1. Conclusion of ContractThese general terms and conditions and contract of sale (the “Contract of Sale”) shall be concluded when NanoXplore Inc. or any of its affiliates (“Supplier”), after receipt of an order from Purchaser for the purchase of products (“Products”), confirms its acceptance in writing or by issuing an invoice. Any standard terms and conditions of procurement of Purchaser are explicitly excluded. The Contract of Sale will govern all sales and deliveries by Supplier even if not referred to in any individual order.
2. Scope of Supply; AcceptanceThe quantity of Products and execution of the delivery shall be determined by confirmation of the order. Performances not covered thereby shall be charged separately. The definitive weight shall be the weight as determined in Supplier’s works. Purchaser shall inspect all deliveries upon receipt. Purchaser shall provide Supplier with prompt written notice, but no greater than one (1) month from delivery, of any damages to the Products; otherwise, Purchaser accepts the Products as they are, and they shall be deemed to have been received and accepted in new and undamaged conditions.
3. Use of Products; Compliance with laws; Export and import
The use to which Products delivered are put to may not be controlled by Supplier and shall be the exclusive responsibility of Purchaser. Compliance with any applicable law, regulation, rule, standard, or other requirements governing the activities of import, export, distribution, transformation, industrialization, exploitation, use, marketing or sale of the Products, as applicable, shall be the sole responsibility of Purchaser.
Purchaser shall be solely responsible for obtaining all approvals, authorizations, licenses and permits, unless otherwise mutually agreed in writing between the parties. Purchaser shall strictly comply with all such export controls and shall fully cooperate with Seller in any official or unofficial investigation, audit or ins7pection that relates to any of such controls, and shall not export, re-export, divert or transfer, directly or indirectly, any Products prohibited pursuant such controls, until Purchaser obtains all required government and regulatory approvals, authorizations, licenses and permits.
Supplier shall have no obligation other than to deliver Products in accordance with written specifications and the laws of the jurisdiction where the Products are manufactured.
4. PriceUnless otherwise stated, prices are net EX-WORKS (incoterms 2020) inclusive of packaging. All incidental costs including but not limited to the costs of freight, insurance, export, transit, import and other permits shall be charged to Purchaser. Purchaser shall also bear all federal, provincial, state or local taxes (including all import taxes, excise taxes and sales taxes), duties, charges, tariffs and customs duties and expenses. Prices are subject to being adjusted due for fluctuations of labor cost, material cost, market conditions, or any other element that could impact the price.
5. TaxesPurchaser must pay to Supplier all applicable sales, goods and services, value-added and other taxes imposed by any tax authorities (including federal, provincial, territorial, state, municipal and local tax authorities) with respect to Purchaser’s acquisition of the Products. Supplier will either: (a) include those taxes as a separately stated charge on its invoice; or (b) clearly state on the invoice that those taxes are included in the total charge with respect to that invoice. Supplier will meet all the other documentation requirements imposed on Supplier by all tax authorities. Supplier will reasonably cooperate with Purchaser in the preparation of all necessary claims and reimbursements for sales, goods and services, value-added and other taxes included in the price payable. All reimbursements received by Supplier with respect to the Products must be promptly paid over to Purchaser. In no event will Purchaser be responsible for any taxes on or measured by Supplier’s income, payroll, capital, capital stock or property.
6. Terms of Payment
Unless otherwise stated in an accepted order, Purchaser shall pay invoices thirty (30) days from the date of the invoice. Purchaser is required to pay electronically. The obligations of payment shall be fulfilled by Purchaser only insofar as the invoiced amount, without any deduction, is placed at the free disposal of Supplier in Supplier’s bank account. Bank charges shall be charged to the account of Purchaser. The agreed dates for payment shall also be adhered to in the case of Force Majeure. Purchaser may not offset any amount owed to Supplier against amounts owed by Supplier.
In the event that payment is not made within the permitted period, interest at a rate of twelve percent (12%) per annum compounded daily shall be charged without express notice and without prejudice to the assertion of further damages for delay in payment, in particular exchange rate loss.
In the event of late payment, Supplier is entitled to withhold further deliveries and to require further deliveries to be conditional upon the provision of securities acceptable to Supplier, including advance payment. Any other claims of Supplier under the business relationship with Purchaser become due immediately.
