Sales Terms Conditions
General
These standard terms and conditions (the “Terms”) govern the sale by SolArk (as defined below) of Products (as defined below) and the license of its
software, including Firmware (as defined below), to the customer identified
in a Sol-Ark order acknowledgement form or in a valid Sol-Ark quotation
(the “Customer”). These Terms, together with any special terms specifically
and expressly provided by Sol-Ark in writing on Sol-Ark’s valid quotation,
constitute the exclusive and entire agreement between Sol-Ark and Customer
regarding the purchase of any Sol-Ark Products and the use of software,
including Firmware, and may not be amended, modified or changed except
in a written document signed by Sol-Ark’s and the Customer’s authorized
representatives as noted in the immediately following sentence. Except to the
extent Customer has a written, signed, separate agreement with Sol-Ark
governing the purchase and sale of Products and/or licensing of any software,
including Firmware, that expressly indicates it is intended to supersede and
replace these Terms (any such separate agreement, including any effective
Distribution Agreement or Integrator Agreement between Sol-Ark and
Customer, being referred to as a “Separate Customer Agreement”), these
Terms supersede any previous or contemporaneous communications,
representations or agreements, whether written or verbal, between the parties
regarding the sale of Products and the license of any software, including
Firmware. Sol-Ark’s acceptance of Customer’s order is conditioned upon
Customer’s acceptance of these Terms regardless of the form and timing of
Customer’s acceptance. Customer’s additional or different terms and
conditions (whether communicated verbally or through email, text, social
media, any other form of collaboration or interactive platform,
communications network, workplace tool or otherwise) will not apply and are
deemed fully and completely rejected by Sol-Ark. Customer’s receipt of
Products and/or use of any software, including Firmware, constitutes
Customer’s complete and unconditional acceptance of these Terms, except to
the extent of any Separate Customer Agreement.
• ”Sol-Ark” means Sol-Ark, LLC or an affiliate controlled by Sol-Ark
that accepts the Customer’s order, as applicable, including any
successors or assigns thereof.
• “Firmware” means computer programs and/or data structures
embedded or running on a Product to enable its basic operation and
updates, upgrades and documentation related thereto provided by SolArk.
• “Product” means, as provided by Sol-Ark to Customer, any
hardware product and its associated Firmware.
• “Force Majeure” means any act or occurrence that is beyond SolArk’s reasonable control or that makes performance by Sol-Ark
commercially impracticable or impossible, including, but not limited to,
current or future pandemics or epidemics, fires, floods, earthquakes
or other natural disasters, shortages of materials, labor disputes, wars or
civil disturbances, declared acts of terrorism, disruptions of normal
production, inadequate yield of Products despite reasonable efforts or an
interruption of the means of transportation.
Orders
Customers may purchase Products by submitting a purchase order to SolArk. No order will be binding on Sol-Ark unless and until Customer
receives a written acknowledgment from Sol-Ark sent by electronic or other
means confirming acceptance of the order or providing Customer with a
scheduled delivery date.
Minimum order and packaging quantity requirements may apply as
specified by Sol-Ark.
Unless otherwise expressly agreed in writing by Sol-Ark, Products
purchased are only to be distributed by Sol-Ark’s authorized sales
representatives or distributors. Customer will not purchase Products from
any source other than Sol-Ark or a Sol-Ark authorized sales representative
or distributor. Purchases made through non-authorized sales or marketing channels are not covered by any warranty (and are not covered by Section 8
(Warranty) of these Terms) nor shall Sol-Ark have any liability, under any
theory of recovery, to persons making purchases otherwise than through SolArk or an authorized Sol-Ark sales representative or distributor.
Prices
Prices and currency are in United States Dollars (and all payments must be
made in United States Dollars), unless otherwise expressly agreed and
confirmed in writing by Sol-Ark and included in a valid quotation provided
by Sol-Ark. Prices exclude delivery charges and are valid for the period
indicated in a valid quotation (or thirty (30) days from the date of quotation
if no period is included in the applicable quotation). Sol-Ark will separately
invoice for any additional charges related to special delivery or shipping
instructions agreed between the parties.
