Terms and Conditions of Sale
KULR Technology Corporation
These terms and conditions of sale apply to purchases from KULR Technology Group, Inc., and all of its subsidiaries (collectively the “Seller”) of Products made by or on behalf of the Seller, unless both Parties have signed a written contract covering the sale of the Products, in which case the terms and conditions of the contract will govern to the extent they are inconsistent with these terms. These terms and conditions of sale are as in effect at the time of publication and are subject to change at any time.
Acceptance of Terms
These terms and conditions of sale govern the sale by Seller of all goods and services (“Products”) furnished to customer (“Customer”) hereunder whether such transaction is effected by paper-based transactions or via e-mail or other forms of electronic data interchange or electronic commerce, and represents the entire agreement between Seller and Customer with respect thereto. Customer’s receipt or acceptance of delivery of any of the Products ordered or purchased hereunder will constitute its acceptance of these terms and conditions. Seller shall not be bound by any terms of Customer’s order which add to, modify, or are in any way different from the terms set forth herein. Seller objects to and rejects other terms and conditions that may be proposed by Customer or that appear on or are referenced in Customer’s purchase order or requisition that are in addition to or otherwise not consistent with these terms and conditions. Any change in the terms contained herein must specifically be agreed to in writing by Seller before becoming binding on Seller. All purchase orders or contracts must be approved and accepted by Seller in writing. These terms shall be applicable whether or not they are attached to or enclosed with the Products to be sold or sold hereunder.
The prices of the Products to be paid by Customer to Seller shall be specified in writing by Seller. All prices quoted by Seller are valid for 30 days, unless otherwise stated in writing. All prices published by Seller or quoted by Seller may be revised at any time without notice at the sole discretion of Seller. 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 do not include sales tax, import tax, use tax, excise tax, ad valorem, property tax, or other taxes now or hereafter imposed, directly or indirectly, by any governmental authority or agency with respect to the manufacture, production, sale, delivery, consumption or use of the Products covered by these terms and conditions. Customer shall pay such taxes directly or reimburse Seller for any such taxes which it may be required to pay or collect. If an exemption from such taxes is claimed, Customer must provide a valid, signed certificate of exemption for each jurisdiction at the time the purchase order is submitted to Seller.
Unless otherwise agreed to in writing by Seller, payment terms are thirty (30) days net from date of invoice or from the date of delivery, whichever date is earlier of the two dates. Seller reserves the right to require payment in advance or cash on delivery (“C.O.D.”) and otherwise to modify credit terms. When partial deliveries are made, payment shall become due in accordance with the designated terms upon submission of invoices. Seller reserves the right to add a monthly service charge allowed by law. If Customer fails to pay any amounts when due, Customer shall pay Seller interest thereon at a periodic rate of 2% per month pro-rated daily (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. Each delivery hereunder shall be a separate and independent transaction and Customer shall pay for each delivery accordingly. If Customer delays delivery without Seller’s prior written consent, payments shall become due on the original delivery date. All payments shall be made in U.S. Dollars.
Delivery; Cancellation and Changes by Customer
The Products shall be shipped Ex Works (Incoterms 2010), Seller’s designated factory dock or distribution center (“Delivery Point”). Risks of loss pass to Customer at Delivery Point. Title shall pass to Customer at Delivery Point. If, in the judgement of Seller, the financial condition of Customer at any time does not justify continuance of a delivery on the terms of payment originally specified or if Customer otherwise fails to perform its obligations hereunder, Seller may stop delivery and charge Customer an appropriate cancellation fee and/or require full or partial payment in advance.
The date of delivery provided by Seller is an approximation based on Seller’s best judgment and prompt receipt from Customer of all necessary data regarding the Products, 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 . Unless otherwise expressly stated, Seller shall have the right to deliver all of the Products at one time or in portions from time to time within the time of delivery provided to Customer. Seller shall be excused for delay in performance of these terms and conditions, may suspend performance and shall under no circumstances be responsible for failure to fill any purchase order or purchase orders when due to: acts of God or of the public enemy; fires; floods; riots; strikes; freight embargoes or transportation delays; shortage of labor, inability or delay in securing fuel, material supplies, or power at current prices or on account of shortages thereof; excessive demand for Products over the available supply; customs duties or surcharges; any existing or future laws or acts of the Federal or of any state government (including specifically but not exclusively any orders, rules or regulations issued by any official or agency of any such government) affecting the conduct of Seller’s business; or 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 to reschedule the shipment within a reasonable period of time, and Customer 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 Customer’s control may be placed in storage by Seller at Customer’s risk and expense and for Customer’s account. Orders in process may be canceled only with Seller’s written consent and upon payment of Seller’s cancellation charges. Orders in process may not be changed except with Seller’s written consent and upon agreement by the Parties as to an appropriate adjustment in the purchase price thereof.
