Standard Commercial Terms & Conditions

FLUXERGY, INC. – Commercial Terms & Conditions of Sale (USA)

These Commercial Terms & Conditions of Sale, as may be updated from time-to-time by Fluxergy, Inc. (“Terms & Conditions”), shall in all cases apply to, and be deemed to constitute a part of, any and all Agreements Between Fluxergy, Inc. and Customer respecting the purchase and sale of any Products, as such capitalized terms are defined below.

‍

1. DEFINITIONS

Capitalized words and phrases in these Terms & Conditions have the following meanings:

(a) “Agreement” means collectively these Terms & Conditions, any Fluxergy price quotation, the applicable Customer Purchase Order (to the extent the same is not in conflict with any of these Terms & Conditions), and any Fluxergy Purchase Order Acknowledgement in response thereto.  Oral representations, statements, or purported agreements made by the Parties shall not be part of any Agreement, and the same shall be unenforceable.

(b) "Commencement Date" means the date Fluxergy delivers a Purchase Order Acknowledgement in response to Customer’s delivery of a Purchase Order for any Products to Fluxergy.

(c) “Customer” means the person or entity ordering, buying or otherwise acquiring any Products from Fluxergy.

(d) “Documentation” means Fluxergy’s user manual, instructions for use, any package insert, and similar technical documentation, for any of the Products in effect on the date that the Products in question are shipped by Fluxergy. Documentation may be provided with the Products in written form or made available electronically.

(e) “Fluxergy Analyzer” means the current version of Fluxergy’s diagnostic analyzer, and the Fluxergy Works® software necessary to operate such analyzer.

(f) “Fluxergy Products” means that portion of the Products comprising the Fluxergy Analyzer and the Test Kits. For the sake of clarity, “Fluxergy Products” does not include or extend to any Products that are not manufactured by Fluxergy.  

(g) “Intended Use” means the specific intended use of the Products as set forth in the Documentation.

(h) “Permitted Use” means the field of use and/or application of the Products by Customer, as may be specified in the Products’ Documentation and labeling, subject to any restrictions or limitations on usage set forth therein or herein, including but not limited to Section 6 of these Terms & Conditions.

(i) “Products” means any or all of: (i) the Fluxergy Analyzer; (ii) all test cards, reagents, reaction mixes, sample collection/storage devices, growth/enrichment mediums, etc. that are unique to a specific test being sold hereunder; and (iii) any accessories manufactured by third parties that may be provided by Fluxergy either separately or as part of a test kit, such as barcode scanners, tablet computers, vortexers, centrifuges, incubators, pipettes, tube racks, gloves, disposal bags, etc.

(j) “Purchase Order” and “Purchase Order Acknowledgement” has the meaning set forth in Section 2 hereof.

(k) “Regulatory Authority(ies)” means any government regulatory agency or authority that monitors or regulates the Products in the location where the Products will be sold or used, including the FDA and/or the USDA.

(l) “RUO” means research use only, and accordingly any product to which the designation is applied is for scientific research purposes only, and has not been approved by an applicable regulatory body for use in clinical diagnostic procedures.

(m) “Specifications” means Fluxergy’s written technical specifications for the Fluxergy Products in effect on the date that they ship from Fluxergy, which may be found in the Documentation and/or on Fluxergy’s website.

(n) “Test Kits” means that portion of the Products comprising the test cards utilized for specific tests sold hereunder, and all reagents, reaction mixes, sample collection/storage devices, growth/enrichment mediums, etc. that are necessary to run such specific tests.

‍

2. PURCHASE ORDERS; ACCEPTANCE; CREDIT

2.1 Offer to Purchase. Customer offers or requests to purchase Product from Fluxergy are only valid if in writing.  By submitting a purchase order or other request to purchase any Products (collectively, a “Purchase Order”), Customer shall be deemed to be offering to buy such Products from Fluxergy solely on the terms and conditions stated in these Terms & Conditions.  Any provision in any Customer Purchase order that is in conflict with these Terms & Conditions shall be deemed rejected by Fluxergy and have no force or effect. No Customer Purchase Order shall be valid or enforceable until accepted by Fluxergy through its Purchase Order Acknowledgement.

