All quotations and sales by Amprius Technologies, Inc. or its affiliates (“Amprius”) to the customer (“Customer”) identified on the quotation, order form, invoice, or other ordering document in which these terms and conditions (“Terms”) are referenced are subject to these Terms and the terms of such ordering document.
1. Payment; Shipment.
All orders will be consistent with established lead times, as applicable. Subject to Customer credit history and except as otherwise set forth in the sales order, terms of payment are net 30 days from invoice date. Except as otherwise set forth on the quotation or other ordering document in which these Terms are referenced, prices are Free Carrier (FCA) Amprius’ Fremont facility (Incoterms 2020) and do not include any taxes, freight, handling, duty, or other similar charges, payment of which will be the sole responsibility of Customer.
Amprius reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Customer’s creditworthiness or should Customer fail to fulfill any obligation when due. All product purchases shall be deemed irrevocably accepted upon delivery. Accounts past due will be subject to a monthly charge at the rate of the lower of (i) 1.5% per month or (ii) the highest rate of interest permitted by law. If any invoice issued to Customer is not paid within sixty (60) days of invoice date, notwithstanding any agreement or course of dealing between Amprius and Customer, (a) orders from Customer will be accepted only on a C.O.D. or cash-with-order basis until credit is reestablished to Amprius’ satisfaction and (b) Amprius may suspend shipment of any goods ordered by Customer.
2. Title and Risk of Loss; Storage Charges.
Amprius will select a carrier and arrange shipping; freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. Amprius’ responsibility for any loss or damage ends when products are delivered to the carrier for delivery to Customer or to Customer’s agent; and title will pass to Customer upon delivery by Amprius to the carrier. Upon that delivery, Customer will be responsible for and bear the entire risk of loss or damage to the goods.
Customer will pay for storage charges if Amprius holds products at Customer’s request pending instructions or rescheduled pickup/delivery.
3. Cancellations and Charges.
No order may be cancelled, rescheduled, or reconfigured without Amprius’ prior written authorization, and in such event, Customer will be liable to Amprius for any additional costs and expenses incurred by Amprius.
4. Security Interest.
Amprius hereby reserves a purchase money security interest in all products sold hereunder and the proceeds hereof, in the amount of the purchase price. In the event of default by Customer in any of its obligations to Amprius, Amprius will have the right to repossess the goods sold hereunder without liability to Customer. These security interests will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Amprius’ security interest. On the request of Amprius, Customer will execute financing statements and other instruments that Amprius may request to perfect Amprius’ security interest.
5. Price Changes.
Prices are subject to change by Amprius upon Customer rescheduling or reconfiguration of orders. Prices are also subject to change in response to supplier price increases, whereupon Customer may cancel the undelivered portion of any affected order by delivering written notice to Amprius prior to the shipment thereof and within 10 days of its receipt of notice of the price increase.
6. Limited Warranty.
(a) Performance Warranty. Amprius warrants to Customer that, for a period of 90 days from the manufacture date, the Amprius products as delivered will conform in all material respects to the product specifications in effect at the time of shipment. Customer may notify Amprius in writing of any material nonconformance during the warranty period. Amprius reserves the right to examine any allegedly non-conforming product and perform a failure analysis to determine if the alleged non-conformance is a result of defective materials or workmanship (in which case the remedies set forth in this Section shall apply), or does not exist or was caused by improper use or installation or damage in transit or while in the control of Customer (in which case Customer shall have no right to any remedies hereunder). If Amprius determines that the non-conformance was due to defective materials or workmanship, Amprius will issue a return authorization (“RMA”) for the nonconforming products, and Customer will return the nonconforming unit(s) to Amprius’ designated repair facility in accordance with the instructions set forth in the RMA. Amprius shall, at its option, either (i) repair or replace nonconforming products, at Amprius’ cost, and return the conforming products to Customer, or (ii) credit Customer for any non-conforming products. Any such repair or replacement provided to Customer will not extend the original warranty period. The foregoing sets forth Amprius’ sole and exclusive obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty. Customer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or breach of warranty is discovered by Amprius upon receipt of any returned item, the item will be returned to Customer at Customer’s expense and Customer will reimburse Amprius for the transportation charges, labor, and associated charges incurred in testing the allegedly defective item.
