Hy-Energy Terms and Conditions of Sale

Customer and Hy-Energy agree that the purchase and sales of Hy-Energy LLC ("Hy-Energy") hardware and software products ("the Products") are made under these terms and conditions, and that HY-ENERGY SHALL NOT BE BOUND BY CUSTOMER'S ADDITIONAL OR DIFFERENT TERMS. Customer's order and purchase of the Products shall constitute acceptance of these terms and conditions.
I. TITLE AND RISK OF LOSS. Title and risk of loss or damage to the Products shall pass from Hy-Energy to Customer at Hy-Energy’s place of business upon completion of the Product and notice to the Customer that the Product is ready for delivery. Hy-Energy retains a security interest and right of possession in the Products until Customer makes full payment.
II. THE PRODUCTS SUBJECT TO SALE. (a) The Products subject to this sale shall be limited to those products described on the face of Hy-Energy’s quotation form and/or Hy-Energy’s acknowledgment form. (b) Unless specifically noted on the face of Hy-Energy’s quotation form and/or Hy-Energy’s acknowledgment form, the Products subject to this sale do not include, and Customer hereby assumes responsibility for: (1) set up, start up, installation and/or training; (2) safety equipment used with the Products or by Customer’s employees or any third parties in handling or working with the Products; (3) making manuals or instructions as to the proper use and/or installation of the Products available to Customer’s employees; or (4) signs and/or plaques related to the proper use and/or installation of the Products. (c) Hy-Energy reserves the right to substitute substantially comparable Products for the Products which are the subject of this sale.
III. HY-ENERGY’S QUOTATION FORM. (a) Hy-Energy’s quotation form constitutes an offer, and may be accepted by Customer, PROVIDED THAT ACCEPTANCE BY CUSTOMER SHALL BE LIMITED TO AND SHALL INCLUDE ALL OF HY-ENERGY’S TERMS AND CONDITIONS OF SALE. ANY ADDITIONAL OR DIFFERENT TERMS PROPOSED BY CUSTOMER ARE HEREBY REFUSED AND REJECTED BY HY-ENERGY. (b) Any purchase order form of acceptance issued by Customer shall result in a contract for the purchase of the Products at the price quoted. The resulting contract shall include all of the terms set forth in Hy-Energy’s quotation and in any of Hy-Energy’s subsequent documents signed by Hy-Energy and included in the contract, all of which are hereafter called Hy-Energy’s Terms. Customer shall be deemed to have accepted any of Hy-Energy’s Terms not specifically objected to by Customer. Customer’s issuance of a purchase order which in effect rejects some or all of Hy-Energy’s Terms by virtue of its standard form language shall not be sufficient objection. Customer shall be required to set forth each objection to Hy-Energy’s Terms in a separate writing signed and dated by Customer and delivered to Hy-Energy prior to or contemporaneous with Customer’s purchase order or other form of acceptance. (c) Hy-Energy reserves the right to withdraw any and all quotations at any time prior to its receipt of Customer’s purchase order or other form of acceptance. In the event that Hy-Energy issues more than one quotation pertaining to the same Products, the quotation latest in time shall control and all prior quotations shall be deemed withdrawn. Withdrawal of any quotation shall not reinstate the terms of any prior quotation; however a subsequent quotation may modify a prior quotation, preserving the prior quotation to the extent specifically indicated on the face of the subsequent quotation form. (d) Hy-Energy’s quotation is not and shall not be considered a firm offer. (e) All quotations shall expire thirty (30) days from date of issuance, unless otherwise set forth on the quotation or agreed in writing.
IV. ACCEPTANCE. All orders are subject to acceptance by Hy-Energy. Hy-Energy's booking of an order shall constitute its acceptance of an order.
V. HY-ENERGY’S ACKNOWLEDGMENT FORM. In cases where Hy-Energy has not issued a quotation, Hy-Energy’s acknowledgment form constitutes an acceptance of Customer’s purchase order. However, Hy-Energy’s acceptance is expressly conditioned upon Customer’s assent to any terms in Hy-Energy’s acknowledgment which are additional to or different from the terms contained in Customer’s purchase order. No contract shall be formed if Customer does not consent to such additional and/or different terms and conditions.
