801-0132 Revision Date: August 2015 Rev 7
1. GENERAL: The terms and conditions of sale contained herein (the “Terms and Conditions”) apply to all quotations made and all purchase orders (the “Purchase Orders”) entered into by Delta-Q Technologies Corp. (“Delta-Q”) and the buyer named in such Purchase Order (the “Buyer”). Delta-Q’s acceptance of any Purchase Order by confirmation or commencement of performance shall be on the basis of the Terms and Conditions. The Terms and Conditions constitute the entire agreement between Delta-Q and the Buyer. No terms or conditions contained in any proposal, acknowledgement or other writing, whether or not such terms or conditions conflict with the Terms and Conditions, shall have any effect and only the Terms and Conditions shall apply, provided, however, that if the parties enter into a supply agreement, the terms of such supply agreement shall apply in the event of any conflict with the Terms and Conditions applicable to the Purchase Order. A supply agreement will take effect only upon its full execution by duly authorized representatives of the Buyer and Delta-Q.
2. ACCEPTANCE OF ORDERS – The Buyer agrees to obtain from Delta-Q the product (the “Product”) and/or service (the “Service”) as set forth in the Purchase Order, which Product may include, without limitation, certain battery chargers and accessories. Purchase Orders from the Buyer are subject to acceptance by Delta-Q, and Delta-Q reserves the right to accept or reject any Purchase Orders in whole or in part. All Purchase Orders must include the Buyer’s Purchase Order number, complete bill-to and ship-to addresses, the purchasing agent or the Buyer’s name and title, contact information, and a complete description of the Product being ordered, including Delta-Q’s part number and quoted price.
3. PRICES – Prices are quoted as a function of anticipated annual volume. Prices are subject to change according to the price-volume matrix quoted by Delta-Q based on actual volume purchased in each preceding calendar year. Prices are also subject to change in the event of an increase in Delta-Q’s costs including, but not limited to, increases in components, base metal, manufacturing, transportation, duty, brokerage and other direct costs. Delta-Q will provide the Buyer with 60 days’ written notice of any price changes.
4. TAXES – Prices are exclusive of, and the Buyer shall pay, all present or future taxes, duties, tariffs, levies or fees, or other similar charges imposed on Delta-Q or on the Buyer by any taxing authority (other than taxes imposed on Delta-Q’s income) related to the Buyer’s Purchase Order. Buyers who are tax-exempt must provide a valid tax exempted certificate concurrent with their Purchase Order.
5. TRANSPORTATION – The Product is shipped from EXW Delta-Q’s warehouse (Burnaby, BC, Canada), with duty paid to the United States, unless otherwise quoted. Title passes to the Buyer upon Delta-Q’s completion of the loading of the Product upon the carrier’s vehicle at the point of shipment. All risks of damage, loss or destruction of the Product shall pass with title to the Product. All claims for loss or damage must be filed by the Buyer with the carrier. Unless specific instructions are given by the Buyer, Delta-Q reserves the right to select carrier and routing
6. DELIVERY – Shipping dates are approximate and are based on prompt receipt from the Buyer of all necessary information. Delta-Q reserves the right to make partial shipments. Delta-Q will not pay for any penalty or damage, whether liquidated or otherwise, for late delivery. Freight charges are the responsibility of the Buyer, unless otherwise agreed to in writing. Based on the type of Product ordered and available shipping methods, Delta-Q may decide to prepay the freight charges and add a corresponding amount to the invoice.
7. LEAD TIMES – The Buyer shall provide Delta-Q with a six-month rolling demand forecast in order for Delta-Q to plan production requirements, and firm Purchase Orders are required eight weeks prior to the required shipment date. Product delivery lead times will vary due to a number of factors including manufacturing capacity, physical stock availability and location, component availability, shipping duration and the accuracy of the Buyer’s Product demand forecast provided to Delta-Q. Delta-Q will confirm current lead times at the time of order. The Buyer is responsible for expedited freight for any items ordered or increased without sufficient lead-time.