Prices exclude any sales, value added, withholding or other taxes, customs
duties, tariffs or similar fees, which Customer shall pay in addition to the
purchase price. If Sol-Ark, in its sole discretion, determines that Customer
may be unable, is unlikely or is not required, to make any of the foregoing
payments directly on its own behalf to any governmental authority, Sol-Ark
may add the taxes, duties, fees and other charges (as determined by Sol-Ark)
to the price to be paid by Customer. If Customer claims exemption from any
tax, Customer must provide a certificate of exemption acceptable to Sol-Ark
and the relevant taxing authority. Customer shall provide VAT-ID numbers
to support VAT exemptions of intra-European community supplies.
Customer shall notify Sol-Ark immediately if the VAT-ID number provided
becomes invalid or is changed or amended. Sol-Ark reserves the right to
retroactively charge VAT if VAT has been incorrectly exempted.
Sol-Ark may increase prices for Products scheduled for shipment upon
written notice to Customer. Customer may reject any price increase in
writing, and, if rejected in writing by Customer, Sol-Ark may, in its sole
discretion, (a) cancel, and not deliver, without liability, penalty or further
obligation to Customer, any orders for the affected Products or (b) deliver
the affected Products to Customer at the original price quoted by Sol-Ark. If
Sol-Ark does not receive a written rejection of a price increase within five
(5) days after notifying Customer of the proposed price change, then, in such
event, the proposed price increase will become effective, without further
action or notice, on the first day immediately following such five (5) day
notice period.
Delivery
Sol-Ark will seek to ship for Delivery on Sol-Ark’s confirmed delivery date
(the “Delivery Date”). Unless otherwise specified in writing by Sol-Ark,
“Delivery” is EXW Sol-Ark’s (or its designated contractor or agent) facility
shipping point (Incoterms 2020). Sol-Ark may make partial deliveries, which
may be separately invoiced. Delivery delay will not relieve the Customer of
its obligation to pay for Products or to accept subsequent deliveries. If SolArk cannot meet the Delivery Date, Customer and Sol-Ark may agree to
alternative arrangements. In the absence of an agreement regarding
alternative arrangements, Customer’s sole and exclusive remedy is to cancel
any portion of an order that Sol-Ark cannot deliver in compliance with the
Delivery Date, except that Customer may not cancel any order, or portion
thereof, within thirty (30) days of any Delivery Date (and such cancellation
shall operate as an unconditional waiver of any and all claims against SolArk, whether in contract, tort or otherwise, with respect to cancelled
Products and non-delivery). NOTWITHSTANDING ANYTHING TO THE
CONTRARY, ALL CUSTOMER ORDERS FOR NON-STANDARD,
SPECIAL OR CUSTOMIZED PRODUCTS ARE, IMMEDIATELY UPON
ACCEPTANCE BY SOL-ARK, NON-CANCELLABLE AND NONRETURNABLE FOR ANY REASON.
Any lead times or shipment dates (requested and/or quoted) provided by SolArk are estimates; Sol-Ark does not guarantee lead times or shipment dates.
Sol-Ark is, therefore, not liable for any loss, damage, costs or expenses,
whether in contract, tort or otherwise, for any failure to deliver in accordance
with the specified lead time or shipment date. Sol-Ark may deliver Products
in installments. In the event that Sol-Ark’s ability to supply Product becomes
constrained for any reason, whether through the occurrence of a Force
Majeure event or otherwise, Sol-Ark may, as Sol-Ark deems reasonable and in its sole discretion, reduce quantities or delay shipments to Customer and
may allocate production and delivery among its customers as Sol-Ark
deems appropriate and advisable in its sole discretion.
In the event of shipment errors, such as the wrong Product, inaccurate
quantities, shipment to the wrong location or other errors, Customer must
notify Sol-Ark of the purported error (with reasonable specificity) within
thirty (30) days from invoice date. Sol-Ark will seek to verify the claim (and
Customer shall fully cooperate in those efforts) and ship replacement parts
or correct the error, as Sol-Ark deems appropriate and advisable in its sole
discretion. If Product ordered by Customer is not standard product
customarily carried in stock by Sol-Ark, then, in such event, (x) delivery of
90% or more of the quantities specified shall constitute fulfillment of the
order and (y) Sol-Ark may deliver up to 110% of the order quantity, and, in
the case of both clause (x) and (y), Sol-Ark shall adjust the invoiced charges
to reflect the actual quantities shipped.
