TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale and Software License (“Agreement”) are the entire agreement between Nanozen Industries Inc. (“Nanozen”) and (“Customer”) for the purposes of this sale of Products.
1. QUOTATION: valid for 30 days from the date on this document.
2. PRODUCT : “Products” are any Nanozen hardware or software products. Alterations to any Product which Nanozen deems necessary to comply with specifications, changed safety standards or governmental regulations, to make the Product non- infringing with respect to any patent, copyright or other proprietary interest, or to otherwise improve the Product may be made at any time by Nanozen without prior notice to or consent of Customer and such altered Product are deemed fully conforming.
3. ORDERS: Customer shall purchase Products by issuing a written or electronic purchase order signed (or sent in the case of an electronic purchase order) by an authorized representative, indicating specific Products, quantity, price, total purchase price, shipping instructions, requested delivery dates, bill-to and ship-to addresses, tax exempt certifications, if applicable, and any other special instructions. Any terms and conditions contained on such order are not binding upon Nanozen. Nanozen will accept or reject orders according to its then-current process. All orders are subject to approval and acceptance by Nanozen. Any such acceptance is expressly subject to Customer’s agreement to accept the terms of this Agreement and exclude all other terms. Acceptance of delivery of anything shipped by Nanozen are deemed acceptance of this Agreement.
4. SHIPPING AND DELIVERY: Nanozen will establish shipping dates upon acceptance of Customer’s orders. Shipping terms are Ex Works Origin (FCA Origin per INCOTERMS 2010 for international shipments) at Nanozen’s site, Vancouver, British Columbia, Canada. Title and risk of loss shall pass upon delivery by Nanozen to the carrier or Customer’s representative at the shipping point. Customer is responsible for all freight, handling and insurance charges. In no event shall Nanozen have any liability in connection with shipment, nor shall the carrier be deemed to be an agent of Nanozen. Nanozen shall not be liable for damage or penalty for delay in delivery or for failure to give notice of any delay.
5. PRICES AND PAYMENT : Prices for Products are those specified in this quotation. All prices are Ex Works (FCA per INCOTERMS 2010 for international shipments) Nanozen’s Vancouver site. All stated prices are exclusive of any taxes, fees and duties or other amounts, however designated, and including without limitation, value added and withholding taxes which are levied or based upon such charges, or upon this Agreement. Any taxes related to Products purchased or licensed pursuant to this Agreement shall be paid by Customer or Customer shall present an exemption certificate acceptable to the taxing authorities. Payment terms are net thirty (30) days from shipping date. All prices are and payments shall be made in U.S. currency. If at any time Customer is delinquent in the payment of any invoice or is otherwise in breach of this Agreement, Nanozen may, at its discretion, and without prejudice to its other rights, withhold shipment (including partial shipments) of any order or may, at its option, require Customer to pre-pay for further shipments. Any sum not paid by Customer when due shall bear interest until paid at a rate of 1.5% per month (18% per annum), or the maximum rate permitted by law, whichever is less. Customer grants Nanozen a security interest in Products purchased under this Agreement to secure payment for those Products purchased. If requested by Nanozen, Customer agrees to execute financing statements to perfect this security interest.
6. PROPRIETARY RIGHTS AND SOFTWARE LICENSE: All rights, title and interest in and to Products, other than those expressly granted to Customer herein, shall remain vested in Nanozen or its third party suppliers. Customer shall not, and shall prevent others from copying, translating, modifying, creating derivative works, reverse engineering, decompiling, encumbering or otherwise using the Products except as specifically authorized under this Agreement. Upon payment of the required license fees, if any, Nanozen grants a license to the Nanozen software (“Software”) subject to the terms of the license packaged with the Software. “Software” includes any upgrades, updates, bug fixes, modified versions or backup copies of the Software licensed or provided by Nanozen for which Customer has paid the applicable license fees.
7. LIMITED WARRANTY: (a) Hardware. Nanozen warrants that from the date of shipment by Nanozen, and continuing for a period of twelve (12) months, the Hardware will be free from defects in material and workmanship, under normal use. This limited warranty extends only to the original user of the Product. Customer’s sole and exclusive remedy and the entire liability of Nanozen and its suppliers under this limited warranty will be, at Nanozen’s option, shipment of a replacement, or a refund of the purchase price, if the Hardware is returned to Nanozen, freight and insurance prepaid. Nanozen replacement parts, used in Hardware repair, may be new or equivalent to new. (b) Software. The Software warranty is set out in the license terms. (c) Nanozen DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESSED OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR AGAINST INFRINGEMENT, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. This disclaimer and exclusion shall apply even if the express warranty set forth above fails of its essential purpose.
