Terms and Conditions

Sales Terms and Conditions

1. Definitions.

• a) “Buyer” means the individual or entity identified on Buyer’s purchase order, or, if different, on Seller’s quotation, Order Acknowledgment or statement of work.
• b) “End User” means a person who is a subscriber or customer of Buyer which uses the Product for their individual use.
• c) “Seller” means the entity identified on Seller’s quotation, Order Acknowledgment or statement of work or on Appendix C hereto.
• d) “Hardware” means equipment designed and manufactured by or on behalf of Seller, or any third-party manufacturer’s equipment offered for sale by Seller to Buyer.
• e) “Order Acknowledgment” means a document or email furnished by Seller acknowledging the receipt of Buyer’s purchase order and Seller’s agreement to supply the Products and/or Services stated therein under the terms and conditions stated herein.
• f) “Product” means (i) any product designed or manufactured by or on behalf of Seller, or (ii) any third-party manufacturer’s product offered for sale by Seller.
• h) “Services” means site engineering, system integration, product installation, implementation, training, maintenance and technical support services for Products, or other professional services provided by Seller to Buyer.

2. Terms; Seller’s Acceptance. Unless Seller expressly agrees otherwise in writing, these Terms and Conditions will govern all purchase orders, quotations and statements of work. Seller specifically rejects, and Buyer disclaims, all pre-printed provisions in Buyer’s purchase order and any other Buyer forms or documents, including any terms and conditions on Buyer’s internet site. Seller’s failure to object to any term or condition in any communication from Buyer will not be construed as agreement to such term or condition, nor will it be deemed a waiver of these Terms and Conditions. Seller reserves the right, in its sole discretion, not to accept any purchase order, including any purchase order issued in connection with a quotation provided by Seller. Seller’s acceptance to supply Products and/or Services, as identified in Buyer’s purchase order, shall be in writing, as evidenced by the issuance of an Order Acknowledgment. In the event the Buyer and Seller have executed a definitive contract relating to the Products and/or Services purchased (a “Definitive Contract”), then the terms and conditions set forth in such Definitive Contract shall supersede any conflicting terms and conditions set forth herein for as long as such Definitive Contract is in effect and not terminated or expired.
3. Entire Agreement; Amendments. These Terms and Conditions, including any applicable Appendices, and Seller’s quotation, Order Acknowledgment and/or statement of work, (a) constitute the entire agreement of the parties covering the Products and/or Services provided by Seller to Buyer, and (b) supersede all other written or oral agreements between the parties, except in the event of a Definitive Contract executed by the parties. Seller and Buyer may modify these Terms and Conditions, or the associated quotation, Order Acknowledgment and/or statement of work, only by an express written agreement signed by both parties. Appendix B contains specific terms applicable to the sale of Services.
4. Commercial Contract. The procurement rules and regulations of any local, state, federal or other government or governmental authority will not apply to any sales of Products and/or Services by Seller to Buyer.
5. Quotations and Prices. Except as otherwise specifically provided in Seller’s quotation, Order Acknowledgment or statement of work, the prices of Products and/or Services will be Seller’s list prices in effect at the time of Seller’s quotation or Seller’s Order Acknowledgement or the effective date of statement of work and are not subject to trade or other discounts. Except as otherwise stated in writing by Seller, a quotation or proposal is valid for a period specified in the proposal from date of issue; however, prices set forth in a quotation or a proposal are subject to increases due to market conditions. Seller may correct errors or omissions in published or quoted prices or change its published list prices at any time without notice. Unless stated otherwise in Seller’s quotation or Order Acknowledgment or statement of work, prices do not include any costs related to insurance, special packaging or insulation, source inspection, testing, service calls or service work performed by Seller, all of which must be paid by Buyer. Notwithstanding the foregoing, prices in Seller’s quotations, Order Acknowledgments and/or invoices may be subject to a price increase and/or surcharge.
6. Taxes. Prices do not include occupation, sales, use, privilege, excise or similar taxes, duties, tariffs, assessments or levies now or hereinafter imposed on the Products and/or Services, and Buyer will pay any such amounts in connection with the Products and/or Services. In lieu of payment, Buyer may, prior to delivery of the Products, provide Seller with a tax exemption certificate acceptable to the appropriate taxing authority.