Transfer of Title and Acceptance
Subject to Section 9 (Licenses), title and risk of loss and damage to Products
passes to Customer upon Delivery at which time the Products are deemed
fully and unconditionally accepted. Sol-Ark reserves, and Customer hereby
grants to Sol-Ark, a purchase money security interest in all Products shipped
to Customer (and all resulting proceeds from any sale by Customer of
products or goods that include the Products) until Sol-Ark receives payment
in full in cash for those Products and any related charges or account balances
in Sol-Ark’s favor, including subsequent claims. Sol-Ark may file a financing
statement with appropriate authorities to perfect any security interest granted
to Sol-Ark hereunder. At Sol-Ark’s request, Customer shall promptly execute
all documents necessary under the Uniform Commercial Code, or similar
statutory provisions, to protect Sol-Ark’s interest in the secured property and
hereby irrevocably appoints Sol-Ark (which appointment is coupled with an
interest) as Customer’s attorney-in-fact for the express and limited purpose
of executing such documents if Customer is unable or refuses timely and
unconditionally to do so.
Payment
Unless otherwise specified, upon Sol-Ark’s credit approval (which may be
withheld, conditioned or delayed by Sol-Ark, in its sole discretion, for any
reason or for no reason), payment is due from Customer thirty (30) days from
the applicable invoice date. Sol-Ark reserves the right to charge a fee on late
payments calculated at the rate of two percent (2.0%) per month or the
maximum amount allowable by law, whichever is less, unless agreed
otherwise. Each shipment (including partial shipments) will constitute an
independent transaction and will be separately invoiced. Customer shall pay
for each transaction in accordance with the specified payment terms without
regard to other shipments, deductions or setoff. Customer has no right of, and
expressly waives, any right of setoff against Sol-Ark under these Terms and
shall not, under any conditions, withhold payment of invoiced amounts. SolArk may change credit or payment terms at any time in Sol-Ark’s sole
discretion. Sol-Ark may discontinue performance, and stop all shipments, if
Customer fails to pay any sums when due (whether or not in dispute), or if
Customer fails to cure any other breach of these Terms or any other Sol-Ark
agreement within ten (10) days’ after receipt of written notice of the breach.
Customer shall promptly and unconditionally reimburse Sol-Ark, in cash, for
any and all fees and expenses that Sol-Ark incurs in collecting outstanding
amounts due from Customer hereunder or otherwise enforcing these Terms
against Customer (including without limitation, attorneys’ fees and expenses
and court or similar costs).
Rescheduled Delivery; No Returns
Customer may not cancel orders or Delivery of any Product, except as
expressly permitted by Section 4 (Delivery) of these Terms. No reschedule of
Delivery is allowed unless (x) Sol-Ark gives prior written permission (which
Sol-Ark may or may not provide in its sole discretion, for any reason or for
no reason) or (y) the scheduled Delivery Date occurs more than thirty (30)
days after the date on which Customer makes the request and Customer has
not requested more than two (2) rescheduled Deliveries within the prior 12
months (including the request then being made). Customers may not return
Products, except as expressly permitted by Section 8 (Warranty) of these Terms and applicable law.
Warranty
Except as otherwise required by applicable Law, the sole and exclusive
warranty provided to Customer shall be set forth in Sol-Ark’s “Limited
Warranty” included in Sol-Ark Product documentation and shall only apply
to Products paid for by Customer and Products purchased by any customer
directly from Customer (no warranty is provided by Sol-Ark under this
Agreement for Products purchased by Customer from a source other than SolArk). Any Sol-Ark warranty expressly excludes other communications,
whether through email or otherwise, that may occur between or among
employees of Sol-Ark and those of Customer in the ordinary course of
business regarding Product performance. To obtain the benefits of any
Warranty, Customer shall fully comply with Sol-Ark’s policies and practices
regarding the return of materials (including the completion and submission to
Sol-Ark of any required Return Material Authorizations (RMAs)), and SolArk shall have no obligation to provide Warranty coverage in the event of any
failure to comply with those policies and practices.
