Standard Terms and Conditions of Sale

These Standard Terms and Conditions of Sale (as they may be updated, revised, modified, supplemented, and replaced from time to time in the sole discretion of Seller, these “Terms”) govern the provision by Continental Battery Company, or any of its affiliates or brands, doing business as Continental Battery Systems or any other brand operated thereby from time to time (“Seller”) of products or services (the “Products’) requested from time to time in one or more purchase orders (each a “PO”) by the purchaser (“Buyer”) set forth therein, if and as accepted by Seller.  Upon acceptance by Seller, each PO, together with and subject to the Terms shall constitute a binding agreement and contact between Buyer and Seller.  All prior or contemporaneous written or oral communications, representations or agreements between Buyer and Seller with respect to the Products, and any additional or conflicting terms referenced in any PO, are hereby merged, superseded, and rejected, except to the extent expressly set forth herein.

1. Order and Supply of Products.  Each PO shall set forth the make, model, and quantity of goods; description of services; price of the goods ordered; location for delivery of goods or performance of services; the requested date for delivery of the goods or completion of the services; and such other information as Seller may request.  A PO shall be accepted by Seller only in writing or by electronic acceptance in Seller’s system or network established for such purpose (the “Acceptance”).  Seller’s sale and delivery to Buyer of Products is expressly subject to the Acceptance and the Terms (upon PO acceptance by Seller, an “Order”).  Buyer may not cancel an Order, except as expressly provided hereunder.  Each Order shall constitute a separate and independent contract for Buyer’s purchase of the Products.  

2. Private Label and Packaging.  If applicable, Seller and Buyer may agree upon customized specifications set forth in the applicable PO or other documentation agreed upon and signed by Seller and Buyer, including design, color scheme, logos, trademarks, trade names, label and other information to be included on the labeling and/or packaging (the “Private Label Packaging”) of the Products based upon trademarks, trade dress, logos, or other branding or indicia proprietary to Buyer (the “Buyer Marks”).  If applicable, Buyer hereby grants to Seller a non-exclusive right and license to use, and to sublicense Seller’s contractors, vendors, and agents to use, the Buyer Marks in Seller’s design of the Private Label Packaging and manufacture, production, procurement, and sale of the Products to Buyer.  Seller may charge a one-time or recurring fee for the Private Label Packaging or may incorporate such fee into special pricing for the Products.  Seller agrees not to use the Marks in connection with any products or services other than the Products.  Buyer represents that it has full right, license, and authority in and to the Marks and to grant the foregoing license.  Buyer agrees to hold Seller, its affiliates, and their directors, managers, officers, employees, contractors, advisors, representatives, and agents harmless, and shall fully indemnify and defend any or all of them from and against any and all allegations, claims, causes, suits, actions, costs, expenses, losses, penalties or other damages imposed or incurred for or in connection with any claim of infringement related to the Buyer Marks or any other specifications of the Product Packaging or the Products provided to Seller by Buyer. 

3. Pricing.  Prices for Products included in a PO shall be Seller’s standard pricing as of the date of submission; provided, however, that Seller may adjust pricing and invoice according to its standard pricing practices at any time until delivery of the Products (“Price”).  All Prices are expressed and shall be paid in U.S. dollars and are exclusive of applicable sales, use, excise, or other taxes, for which Buyer shall be separately responsible and for which Seller may identify as separate line items on the applicable invoice for corresponding Products.  Seller may assess restocking fees for any Product returned to or recovered by Seller.  Additionally, Seller may assess a charge, surcharge or fee for extraordinary inbound or outbound tariffs or import/export charges imposed on the Products.

4. Return of Used Products.  Buyer may return and exchange used Products (“Returned Core”) to Seller, if acceptable to Seller in its discretion, in exchange for a credit (“Core Credit”) Seller’s then current standard Core repurchase value (as determined by Seller in its sole discretion) times the number of Returned Cores, which credit may be applied to offset future purchases from Seller.  Unless otherwise provided in writing, Core Credits expire on the 90th day after their issuance. 

5. Invoicing; Dispute Protocol.  Seller shall invoice for the Products upon delivery or completion and may invoice for other charges as incurred or accrued from time to time.  Buyer may, in good faith, dispute (“Dispute”) a charge in an invoice (“Disputed Amount”) by providing written notice thereof (the “Dispute Notice”) to Seller not later than thirty (30) days after the date of the invoice, which notice shall contain sufficient detail and explanation for Seller to understand, research and evaluate the Dispute (Buyer shall have no right thereafter to Dispute a charge; Dispute Notices received after such period shall be automatically void without any obligation on the part of Seller).  Buyer and Seller shall diligently, continuously, and in good faith confer and attempt to resolve all Disputes. 