VI. DIFFERENT OR ADDITIONAL TERMS OF CUSTOMER. REGARDLESS OF ANY OTHER TERMS AND DOCUMENTS ISSUED BY CUSTOMER OR OTHER PARTIES OTHER THAN HY-ENERGY, THE TERMS AND CONDITIONS OF THIS DOCUMENT ARE THE ONLY TERMS AND CONDITIONS EXPRESSLY AGREED UPON BY HY-ENERGY, UNLESS SPECIFIED CHANGES, ALTERATIONS, OR ADDITIONS ARE AGREED TO IN WRITING SIGNED BY AN AUTHORIZED OFFICER OR REPRESENTATIVE OF HY-ENERGY. SIGNATURE BY HY-ENERGY ON ANY OTHER DOCUMENT OF CUSTOMER OR ANOTHER COMPANY SHALL NOT CONSTITUTE ACCEPTANCE BY HY-ENERGY OF ANY TERMS OR CONDITIONS THEREON. SIGNATURE BY HY-ENERGY ON SUCH DOCUMENTS CONSTITUTES ONLY ACKNOWLEDGMENT OF PHYSICAL RECEIPT THEREOF AND DOES NOT IN ANY WAY IMPLY AGREEMENT WITH ANY OTHER TERMS AND CONDITIONS OTHER THAN THOSE EXPRESSLY PRINTED IN THIS DOCUMENT.
VII. MODIFICATION. (a) Any resulting contract between the parties may only be modified if Hy-Energy issues a new quotation or acknowledgment form setting forth at least the new terms and conditions of the contract. If Customer does not object to the new terms and conditions in writing within ten (10) days of the date of the new quotation or acknowledgment form, the new terms and conditions shall become a part of the contract. Customer’s objection to such new terms and conditions shall be by a special, separate writing signed and dated by Customer. (b) Customer shall be deemed to consent to the new terms and conditions of the contract proposed by Hy-Energy to the extent that Customer does not object to those new terms and conditions within ten (10) days of the date of the new quotation or acknowledgment.
VIII. PRICES. Prices published or quoted by Hy-Energy are subject to change without prior notification. All prices are based on U.S. dollars, FOB Hy-Energy’s place of business, Fremont, California, unless another FOB point is specified. Prices do not include any taxes (sales, excise, use, service, value added, etc.) or any export or import duties imposed by any country that may be applicable to the sale of the Products. Such taxes or duties, if applicable, will be paid by Customer, and Customer hereby expressly agrees to indemnify and hold harmless Hy-Energy from any claim, loss, damage, liability or expense with regard to the payment of any such taxes or charges.
IX. ERRORS. Hy-Energy reserves the right to correct any typographical or clerical errors which may be present in prices, specifications, quotations or acknowledgments.
X. TERMS OF PAYMENT. Unless other terms of payment are specified in Hy-Energy’s quotation and/or acknowledgment, payment shall be made in full at Hy-Energy’s main offices in Fremont, California, U.S.A., or at another point designated by Hy-Energy prior to delivery. Unless otherwise stated in Hy-Energy’s Invoice or purchase order or acknowledgement form, payment is not contingent upon any other condition including, without limitation, installation, or field tests. Payments for orders accepted in the United States shall be made in U.S. Dollars. In the event of any order for several units, each unit(s) will be invoiced when shipped. Exceptions will be made for government purchase orders. Customer hereby agrees to make such payment in full without any deduction for claim of set-off or recoupment on account of this contract or any other contract or matter between the parties. If shipment is delayed by Customer, payment shall become due thirty (30) days from the date Hy-Energy has notified Customer that it is ready to ship. If production by Hy-Energy is delayed by Customer, partial payment is to be made based on the acknowledged price and a percentage of completion at the time of notification of delay. Should Customer delay payment beyond limits defined in Hy-Energy’s quotations and/or acknowledgments, interest shall be charged at the lesser of eighteen (18%) percent per annum or the maximum rate allowed by applicable state laws and Customer hereby agrees to pay all interest charges as so assessed. When specified in Hy-Energy’s quotation and/or acknowledgment, partial payments shall be made upon receipt of order and at specified milestones prior to final delivery according to a payment schedule approved by Hy-Energy. Customer shall make payment in full prior to or upon delivery by bank transfer, cashier's check, or money order.
