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Terms and Conditions

UNCOMMON TECHNOLOGIES STANDARD PRODUCT TERMS & CONDITIONS INVOICES, ACKNOWLEDGMENTS & CONFIRMATIONS

(Revised – September 2016)

  1. PRODUCTS: “Product(s)” mean products of Seller’s manufacture and/or products manufactured by Seller’s partners, including Deep Sea Power & Light and those products which are made utilizing, in accordance with or embodying UNCOMMON TECHNOLOGIES Confidential Information.
  2. SERVICES: “Service(s)” means service incidental to the installation of products and/or technical assistance related to those products thereafter on an as needed basis. “Service” does not mean service on a routine, scheduled or ongoing basis. Any service arrangement for service on a routine, scheduled or ongoing basis shall be covered by a separate agreement.
  3. PRICES / PAYMENT: Payment is to be made in Norwegian funds (NOK), unless otherwise specified, NET FOURTEEN (14) DAYS. Prices invoiced will be those in effect at the time of shipment. All prices apply EXW (Incoterms 2010) point of manufacture. Seller supplying the Product (defined as the goods or equipment supplied) under this Agreement (defined as all the commercial, legal or technical documents issued by Seller to govern the design, manufacture and/or supply of its Product such as these conditions, together with such documents as are expressly accepted in writing by the Seller), reserves the right to place a service charge on past due accounts at the highest rate permitted by law. Seller shall invoice Buyer the full order price and for any additional expenses incurred by Seller when delivery is suspended pursuant to Buyer’s actions, omissions or written instructions. If quoted, inland freight charges from Seller’s factory to port of shipment, port handling charges, and ocean freight charges are estimates at quotation time. Actual charges will be invoiced.
  4. WARRANTY:
    1. Seller warrants Products and/or Services for a period of 6 months from shipment or installation, whichever is earlier, to the extent Seller, at its option, repairs or replaces, EXW point of manufacture, any such Products if by reason of faulty material or workmanship they prove defective under normal use and service and when properly installed; provided, however, that Seller does not warrant seals or packing materials in equipment handling, special or corrosive fluids, operating at unusual temperatures or pressures, improper lubrication, misapplication, lighting, or improper voltage supply. Deterioration by chemical action and wear caused by the presence of abrasive materials, do not constitute defects. EXCEPT AS OTHERWISE PROVIDED HEREIN, THE FOREGOING IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.
    2. This warranty shall not apply to Product subject to misuse, neglect or accident. Seller shall not assume responsibility for rebuilding, repairing special plating, coating, welding, or heat treating performed outside Seller’s plant by or at the request of the Buyer. Product not of Seller’s manufacture, special plating, coatings, or heat treatment applied to Seller’s Product is not warranted in any way by Seller.
  5. LIMITATION OF REMEDY AND LIABILITY: Seller’s liability, including that for breach of contract, negligence, strict liability in tort, or otherwise, for its Products and/or Services and Buyer’s exclusive remedy shall be limited to (a) the repair or replacement (but not installation) of parts found defective by Seller, EXW Seller’s factory if returned to the factory for inspection, transportation charges paid, or (b) if, in Seller’s opinion, repair or replacement will not remedy a claimed Products and/or Services deficiency, or if Seller’s Products and/or Services do not comply with the description or specification set forth herein, to repayment of any amounts paid on the purchase price, cancellation of the order and acceptance of the Product EXW point of manufacture. However, if the Product has been in use for a period of thirty (30) days, Seller reserves the right to make a reasonable depreciation charge. Any Product replaced or repaired by Seller shall be warranted for an additional one (1) year from replacement date or repair completion date. Notwithstanding the above and any other provision herein to the contrary, if UNCOMMON TECHNOLOGIES fails or refuses to supply goods, perform services, repair defective goods or re- perform defective services and Buyer elects to have a third party supply goods, perform services, repair defective goods or re-perform services, then UNCOMMON TECHNOLOGIES’s liability should be limited to the difference between the contract value and the amount actually incurred by the Buyer for said third party performance, but in no case shall such amount exceed + 25% of the contract value, irrespective of any negligence on the part of Seller.
  1. DISCLAIMER / CONSEQUENTIAL DAMAGES: SELLER EXPRESSLY DISCLAIMS ANY OBLIGATION OR LIABILITY FOR FREIGHT, TRANSPORTATION, EQUIPMENT OR LABOR PERFORMED IN CONNECTION WITH THE REMOVAL OR INSTALLATION OF REPAIRED OR REPLACED PARTS OR FOR ANY OTHER EXPENSE, INJURY, LOSS OR DAMAGE TO PERSONS (INCLUDING DEATH) OR TO PROPERTY OR THINGS OF WHATSOEVER KIND OR NATURE, WHETHER DIRECT, INCIDENTAL OR CONSEQUENTIAL, INCLUDING BUT NOT LIMITED TO THOSE ARISING FROM LOSS OF PROFITS, PRODUCTION, INCREASED COST OF OPERATION, RESERVOIR LOSS, ENVIRONMENTAL DAMAGE OR SPOILAGE OF MATERIAL ARISING IN CONNECTION WITH THE SALE OR USE OF, OR INABILITY TO USE, SELLER’S EQUIPMENT OR PRODUCTS AND/OR SERVICES FOR ANY PURPOSE, EXCEPT AS HEREIN PROVIDED.