7. Retention of TitleSupplier shall retain the title to Products delivered by it until they are paid for in full. Purchaser shall be obliged at all times to cooperate in taking such measures as are necessary to protect the title of Supplier to Products and to inform Supplier immediately of any change in its domicile or address.
8. Use and RiskUse and risk of loss or damage shall pass to Purchaser once the Products are made available to Purchaser, safely packaged, at Supplier’s factory or depot. If dispatch of the Products is delayed or made impossible on the grounds of Force Majeure, then the Products shall be stored at Purchaser’s expense and risk.
9. Delivery and Insurance
Delivery shall be made at the cost and risk of Purchaser. The packaging shall be non-returnable. Insurance against damage of whatsoever type shall be the responsibility of Purchaser.
If shipment of the Products is delayed or rescheduled for greater than ten (10) days after the confirmed ship date due to Purchaser’s fault, then upon the expiration of such ten (10) day period, Purchaser shall pay to Supplier, a storage and handling fee equal to one tenth of one percent (0.10%) per day of the purchase order for each day of the shipment is delayed. The parties agree that such amounts are a reasonable pre-estimate at the time the purchaser order was issued and are to be assessed as liquidated damages and not as a penalty.
If Purchaser has elected to use a freight forwarder and/or carrier selected by Purchaser, and shipment of the Products do not take place on or prior to the confirmed ship date as a result of Purchaser’s failure to arrange for Purchaser’s freight forwarder and/or carrier to take delivery of the Products on the confirmed ship date, then, upon five (5) business days’ notice to Purchaser (which may be by email), (i) Supplier shall be entitled to ship the Products to Purchaser using a freight forwarder selected by Supplier and invoice Purchaser for such charges and Purchaser shall pay such charges within fifteen (15) days of receipt of the invoice. Title and risk of loss shall pass to Purchaser in accordance with the Incoterm as specified in the purchase order.
Except for research and development Products which shall be without warranty, Supplier warrants solely to Purchaser that the Products will materially conform to the written specifications for such Products at the time of delivery to Purchaser. Provided Products are used, handled and stored by Purchaser in accordance with industry standards and any instructions provided by Supplier, Supplier undertakes, as soon as possible, to correct proven defective Supply deliveries or, at its option, to replace such defective Supply deliveries. Replaced Supply deliveries shall become the property of Supplier. The warranty period shall extend for six (6) months and shall commence once the Products are made available to Purchaser, at Supplier’s factory or depot. Defects which are not attributable to Supplier are excluded from the warranty. Similarly, the warranty may not be asserted if Purchaser processes or alters the Products. The warranty shall also expire if Purchaser does not promptly take suitable measures in order to minimize its damages and enable Supplier to remedy defects. Supplier undertakes no warranty in the case of subcontracted deliveries.
Correction or replacement of proven defective Supply deliveries at its own costs and expenses shall be the only obligation and liability of Supplier. Unless specifically provided otherwise, Supplier does not make any representation or warranty of any kind, express or implied, statutory or otherwise, relating to the Products, whether used alone or in combination with other substances. Specifically excluded, without limiting the generality of the foregoing, are the implied warranty of fitness for a particular purpose and the implied warranty of merchantability.
Subject to the limitation of liability in the immediately following paragraph, Supplier shall indemnify and hold harmless Purchaser from any losses, liability, and expenses of any nature or kind (including court costs and actual attorney, legal and other professional fees) (“Damages”) incurred by Purchaser arising from any third party claims caused by Products failing to materially conform to the written specifications for such Products at the time of delivery to Purchaser; provided, however, that the foregoing indemnity shall not apply to the extent such Damages are caused by the fault of Purchaser, its affiliates, or their respective employees, agents or contractors. In the even that Purchaser has incurred Damages, Purchaser shall notify Supplier and Supplier shall indemnify Purchaser for the Damages and hold harmless Purchaser against any third-party legal claims associated with the Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT WILL SUPPLIER HAVE ANY LIABILITY TO PURCHASER OR ANY THIRD PARTY FOR ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY LOSS, COST, EXPENSE, LIABILITY OR DAMAGE, WHETHER DIRECT OR INDIRECT, IN CONNECTION WITH OR ARISING OUT OF ANY ORDER OR THE SUPPLY OR USE OF ANY PRODUCTS, AND IN NO EVENT WILL SUPPLIER’S LIABILITY EXCEED THE AMOUNT ACTUALLY PAID HEREUNDER BY THE PURCHASER WITH RESPECT TO SUCH PRODUCTS.