8. PAYMENT AND TERMS – Where the Buyer has provided Delta-Q with appropriate credit information and Delta-Q has granted credit terms to the Buyer, all invoices are due and payable within 30 days from the date of the invoice. Invoices remaining unpaid after their due date will be subject to an interest of 2.0% per month (or the maximum rate allowed in the Buyer’s jurisdiction, if lower) from their due date until the remaining amount is fully paid. The Buyer will pay all costs and expenses of the collection of overdue accounts, including reasonable attorney’s fees and fees and expenses of any expert retained by Delta-Q.
If, in the judgment of Delta-Q, the financial condition of the Buyer at any time does not allow Delta-Q to grant or continue to grant credit terms to the Buyer, Delta-Q may require full or partial payment or a letter of credit acceptable to Delta-Q, in advance of shipment.
In the event of bankruptcy or insolvency by the Buyer or in the event any proceeding is brought by or against the Buyer under bankruptcy or insolvency laws, Delta-Q shall be entitled to cancel any Purchase Order then outstanding and the Buyer will pay Delta-Q a 20% Cancellation Fee, as detailed below in Section 16.
9. DATA COLLECTION – The Buyer acknowledges and agrees that Delta-Q may use certain data generated by, and/or collected from, the Products sold to the Buyer for any purpose, including, without limitation: (a) the geographic location; (b) specifications and product model; (c) usage such as charging profile, temperature, alternating current (AC) power quality and times of usage; (d) condition or status including age, health and faults; (e) manufacturer; and (f) serial numbers or unique identifiers of Product and batteries used in connection with the Products (the “Data”). The Buyer acknowledges that part of the provision of the Products and Services provided by Delta-Q may entail the collection of the Data by Delta-Q or by third-party service providers to enable Delta-Q to better provide such Products and Services, and the Buyer agrees to the collection and such use of the Data by Delta-Q. If applicable, the Data will be collected in accordance with applicable privacy laws.
10. INTELLECTUAL PROPERTY –
(a) The performance by Delta-Q of its obligations hereunder shall not confer, and no express or implied term of the Terms and Conditions conveys or licenses, to the Buyer, any designs, patent rights, copyrights, trademarks, trade names, know-how, software or algorithms and any intellectual property therein or relating thereto, the Data, trade secrets or other intellectual property rights which are protected by domestic and international laws and regulations (collectively, the “Intellectual Property”) in, incidental to the provision of, used with, or generated or collected from, the Products or Services, or any modifications, enhancements, changes or new proprietary information that is developed in relation to, or generated from, the Products or Services (the “Improvements”), and the Buyer acknowledges Delta-Q’s exclusive rights thereto. All rights to the Products, Services, Intellectual Property and any Improvements are owned by Delta-Q, its affiliates or licensors, and Delta-Q, its affiliates and licensors (as applicable) retain all rights in and to the Products, Services, Intellectual Property and all Improvements. Any rights not expressly granted in the Terms and Conditions are expressly reserved by Delta-Q.
(b) To the extent any Intellectual Property or Improvements do not immediately vest in Delta-Q, the Buyer hereby assigns all right, title and interest in and to such Intellectual Property and Improvements to Delta-Q. The Buyer covenants and agrees to do all such other things and to execute, or have executed, without further consideration, such documents as may be required for assigning, transferring, conveying and securing to Delta-Q the exclusive right, title, property, benefit and interest in and to the Intellectual Property in the Products, Services and all Improvements.
(c) Except as explicitly stated herein, the Buyer is prohibited from using Delta-Q’s Intellectual Property for any purpose, other than as expressly permitted by Delta-Q in writing. The Buyer shall maintain confidentiality with respect to Delta-Q’s Intellectual Property, and shall not use it for its own, or any third party’s purposes.
(d) Notwithstanding the foregoing, and provided that the Buyer has paid all amounts due to Delta-Q, Delta-Q grants to the Buyer a limited, revocable, non-exclusive, royalty-free, non-sublicensable right to access and use the Data for the Buyer’s personal or internal business use only, in connection with the Buyer’s use of the Products in accordance with the Terms and Conditions. The Buyer shall not have any interest in the Data except for the right granted herein. The Buyer represents and warrants that its use of the Data will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law.
