MenuThese terms and conditions of sale (these "Terms") govern the sale by Continuous Composites Inc. ("Seller") of the goods produced by Seller (the "Products"), goods sold by Seller to support the Products ("Consumables"), software provided by Seller to support the Products ("Software") and services provided by Seller related to the Products, Consumables and Software ("Services") to the buyer named on the Purchase Order or Sales Confirmation ("Buyer"). If a written contract exists covering the sale of the Products and Services, the terms and conditions of that contract will prevail to the extent they are inconsistent with these Terms. The Seller's form of invoice or purchase order (the "Sales Confirmation" or "Purchase Order") and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties and supersede all prior or contemporaneous understandings, agreements, negotiations, and communications. These Terms prevail over any of Buyer's general terms and conditions of purchase. 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.
From time to time, Seller may provide Services, as listed on the applicable Purchase Orders, which Services will be subject to and provided in accordance with this Agreement or, alternatively, may be made subject to a separate agreement ("Services Agreement"), which will control and govern the provision of the Services.
In the event of Buyer’s termination of a Purchase Order, Buyer will pay Seller a cancellation fee in an amount equivalent to Seller actual direct out of pocket costs incurred plus a percentage of the Purchase Order value, as outlined below, to cover sales and administrative expenses. The percentage is based on the proportion of time from the date of the Purchase Order to the originally scheduled shipment date, as follows:
(a) Title and Risk of Loss. Unless otherwise agreed by the Parties, Products and Consumables will be made available at the Delivery Point. Title and risk of loss passes to Buyer upon delivery of the Products to the Delivery Point. As collateral security for the payment of the purchase price of the Products, Buyer 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 Products, 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 IdahoUniform Commercial Code. In the event that Buyer finances its acquisition of the Products through a lease, secured loan agreement or other financing agreement (collectively, “Lease”) with Seller, then the security interest in the Products (and all products and proceeds thereof) will secure all obligations of Buyer due and to become due under the Lease. Until Seller has received full payment of the purchase price, Buyer will not remove all or any part of the Products from Buyer’s premises, nor will Buyer lease, transfer or otherwise cease with the possession of, or permit any lien or encumbrance to be placed on all or any part of the Products.
(b) Delivery. Seller will use commercially reasonable efforts to deliver the Products and Consumables on or before the scheduled delivery date set forth on the applicable Purchase Order; provided, that, Seller does not warrant quoted shipment or delivery dates and may fulfill ordered Products and/or Consumables by partial shipments, at its sole discretion. Buyer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products and/or Consumables will be borne solely by Buyer and that any insurance desired will be Buyer's sole obligation and expense. If Seller cannot deliver the Products and Consumables in the applicable Purchase Order by the scheduled delivery date, Seller will: (a) notify Buyer of the delay; and (b) deliver the Products and Consumables as soon as practicable thereafter. However, Seller will not be liable for any damage or penalty for delay in delivery or for failure to give notice of delay. Seller will only accept returns from Buyer that are returned with a Return Material Authorization number issued by Seller and accompanied by a written notice specifying the discrepancy or damage.
(c) Delivery Point. Unless otherwise agreed in writing by the parties, Seller will deliver or make available the Products and Consumables FOB Origin (the "Delivery Point") using Seller's standard methods for packaging and shipping such Products. Buyer will take delivery of the Products within three business days of Seller's written notice that the Products have been delivered to the Delivery Point. Buyer will be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point and will unload and release all transportation equipment promptly so Seller incurs no expense.
(d) Failure to Take Delivery. If Buyer fails to take delivery of any of the Products on the date when Seller notified Buyer that the Products are available at the Delivery Point or if Seller is unable to deliver the Products at the Delivery Point because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products will pass to Buyer; (ii) the Products will be deemed to have been delivered; and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
(e) Products Installation. Seller will install all Products purchased under this Agreement. Buyer will be responsible for all site preparation required prior to installation and connection of the Products by Seller. Buyer will provide space at the installation site for the safe storage of Seller’s materials used for installation at no charge to Seller. Buyer will, at its cost, obtain all permits and licenses required by governmental authorities in connection with the installation and operation of the Products. Buyer acknowledges that the Products and Software are designed to operate within certain power, temperature, airborne contamination, and humidity ranges. Buyer will be responsible for, without limitation: (i) maintaining the Buyer facility in conformance with the site preparation guidance provided by Seller and as required by applicable law, including, without limitation, all health and safety laws; (ii) maintaining its network infrastructure; (iii) providing access to a network connection in or near the area of the Products; and (iv) supplying necessary power.
(f) Services. With respect to the Services, Buyer will (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer's premises, and such office accommodation and other facilities as may reasonably be requested by Seller for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide information, approvals, or decisions that are reasonably necessary for Seller to perform the Services as required; (iii) provide such materials or information as Seller may reasonably request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws related to the Services.