6. Payment; Late Charges and Other Rights.  Payment on an invoice is due upon receipt, unless otherwise indicated in the applicable PO or otherwise by Seller in writing (“Due Date”).  TIME IS OF THE ESSENCE, AND BUYER SHALL PROMPTLY PAY ALL INVOICED AMOUNTS.  Unless prohibited by law, a one-time late payment charge equal to ten percent (10%) of the applicable invoiced amount, plus interest at a rate of one and one-half percent (1.5%) per month shall accrue on amounts unpaid as of the applicable Due Date, provided that the foregoing charges shall not exceed the maximum amount permitted by law. Invoices constitute separate and independent obligations for payment.  All payments are to be made only in US dollars.  If Buyer has multiple invoices outstanding, Seller may, but shall not be obligated to, apply payments received to the oldest unpaid invoices first.  If at any time, Seller believes the financial credibility of Buyer is impaired, Seller may cancel Orders, suspend or delay shipments, require payment in advance, or require satisfactory security or guaranty of payments.  Except where prohibited by law, any payment made by credit or debit card shall be assessed a convenience fee of 3.0% per transaction on the full amount of the transaction value in addition to amounts reflected in the invoice. As collateral security for payment for the Products, Seller shall have a lien on and security interest in all right, title and interest of Buyer in and to the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) thereof. The security interest granted hereunder with respect to applicable Products constitutes a purchase money security interest under the Uniform Commercial Code.  In the event Seller accrues a payment obligation to Buyer, Seller may, in its sole discretion, apply some or all of such obligation to offset amounts owing from Buyer to Seller.    

7. Payment Terms; Credit Hold.  Upon Buyer’s submission of Seller’s Credit Application and Seller’s acceptance thereof, Seller may allow certain payment terms as established by Seller in its sole judgement and discretion.  In the event such allowance is granted, Seller may at any time thereafter for any reason modify, suspend or terminate such rights upon written notice to Buyer.  Seller reserves the right to place a hold on Buyer’s account with Seller or to suspend acceptance of new POs and cancel pending Orders, if invoices are not paid within the terms allowed.  

8. Credit Memos.  In the event Seller issues a credit memo (“Credit Memo”) to Buyer for any reason, Buyer may apply such Credit Memo, within ninety (90) days of its issuance, to a future invoice upon written notice to Seller.  Credit Memos shall expire and have no value on the 90th day following their issuance.      

9. Shipping; Delivery; Title; Risk of Loss.  Delivery of the Products may be made directly by Seller or by third-party delivery service, as elected by Seller.  Unless otherwise agreed in writing by the parties, all Products will be delivered to the address within the United States set forth on the Order (the “Delivery Point”) using Seller’s standard methods for packing and shipping such Products. Shipments by third-party delivery service shall be made FOB Seller’s or Seller’s designee’s shipping facility, at Buyer’s cost and expense, which may be added to the invoice by Seller together with Seller’s handling fee.   Seller may elect or agree to deliver products directly to the Delivery Point and to charge Buyer a deliver fee therefor.  For Products delivered directly by Seller, title passes to Buyer upon delivery at the Delivery Point. For deliveries by third-party carrier, title passes upon placement for shipment with such carrier.  Buyer shall be responsible for all unloading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point.  Buyer shall take delivery of the Products upon Seller’s notice that the Products have been delivered to the Delivery Point.  Deliveries delayed by Buyer shall be at Buyer’s sole risk and expense. Shipping or performance dates are not guaranteed by Seller. Seller shall not be liable for failure to deliver or for delay in delivery or performance due to any (i) cause beyond its reasonable control, (ii) act of God, (iii) act or omission of Buyer, (iv) act of civil or military authority, (v) governmental priority or other allocation or control, (vi) fire, flood, severe weather event or natural disaster, (vii) strike or other labor difficulty, (viii) riot or other civil disturbance, (ix) insolvency or other inability to perform by a manufacturer or supplier, (x) delay in transportation, or (xi) other commercial impracticability. In the event of any such delay, the date of delivery or performance shall be extended for a period equal to the time lost by reason of delay.

10. Safety Data Sheets.  Seller shall make safety data sheets (“SDS”) available to Buyer for all products containing hazardous materials. SDS or other regulatory disclosures must be made in writing by Seller at the time of Product shipment.

