1. GENERAL The following terms and conditions apply to all sales of goods and services (collectively, “Deliverables”) by Sparkcharge, Inc. (“Sparkcharge”, “we”, “us” or “our”), to you (the “Customer”), and constitutes the final, complete and exclusive agreement (“Agreement”) between you and Sparkcharge relating to the subject matter hereof and supersedes all prior or contemporaneous proposals, understandings, representations, warranties, promises and other communications, whether oral or written, relating to such subject matter (including, without limitation, any “Terms and Conditions of Purchase” published by Customer), unless otherwise specifically agreed to in a writing signed by Sparkcharge’s authorized representative. Any term or condition in any order, confirmation, or other document furnished by Customer at any time, which is in any way inconsistent with or in addition to the terms and conditions set forth herein, is hereby expressly rejected, and Sparkcharge’s acceptance of any order of Customer is expressly made in reliance of Customer’s assent to all terms and conditions hereof. Customer’s acceptance of any Deliverables constitutes Customer’s acceptance of these terms and conditions.
2. PRICE The prices applicable to the Deliverables shall be as quoted by Sparkcharge to Customer and are subject to change. Unless otherwise specified, prices quoted for Deliverables are in US Dollars. Stenographic and clerical errors are subject to correction. A quotation is not a contractual offer and any order resulting from a quotation is subject to approval and acceptance by Sparkcharge. Prices listed or quoted do not include any present or future sales, use, excise or similar taxes, duties or other governmental charges, which will be added where applicable and paid for by Customer, unless you provide us with a tax exemption certificate acceptable to the appropriate taxing authorities and presented at or before the time of purchase. No sales tax refunds will be given at any time for any reason. Any taxes paid by Sparkcharge on Customer’s behalf shall be reimbursed by Customer upon demand.
3. PURCHASE ORDER PROCESS Customer shall place orders for the Deliverables to be purchased hereunder by submitting one or more purchase orders to Sparkcharge. Each such purchase order is intended for convenience only and shall state the descriptions and quantities of Deliverables being ordered and the requested shipments dates for such Deliverables. In no event shall any terms and conditions set forth on a purchase order submitted by Customer other than the terms and conditions set forth herein, including, without limitation, any preprinted terms and conditions of Customer, be binding on Sparkcharge. In addition, no purchase order shall be binding on Sparkcharge until Sparkcharge has accepted such purchase order by written acknowledgement or by shipment of the Deliverables applicable to such purchase order. Orders for the purchase of Deliverables when made by the Customer shall be considered irrevocable for such Customer.
4. PAYMENT TERMS Unless otherwise agreed to by Sparkcharge in writing, payment terms shall be net thirty (30) days from the date of invoice. If shipments are delayed by Customer, invoices may be rendered on the date(s) Sparkcharge is prepared to make shipment(s). 50% of the total payment amount should be paid to SparkCharge upon signing purchase order. Any Product held as a result of Customer’s inability or refusal to accept delivery is at the risk and expense of Customer. Interest at the rate of one and one-half percent (1 1/2%) per month (not to exceed the maximum interest allowable by law) shall be paid on the unpaid balance of any invoice not paid by Customer within thirty (30) days of the due date thereof. Such interest shall be in addition to the purchase price hereunder. In the event Sparkcharge engages a collection agency or commences a legal action or suit to collect the purchase price or any part thereof, Customer shall, in addition to the full purchase price, including interest, be liable for all costs and expenses of such legal action or suit (including reasonable attorney’s fees). Sparkcharge also reserves the right to require COD payment terms from any Customer whose account is overdue for a period of more than 45 days or who has an unsatisfactory credit or payment record. Sparkcharge may refuse to sell to any person until overdue accounts are paid in full.
5. SHIPPING POINT AND TRANSPORTATION Shipment/delivery dates are approximate and are determined from the date of Sparkcharge’s acceptance of an order. All shipments of Deliverables will be shipped F.O.B. Sparkcharge’s point of shipment. Title and risk of loss shall pass to Customer at the time Sparkcharge makes the Deliverables available to the carrier for shipment to the Customer, notwithstanding any prepayment of shipping charges by Sparkcharge, if so required by the carrier. All shipment costs shall be paid by Customer, and if prepaid by Sparkcharge, the amount thereof shall be reimbursed to Sparkcharge.
6. DELIVERY Sparkcharge will make every effort to deliver the Deliverables hereunder in accordance with the requested delivery date, provided that Sparkcharge shall not be liable for any delay in delivery due to causes beyond our reasonable control, such as acts of God, acts of the government, strikes, war, delays of carriers, or inability to obtain necessary materials. Sparkcharge shall not be liable for any damages or penalties whatsoever, whether direct or indirect, special, incidental or consequential, resulting from our failure or the failure of our suppliers to perform or delay in performing unless otherwise agreed in writing by an authorized officer of Sparkcharge. Customer agrees that any delay in delivery shall not affect the validity of any orders or these terms and conditions. Sparkcharge reserves the right to deliver the Deliverables in installments unless expressly prohibited in the applicable purchase order. Installment deliveries will be invoiced by Sparkcharge at time of shipment unless otherwise agreed in writing by Sparkcharge. Delay in any installment delivery shall not relieve Customer of its obligation to accept all remaining installment deliveries pursuant to a purchase order.
7. CHANGES TO ORDERS Unless otherwise agreed to by Sparkcharge in writing, changes in materials, supplies, labor and/or changes made at the request of Customer shall be at the expense of Customer. Changes or alterations made by Customer or made by Sparkcharge (over its recommendation against the same) shall be at Customer’s sole risk and responsibility. Sparkcharge reserves the right to make changes to the design and composition of its Deliverables which in its judgment do not materially change the nature or quality of the Deliverables.
