ENERGY SOLUTIONS LEGAL STATEMENT
K2 Energy Solutions, Inc. (hereinafter “K2 Energy”), maintains this site (the “Site”) for personal entertainment, education, communication and information. You may browse the Site. You may also download material displayed on the Site for non-commercial, personal use only provided you also retain all copyright and other notices contained on the materials. You may not, however, distribute, modify, transmit, reuse, repost or use the content of the Site for public or commercial purposes, including the text, images, audio and video without K2 Energy’s written permission.
By accessing and browsing the Site, you accept, without limitation or qualification, the Terms and Conditions listed below and acknowledge that any other agreements, oral or otherwise, between you and K2 Energy regarding this subject matter are superseded and of no force or effect.
Terms and Conditions
STANDARD TERMS AND CONDITIONS OF SALE
Unless otherwise agreed to by K2 Energy Solutions, Inc. (“K2”) in writing, the following terms and conditions apply to all orders and shipments of any batteries, cells, components, systems, goods or other products (the “Products”) sold by K2 to any party (a “Purchaser”). Prices and other terms and conditions are subject to change by K2 upon written notice. As used below:
Quotations and Order Confirmation: Quotations made by K2 will not be binding until K2 has received acceptance from the Purchaser and issued an order confirmation. Supplier reserves the right to make minor modifications to ordered products. Any changes or cancellations to an order must be made within 24 hours of Receipt of Purchase Order.
The order confirmation and these Standard Terms and Conditions of Sale constitute the agreement concerning the sale of goods between the parties, unless another written agreement has been executed by the parties and accepted by the Supplier.
Pricing: The purchase price is the amount listed in a K2 approved invoice, pro-forma invoice or order confirmation which supersedes all prior quotations. If the order confirmation does not contain a purchase price, K2’s standard price in force at the time of the delivery of the goods shall apply to the sale of goods. K2 is, however, entitled to adjust the purchase price if K2’s total costs for the manufacture of the goods have been increased by circumstances beyond K2’s control, such as increases in prices on raw material, exchange rate fluctuations, electricity, taxes etc. Prices are exclusive of all taxes, duties or other such imposts. All taxes (including, but not limited to, income, withholding, sales, use, registration, ad valorem, excise, employment and documentary taxes), duties, excise or other charges imposed by governmental or quasi-governmental bodies, other than K2’s United States income taxes thereon, assessable on a product sold or furnished hereunder are borne by Purchaser after delivery. All taxes outside the United States are the responsibility of the Purchaser.
Payment: The purchase price payment for any Products shall be made at the time of order or within 30 days of invoicing if Purchaser has received prior credit approval. In addition to any other right or remedy it may have, K2 shall be entitled to interest at a rate equal to the lesser of 1 1/2% per month or the maximum allowed by law on all overdue payments plus all costs and expenses of collection. All goods remain the property (even though the risk of loss may have passed to Purchaser) of K2 until payment in full has been made by Purchaser.
Shipping: Standard shipping terms are: Ex Works (Incoterms EXW) K2’s facilities. Purchaser assumes the risk of loss from K2’s facilities. Purchaser is responsible for all costs of shipping, insurance, taxes, duties and other charges or imposts related to the delivery of the product. Delivery dates are best estimates only, are not guaranteed and do not form a term of this contract unless delivery dates are specified and agreed to by K2 in writing. Delivery delay or default in any installment does not relieve Purchaser of its obligation to accept and pay for remaining deliveries. IN NO EVENT SHALL SELLER BE LIABLE FOR INCREASED MANUFACTURING COST, LOSS IN PROFITS OR GOOD WILL OR ANY OTHER INCIDENTAL, CONSEQUENTIAL, SPECIAL OR OTHER DAMAGES OR LOSSES RELATED TO DELAYED SHIPMENTS.
Force Majeure: Orders are accepted on the condition that the following circumstances shall be considered beyond the control of K2, and K2 will not be responsible for order cancellations or delays if they impede the performance of the contract or make performance unreasonably onerous. Those events include, without limitation: Industrial disputes, fires, war, weather conditions, general mobilization or unforeseen military mobilization to a similar extent, requisition, seizure, currency restrictions, insurrection and civil commotion, shortage of transport, general shortage of materials, government action or inaction, restrictions in the use of power and defects or delays in deliveries by subcontractors caused by any such circumstances referred to in this clause and any other circumstances beyond the reasonable control of K2.
Inspection: Purchaser shall inspect each shipment of product supplied. Claims for order discrepancies are waived unless presented to Seller in writing within ten (10) days of delivery of each shipment.
