SUNWIZE POWER & BATTERY TERMS AND CONDITIONS

Terms & Service Download PDF

1.     COMPLETE AGREEMENT. These  terms  and  conditions of sale  (“Terms“) are  the  only  terms  which  govern  the  sale  of the  goods  (“Goods“)  by SunWize  Power  & Battery  (“Seller“)  to buyer  (“Buyer“)  of the  Goods  named  on  the  applicable  quotation, purchase  order,  sales acknowledgment, and/or invoice (“Sales Confirmation“).  The Sales Confirmation and these Terms (collectively, “Agreement“) comprise  the entire agreement between  the parties, and supersede  all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both  written  and oral.   These  Terms  prevail  over  any of Buyer’s  general  terms  and conditions of purchase  regardless whether  or when  Buyer  has submitted  its purchase  order or such terms.   Fulfillment of Buyer’s  order does not constitute  acceptance of any of Buyer’s  terms and conditions and does not serve to modify or amend these Terms.   Any additional, contradictory or different  terms contained  in any initial or subsequent order or communication from Buyer pertaining to the Goods shall be deemed  null and void and of no force and effect.   No course of prior dealings between Buyer and Seller and no usage of the trade shall supplement or explain any term used in the Agreement.  Acceptance or acquiescence in a course of performance rendered under the Agreement shall not be relevant to determine the meaning of the Agreement even though the accepting or acquiescing party has knowledge of the nature of the performance and the opportunity to object.

2.     ORDER MODIFICATION. Orders  cannot  be terminated, cancelled  or modified,  or shipment  deferred,  after acceptance of Buyer’s  order  by Seller,  except  with Seller’s  written  consent  (which consent  it may withhold  for any or no reason)  and subject  to charges, including,  without  limitation,  Buyer’s  indemnification of Seller against  liability  and expense  incurred  and commitments made by Seller, assessment of a 20% administrative fee, payment  for lost profit, work in process, and contract value of Goods whether or not completed or ready for shipment (“Modification Charges”). Upon payment in full of such Modification Charges, Buyer shall have the right to take possession of all work in process.

3.     ONLINE ORDER POLICIES.  Seller’s policies that apply to the sale of Goods,  and contain Seller’s  ordering  policy, policy on extension of credit, shipping  policy, payment and return  policy ( “Order  Policies”)  which  are subject  to change  from time to time and available  at the Seller’s  web site or upon  request, are incorporated into these Terms by this reference,     The applicable  Order  Policies are those  in effect  at the time the Sale Confirmation is accepted  by the Buyer. Seller’s Order Policies are for explanation and clarification of its processes and do not contravene these Terms. In the event of an ambiguity, these Terms supersede Order Policies.

4.     DELIVERY. Goods in Seller’s stock will be shipped promptly and Goods not in stock will be shipped when available.   All shipping dates are approximate, and are based upon current availability of materials, present production schedules, prompt receipt of all necessary information, and credit approval, if applicable. Seller will not be liable for any damage, loss, fault, or expenses arising out of delays in shipment, or loss, or damage in transit.   Unless otherwise  agreed in writing by the parties, Seller shall cause  the Goods  to be delivered  to the location  specified  on the Sales  Confirmation using  Seller’s  standard  methods  for packaging  and shipping  such Goods.  If Buyer fails to furnish shipping instructions, Seller will select what is, in its opinion, the most satisfactory routing for the shipment. If Buyer is to pick up products and has not done so within seven (7) days after notification that they are ready for shipment, Seller may ship the products via commercial carrier (best way). Any prepayment by Seller for freight charges shall be for the account of Buyer and shall be paid by Buyer with and in addition to the purchase price

5.     PARTIAL SHIPMENTS & NON-DELIVERY. Buyer shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt of the Goods.   Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer.   Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of any Sales Confirmation.  The Seller shall not be liable for any non-­‐delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-­‐delivery within five (5) days of the date when the Goods would  in the ordinary  course  of events  have been received.   Any liability  of Seller for non-­‐delivery of the Goods  shall be limited  to replacing  the Goods  within  a reasonable time or adjusting  the invoice  respecting such Goods  to reflect  the actual quantity delivered.  Seller shall make delivery in accordance with the terms on of the Sales Confirmation.

