1.         AGREEMENT.

1.1. General.  These terms and conditions of sale (the “Terms and Conditions”) shall exclusively govern the provision of Products and Services by Relay and Power Systems, Inc. (“Company”) to the buyer named on Company’s quote, acknowledgment or invoice or buyer’s purchase order (“Customer”). Company and Customer are each a “Party” and collectively “Parties” under these Terms and Conditions. Company will provide certain goods, items or equipment (“Products”) or professional, engineering, consulting, networking, maintenance or other services described on  Company’s proposal or statement of work (the “Services”), which Products and/or Services are ordered by Customer under a purchase order or otherwise (each, an “Order”).  Company’s acceptance of Customer’s purchase order is subject to Customer’s acceptance of these Terms and Conditions. Customer’s order of any Products or Services, issuance of a purchase order, and/or Company’s receipt of full or partial payment for Products or Services ordered from Company shall constitute Customer’s unconditional acceptance of these Terms and Conditions. Company hereby expressly objects to and rejects any other terms and conditions as may be proposed on or referenced within an Order or any other transaction document supplied by Customer or within a Customer portal, electronic data interchange, or otherwise.

1.2. Conflict and Amendment.  Each Order will be exclusively governed by these Terms and Conditions.  If there is any conflict or inconsistency between these Terms and Conditions and any Order, these Terms and Conditions will control. No addition or modification to these Terms and Conditions shall be binding unless set forth in a separate written amendment to these Terms and Conditions, stating the Section(s) to be supplemented or modified, signed by an authorized representative of each Party.  If Company and Customer conduct electronic transactions, whether by a portal, electronic data interchange, .xml, or otherwise, Customer agrees that (a) these Terms and Conditions are incorporated into and exclusively govern each and every such transaction;  (b) any click-through terms and conditions or terms and conditions otherwise incorporated by reference in any Customer portal, electronic data interchange, or otherwise are hereby rejected by the Parties and shall have no effect; (c) Customer shall not contest any contract of sale resulting from an electronic transaction under the provisions of any law relating to whether agreements must be in writing or signed by the Party to be bound thereby; and (d) Customer shall not contest the admissibility of copies of electronic records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form.

2.         TERM AND TERMINATION; CANCELLATION.

2.1. Term for Each Order.  Each Order shall remain in effect until: (a) it is terminated or cancelled as provided in these Terms and Conditions; (b) it has expired on its own terms; or (c) the Order has been fulfilled.

2.2  Termination for Cause. Either Party may terminate any Order immediately upon written notice to the other Party if the other Party: (a) fails to perform any of its material obligations under these Terms and Conditions and fails to correct such failure within twenty (20) days after receipt of written notice; (b)  stops conducting business in the normal course, admits its insolvency, makes an assignment for the benefit of creditors or becomes the subject of any judicial or administrative proceeding in bankruptcy, receivership or reorganization and the proceeding is not dismissed within ninety (90) days after it begins. If Customer fails to pay any indebtedness Customer owes to Company, then Company may consider Customer’s failure to be an anticipatory repudiation of any or all outstanding Orders, and Company may, without liability to Customer, terminate any or all of those outstanding Orders. In the event of termination by a Party under this Section 2.2, Customer shall pay Company for all Products shipped and Services performed through the date of termination. In the event of Company’s termination of an Order under this Section 2.2, Customer shall also pay Company for any actual cancellation costs incurred by Company from its vendor or service provider resulting from such termination.           

2.3 Termination for Convenience.  Company reserves the right to cancel any Order prior to shipment for causes beyond the reasonable control of Company without liability to Customer for such cancellation.  Except as set forth in Section 2.2 or as may be expressly provided in Company’s proposal, Customer does not have any right to cancel its agreement to buy the Products or Services from Company. If, however, Company agrees in writing to permit cancellation, Customer shall pay Company for all Products shipped and Services performed through the date of termination plus any actual cancellation costs incurred by Company from its vendor or service provider resulting from such cancellation.  Non-stock and custom Orders are not cancellable.

3.         PRICE AND PAYMENT.

3.1. Fees.  Customer will pay Company the amount set forth in the applicable invoice for the Products and Services.  Written quotes and proposals are valid for thirty (30) days, unless otherwise stated on the Order. For Services, unless otherwise provided on the applicable proposal from Company, Customer will pay the fees on a time-and-material basis based on Company’s then-current rates and charges for the Services. Any estimate provided by Company is not a guarantee and may be decreased or increased to reflect actual hours expended by Company.

