NovaTech Power Terms and Conditions

 

  1. General. The NovaTech Power Terms and Conditions (“Terms”) apply to the sale of all hardware and software sold by NovaTech, LLC and Bitronics, LLC (“Goods”). Services, if applicable, are governed by the Power Service Terms and Conditions Attachment and are incorporated by reference (“Service Attachment”). The agreement between the parties will consist of the Terms, any attachments, purchase order terms, and any other terms agreed to in writing by both parties (“Agreement”). NovaTech (“Seller”) and its customer (“Buyer”) agree to abide by the Terms, and in the event of a conflict between the Terms and any other agreements or terms, oral or written, both parties agree that the Terms will prevail. No modification of any term or condition will be effective unless in writing and signed by the parties. Invalidity of a term, in whole or in part, will not affect the validity of other terms, and failure to enforce a term does not constitute a waiver.

 

  1. Title and Risk of Loss. Title to the Goods shall pass to Buyer on the date the Goods are shipped from Seller’s facility. Regardless of destination Buyer agrees to bear all risk of loss, injury or destruction of the Goods ordered herein which occur prior to delivery of Buyer.

 

  1. Packing and Shipping. All Goods will be suitably packed or otherwise prepared for shipment so as to secure the lowest transportation rate and to meet the carrier requirements. Each container will be marked to show Buyer’s order number and a packing sheet, showing purchase order number, will be included in each package.  Copies of packing sheets and original bill of lading or express receipt, each showing Buyer’s purchased order number, will be mailed the same day shipment is forwarded.

 

  1. Terms of Payment and Taxes. Payments will be made within thirty (30) days of invoice date. Quoted prices do not include sales, use, excise, or other similar taxes. Overdue invoices are subject to a late charge of 1% per month of the unpaid invoice. Buyer shall pay, in addition to the noted prices, the amount of any present or future sales, use, excise, or other similar tax applicable to the sale or use of the Equipment, or in lieu thereof, Buyer shall provide Seller with a tax exemption certificate to the taxing authorities. Buyer shall reimburse Seller for taxes paid by Seller except for taxes on Seller’s income.

 

  1. Compliance with Laws. Seller represents that all Goods and services delivered will be produced and supplied in compliance with all applicable state and federal laws and regulations, including the requirements of the Fair Labor Act of 1938, as amended, except that Seller does not represent that the Goods supplied hereunder comply with OSHA requirements which specify UL listing of electrical components. Each party will comply with all applicable export control laws and regulations concerning products, services, and related technical data.

 

  1. Choice of Law/Jurisdiction: The Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including any claim or cause of action based upon, arising out of or related to any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), shall be governed by, and enforced in accordance with, the laws of the State of Delaware, including its statutes of limitations with the exclusion of Section 8106(c) thereof, without regard to choice of law rules that otherwise might call for application of the law of another jurisdiction. The Parties shall submit to the exclusive jurisdiction of the federal and state courts in Philadelphia, PA and hereby waive all rights to a jury trial therein regarding any disputes or claims arising hereunder (each a “Proceeding”).  Each Party expressly irrevocably:  (a) consents to the jurisdiction of such courts for any Proceeding; (b) consents to service of process in any Proceeding in such courts by certified U.S. mail, return receipt requested, mailed to such party at the address set forth above, as well as other means of service permitted by law; and (c) waives any objection, whether on the grounds of venue, residence or domicile or on the ground that the Proceeding has been brought in an inconvenient forum, to any Proceeding brought in such courts. In any proceeding or other action brought by one Party against the other Party to enforce or interpret the terms of this Agreement, or to resolve any dispute concerning any of the Goods or obligation of this Agreement or any other matter arising out of this Agreement, the prevailing Party in such proceeding or action shall be entitled, in addition to such other relief the court may grant, to an award of its costs incurred in connection with the proceeding or action, including reasonable fees and disbursements of its attorneys.

 

  1. Insurance. At Buyer’s request, Seller will provide a certificate of insurance showing the limits of Seller’s insurance coverage.

 

  1. Changes. Buyer shall have the right to make changes within the scope of an order. If any change causes an increase or decrease in the price of the order, or in the time required for performance, an equitable adjustment shall be made and the order shall be modified in writing. Buyer shall provide complete and timely information so Seller can perform and complete the work. Incomplete, incorrect or late information resulting in delay or extra work shall result in price adjustments for Seller.