6.     TITLE. Title and risk of loss passes to Buyer upon delivery of the Goods by Seller to a common carrier.   Seller shall not be responsible for insuring  Goods  in transit  unless  specifically requested  by Buyer  in writing  and accepted  by Seller in writing,  and any insurance  so requested  shall be at Buyer’s expense  and valuation.   As collateral  security  for the payment  of the purchase  price of the Goods, Buyer hereby grants to Seller a lien on and security  interest  in and to all of the right, title and interest of  Buyer  in, to and under  the Goods,  wherever  located,  and whether  now  existing  or hereafter  arising  or acquired  from  time  to time,  and in all accessions thereto  and replacements or modifications thereof,  as well  as all proceeds  (including insurance  proceeds)  of the foregoing.    The  security  interest  granted  under  this  provision  constitutes a purchase  money  security  interest  under  the Arizona Uniform  Commercial Code.   Buyer authorizes Seller to file from time to time such financing statements, financing continuation statements, and financing amendment statements that may be necessary or desirable to perfect and maintain the perfection of any such security interest.

7.     INSPECTION & NON-CONFORMING GOODS. Buyer shall inspect the Goods upon receipt (“Inspection Period“).   Buyer will be deemed  to have accepted  the Goods unless it notifies  Seller in writing  of any Nonconforming Goods within three (3) days after the Inspection Period and furnishes digital  photographic, written,  and any other  or other  documentation as reasonably required  by Seller.   “Nonconforming Goods”  means  only the following:  (i) product  shipped  is different  from  that identified  in Buyer’s  purchase  order;  or (ii) product’s  label  or  packaging   incorrectly identifies  its  contents  or  iii)  goods  are  damaged  beyond  minor  cosmetic  defects  such  that  technical  performance is  impaired.    If  Buyer  timely  notifies  Seller  of  any  Nonconforming Goods  and  such nonconformance is reasonably due to defects caused by Seller or its agents, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with  any  reasonable shipping  and  handling  expenses  incurred  by Buyer  in connection therewith.  Buyer  shall  ship,  at its expense  and  risk  of loss,  the Nonconforming Goods  to Seller’s  facility  prior  to replacement, credit,  or refund.   If Seller exercises  its option  to replace  Nonconforming Goods,  Seller shall, after receiving  Buyer’s  shipment  of Nonconforming Goods,  ship to Buyer,  at Buyer’s  expense  and risk of loss, replaced  Goods.   Buyer acknowledges and agrees that the evaluation of nonconformance is entirely up to Seller to determine, and remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods and foregoes any other remedies.   Except as provided under this section, all sales of Goods to Buyer are made on a one-­‐way basis and Buyer has no right to return to Seller Goods purchased under this Agreement.

8.     TAXES & DUTIES. Buyer shall purchase the Goods from Seller at the price[s] (the “Price[s]“) set forth in the Sales Confirmation.  All Prices  are exclusive  of all sales, use and excise  taxes, and any other similar  taxes, duties  and charges  of any kind imposed  by any Governmental Authority  on any amounts  payable  by Buyer.   Buyer  shall be responsible for all such charges,  costs and taxes;  provided,  that, Buyer  shall not be responsible for any taxes imposed  on, or with respect  to, Seller’s  income,  revenues, gross receipts,  personnel  or real or personal  property.

9.     INVOICE & PAYMENT. Buyer shall pay all invoiced amounts due to Seller in accordance with the payment terms set forth in the Sales Confirmation.  Buyer shall make all payments hereunder by wire transfer, check, or other payment methods as set forth on the Sales Confirmation and in US dollars.   Buyer  shall pay interest  on all late payments  at the lesser  of the rate of 1.5%  per month  or the highest  rate permissible under  applicable  law, calculated  daily and compounded monthly.   Checks  are  accepted  subject  to collection  and the date of collection  will be deemed  the date of payment.   The acceptance by Seller  of any check  will not constitute  a waiver  of Seller’s  right  to pursue  the collection  of any remaining  balance  regardless of any statement  to the contrary  on the tendered  check and/or other communication.  Upon execution of the Agreement and at each time Buyer orders and receives any Goods, Buyer hereby represents and warrants that the value of all of its property, at a fair valuation, is greater than the sum of its debts, and that the Buyer is generally paying its debts as they become due unless such debts are subject to bona fide dispute. Buyer  shall reimburse Seller for all costs incurred  in collecting  any payments  hereunder, including,  without  limitation,  late payments,  interest,  and attorneys’  fees and expenses. If, after Seller extends Buyer credit, Seller reasonably believes  that Buyer’s  ability to make payment  is impaired,  Seller may cancel any order or remaining  balance  thereof,  and Buyer will remain liable  to pay  Seller  for Goods  already  shipped.    For  credit  approval,  if any,  Buyer  will  submit  such  financial  information as Seller  may  reasonably require  from  time  to time  for determination of credit  terms.     In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder.  Buyer shall not withhold  payment  of any amounts  due and payable  by reason of any set-­‐off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.

