Nano-C Inc., Standard Terms and Conditions of Sale
These Standard Terms and Conditions apply to all sales of products (“Products”) by Nano-C, Inc. (“Nano-C”) whether by purchase order or otherwise (“Order”). Acceptance by Nano-C of any Order is expressly limited to the terms and conditions set forth below. No one except a duly authorized representative of Nano-C may modify these Standard Terms and Conditions and any modification must be in writing (for purposes of these Standard Terms and Conditions, the term “writing” includes electronic communications such as fax or email). If these Standard Terms and Conditions are not acceptable, customer (“Customer” or “Buyer”) should notify Nano-C at once. These Standard Terms and Conditions are attached to and made a part of any Order executed by Customer for Products to be sold to Customer.
These Standard Terms and Conditions constitute the entire agreement between the Customer and Nano-C and supersede all previous communications, representations or agreements, either verbal or written, with respect to the subject matter thereof.
Unless otherwise specifically agreed to in writing by an authorized representative of Nano-C, all Orders received by Nano-C are subject to these Standard Terms and Conditions. An Order for the purchase of Products can be accepted only by an authorized representative of Nano-C in writing (such written acceptance being an “Acknowledgement”). Any different or additional terms and conditions proposed in an Order or otherwise are hereby rejected by Nano-C and shall not be incorporated into these Standard Terms and Conditions.
4. Permitted Use of Products.
Buyer represents and warrants that it intends to and will use Products solely for internal research and development purposes. Buyer shall not resell or distribute the Products or sell or distribute any goods that incorporate Products or any derivative thereof unless otherwise agreed to in writing.
5. Force Majeure and Delayed Deliveries.
Delivery will be made on or about the date indicated in Nano-C’s Acknowledgement; however, Nano-C cannot be responsible for delays due to any cause beyond its control, including, but not restricted to, acts of God, war, acts of the enemy, hostilities, civil commotion or sabotage, acts of Government, fires, floods, explosion or other catastrophes, accidents, mechanical breakdowns, epidemics, quarantine restrictions, differences with workmen, embargos or other transportation delays of any kind, inability to obtain fuel or other material, or delays incurred by Nano-C’s suppliers due to such causes. Any such causes of delay, even though existent on the date of Nano-C’s Acknowledgement, shall extend the time of Nano-C’s performance by a period or periods equivalent to the delays so occasioned and to such further extent as may be necessary to enable Nano-C to make delivery by the exercise of reasonable diligence in view of the circumstances existing after such causes of delay have been removed.
6. Pricing and Payment Terms.
The pricing of Products subject to an Order will be stated in Nano-C’s Acknowledgement. Unless otherwise agreed, the full purchase price shall be due within thirty (30) days of the shipment date from Nano-C. Nano-C may cancel deliveries of Products if Buyer fails to make any payment when due. If payment is not made in accordance with said terms of payment, Buyer shall pay to Nano-C all reasonable costs of collection, including reasonable attorney’s fees incurred by Nano-C in collecting sums due to Nano-C. In addition, in the event that payment is not made when due, interest on any overdue payment shall accrue at the lesser of (i) the rate of one and one half percent (1.5%) per month, and (ii) the highest rate allowed by applicable law. Nano-C’s rights under this section shall be in addition to all other rights and remedies available to Nano-C upon Buyer’s default.
The prices for the Products covered by any Order are stated in U.S. Dollars.
7. Changes and Deletions.
Nano-C agrees only to sell the quantity of Products set forth in an applicable Order and the corresponding Nano-C Acknowledgement and expressly rejects any terms or conditions that purport to establish a requirements contract initiated unilaterally by the Buyer. Changes in quantities, specifications, or delivery schedules may only be made with the written consent of Nano-C. Any change consented to by Nano-C which causes an increase in the amount due hereunder or in the time required for performance will result in an equitable adjustment in the pricing.
8. Delivery Point.
Delivery of Products shall be made F.O.B. Nano-C’s manufacturing facility identified in the Acknowledgement, unless otherwise indicated. Notwithstanding the payment of freight costs by Nano-C on behalf of Buyer (subject to reimbursement by Buyer), title to Products and all risk of loss transfer to Buyer upon delivery to the carrier.
Buyer will pay all taxes due on any Order, including, but not limited to, sales, use, excise or any direct or indirect tax of a similar nature of federal, state, county, country or municipal origin. If Nano-C is required to collect and/or pay such taxes, Buyer shall reimburse Nano-C for the full amount.
ALL PRODUCTS ARE SOLD “AS-IS.” Buyer acknowledges that there may variations in the characteristics of Products. Nano-C warrants that Products will conform to the specifications set forth in the Acknowledgement. THIS EXPRESS WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER EXPRESS OR IMPLIED WARRANTIES. NANO-C EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. No employee or agent of Nano-C is authorized to make warranties about Products sold by Nano-C, and Buyer should not rely on any oral or written communications from employees or agents of Nano-C that purport to constitute a warranty. Defective Products may be returned to Nano-C only with the written consent of Nano-C and in accordance with its specific instructions. Products and found to be defective will be replaced without charge, but Nano-C shall not be liable for any loss or damage directly or indirectly arising from the use of such Products or from any other cause. Nano-C’s liability is expressly limited to the replacement of defective Products. IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL NANO-C BE LIABLE FOR INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND. Every claim on account of defective Products, short count, or for any other cause, shall be deemed waived by the Buyer unless made in writing within 30 days after Buyer’s receipt of the Products to which such claim relates.
11. Buyer’s Indemnity.
Buyer shall defend, indemnify and hold harmless Nano-C and its employees and agents against all sums, costs, liabilities, losses, obligations, suits, actions, damages, penalties, fines, interest and other expenses (including reasonable attorney’s fees) that Nano-C, or any of its employees, directors, officers and agents may incur that result from (i) Buyer’s negligence, use, ownership, maintenance, transfer, transportation or disposal of the Products sold hereunder, (ii) any infringement or alleged infringement of the intellectual property rights of others arising from Buyer-supplied specifications, or (iii) Buyer’ s violation or alleged violation of any federal, state, county or local laws or regulations, including without limitation, the laws and regulations governing product safety, labeling, packaging and labor practices. Buyer and Nano-C agree that all exports and re-exports of Products sold under these terms and conditions shall be made in accordance with all applicable export controls laws of the United States.
12. Proprietary Rights.
Nano-C retains exclusive rights in and to any proprietary information, data and materials related to the Products sold hereunder, as well as the rights to all discoveries, inventions, patents, know-how and other intellectual property rights that Nano-C may develop in the course of developing or manufacturing the Products. Buyer shall not “reverse engineer” any Products sold by Nano-C or otherwise attempt to obtain any intellectual property rights of Nano-C.
13. No Waiver.
Any concession or indulgence made by Nano-C or its failure to insist on performance of any of these terms and conditions shall not be considered a waiver of any other terms, whether the same or similar. No waiver by Nano-C of any default or provision hereof shall be deemed a waiver of any subsequent default or provision.
14. Governing Law.
These Standard Terms and Conditions shall be deemed to have been made in and shall be governed by the laws of The Commonwealth of Massachusetts, USA. Any legal action shall be resolved in courts located in The Commonwealth of Massachusetts, USA. Buyer and Nano-C specifically exclude and disclaim the application of the UN Convention on the Sale of Goods.