 

  1. Delays. Seller shall not be liable for any delay in delivery caused by failure of Buyer to provide any necessary information in a timely manner. The delivery dates set forth in the order are approximate only and Seller shall not be liable for, nor shall the Terms be breached, by any delivery delay by Seller within a reasonable time after such date.

 

  1. Force Majeure. Neither party shall be considered in default in performance of obligations to the extent that performance of such obligations, or any of them, is affected by Force Majeure. Force Majeure shall include, but not be limited to, hostilities, restraints of rulers of peoples, revolution, civil commotion, strike, epidemic, accident, fire, wind, flood, earthquake, explosion, blockade or embargo.

 

  1. Liens, Claims and Encumbrances. Seller warrants and represents that all Goods covered by this order that are delivered and accepted by Buyer are free and clear of all liens, claims or encumbrances of any kind.

 

  1. Cancellation. Buyer may terminate an order in accordance with the following provisions with written notice given seven (7) days prior to the effective date of the intended cancellation. If the order covers Goods manufactured or fabricated to the Buyer’s specifications or specifications prepared for Buyer by Seller, then at any time prior to delivery of all Goods covered by the order Buyer may terminate the order in whole or in part by written notice to Seller. Immediately upon receipt of such notice of termination or upon such date other as may be specified in said notice, Seller shall stop all work in connection with the order except as otherwise directed by the Buyer.  Buyer shall pay cancellation charges as specified below.

 

  1. Cancellation Charges. Goods may be returned only with the approval of Seller and only within ninety (90) days of the original shipment from the factory. The returned Product must be in unused, resalable condition, in original packaging. Upon receipt and inspection by Seller, a credit will be granted toward the purchase of other Goods. If the Goods covered by the order are standard stock merchandise, the amount of the credit will be the purchase price appearing on the original order, less a restocking charge of 25% of the purchase price to cover inspection, recalibration, repackaging and other quality assurance functions. For custom designed solutions, Purchaser will reimburse Seller for actual costs incurred plus reasonable overhead and profit on actual costs

 

  1. Testing. Any additional tests or inspections requested by Buyer beyond Seller’s standard manufacturing procedures shall be for the Buyer’s account unless specified otherwise in the offering or agreed upon in writing by Seller. Seller shall perform the following testing without additional charge:

 

  1. Standard Goods: Seller will conduct in-house testing prior to shipment, without Buyer participation, to verify that the Goods meet applicable specifications.
  2. Custom Options: Seller will conduct up to a one-day demonstration of all custom options for a Buyer prior to shipment, at a time and place designated by Seller.  Successful demonstration shall serve as Buyer’s acceptance.

 

  1. Documentation. Seller will provide Buyer with up to the following quantities of applicable standard Drawings, Instructions, and Computer Programs unless specified otherwise in the offering or agreed upon in writing by Seller. All copies will be in English unless expressly stated otherwise in the offering or agreed upon in writing by Seller:

 

  1. Drawings: One digital print when applicable.
  2. Instructions: One set of printed or digital standard instructions for installation, operation and maintenance for standard Goods.
  3. Computer Programs: One set of digital media as defined by Seller.

 

  1. Software/Firmware License. Unless the Proposal includes a separate software license agreement, the purchase price includes a non-exclusive, irrevocable, permanent paid-up license for the Buyer to use the executable software and firmware for its business purposes at the proposed installation site only. This license does not permit the Buyer to resell the software. In addition, to the extent portions of the software are distributed under and are subject to open source licenses obligating Seller to make the source code for such portions publicly available (such as the GNU general public license (“GPL”) of the GNU library public license (“GLPL”), Seller will make such source code portions (including Seller modifications, as appropriate), available upon request for a period of at least  three (3) years from the date of distribution.

 

  1. Proprietary Information. To protect the proprietary information of both parties, each party (in such capacity, the “Disclosing Party”) may disclose to the other party (in such capacity, the “Receiving Party”) on a confidential basis certain non-public information (“Proprietary Information”), including, without limitation, proprietary and confidential business, technical, financial, sales and other information about and trade secrets or customer or client relationships of the Disclosing Party, in accordance with the following terms and conditions. The term “Proprietary Information” shall mean all non-public data and information that the Disclosing Party desires to protect from unrestricted disclosure or competitive use. Proprietary Information shall include, but is not limited to, computer hardware, software, software documentation, reports, drawings, diagrams, and trade secrets, as well as performance, sales, financial, contractual and special marketing information not previously available to the receiving party or others without an obligation of confidentiality. Upon completion of the project, the Receiving Party may maintain a copy of all disclosed Proprietary Information for use on future projects with Disclosing Party, so long as Receiving Party continues to treat the information as proprietary and confidential. However, upon the Disclosing Party’s written request, all Proprietary Information exchanged or disclosed under this Agreement, including all copies, notes or compilations thereof, shall be promptly destroyed or returned to the Disclosing Party at the Disclosing Party’s direction, and the Receiving Party shall have no further right to use, disseminate or disclose such Proprietary Information except as may be mutually agreed thereafter.

