Solaris Technologies Inc.
Terms and Condition of Sale
1. Purchases. All sales of product and related services (“Products”) from Solaris Technologies, Inc. (“Solaris”) to the buyer of such Products (“Buyer”) shall be made subject to and governed by the terms and conditions contained herein. No other terms, including but not limited to Buyer’s request for quote or Purchase Order, shall be effective as between Solaris and Buyer. Buyer shall submit an order for Product (“Purchase Order” or “PO”) and Solaris shall either confirm or reject Buyer’s PO within five (5) business days after receipt. If Solaris has neither confirmed nor rejected the PO within five (5) business days of receipt, such PO shall be deemed rejected. Solaris shall have the right to partial ship any portion of the accepted PO.
2. Prices/Payment/Taxes. The purchase price for Products shall be as set forth in the PO and, unless otherwise agreed to in writing, shall be FOB Solaris’ warehouse location. Prices are in U.S. dollars unless otherwise identified on the PO. Solaris shall invoice Buyer for all amounts due and owing upon shipment; provided, however, custom Products shall require fifty percent (50%) of the total payment due prior to shipment. The remaining balance for custom Product as well as payment for all other Product shall be due within thirty (30) days of invoice date. Prices shall be exclusive of taxes which taxes shall be individually itemized on the applicable invoice. Any taxes, duties, excises or tariffs imposed on all amounts paid by Buyer shall be the responsibility of Buyer. If Solaris is required by law to directly pay any such taxes, fees, excises, tariffs or other charges, Buyer shall promptly reimburse Solaris upon Solaris’ presentation to Buyer of documentation evidencing such payment. Any payment not received on the due date shall be subject to monthly interest assessed at a rate equal to the lesser of one and one-half percent (1.5%) or the maximum rate permitted by applicable law.
3. Compliance with Laws. Buyer shall comply with all federal, state, county, local and, where applicable, foreign laws, ordinances and regulations relating to the purchase, sale, distribution and use of the Products.
4. Risk of Loss. Buyer shall bear all risk of loss to Product once it leaves Solaris’ warehouse location unless such loss is caused by Solaris.
5. Product Warranties. Solaris warrants that the Product will be free from defects in material and workmanship under normal use and service and will perform substantially in accordance with the Product specifications for the period commencing upon the date of purchase and continuing for the following specified period of time:
a. Cellular on Wheels (“COW” or Mobile Mast)
• 1 Year Motor • 3 Years Galvanization
b. Quick Deployment Tower 3 Years
c. Copper or Fiber optic Transceivers 3 Years
d. Fiber optic Cable 1 Year
e. Refurbished Product 1 Year
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, SOLARIS MAKES NO REPRESENTATIONS OR WARRANTIES TO
BUYER, WHETHER EXPRESS OR IMPLIED. For more information, see Solaris’ Standard Limited Warranty.
6. Representations. Buyer represents and warrants that (a) Buyer has obtained all authorizations, approvals, consents or permits required under all applicable laws and regulations to perform its obligations under the PO; (b) Buyer shall comply at all times and at its own expense with
the provisions of all applicable federal, state, and local laws, ordinances, regulations and codes, including all non-U.S. laws, applicable to Buyer’s performance under the applicable PO and shall at all times refrain from engaging in any illegal, unfair, unethical or deceptive business practices;
(c) Products, software or technical information disclosed pursuant to this PO are subject to U.S. and non-U.S. export laws and regulations and any use or transfer must be made in compliance with such regulations; and (d) Buyer shall not directly or indirectly transfer any Product, technical data or software furnished here under to any country without first obtaining all required licenses or other governmental approvals and otherwise complying with all applicable export control laws.
7. Indemnification. Each party (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless the other party (the “Indemnified Party”) from and against any and all losses, costs, damages, injuries, liabilities or expenses (including but not limited to reasonable attorney’s fees) incurred by the Indemnified Party arising or resulting from the Indemnifying Party’s willful is conduct, negligent acts or omissions, or breach of any of the provisions or obligations herein.
8. Limitation of Liability. IN NO EVENT SHALL SOLARIS (OR ITS SUPPLIERS OR AFFILIATES) BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY PUNITIVE, SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, LOST PROFIT OR OTHER SIMILAR DAMAGES ARISING OUT OF, OR IN CONNECTION WITH THIS TRANSACTION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SOLARIS’ TOTAL AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER OR IN CONNECTION WITH THIS TRANSACTION, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EXCEED THE AMOUNT PAID BY BUYER TO SOLARIS FOR THE PRODUCT GIVING RISE TO THE ACTION OR CLAIM.9. Confidentiality. Either party (the “Disclosing Party”) may, from time to time, provide the other party (the “Receiving Party”) with certain confidential or proprietary information (“Confidential Information) of the Disclosing Party pursuant to fulfillment of the PO. Receiving Party shall (a) use Confidential Information only for the purpose of fulfilling
its obligations under the PO and with the same degree of care, but never less than a reasonable standard of care, to prevent the unauthorized disclosure or dissemination of Confidential Information as it does to protect its own similar confidential information, and (b) not disclose to any parties except on a need to know basis and provided such parties only use the Confidential Information to the same extent as Receiving Party and provided Receiving Party remains liable for any violation by such parties of the terms herein. Confidential Information is subject to the terms herein if, when is closed, it is identified as confidential or if a reasonable person would assume by the nature of such information that it was confidential to Disclosing Party. Receiving Party’s obligations here under with respect to each item of Confidential Information shall expire five (5) years from the date of receipt of such Confidential Information.
10. Force Majeure. Neither party will be liable for, or be considered in breach of or default under the PO on account of, any delay or failure to perform as required by herein as a result of any causes or conditions which are beyond such party’s reasonable control and which such party
is unable to overcome by the exercise of reasonable diligence. Causes or events not within a party’s control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other natural disasters, terrorism, acts of public enemies, riots or civil disturbances, sabotage, strikes, loss of utility service not as a result of any action or inaction by a party and restraints imposed by order of a governmental agency or court (unless such order is procured at a party’s request).
11. Choice of Law. The PO shall be governed by the laws of the State of Texas without regard to any Principles of Conflict of Laws and the Parties agree that the exclusive venue for the resolution of all disputes shall be in the State or Federal courts located in Dallas County, Texas.
BUYER HEREBY WAIVES SERVICE OF PROCESS AND TRIAL BY JURY FOR ALL CLAIMS ARISING HERE UNDER.
12. Miscellaneous. All headings herein are inserted only for convenience and ease of reference and are not to be considered in the construction or interpretation of any provision of these terms and conditions. In the event any provision herein is held to be invalid, illegal or unenforceable for any reason, such invalidity, illegality, or unenforceability shall in no event affect, prejudice or disturb the validity of the remainder of these terms and conditions.