XI. CANCELLATION. After Hy-Energy has sent acknowledgment of Customer’s purchase order to Customer, Customer will have no right of cancellation of the resulting contract without written approval of Hy-Energy. If written approval is given, Customer shall be responsible to Hy-Energy for, and hereby agrees to pay, all costs incurred by Hy-Energy including materials, labor and expenses as of the effective date of cancellation plus a cancellation fee equal to thirty percent (30%) of the total price set forth in the contract plus material costs up to a maximum of fifty percent (50%) of the contract amount. However, Hy-Energy shall take responsible steps to mitigate damages immediately upon receipt of a written cancellation notice from Customer. Should Products already have been shipped prior to the request for cancellation, Hy-Energy has the option to accept or refuse return of the Products. If return is accepted, Customer must return all Products to the location designated by Hy-Energy, freight prepaid. The return will be subject to a restocking charge of fifty percent (50%) of the total price set forth on the order. In addition, if work is needed to return the Products to a saleable condition, these costs will also be charged to the Customer. Hy-Energy may terminate any order if any representations made by Customer to Hy-Energy are false or misleading. Changes to orders shall not be binding upon nor be put into effect by Hy-Energy unless confirmed in writing by Hy-Energy.
XII. SHIPMENT DELIVERY AND DELAYS. Any shipment date stated in the quotation and or acknowledgment is approximate only and does not constitute any guarantee of shipment on any particular date. Notwithstanding the reservation of title by Hy-Energy, risk of loss or damage to all Products sold CIF Destination shall pass from Hy-Energy to Customer upon delivery by Hy-Energy to possession of the carrier or other person providing delivery of the Products. Claims for shipment shortage shall be deemed waived unless presented to Hy-Energy in writing within thirty (30) days of receipt. Any acceptance testing agreed to by Hy-Energy in writing shall be done within a reasonable period of time after delivery which time shall not exceed 30 days. Any claims for loss or damage after possession by the carrier will be solely between Customer and the carrier. Hy-Energy will provide reasonable assistance to Customer in filing loss or damage claims. Hy-Energy will attempt to package, load and prepare all shipments with reasonable care to assure arrival of Products at destination in good condition, but Hy-Energy cannot control the manner in which the shipment is moved or handled and will not be responsible for shifting of loads within the carrier, or other damage to Products by material handling equipment. If shipment by Hy-Energy is delayed or extended by Customer, Customer shall arrange for and notify Hy-Energy of the place or places to which Hy-Energy shall ship the Products covered by the order, for warehousing or storage at Customer’s expense. All risk of loss or damage to stored Products shall be borne by Customer. Customer shall pay all packing and shipping charges. If the Products are sold to a Customer outside the United States, the Customer shall pay all freight charges, applicable import duties, and other necessary fees and shall bear the risks of carrying out customs formalities and clearance. Customer is responsible for and agrees to obtain insurance to fully cover the value of the Products while in transit to Customer.
XIII. INSTALLATION. Unless otherwise set forth in a quotation and/or acknowledgment, Hy-Energy shall not be responsible for installation. Cost of and all risks of damage to the equipment and/or components thereof caused by installation shall be the sole responsibility of Customer. If supervision of installation and/or supervision of start up of the equipment is to be provided by Hy-Energy, Customer shall assume all costs incurred by Hy-Energy in furnishing supervision. If supervision of installation and/or supervision of start up of the equipment is provided by Hy-Energy. Hy-Energy shall only be responsible for any loss or damage growing out of a direct negligent act or acts of Hy-Energy’s supervisor. HY-ENERGY SHALL NOT BE RESPONSIBLE FOR IMPROPER OPERATION OF THE EQUIPMENT DUE TO FAULTY ERECTION OR INSTALLATION.
XIV. INSTALLATION PERFORMANCE. Hy-Energy shall have no responsibility for the performance of its Products when installed under conditions varying materially from those under which are recommended for the product or when the customer fails to exercise prudent care in the installation, use, maintenance and operation of the Product.