7. Terms of Payment. Unless otherwise agreed by Seller in writing, all payments shall be in U.S. Dollars and due within thirty (30) days of the date of the invoice. Seller shall invoice Buyer on the completion of the milestones as set forth in Seller’s proposal, as applicable. Buyer will pay interest on any past due invoices at a rate of 7% per month on the unpaid balance, or, if lower, the maximum rate permitted under applicable law. Buyer will pay all costs, including reasonable attorneys’ fees, court costs and collection agency fees that Seller incurs in the enforcement of these Terms and Conditions against Buyer. If in Seller’s judgment, Buyer’s financial condition or payment history does not justify the payment terms set forth above or continuation of the existing payment terms, Seller may: (i) require full or partial payment of Buyer’s account; (ii) require payment in advance of shipment and/or performance; (iii) change Buyer’s credit terms; or (iv) any combination of the above. Buyer acknowledges that Seller retains a security interest in all Products, and all proceeds and products thereof, until Buyer renders payment in full, and Buyer hereby authorizes Seller to file any documents necessary to perfect Seller’s security interest.
8. Shipping. Seller will pack, package and crate Products in accordance with its standard for domestic transportation. No seaworthy packing is provided unless exclusively stated in Seller’s proposal.
9. Title; Risk of Loss. Title to the Products (but excluding any Software included in or with the Products) and the risk of loss or damage to the Products will pass to Buyer when delivery of the Products is made in accordance with Section 10.
10. Delivery. Unless stated otherwise in Seller’s quotation or Order Acknowledgment, all Products will be delivered EXW Seller’s facility (Incoterms 2020). Seller does not and will not guarantee any shipping or delivery date, and no person is authorized to commit to a delivery date except in writing signed by an authorized officer of Seller. Seller may estimate shipping or delivery dates to the best of Seller’s knowledge based on information provided by Buyer and conditions existing at the time of the estimate. Seller will make commercially reasonable efforts to ship the Products by the estimated shipping date, but will not be liable for any damages, loss or expense (direct, incidental, indirect, economic, consequential or otherwise) arising from a delay in shipment.
11. Force Majeure. Seller will not be liable for any delay caused by any act of God, fire, flood, explosion, war, terrorism, insurrection, riot, pandemic, embargo, action, statute, ordinance, regulation or order of any government or government agency, shortage of labor, material, fuel, supplies or transportation, strike or other labor dispute or any other cause, contingency, occurrence or circumstance of any nature beyond Seller’s control. If there is such a delay, Seller will have a reasonable extension of time in which to complete performance. If Seller is partially excused from performance either by any of the conditions listed above or by the provisions of any applicable laws or regulations, Seller will not be required to make any allocation of production, shipments or deliveries, notwithstanding any applicable laws or regulations that may provide otherwise.
12. Acceptance of Products and Services. The Products and Services provided by Seller are deemed accepted by Buyer upon delivery of Products in accordance with Section 10 and performance of Services, respectively.
13. Delivery Delays. If Buyer delays delivery of the Products, Buyer shall reimburse Seller for any and all costs of storage incurred by Seller after the date that Seller is prepared to deliver the Products. Seller may also invoice Buyer for the Products, and Buyer must pay for the Products in accordance with the terms of the original sale.
14. Warranties. Seller warrants the Products and Services to Buyer in accordance with the terms, conditions and limitations of Seller’s Limited Warranty for such Products and Services as in effect as of the date of shipment or completion of work, respectively. Unless otherwise provided to Buyer in writing, Seller’s Limited Warranty for the Products and Services is listed in Appendix A of this Terms and Conditions. No person is authorized to give any additional warranties on Seller’s behalf or to assume for Seller any other liability, except in a writing signed by an authorized officer of Seller. Nothing in these Terms and Conditions or in Seller’s Limited Warranty shall be construed to provide Buyer with a warranty for any system implementation using the Products. Warranties for system implementations or projects will be available only on terms set forth in a mutually agreed statement of work. In the event of a conflict between this Section 14 and the Seller’s Limited Warranty, this Section 14 shall prevail.