8. PATENT AND COPYRIGHT INFRINGEMENT : If any claim, suit or proceeding is brought or likely to be brought against Customer based on a Canadian or United States patent or copyright infringement claim, Customer agrees to permit Nanozen, at itsoptionandexpense,eitherto:(a)procureforCustomertherighttocontinueusingtheProduct; (b)replaceormodifythesamesothatitbecomesnon-infringing;or,(c)ifneitheroftheforegoingalternativesisreasonablyavailable,removetheProduct and refund to Customer the price originally paid by Customer to Nanozen for such Product as depreciated or amortized by an equal annual amount over the lifetime of the Product as established by Nanozen. Notwithstanding the foregoing, Nanozen has no liability for, and Customer will indemnify Nanozen against, any claim based upon: (a) the combination, operation, or use of any Product supplied hereunder with equipment, devices, or software not supplied by Nanozen; (b) alteration or modification of any Product supplied hereunder; or (c) Nanozen’s compliance with Customer’s designs, specifications or instructions. Notwithstanding any other provisions hereof, Nanozen shall not be liable for any claim based on Customer use of the Products as shipped after Nanozen has informed the Customer of modifications or changes in the Products required to avoid such claims and offered to implement those modifications or changes, if such claim would have been avoided by implementation of Nanozen’s suggestions. THE FOREGOING STATES THE ENTIRE OBLIGATION OF Nanozen, AND THE EXCLUSIVE REMEDY OF CUSTOMER, WITH RESPECT TO INFRINGEMENT OF PROPRIETARY RIGHTS. THE FOREGOING IS GIVEN TO CUSTOMER SOLELY FOR ITS BENEFIT AND IN LIEU OF, AND Nanozen DISCLAIMS, ALL WARRANTIES OF NON-INFRINGEMENT WITH RESPECT TO THE PRODUCTS.
9. EXPORT, RE-EXPORT AND TRANSFER CONTROL: Customer shall comply with all export regulations pertaining to Products in effect from time to time. Without limiting the generality of the foregoing, Customer expressly warrants that it will not directly or indirectly export, re-export, or transship the Products in violation of any export laws, rules or regulations of Canada or the United States. Customer’s obligations under this clause shall survive the expiration or termination of this Agreement.
10. COMPLIANCE WITH LAWS: Customer shall obtain all licenses, permits and approvals required by any government and shall comply with all applicable laws, rules, policies and procedures including requirements applicable to the use of Products under the laws and regulations, of any government where the Products are to be sold, used or deployed. Customer will indemnify and hold harmless Nanozen for any violation or alleged violation of such laws, rules, policies or procedures.
11. CONFIDENTIAL INFORMATION: Customer shall hold confidential and shall not use or permit others to use any confidential information identified as such in writing or orally by Nanozen or information which Customer knows or has reason to know is confidential, proprietary or trade secret information of Nanozen.
12. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING ELSE HEREIN, ALL LIABILITY OF Nanozen AND ITS SUPPLIERS UNDER THIS AGREEMENT OR OTHERWISE ARE LIMITED TO MONEY PAID TO Nanozen UNDER THIS AGREEMENT. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
13. CONSEQUENTIAL DAMAGES WAIVER: IN NO EVENT SHALL Nanozen OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF USE, INTERRUPTION OF BUSINESS, LOST PROFITS, OR LOST DATA, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) ,STRICT LIABILITY, OR OTHERWISE, EVEN IF Nanozen OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY THEREOF.
14. CHOICE OF LAW: The validity, interpretation, and performance of this Agreement are controlled by and construed under the laws of the Prov of British Columbia, Canada, as if performed wholly within, and without giving effect to, the principles of conflict of law. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
15. FORCE MAJEURE: Nanozen shall not be liable for any delay or failure in performance whatsoever due to events outside Nanozen’s reasonable control, including without limitation acts of God, earthquakes, labor disputes, shortage of supplies, riots, war, fire, epidemics, or delays of common carriers.
16. WAIVER: No waiver of rights under this Agreement by either party shall constitute a subsequent waiver of this or any other right under this Agreement.
17. SEVERABILITY: In the event that any of the terms of this Agreement become or are declared to be illegal or otherwise unenforceable by any court of competent jurisdiction, such term(s) are null and void and are deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.