Some Products may contain remanufactured parts. Unless Sol-Ark otherwise
agrees in writing, Sol-Ark may, at any time and without notice, make process
or materials changes affecting the performance or other characteristics of any
Product. Product supplied after any changes will continue to meet Sol-Ark’s
published specifications, but may not be identical to Products supplied as
samples or under prior orders. In addition to any limitations, qualifications and
exclusions set forth in the “Limited Warranty” referred to in this Section 8,
the Warranty set forth in this Section 8 does not apply to and Sol-Ark makes
no warranty, express or implied, with respect to: defects resulting from
improper or inadequate maintenance; use with third party supplied software
or supplies; unauthorized alterations or modifications of any Products;
improper use, handling or operation outside of published specifications or
otherwise inconsistent with published Product manuals, including use under
conditions for which the Product was not designed or use in an unsuitable
environment; circumstances in which the original identification markings
(including trademark or serial numbers) of Products have been defaced,
altered or removed (other than as a result of normal wear and tear); improper
installation; abuse (including electrostatic discharge), negligence, accident,
loss or damage in transit; or unauthorized maintenance or repair (including
repairs conducted by anyone other than Sol-Ark or any Sol-Ark authorized
repair firm). Sol-Ark does not warrant that any software (including Firmware)
is error free or that it will be free of vulnerability to intrusion or attack. In
addition, Sol-Ark’s Warranty as set forth in this Section 8 shall not be deemed
modified or in any way enlarged or extended, and no obligation or liability
shall arise out of Sol-Ark’s provision of technical advice, facilities or other
services in connection with any order submitted under this Agreement. Further
warranty exclusions, limitations and qualifications may be set forth in SolArk’s “Limited Warranty” referred to in this Section 8, as in effect from time
to time, or as otherwise expressly specified by Sol-Ark in any quotation,
purchase order acceptance or separate written agreement executed by Sol-Ark.
PRODUCTS THAT ARE SAMPLES, PRE-PRODUCTION OR
OTHERWISE NOT FINISHED ARE SOLD STRICTLY “AS IS.” THE
WARRANTY SET FORTH IN THIS SECTION 8 IS EXCLUSIVE AND NO
OTHER WARRANTY, WHETHER WRITTEN OR ORAL, IS EXPRESSED
OR IMPLIED. EXCEPT FOR THE LIMITED WARRANTY STATED IN
THIS SECTION 8, ALL WARRANTIES, EXPRESS, STATUTORY OR
IMPLIED, WITH RESPECT TO ANY PRODUCT, SOFTWARE,
SERVICE, OR OTHER ITEMS DELIVERED UNDER THESE TERMS,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY,
TITLE, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR
PURPOSE, ARE EXPRESSLY DISCLAIMED.
EXCEPT TO THE EXTENT OF ANY EXPRESS WARRANTIES SET
FORTH IN THIS AGREEMENT, SOL-ARK EXPRESSLY DISCLAIMS,
AND EXPRESSLY WAIVES, ALL OTHER WARRANTIES AND
REPRESENTATIONS OF ANY KIND WHATSOEVER WHETHER
EXPRESS, IMPLIED, STATUTORY, ARISING BY COURSE OF
DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR
OTHERWISE, INCLUDING COMPLIANCE WITH MATERIALS
DECLARATION REQUIREMENTS, ANY WARRANTY OF
MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OR INFRINGEMENT OR MISAPPROPRIATION OF ANY RIGHT,
TITLE OR INTEREST OF ANY THIRD PARTY. NO ORAL OR
WRITTEN STATEMENT OR REPRESENTATION BY DISTRIBUTOR,
ITS AGENTS OR EMPLOYEES SHALL CONSTITUTE OR CREATE A
WARRANTY OR EXPAND THE SCOPE OF ANY WARRANTY
HEREUNDER.
For purposes of this Section 8 (Warranty), “Warranty Period” means the
period of time beginning with shipment and continuing until the one (1) year
anniversary of the shipment date. In the event that Sol-Ark confirms defects
or non-conformance to published specifications during the Warranty Period,
Sol-Ark will, at its sole and exclusive option, repair or replace the affected
Products or refund the net purchase price of the affected Products.
Licenses
Sol-Ark and its third party suppliers own and retain all rights, title and interest
in and to the Firmware and any other software that may be made available by
Sol-Ark (or any third party licensors) to a Customer. Third party suppliers
may protect their rights in the Firmware and any other software in the event
of any violation of applicable license terms. Firmware and any other software
provided by Sol-Ark to Customer is licensed, not sold, and Sol-Ark (or its
applicable licensors, if any) retains full and complete ownership of all
Firmware or software licensed hereunder, and any copies thereof, in whole or in
part, including all intellectual property rights (and all derivatives,
enhancements or modifications thereof (and written feedback provided to
Sol-Ark) as they relate to the Products, whether made or created by Sol-Ark,
its third party suppliers or Customer) related to any of the foregoing.