The quantity of any Products or Consumables as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery, unless Buyer provides conclusive evidence proving the contrary. Seller will not be liable for any non-delivery of Products or Consumables (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within five days of the date they ought to have been received. Any liability of Seller for non-delivery of the Products or Consumables will be limited to replacing the Products or Consumables within a reasonable time or adjusting the invoice to reflect the actual quantity delivered. Buyer acknowledges and agrees that the remedies set forth in this Section are Buyer's exclusive remedies for any non-delivery.
Buyer agrees that all Products purchased under this Agreement will be operated exclusively by duly qualified personnel in a safe and reasonable manner in accordance with Seller’s written instructions, applicable laws and regulations, and only for the purposes for which such Products were intended.
Buyer will pay for the Products, Consumables,Software, and/or Services fees ("Fees") specified in an applicable Purchase Order. Unless otherwise set forth in an applicable Purchase Order, the payment terms will be net thirty (30) days from date of invoice. Buyer will pay in U.S. Dollars and pursuant to the payment schedule indicated in the applicable Purchase Order. All Fees are exclusive of any (i) taxes, duties or other governmental charges or assessments on the sale, shipment or use of the Products, Consumables, Software, or Services, or (ii) shipping fees. Fees are non-refundable except as set forth herein or as required by applicable law. Fees and expenses not paid to Seller when due will be subject to interest thereon at the rate of 1.5% per month, or the highest amount permitted by law, whichever is lower, from the date payment was due until such Fees, together with interest thereon, are paid in full. Further, in the event that any Fees or expenses are not timely paid by Buyer, Seller reserves the right to suspend all Services until such amounts are paid in full. Seller will use commercially reasonable efforts to notify Buyer in advance of such action. Buyer will not set off against or deduct from any amounts due to Seller, all or any part of any amounts owed or alleged to be owed by Seller to Buyer or any damages or losses that Buyer may have sustained or alleges to have sustained. Buyer is responsible for all taxes (excluding any taxes imposed on Seller income), duties or other governmental charges or assessments on the sale, shipment or use of the Products, Consumables, Software, or Services, including without limitation, any sales use, value-added, royalty or withholding taxed imposed by any U.S. or other government entity.
(a) Seller warrants to Buyer that, for a period of 12 months from the date of shipment of the Products ("Warranty Period"), such Products will materially conform to Seller's published specifications in effect as of the date of shipment. The effects of corrosion, erosion, and normal wear and tear are specifically excluded. Seller further warrants to Buyer that it will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS ABOVE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, 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.
(b) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in this section. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (C) WARRANTY OF TITLE; OR (D) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BYLAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER’S RIGHTS WITH RESPECT TO ANY THIRD PARTY PRODUCT ARE LIMITED TO ANY WARRANTY OR COMMITMENT MADE BY THE MANUFACTURER OF THE THIRD PARTY PRODUCT. NOTHING HEREIN PLACES ANY COMMITMENT OR OBLIGATION ON BEHALF OF SUCH THIRD PARTY PRODUCT ON SELLER OR ANY LICENSOR OR SUPPLIER OF SELLER.
(b) The Seller will not be liable for a breach of the warranties set forth in Section 8(a) unless: (i) Buyer gives written notice of the defective Products or Services to Seller within 30 days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice of breach of the warranty to examine such Products; and (iii) Seller reasonably verifies Buyer's claim that the Products or Services are defective. The Seller will not be liable for a breach of the warranty set forth in Section 8(a) if: (i) the defect arises because Buyer failed to follow Seller's instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (ii) Buyer alters or repairs such Products without the prior written consent of Seller. For any defective Products, Seller will, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate. If Seller requests, Buyer will, at Seller's expense, return the defective Products to Seller. With respect to any defective Services, Seller will, in its sole discretion, (i) repair or re-perform the applicable Services or (ii) credit or refund the price of such Services at the pro rata contract rate. THE REMEDIES SET FORTH IN THIS SECTION WILL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTIONS 8(a).
IN NO EVENT WILL SELLER, OR ANY LICENSOR OR SUPPLIER OF SELLER, BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT WILL 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 AND SERVICES SOLD HEREUNDER. The limitation of liability set forth in this Section will not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller's acts or omissions.
Buyer will comply with all applicable laws, regulations, and ordinances. Buyer will maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
If Buyer fails to make any payment when due, or if the financial responsibility of Buyer becomes impaired, or if Buyer otherwise breaches any of the terms and conditions of this Agreement, then Seller may, without prior notice or demand, defer shipments, cancel the balance of the order, suspend performance of any obligation and/or take immediate possession of the Products delivered, until the full purchase price of the Products is paid by Buyer or, at Seller’ discretion, until security satisfactory to Seller is given by Buyer. Any costs incurred by Seller as a result of suspending performance or repossession or collection will be payable by Buyer. Seller may sell repossessed Products with proceeds to be applied to unpaid balance and expenses. Buyer will pay any remaining deficiency. Seller may further exercise any other rights available to it by law.