3.2. Expenses.  Customer will reimburse Company for all reasonable, pre-approved out-of-pocket expenses, including travel and lodging expenses, incurred by Company in connection with the performance of Services.

3.3. Invoices.  Unless alternate terms are extended to Customer by Company’s credit department, all invoices shall be paid within thirty (30) days of issuance.  Customer expressly agrees no set-offs or back charges against invoices are permitted. If the invoice is not paid in full by the due date, Customer agrees to pay a late payment charge at the rate of one and one-half percent (1-1/2%) per month, or the maximum late payment charge permitted by applicable law, whichever is less, on any unpaid amount.  Company may apply any payment received to any delinquent amount outstanding.

3.4. Taxes.  Company’s rates and charges do not include any amounts for taxes.  Customer will pay all applicable taxes levied by any tax authority based on the Services performed and Products purchased from Company, excluding any taxes based upon Company’s income.

4.         DELIVERY AND INSPECTION; ONSITE SERVICES

4.1. Delivery and Risk of Loss. Unless Company otherwise agrees in writing, Company shall deliver Products FCA (Incoterms 2020) Company’s facilities, or the point of origin if the Products are shipped directly to Customer from a third-party. Risk of loss shall pass to Customer upon delivery of Products to the carrier. Title to Products shall pass upon delivery to Customer, provided, however, Company reserves and Customer grants to Company a security interest in the Products sold and the proceeds therefrom to secure full payment and performance by Customer of its obligations and liabilities to Company. While dates for shipment, delivery, or performance are estimates only, Company shall make commercially reasonable efforts to meet the dates set forth in the Order. In no event shall Company be liable to Customer for any liquidated or other damages resulting from delays.

4.2. Onsite Services.  When onsite at Customer’s premise, Company will use all reasonable efforts to comply with Customer’s internal policies, procedures and rules provided to Company in writing, including, those relating to environmental protection, health, safety, work and security.

4.3. Acceptance. Claims for any nonconforming Products or Services must be made by Customer, in writing, within forty-eight (48) hours of delivery of Product to Customer or ten (10) days after the completion of the Services, after which time Customer will be deemed to have accepted such Products or Services. Customer’s acceptance under this Section 4.3 shall not waive Customer’s rights under any warranty for defective Products or Services set forth in Section 6.

5. Product Safety and Permits. Customer is solely responsible for verifying Products conform to Customer’s plans and specifications and are fit for Customer’s intended use. Customer shall comply with any applicable local, state, or national codes, rules, regulations, and laws for approved Product installation and operation. Customer is responsible for obtaining any permits or licensing required for the installation and operation of Products and shall install and operate the Products properly and in accordance with the Products’ operating instructions, if any.  Customer shall not remove or change any safety device, warning or operating instructions placed on the Products.

6.         WARRANTIES

6.1. Products Manufactured by Company. Company warrants that any Products manufactured by Company (as specified in Company’s proposal) will be free from defects in material or workmanship under normal and intended use and service for a period of one year from the date of delivery, unless an alternate warranty period is set forth in Company’s proposal. If a Product manufactured by Company proves to be defective within one year of delivery, then Company shall, at its option, (i) repair or replace the Product at Company’s expense; (ii) permit Customer to repair the Product and reimburse Customer for its direct costs in correcting the defect; or (iii) credit to Customer the price that Customer paid to Company for the defective Product. Products shall not be considered defective to the extent they (a) conform with drawings or specifications provided by Customer; or (b) were damaged due to inappropriate storage, use, or installation by Customer. Company will not pay for Customer’s labor costs or charges in correcting defects nor will Company accept any returned Products for credit unless Company has provided advance written authorization. Company shall have the option of requiring the return of the defective Products, transportation prepaid, and proof that the Products were not used, installed, or altered or subject to misuse or abuse to establish the claim. Returned Products are subject to freight, handling, and restocking charges. If Company determines that a Product is not defective, it may be returned to Customer at Customer’s expense. This Section sets forth Customer’s sole and exclusive remedy for any defect in the Products manufactured by Company. Customer will notify Company in writing of any breach of this warranty within one year after Product delivery.