Sol-Ark grants Customer a non-transferable, worldwide, non-exclusive
limited license to use, perform, display, reproduce and distribute the
Firmware or any other software in accordance with the documentation
provided therewith and solely as incorporated and embedded into, or for use
in connection with, Products (and not for use on a standalone basis or
independent of Products purchased hereunder) directly, or through resellers
by means of multiple tiers of distribution, to end users. Documentation
provided with or for Firmware or any other software may include license
terms provided by Sol-Ark and Sol-Ark’s third party suppliers, which will
apply to the use of Firmware or any other software and take precedence over
these license terms to the extent of any direct conflict. In the absence of
documentation specifying the applicable license, Customer is granted the
right to use one (1) copy of the applicable software on one (1) machine or
instrument or as otherwise indicated on the quotation. Sol-Ark further grants
to Customer a non-exclusive, worldwide, non-transferable license to
sublicense to Customer’s resellers only its right to distribute the Firmware or
other software as set forth above consistent with these Terms. The licenses
granted in this Section 9 are subject to the restrictions set forth in these Terms.
Customer shall not distribute or disclose the Firmware or any other software,
nor permit any reseller or third party to distribute or disclose the Firmware or
any other software, except pursuant to an agreement with terms at least as
protective as those set forth herein. The sale of any Product shall not in any
way confer upon Customer, or upon anyone claiming under Customer, any
license (expressly, by implication, by estoppel or otherwise) under any patent
claim of Sol-Ark or others covering or relating to any combination, machine
or process in which a Product is or might be used, or to any process or method
of making a Product. Except and only to the extent as expressly permitted
herein, or required by applicable law, Customer shall not and shall not permit
any reseller or third party to: (a) reproduce the Firmware or any other
software; (b) modify, incorporate into or with other software, or create a
derivative work of any part of the Firmware or any other software; (c) reverseengineer or disassemble any Product, Firmware or other software or
decompile, disassemble, or otherwise attempt to derive the source code of the
Firmware or any other software; (d) distribute, sublicense, lease, rent, loan or
otherwise transfer Firmware or any other software to any third party; or (e)
remove Firmware or any other software from any Product into which the
Firmware or other software was incorporated or embedded.
Customer’s licenses under these Terms will terminate upon Customer’s
breach of these license terms. Customer must destroy all copies of any
Firmware or other software immediately upon termination and, if requested,
provide a certificate of destruction to Sol-Ark. If software or technical data is being acquired by or on behalf of the U.S.
Government or by a U.S. Government prime contractor or subcontractor (at
any tier), then the U.S. Government’s rights in the applicable software,
technical data and accompanying documentation shall be only the customary
commercial licenses provided to end user Customers as set forth in these
Terms.
Customer will not remove any copyright notices, proprietary markings,
trademarks or trade names from any Product. Customer shall reproduce SolArk’s copyright notice and all other proprietary notices, including copies in
machine-readable form. All copies of Firmware or other software (including
any derivative works, enhancements, modifications or other changes) shall be
and remain the sole and exclusive property of Sol-Ark or, if applicable, SolArk’s licensor.
Customer shall not use the name Sol-Ark or any of Sol-Ark’s trademarks or
service marks as part of its corporate or other legal name, or as part of the
name under which it conducts business. In addition, Customer shall not have
the right to use the Sol-Ark name, trademarks or service marks in any other
way unless and until a separate Sol-Ark trademark license has been duly
executed between Customer and Sol-Ark.
Limitation of Liability
FOR PURPOSES OF THE LIMITATIONS OF LIABILITY SET FORTH IN
THIS SECTION 10, “SOL-ARK” INCLUDES SOL-ARK, ITS
AFFILIATES, SUBSIDIARIES, AND THE DIRECTORS, OFFICERS,
EMPLOYEES, AGENTS, REPRESENTATIVES, ADVISORS,
SUBCONTRACTORS AND SUPPLIERS OF EACH OF THEM.