15. Indemnity. Buyer agrees to indemnify, defend, and hold harmless Seller, its affiliates, officers, directors, employees, agents, and representatives from and against any and all claims, liabilities, damages, losses, costs, or expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (a) Any breach of this Agreement by Buyer; (b) Any negligence or willful misconduct of Buyer or its employees, agents, or contractors; (c) Any infringement of any third-party intellectual property rights by Buyer; and (d) Any bodily injury (including death) or damage to property caused by Buyer. 15(a)Procedure for Indemnification: In the event of any claim, demand, suit, or proceeding against Seller which Seller believes is subject to indemnification under this clause, Seller shall promptly notify Buyer in writing. Buyer shall assume control of the defense and settlement of any such claim; provided, however, that Seller shall have the right to participate in the defense with counsel of its choice at its own expense. Buyer shall not settle any such claim in a manner that imposes any non-indemnified liability or obligation on Seller without Seller’s prior written consent, which shall not be unreasonably withheld. 15(b)Exceptions: The indemnification obligations set forth in this clause shall not apply to the extent that any such claims, damages, losses, or expenses are attributable to the gross negligence or willful misconduct of Seller. 15(c)Survival: The obligations under this Indemnification Clause shall survive the termination or expiration of this Agreement.
16. Property Furnished by Buyer. If Buyer furnishes any components, tools, dies, jigs or other property, equipment, material, or facilities to Seller in connection with its performance under these Terms and Conditions, Buyer shall bear all risk of loss or damage with respect to such property, equipment, material, or facilities and shall indemnify and hold Seller harmless from and against all loss, cost, expense or liability arising in connection with its use of any such property, equipment, material, or facilities. Seller shall not be responsible for any delay in performance or nonperformance hereunder or the failure of any Product to conform to applicable specifications resulting, in whole or in part, from Seller’s use of property, equipment, material, or facilities furnished by Buyer.
17. Limitations on Liability. THE WARRANTIES IN SECTION 14 ARE EXCLUSIVE AND ARE MADE ONLY TO BUYER. SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, AND SPECIFICALLY DISCLAIMS AND EXCLUDES ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE AND ANY REPRESENTATION OR WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OR PERFORMANCE. SELLER’S TOTAL LIABILITY FOR ANY CLAIM OR DAMAGE ARISING OUT OF AND/OR IN CONNECTION WITH THSE TERMS AND CONDITIONS OR THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCTS OR SERVICES (INCLUDING UNDER SECTION 15) WILL BE LIMITED TO PROVEN DIRECT DAMAGES, NOT TO EXCEED (I) FOR PRODUCTS, THE DEPRECIATED VALUE OF THE PURCHASE PRICE OF SUCH AFFECTED PRODUCTS PURCHASED UNDER THESE TERMS AND CONDITIONS OR (II) FOR SERVICES, THE ACTUAL AMOUNT PAID TO SELLER FOR SERVICES DURING THE 12 MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT (OR SERIES OF EVENTS) GIVING RISE TO THE LIABILITY. IN NO EVENT (INCLUDING UNDER SECTION 15) WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CLAIM FOR LOSS OF ACTUAL OR ANTICIPATED DATA, USE, REVENUES OR PROFITS. The Products are not specifically designed, tested, manufactured or intended for operation or use in any inherently dangerous, life endangering or life support applications where any failure of the Products could lead to death, personal injury or significant physical or environmental damage (High Risk Activities). If Buyer uses the Products in High Risk Activities, including but not limited to nuclear facilities or special operations, Buyer agrees that neither Seller nor its third party licensors are liable in whole or in part, for any claims or damages arising from such use, and that Buyer shall indemnify and hold Seller and its third party licensors harmless from any and all claims for loss, cost, damage, expense or liability arising out of or in connection with any use of the Products in High Risk Activities. The limitations on liability in these Terms and Conditions, including warranty limitations, shall apply regardless of the form of action, whether in contract, tort, strict liability or otherwise, and whether damages were foreseeable. The limitations of liability in this Section 17 shall survive failure of any exclusive remedies provided in these Terms and Conditions or in Seller’s Limited Warranty. In the event of a conflict between this Section 17 and Seller’s Limited Warranty, this Section 17 shall prevail.
18. Remedies for Events of Default. If Buyer (a) fails to pay any amount due within 30 days of the due date, (b) files a petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law of any jurisdiction, or (c) becomes unable to pay or suspends payment of its debts as they become due, or if a court issues an order appointing a receiver, custodian or administrator over all or part of Buyer’s assets, Seller may terminate any outstanding purchase order. In addition, without waiving any other available remedies, Seller may: (v) declare immediately due and payable all sums due and to become due under any outstanding purchase order; (w) stop manufacture of any Products for Buyer; (x) stop all shipments in progress and future shipments; (y) stop performance of all Services; and (z) repossess any Products in which Seller has a security or ownership interest.
