These terms and conditions shall apply to the sales of goods (“Products”) by P.V NanoCell Ltd. or one of its affiliates or subsidiaries (each, a “Seller”) to a party or parties purchasing Products (each, a “Buyer”), unless otherwise agreed in writing signed by an authorized representative of Seller. The term “Agreement” shall mean this General Terms of Sale, the Order and any other documents issued by Seller referencing the terms of this document.
1. Orders.
“Order” means the accepted order including any supporting material which the parties identify as incorporated either by attachment or reference. Buyer may place Orders with Seller through Seller’s website or by letter, fax or e-mail. Please note that a quotation by Seller does not constitute an offer and Seller reserves the right to withdraw or revise any quotation prior to time of its acceptance of an Order from Buyer. A contract for the sale of Products shall be formed at the time when Buyer’s Order is confirmed in writing or by means of electronic acknowledgement by Seller, or the date an Order is released by Seller for shipment, whichever occurs first.
2. Price and Tax.
The price applicable to any order accepted under an Agreement shall be the price stated in Seller’s order acknowledgement. Unless otherwise agreed in writing, Buyer shall be responsible for payment of all charges after the Ex-Works point, including freight and insurance charges.Any tax, duty or charge which Seller may be required to pay by any governmental authority (except taxes on Seller’s income), with respect to the sale of the Products or services covered hereby, including Value Added Tax, shall be for the account of Buyer,and any such charges may be added by Seller as a separate item to Seller’s invoices.
3. Delivery and Title.
Except as set forth in an Agreement, all stated delivery terms (eg EXW, CIP, etc.) shall have the meanings set forth in INCOTERMS 2010, with title to Products passing to Buyer at the point risk passes under the applicable Incoterm. Where permitted by law, Seller retains a security interest in Products sold until full payment is received. If noIncoterm is specified, the applicable Incoterm shall be Ex-Works, Seller facility in Migdal Haemek, Israel. Dates proposed by Seller for shipment are approximate and Seller shall not be liable for any delay in shipmentor delivery of Products. Time for delivery shall not be of the essence.
4. Payment.
All invoices are payable in full, according to the payment termsspecified on the invoice in the currency specified in the invoice. Buyer shall not have the right to suspend, retain or set off any amounts that are due. If Buyer fails to pay any invoice in full when due, or if Seller shall have any doubt atany time as to Buyer’s financial capability, Seller may, without prejudice to any other lawful remedies, defer and/or decline to make further shipments. Seller reserves the right to request payment or other form of security prior to delivery.In addition, Seller may charge a late fee specified on the invoice on any overdue amounts.
5. Limited Warranty.
The Seller warrants all Products to be supplied by Seller to Buyer shall, on the date the order is released for shipment, meet Seller’s product specifications as detailed in the Certificate of Analysis enclosed to the Product. Claims in respect of any Products at any time sold or agreed to be sold by Seller, including claims on account of weight, quality, loss or damage to said Products, are waived by Buyer unless made in writing within 30 days after arrival thereof at destination. In case of a timely claim concerning quality, Buyer shall promptly furnish to Seller appropriate samples of nonconforming Product for testing and analysis. Seller makes no warranty, either express or implied, as to the accuracy or completeness or the results to be obtained from any technical advice furnished or recommendation made by Seller or a representative of Seller concerning any use or application of the Products.Buyer assumes full responsibility for quality control, testing and determination of suitability of a Product for Buyer’s intended application or use. The warranties set forth in this paragraph extend only to the Buyer.
6. Warranty Disclaimer.
THE LIMITED WARRANTY ABOVE SETS FORTH THE SOLE WARRANTY OF SELLER WITH RESPECT TO ANY PRODUCTS AT ANY TIME SOLD TO BUYER OR ANY TECHNICAL ADVICE FURNISHED OR RECOMMENDED BY SELLER. ALL OTHER WARRANTIES AND REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING UNDER STATUTE, ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR NON INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. THIS SHALL APPLY WHETHER THE PRODUCTS ARE USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES OR MATERIALS, EVEN IF THE PURPOSES OR USES OF SUCH PRODUCTS ARE KNOWN BY SELLER OR IF SELLER HAS BEEN INVOLVED IN THE ANALYSIS OF THE PURPOSES OR USES OF SUCH PRODUCTS OR HAS PROVIDED ANY RECOMMENDATIONS, ASSISTANCE OR INSTRUCTIONS IN CONNECTION THEREWITH. BUYER ACCEPTS AND ASSUMES ALL RESPONSIBILITY, RISK AND LIABILITY FOR, AND AGREES TO DEFEND, INDEMNIFY AND HOLD SELLER HARMLESS FROM AND AGAINST, ANY CLAIMS OR LIABILITIES RELATING TO ANY SUCH PRODUCTS OR ANY GOODS MANUFACTURED BY BUYER CONTAINING ANY SUCH PRODUCTS PROVIDED BY SELLER.
7. Limitation of Liability.
Seller’s liability for any claim in respect of any Products at any time sold or agreed to be sold by Seller, is limited to, at Seller’s option (i) replacing the particular quantity of nonconforming Product or (ii) refunding the purchase price of the particular quantity of nonconforming Product returned to Seller. IN NO EVENT SHALL SELLER’S LIABILITY TO BUYER (WHETHER AS TO PRODUCT DELIVERED OR FOR NON-DELIVERY OF PRODUCT) SHALL BE GREATER THAN THE PURCHASE PRICE OF THE PRODUCT TO WHICH THE CLAIM RELATES. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, IN NO EVENT SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER OR ANY THIRD PARTY UNDER ANY THEORY OF LAW FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS OR OTHER ECONOMIC LOSS) EVEN IF ADVISED OF THE POSSIBILITY THEREOF.
8. Product Warnings.
Nanopowder and nanopowder dispersions have a variety of associated hazards. The hazards associated with nanometer-scale particles of a particular chemistry may be greater in degree or different in character from the hazards associated with larger particles of the same chemistry. By placing an Order for the Product, the Buyer represents that it is familiar with the hazards associated with the Products, it has ready any written warnings published by Seller, and is equipped and trained appropriately to deal with those hazards. Buyer undertakes to exercise the degree of care required to protect persons and properties from all hazards of the Products.
9. Intellectual Property Rights.
No transfer of ownership of any intellectual property will occur under this Agreement.
10. Force Majeure.
Neither party will be liable for performance delays nor for non-performance due to causes beyond its reasonable control, except for payment obligations.
11. General.
This Agreement represents our entire understanding with respect to its subject matter and supersedes any previous communication or agreements that may exist. Modifications to the Agreement will be made only through a written amendment signed by both parties. The Agreement will be governed by the laws of the country of Seller or the Seller’s Affiliate accepting the Order and the courts of that locale will have exclusive jurisdiction, however, Seller or its Affiliate may, bring suit for payment in the country where the Buyer is located. Parties agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.