 

A Receiving Party shall incur no obligation hereunder with respect to proprietary information which:

 

  1. is publicly known at the time of disclosure to a Receiving Party;
  2. is known to Receiving Party at the time of disclosure to Receiving Party and was not acquired directly or indirectly from a third party in violation of an obligation of confidentiality;
  3. is independently developed by Receiving Party;
  4. is furnished to a third party by Disclosing Party without the restrictions on the third party’s rights similar to those contained in this Section;
  5. is approved for release in writing by an authorized representative of Disclosing Party; or
  6. is disclosed to the extent required pursuant to a court order, provided that the Receiving Party shall use reasonable efforts to provide the Disclosing Party with reasonable advance notice thereof to enable the Disclosing Party to seek a protective order and otherwise seek to prevent such disclosure.

 

  1. Warranty. Seller will repair or, at Seller’s option, replace free of charge any of the Goods produced by NovaTech which are found to be defective within ten years from delivery by reason of non-merchantable quality, faulty materials, workmanship or design, provided that a) Seller is notified of any such defect within four weeks of becoming apparent, and b) that the Goods are returned, freight paid by Buyer, to the Seller’s manufacturing facility. All of Seller’s products that undergo the Underwriters Laboratories (“UL”) testing, the CE Certification process or other applicable certifications, are warranted to meet those standards, and will be marked as such.

 

  1. Seller will repair or, at Seller’s option, which shall be prudently exercised, replace any malfunctioning Goods outside the warranty defined in Paragraph 18, which have been returned at Buyer’s expense to the Seller’s manufacturing facility. Seller will return the repaired or replaced Goods to Buyer on thirty (30) day terms for such repair or replacement at the then current rates for such service and goods.
  2. In the event that Seller cannot repair or replace the defective Goods, Seller will, at its discretion, provide an equivalent or better Goods from the Seller’s currently available Goods.
  3. Third-party warranty: Notwithstanding the above, the warranty described in Paragraph 18 does not apply to third-party goods or services sold by Seller to Buyer. Seller will pass through the manufacturer’s warranty on all third-party goods and services to Buyer.
  4. The express warranties set forth in this article are exclusive and no other warranties, whether statutory, oral, written, express or implied, including any implied warranty of merchantability or fitness for a particular purpose, or warranties arising from course of dealing or usage of trade, shall apply. Buyer’s exclusive remedies and Seller’s only obligations arising out of or in connection with the Goods, whether based on warranty, contract, tort (including negligence) or otherwise, shall be those stated herein.

 

  1. Repairs. Buyer shall be responsible to furnish field service repairs to the Goods sold by Buyer, provided however that Seller, at its own expense shall assist Buyer via telephone and/or electronic correspondence to the Buyer’s field service personnel by maintaining qualified personnel at the Seller’s facility location. Seller shall also furnish field service and repair/exchange at the request of the Buyer at Seller’s then current rates for such service.

 

  1. Product Modifications/Enhancements. Seller’s obligations and duties for product modifications/enhancements are restricted to Goods in the “Active” Product Life Cycle stage. The definitions of the Product Life Cycle stages are below.

 

  1. Active: The Product is currently being manufactured by Seller as new, with ongoing product enhancement, and is under the full factory warranty as defined in Paragraph 18.
  2. Legacy: The Product is being manufactured by Seller as new, but without ongoing product enhancement, and is under the full factory warranty as defined in Paragraph 18.
  3. Obsolete: The Product is no longer being manufactured or sold, there is no ongoing product enhancement, and is under the full factory warranty as defined in Paragraph 18.