11. LIMITED WARRANTY – Delta-Q warrants the Product sold by it to be free from defects in materials and workmanship, to equal or exceed the applicable published ratings and specifications at the time of shipment or, in the case of Buyer-specific Product or prototypes, the specifications agreed upon, under proper use and storage, for a period of twenty-seven (27) months from the date of the original shipment, subject to exclusions below. The Buyer’s acceptance of the first article of the Product shall be proof that the design meets its specification. Delta-Q does not warrant that its Products will be fit for the Buyer’s purpose. Additionally, Delta-Q does not provide a warranty on Buyer-specified connectors sold in conjunction with its Products.
The foregoing warranties and remedies are exclusive and Delta-Q shall have no further or additional obligation with respect to any Product sold to the Buyer. Except as expressly provided in the Terms and Conditions, Delta-Q excludes all express or implied warranties, conditions and obligations of Delta-Q, whether statutory or otherwise, concerning the quality of the Product, its fitness for any purpose, noninfringement and any warranties arising from a course of dealing or usage of trade.
12. WARRANTY LIMITATIONS – Delta-Q’s entire liability and obligation to the Buyer under Section 11 shall be expressly limited to the repair, replacement or crediting, as Delta-Q may determine at its sole discretion, of any defective or non-conforming Product for which the Buyer has first given written notice to Delta-Q of such defect or non-conformity. The limited warranty under Section 11 does not apply in the case of: (a) non-conformities, defects or errors in any Products due to accident, abuse, misuse or negligent use of the Products, use of the Products in a manner other than as intended by Delta-Q, use of the Products in environmental conditions not conforming to Delta-Q’s instructions, or failure to follow operating maintenance procedures prescribed by Delta-Q with respect to the Products; (b) defects, errors or non-conformities in any Products due to normal wear and tear; (c) damage to any Products caused by force of nature or act of any third party; or (d) any third party products or products that are otherwise not considered by Delta-Q to be Delta-Q’s standard Products, including, without limitation, any custom algorithms or software within the Products, which Delta-Q may supply from time to time to the Buyer, or source for the Buyer from a third party, upon the Buyer’s request.
13. RETURN POLICY – The Buyer must obtain a Return Material Authorization (“RMA”) number from Delta-Q prior to shipping any Product back to Delta-Q. All Returns are to be shipped to Delta-Q by the Buyer according to Delta-Q’s instructions and at Delta-Q’s expense. The Buyer will be levied a US$50 per unit test charge as well as an inbound shipping charge for all in-warranty Products returned and found to be functional by Delta-Q. The Buyer will not receive a credit on such Product. Delta-Q will, at its discretion, either: (i) repair the in-warranty Products found to be faulty and return them to the Buyer with the Buyer’s next scheduled shipment; or (ii) provide a credit to the Buyer’s account at the price of the Product. If, in the sole opinion of Delta-Q, the in-warranty Product has been dismantled, altered or repaired by any individual or entity other than Delta-Q or its authorized representative, or has been damaged in any manner by the Buyer, the warranty claim will be denied and the shipping cost will be invoiced to the Buyer. Out-of-warranty Products which are repairable will be repaired at Delta-Q’s current repair rates and returned to the Buyer per its instructions.
14. LIMITATION OF LIABILITY – Delta-Q’s total liability, if any, for any damages suffered by the Buyer, or any other party claiming on behalf of or through the Buyer, or any other third party, whether in contract, tort, warranty, or otherwise, shall be limited to direct money damages actually incurred, and shall not exceed the amount of money paid to Delta-Q by the Buyer for the Product giving rise to such claim. Delta-Q shall not be liable for and the Buyer shall indemnify, defend, and hold Delta-Q harmless from any claims based on Delta-Q’s compliance with the Buyer’s designs, specifications or instructions, or modifications of any Products by parties other than Delta-Q, or use in combination with other items. Under no circumstances shall Delta-Q be liable for any alleged, indirect, special, incidental, exemplary, punitive, or consequential damages suffered by the Buyer, by any party claiming on behalf of or through the Buyer, or by any other party resulting from or arising out of the purchase of Products and Services from Delta-Q, including loss of business or profits, business interruption or damage or destruction of data, even if Delta-Q has been previously advised of the possibility of such damages. No action, regardless of form or basis arising out of the transactions hereunder may be brought by the Buyer after one (1) year following the time in which the Buyer knew or should have known the occurrence of the event(s) which gave rise to such action. Delta-Q hereby disclaims any duty to indemnify the Buyer, any party claiming on behalf of or through the Buyer, or any other party.