(b) Disclaimer. EXCEPT FOR THE EXPRESS WARRANTY SET FORTH ABOVE, AMPRIUS EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE.
7. Delays in Performance.
Amprius will not be liable for any failure or delay in its performance or in the delivery or shipment of products, or for any damages suffered by Customer by reason of such failure or delay, when such failure or delay is caused by, or arises in connection with, any fire, flood, accident, riot, earthquake, severe weather, war, act of terror, governmental interference or embargo, strike, shortage of labor, fuel, power, materials, or supplies, delay in delivery by Amprius’ suppliers, or any other cause or causes beyond Amprius’ reasonable control. Amprius reserves the right to cancel without liability any order, the shipment of which is or may be delayed for more than 30 days by reason of any such cause. Amprius reserves the right to allocate products in its sole discretion among customers or potential customers, or defer or delay the shipment of any product which is in short supply.
8. Governing Law and Venue.
The rights and obligations of the parties under these Terms shall not be governed by the provisions of the 1980 United Nations Convention on Contracts for the International Sale of Goods or the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended. Rather, these rights and obligations shall be governed in all respects by the laws of the State of California exclusively, as such laws apply to contracts between California residents performed entirely within California. The California state and federal courts of Santa Clara County, California, will have exclusive jurisdiction and venue over any dispute arising out of these Terms and any related sale, and Customer hereby consents to the jurisdiction of such courts. Customer shall bring action relating to any dispute Customer may have hereunder within one year of the accrual of such dispute.
9. Order of Precedence.
All quotations and sales are made only upon these Terms and those on the front of this document or the ordering or acknowledgment document to which these Terms are attached. These documents, and not any purchase order or other Customer document (to which objection is hereby given and which, if construed to be an offer, is hereby rejected), will be deemed an offer or counter-offer and is a rejection of any other terms or conditions. Amprius’ acceptance of any Customer purchase order is expressly conditioned on Customer’s assent to these Terms. Customer, by accepting any products, making any payments, or ordering any products having previously received these Terms, will be deemed to have assented to these Terms, notwithstanding any terms contained in any prior or later communication from Customer and whether or not Amprius will specifically or expressly object to any of Customer’s terms. Amprius’ failure to object to any document, communication, or act of Customer will not be deemed a waiver of any of these Terms. A duly authorized officer of Amprius must specifically agree to any addition or change to these Terms in writing before becoming binding on Amprius. Neither Amprius’ commencement of performance nor delivery shall be an acceptance of Customer’s additional or different terms and conditions. Notwithstanding anything to the contrary contained herein, in the event that there is an existing binding master supply agreement between Amprius and Customer, such master supply agreement will have higher precedence over these Terms in the event of any conflict or inconsistency.
10. Unintended Applications.
Unless specifically otherwise agreed to in writing by Amprius, Customer acknowledges that products sold by Amprius are not intended for and will not be used in life support systems, human implantation, nuclear facilities or systems, or any other application where product failure could lead to loss of life or catastrophic property damage. Customer will indemnify and hold Amprius harmless from any loss, cost, or damage resulting from Customer’s breach of the provisions of this paragraph.
11. Indemnification.
Customer shall indemnify, defend, and hold Amprius harmless from any claims from any third parties related to intellectual property infringement arising out of or based upon: (a) Use or resale of a product in combination with other products or components if such alleged infringement would not have arisen but for such combination. (b) A custom product, or any other product that is modified or provided to comply with designs, requirements, or specifications required by or provided by Customer. (c) Use or resale of a product for purposes not intended. (d) Failure to use or resell a product in accordance with Amprius’ instructions, documentation, or specifications. (e) Any modification of a product not made or authorized in writing by Amprius.