XV. WARRANTY AND WARRANTY LIMITATIONS & DISCLAIMERS. Hardware Products manufactured by Hy-Energy are warranted to be free of defective materials and workmanship for a period of ninety (90) days from the date Hy-Energy ships the Products to Customer ("Delivery Date"). All software Products developed by Hy-Energy are licensed to Customer under the terms of the Hy-Energy software license stated hereunder. For a period of ninety (90) days from the Delivery Date, Hy-Energy software Products (when properly installed on hardware Products sold by Hy-Energy) (1) will perform substantially in accordance with the accompanying written materials, and (2) the medium on which the software product is recorded will be free from defects in materials and workmanship under normal use and service. Customer must obtain a signed authorization from Hy-Energy before returning any Products under warranty to Hy-Energy. Customer shall pay expenses for shipment of repaired or replacement Products to and from Hy-Energy. If after examining and testing a returned product, Hy-Energy concludes that a returned product is not defective, Customer will be notified, the Product returned at Customer's expense, and a charge made for examination and testing. Hardware and software Products are warrantied only to the extent that they have been used under normal operating conditions. This Limited Warranty is void if failure of the hardware and/or software Products has resulted from accident, abuse, improper calibration by Customer, misapplication, Customer supplied third party software not intended for use with the applicable Hy-Energy software or hardware, or unauthorized or improper maintenance, modification, tampering or repair. Equipment and accessories sold but not manufactured by Hy-Energy are warranted only to the extent that either Hy-Energy or Customer is able to recover under the original manufacturer’s warranty. Such equipment and accessories include, but not limited to, third party software, computers, monitors, printers, data acquisition devices, vacuum pumps, thermocouples, pressure regulators, PID controllers, valves, air operated controls, and furnaces. This warranty shall not be assignable by Customer. For sales outside the United States, the use of the terms "warranty" and "warranties" shall also include "condition of contract" and "conditions of contract", respectively as appropriate, as used in this Agreement.
XVI. WARRANTY LIMITATIONS: ALL PRODUCTS OUTSIDE THE CONTINENTAL U.S. AND CANADA CARRY A PARTS-ONLY WARRANTY AND CONDITION OF CONTRACT. THE ABOVE WARRANTIES AND CONDITIONS OF CONTRACT FOR ALL PRODUCTS DESCRIBED DO NOT COVER ABUSE, NEGLECT, LACK OF NORMAL MAINTENANCE, ACCIDENTS OR OTHER EXCEPTIONAL CIRCUMSTANCES. Date of shipment will be defined as the date of departure from Hy-Energy’s place of business. A copy of the product invoice is required as verification of the date of shipment. Hy-Energy’s sole obligation under this warranty will, at its option, be discharged by refunding the price of, furnishing or repairing, without charge, FOB its factory, a similar part to replace any part of its own manufacture which, within the above specified periods, proves to have been defective, provided that within a reasonable time for inspection not to exceed 30 days after delivery, Hy-Energy is notified in writing during the applicable warranty period of such defects and the equipment, material or part claimed to be defective is delivered prepaid to Hy-Energy at Fremont, California with evidence that it has been properly maintained and used in accordance with instructions. Customer may not bring an action to enforce its remedies under the foregoing Limited Warranty more than one (1) year after the accrual of such cause of action. If, in connection with such warranties, repairs are performed by the Customer with the written authorization of Hy-Energy, then the expense in connection with such repairs shall not exceed the cost of material and direct labor. If such repairs are performed by Customer without the written authorization of Hy-Energy, Hy-Energy will not assume any of the expenses in connection with such repairs and will immediately void any remaining warranty on the Products. EXCEPT AS EXPRESSLY SET FORTH ABOVE, THE PRODUCTS ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THE REPAIR OR REPLACEMENT WARRANTY HEREIN SET FORTH IS THE EXCLUSIVE WARRANTY GIVEN BY HY-ENERGY FOR ITS PRODUCTS. THIS WARRANTY IS GIVEN IN LIEU OF ANY OR ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF CONTRACT, WHETHER WRITTEN OR ORAL, EXPRESSED OR IMPLIED. ANY AND ALL IMPLIED WARRANTIES (AND, FOR SALES OUTSIDE THE U.S., CONDITIONS OF CONTRACT) OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT OR ANY OTHER WARRANTIES (AND CONDITIONS OF CONTRACT) THAT MAY ARISE FROM USAGE OF TRADE OR COURSE OF DEALING ARE HEREBY EXPRESSLY EXCLUDED BY HY-ENERGY. HY-ENERGY DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF THE PRODUCTS IN TERMS OF CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE AND DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR WILL NOT CAUSE ANY LOSS OF DATA OR DISRUPTION OF BUSINESS OPERATIONS. HY-ENERGY NEITHER ASSUMES, NOR DOES IT AUTHORIZE ANY OTHER PERSON TO ASSUME ON ITS BEHALF, ANY OTHER LIABILITY IN CONNECTION WITH THE SALE OF ITS PRODUCTS.