19. Waiver of Subrogation. Each party waives (for itself and its insurance carrier) all its rights of subrogation against the other party and the other party’s employees, agents, suppliers and subcontractors to recover damages and losses to the extent such damages or losses are covered by insurance; provided that this provision will have no effect to the extent that it invalidates or otherwise limits the insurance coverage of a party.
20. Specifications, Tooling and Product Discontinuance. Seller may change its Product specifications and manufacturing practices at any time without notice to Buyer; provided that such changes do not materially impair the performance of the Products. Seller may also discontinue any Products and/or Services at Seller’s sole discretion. Seller will exclusively own all materials and information provided by Seller to Buyer, including, without limitation, specifications, drawings, engineering data and technical designs, and all tools required for production, or engineering advances developed by Seller as a result of producing items in a purchase order.
21. All Sales Final. Unless otherwise expressly agreed in writing by Seller, all sales are final. No returns will be accepted by Seller without a written authorization to return materials signed by Seller.
22. Changes; Cancellation. Purchase orders are non-cancellable by Buyer upon Seller’s acceptance of Buyer’s purchase order. Buyer may cancel a purchase order only with Seller’s express written consent. If Seller determines that a change order is required, Seller may request that Buyer provide a revised purchase order. Any other change order must be in writing and signed by duly authorized representatives of Seller and Buyer. Change orders will specify any resulting adjustments in delivery schedule or price.
23. No License. Neither these Terms and Conditions nor the purchase of any Products or Services hereunder shall be construed to confer upon Buyer or its customers any license under any patent or other proprietary rights of Seller, except the right to use such Products or Services for the purposes for which they are sold. Buyer does not acquire any right, title or interest in any tooling, set-up, fitting-up, drawings, design information, or invention or other intellectual property resulting therefrom, which remain the sole property of Seller.
24. Compliance with Laws. Buyer will comply with all applicable laws affecting the purchase and use of the Products and/or Services, including, without limitation, any applicable export laws. Buyer will maintain all required licenses, permits and registrations with governmental authorities and agencies, commercial registries, chambers of commerce or other offices. Buyer will dispose of Products in an environmentally responsible manner in accordance with all applicable local laws and regulations. Buyer will not export or re-export the Products to any country in violation of U.S. export control laws or any other applicable export control laws. Buyer will comply with all applicable anti-corruption and antibribery laws, regulations, or similar legislation. Buyer shall neither directly nor indirectly pay or offer, promise, give, or authorize to pay money or anything of value to any employee or official of a government or instrumentality or department thereof, to any political party or candidate for political office, to any employees or officials of public international organizations, or to any other person with the knowledge or belief that such money or item of value will be passed on to one of the above to influence any act or decision by such person or by any governmental body for the purpose of obtaining, retaining, or directing business or to otherwise obtain an improper advantage.
25. Buyer’s Representations. Buyer represents and warrants that (i) the Products and/or Services purchased hereunder will not be used, directly or indirectly, to further the illegal theft of services or any other unauthorized receipt, interception, publication, distribution of, or interference with any privately owned transmission of information and (ii) except as otherwise agreed to by the parties under a separate written agreement, Buyer will not act as a reseller of any Products and/or Services provided hereunder.
26. Set-off. Buyer may not set-off any amount owing from Seller to Buyer against any amount payable by Buyer to Seller, whether or not related to the same purchase order.
27. Confidential Information. Buyer will not disclose any confidential or proprietary information of Seller, including, without limitation, any information regarding pricing of the Products or Services or the other terms and conditions of sale of the Products or Services to Buyer, nor shall Buyer use any such confidential or proprietary information other than in the course of performing its obligations hereunder. Seller retains ownership of all of its confidential and proprietary information and all documentation containing such information. Upon request of Seller, Buyer shall immediately return any such confidential or proprietary information provided, including all copies made by Buyer. In addition, Buyer will not use any of Seller’s trademarks, service marks or trade names without the express written consent of Seller.
28. No Partnership or Joint Venture. The parties agree that nothing in these Terms and Conditions will create any agency, employment, partnership, joint venture or fiduciary relationship between Buyer and Seller.
29. Assignment. These Terms and Conditions are binding upon, and inure to the benefit of Buyer, Seller and their permitted successors and assigns. Buyer may not assign all or any portion of its rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Seller. Any attempted assignment without such consent shall be void. Seller may assign, delegate, novate or subcontract any of its rights or obligations, in whole or in part, without Buyer’s consent.
