppel or otherwise, under any patent, copyright
or other intellectual property right of Seller or with respect to
which Seller can grant licenses. Seller expressly reserves all its
rights under such patents, copyrights or other intellectual property
8. LIMITED WARRANTY. Seller
warrants that the Products, when delivered by Seller or Seller's
authorized distributor and for twelve (12) months following the
delivery date (the “Warranty Period”), will be free
from defects in material and workmanship and will substantially
conform to Seller's publicly available specifications for such Products
in effect at the time of delivery. In all cases, Seller has sole
responsibility and discretion for determining the cause and nature
of a Product defect, and Seller’s determination with regard
thereto shall be final. Buyer's exclusive remedy and Seller's sole
liability for a breach of warranty reported to Seller during the
Warranty Period shall be, at Seller's option, to replace or repair
the affected Product, or to refund to Buyer the price of the Product.
Seller’s warranty does not apply to any Goods that have been
subjected to improper installation, misuse, alteration, repair,
neglect, accident, inundation, fire, or the like. Some Perpetua
products contain batteries that are used for enhanced features.
All batteries have finite power capacities as stated in the product
data sheets. Battery life beyond the stated performance is not warranted.
This warranty excludes prototypes, demonstration, or engineering
samples of Products (which are provided "AS IS" meaning
without any warranties of any kind from Seller), or Products that
have been subject to abuse, misuse, mishandling, accident, alteration,
neglect, unauthorized repair or installation, or procured through
an unauthorized third party. Buyer shall not return Products without
first obtaining a customer return material authorization (RMA) number
from Seller. The limited warranty set forth in this Section shall
not apply in the event of any act, error, neglect or default of
the Buyer or any third party or in the event of any breach of this
Agreement by Buyer. Seller does not warrant that Products will be
free from design defects or errors. This warranty does not extend
to any implementation by Buyer in an application or environment
that is not contained within Seller's specifications, and does not
extend for use of the Products as the principal mechanism in life-support
applications or other applications that invoke potential risks of
death, bodily injury or severe property or environmental damage
("Critical Applications"). SELLER’S PRODUCTS ARE
NOT DESIGNED TO BE FAIL-SAFE, AND USE OF SELLER'S PRODUCTS IN ANY
CRITICAL APPLICATIONS IS FULLY AND SOLELY AT THE RISK OF BUYER.
THE WARRANTIES SET FORTH IN THIS SECTION 8 ARE EXCLUSIVE. SELLER
DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR
OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF NON-INFRINGEMENT
AND ANY WARRANTY THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF
PERFORMANCE OR USAGE OF TRADE. NO WARRANTIES ARE MADE BY ANY OF
SELLER’S LICENSORS OR SUPPLIERS. No agent, employee, sales
representative or distributor of Seller has any authority to bind
Seller to any affirmation, representation or warranty except as
stated in this Section 8. Buyer hereby acknowledges that it has
not entered into this transaction in reliance upon any warranty
or representation by any person or entity except for the warranties
or representations specifically set forth herein.
Buyer shall comply with all applicable export laws and regulations
including, without limitation, those administered by the U.S. Department
of Commerce - Bureau of Industry and Security (U.S. Export Administration
Regulations 15 CFR 730 et seq.) and shall not export, re-export,
resell, transfer, or disclose, directly or indirectly, any Products
or technical data, or the direct product of any Products or technical
data, to any proscribed person, entity, or country, or foreign national
t hereof, unless properly authorized by the U.S. government and/or
any other applicable or relevant government or regulatory
body. Buyer shall hold Seller harmless from any liability arising
from Buyer’s failure to comply with such laws, regulations
and orders, or the provisions of this section.
10. FORCE MAJEURE.
Neither Seller nor Buyer shall be liable for any loss, damage or
penalty resulting from a failure to fulfill an obligation (other
than payment of money) when such failure is due to causes beyond
the party's reasonable control, including but not limited to supplier
delay, force majeure, act of God, war, civil or labor unrest, fire,
explosion or natural disaster. Nothing in this section relieves
Buyer of the obligation to pay Seller for delivered Products.
Except as set forth herein, orders for Products are non-cancelable
within thirty (30) days prior to the scheduled delivery date. Buyer
may only cancel orders within thirty (30) days from the originally
scheduled delivery date upon pre-payment to Seller of reasonable
cancellation charges determined by Seller in its sole discretion,
which charges shall include, but are not limited to, expenses already
incurred for labor and material costs, restocking charges, storage
costs, overhead, commitments made by Seller, and profit.
Seller may modify the specifications of Products and substitute
Products manufactured to such modified specifications at any time
without prior notice to Buyer, provided such Products substantially
conform to the form, fit and function of the original product.
