General Terms and Conditions of Sale

Effective: 20 July 2022

Hummingbird Nano, Inc. (“Seller”) hereby offers for sale to the buyer named in the order (“Buyer”) the products and/or services (“Products”) named in the order, on the express condition of Buyer’s acceptance (which may be made through written acceptance, issuance of a purchase order, and/or acceptance by Buyer of Seller’s goods or services or Buyer’s implementation of any of Seller’s design or technical consultation, advice, or recommendations) of the express terms of these General Sale Terms and Conditions (“General Terms”) including any terms or conditions that are additional to or different from Buyer’s terms or conditions. In any case, Seller rejects any terms or conditions contained in Buyer’s purchase order or other documents which are different from or in addition to these General Terms, and the same shall not become part of the contract.

 

Price All prices published by Seller or quoted by Seller's representatives may be changed at any time without notice. All prices quoted by Seller or Seller's representatives are valid for thirty (30) days, unless otherwise stated in writing. All prices for the Products will be as specified by Seller or, if no price has been specified or quoted, will be Seller's price in effect at the time of shipment. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of production, shipment arrangements or other terms or conditions which are not part of Seller's original price quotation.

 

Taxes and Other Charges Prices for the Products exclude all sales, value-added and other taxes and duties imposed with respect to the sale, delivery, or use of any Products covered hereby, all of which taxes and duties must be paid by Buyer. If Buyer claims any exemption, Buyer must provide a valid, signed certificate or letter of exemption for each respective jurisdiction.

 

Payment Terms Seller may invoice Buyer upon shipment for the price and all other charges payable by Buyer in accordance with the terms on the face hereof. If no payment terms are stated on the face hereof, payment shall be net thirty (30) days from the date of invoice. If Buyer fails to pay any amounts when due, Buyer shall pay Seller interest thereon at a periodic rate of one and one-half percent (1.5%) per month (or, if lower, the highest rate permitted by law), together with all costs and expenses (including without limitation reasonable attorneys' fees and disbursements and court costs) incurred by Seller in collecting such overdue amounts or otherwise enforcing Seller's rights hereunder. Seller reserves the right to require from Buyer full or partial payment in advance, or other security that is satisfactory to Seller, at any time. All payments shall be made in U.S. Dollars.

 

Delivery; Cancellation or Changes by Buyer The Products will be shipped to the destination specified by Buyer, F.O.B. Seller's shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Buyer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller's reasonable control. In the event of a delay due to any cause beyond Seller's reasonable control, Seller reserves the right to terminate the order, or any part of the order so affected, or to reschedule shipment within a reasonable period of time, and Buyer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay. Products as to which delivery is delayed due to any cause within Buyer's control may be placed in storage by Seller at Buyer's risk and expense and for Buyer's account. Orders in process may be canceled by Buyer only with Seller's written consent and upon payment of Seller's cancellation charges. Orders in process may not be changed by Buyer except with Seller's written consent and upon agreement by the parties as to an appropriate adjustment in the purchase price therefore. Credit will not be allowed for Products returned without the prior written consent of Seller. Notwithstanding the trade terms indicated above and subject to Seller's right to stop delivery of Products in transit, title to and risk of loss of the Products will pass to Buyer upon delivery of possession of the Products by Seller to the carrier; provided, however, that title to any software incorporated within or forming a part of the Products shall at all times remain with Seller or the licensor(s) thereof, as the case may be.

 

Intellectual Property Rights All intellectual property rights with respect to the goods, the work product of Seller (including all drawings, designs, specifications, and other works of authorship) and the equipment or tooling of Seller will be and remain the sole property of Seller, and Buyer shall acquire no interest therein. No license is hereby granted to Buyer.

 

Use and Safety Buyer acknowledges that it is Buyer’s responsibility to provide proper safety devices and equipment for the particular application or use intended by Buyer so as to protect users and others from harm. Buyer will comply with all federal, state, and local laws, rules and regulations relating to safety and with all industry safety standards.

 

NO WARRANTIES SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE GOODS SOLD TO BUYER. SELLER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FREEDOM FROM INFRINGEMENT CLAIMS, OR FITNESS FOR A PARTICULAR PURPOSE.

 

Design or Technical Consultation All design or technical consultation, advice, recommendations, and services of Seller are based upon Buyer’s specifications and NO EXPRESS OR IMPLIED WARRANTY OR REPRESENTATION IS GIVEN BY SELLER INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Seller assumes no obligation or liability for the design or technical consultation, advice, recommendations, and services given, or results obtained, it being acknowledged and agreed by Buyer that all such design or technical consultation, advice, recommendations, and services are being accepted by Buyer at Buyer’s risk. Buyer acknowledges that it alone has determined that the goods purchased hereunder will suitably meet the requirements of their intended use. Buyer will indemnify and hold Seller harmless from and against all damages, costs and expenses based upon any claim related to design or technical consultation or advice given by Seller.

 

Limitation of Damages SELLER SHALL HAVE NO LIABILITY FOR LOST PROFITS OR REVENUE OR FOR ANY

CONSEQUENTIAL, INCIDENTAL, OR OTHER INDIRECT DAMAGES, WHETHER ARISING IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH LOST PROFITS OR DAMAGES. SELLER’S DIRECT DAMAGES ARE LIMITED TO THE CONTRACT PRICE AND SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY DAMAGES IN EXCESS OF THE PRICE PAID TO SELLER HEREUNDER.

 

Enforcement Costs To the extent permitted by law, Buyer shall be liable for all reasonable costs and expenses (including reasonable attorneys’ fees and costs) incurred by Seller in enforcing its rights and remedies against Buyer.

 

Law and Jurisdiction These General Terms and all transactions between Seller and Buyer shall be governed by the laws of Kentucky, without regard to conflict of laws principles. Any action or proceeding arising out of these General Terms or any transaction between Seller and Buyer shall be brought, and thereafter maintained, exclusively in a state or federal court located in Fayette County, Kentucky, and each party irrevocably consents to the jurisdiction of such courts.

 

Entire Agreement These General Terms and any proposal, quotation, acknowledgement or invoice to which they are attached constitute the entire agreement of the parties with respect to the subject matter hereof, and supersede all prior oral or written statements of any kind made by the parties or their representatives. No modification of these General Terms shall be binding unless expressly agreed to in writing signed by the party to be bound thereby.