Amped Innovation Terms and Conditions
Last Updated: November 7, 2022
If, in connection with the sale of certain products and/or services, Amped Innovation, PBC. (“Amped”) provided to you (“Buyer”), the attached quotation, these Terms and Conditions, any and all warranty terms accompanying Products (“Warranty Agreement”) are collectively referred to herein as the “Sale Agreement.” The Sale Agreement constitutes the sole and entire agreement between Amped and Buyer regarding the sale of Products, and supersedes all prior and contemporaneous communications and agreements regarding same, all of which are merged herein. If any prior or contemporaneous communication from Buyer includes any terms or conditions that are in addition to or inconsistent with those contained in the Sale Agreement, the Sale Agreement shall constitute a counter offer.
Prices for Products are as set forth in the attached quotation. Product prices do not include any transportation charges, duties, custom or other fees, or sales, use, excise, personal property, or other taxes. All applicable transportation charges and taxes will be listed on a Amped invoice as separate items, which Buyer agrees to pay or, in the case of taxes, to supply appropriate tax exemption certificates in a form satisfactory to Amped. All pricing is in U.S. currency.
Unless otherwise agreed by the parties in the attached quotation, or if Amped, in its sole discretion, decides to extend credit to Buyer, payment terms for Products shall be as follows: Total order payment shall be due prior to delivery. Order must be accompanied with a 30% up-front payment against the total price of the Order. Amped will invoice Buyer for the remaining 70% of payment owed under the Order. Total order payment shall be due at issuance of bill of lading on shipping terms ex-works China. 100% final payment will be paid when Commercial Invoice and Packing List are presented for inspection and booking arrangement. This order cannot be canceled once it enters manufacturing; or once Amped delivers the product. If the order is canceled the Buyer will pay 100% final payment when Amped presents the final invoice. Amped will have the right, among other remedies, to suspend further performance under this and/or other agreements with Buyer in the event Buyer fails to make any payment when due. Buyer shall be liable for all expenses, including attorneys’ fees, relating to the collection of past due amounts and/or Amped’s enforcement of this Sale Agreement. If any payment owed to Amped is not paid when due, it shall bear interest, at a rate to be determined by Amped, which shall not exceed the maximum rate permitted by law, from the date on which it is due until it is paid. Should Buyer’s financial position become unsatisfactory to Amped, immediate cash payments or security satisfactory to Amped may be required by Amped for future deliveries and/or for Products previously delivered. All payments to be made in U.S. currency.
Amped reserves the right to make adjustments to pricing, Products offerings for reasons including, but not limited to, changing market conditions, Product discontinuation, Product unavailability, manufacturer price changes, supplier price changes and errors in advertisements. All orders are subject to Product availability.
Rejections and Cancellations:
The Products ordered are being built specifically for the Buyer. All orders are to be considered non-cancellable, non-returnable (NCNR) once placed. Buyer may not cancel a Product Order without Amped’s prior written consent, which may be given or withheld at Amped’s sole discretion.
Unless otherwise agreed by the parties in the attached quotation, Amped will ship Products ex-works China, Amped’s shipping point, and Amped will use the carrier recommended by the Buyer (with the understanding that any carrier selected or used by Amped is not the agent of Amped). Risk of loss and/or damage, and title to Products (except for software and firmware Products, which are licensed per the “Licensed Products” paragraph below), shall pass from Amped to Buyer upon delivery to and receipt by the carrier or other delivery service. All Product delivery dates are approximate and not guaranteed, and Amped shall have no liability for any late delivery or non-delivery. Amped reserves the right to make partial shipments. Amped, at its option, shall not be bound to tender delivery of any Products for which Buyer has not provided shipping instructions. If the shipment of any Products is postponed or delayed by Buyer for any reason, Buyer agrees to reimburse Amped for any and all storage costs and other additional expenses resulting there from.
Returns and Credits:
The product listed cannot be returned for any reason other than manufacturing defect per the “Limited Warranty” paragraph below. Any credit issued by Amped to Buyer for any reason must be used within one (1) years from the date that the credit was issued and may only be used for future purchases of Products. Any credit or portion thereof not used within the one (1) year period will automatically expire.
Certain of the hardware, software, and firmware Products are covered by a limited warranty, the terms and limitations of which are set forth in the applicable Warranty Agreement. Copies of the applicable Warranty Agreement accompany the corresponding Product. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EXCEPT AS EXPRESSLY SET FORTH IN THE WARRANTY AGREEMENT, ALL PRODUCTS ARE PROVIDED TO BUYER “AS IS”, AND AMPED AND ITS SUPPLIERS AND LICENSORS DO NOT MAKE AND SPECIFICALLY DISCLAIM ALL EXPRESS AND IMPLIED WARRANTIES OF EVERY KIND RELATING TO PRODUCTS AND/OR THE USE THEREOF (INCLUDING, WITHOUT LIMITATION, ALL EXPRESS AND IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND/OR NON-INFRINGEMENT).