Product Returns: Products will not be accepted for return unless K2 and Purchaser have agreed to such return in writing (subject to K2’s limited warranty terms and conditions) and Purchaser has received a Returned Materials Authorization (“RMA”) number. If K2 agrees to accept a return, unless otherwise agreed to by K2 in writing, Purchaser will be responsible for all costs related to the return including, without limitation, shipping, insurance and restocking fees and costs. K2 will not accept returns directly from Purchaser’s customer and all related correspondence and deliveries must include the RMA number in order to be processed.
DISCLAIMER OF WARRANTY: EXCEPT AS EXPRESSLY SET FORTH IN THIS STANDARD LIMITED WARRANTY, AS IT MAY BE AMENDED BY K2 FROM TIME TO TIME, K2 MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR USE, PURPOSE OR MERCHANTABILITY.
WARRANTY AND LIMITATION OF LIABLITY: K2 GUARANTEES THAT SUPPLIED GOODS AND PRODUCTS SHALL BE FREE FROM DEFECTS WHICH ARE PROVED TO BE SOLELY DUE TO THE SUPPLIER’S WORKMANSHIP AND MATERIALS, FOR A PERIOD NINETY (90) DAYS FROM THE DATE OF DELIVERY, UNLESS (A) ANOTHER WARRANTY PERIOD IS STATED IN THE K2’S QUOTATION, ORDER CONFIRMATION, PRO-FORMA INVOICE OR INVOICE.OR; (B)NO WARRANTY PERIOD IS STATED, IN WHICH CASE THE PRODUCT IS SOLD “AS IS, WITH ALL FAULTS”, IN WHICH CASE NO WARRANTY SHALL APPLY. IN NO EVENT SHALL K2 BE LIABLE FOR ANY INCIDENTAL, SPECIAL, DELAY, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION COMPENSATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF THE LOSS OF PRESENT OR PROSPECTIVE BUSINESS, PROFITS, EXPENDITURES, INVESTMENTS OR OTHER COMMITMENTS, WHETHER MADE IN THE ESTABLISHMENT, DEVELOPMENT OR MAINTENANCE OF BUSINESS REPUTATION OR GOODWILL, FOR LOSS OF DATA, COST OF SUBSTITUTE PRODUCTS, COST OF CAPITAL, OR FOR THE CLAIMS OF ANY THIRD PARTY, OR FOR ANY OTHER REASON WHATSOEVER, EVEN IF K2 HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. PURCHASER AND ITS CUSTOMERS’ SOLE REMEDY FOR ANY BREACH OF WARRANTY CLAIM WILL BE REPLACEMENT, REPAIR OR CREDIT FOR THE DEFECTIVE PRODUCT SOLD BY K2. IF, NOTWITHSTANDING THE FOREGOING, K2 IS REQUIRED TO PAY DAMAGES, THE MAXIMUM AMOUNTS K2 MAY BE REQUIRED TO PAY FOR ANY AND ALL CAUSES, WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, OR OTHERWISE, AND REGARDLESS OF THE FORM OF THE ACTION IN THE AGGREGATE, SHALL BE LIMITED IN AMOUNT TO THE PAYMENTS MADE BY THE PURCHASER TO K2 FOR THE SPECIFIC PRODUCTS TO WHICH K2’S LIABILITY RELATES.
PURCHASER HAS BEEN INFORMED THAT THE ITEMS MAY MALFUNCTION OR BECOME UNSTABLE WHEN SUBJECTED TO (i) WET CONDITIONS, (ii) AN IMPACT FORCE OR SHOCK GREATER THAN THAT SET FORTH IN RELEVANT SPECIFICATIONS, (iii) PUNCTURE OR OTHER EVENT PENETRATING THE CANISTER, (iv) SHORTING OF THE BATTERY; (v) OVER CHARGING; (vi) OVER DISCHARGING OR (vi) ANY OTHER CONDITIONS DIFFERENT FROM THOSE FOR WHICH THE ITEMS WERE ORIGINALLY DESIGNED, AND THAT PURCHASER SHOULD TAKE PROPER STEPS TO PROTECT THE PRODUCTS AND ITEMS INSIDE THE PRODUCTS FROM SUCH CONDITIONS.
Some states restrict the extent to which warranties may be disclaimed, it is K2’s intent, and Purchaser agrees through use of the Product, that this disclaimer shall be interpreted to allow for the maximum exclusion of liability and warranty allowed by applicable law. Purchaser will forward promptly to Customers, at the request of K2, any materials supplied by K2 relating to the Products, including but not limited to warranty and other Product information. If Purchaser believes the product is defective, they shall collect and provide K2 with all relevant information necessary to determine the cause of such purported defect. If K2 and Purchaser are unable to agree on the cause of the defect, the parties agree to submit the matter to an independent third-party to determine the cause. If they are unable to agree on that party, the matter will be submitted to JAMS for assignment of a mediator.
