1.0 GENERAL
1.1 TheseStandard Terms & Conditions of Sale shall apply to all quotations andoffers made, and purchase orders accepted by UltraScale Digital Infrastructure,Inc. (“SELLER”). THESE STANDARD TERMS & CONDITIONS OF SALE MAY, IN SOME INSTANCES, CONFLICT WITH THE TERMS AND CONDITIONS AFFIXED TO PURCHASE ORDERS OR OTHER PROCUREMENT DOCUMENTS ISSUED BY BUYER. IN SUCH CASES, THE TERMS AND CONDITIONS CONTAINED HEREIN SHALL PREVAIL. SELLER’s acceptance of any purchase order of BUYER is strictly conditioned upon BUYER’s acceptance of these Standard Terms & Conditions of Sale. BUYER shall be conclusively deemed to have accepted the same upon any of the following by BUYER, its agents or representatives: (i) written or electronic acknowledgement or acceptance hereof; (ii) transmission to SELLER, its agents or representatives of any order for SELLER products or services; or (iii) acceptance of or payment for any product or service covered hereby. SELLER’s failure to object to any provision contained in any communication from BUYER shall not be deemed a waiver of any provision hereof.
1.2 Any changes in the terms and conditions of sale herein, or in any document or agreement referred to herein, must be specifically agreed to in writing signed by an authorized representative of SELLER, before being binding on either party. No order will be binding upon SELLER unless and until accepted in writing on SELLER’s behalf by an authorized official of SELLER at its office in Houston, Texas. SELLER may accept or reject any order at SELLER’s sole discretion. As used herein, the term "BUYER" shall mean the party issuing a purchase order to SELLER, regardless of the end user of the Product. Unless the context otherwise requires, the term "Product" as used herein includes all goods, equipment, parts,service and accessories sold to BUYER by SELLER. “Purchase Order” or “Order” as used herein shall mean an order issued by BUYER to SELLER, which shall be subject to these Standard Terms & Conditions of Sale.
2.0 PAYMENT TERMS
2.1 Payment will be made in accordance with the specified payment schedule in SELLER’s quote unless otherwise agreed in writing by the parties. All payments are due net thirty (30) days from the date of the invoice, unless otherwise specified. BUYER’s failure to make payment when due will be a material breach by the BUYER. SELLER, at its sole option and without incurring any liability, may suspend its performance until such time as the overdue payment will be promptly made. In the event of such suspension of performance by SELLER, there will be an equitable adjustment made to the delivery schedule and Order price reflecting the duration and cost resulting from such suspension.
2.2 Federal, state, local or value-added sales and/or use taxes measured on the price of Product are not included in the price, unless otherwise stated.
3.0 SHIPMENT AND DELIVERY
3.1 Delivery of shipping dates, if any, set forth herein are approximate only and merely represent SELLER'S best estimate of the time required to make delivery or shipment.
3.2 Unless otherwise agreed to by SELLER in an advanced writing, all sales are made Ex Works SELLER’s facility (Incoterms 2023). In other words, risk of loss or damage shall pass to BUYER, and SELLER’s liability shall cease, when SELLER places the Products covered hereby at the disposal of BUYER (or BUYER’s selected carrier as BUYER’s agent) at SELLER’s facility. All claims for loss or damages must be filed with the carrier. In the absence of timely or specific shipping instructions from BUYER, or the failure of BUYER’s selected carrier to accept Products on the acknowledged shipment date, SELLER may select another carrier and service level similar to that of BUYER’s selected carrier (if any), so as to complete the Order as originally acknowledged by SELLER. In such cases, BUYER will promptly accept any and all ordered products as if placed at the disposal of BUYER or its selected carrier at SELLER’s facility. Title shall pass upon SELLER’s receipt of full and final payment from BUYER.