SUBJECT TO APPLICABLE LAW AND NOTWITHSTANDING
ANYTHING ELSE IN THESE TERMS, IN NO EVENT WILL SOL-ARK
BE LIABLE FOR SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR
CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION
DOWNTIME COSTS, LOSS OF DATA, RESTORATION COSTS, LOST
PROFITS, OR COST OF COVER) REGARDLESS OF WHETHER SUCH
CLAIMS ARE BASED ON CONTRACT, TORT, WARRANTY OR ANY
OTHER LEGAL THEORY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOL-ARK’S
LIABILITY TO CUSTOMER, WHETHER UNDER CLAIMS OF
CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, IS
LIMITED TO THE LESSER OF (i) THE AMOUNT ACTUALLY PAID BY
CUSTOMER TO SOL-ARK FOR THE PRODUCT THAT IS THE
SUBJECT OF SUCH DAMAGES, OR (ii) TEN THOUSAND UNITED
STATES DOLLARS ($10,000.00 USD). MULTIPLE CLAIMS SHALL
NOT ENLARGE THIS LIMIT.
THIS SECTION 10 APPLIES WHETHER OR NOT DAMAGES WERE
FORESEEABLE, EVEN IF SOL-ARK HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY
FAILURE OF ESSENTIAL PURPOSE OF ANY EXCLUSIVE REMEDY
PROVIDED IN THESE TERMS. THE LIMITATIONS SET FORTH IN
THIS SECTION 10 WILL NOT APPLY TO DAMAGES FOR BODILY
INJURY OR DEATH PROXIMATELY CAUSED BY SOL-ARK, FOR
WHICH CUSTOMER HAS THE RIGHT TO PROVEN DIRECT
DAMAGES.
THE REMEDIES IN THESE TERMS ARE CUSTOMER’S SOLE AND
EXCLUSIVE REMEDIES. UPON EXPIRATION OF THE WARRANTY
PERIOD REFERRED TO IN SECTION 8 (WARRANTY) ALL LIABILITY
OF SOL-ARK TO CUSTOMER IN RESPECT OF PRODUCTS
PURCHASED HEREUNDER, WHETHER IN CONTRACT, TORT OR
ANY OTHER LEGAL THEORY, SHALL IMMEDIATELY AND
WITHOUT FURTHER ACTION OR NOTICE TERMINATE.
Confidentiality
In the course of business, Customer may obtain knowledge, or become aware,
of information and data relating to Sol-Ark’s business, strategies, pricing,
technologies, intellectual property and Products (“Sol-Ark Confidential
Information”). Customer shall maintain all Sol-Ark Confidential Information
in confidence, shall use the Sol-Ark Confidential Information solely in a manner consistent with the purposes and intent of these Terms and shall not
disclose the Sol-Ark Confidential Information to any person, except, in any
case, as expressly permitted in writing by Sol-Ark. Customer shall, with
respect to Sol-Ark Confidential Information, use the degree of care and skill
that it uses to protect its own highly confidential information, but in no event
less than reasonable care to prevent the disclosure or unauthorized use of SolArk Confidential Information. Customer may disclose Sol-Ark Confidential
Information which is required to be disclosed pursuant to a legally
enforceable requirement of a government agency or court so long as
Customer provides prompt written notice to Sol-Ark of that requirement prior
to disclosure and cooperates with Sol-Ark, if requested, to limit or prevent
disclosure. All Sol-Ark Confidential Information is and shall remain the sole
and exclusive property of Sol-Ark (or any other person from which Sol-Ark
may have received the same prior to disclosure to Customer). Upon Sol-Ark’s
written request, Customer shall immediately return to Sol-Ark, or
permanently destroy, all Sol-Ark Confidential Information and all copies
thereof (wherever stored, whether in the cloud, on a computer network, email
system or other collaborative work platform and in whatever form of media).
End of Life
Sol-Ark may, without liability or penalty, terminate or discontinue
manufacturing and production, at any time, of any Product, with or without
prior notification. In the event of Product termination or discontinuance, SolArk may, in its sole discretion and without obligation, offer Customer an
opportunity to make a final Product purchase. If an offer for a final Product
purchase is made by Sol-Ark, Sol-Ark must receive an order for the final
purchase within any period specified by Sol-Ark, with shipment and payment
terms as set forth and determined solely by Sol-Ark. PRODUCTS
PURCHASED UNDER A FINAL OFFER ARE, IN ALL CASES, UPON
ACCEPTANCE BY SOL-ARK, NON-CANCELLABLE AND NONRETURNABLE FOR ANY REASON.