10.   LIMITED WARRANTY. Seller  will warranty  all products  in accordance with the warranty  terms  stated  by the manufacturer in the owner’s  manual  or warranty  documents accompanying the product.  Power Ready Systems are covered by Seller’s 1-Year Limited Power Ready System Warranty, a pro forma of which Seller provides to Buyer of Power Ready Systems, and Buyer acknowledge receipt. The warranty  will cover  only the product  and not any installation services  provided  by the customer  or damage  caused by the customer.   Seller reserves  the right to test, repair or replace the item in question  at its sole discretion. In the event (1) Buyer modifies any product sold pursuant to this Sales Confirmation without the express written consent of Seller; (2) Buyer fails to implement any changes in the product directed by Seller; or (3) any product to be furnished under this Sales Confirmation is made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, Buyer agrees to indemnify and hold harmless Seller from any and all claims, demands, actions or causes of action, costs or expenses incurred thereby whether in contract, tort or admiralty.  EXCEPT  FOR THE WARRANTY SET FORTH  IN THIS SECTION  10, SELLER  MAKES NO WARRANTY WHATSOEVER WITH  RESPECT  TO THE GOODS,  INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS  FOR A PARTICULAR PURPOSE; WHETHER EXPRESS  OR IMPLIED  BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

11.   IN NO EVENT  SHALL  SELLER  BE LIABLE  FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL,  EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS  OR REVENUES OR DIMINUTION IN VALUE,  ARISING  OUT OF OR RELATING TO ANY BREACH  OF THESE  TERMS,  WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY BUYER  OR COULD  HAVE BEEN REASONABLY FORESEEN BY SELLER,  REGARDLESS OF THE LEGAL OR EQUITABLE THEORY  (CONTRACT, TORT  OR OTHERWISE) UPON  WHICH  THE CLAIM  IS BASED,  AND NOTWITHSTANDING THE FAILURE  OF ANY AGREED  OR OTHER  REMEDY  OF ITS ESSENTIAL PURPOSE.  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 SOLD HEREUNDER.

12.   COMPLIANCE WITH LAW. Buyer shall comply with all applicable laws, regulations, and ordinances.  Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.  Buyer shall comply with all export and import laws of all countries involved in any resale of the Goods by Buyer.   Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. Seller certifies that it is in full compliance with applicable federal, state, and local laws that pertain to the rights of employees to equal opportunity and to a safe workplace. Seller and Buyer agree to comply with environmental protection laws that apply to the manufacture and installation of the Goods names in this Sales Confirmation.

13. PATENT INDEMNITY. In the event any product to be furnished under this Sales Confirmation is to be made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, Buyer agrees to indemnify and hold Seller harmless from any and all damages, costs and expenses arising from a claim that such product furnished to Buyer by Seller, or the use thereof, infringes any Letters Patent, foreign or domestic, and Buyer agrees at its own expense to undertake the defense of any suit against Seller brought upon such claim or claims. In the event any product to be furnished under this Sales Confirmation is not for a U.S. Government application and is not to be made in accordance with drawings, samples or manufacturing specifications provided or designated by Buyer, but rather is the design of Seller, Seller agrees to hold Buyer and its customers harmless against any damages awarded by a court of final jurisdiction in any suit for infringement of any United States Letters Patent by reason of the sale or use of such product as furnished by Seller under this Sales Confirmation. In the event any claim is asserted or threatened, as to which Buyer may seek indemnification hereunder, Seller shall have the sole right to contest, compromise, litigate, or otherwise dispose of said claim, including the right to substitute non-infringing products, and Buyer agrees to cooperate with Seller fully with respect thereto. The foregoing undertaking of Seller shall not apply unless Seller shall have been informed in writing immediately by Buyer of any charge or suit alleging such infringement and shall have been given the opportunity to assume the defense thereof, and further, such undertaking shall not apply if (i) the claimed infringement is settled without the consent of Seller, or (ii) the infringement results from the use of a product delivered hereunder which is (a) modified by Buyer or others without authorization by Seller, or (b) used in combination with a product not delivered by Seller where such infringement would not have occurred from the lone use of the product delivered under this Sales Confirmation.