XVII. LIMITATION OF LIABILITY. THE ENTIRE LIABILITY OF HY-ENERGY AND ITS LICENSORS, DISTRIBUTORS, AGENTS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, ATTORNEYS, AND AGENTS) SHALL, TO THE MAXIMUM EXTENT PERMITTED BY LAW, BE LIMITED TO THE PRICE PAID FOR THE PRODUCT, EXCLUSIVE OF SHIPPING, HANDLING, INSURANCE, TAX, CUSTOMS CHARGES. HY-ENERGY AND ITS LICENSORS, DISTRIBUTORS, AGENTS, AND SUPPLIERS (INCLUDING ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AND AGENTS) SHALL NOT BE LIABLE, WHETHER AS A RESULT OF BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING HY-ENERGY'S OR CUSTOMER'S NEGLIGENCE OR STRICT LIABILITY) OR ANY OTHER CAUSE OF ACTION, FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL AND EXEMPLARY DAMAGES INCURRED BY CUSTOMER INCLUDING BUT NOT LIMITED TO, ANY LOST PROFITS, LOST SAVINGS, BUSINESS INTERRUPTION DAMAGES, LOST BUSINESS INFORMATION, LOSS OF SALES, LOSS OF REVENUE OR GOOD WILL; LOSS OF USE OF PRODUCTS OR ANY ASSOCIATED EQUIPMENT OR MATERIAL; COST OF CAPITAL; COST OF SUBSTITUTE PRODUCTS, FACILITIES OR SERVICES; DOWN TIME COSTS; ATTORNEY’S FEES OR LOSSES OR CLAIMS OF CUSTOMER FOR SUCH DAMAGES OR ANY OTHER DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE PRODUCTS, EVEN IF HY-ENERGY OR ITS LICENSORS, DISTRIBUTORS, AND SUPPLIERS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER HEREBY AGREES TO INDEMNIFY AND HOLD HARMLESS HY-ENERGY FROM ANY AND ALL SUCH DAMAGES. CUSTOMER FURTHER AGREES TO DEFEND, INDEMNIFY AND HOLD HARMLESS HY-ENERGY FROM ANY AND ALL CLAIMS, LIABILITY, DAMAGES OR EXPENSES (INCLUDING ATTORNEY’S FEES) DUE TO PERSONAL INJURIES OR DEATH, TO CUSTOMER, ITS EMPLOYEES, AND THIRD PARTIES AND FROM PROPERTY DAMAGE RESULTING FROM THE NEGLIGENCE OR STRICT LIABILITY OF CUSTOMER NOTWITHSTANDING THE PROVISIONS OF ANY WORKER COMPENSATION OR SIMILAR STATUTE. IN NO EVENT SHALL HY-ENERGY'S LIABILITY FOR DAMAGES OR LOSSES EXCEED THE GREATER OF $5,000 OR FEES PAID FOR THE SPECIFIC PRODUCT THAT CAUSED SUCH DAMAGE.
XVIII. WARNING: IN ANY APPLICATION, RELIABILITY OF OPERATION OF THE SOFTWARE PRODUCTS CAN BE IMPAIRED BY ADVERSE FACTORS, INCLUDING BUT NOT LIMITED TO FLUCTUATIONS IN ELECTRICAL POWER SUPPLY, COMPUTER HARDWARE MALFUNCTIONS, COMPUTER OPERATING SYSTEM SOFTWARE FITNESS, FITNESS OF COMPILERS AND DEVELOPMENT SOFTWARE USED TO DEVELOP AN APPLICATION, INSTALLATION ERRORS, SOFTWARE AND HARDWARE COMPATIBILITY PROBLEMS, MALFUNCTIONS OR FAILURES OF ELECTRONIC MONITORING OR CONTROL DEVICES, TRANSIENT FAILURES OF ELECTRONIC SYSTEMS (HARDWARE AND/OR SOFTWARE), UNANTICIPATED USES OR MISUSES, OR ERRORS ON THE PART OF THE USER OR APPLICATIONS DESIGNER (ADVERSE FACTORS SUCH AS THESE ARE HEREAFTER COLLECTIVELY TERMED "SYSTEM FAILURES"). ANY APPLICATION WHERE A SYSTEM FAILURE WOULD CREATE A RISK OF HARM TO PROPERTY OR PERSONS (INCLUDING THE RISK OF BODILY INJURY AND DEATH) SHOULD NOT BE RELIANT SOLELY UPON ONE FORM OF ELECTRONIC SYSTEM DUE TO THE RISK OF SYSTEM FAILURE. TO AVOID DAMAGE, INJURY, OR DEATH, THE USER OR APPLICATION DESIGNER MUST TAKE REASONABLY PRUDENT STEPS TO PROTECT AGAINST SYSTEM FAILURES, INCLUDING BUT NOT LIMITED TO BACK-UP OR SHUT DOWN MECHANISMS. BECAUSE EACH END-USER SYSTEM IS CUSTOMIZED AND DIFFERS FROM HY-ENERGY'S TESTING PLATFORMS AND BECAUSE A USER OR APPLICATION DESIGNER MAY USE HY-ENERGY PRODUCTS IN COMBINATION WITH OTHER PRODUCTS IN A MANNER NOT EVALUATED OR CONTEMPLATED BY HY-ENERGY, THE USER OR APPLICATION DESIGNER IS ULTIMATELY RESPONSIBLE FOR VERIFYING AND VALIDATING THE SUITABILITY OF HY-ENERGY PRODUCTS WHENEVER HY-ENERGY PRODUCTS ARE INCORPORATED IN A SYSTEM OR APPLICATION, INCLUDING, WITHOUT LIMITATION, THE APPROPRIATE DESIGN, PROCESS AND SAFETY LEVEL OF SUCH SYSTEM OR APPLICATION.