Miscellaneous
Notices. All notices required or permitted under these Terms shall be in
writing and addressed to Sol-Ark and will be considered given when (i)
delivered personally, (ii) sent by commercial overnight courier with written
verification receipt, o r ( i i i ) three (3) days after having been sent, postage
prepaid, by first class or certified mail.
Force Majeure. Sol-Ark will not be liable for performance delays or for nonperformance due to any Force Majeure event, and Sol-Ark’s performance will
be excused for the entire period during which any Force Majeure event
continues.
Legal Compliance. Customer shall comply with all applicable federal, state,
local and foreign laws, regulations and ordinances. Sol-Ark may suspend
performance if Customer is in violation of applicable laws, regulations or
ordinances. Customer acknowledges that Products, software, including
Firmware, and/or technical data and information (including data and
information related to services and training) may be subject to export controls,
including, but not limited to, export controls administered under the U.S.
Export Administration Regulations (EAR). Customer shall be responsible for
ensuring compliance with all applicable export laws and regulations relating
to the export thereof, and shall not export or re-export any Products, software,
including Firmware, or technical data or information (including data and
information related to services and training) received from Sol-Ark in
violation of any applicable law. Customer agrees that none of the foregoing
Products, software, including Firmware, or technical data and information is
being or will be acquired for, shipped, transferred, or re-exported, directly or
indirectly, to prohibited or embargoed countries, nor be used for any
prohibited end-use, such as nuclear activities, chemical/biological weapons,
or missile projects, unless expressly authorized by the U.S. Government. If requested by Sol-Ark, Customer shall provide to Sol-Ark any written
assurances and other export-related documents as may be required to comply
with U.S. export regulations or any other governmental regulatory agency
requirements.
Bankruptcy. If Sol-Ark becomes aware that Customer has become insolvent,
has become unable to pay its debts when due, files for bankruptcy, has become
the subject of an involuntary bankruptcy, has a receiver appointed, or
undertakes any process in which it intends to assign its assets for the benefit
of creditors, then, in any such case, Sol-Ark may, in its sole discretion, without
penalty, cancel pending Product orders, cancel unfulfilled obligations or
request additional security, including the posting of a letter of credit or
introduce requirements for prepayment or cash-on-delivery, to maintain
Customer in good status.
Governing Law and Attorneys’ Fees. These Terms shall be governed by and
construed in accordance with the internal laws of the State of Texas,
without regard to the principles of the conflict of laws thereof. Customer
hereby expressly consents to the non-exclusive, personal jurisdiction and
venue of the state and federal courts located in the county of Dallas, Texas for
any action or matter arising from or related to these Terms. Notwithstanding
any provision in these Terms, Sol-Ark or Customer may request any judicial,
administrative, or other authority to order any provisional or interim measure,
including injunctive relief, specific performance, or other equitable relief,
prior to the institution of legal proceedings, or during the proceedings, for the
preservation of its rights and interests or to enforce specific terms that are
suitable for provisional remedies. These Terms shall not be subject to, or
governed by, the United Nations Convention on Contracts for the International
Sale of Goods or the Uniform Computer Information Transactions Act, as
enacted in any jurisdiction. The prevailing party shall be awarded its
reasonable attorneys’ fees and the reasonable costs and expenses incurred in
any collection proceeding or action arising under, or related to the
enforcement of, these Terms.
Assignment; Waiver. Customer shall not assign these Terms or any of its
rights or delegate any of its duties under these Terms without the prior written
consent of Sol-Ark (which may be withheld, delayed or conditioned in SolArk’s sole discretion). Subject to the foregoing, these Terms will be binding
upon, enforceable by, and inure to the benefit of the parties and their respective
successors and assigns. Any attempted assignment in violation of this Section
13 shall be null and void. Sol-Ark may, without notice or consent, assign these
Terms to any affiliate or subsidiary. Neither party’s failure nor delay to
exercise any of its rights under these Terms will be deemed a waiver of
forfeiture of those rights.
Severability. To the extent that any provision of these Terms is determined to
be illegal or unenforceable, the remainder of these Terms will remain in full
force and effect.
Government Contracting. Unless otherwise separately agreed in writing by
Sol-Ark, no provision herein shall be deemed an acceptance of any provisions
required in any U.S. Government contract or subcontract relating thereto
(“Government Contract”) nor shall any provision of any Government Contract
become part of this Agreement, imposed upon or binding on Sol-Ark.