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: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) 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.
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 right, remedy, power or privilege operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder
Seller grants Buyer a limited, non-exclusive license to Buyer of the intellectual property rights incorporated into the corresponding Products and/or Consumables solely in order to use the purchased Products and/or Consumables for their intended purpose. Except as expressly otherwise set forth in this Agreement, Seller owns and will retain all right, title and interest (including all intellectual property rights) in and to the Products, Consumables, Software, Services, Product operation data, Sellers inputs or trademarks, and any improvements, derivatives, and customizations thereof. Subject to the Seller's reserved rights as set forth in this Section, Buyer owns and will retain all right, title and interest (including all intellectual property rights) in and to any prototypes, outputs or other end-use products produced by Buyer using the Products, Consumables, Software, and Services ("Work Product").
The Seller will not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller.
Buyer will 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.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will 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 will have authority to contract for or bind the other party in any manner whatsoever.
Buyer will obtain and maintain adequate liability insurance for the products against loss or damage from any external causes, with Seller named as an additional insured under all such policies.
If any Products or Consumables provided hereunder includes hazardous material as defined by applicable local, state or federal law, Buyer represents and warrants that Buyer and its personnel understand the nature and hazards associated with the handling, transportation and use of those hazardous materials. Buyer will comply with material safety data sheets and any other documentation reasonably necessary to ensure that the sale and handling of the Products or Consumables comply with applicable laws. BUYER IS SOLELY RESPONSIBLE FOR ALERTING ANY AUXILIARY PERSONNEL (E.G., FREIGHT HANDLERS) OF ANY RISKS INVOLVED IN USING OR HANDLING HAZARDOUS MATERIALS. ALL WASTE DISPOSAL OF HAZARDOUS MATERIALS SHOULD BE HANDLED ONLY BY INDIVIDUALS WHO HAVE RECEIVED SPECIFIC EDUCATION AND TRAINING.
Buyer will comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Buyer. Buyer assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other duties or penalties on the Products. Without limiting the generality of the foregoing, Buyer will not transfer, re-transfer, export or re-export such items to anyone on any Denied Parties List of any governmental entity, as such lists may be revised from time to time, or for any use in chemical or biological weapons, sensitive nuclear end uses, missiles, etc. Buyer represents it is not located in, under control of, or a national or resident of any country on any such list.
If Buyer is part of an agency, department, or other entity of, owned or created by the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product or Software is further restricted in accordance with the FARs and DFARs, for "commercial items," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use thereof by the Government will be governed solely by these Terms.
(a) For Buyers in the US and Canada: (i) these Terms will be governed by and construed under the internal laws of the State of Idaho, without reference to its choice of law rules; and (ii) Buyer consents to the exclusive jurisdiction and venue of the federal or state courts located in Kootenai County, Idaho.
(b) For Buyers in the European Economic Area and the United Kingdom: These Terms will be governed by the internal laws of Switzerland without reference to its International Private Law. Any dispute, controversy or claim arising out of or relating to these Terms will be resolved by arbitration in accordance with the Swiss Rules of International Arbitration of the Swiss Chambers of Commerce in force on the date when the Notice of Arbitration is submitted. The number of arbitrators will be one. The seat of the arbitration will be Zurich. The arbitral proceedings will be conducted in English language. In jurisdictions and/cases in which such an arbitration provision is not valid or enforceable, actions will be brought in a competent court in Zurich, Switzerland.
(c) In the event of any legal proceeding involving any party to this Agreement against the other relating to the subject matter of this Agreement, the prevailing party in such proceeding will be entitled to recover reasonable attorney's fees, expert fees, and court costs against the non-prevailing party. The United Nations Convention for the Sale of Products will not apply to any transaction hereunder.
All notices, consents, claims, demands, and waivers hereunder (each, a "Notice") will 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 will be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail. Except as otherwise provided in this Agreement, a Notice is effective only upon receipt of the receiving party.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction
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.
Seller may update these Terms at any time; provided that any such update will not: (a) materially reduce Buyer’s rights and remedies; or (b) add additional material obligations on Buyer. If Seller updates these Terms in a manner that materially reduces Buyer’s rights and remedies or adds additional material obligations, Buyer may provide written notice within thirty (30) days of the change of its election to terminate or amend the Agreement. If Buyer does not notify Seller, Buyer will be deemed to have accepted the updated Terms.