14.  AMENDMENT. These Terms may be amended or modified only in a writing that specifically states that it amends these Terms and is signed by an authorized representative of each party.

15.   TERMINATION. In addition  to any remedies  that may be provided  under  these  Terms,  Seller  may terminate  this Agreement with immediate effect  upon  written  notice  to Buyer,  if Buyer:  (i) fails to pay any amount  when  due under  this Agreement; (ii) has not otherwise  performed or complied  with any of these Terms, in whole or in part; or (iii) becomes  insolvent,  files a petition  for bankruptcy or commences or has commenced against it proceedings relating  to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.

16.     NO WAIVER. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller.  No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this Agreement operates or may be construed as a waiver thereof.  No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

17.     ASSIGNMENT. Buyer  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 Buyer of any of its obligations under this Agreement. Seller retains the right to subcontract work.  Any contract resulting from this Sales Confirmation shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns.

18.     INDEPENDENT CONTRACTOR. 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. Buyer shall not represent to any third party that it has anything other than an independent contractor relationship with Seller.

19.     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.

20.     GOVERNING LAW. These  Terms  and Conditions and all other contracts  between  the parties  shall be interpreted, construed  and governed  by and under  the laws of the State of Arizona  and any action  hereunder or between  the Buyer  and Seller  shall be brought only in the United  States  District  Court of Arizona in Phoenix or the Superior  Court  for Maricopa County  at the election  of the party initiating  suit.  In this regard,  the Buyer  consents  to personal  jurisdiction in such courts;  and waives any and all jurisdictional or forum nonconveniens objections to proceeding in such courts.

21.     NOTICE. All notices,  request,  consents,  claims,  demands,  waivers  and other  communications hereunder (each,  a “Notice“)  shall  be in writing  and addressed  to the parties  at the addresses  set forth  on the face of the Sales  Confirmation or to such other address  that may be designated by the receiving  party in writing.   All Notices  shall be delivered  by personal  delivery,  nationally  recognized overnight  courier  (with all fees pre-­‐paid),  facsimile  (with confirmation of transmission) or certified  or registered  mail (in each case, return  receipt  requested, postage  prepaid).   Except  as otherwise  provided  in this Agreement, a Notice  is effective  only (a) upon receipt  of the receiving  party, and (b) if the party giving the Notice  has complied  with the requirements of this Section.

22.     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.

23.   SURVIVABILITY. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement.

24. DISPUTE RESOLUTION. All claims and disputes between the parties that cannot be resolved by direct negotiation within thirty (30) calendar days of receipt of written notice from one party to the other of such claim or dispute, including a disputed invoice, shall be submitted to non-binding mediation before a certified mediator in Phoenix, Arizona.  The cost of said mediation shall be split equally between the parties.  Any dispute which cannot be resolved between the parties through mediation shall be resolved through arbitration pursuant to the American Arbitration Association’s Commercial Rules with one (1) arbitrator in Arizona.

25. ATTORNEY’S FEES.  If any action at law or in equity, including action for declaratory relief and arbitration, is brought to enforce, interpret, rescind or reform any contract resulting from this Sales Confirmation, the prevailing party shall be entitled to actual costs incurred, up to a reasonable amount, in prosecuting or defending the action, including, but not limited to, attorney’s fees, consultant’s fees or witness fees, which latter fees shall include payment to reimburse the party and/or its employees for time spent in preparation for and participation in defending or prosecuting any said action.  The attorneys’ fees shall not be computed in accordance with any court fee schedule, but shall be such as to fully reimburse all attorneys’ fees reasonably incurred in good faith.

26. EQUAL OPPORTUNITY EMPLOYMENT. Seller complies with Executive Order 11246, as amended, and its implementing Regulations (including the equal opportunity clause set forth in Section 202 of such Order) and Section 60-1.4 (a) of the Regulations of the Secretary of Labor, Title 41 CFR, Chapter 60, Parts 1-60, which are incorporated into this Sales Confirmation by reference. In addition, this Sales Confirmation incorporates by reference the Affirmative Action clauses of the Rehabilitation Act of 1973 at 41 CFR Section 60-741.1 and the Vietnam Era Veterans’ Readjustment Act of 1974, at 41 CFR Section 60-2050.4, as amended.