11. Warranty.  Products will be free from defective material and workmanship in accordance with its standard limited warranty, which is published at continentalbattery.com/warranty-information, which is for the benefit of initial end-users only and which may be updated, revised, replaced, or superseded from time to time in Seller’s sole discretion.  EXCEPT FOR THE FOREGOING, SELLER MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ABOUT OR WITH RESPECT TO THE PRODUCTS.  BUYER ACKNOWLEDGES THAT, UNLESS OTHERWISE PROVIDED IN A PO OR WRITTEN AGREEMENT EXECUTED BY SELLER, SELLER MAKES NO WARRANTY OR REPRESENTATION TO BUYER OR ANY DEALER, DISTRIBUTOR, OR RESELLER, OF THE PRODUCTS OR ANY PRODUCTS INTO WHICH THE PRODUCTS MAY BE INSTALLED OR INTEGRATED, AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS OF ANY PARTICULAR PURPOSE OR USE.

12. Limitation of Liability.  SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON OR PARTY FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES IN CONNECTION WITH ANY MATTERS RELATING DIRECTLY OR INDIRECTLY TO THE PRODUCTS OR THE TERMS OR ANY OTHER ASPECT OF THE BUSINESS RELATIONSHIP BETWEEN SELLER AND BUYER, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. Confidential Information.  The parties and their employees, contractors, agents, and representatives may be exposed to proprietary or confidential information of the other party or such party’s affiliates, including information without limitation concerning either party’s business, customers, vendors, products, plans, strategies, trade secrets, plans, forecasts, reporting, product specifications or designs, trade secrets, and pricing, are confidential.  The receiving party shall not use any such information or disclose such information by publication or otherwise to any other person (except those of such party’s officers, directors, managers, employees, contractors, agents, advisors, or representatives having a need to know such information), except as may be required by law.

14. Indemnification. Buyer shall defend, indemnify, protect and hold harmless Seller and its customers, directors, officers, employees (whether acting in the course of their employment or otherwise), agents, representatives, successors and assigns and against any and all claims arising out of or resulting from (i) any act or omission or willful misconduct of Buyer or its personnel; (ii) the breach of these Terms by Buyer or its personnel and (iii) property loss, damage, personal injury or death, sustained by any party, any party’s employees and/or by any personnel in connection with Buyer’s use, installation, and maintenance of the Products.

15. Jurisdiction; Choice of Law; Prevailing Party; Waiver.  The interpretation, construction and performance of this Agreement and the rights and remedies of the parties hereunder shall be governed by the laws of the State of Texas, without regard to any conflicts of laws provision.  Seller and Buyer each consent to the exclusive jurisdiction of the state and federal courts situated in Dallas County, Texas, in any action on a claim arising out of this Agreement or requesting interpretation or enforcement of this Agreement.  If any action at law or in equity is brought to enforce or interpret the provisions of the Order, the prevailing party shall be entitled to receive, in addition to such other relief as the court may award, its reasonable costs and expenses, including without limitation all attorneys’ fees, expert witness fees, litigation-related expenses court or other costs incurred in such proceeding or otherwise in connection with bringing such suit or action. THE PARTIES HEREBY IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THE ORDER OR THE TERMS.

16. Notices.  All notices and other communications given with respect to these Terms (each, a “Notice”) shall be in writing and addressed to the receiving party at the addresses set forth in the applicable Order, respectively. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or e-mail (with confirmation of transmission) and shall be deemed received upon receipt.

17. Entire Agreement.  This Agreement, including the applicable Joinder and together with the Standard Terms, sets forth the entire agreement between the parties with respect to the subject matter hereof and thereof and supersedes any prior agreements, oral or written, and all other communications between the Parties relating to such subject matter.  This Agreement may not be amended, altered or modified except as provided in this Agreement or by mutual written agreement signed and dated by both Parties.  All continuing covenants, duties and obligations herein shall survive the expiration or earlier termination of this Agreement.  

18. Successors.  This Agreement is for the benefit of the Parties hereto and their heirs, executors, administrators, legal representatives, successors and assigns.

19. Construction.  The meaning, effect, and terms of the Terms have been fully reviewed and considered by Buyer, and the parties acknowledge that they each understand the terms herein and have had the opportunity to consult with counsel regarding the Terms.

20. Severability: If any provision of the Terms is held invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If any court, arbitrator, or other tribunal finds that any provision of the Terms is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.

21. Assignment.  Buyer may not assign or transfer an Order without the Seller’s prior written consent, and any such attempted assignment shall be void and no effect.

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