The
following are the Terms and Conditions of Sale applicable to Orion Power
Systems sale of products:
Orion
Power Systems, Inc. Corporation is herein referred to as the “Seller”
and the purchaser is herein referred to “Buyer” who is purchasing goods and/or
services (“Goods”) and/or licensing software and/or firmware, which
are preloaded, or to be used with Goods (“Software”) from Seller is
referred to as the “Buyer.” This Master Purchase Agreement
(“Agreement”), any price list or schedule, quotation, acknowledgment, Seller’s
scope of work, or invoice from Seller relevant to the sale of the Goods and
licensing of Software and all documents incorporated by specific reference
herein or therein, constitute the complete and exclusive statement of the terms
of the agreement governing the sale of Goods and/or license of Software by
Seller to Buyer. Seller’s acceptance of Buyer’s online order or purchase order
is expressly conditional on Buyer’s assent to all of Seller’s terms and
conditions of sale, including terms and conditions that are different from or
additional to the terms and conditions of Buyer’s purchase order. Buyer’s
acceptance of the Goods and/or Software will manifest Buyer’s assent to this
Agreement. Seller reserves the right in its sole discretion to refuse orders.
This Authorized Reseller Partner Program Page 4 of 6 Agreement covers all
orders placed by Buyer outside of the Reseller (VAR) website from the date of
Buyer’s signature below (Effective Date”) regardless of whether this Agreement
is referenced in Buyer’s Purchase Order.
1. TAXES:
Any current or future tax or governmental charge (or increase in same)
affecting Seller’s costs of production, sale, or delivery or shipment, or which
Seller is otherwise required to pay or collect in connection with the sale,
purchase, delivery, storage, processing, use or consumption of Goods, Parts,
and/or Software, shall be for Buyer’s account and shall be added to the price
or billed to Buyer separately, at Seller’s election..
2.
SHIPMENT AND DELIVERY: While Seller will use all reasonable commercial efforts
to maintain the delivery date(s) and/or performance dates acknowledged or
quoted by Seller, all shipping dates and/or performance dates are approximate
and not guaranteed. Seller reserves the right to make partial shipments Seller,
at its option, shall not be bound to tender delivery of any Goods, Parts,
and/or Software for which Buyer has not provided shipping instructions and
other required information. Seller shall make a commercially reasonable effort
to provide Buyer with notification of delivery forty-eight (48) hours in
advance of said delivery. If the shipment of the Goods, Parts, and/or Software
is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse
Seller for any and all storage costs and other additional expenses resulting
there from. For all shipments, risk of loss and legal title shall pass from
Seller to Buyer upon delivery to and receipt by carrier at Seller’s shipping
point. All shipments of Goods, Parts, and/or Software are F.O.B. Seller’s
shipping point. Any claims for shortages or damages suffered in transit are the
responsibility of Buyer and shall be submitted by Buyer directly to the
carrier. Shortages or damages must be identified and signed for at the time of
delivery.
3. EXCUSE
OF PERFORMANCE: Seller shall not be liable for delays in performance or for
non-performance due to acts of God; acts of Buyer; war; epidemic; fire; flood;
weather; sabotage; strikes or labor disputes; civil disturbances or riots;
governmental requests, restrictions, allocations, laws, regulations, orders or
actions; unavailability of or delays in transportation; default of suppliers;
or unforeseen circumstances or any events or causes beyond Seller’s reasonable
control. Deliveries or other performance may be suspended for an appropriate
period of time or canceled by Seller upon notice to Buyer in the event of any
of the foregoing, but the balance of the agreement shall otherwise remain
unaffected as a result of the foregoing. If Seller determines that its ability
to supply the total demand for the Goods, Parts, and/or Software, or to obtain
material used directly or indirectly in the manufacture of the Goods, Parts,
and/or Software, is hindered, limited or made impracticable due to causes set
forth in the preceding paragraph, Seller may allocate its available supply of
the Goods, Parts, Software, and/or such material (without obligation to acquire
other supplies of any such Goods, Parts, Software, or material) among its
purchasers on such basis as Seller determines to be equitable without liability
for any failure of performance which may result there from.
4.
CANCELLATION: Buyer may cancel orders only upon reasonable advance written
notice and upon payment to Seller of Seller’s cancellation charges which
include, among other things, all costs and expenses incurred, and, to cover
commitments made, by the Authorized Reseller Partner Program Page 5 of 6 Seller
and a reasonable profit thereon. Seller’s determination of such cancellation
charges shall be conclusive.
5.