3.3 SELLER retains a security interest in all Product delivered hereunder and all proceeds and Products thereof until all amounts due or to become due hereunder have been paid in full to SELLER. Any repossession and removal of Products shall be without prejudice to any of SELLER'S other rights and remedies under these terms, at law or in equity. BUYER agrees, without further consideration,at any time to do or cause to be done, executed and delivered, all such further acts and instruments (including without limitation financing statements appropriate for filing) as SELLER may reasonably request in order to perfect SELLER'S security interest.
4.0 MATERIAL AND WORKMANSHIP WARRANTY; PERFORMANCE GUARANTEE
4.1 BUYER’s payment in full for Product is a condition precedent to SELLER’s obligations under this section.
4.2 SELLER warrants the Product against defects in material and workmanship and guarantees the Product to have the capacity to perform according to SELLER Technical Specification Sheet when properly installed and maintained, for a period of one year from commissioning, not to exceed 18 months from the date of shipment or notification that the Product is ready for shipment. Before SELLER undertakes any obligation to remedy defects, the BUYER must give SELLER written notice of the defect within a reasonable time after discovery. SELLER shall, at SELLER’s option, repair, replace or promptly refund the purchase price on return of the Product or parts thereof, Ex Works SELLER facility, with a proven defect in material or workmanship within above stated time period. SELLER’s liability to repair or replace is limited to the direct cost to correct the defect. SELLER assumes no responsibility for deterioration of any part of the Product due to corrosion or erosion when such deterioration occurs after leaving SELLER premises.
4.3 BUYER shall be responsible for assistance in identifying the defect and cause, access to the Product, as required, to allow SELLER to perform its obligations hereunder. BUYER will provide SELLER with continuous and unobstructed access to the Product to perform its obligations hereunder within a reasonable time after the defect is discovered.
4.4 The BUYER shall specify the operating conditions and performance requirements under which the Product shall be designed and expected to function, and SELLER’s guarantee shall extend to meeting such specified performance requirements under the specified conditions. In the event of disagreement concerning measured performance in the field, arrangements will be made for an inspection of the Product and for a test, to the extent necessary, of SELLER’s Product. The tests hall be witnessed by SELLER with a mutually agreed testing procedure for determining heat load and cooling capacity of the Product. In case the Product does not perform as per SELLER Technical Specification Sheet, SELLER shall be responsible for any expense SELLER incurred in making the inspection and test and will at its option either make changes necessary to obtain performance, or replace Ex Works SELLER facility the questioned Product, or promptly refund the purchase price on return of the Product or parts thereof, Ex Works SELLER facility. SELLER’s Performance Guarantee does not include responsibility for Product supplied by others, operating conditions not specified, or operation of the Product outside the design conditions specified in the Technical Specification Sheet. If the difference in measured performance is not due to SELLER’s Technical Specifications, then BUYER shall be responsible for any SELLER costs required to make necessary corrections, if applicable, andwill reimburse SELLER for any expenses related to the inspection and test.
4.5 Any repair or alteration without SELLER approval shall act to void any existing warranty, along with any obligation on the part of SELLER to pay for such unauthorized modifications.
4.6 There medial obligation set forth above shall constitute SELLER’s sole liability and BUYER’s exclusive remedy, whether arising in (a) warranty, (b) contract,(c) negligence, or (d) otherwise. THE EXPRESS WARRANTIES AND REMEDIES PRECLUDE ANY OTHER CLAIMS OF RELIEF, OR ANY ALLEGED BREACH OF WARRANTY OUTSIDE THE SCOPE OF THE EXPRESS WARRANTIES, FOR ANY CLAIM CONCERNING DEFECTS AND DEFICIENCIES IN THE WORK OR THE PRODUCTS.