6.2. Services Performed by Company.  Company warrants that any Services performed by Company (as specified in Company’s proposal) will be performed in a workmanlike manner.  Unless an alternate warranty period is set forth in Company’s proposal, if a Service performed by Company proves to be defective (as defined below) within thirty (30) days after Company performs the Service, then Company shall, at its option, either re-perform the Service at Company’s expense, or refund to Customer the price that Customer paid to Company for that part of the Service that was defective. A Service shall be considered “defective” if it is found by Company to have failed to meet the standards in Company’s industry and if that failure materially impairs the value of the Service to Customer, except that if Customer furnished to Company specifications for the Service, then the Service shall not be considered defective to the extent it conforms to the specifications. This Section sets forth Customer’s sole and exclusive remedy for any defect in Services provided by Company. Customer will notify Company in writing of any breach of this warranty within thirty (30) days after completion of the Services.

6.3. Pass-Through Warranties. To the extent transferrable, Company hereby assigns all rights it may have arising out of the warranties given to it by any manufacturer of Products or performer of Services purchased by Company and resold to Customer, and Customer will look solely to such warranty in the event of a claim or action relating to such Products or Services. Company will use all reasonable efforts to assist Customer in making any valid warranty claim to the manufacturer of any Products or performer of Services purchased by Customer from Company. Customer is solely responsible for determining the proper application and use of any Products as well as the actual installation and/or connection of any such Products.  

6.4. Disclaimer.  The only warranties applicable to any Products or Services provided under an Order are the warranties specified in this Section 6 and the warranties (if any) provided to Customer from the manufacturer of the Products and the performer of the Services resold to Customer by Company, and assigned to Customer under this Section 6.   EXCEPT AS TO THOSE WARRANTIES PROVIDED IN THIS SECTION 6, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE AS TO THE PRODUCTS AND SERVICES PROVIDED UNDER THESE TERMS AND CONDITIONS.

7.         INDEMNIFICATION. 

7.1. General.  Each Party shall indemnify, defend, and hold harmless, the other Party and its affiliates, officers, directors, employees, and agents (each an “Indemnified Party”) from and against all direct liability, loss, damage, claims, actions, and expenses imposed on the Indemnified Party by a third-party, to the extent caused by the indemnifying Party’s gross negligence or willful misconduct resulting in property damage or personal injury, including death.

7.2. Custom Products and Services.  If Customer has hired Company to provide custom Products or Services, Customer shall indemnify, defend and hold harmless Company and its affiliates, officers, directors, employees, and agents from and against all liability, loss, damage, claims, actions, and expenses (including reasonable attorneys’ fees) that Company incurs as a result of  infringement of the proprietary rights of a third-party or any other claim resulting from the manufacture or sale of Products or performance of Services according to Customer’s specifications. 

7.3 Requirements. The indemnifying Party’s obligations under this Section 7 are subject to the Indemnified Party providing the indemnifying Party with: (a) prompt written notice of the claim; (b) reasonable assistance in the defense of such claim; and (c) full authority to defend and settle the claim, provided, however, the indemnifying Party shall not make any admission or settlement which creates any liability for the Indemnified Party without first obtaining the Indemnified Party’s written consent, which consent shall not be unreasonably withheld.

7.4 Exceptions.  Notwithstanding the foregoing, neither Party shall be required to indemnify the other Party to the extent that such claims or damages are caused by the Indemnified Party’s negligence or breach of these Terms and Conditions.

8.  Limitations.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF CAPITAL, PRODUCT, PROFITS, USE, OR DATA. EACH PARTY AND COMPANY’S VENDORS’ MAXIMUM AGGREGATE LIABILITY SHALL IN NO EVENT EXCEED THE AMOUNT PAYABLE BY CUSTOMER TO COMPANY FOR THE PRODUCTS OR SERVICES GIVING RISE TO THE CLAIM. ANY ACTION BY EITHER PARTY MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. THESE DISCLAIMERS AND LIMITATIONS WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), INDEMNITY, OR OTHERWISE. THIS SECTION IS NOT INTENDED TO LIMIT OR EXCLUDE A PARTY’S LIABILITY FOR ANY MATTER WHICH LIABILITY CANNOT BE LIMITED OR EXCLUDED BY LAW. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO CUSTOMER’S PAYMENT OBLIGATIONS OR A PARTY’S OBLIGATIONS UNDER SECTION 7.2.