Spares and Warranty Replacement:
Amped shall provide Buyer a credit for warranty replacement per the Returns and Credits section above. Buyer will retain returned Products and allow Amped access to perform failure analysis.
Amped will defend or settle any action brought against Buyer to the extent that it is based upon a third-party claim that a Product, as provided by Amped to Buyer under this Agreement, infringes any United States patent or any copyright or misappropriates any trade secret, and will pay any costs and damages made in settlement or awarded against Buyer in final judgment resulting from any such claim, provided that Buyer gives Amped: (i) prompt notice of any such claim; (ii) sole control of the defense and any related settlement of any such claim; and (iii) at Amped’s expense, all reasonable information, assistance, and authority in connection with the foregoing. Amped will not be bound by any settlement or compromise that Buyer enters into without Amped’s express prior written consent. If Buyer’s rights to use and distribute a Product under the terms of this Agreement is, or in Amped’s opinion is likely to be, enjoined due to the type of claim specified in above, then Amped may, at its sole option and expense: (i) procure for Buyer the right to continue to use and distribute such Product under the terms of this Agreement; (ii) replace or modify such Product so that it is non-infringing; or (iii) if options (i) and (ii) above cannot be accomplished despite Amped’s reasonable efforts, then Amped may terminate Buyer’s rights and Amped’s obligations hereunder with respect to such Product and credit to Buyer the amounts paid for such Product during the twelve (12) months prior to the date Amped issues such a credit, provided that all units of such Product are returned to Amped in an undamaged condition.
Amped will have no obligation under this Section for any claim of infringement or misappropriation to the extent that it results from: (i) the combination, operation, or use of a Product with or in equipment, products, or processes not provided by Amped; (ii) modifications to a Product not made by or on behalf of Amped; (iii) Buyer’s failure to use updated or modified Products provided by Amped; or (iv) Buyer’s use or distribution of a Product other than in accordance with this Agreement. THE FOREGOING PROVISIONS OF THIS SECTION SET FORTH AMPED’S SOLE AND EXCLUSIVE LIABILITY AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OR PROPRIETARY RIGHTS OF ANY KIND.
Limitations on Liability:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL AMPED OR ITS SUPPLIERS OR LICENSORS BE LIABLE UNDER ANY THEORY OF LIABILITY FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOST REVENUE OR PROFITS) IN ANY WAY ARISING OUT OF OR RELATED TO THE SALE AGREEMENT, PRODUCTS, OR USE OF PRODUCTS, EVEN IF AMPED OR ANY OTHER PERSON OR ENTITY HAS BEEN ADVISED OF OR SHOULD KNOW OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AMPED’S MAXIMUM AGGREGATE LIABILITY IN CONNECTION WITH THE SALES AGREEMENT, PRODUCTS, AND/OR USE OF PRODUCTS SHALL NOT EXCEED THE GREATER OF (i) THE TOTAL AMOUNT INVOICED TO, AND PAID BY, BUYER UNDER THE SALE AGREEMENT AND (ii) $50,000. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
Notwithstanding anything in the Sales Agreement to the contrary, all software and firmware Products are licensed (and not sold), and the use of terms such as “sale” and “purchase” herein in connection with those Products shall be understood as a reference to such licensing of those Products.
Both parties shall comply with all applicable laws governing such party’s performance under this Agreement, including all export control, import control and trade embargo laws, rules and regulations, whether foreign or domestic with respect to the distribution of those Products.
Governing Law and Jurisdiction:
The Sale Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. BOTH PARTIES HEREBY AGREE THAT THE SALE AGREEMENT SHALL NOT BE GOVERNED BY THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Both parties further agree to the exclusive jurisdiction of the courts of the State of California located in Santa Clara County with respect to any legal proceeding arising in connection with the Sale Agreement.
The Sale Agreement may only be amended by a written instrument signed by both parties. Neither party’s failure to exercise any of its rights under the Sale Agreement will be deemed a waiver or forfeiture of those rights unless such waiver or forfeiture is set forth in a written instrument that has been signed by such party. In the event that any provision of the Sale Agreement is held by a court of law or other government agency to be void, voidable, or unenforceable, the remaining portions of the Sale Agreement shall remain in full force and effect. Buyer may not assign the Sale Agreement in whole or in part, by operation of law or otherwise, without Amped’s prior written consent, and any such purported assignment is void and of no effect. In the event of any inconsistency between these Terms and Conditions and the attached quotation, these Terms and Conditions shall control. All typographical or clerical errors made by Amped in the attached quotation or in any publication are subject to correction by Amped.
If you have any questions, please contact us at info@Amped Innovation.com.
Thank you for choosing Amped!