13. REVERSE ENGINEERING RESTRICTION.
Buyer shall not reverse engineer, copy, disassemble, tamper with,
or otherwise attempt to reconstruct any physical embodiments, prototypes,
samples, methods, software or products provided
hereunder to the Buyer. In the event any such actions nevertheless
occur, all data and results and/or any inventions, discoveries,
or works arising there from shall be solely owned by the Seller
and the Buyer shall, at its expense, assign any such inventions
or discoveries to the Seller.
14. PRODUCT REMARKING.
Buyer shall not remark or modify the Product markings including,
but not limited to, the product logo, part number, patent marking
or other printed or attached labeling in any way. Buyer acknowledges
and agrees that the warranty of Section 8 is void as to any Products
on which Buyer has altered, removed, or remarked any portion of,
the Product part number, date code, logo, or factory code.
15. LIMITATION OF LIABILITY.
SELLER'S TOTAL LIABILITY ARISING OUT OF OR RELATING TO THESE TERMS
AND CONDITIONS AND/OR SALE OF PRODUCTS, WHETHER FOR BREACH OF CONTRACT
OR WARRANTY, NEGLIGENCE, OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT
RECEIVED BY SELLER
FROM BUYER FOR THE PRODUCTS WHICH GIVE RISE TO SUCH LIABILITY OR
CLAIMS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY COSTS OF PROCUREMENT
OF SUBSTITUTE GOODS BY BUYER, OR FOR ANY LOST PROFITS, LOSS OF DATA
OR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER DAMAGES, WHETHER
OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGES, HOWEVER CAUSED, AND REGARDLESS OF THE THEORY ON WHICH SUCH
CLAIM IS BASED. THE EXCLUSIONS AND LIMITATIONS OF THIS SECTION 15
ALSO APPLY TO ANY LIABILITY THAT MAY ARISE OUT OF THIRD PARTY CLAIMS
AGAINST BUYER. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT
THE POTENTIAL LIABILITY OF SELLER ARISING OUT OF THIS CONTRACT AND/OR
SALE OF PRODUCTS. THE LIABILITY LIMITATIONS HEREIN SHALL CONTINUE
TO APPLY EVEN IF AN EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SELLER DISCLAIMS ALL LIABILITY OF ANY KIND ON BEHALF OF SELLER’S
LICENSORS AND SUPPLIERS. NOTHING IN THESE TERMS AND CONDITIONS SHALL
IN ANY WAY LIMIT ANY APPLICABLE CONSUMER RIGHTS UNDER LOCAL LAW.
16. INTELLECTUAL PROPERTY INFRINGEMENT.
Seller shall have no obligation or liability to Buyer for any claim
of infringement of any patent, copyright, mask work, trademark,
or design or for any claim that Seller has misappropriated or unlawfully
disclosed or copied or used any data or trade secrets. With regard
to Seller's Products furnished to Buyer under this Agreement, Buyer
shall indemnify Seller and hold Seller harmless for and Buyer shall
be responsible for and pay any and all awards or damages assessed
against Seller and any expenses incurred by Seller to defend against
any claim arising out of (a) modifications or improper use made
by any person or entity other than Seller, (b) conformance by Seller
with specifications, designs or instructions provided by Buyer,
or (c) the combination or incorporation of any Product, or of the
elements of any
Product, with any other circuitry, subassembly, products, equipment
or materials not supplied by Seller. THE FOREGOING STATES SELLER'S
ENTIRE LIABILITY AND OBLIGATION (EXPRESS, STATUTORY, IMPLIED OR
OTHERWISE), AND BUYER'S LIABILITY AND OBLIGATION, WITH RESPECT TO
INTELLECTUAL PROPERTY INFRINGEMENT OR CLAIMS THEREFOR RELATING TO
17. USE OF PRODUCTS.
Buyer shall indemnify Seller against all claims, losses, damage,
or injury arising out of or related to the use of the Products,
whether sold separately or incorporated into any of Buyer’s
products or services.
18. ARBITRATION AND LAW.
Disputes that arise under this agreement that cannot be settled
amicably by the parties will be settled by arbitration in Corvallis,
Oregon, United States of America under the prevailing rules of the
commercial conciliation and arbitration rules of the American Arbitration
Association. Judgment upon the arbitration award or decision may
be entered in any court of competent jurisdiction. Arbitration awards
and decisions are subject to Article 15, Limitation of Liability.
Buyer may not assign or transfer this agreement in whole or in part
without the prior written approval of Seller.
20. UNENFORCEABLE PROVISIONS.
If individual provisions of these Terms and Conditions are held
by a court of competent jurisdiction to be valid, then such provisions
shall be modified to the minimum extent necessary to render them
valid, while to the fullest extent possible preserving the business
and financial intent and impact of the original provisions, and
the remaining provisions shall remain unaffected. Seller's failure
to enforce any of the provisions hereof, or to exercise any right
provided herein, shall in no way be construed as a waiver of such
provision or right, nor in any way affect the validity of these
terms and conditions or Seller's right to enforce any part of these
terms and conditions at any time.
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