  2. FORCE MAJEURE: Seller shall not be liable to Buyer for any loss or damage suffered by the Buyer, directly or indirectly, as a result of Seller’s failure to deliver or delay in delivering Products and/or Services or failure to perform, or delay in performing, any other term or condition hereunder, where such failure or delay is caused by circumstances beyond Seller’s control, including but not limited to, fires, computer or telecommunications systems failures, floods, natural disasters, strikes, lockouts, war, riot, civil disturbances, embargo, government regulations or restrictions of any and all kinds, expropriation of plant by federal or state authority, interruptions of or delay in transportation, material shortages, power failures, inability to obtain materials and supplies, accidents, explosions, acts of God, or other causes of like character and the time for delivery shall be extended during the continuance of such conditions and for a reasonable time thereafter.
  3. TAXES: Buyer shall pay, reimburse Seller, or provide a Tax Exemption Certificate for, all federal, state, county or municipality, compensating, intangible, sales, use, gross income or like taxes applicable to this contract, now or hereafter in effect, except for taxes payable upon Sellers net income.
  4. RETURNS: No material will be accepted for credit when returned without Seller’s prior written permission. All material accepted for credit is subject to Seller’s normal restocking charge.
  5. PATENTED PROCESS: Purchase of the Products and/or Services does not entitle Buyer to employ the same with any patented process, owned by Seller or others, except where the Buyer is expressly authorized. Buyer specifically agrees that any discoveries or inventions arising out of or in connection with the performance of this Agreement, including but not limited to, any and all patent rights and other intellectual property rights related thereto, shall be and shall remain the sole property of Seller.
  6. RISK OF LOSS AND TITLE: Buyer assumes risk of loss or destruction of, or damages to, the Product and/or Services after delivery to Buyer or carrier, whichever first occurs. Title to the Products and/or Services supplied hereunder, and to any additions, replacements, substitutions and accessories thereto, shall remain in Seller as a purchase money security interest (including the right of repossession) until Buyer pays the full purchase price, plus accrued interest, if any, and fully performs all of the terms and conditions hereof. Buyer agrees to execute all financing statements or other documents and take actions necessary or desirable by Seller to perfect its security interest.
  7. INDEMNIFICATION: It is understood that Seller has relied upon data furnished by Buyer with respect to the safety aspects of the Products and/or Services supplied hereunder and/or representations by or on behalf of Buyer that such Products and/or Services will not be applied or used by Buyer or its customers in such a way as to detract materially from their safety in use, including, without limitation, in the manufacture of a product of which Seller’s Products and/or Services will be a component and that it is Buyer’s responsibility to assure that such Products and/or Services, when installed and put in use, will be in compliance with safety requirements fixed by applicable law and will be otherwise legally adequate to safeguard against injuries to persons or property. BUYER HEREBY AGREES TO INDEMNIFY, HOLD HARMLESS AND DEFEND SELLER, AND ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS AGAINST ANY AND ALL LOSS, COST, DAMAGES, CLAIMS, LIABILITIES OR EXPENSES, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS FEES, ARISING OUT OR RESULTING FROM ANY INJURY TO ANY PERSON, DAMAGE TO ANY PROPERTY, OR ANY POLLUTION OR CONTAMINATION, CAUSED BY THE INADEQUACY FOR THE BUYER’S INTENDED USE OF THE SAFETY FEATURES, DEVICES OR CHARACTERISTICS OF THE PRODUCTS AND/OR SERVICES SPECIFIED HEREIN, OR IN THE INSTALLATION, USE OR OPERATION OF SUCH PRODUCTS AND/OR SERVICES, EXCEPT CLAIMS SOLELY FOR REPAIR OR REPLACEMENT OF DEFECTIVE PARTS COVERED BY THE WARRANTY SET FORTH ABOVE. Buyer represents that it has liability insurance coverage, in sufficient and adequate amounts, to support its indemnification obligations assumed under this Agreement. 
  8. TERMS AND CONDITIONS: Buyer purchases the Products and/or Services only on Seller’s terms and conditions herein which shall control. When received by Seller, Buyer’s Purchase orders shall be written acceptance of this Agreement. Unless accepted in writing by an authorized employee of Seller, any Buyer terms and conditions contained in acknowledgments, purchase orders, acceptances, confirmations or other documents inconsistent with, different from, or additional to the terms and conditions herein, will be null and void. 