2.2 Acceptance of Purchase Orders. Fluxergy reserves the right to reject any Customer Purchase Order for any reason, including but not limited to Customer’s credit history, Product availability, Force Majeure Events, general economic conditions, etc. Fluxergy shall not be deemed to have accepted any Customer purchase order unless and until Fluxergy delivers a written acknowledgement of acceptance to Customer with regard to each submitted Purchase Order (each, a “Purchase Order Acknowledgment”), either by fax, email, regular mail, or hand delivery. “Blanket” or “Open-Ended” Purchase Orders shall not be valid or binding on Fluxergy, even if Fluxergy issues a Purchase Order Acknowledgement for a portion of any such orders, or ships a portion of the Products listed in response to any such orders (rather, such Purchase Order Acknowledgement or shipping of Products shall only be deemed an acceptance in respect of those specific Products that are stated in such acknowledgement and/or that are actually shipped by Fluxergy to Customer).

2.3 Credit Sales. Fluxergy is under no obligation to extend credit to Customer.  If Fluxergy decides, in its sole discretion, to extend credit to Customer, Fluxergy may cancel/revoke such extension of credit at any time and for any reason. If any Products are sold to Customer on credit, then this Agreement, including these Terms and Conditions, shall be deemed a security agreement, and this Section 2 shall be deemed to grant Fluxergy a lien on and first priority security interest in and to all of the Products(and all proceeds thereof) to secure the payment obligations of Customer.

‍

3. ORDER CANCELLATION

Customer may cancel an Agreement with respected to any Products at any time prior to the date of shipment of the Products exclusively by notifying Fluxergy in writing of its decision to cancel.  Customer may cancel an Agreement with respect to any Products (other than test cards/kits or Products that require cold storage, which are non-returnable/non-refundable) that have already been shipped by Fluxergy within ten (10) days of such shipment exclusively by (i) notifying Fluxergy in writing of its decision to cancel, and (ii) immediately delivering all of the Products received back to Fluxergy, at Customers sole cost and expense, in new/unused condition. For all cancelled orders, Customer shall be liable for (i) repair/replacement costs for any damaged Products, (ii) return freight & related insurance costs, and (iii) at Fluxergy’s option, a restocking fee of up to 15%, Fluxergy reserves the right to cancel any accepted Customer Purchase Order without obligation or liability if at any time prior to shipment (a) a Force Majeure Event has occurred, or (b) Customer has committed an Event of Default under Section 16 hereof, or under any agreement between Fluxergy and Customer or any of Customer’s affiliates.

‍

4. SHIPPING AND INSURANCE

Fluxergy shall deliver the Products under any Agreement to a common carrier chosen by Fluxergy on Customer’s behalf, for shipment and delivery to Customer, in accordance with Fluxergy’s ordinary packaging, shipping and insurance practices. Customer may indicate on its Purchase Order its preferred common carrier.  Products will be shipped to the address designated by Customer in its Purchase Order. Customer shall bear all costs of freight, insurance and other shipping expenses Ex works (EXW)(Incoterms 2020), from Fluxergy’s point of origin in Irvine, California. Fluxergy may ship the Products in one or more lots, in Fluxergy’s sole discretion. Fluxergy shall not be liable for any failure or delay in shipping caused by any common carrier, and all shipping dates are approximate and not guaranteed. Any claims for shortages or damages suffered in transit are the responsibility of Customer, and shall be submitted by Customer directly to the common carrier. Unless Customer has prepaid for Products, any common carrier reimbursement or proceeds of insurance on the Products shall be paid to Fluxergy.

‍

5.  ACCEPTANCE/REJECTION OF PRODUCTS; MISSING PRODUCTS

Customer agrees to inspect all shipments of Products promptly upon receipt.  Customer shall have ten (10) days after receipt (the “Acceptance Period”) to reject in writing any Products that are damaged or defective, and/or to report missing Products. Products not rejected within the Acceptance Period shall be deemed accepted.  Customer shall promptly return all rejected Products to Fluxergy C.O.D., accompanied by a valid return authorization number obtained from Fluxergy. Fluxergy may refuse the return of any Products not timely rejected or sought to be returned without a valid return authorization number. At its option, Fluxergy may elect to repair or replace any rejected Products with the same or similar Products, or refund the prepaid purchase price of such Products. The foregoing are Customer’s sole and exclusive remedies for defective, damaged or missing Products.

‍

6. PERMITTED USES

Customer agrees to only use the Products (i) in accordance with the Products’ Intended Use, (ii) for Permitted Uses, and (iii) in compliance with all applicable laws and regulations.