Intellectual Property: Purchaser acknowledges K2’s ownership of all right, title and interest in all of K2’s trade names, trade marks and service marks, including without limitation the names or titles listed in this invoice (”Marks”). Purchaser acknowledges K2’s ownership of all right, title and interest in all of K2’s other intellectual property, including without limitation, patents, business processes, trade secrets, supplier information, customer lists, employee information and other proprietary information of economic benefit to K2 (“IP”). Purchaser shall not, directly or indirectly, register, apply for registration or attempt to acquire any legal protection for identical or confusingly similar Marks or any proprietary rights in its own name or take any other action which may adversely affect K2’s right, title or interest in or to the Marks or the IP. Purchaser shall not use any of the Marks, or any confusingly similar Mark, in whole or in part, as part of Purchaser’s business or trade name, or as part of an Internet URL used by Purchaser, without the express prior written consent of K2. Purchaser shall not use, directly or indirectly, any of the IP for its own, or any third party’s benefit without the express written consent of K2. Purchaser will refrain from soliciting employees,suppliers, business and contracts from sources not their own which have beenmade available to them through K2 (“Business Sources”), without the express permission of K2, for a period of five years. In addition, Purchaser will maintain complete confidentiality regarding Business Sources, and will only disclose such Business Sources under mutual agreement and only after written permission has been received from the originator of the source. Purchaser agrees not to circumvent or attempt to circumvent K2 or to circumvent any party or Business Source who is, or may be associated directly, or indirectly with the K2. K2 retains all right, title and interest to the IP. The sale of a product furnished hereunder conveys no license by implication, estoppel, or otherwise under any proprietary or patent right of K2 covering any combination of the Products with other elements. Where a quotation or contract involves manufacture from drawings or specifications provided by Purchaser to K2, K2 shall be indemnified by Purchaser against a claim or action, and any costs arising therefrom, which might be brought by a third party with respect to infringement of patent or proprietary rights of that third party.
Purchaser will represent, display and demonstrate K2’s product and services fairly at all times, and will refrain from making any knowingly false or misleading statements, claims or representations with respect to K2, K2’s products or services, or any of K2’s other resellers, partners or Affiliates. Purchaser will maintain high standards of professionalism in marketing and using K2’s products and services, and will refrain from any unethical conduct or any other conduct that tends to damage the reputation of K2.
Export: Purchaser agrees to take any and all actions necessary to comply with applicable US export laws and regulations and other applicable foreign laws with respect to the Products in this invoice, including making determinations of final destination of Products licensed to Licensees if any Product may be re-exported or transferred to a location outside of the United States. Purchaser agrees that any export or re-export of Product shall be done in accordance with the United States Export Administration Regulations. Diversion contrary to U.S. Law is prohibited. Purchaser agrees not to export or re-export Products to countries subject to applicable embargoes or which have export restrictions based on anti-terrorism considerations or to any person or entity on the U.S. Department of Commerce Denied Persons List or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists.
Changes: These Terms and Conditions of Sale are incorporated in any contract, purchase order, invoice or acceptance between K2 and Purchaser. These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s). Any attempt to alter, supplement or amend this document or to enter an order for Product(s) which is subject to additional or altered terms and conditions will be null and void, unless otherwise specifically agreed to in a written agreement signed by both Purchaser and K2.
Interpretation: If any provision of these Standard Terms and Conditions of Sale shall, to any extent, be invalid or unenforceable, the remainder of these Standard Terms and Conditions of Sale shall not be affected thereby and each other provision of these Standard Terms and Conditions of Sale shall be enforced to the fullest extent permitted by law.
General: Purchaser acknowledges that he has read and understands these Terms and Conditions, and agrees to be bound by them, that it is the complete and exclusive statement of the agreement between the parties and supersedes all proposals, oral and written, Purchaser’s terms and conditions or purchase as laid down in Purchaser’s purchase order, if any, and all other communications between the parties relating to the product ordered hereunder. Modification of the terms and conditions for specific orders will be accomplished by agreeing to a modified version of the Terms and Conditions that embodies the special changes for a specific order. No waiver of a breach or a provision of these Terms and Conditions shall constitute a waiver of any other breach or provision. If any part of these Terms and Conditions is declared null and void, the remaining portions shall remain in full force and effect.
Acceptance: By ordering any product from K2, whether through the internet, telephone, facsimile or otherwise, the Purchaser agrees to be bound by these Standard Terms and Conditions of Sale, as well as any other terms and conditions contained propounded by K2 from time to time.
Governing Law: These Standard Terms and Conditions and any disputes or proceedings between K2 and Purchaser shall be governed by the laws of Nevada, United States of America without application of its choice of law provisions.