 

    1. Seller Indemnification. Seller shall indemnify and hold Buyer harmless against any other loss or liability sustained by Buyer, including reasonable attorneys’ fees and costs of investigation arising out of or otherwise resulting from this Agreement and/or the delivery of the Goods or performance of services relating hereto including, without limitation: (a) the breach of any representation, warranty, covenant, or agreement of Seller; (b) any assertion or claim that any Products or Services relating hereto infringe or otherwise violate the patent, copyright, trademark, trade secret or any other intellectual or proprietary right of any third party whatsoever (excepting only any infringement caused solely by designs or specifications provided by Seller); or (c) any property damage, personal injury or death. Buyer shall not make a settlement of any claim for which indemnity is sought without the written consent of Seller, which consent shall not be unreasonably withheld. Buyer will maintain comprehensive general liability, property damage and automobile insurance policies and product hazards coverage with reputable insurers protecting Seller in such amounts and upon such other terms as Seller may request from time to time.  This provision shall survive the expiration, termination, cancellation or performance of this Agreement and the delivery of the Goods or provision of the services.
    2. Buyer Indemnification. Buyer will indemnify, defend and hold harmless Seller against liabilities imposed upon Seller with respect to loss of or damage to tangible property and injuries to persons, including death, to the extent that such liabilities result from Buyer’s negligent performance of or failure to perform its obligations under this Agreement, or from any willful misconduct of Buyer. This indemnity by Buyer will not apply to Seller’s liability to its employees under Worker Compensation laws. Buyer’s Indemnity is not a waiver of any defense to which it may be entitled under such laws
    3. Mutual Waiver of Consequential Damages. In no event shall either party be liable to the other or to any third party for any special, incidental, indirect or consequential damages, even if that party has been advised of the possibility of such damages.

 

  1. Limitations of Liability. In no event shall Seller be liable for incidental, indirect, special, or consequential damages resulting from Seller’s performance, or failure to perform, pursuant to the contract, or the furnishings, performance, or use of any equipment or software sold pursuant hereto, whether due to a breach of contract, breach of warranty, the negligence of Seller or otherwise. Furthermore, Seller’s aggregate and accumulative liability for any and all claims under this contract based on whatever legal grounds is limited to the overall amount of the contract price.

 

  1. Intellectual property: Intellectual property, including, but not limited to, copyrights, trademarks, patents, know-how, trade secrets, is the property of the Disclosing Party. Nothing contained in this Agreement shall be construed as granting to the Receiving Party any license to any Proprietary Information or other intellectual property of the Disclosing Party. Company represents and warrants that it owns all right, title, and interest, including all moral rights, rights of attribution and integrity, or shall obtain such ownership and moral rights, related thereto, to any ideas for enhancements, general feedback including, but not limited to, visual art, appearance, usability, operational benefits and value, and test results (“Enhancements”) regarding NovaTech’s Proprietary Information or other intellectual property which come to Company’s attention during the period of this Agreement. Company hereby assigns to NovaTech all right, title and interest to all such Enhancements and all property rights therein, including, without limitation, all patent, copyright, trade secret, trademark, know-how, moral rights, rights of attribution and integrity, or other intellectual property rights.  Company also waives all moral rights and rights of attribution and integrity to the Enhancements of the NovaTech Proprietary Information for all uses by NovaTech.

 

  1. Neither Party shall assign or transfer its rights or obligations hereunder, in whole or in part, without the written consent of the other. Notwithstanding the above, Seller may assign its rights and obligations to any of its subsidiaries or affiliates without the written consent of the Buyer.

 

  1. No Strict Construction Against the Drafter and Severability. In the event of any ambiguity or inconsistency in these Terms, said terms will be given their literal or intended meaning and will not be strictly construed against or to the detriment of the drafter. Should any provision of these Terms and Conditions be found to be in violation of law, the reminder of these Terms and Conditions shall continue to be in full force and effect.

 

  1. Any waiver by Seller of strict compliance with these Terms shall only be deemed valid where it is evidenced in writing by an authorized officer of Seller; furthermore, Seller’s failure to enforce any provisions of these Terms shall not be construed as a waiver of Seller’s right thereafter to enforce each and every such provision.

 

  1. Entire Contract. These Terms, and all attachments and documents incorporated by reference, constitutes the entire and exclusive Agreement between the parties relating to the subject matter hereof and supersedes all proposals, prior contracts, understandings and negotiations, oral and written, and any printed terms on orders or invoices issued previously or in the future, concerning the matters specified herein. No course of dealing or usage of trade nor course of performance may be used to add to or amend the plain meaning of these Terms or the Agreement. Notwithstanding any provisions of any applicable laws, including, but not limited to the common law, any additional or different terms and conditions set forth in Buyer’s requests for quotation or proposal, purchase orders, purchase order acknowledgments, or similar writings, INCOTERMS® 20102/2020, or in Buyer’s electronic data interchange acknowledgments or e-mail, irrespective of the date of the same, are objected to by Seller and will not be binding upon Seller unless specifically assented to in writing by an authorized representative of Seller.