CUSTOMER ACKNOWLEGES AND AGREES THAT IN RESPECT OF ANY PRODUCTS THAT HAVE NOT BEEN APPROVED FOR SALE AND USE BY THE FDA (FOR HUMAN HEALTH PURPOSES), THE USDA (FOR ANIMAL HEALTH PURPOSES), AND/OR THE ENVIRONMENTAL PROTECTION AGENCY (FOR ENVIRONMENTAL TESTING PURPOSES), SUCH PRODUCTS ARE INTENDED AND PERMITTED SOLELY FOR RESEARCH USE ONLY (RUO), AND ARE NOT INTENDED OR PERMITTED FOR USE IN THE  DIAGNOSIS, PREVENTION,TREATMENT, MITIGATION, OR CURE OF ANY DISEASE OR OTHER HEALTH CONDITIONS.

Customer is solely responsible to ensure that its possession and use of the Products is in compliance with all applicable laws in the jurisdictions in which it will possess or use the Products.

‍

7. INTELLECTUAL PROPERTY RIGHTS; CONFIDENTIALITY; USE OF IDENTIFYING MARKS

7.1 Intellectual Property Ownership. Fluxergy is the sole and exclusive owner of, and holds all title and rights pertaining to, all intellectual property that concerns or relates to the Fluxergy Products, including their design, specifications, and manufacture. Customer is strictly prohibited from modifying, reverse engineering, or otherwise using the Fluxergy Products for any purpose or in any manner whatsoever outside of the Permitted Use expressly stated herein. Customer shall not (i) disassemble, decompile, reverse-engineer or prepare derivative works respecting any aspect of the Fluxergy Products, including without limitation the Fluxergy Analyzer, nor any assemblies or components of any of the same, (ii) copy or replicate the design or other unique aspect of the Fluxergy Products, or (iii) make Modifications to the Fluxergy Products.  Customer shall not assert or claim in any judicial or regulatory proceeding, or in any filing or submission with any government body or authority, that any Modification to the Fluxergy Products is the intellectual property of Customer.  “Modifications” means any modifications, subtractions, additions, improvements or changes to the Products, made or created by Customer, its affiliates or their respective contractors, including without limitation processes or procedures respecting the function, safety, efficacy, manufacturing or assembly thereof. “Intellectual Property” means all patents, patent applications, trademarks, copyrights, materials and other works that may be subject to copyright, trade secrets, and any other intellectual property, as well as all patentable and unpatentable inventions, ideas, know-how, concepts, object and source code, documentation, improvements, or discoveries.

7.2 Confidentiality. Except as otherwise required by applicable law, all Documentation, and the pricing or quotations provided by Fluxergy respecting the Products, are Fluxergy’s confidential information. Customer shall at all times protect Fluxergy’s confidential information from unauthorized use or disclosure, and Customer is strictly prohibited from disclosing Fluxergy’s confidential information to any third parties.

7.3 Marks. Customer is strictly prohibited from placing any name, brand, or trade markings of any kind on any Products.  Violation of this clause is a material breach of the Agreement between the Parties for which Fluxergy may (i) immediately terminate such Agreement, (ii) obtain return of the Products, (iii) obtain an injunction against Customer’s wrongful conduct, without proving irreparable harm or posting any bond, and (iv) seek and obtain all other damages and remedies available under applicable law. Customer shall not use Fluxergy’s name or trademarks in any advertising or promotional material without the express written consent of Fluxergy given in each instance.

‍

8. SOFTWARE LICENSE; SOFTWARE UPGRADES

8.1 Software/Firmware License. Customer acknowledges and agrees that use of the Fluxergy Products will require Customer to download Fluxergy’s “Fluxergy Works®” software (the “Software”) onto Customer’s computer, and to accept the terms of a separate software license agreement prior to use (“Software License Agreement”).  Customer’s ability and right to use the Software is at all times subject to its agreement to accept and abide by all of the provisions of the Software License Agreement.  Customer’s refusal to accept the terms of the Software License Agreement, or Customer’s violation at any time of any of its provisions, shall give Fluxergy the right to, at any time and without prior notice, revoke Customer’s right to use the Software and/or prevent Customer from continuing to use the Software, without liability or further obligation to Customer.    

8.2.Software Updates and Fees.  Customer acknowledges and agrees that the Software may be updated from time-to-time by Fluxergy to increase its efficiency, remedy “bugs”, and/or to enable the Fluxergy Analyzer to utilize new test types released by Fluxergy. In regards to Software updates that enable the Fluxergy Analyzer to utilize new test types, Fluxergy may, in its sole discretion, require payment by Customer of an update fee.  However, all Software updates requiring a fee to be paid by Customer shall be optional for Customer, and will not affect Customer’s ability to continue to use any of the test types previously ordered by Customer.