5.0 INDEMNITY
Anything in this Purchase Order to the contrary notwithstanding, SELLER shall release,defend, indemnify, and hold BUYER harmless from and against all claims, damages, liability, losses and expenses including but not limited to attorney's fees and other costs of defense attributable to bodily injury, sickness, disease, death or injury to the employees of SELLER or damage or destruction of property of SELLER, including loss of use resulting therefrom and arising out of or resulting from this Purchase Order or the use of the Product hereunder, irrespective of BUYER's fault or negligence. Likewise, and anything in this Agreement to the contrary notwithstanding, BUYER shall release, defend, indemnify, and hold SELLER, its parent, affiliates and subsidiaries and the officers, directors, and/or employees of any of the same (hereinafter collectively referred to as SELLER for purposes of this item), harmless from and against all claims, damages,liability, losses and expenses including but not limited to attorney's fees and other costs of defense attributable to bodily injury, sickness, disease, death or injury to the employees of BUYER or damage or destruction of property of BUYER, including loss of use resulting therefrom and arising out of or resulting from this Purchase Order or the use of the Product hereunder,irrespective of SELLER's fault or negligence.
6.0 DISCLAIMER OF WARRANTIES, CONSEQUENTIAL DAMAGES; LIMITATION OF LIABILITY
6.1 THE WARRANTY ESTABLISHED IN SECTION 4 IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OR TRADE. SELLER’s warranty does not apply to any Product manufactured by third parties, or to any Product which has been subjected to misuse, mishandling, misapplication, neglect (including, but not limited to, improper maintenance), accident, improper installation, modification (including, but not limited to, use of unauthorized parts or attachments) or repair performed by anyone other than SELLER or SELLER’s authorized agents. With respect to Products manufactured by third parties, SELLER’s liability shall be limited to procuring commercially reasonable warranties and guarantees from the applicable suppliers and rendering all reasonable assistance (short of initiating litigation) to BUYER for the purpose of enforcing the same.
6.2 SELLER’S MAXIMUM AGGREGATE LIABILITY FOR CLAIMS, LIABILITIES, LOSSES, DAMAGES, COSTS AND EXPENSES ARISING UNDER OR IN CONNECTION WITH THE PURCHASE ORDER OR THE PRODUCTS (WHETHER UNDER THE THEORY OF CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE) SHALL NOT EXCEED THE PURCHASE PRICE FOR THE PRODUCT GIVING RISE TO SUCH LIABILITY. BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY CLAIMS BASED ON SELLER’S COMPLIANCE WITH BUYER’S DESIGNS, SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCT OF SELLER OR ANY THIRD PARTY OR USE IN COMBINATION WITH OTHER PRODUCTS.
6.3 IN NO EVENT SHALL EITHER PARTY HERETO BE LIABLE TO THE OTHER FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH ANY PURCHASE ORDER, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT, BUSINESS INTERRUPTION COSTS, REMOVAL AND REINSTALLATION COSTS, LOSSES SUSTAINED AS THE RESULT OF INJURY (INCLUDING DEATH) TO ANY PERSON OR LOSS OF OR DAMAGE TO PROPERTY (INCLUDING WITHOUT LIMITATION PROPERTY HANDLED OR PROCESSED BY THE USE OF THE PRODUCT), EVEN IF EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THE SAME MAY BE CAUSED, EVEN IF DUE TO THE FAULT, NEGLIGENCE OR STRICT LIABILITY OF EITHER PARTY.