12. Trade Compliance.
Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States and other applicable jurisdictions. Products and other related technology provided hereunder (collectively, the “Materials”) may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end-user, end-use, and end-destination restrictions, and prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including, without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of economic sanctions of the United States or other applicable jurisdictions. Customer will indemnify and hold Amprius harmless from any loss, cost, or damage resulting from Customer’s breach of the provisions of this paragraph.
For Customers located outside of the United States and for Customers whose end users are located outside of the United States: Furthermore, Customer agrees to promptly provide Amprius with updated End Use & End User Statements if future purchase orders are for different end uses and/or end users from the information previously provided to Amprius. Otherwise, Amprius will operate under the assumption that all future purchase orders are for the end use and end user identified in the End Use & End User Statement previously provided to Amprius.
13. Limited Liability.
AMPRIUS’ LIABILITY ARISING OUT OF THESE TERMS AND/OR SALE WILL BE LIMITED TO A REFUND OF THE PURCHASE PRICE. IN NO EVENT SHALL AMPRIUS BE LIABLE TO CUSTOMER FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS BY CUSTOMER OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES OF ANY KIND, HOWEVER ARISING, WHETHER IN CONNECTION WITH THE FURNISHING OF PRODUCTS, PARTS, OR SERVICES HEREUNDER, OR THE PERFORMANCE, USE OF, OR INABILITY TO USE ANY PRODUCTS, PARTS, OR SERVICE, OR OTHERWISE, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AMPRIUS HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF ANY SUCH DAMAGES.
14. Intellectual Property Rights.
Amprius shall own all trademarks, copyrights, patents, trade secrets, and other intellectual and industrial property in and to its products (collectively, “Amprius IP”). Amprius IP includes, without limitation, any feature requests, enhancements, improvements, or modifications requested or suggested by Customer regarding any products. Customer shall not act to jeopardize, limit, or interfere in any manner with Amprius’ ownership of and rights with respect to any Amprius IP. Should Customer become aware of any facts which may indicate an infringement or violation of any Amprius IP, it shall promptly notify Amprius and shall cooperate reasonably with Amprius in enforcing such rights, at Amprius’ request and reasonable expense. Except as expressly set forth herein, no license is granted by Amprius by implication, estoppel, or otherwise under any Amprius IP, and Amprius reserves all rights not expressly granted in these Terms. The sale or provision of any product by Amprius shall not in any way confer any license (expressly, by implication, by estoppel, or otherwise) under any patent claim of Amprius or others covering or relating to any combination, machine, or process in which such product is or might be used, or to any process or method of making such product. Except as otherwise explicitly provided in these Terms or as may be expressly permitted by applicable law, Customer shall not, and shall not permit or authorize end users or other third parties to: (a) Reproduce, modify, translate, enhance, decompile, disassemble, reverse engineer, or create derivative works of any product. (b) Circumvent or disable any technological features or measures in the products, including security features. (c) Remove or alter any trademark, trade name, copyright, patent, patent pending, or other proprietary notices, legends, symbols, or labels appearing on the products or related documentation. (d) Apply for any registration in any country for any Amprius IP. (e) Do any other act that might invalidate or be inconsistent with the Amprius IP and Amprius’ ownership thereof.
15. Miscellaneous.
Any required notices shall be given in writing at the address of each party set forth in the quotation, or to such other address as each party may substitute by written notice to the other, and shall be deemed given upon personal delivery or three days following deposit in the mail. Amprius’ failure to or delay in exercising any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. All waivers must be in writing. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. Customer’s relationship to Amprius is that of an independent contractor, and neither party is an agent or partner of the other. If any provision of these Terms is unenforceable, such provision will be changed to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. Customer may not assign or delegate these Terms or its rights or duties hereunder (by operation of law or otherwise) without the prior written consent of Amprius. Any assignment not in conformity with the foregoing will be null and void. Except as set forth in Section 9 hereof, these Terms and conditions and the quotation, invoice, purchase order, or sales acknowledgment form to which it is attached constitute the entire agreement between the parties regarding the subject hereof and supersede all prior or contemporaneous agreements, understandings, and communications, whether written or oral. These Terms may be amended only by a written document signed by both parties that specifically references these Terms.