XIX. LIMITATIONS OF ACTIONS. (a) Customer or anyone claiming through Customer must bring any action against Hy-Energy within one (1) year from the date on which the act complained of occurs; and (b) Hy-Energy shall have a maximum of four (4) years from the date when payment is due from Customer to Hy-Energy to bring any action against Customer.
XX. PRODUCT CHANGES. Factors beyond Hy-Energy’s control and the need for continuing improvements of products require the making of changes in products from time to time. Hy-Energy reserves the right to make reasonable design modifications of parts against any order, unless this right is specifically waived by Hy-Energy in writing. Hy-Energy will have no responsibility whatever with respect to changes made to Products sold but not manufactured by Hy-Energy.
XXI. EXCUSABLE NONPERFORMANCE. Hy-Energy shall be excused for any delay or failure to perform due to any cause beyond its reasonable control, including but not limited to fire, theft, vandalism, acts of governments, war, terrorism, natural catastrophes, acts of Customer, interruptions of transportation or inability to obtain necessary labor or materials or sudden, substantial (20%+) increases in labor or material costs. Hy-Energy's estimated shipping schedule shall be extended by a period of time equal to the time lost because of any excusable delay. In the event Hy-Energy is unable to perform in whole or in part because of any excusable failure to perform or the delay extends for more than ninety (90) days, Hy-Energy may cancel orders without liability to Customer. In addition, Hy-Energy shall not be responsible for any non-compliance with any applicable statutes, acts, ordinances, regulations, orders or instructions of any federal, state, municipal or local government or any other agencies or departments. If certain certifications or standards are required, the purchase order accepted by Hy-Energy must specify such requirements and all such certifications or permits. Hy-Energy shall not be responsible to Customer or any third party for any damages resulting from failure to manufacture, delays in manufacture, failure to make shipment, or delay in shipment where such failure to perform or delay in performance is due to compliance or noncompliance with any statutes, acts, ordinances, regulations, orders or instructions of any federal, state, municipal or local government or any other agencies or departments; acts of God; acts of civil or military authority; fire; flood; strikes, factory or plant shutdown, or other labor disputes; embargoes, war, riot or civil disturbance; delays in transportation; inability of Hy-Energy to obtain necessary labor or to schedule manufacturing capacity; lack of manufacturing facilities or equipment of Hy-Energy; lack of utilities, utility service or energy availability or inability to obtain, or delays in obtaining materials, supplies, components or other matters from third parties, or any cause or causes beyond the reasonable control of Hy-Energy.
XXII. INTELLECTUAL PROPERTY. All intellectual property associated with hardware and/or software developed by Hy-Energy shall be the exclusive property of Hy-Energy. This includes but is not limited to: patents, copyrights, trade secrets and other intellectual property rights associated with the design, construction, processes and function of hardware, software source code, software design, function and algorithms, creative or artistic design associated with hardware and/or software. No rights or ownership by the Customer of any intellectual property associated with Hy-Energy Products and/or services is either expressed or implied by ordering or purchasing Hy-Energy Products and services. Hy-Energy reserves the right to license all intellectual property associated with its Products. Such license agreements are not valid unless the full terms and conditions of such an agreement is accepted in writing by Hy-Energy.
XXIII. SOFTWARE. The sale of any Hy-Energy hardware Product does NOT include the sale of any required software. Use of software developed by Hy-Energy's and provided as part of any Product is subject to the license terms in the Software License attached hereto as Exhibit A. Software developed by Hy-Energy's may not be installed by the Customer or used by the Customer until the Customer has read and accepted the terms of the applicable Software License Agreement. Source code, copyrights and patents of Software developed by Hy-Energy are the exclusive property of Hy-Energy. If Hy-Energy so permits, any proposed assignee of the Software must agree to be bound by these terms and conditions and the Software License.