All sales are final. Neither Customer nor any end users may return Products to Seller except as expressly permitted by Seller’s warranty set forth herein. Credit will not be allowed for Products returned without the prior written consent of Seller.
Seller’s sale of Products does not grant to Customer or any third parties, directly or indirectly, an express or implied license under any intellectual property rights of Seller. With respect to Seller’s Products, Seller is the sole owner to all intellectual property (“IP”) rights and/or has proper licenses to such Seller Products. If any IP is created under these terms and conditions, Seller shall be the sole owner of such created IP. Customer shall reasonably assist Seller to secure registration and/or defense of any IP rights (including any created IP) upon Seller’s request to Customer.
Seller warrants that the Products manufactured by Seller when delivered are free from material defects in material and workmanship; provided, however, Seller shall have no obligation or liability under this warranty unless Seller receives prompt written notice from Customer specifying such defect no later than one (1) year from the date of delivery (the “Warranty Period”). Deviations from the specifications of the Products which do not materially affect performance of the Products covered hereby shall not be deemed to constitute material defects of the Products or workmanship and not be deemed failure to comply with the specifications referred to herein. In the event of material defects developing within the Warranty Period under normal and proper use, Customer agrees that its sole and exclusive remedy shall require only that Seller, at Seller’s option, repair, modify or replace the nonconforming products EXW Delivery Point or accept the return of the non-conforming Products and refund the purchase price or part thereof. No Products shall be returned to Seller without Seller’s prior written consent and the proper issuance of a Return Material Authorization (RMA) by Seller. No warranty will apply if the Products (1) have been altered, except by Seller; (2) have not been installed, operated, integrated, repaired, or maintained in accordance with instructions supplied by Seller in the applicable Product documentation; (3) have been used in violation of the license granted by Seller; or (4) have been subjected to unreasonable physical, thermal or electrical stress, misuse, negligence, or accident. Notwithstanding the generality of the foregoing and without limiting the generality of the foregoing, the following shall be deemed misuses, abuses and incorrect operation: Seller part number K-SCXX is (1) packed with more than 2.1 kWh total lithium-ion battery capacity, (2) used without following the packing and handling instructions; or (3) packed with any battery or battery pack, the design of which is not to a safe standard. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PROVISIONS OF THIS WARRANTY CONSTITUTE THE SOLE AND EXCLUSIVE REMEDY AVAILABLE TO IT WITH REGARD TO SAID DEFECTIVE PRODUCTS. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS SECTION, ALL WARRANTIES WHETHER EXPRESS OR IMPLIED, ALL GUARANTIES, AND ALL REPRESENTATIONS AS TO PERFORMANCE, INCLUDING ALL WARRANTIES WHICH, BUT FOR THIS PROVISION, MIGHT ARISE FROM COURSE OF DEALING OR CUSTOM OF TRADE AND INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES OF NONINFRINGMENT WITH RESPECT TO THE PRODUCTS FURNISHED BY SELLER HEREUNDER ARE HEREBY EXPRESSLY EXCLUDED AND DISCLAIMED BY SELLER. No agent, employee or representative of Seller has any authority to bind Seller to any affirmation, representation or warranty relating to the Products other than as specifically provided herein.
Customer shall indemnify, defend and hold harmless Seller, its subsidiaries, affiliates and divisions, and their respective officers, directors, shareholders and employees, from and against any and all damages, liabilities, actions, causes of action, suits, claims, demands, losses, costs and expenses (including without limitation reasonable attorneys’ fees and disbursements and court costs) to the extent arising from or in connection with (1) the negligence or willful misconduct of Customer, its agents, employees, representatives or contractors; (2) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (3) Seller’s compliance with designs, specifications or instructions supplied to Seller by Customer; (4) use of a Product in an application or environment for which it was not designed; or (5) modifications of a Product by anyone other than Seller without Seller’s prior written approval.