7.0 INTELLECTUAL PROPERTY & DOCUMENTS
Unless otherwise agreed to in a writing signed by SELLER's duly authorized representative, all rights,title and interests in any inventions, developments, improvements or modifications of the Product and services provided by SELLER or BUYER shall exclusively remain with SELLER. Any design, manufacturing drawings, reports, plans, standards, specifications or other information, (“SELLER Documents”) furnished by SELLER, regardless of the format in which they were provided, were developed at SELLER’s expense and shall remain the exclusive property of SELLER. BUYER shall not, without SELLER’s express prior written consent, copy or disclose the SELLER Documents to any person or use such documents or information for any purpose other than to install, own, operate, and maintain the subject Product. SELLER Documents are not suitable for use on any other agreement or project and any reuse of SELLER Documents without the express written consent of SELLER will be at the sole risk of the BUYER, and the BUYER shall indemnify, defend and hold SELLER harmless from any and all claims arising from BUYER’s reuse of SELLER Documents. Upon SELLER’S request at anytime, BUYER shall promptly return all SELLER Documents. The obligations in this paragraph survive termination or expiration of this Agreement. If SELLER’s Product is held to infringe a United States patent in effect as of the date of this Agreement (other than any infringement resulting from SELLER’s compliance with BUYER’s designs, specifications or instructions), then SELLER may at its option procure for BUYER the right to use the Product, modify or replace it with non‑infringing Product, refund the purchase price allocable to the infringing Product, or settle or otherwise terminate said actions on behalf of BUYER. The foregoing is SELLER’s entire liability on patent infringements. BUYER shall defend, indemnify and hold SELLER harmless from all expenses, losses and other damages resulting from any actual or alleged infringement of patents, copyrights or trademarks arising from SELLER’S compliance with BUYER’s designs,specifications or instructions.
8.0 FORCE MAJEURE
SELLER shall not be liable or deemed to be in default for any delay or failure toperform hereunder from any cause beyond SELLER'sreasonable control, including without limitation, industrial disputes ofwhatever nature, power loss, telecommunications failure, pandemics, externalcomputer virus attacks, acts of God, acts of war or terrorism, restrictions,regulations and licensing requirements of the United States Government, orother governments having jurisdiction (including but not limited to state, county, municipality or local governmental agencies), delays in transportation,inability to obtain necessary labor, materials, or manufacturing facilities, or any other cause beyond its reasonable control. In the event any such delay continues for a period of more than two (2) months, either party may terminate the Purchase Order upon written notice to the other party. In the event of such termination, BUYER shall pay SELLER for work performed through the effective date of termination plus the cost to process such termination.
9.0 EXPORT REQUIREMENTS
These Standard Terms & Conditions of Sale are subject in part to applicable governmental laws, regulations and rules of the Government of the United States, including departments, agencies and sub-divisions thereof, and of the country in which the Product and/or services to be sold will be installed,used, or performed. Should any governmental authority prohibit the performance of a Purchase Order, in whole or in part, or if the exportation or importation of the Product which is the subject of this proposal, or any resulting contract, be precluded because of the inability, within a reasonable time, to obtain an export or Import license,as appropriate, then SELLER’s obligations under such Purchase Order shall be terminated at SELLER’s option, and SELLER shall be entitled to reasonable termination charges. In no event shall SELLER be required to export or deliver any technical information, data and/or Product if such export or delivery is then prohibited or restricted by any law or regulation of the U.S. Government or any other applicable governmental agency of any country having jurisdiction. BUYER accepts all responsibility for exporting any Product sold hereunder outside of the U.S. and shall cause the end user to accept such responsibility and will be responsible for filing any documents required by the U.S. or other government agencies. BUYER shall be the exporter of record and shall secure all licenses necessary for exportation. BUYER agrees not to export any Product, technical information or data of SELLER without full compliance with applicable U.S. laws and shall cause the end user to comply with such laws. BUYER warrants and represents that it is in full compliance with all applicable U.S. export laws. Specifically, BUYER shall not export or re-export any Product or components thereof supplied by SELLER to a prohibited person, to a prohibited country, or for a prohibited use under the U.S. export laws.
10.0 CANCELLATION
Cancellation of any Orders must be by written notice to SELLER and will be subject to cancellation charges to include all costs incurred through the date of cancellation, cost to process such cancellation and lost profit. Orders entered on SELLER’s books may not be cancelled except upon SELLER’s consent and upon terms indemnifying SELLER against loss.
11.0 SERVICE OF NOTICE
All notices required under these Standard Terms & Conditions of Sale shall be sent by registered or certified mail to the addresses of the parties executing this agreement or such other parties or addresses which may, from time to time, be designated by notice in writing by the parties.