  9. GENERAL: (a) representations, warranties, promises, or guarantees not contained herein and/or any modifications to this Agreement shall have no force and effect unless in writing signed by Seller and Buyer, (b) if any part or provision is deemed to be contrary to, prohibited by, held unenforceable, invalid or in conflict with the laws or regulations of any jurisdiction, such provision shall be deemed inapplicable and omitted to the extent contrary, prohibited or invalid, but the validity of the remaining parts or provisions shall not be affected.
  10. ADDITIONAL CHARGES: If repair parts, substitutions or additional Products and/or Services are purchased by Buyer, these terms and conditions shall apply as if originally purchased hereunder. Seller reserves the right to discontinue the manufacture of or change or modify any Product design or construction. Seller’s Product, designs, dimensions and weights as shown in Seller’s catalogs are subject to variation. 
  11. TERMINATION BY SELLER: Upon written notice to Buyer, Seller may terminate all or any part of the Agreement or suspend performance under the Agreement, without any liability to Buyer, (a) if Buyer (i) repudiates, breaches, or threatens to breach any of the terms of the Agreement, (ii) fails to accept or threatens not to accept Products and/or Services in accordance with the Agreement, or (iii) fails to make timely payment, or (b) upon the occurrence or threat of insolvency or bankruptcy of Buyer. Upon termination of the Agreement by Seller:(A) Seller shall be relieved of any further obligation to Buyer; (B) Buyer shall be liable to Seller for the immediate payment of amounts then billed to date by Seller to Buyer; (C) Buyer shall purchase and pay Seller immediately for all unique raw materials, work in process and finished goods under the Agreement; (D) Buyer shall reimburse Seller for any unreimbursed and unamortized research and development costs, capital equipment, and supplies that are unique to the Product(s) and/or Services; and (E) Buyer shall reimburse Seller for all preparation and other expenses incurred by Seller or its subcontractors in connection with the Agreement and for all other losses or costs arising from termination.
  12. BUYER REPUDIATION: Buyer may not terminate this Agreement without Seller’s prior written consent and in such event or if Buyer otherwise repudiates this Agreement, Buyer shall be liable to Seller for all of its costs and other commitments incurred to the repudiation date, plus its incidental damages and the profit Seller would have made from full performance of this Agreement. 
  13. GOVERNING LAW: This Agreement is construed to be between merchants and governed under the laws, and exclusive jurisdiction, of the state in which the Seller is located, without regard to its conflicts of laws rules. The prevailing party will be entitled to recover reasonable attorney fees and costs. 
  14. ASSIGNMENT: Seller reserves the right to approve and accept Buyer’s assignee of this Agreement prior to assignment. Failure to obtain consent entitles Seller to cancel the Agreement upon written notice. Buyer agrees that Seller has the right to assign this Agreement to any of its affiliates and subcontract any work provided herein. 
  15. DELIVERY AND ACCEPTANCE: Deliveries are scheduled after order receipt and clarification of required technical information, including Buyer approval of drawings when required. Shipping dates are estimates, made to the best of Seller’s ability based on conditions prevailing at the time of quotation, and are not guaranteed. Delivery to a carrier shall constitute delivery to Buyer, according to EXW Incoterms 2010. Buyer must immediately inspect or provide for immediate inspections upon delivery. All claims for alleged defects are waived and Buyer shall be deemed to have accepted the goods, unless Seller is notified of the claim within thirty (30) days after receipt of the goods. Seller shall be released from any delivery time obligations if: (a) information, including but not limited to, data, drawings, schemes, or diagrams, necessary for Products and/or Services design, manufacture, supply or delivery is not timely received from Buyer, is incomplete, or contains inaccuracies, (b) Buyer fails to perform any of its obligations under this Agreement, (c) unanticipated or different Product tests, controls or inspections must be conducted, and (d) Buyer requests variations. 
  16. GOODS FOR EXPORT: Seller presumes goods are destined for ultimate delivery in Norway. Buyer shall disclose the true and ultimate destination of the goods upon request. If goods are exported without its knowledge, Seller shall not be liable for packaging, marking, labeling, documentation, or warranty deficiencies which may result. 
  17. SUPPLY: Seller’s order confirmation is not a supply contract for the ongoing sale of Products, but a discrete sale for a quantity of Products and/or Services as defined by this document. Any supply arrangement shall be covered by a separate agreement. 
  18. PROPRIETARY INFORMATION: The parties shall keep and maintain confidential all Proprietary Information (defined as all business and technical information made available, directly or indirectly, to the other party). The parties agree to defend, indemnify and hold each other harmless from all claims arising from a breach of this confidentiality obligation, which shall survive termination of this Agreement.
  19. DRAWINGS / SPECIFICATIONS: Buyer shall be responsible for the accuracy of any designs, drawings, and specifications it provides and shall hold Seller harmless from any and all costs or expenses Seller incurred due to errors or mistakes.