8. CANCELLATION OF ORDERS Due to the specialized nature of the Deliverables, orders may be cancelled only with our written consent and upon payment of reasonable cancellation charges, including Sparkcharge’ actual out of pocket costs, overhead and anticipated profit (as determined by us). Partial cancellation of an order may result in adjustment of prices for the balance of the order.
9. REJECTION Customer’s right to reject any Deliverables supplied hereunder is conditioned upon Customer giving Sparkcharge a written notice of rejection setting forth the basis thereof within ten (10) days after delivery of the Deliverables to Customer. Failure to give such notice within such time constitutes acceptance of such Deliverables. Deliverables may be returned only when authorized by us in writing, and then only on such terms as Sparkcharge may specify. All returned Deliverables shall be returned with shipping prepaid.
10. LIMITED WARRANTY; DISCLAIMERS
(a) Sparkcharge represents and warrants that the Deliverables delivered by Sparkcharge to Customer shall be free from faulty workmanship and defective materials. The foregoing warranty shall be limited to a sixty (60) day period commencing on the date of shipment of the applicable Product(s) (the “Warranty Period”) provided (i) the Deliverables have been properly cared for (i.e. the Deliverables have not been subject to misuse, neglect, misapplication, etc.) and used in accordance with Sparkcharge’s instructions, if any, (ii) the Deliverables have not been tampered with or modified without Sparkcharge’s prior written approval, and (iii) Customer promptly notifies Sparkcharge in writing of any warranty claim during the Warranty Period. In the event any Product fails to meet the foregoing warranty, Sparkcharge’s sole obligation, in Sparkcharge’s sole discretion, shall be to either replace or repair the non-conforming Deliverable. The warranty provided by Sparkcharge in this Section 10 is the only warranty provided by Sparkcharge with respect to the Deliverables sold hereunder, and may be modified or amended only by a written instrument signed by Sparkcharge. Customer’s remedies and Sparkcharge’ aggregate liability with respect to the warranty provided by Sparkcharge in this Section 10 are set forth in and limited by this Section 10 and Section 11 below.
(b) Sparkcharge’s warranty above does not apply to Deliverables not manufactured by Sparkcharge and do not apply to components furnished by third parties. In addition, such warranty shall be for the sole benefit of the original Customer only and is not assignable unless otherwise agreed to in writing by Sparkcharge. Sparkcharge shall not be liable for any claim if alterations have been made to the Deliverables by the Customer or others without Sparkcharge’s written consent. Any components furnished by third parties are warranted only to the extent of the original manufacturer’s warranty to Sparkcharge and then only if such original manufacturer’s warranty is assignable to Customer.
(c) THE EXPRESS WARRANTY OF SPARKCHARGE STATED IN SECTION 10(a) ABOVE IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. SPARKCHARGE’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES ARE SOLELY AND EXCLUSIVELY AS STATED IN THIS SECTION 10. Any sample or literature exhibited to Customer was to illustrate the type of good and/or service and not an affirmation that the Product will conform. No employee or representative of SPARKCHARGE has authority to bind SPARKCHARGE to any representation, affirmation or warranty not specifically included herein.
11. LIMITATION OF LIABILITY Notwithstanding anything to the contrary contained in this Agreement, Sparkcharge’s aggregate liability in connection with the sale or use of the Deliverables hereunder, regardless of the form of action giving rise to such liability (whether in contract, tort or otherwise), shall not exceed the aggregate purchase price for Deliverables paid by Customer to Sparkcharge pursuant to an applicable order. Sparkcharge shall not be liable for any extraordinary, exemplary, special, indirect, consequential or incidental damages of any kind, including without limitation, lost profits, even if Sparkcharge has been advised of the possibility of such damages. THE FOREGOING STATES THE ENTIRE LIABILITY OF SPARKCHARGE WITH REGARD TO THIS AGREEMENT AND SPARKCHARGE’S SALE OF THE DELIVERABLES HEREUNDER. THE LIMITATIONS CONTAINED IN SECTIONS 10 AND 11 ARE A FUNDAMENTAL PART OF THE BASIS OF SPARKCHARGE’S BARGAIN HEREUNDER, AND SPARKCHARGE WOULD NOT ENTER INTO THIS AGREEMENT ABSENT SUCH LIMITATIONS.
12. NOTICES Notices may be delivered by overnight courier or fax, with proof of delivery, or by United States mail, registered or certified mail, with postage prepaid, in each case addressed to the party being notified at such party’s address referred to on the face of this Agreement, or at such other address as such party shall have notified the other party in writing.
13. NOT TRANSFERABLE This Agreement is not transferable or assignable by Customer either directly or by operation of law without the prior written consent of Sparkcharge.
14. HEADINGS Paragraph headings are for convenience only and shall not be construed to define or limit the operative provisions of this Agreement.
15. AMENDMENTS No amendment, change to or modification of this Agreement, or any schedules or attachments hereto, shall be valid unless the same shall be in writing and signed by the party or parties to be charged therewith.
16. APPLICABLE LAW The rights and duties of the parties shall be governed by the laws of the State of New York. The federal and state courts located within Onondaga County, New York shall have exclusive jurisdiction to determine any and all actions and proceedings relating to or arising from this Agreement and the sale of Product(s) hereunder and each party hereby irrevocably consents to the personal and subject matter jurisdiction of such courts with respect thereto.
17. SEVERABILITY In the event any provision or provisions herein, or parts thereof, shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired and shall remain in full force and effect.