XXIV. COLLECTION COSTS, ATTORNEY’S FEES. Customer agrees that in the event suit is instituted by Hy-Energy to recover possession of any Products sold, to enforce any of these terms and conditions; or to collect any sums of money, damages or costs from the Customer hereunder or any sum of money for the use or rental of the Products, Customer shall pay all actual costs of collection and attorney's fees incurred by Hy-Energy in such suit or arbitration. In the event that Customer brings any action or arbitration against Hy-Energy arising from the sale or use of Hy-Energy’s Products and Customer fails to prevail in such action, Customer hereby agrees to reimburse Hy-Energy for any attorney’s fees and cost related to such litigation or arbitration.
XXV. ARBITRATION. Except for Hy-Energy’s right to seek non-monetary equitable or interim relief in a court of law, any claim or dispute related to or in connection with these terms and conditions and the sale of the Product shall be finally resolved through binding arbitration pursuant to the commercial arbitration rules (or, if the sale is outside the U.S., the international commercial arbitration rules) and procedures then in force of the American Arbitration Association. The location of the arbitration shall be San Francisco, California and any award shall be enforceable in any jurisdiction that a party to the arbitration is located in. The award shall bare interest computed at 18% of the amount of the award compounded per annum or the maximum legal rate of interest, which ever is less.
XXVI. ASSIGNMENT (a) Except as provided to the contrary hereunder, Hy-Energy or Customer may assign any contract resulting from one or more quotations and/or acknowledgments, with the other party’s written consent, which shall not be unreasonably withheld; (b) any such contract shall be binding upon and inure to the benefit of the successors and assigns of Customer and Hy-Energy; (c) any assignment of such contract by Customer, if approved by Hy-Energy, shall not relieve Customer of Customer’s duties to Hy-Energy hereunder, and in the event that Customer’s assignee fails in performing those duties to Hy-Energy, Hy-Energy shall have the right to pursue both Customer and Customer’s assignee for any appropriate relief.
XXVII. APPLICABLE LAW. The validity, performance and all matters relating to the interpretation and effect of a contract resulting from any one or more quotations and/or acknowledgments shall be governed by the laws of the State of California, U.S.A. The United Nations Convention for the International Sale of Goods is expressly excluded and shall not apply to or govern this agreement.
XXVIII. WAIVER. Failure of Hy-Energy to require Customers performance of any of these terms and conditions or waiver by Hy-Energy of any breach by Customer of any of these terms and conditions shall not prevent subsequent enforcement of such term and/or condition, nor shall it be deemed a waiver of any subsequent breach thereof.
XXIX. CAPACITY LIMITATIONS. All quotations are based on the current availability of Hy-Energy’s manpower, materials and manufacturing facilities to perform the design, fabrication, and services required. In the event other purchase orders are awarded to Hy-Energy that utilize the available manpower and facilities prior to the acknowledgment of Customers purchase order, Hy-Energy reserves the right to withdraw or amend its quotation accordingly.
XXX. ENTIRE AGREEMENT. The terms of a quotation and/or acknowledgment (including any specifications or other documents incorporated by reference therein) and these terms and conditions will constitute the entire understanding and agreement between Customer and Hy-Energy concerning the subject matter. Any representation, promise, course of dealing or trade usage not contained herein will not be binding on either party. No modification and amendment rescission, waiver or other change of any resulting agreement or any part thereof shall be binding upon Hy-Energy unless consented to in writing by Hy-Energy’s authorized representatives in Fremont, California, U.S.A. If any term or condition set forth in a quotation and or acknowledgment is declared null and void by any court with competent jurisdiction, the remaining terms and conditions shall nevertheless remain applicable.