30. Waiver. Seller’s waiver of any breach of any provision contained in these Terms and Conditions will not waive any other breach by Buyer. Seller’s delay or failure to enforce its rights under these Terms and Conditions shall not be deemed a waiver of such rights.
31. Governing Law. These Terms and Conditions will be governed by the laws of State of California. The United Nations Convention on Contracts for the International Sale of Goods will not apply. All shipping and delivery terms specified herein will have the definitions set forth in the Incoterms 2020 published by the International Chamber of Commerce.
32. Notices. All notices provided hereunder shall be in writing, sent by express, registered or certified mail, return receipt requested, courier service or personal delivery, or electronic mail, and shall be effective upon receipt or refusal. Notices to Buyer shall be sent to the address listed in the purchase order or other documentation to Seller. Notices to Seller shall be sent to seller’s address listed in the contract or by email to: legalnotices@metispower.com
33. Severability. If any provision of these Terms and Conditions is held to be invalid, illegal, or unenforceable, such provision shall be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms and Conditions shall continue in full force and effect.
34. Signature. Neither Buyer nor Seller are required to sign these Terms and Conditions.
35. Venue; Limitation of Actions – US Buyers. WHERE BUYER HAS ITS PLACE OF BUSINESS OR IS INCORPORATED IN THE UNITED STATES, BUYER HEREBY CONSENTS TO THE JURISDICTION OF ANY STATE COURT LOCATED WITHIN ORANGE COUNTY, CALIFORNIA OR ANY FEDERAL COURT LOCATED IN THE SOUTHERN DISTRICT OF CALIFORNIA AND CONSENTS THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE PURCHASE ORDER, QUOTATION, ORDER ACKNOWLEDEGMENT OR STATEMENT OF WORK. NOTHING IN THESE TERMS AND CONDITIONS AFFECT THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING ANY ACTION OR PROCEEDING AGAINST BUYER IN THE COURTS OF ANY OTHER JURISDICTION THAT HAS JURISDICTION OVER BUYER. TO THE EXTENT PERMITTED BY LAW, BUYER WAIVES TRIAL BY JURY AND WAIVES ANY OBJECTION THAT IT MAY HAVE BASED ON LACK OF JURISDICTION, IMPROPER VENUE OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS.
36. Arbitration; non-US Buyers. WHERE BUYER DOES NOT HAVE ITS PLACE OF BUSINESS IN THE UNITED STATES AND IS NOT INCORPORATED IN THE UNITED STATES, THE PARTIES AGREE THAT ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS AND CONDITIONS BETWEEN THE PARTIES, OR THE BREACH, TERMINATION, OR VALIDITY THEREOF, SHALL BE DETERMINED BY ARBITRATION ADMINISTERED BY THE INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION IN ACCORDANCE WITH ITS INTERNATIONAL ARBITRATION RULES. THE PLACE OF ARBITRATION SHALL BE NEW YORK AND THE LANGUAGE OF THE ARBITRATION SHALL BE ENGLISH. IN THE EVENT THAT IT IS NECESSARY TO SEEK TO RECOGNIZE AND/OR ENFORCE THE ARBITRATION AWARD, THE PARTIES HEREBY CONSENT THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE PURCHASE ORDER, QUOTATION, ORDER ACKNOWLEDEGMENT OR STATEMENT OF WORK. NOTHING IN THESE TERMS AND CONDITIONS AFFECTS THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW. JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTHING IN THESE TERMS & CONDITIONS WILL PREVENT EITHER PARTY FROM RESORTING TO JUDICIAL PROCEEDINGS FOR THE LIMITED PURPOSE OF SEEKING INJUNCTIVE OR OTHER INTERIM RELIEF. IN SUCH EVENT, THE PARTIES HEREBY CONSENT THAT ALL SERVICE OF PROCESS BE MADE BY REGISTERED OR CERTIFIED MAIL DIRECTED TO IT AT ITS ADDRESS SET FORTH ON THE PURCHASE ORDER, QUOTATION, ORDER ACKNOWLEDEGMENT OR STATEMENT OF WORK. NOTHING IN THESE TERMS AND CONDITIONS AFFECT THE RIGHT OF SELLER TO SERVE LEGAL PROCESS IN ANY OTHER MANNER PERMITTED BY LAW.