Laws, Code, Regulations, and Safety Devices
Compliance with laws, codes, and regulations relating to the Products and their use is the sole responsibility of Customer, and Seller makes no warranty or representation with respect thereto. Customer assumes the responsibility for providing and installing any and all devices for the protection of safety and health and shall indemnify and hold harmless Seller against any expense, loss, or damage which Seller may incur or sustain as a result of Customer’s failure to do so.
Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, THE LIABILITY OF SELLER UNDER THESE TERMS AND CONDITIONS (WHETHER BY REASON OF BREACH OF CONTRACT, TORT, INDEMNIFICATION, OR OTHERWISE) SHALL NOT EXCEED AN AMOUNT EQUAL TO THE TOTAL PURCHASE PRICE PAID BY CUSTOMER TO SELLER WITH RESPECT TO THE PRODUCT(S) GIVING RISE TO SUCH LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF USE OF FACILITIES OR EQUIPMENT, LOSS OF REVENUE, LOSS OF DATA, LOSS OF PROFITS OR LOSS OF GOODWILL), REGARDLESS OF WHETHER SELLER (1) HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR (2) IS NEGLIGENT.
Unless covered by separate non-disclosure agreement executed by the Parties, Customer acknowledges that all information and materials which come into Customer’s possession or knowledge in connection with these terms and conditions and which is marked, identified, accepted as confidential or proprietary, or may be deemed confidential or proprietary by its nature or by the circumstances of its disclosure (“Confidential Information”), consists of confidential or proprietary information, where the improper disclosure or use of which will be damaging to Seller. Therefore, Customer agrees to hold all Confidential Information in confidence, to disclose Confidential Information only to those of its employees having a need to know, not to disclose Confidential Information to any other party, and not to use Confidential Information other than for the performance of these terms and conditions. Customer agrees that it will not use any of Seller’s Confidential Information, and to the fullest extent permissible under applicable law, will not modify, reverse engineer, reverse assemble, synthesize or in any way misuse any Seller’s Products or other Seller’s Confidential Information.
Any exportation of the Products and any related technology, including technical information supplied by Seller (collectively “Items”) must comply with U.S. export laws and regulations. Customer agrees to comply with all applicable export regulations which control the Items it purchases from Seller, including the Export Administration Regulations administered by the US Department of Commerce and the International Traffic in Arms Regulations administered by the US Department of State. Customer shall not, without first obtaining the required license to do so from the appropriate U.S. government agency; (1) export or re-export any Item, or (2) export, re-export, distribute or supply any Item to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. Customer shall cooperate fully with Seller in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold harmless Seller from any and all fines, claims, damages, losses, costs and expenses (including reasonable attorney’s fees) incurred by Seller as a result of any breach of this Section by Customer or its employees, consultants, agents or customers.
(a) No right or interest in these terms and conditions shall be assigned by Customer without prior written agreement by Seller. No delegation of any obligation owed, or the performance of any obligation by Customer shall be made without prior written agreement by Seller. (b) The interpretation, construction and performance of these terms and conditions shall be in accordance with and shall be exclusively governed by the laws of the State of California without regard to principles of conflicts of law, and that the United Nations Convention on the International Sale of Goods shall not apply to these terms and conditions or to the transactions between Customer and Seller. Customer consents to the exclusive jurisdiction and venue of the federal and state courts located in San Diego County, California and waives any other venue to which it may be entitled by domicile or otherwise and agrees not to bring any action except in the foregoing California courts. In the event of any legal proceeding between Seller and Customer relating to these terms and conditions, neither party may claim the right to a trial by jury, and both parties waive any right they may have under applicable law or otherwise to a right to a trial by jury.
(c) Seller’s failure to enforce, or Seller’s waiver of a breach of, any provision contained herein shall not constitute a waiver of any other breach or of such provision.
(d) In the event that any one or more provisions contained herein shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect, unless the revision materially changes the bargain.
(e) Seller shall not be liable for any damages or penalty for delay in delivery or for any other failure to perform in accordance with the terms and conditions hereof if such delay or failure to perform is due in whole or in part to factors beyond Seller’s reasonable control, including, but not limited to, delay in transportation or delay in delivery by Seller’s vendors. (f) These terms and conditions constitute the final and entire agreement between Seller and Customer and supersede any prior or contemporaneous understandings or agreements, oral or written. Seller’s offer to sell is expressly limited to the terms and conditions stated herein.
These terms and conditions were last revised on June 2nd, 2022