Terms and Conditions - Product Sales

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Rev 2021.01.26

SIMPLIPHI POWER, INC.

Terms and Conditions

TERMS & CONDITIONS APPLYING TO ALL SALES OF PRODUCTS AND SERVICES OFFERRED BY

SIMPLIPHI POWER, INC. (“PHI”):

1. Defined Terms: The following terms shall have the following meanings:

A. “Acceptance” has the meaning ascribed to it in Section 3.C.

B. “Buyer” means any person or entity that submits a Purchase Order to PHI.

C. “Confidential Information” means information that is designated as confidential or should

reasonably be understood to be confidential.

D. “Contract” means, with respect to a Product or a Service, the combination of a Purchase Order and

the Acceptance thereof by PHI.

E. “Days” means calendar days unless otherwise stated.

F. “Dispute” has the meaning ascribed to that term in Section 19.A.

G. “Estimated Ship Date” or ESD means the date estimated by PHI for shipment of a Product to Buyer.

H. “Express Warranty” has the meaning ascribed to it in Section 13.

I. “Final Invoice” means, with respect to any sale of a Product or Service, the actual invoice for

Payment issued by PHI to Buyer.

J. “Force Majeure Event” means any event or circumstance outside of PHI’s reasonable control,

including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant

or machinery or shortage or unavailability of raw materials from a natural source of supply as well

as national or regional emergencies, natural disasters, acts of terrorism, government acts or orders,

epidemics, pandemics, communicable diseases, and quarantine

K. “Party” or “party” means PHI or Buyer as the case may be; the term “Parties” or “parties” means,

collectively, PHI and Buyer.

L. “Payment” means PHI has received cleared funds from Buyer in PHI’s bank account on or before

the invoice due date.

M. “PHI” means SimpliPhi Power, Inc., a Delaware corporation.

N. “PHI’s Designated Shipping Point” means PHI’s manufacturing facility located in Oxnard,

California, or, if PHI has manufactured or assembled, or caused to be manufactured or assembled,

the Product at a manufacturing or assembly plant other than its Oxnard, California, facility then the

site of such other manufacturing or assembly plant.

O. “PHI’s website” means www.simpliphipower.com

P. “Product” or “product” means any product offered for sale by PHI. For clarity, and without

limitation, such term excludes Services.

Q. “Purchase Order” has the meaning ascribed to it in Section 3.B.

R. “Representatives” shall have the meaning ascribed to that term in Section 20.

S. “Sample” means a Product that PHI provides to Buyer free of charge for evaluation or testing

purposes.

Summary of content (16 pages)