9.         CONFIDENTIALITY.  “Confidential Information” means and includes information regarding either Party’s business, operations or activities that is not publicly available and that is: (a) first disclosed in written, electronic, photographic or other tangible form and conspicuously marked “Confidential” or “Proprietary” or the like; or (b) first disclosed in non-tangible form and orally identified as confidential or proprietary at the time of disclosure and is summarized in tangible form and conspicuously marked “Confidential” or “Proprietary” or the like within thirty (30) days of the disclosure.  Each Party agrees that it will not use or disclose to any third-party any Confidential Information of the other Party for any reason, except to its employees and agents who require such knowledge to assist them in the performance of their  obligations under an Order or these Terms and Conditions.  Each Party will take all necessary action to ensure that its employees and agents comply with the confidentiality provisions of this Section 9. Each Party agrees to protect the Confidential Information of the other Party in the same manner it protects its own Confidential Information of like kind, but in no event using less than a reasonable standard of care. Upon termination or expiration of any Order, each Party shall, upon request, return or destroy all Confidential Information of the other Party in its possession or control.

10.       INTELLECTUAL PROPERTY

10.1. Ownership by Customer.  All information supplied or otherwise made available by Customer to Company under these Terms and Conditions, including custom specifications provided by Customer (“Customer Materials”) shall be and remain the sole property of Customer.

10.2. Ownership by Company.  Except as it relates to any Customer Materials, all information, materials, concepts, designs, ideas, inventions, developments, trade secrets, and other work produced or advice given by Company, solely or jointly with others, relating to any deliverables provided under an Order shall belong solely to Company.

10.3.    Third-Party Licenses. Customer’s use of Products which contain or are comprised of source code, object code, software or firmware developed or provided by a third-party may be subject to a separate license agreement between Customer and such third-party  or, in the absence of such, is subject to the terms of any license set forth in such third-party provider’s terms and conditions.

10.4. Company Licenses. Software developed by Company for use within a Product is subject to the terms and conditions set forth herein. Customer is granted a limited, revocable, non-exclusive, non-transferable license to use Company’s Software only in object code form and solely in conjunction with Company-provided Products, with no rights to sublicense, disclose, transfer, disassemble, decompile, reverse engineer, or otherwise modify the Software.

• Data. Customer hereby grants Company and its affiliates a non-exclusive, worldwide, royalty-free license to use, reproduce, transmit, display and store Customer data for the purposes of (a) providing the Products and Services set forth in the Order; and (b) maintaining, evaluating and improving the Product and Services. Customer agrees that Company may share Customer data with third-party providers who provide services to Company in connection with the Services, such as hosting websites, analyzing data, and other professional services.

11.       MISCELLANEOUS. 

11.1. Independent Contractor.  Company is an independent contractor and nothing in these Terms and Conditions will be deemed to make Company an agent, employee or joint venturer of Customer. 

• Government Contracts. Application of any government contract regulations and clauses to an Order is contingent upon the separate review and express written consent by an authorized representative of Company. In absence of such consent, Company hereby objects to and rejects all such terms and conditions. Products sold hereunder are not intended to be used, nor should they be used, in any nuclear-related application.

11.3. Export.  Customer is responsible for complying with all applicable laws and regulations for any Products it exports.

11.4. Force Majeure.  Neither Party will be liable to the other Party for any delay or failure to perform its obligations (excluding payment obligations, which may only be delayed but not excused entirely) if such delay or failure arises from any cause beyond the reasonable control of that Party.

11.5. Recovery. In the event of any legal proceeding between the parties relating to these Terms and Conditions or an Order, the prevailing Party shall be entitled to recover its reasonable attorneys’ fees and costs from the non-prevailing Party.

11.6. Assignment.  The agreement evidenced hereby may not be assigned or delegated by Customer without the prior written consent of Company, which shall not be unreasonably withheld, conditioned or delayed.

11.7.  Waiver.  No provision of these Terms and Conditions will be deemed waived unless such waiver is in a separate writing and signed by an authorized representative of the Party providing the waiver.  Any such waiver provided will not constitute a waiver of any different or subsequent breach.

11.8. Severability.  If any provision of these Terms and Conditions is prohibited or unenforceable by applicable law, the provision will be ineffective only to the extent and for the duration of the prohibition or unenforceability, without invalidating any of the remaining provisions.

11.9. Entire Agreement. Subject to Section 1, the Order and these Terms and Conditions represent the entire agreement between Company and Customer with respect to any Products and Services sold to Customer by Company. All prior agreements, representations, statements, negotiations, and undertakings, whether oral or written, are hereby superseded.

11.10. Governing Law.  The agreement evidenced hereby and all disputes arising thereunder will be governed by and interpreted in accordance with the laws of the State of Michigan, excluding the United Nations Convention on Contracts for the International Sale of Goods, without regard to conflict of laws principals. Any action by either Party must be brought within the state or federal courts in the State of Michigan. The parties consent to the exclusive jurisdiction of such courts and waive any objection that the court is an inconvenient forum.