12.0 GOVERNING LAW
These Standard Terms & Conditions of Sale are exclusively governed by the laws of the State of Texas, excluding its conflicts of laws. Any controversy or claim arising out of or relating to this Purchase Order, or the breach thereof, which cannot be resolved amicably shall be settled by arbitration. This agreement to submit to arbitration shall be specifically enforceable under the prevailing arbitration law. The award of the arbitrator shall be final, and a judgment may be entered upon it by any court having jurisdiction. A party desiring to invoke this arbitration provision shall serve written notice upon the other of its intention to do so. Within thirty (30) days of the date of such notice, each party shall serve upon the other the name of one impartial individual, knowledgeable in matters pertaining to the design and operations of data center facilities to serve as an arbitrator. A third arbitrator shall be designated within thirty (30) days thereafter by the two arbitrators. The arbitration shall be conducted in accordance with the Commercial Arbitration Rules of the American Arbitration Association then prevailing, and shall be conducted in Houston,Texas, unless the parties agree otherwise. Discovery shall be made available in accordance with the procedures set forth in the Federal Rules of Civil Procedure, but to a degree limited by the arbitrators as they deem appropriate to render the procedures economical, efficient, expeditious and fair. During the pendency of any dispute, the parties shall continue to perform the obligations imposed upon them by this Purchase Order to the fullest extent possible, consistent with their positions with respect to the dispute. BUYER agrees all causes of action under these Standard Terms & Conditions shall expire unless claim is brought within one year of the date of the occurrence of the event giving rise to any such claim.The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Purchase Order.
13.0 SEVERABILITY AND HEADINGS
13.1 If any provisions or any portions of these Standard Terms & Conditions of Sale are held to be invalid, illegal or unenforceable for any reason, then such provision shall be deemed revised and applied to the maximum extent allowed by applicable law, and such invalidity or unenforceability shall not affect the remainder of such provision or any other provision here which shall remain in full force and effect.
13.2 The headings are intended for convenience of reference only and shall not be used to construe meaning or intent.
14.0 ASSIGNMENT
BUYER shall not transfer or assign, by operation of law or otherwise, any Purchase Order without the prior express written consent of SELLER. Any transfer or assignment of any rights, duties or obligations hereunder by BUYER without such consent shall be void.
15.0 PRICE ADJUSTMENT
SELLER’s compensation shall be adjusted equitably in reasonable and appropriate amounts to cover increases in SELLER’s costs as a result of any of the following: (i) basic design conditions are changed; (ii) escalation of materials AND LABOR cost; (iii) any part of SELLER’s performance or facilities is delayed or disrupted by BUYER or others working for BUYER; and (iv) CHANGES IN LAWS, acts of God, acts of government, strikes or other concerted acts of workmen, war, sabotage, unavailability, unforeseeable severe weather or floods, and other causes beyond SELLER’s control and without the fault or negligence of SELLER. In connection with any such change, addition, or event, SELLER shall promptly submit in writing to BUYER the amount by which SELLER proposes that its compensation shall be adjusted, and BUYER and SELLER shall thereupon agree in writing as to the adjustment in SELLER’s compensation. The parties agree that, so far as reasonably possible, no additional or different WORK OR GOODS SHALL BE furnished until the amounts of the adjustments with respect there to have been mutually agreed upon.
16.0 ENTIRE AGREEMENT/MODIFICATIONS
This Agreement supersedes all prior written and oral agreements and understandings between SELLER and BUYER with respect to the Productsand services specified herein. No representation or statement not contained herein shall be binding upon SELLER as a warranty or otherwise. No addition to or waiver, modification or cancellation of any provision hereof shall be binding upon SELLER or BUYER unless in writing and signed by a duly authorized representative of both SELLER and BUYER. Without limiting the generality of the foregoing, no addition hereto or modification hereof shall be effected by SELLER'S receipt or acceptance of BUYER'S purchase orders, confirmations or other documents or communications o rby manufacture or shipment of Products or performance of services.