Rev (01/03/02)
AS AN AUTHORIZED AGENT OF

(CUSTOMER'S COMPANY)

(COMPANY ADDRESS)
I HAVE READ, UNDERSTOOD, ACCEPT AND APPROVE THE FOREGOING:

(PRINTED NAME SIGNATURE DATE)
EXHIBIT A
CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE PLACING AN ORDER FOR ANY HY-ENERGY HARDWARE PRODUCTS. ALL SOFTWARE PROVIDED BY HY-ENERGY SHALL BE SUBJECT TO EITHER THE THIRD PARTY’S LICENSE AGREEMENT OR HY-ENERGY’S SOFTWARE LICENSE STATED BELOW. PLACEMENT OF AN ORDER THAT INCLUDES HY-ENERGY SOFTWARE SHALL BE SUBJECT TO THE TERMS AND CONDITIONS OF THE LICENSE AGREEMENT BELOW AND PLACEMENT OF THE PURCHASE ORDER INDICATES YOUR ACCEPTANCE OF THIS SOFTWARE LICENSE AGREEMENT.
1. PROPERTY RIGHTS, DEFINITION AND LEGAL NOTICE
The Hy-Energy software is licensed (not sold or given) to you, and Hy-Energy owns all copyright, trade secret, patent and other proprietary rights in the Software and its Content. The term "Content" includes all copies of the Software and the images, sounds, video clips, designs, text, and documentation contained in the Software.
You acknowledge notice that the Software and its Content is protected under copyright law and international treaties and may not be reproduced or copied, in whole or in part, in any manner or way except as provided in this license. It is illegal to sell, lease, rent or otherwise distribute copies of the Software without Hy-Energy’s prior written permission.
2. License
a. Authorized Use. Hy-Energy grants you a nonexclusive license to use the Hy-Energy software (or "Software") only on the Hy-Energy hardware product that the software is approved for and for no other purpose whatsoever. You may make one copy of the software for back-up purposes only. This back-up copy may not be transferred or distributed to any other party.
b. Restrictions. You may not: (1) copy (other than once for back-up purposes), distribute, rent, lease or sublicense all or any portion of the Software; (2) modify or prepare derivative works of the Software; (3) transmit the Software over a network, by telephone, or electronically using any means; or (4) reverse engineer, decompile or disassemble the Software. You agree to use your best efforts to prevent and protect the contents of the Software from unauthorized disclosure or use.
c. Transfer. You may transfer the Software, but only if the recipient agrees to accept the terms and conditions of this Agreement. If you transfer the Software, you must transfer all computer programs and documentation and erase any copies residing on computer equipment. Your license is automatically terminated if you transfer the Software.
d. Additional Licensing Terms. Some of the Shareware programs included in the Software may be subject to additional terms and conditions stated within the software program itself.
3. Product Warranties, Product Representations or Conditions of Contract
See section XV in Hy-Energy’s Terms and Condition of Sales. The entire risk as to the results and performance of the Software is assumed by you.
4. Disclaimer of Warranty And Limitation of Remedies
YOU UNDERSTAND AND AGREE AS FOLLOWS:
a. THE WARRANTIES, REPRESENTATIONS AND CONDITIONS OF CONTRACT IN THIS AGREEMENT REPLACE ALL OTHER WARRANTIES, REPRESENTATIONS OR CONDITIONS OF CONTRACT, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OR CONDITIONS OF CONTRACT OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. WE DISCLAIM AND EXCLUDE ALL OTHER WARRANTIES. IN NO EVENT SHALL HY-ENERGY BE LIABLE FOR ANY KIND OF DAMAGES INCLUDING ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, DISRUPTION OF BUSINESS OPERATIONS OR LOSS OF DATA, EVEN IF HY-ENERGY HAD KNOWLEDGE OF THE POTENTIAL LOSS OR DAMAGE.
5. Termination
This Agreement is effective until terminated. You may terminate it at any time by destroying the Software’s storage medium, and erasing any copies residing on computer equipment. This Agreement also will terminate if you do not comply with any terms or conditions of this Agreement. Upon such termination you agree to destroy the Software’s storage medium (diskette; CD-ROM, etc.) and erase all copies residing on computer equipment.
6. Reservation of Trademark and Service Mark Rights
Hy-Energy reserves all rights to its trade names, trademarks and service marks and no right is granted hereunder, implied or expressly, to any licensee or customer of any Hy-Energy product or software.
7. U.S. Government Restricted Rights
This Software is provided to the U.S. Government only with restricted rights and limited rights. Use, duplication, or disclosure by the Government is subject to restrictions set forth in FAR Sections 52-227-14 and 52-227-19 or DFARS Section 52.227-7013(C)(1)(ii), as applicable. Contractor/Manufacturer is Hy-Energy LLC [33902 Juliet Circle, Fremont, CA 94555 USA].
8. General
For any software not already loaded or embedded in an Hy-Energy product, you are responsible for installation of the Software. At all times, you are solely responsible for management and operation of the Software.