15. USE OF LITHIUM BATTERIES –-In applications where a Delta-Q Product is being used to charge lithium ion battery packs, the Buyer acknowledges that the application requires an external battery management system (BMS) to manage the charge of the lithium ion battery, and that at no time is the Product directly managing the charging of the battery pack or sensing the status of the individual cells in the battery pack. As the Delta-Q Product is at no time directly controlling the charge of the lithium ion battery, in no event will Delta-Q be held liable for any damages to the batteries, or caused by the batteries.
16. FORCE MAJEURE – Delta-Q shall not be liable for any failure or delay in manufacture or delivery resulting from any cause beyond the reasonable control of Delta-Q, including by way of illustration and not by way of limitation, compliance by Delta-Q with any government or military regulation, or from acts of God, fires, or other casualty or accident, strikes, lockouts, factory shutdowns, or alterations, embargoes, riots or other disorders, delays or shortages in transportation, or inability to obtain sufficient quantity of fuel, power, labor, manufacturing facilities of materials or other supplies from the usual sources of Delta-Q. Neither shall Delta-Q be held to the price of the Product in the Purchase Order, in the event that the cost of materials needed for Delta-Q’s manufacturing process of the Product, as a result of events listed in this Section 15, and being beyond the reasonable control of Delta-Q, would increase beyond what is normally expected during the Term (defined below). Should such cost increases occur, Delta-Q and the Buyer agree to re-negotiate the price for the Product based on the actual cost increases to Delta-Q for the Buyer’s Product as a result of said price increases of materials used in the manufacturing of the Product in question.
17. TERM AND TERMINATION – The Terms and Conditions will remain in effect until terminated or the Product or Service as set out in the Purchase Order is completed and accepted by the Buyer (the “Term”). The Buyer acknowledges that Delta-Q will purchase in advance the materials and supplies to fulfill each Buyer’s Purchase Order. If the Buyer wishes to cancel the Purchase Order prior to the completion of the Term, or if Delta-Q terminates the Purchase Order as a result of the Buyer’s breach of the Terms and Conditions, including, without limitation, by non-payment of any amounts due to Delta-Q hereunder, the Buyer agrees to pay to Delta-Q a cancellation charge equal to 20% of the value of the Product or Service as set out in the Purchase Order, or the value of materials purchased and work performed on the cancelled Purchase Order at the time of cancellation, whichever is greater (the “Cancellation Fee”). There shall be no cancellation by the Buyer for any Product after it has been loaded onto a carrier for shipment.
18. AMENDMENT – No change, modifications or amendments to the Purchase Order shall be valid unless agreed to in writing and signed by a duly authorized representative of Delta-Q or acknowledged by way of issuance of a revised Purchase Order by Delta-Q.
19. NO WAIVER – No failure or delay by Delta-Q to exercise any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof, or the exercise of any other right, power or privilege.
20. PARTIAL INVALIDITY – If, in any instance, any provision of the Terms and Conditions shall be determined to be invalid or unenforceable under any applicable law, such provision shall not apply in such instance, but the remaining provisions shall be given effect in accordance with their terms.
21. ADDITIONAL TERMS – The Terms and Conditions shall be governed by and be interpreted in accordance with the laws of British Columbia, Canada, without giving effect to the choice of law provisions thereof. The Buyer and Delta-Q agree to submit to the personal jurisdiction of the provincial and federal courts of the Province of British Columbia with respect to conflicts that arise under the Terms and Conditions. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, and further exclude the application of the International Sale of Goods Contracts Convention Act (Canada) and the international sales of goods legislation of each province and territory in Canada, in each case as amended, replaced or re-enacted from time to time.
22. LANGUAGE. – The parties hereby acknowledge that they have required the Terms and Conditions and any and all schedules to be drawn up in the English language. Les parties reconnaissent avoir demandé que la présente convention et tous les documents s’y attachent soit rédigés en langue Anglaise.
23. APPLICATION – The Buyer acknowledges that the Terms and Conditions will apply to all Purchase Orders entered into between the Buyer and Delta-Q, provided that, if the parties have entered into a supply agreement, the supply agreement will prevail in the event of any conflict between the supply agreement and the Terms and Conditions.