NUCLEAR/MEDICAL: GOODS, PARTS, AND SOFTWARE SOLD HEREUNDER ARE NOT FOR USE IN
CONNECTION WITH ANY NUCLEAR, MEDICAL LIFE[1]SUPPORT
AND RELATED APPLICATIONS. Buyer accepts Goods, Parts, and Software with the
foregoing understanding, agrees to communicate the same in writing to any
subsequent purchasers or users and to defend, indemnify and hold harmless
Seller from any claims, losses, suits, judgments and damages, including
incidental and consequential damages, arising from such use, whether the cause
of action be based in tort, contract or otherwise, including allegations that
the Seller’s liability is based on negligence or strict liability.
6.
ASSIGNMENT: Buyer shall not assign its rights or delegate its duties hereunder
or any interest herein without the prior written consent of Seller, and any
such assignment, without such consent, shall be void.
7.
SOFTWARE: Notwithstanding any other provision herein to the contrary, Seller or
applicable third party licensor to Seller shall retain all rights of ownership
and title in its respective Software, including without limitation all rights
of ownership and title in its respective copies of such Software. Except as
otherwise provided herein, Buyer is hereby granted a nonexclusive,
non-transferable royalty free license to use the Software incorporated into the
Goods solely for purposes of Buyer properly utilizing such Goods purchased from
Seller. All other Software shall be furnished to, and used by, Buyer only after
execution of Seller’s (or the licensor’s) applicable standard license
agreement, the terms of which are incorporated herein by reference.
8.
RETURNED GOODS: Advance written permission to return Goods and/or Software must
be obtained from Seller in accordance with Seller’s then current Return
Material Authorization (RMA) procedures and a return authorization number
issued. Such Goods and/or Software must (i) be current, unused Goods and/or
Software, (ii) be free of all liens, encumbrances, or other claims, and (iii)
be shipped, transportation prepaid, to Seller’s specified location (iv) include
all original packaging, software, cables, and manuals. Returns made without
proper written permission will not be accepted by Seller. Seller reserves the
right to inspect Goods and/or Software prior to authorizing return.
9.
EXPORT/IMPORT: Buyer agrees that all applicable import and export control laws,
regulations, orders and requirements, including without limitation those of the
United States and the European Union, and the jurisdictions in which the Seller
and Buyer are established or from which Goods, Parts, Software, and Services
may be supplied, will apply to their receipt and use. In no event shall Buyer
use, transfer, release, import, export, Goods, Parts, or Software in violation
of such applicable laws, regulations, orders or requirements.
10.
NON-SOLICITATION: Buyer shall not solicit, directly or indirectly, or employ
any employee of Seller during the period any Goods are being provided to Buyer
and for a period of one (1) year after the last provision of Goods.
11.
GENERAL PROVISIONS: These terms and conditions supersede all other
communications, negotiations and prior oral or written statements regarding the
subject matter of these terms and conditions. No change, modification,
rescission, discharge, abandonment, or waiver of these terms and conditions
shall be binding upon the Seller unless made in writing and signed on its
behalf by a duly authorized representative of Seller. No conditions, usage of
trade, course of dealing or performance, understanding Authorized Reseller
Partner Program Page 6 of 6 or agreement purporting to modify, vary, explain,
or supplement these terms and conditions shall be binding unless hereafter made
in writing and signed by the party to be bound, and no modification or
additional terms shall be applicable to this agreement by Seller’s receipt,
acknowledgment, or acceptance of purchase orders, shipping instruction forms,
or other documentation containing terms at variance with or in addition to
those set forth herein. Any such modifications or additional terms are
specifically rejected and deemed a material alteration hereof. If this document
shall be deemed an acceptance of a prior offer by Buyer, such acceptance is
expressly conditional upon Buyer’s assent to any additional or different terms
set forth herein. No waiver by either party with respect to any breach or
default or of any right or remedy, and no course of dealing, shall be deemed to
constitute a continuing waiver of any other breach or default or of any other
right or remedy, unless such waiver be expressed in writing and signed by the
party to be bound. All typographical or clerical errors made by Seller in any
quotation, acknowledgment or publication are subject to correction. The
validity, performance, and all other matters relating to the interpretation and
effect of this agreement shall be governed by the law of the state of Florida
without regard to its conflict of laws principles. Buyer and Seller agree that
the proper venue for all actions arising in connection herewith shall be only
in Florida and the parties agree to submit to such jurisdiction. No action,
regardless of form, arising out of transactions relating to this contract, may
be brought by either party more than two (2) years after the cause of action
has accrued. The U.N. Convention on Contracts for the International Sales of
Goods shall not apply to this agreement.
Latest
Revision Date: 06/29/2023