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SIMPLIPHI POWER, INC. Terms and Conditions TERMS & CONDITIONS APPLYING TO ALL SALES OF PRODUCTS AND SERVICES OFFERRED BY SIMPLIPHI POWER, INC. (“PHI”): 1. Defined Terms: The following terms shall have the following meanings: A. “Acceptance” has the meaning ascribed to it in Section 3.C. B. “Buyer” means any person or entity that submits a Purchase Order to PHI. C. “Confidential Information” means information that is designated as confidential or should reasonably be understood to be confidential. D.
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T. “Service” means any service or work offered for sale by PHI. For clarity, and without limitation, such term includes specifically defined work, reference designs, marketing collateral, software (unless the software is built into the Product), Samples, prototypes, experimental devices, and evaluation modules. U. “Specifications” means measurable electrical and physical characteristics of a particular Product listed in the then-current official data sheet (including errata) for that Product. V.
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authorized representative subsequent to Acceptance, any and all information regarding properties and characteristics of Products or Services are for illustrative purposes and not binding. Likewise, public statements, recommendations or advertisements do not constitute contractual statements of any nature including but not limited to the nature or quality of a Product or a Service.
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reverse engineer any Product delivered by PHI, or otherwise attempt to circumvent PHI’s right, title or interest in any of the foregoing. 5. Prices; Terms of Payment; Holding Fee; Cancellation Fee A. Prices. PHI communicates pricing to Buyers in various ways (e.g. quotes, estimates). However, unless otherwise stated in an Acceptance, prices to be paid by a Buyer for PHI’s products or services shall be those set forth on PHI’s general price list in effect on the date of Acceptance. B. Quoted Prices.
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(b) PHI shall have the right to terminate its Acceptance and the Contract related to such Acceptance or to suspend further performance under the Contract; and (c) Buyer shall be liable to PHI for all reasonable costs of collection, including but not limited to reasonable attorneys’ fees, restocking fees and other related costs. H. Past Due Amounts. Past due amounts are subject to service charges of the lesser of 1.5% per month or the maximum rate allowed by applicable law.
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. Taxes. Prices do not include applicable taxes or duties. Buyer is solely responsible for paying all applicable taxes and duties. PHI will add sales taxes to the sales price where required by applicable law and Buyer will pay such taxes unless Buyer provides PHI with a duly executed sales tax exemption certificate.
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B. Risk of Loss. Risk of loss with respect to any Product shall pass to Buyer upon delivery at PHI’s Designated Shipping Point. Any subsequent loss or damage to the Product will not relieve Buyer from its obligations. Buyer is solely responsible for costs of freight and insurance after PHI’s delivery to the Product to Buyer at PHI’s Designated Shipping Point. If PHI incurs freight or insurance costs on Buyer’s behalf, Buyer must promptly reimburse PHI for such freight or insurance costs. C.
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C. Failure to Pay. If Buyer fails to perform strictly in accordance with the Credit Terms, PHI may suspend or cancel performance including delay or cancellation of shipment on any open orders. PHI will not be liable for, and Buyer will hold PHI harmless from, any costs or losses resulting from suspension or cancellation on account of Buyer’s failure to make payment. D. PHI’s Right to Withhold Performance.
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exclusive property. Buyer shall not disclose any such material to third parties without PHI’s prior written consent. B. PHI’s Ownership of Information. PHI will retain sole ownership of all discoveries, improvements, inventions, patents, trademarks, copyrights, know-how, trade secrets, or other intellectual property rights associated in any way with the Products delivered or Services performed.
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RESPECT TO ANY OF THE PRODUCTS, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY, OR NON-INFRINGEMENT. D.
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by PHI, but in any case not more than an amount equal to 5% of the invoice amount (as stated in PHI’s Final Invoice). C. Defects. In the event of a defect in a Product supplied by PHI, Buyer’s sole remedy shall be, at PHI’s costs and expense for PHI, in PHI’s sole discretion, to either repair or replace the defective Product. In the event of a defect in a Service provided by PHI, Buyer’s sole remedy shall be PHI’s re-performance of the Service. D. Buyer to Provide Notice of Defects.
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H. Shipping Damages, Errors, Returns and Claim Policies. With respect to shipping damages, errors in shipment (e.g. overage, shortage or missing items), Returns and Claims related thereto, reference is made to PHI’s Returns, Damages and Claims Policies that are set forth on its website; the policies being incorporated herein by reference. 16. Indemnification A. Buyer’s Indemnification.
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B. Notice of Default with Right to Cure. Upon Default by a Party (the “Defaulting Party”), the other Party (“Non-Defaulting Party”) shall deliver written notice (“Notice of Default”) to the Defaulting Party specifying the nature of the Default. The Defaulting Party shall have thirty (30) days from the date of delivery of the Notice of Default in case of non-monetary defaults and ten (10) days from the date of delivery of the Notice of Default in case of monetary defaults to cure the Default. C. Termination.
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E. If Waiver of Trial by Jury Not Permitted. If a claim, dispute, or controversy arises between the Parties with respect to a Product or Service delivered by PHI to Buyer, and only if a waiver of a trial by jury is not permitted by applicable law or a ruling by a court of competent jurisdiction, either Party my require that the Dispute be resolved by binding arbitration.
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C. Relationship of Parties. Nothing contained in these Terms of Sale shall be construed as establishing or implying any partnership or joint venture between the parties; and, nothing in these Terms of Sale shall be deemed to construe either of the parties as the agent of the other. D. Assignment. Buyer may not assign its rights to purchase a Product to any third party unless previously consented to in writing by the PHI. No such assignment shall relieve Buyer from its obligations under these Terms of Sale.
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Terms of Sale (United States) Sixth Version Prepared On: 1-26-2021 Rev 2021.07.