‍

9. PURCHASE PRICE; PAYMENT TERMS

9.1 Purchase Price for Products. As consideration for the Products, Customer shall pay to Fluxergy the purchase price agreed upon by the Parties in the Agreement (the “Purchase Price”). The Purchase Price is exclusive of sales or use taxes, ad valorem taxes, VAT, customs duties or other applicable government fees, transportation charges, and insurance. Fluxergy’s invoice will reflect the Purchase Price and all such taxes, fees, and other charges. Fluxergy reserves the right to increase Purchase Prices on future Customer orders at any time.  Unless otherwise stated in the Agreement, payment terms are Net 30, and payable solely in US Dollars.

9.2 General Payment Terms. Fluxergy reserves the right to at any time require other payment terms, including without limitation, payment in advance and/or letters of credit. Customer is not entitled to set-off, abate or otherwise reduce any payment sowing to Fluxergy. Payments are deemed made by Customer when actually received by Fluxergy in immediately available funds.

‍

10. INDEMNIFICATION

Fluxergy shall indemnify, defend and hold Customer harmless from and against any claims, demands, causes of action or liability asserted by any third party based upon a claim that the lease, the sale, or use of the Fluxergy Products for Permitted Uses infringes or misappropriates the patent, trademark or other intellectual property rights of such third party. Customer shall indemnify, defend and hold Fluxergy harmless from and against any claims, demands, causes of action or liability asserted by any third party and arising from or related to (a) it’s failure to property operate or use the Products, (b) the conduct by Customer of its business and operations, (c) use or operation of the Products in violation of any applicable laws or regulations, and (d) any breach of any representation or warranty made by Customer in any Agreement.

‍

11. LIMITATION OF LIABILITY

Under no circumstances shall Fluxergy have any liability to Customer, or Customer’s officers, directors, owners, agents, employees, or contractors for any incidental, indirect, special, consequential, or punitive damages arising out of or related to (a) Customer’s use, possession or operation of the Products,(b) Customer’s conduct of its business and operations, or (c) performance of the Fluxergy Products,  regardless of whether Fluxergy is advised or has knowledge of the possibility of such damages.  In addition, notwithstanding anything to the contrary in any Agreement, Fluxergy’s liability under any Agreement to Customer or Customer’s officers, directors, owners, agents, employees, or contractors is expressly limited to the amounts actually paid by Customer and received by Fluxergy in connection with the specific Products which are the alleged or actual cause of any loss, damage or other liability.

‍

12. EXPORT CONTROLS

The Parties agree to comply with all applicable laws, rules, and regulations regarding the export or re-export of any Products including, without limitation, the United States Export Administration Act of 1979, the United States Export Administration Regulations issued by the United States Department of Commerce, and the International Traffic in Arms Regulations (ITAR) issued by the United States Department of State. Customer assumes all liability and responsibility for ensuring shipments of Products comply with all applicable laws, rules, and regulations, and agrees not to export, re-export, re-sell or divert any Products in contravention of the same.

‍

13. LIMITED WARRANTY

Fluxergy provides an exclusive, limited warranty for the Fluxergy Products, as set forth in the Section. Subject to the other provisions of this Agreement, Fluxergy warrants that for a period of two (2) years from the date of delivery (the “Warranty Period”), the Fluxergy Products will (i) be free from defects in materials or workmanship, (ii) meet performance standards consistent with the standards of performance then-prevailing in the medical device testing industry, and (iii) materially perform at the standards of quality consistent with the Permitted Uses. Fluxergy does not guarantee any particular percentage of accuracy or errors for any diagnostic or screening tests used in respect of the Fluxergy Products. Prior to expiration of the Warranty Period, Customer may extend the Warranty Period a maximum of two (2) years with respect to the Fluxergy Analyzer by paying Fluxergy, in advance, a warranty extension fee of $699.00 per year.

Products that are not Fluxergy Products are not covered by this limited warranty, but may instead be covered by specific warranties given by the manufacturers thereof. The limited warranty stated herein will apply only to matters reported in writing to Fluxergy during the Warranty Period. If a warranty claim is made to Fluxergy by Customer during the Warranty Period, and Fluxergy confirms that the subject Fluxergy Products failed to meet the warranty, Fluxergy will, at its option, either provide Customer with replacement Fluxergy Products or issue a refund to Customer in the amount of the original purchase price.  The foregoing are Customer’s sole and exclusive remedies and Fluxergy’s sole and exclusive responsibilities and liabilities in the event of any Product defect and/or warranty breach. Customer assumes all other responsibility for any loss, damage, or injury to persons or property arising out of, connected with, or resulting from its Permitted Use of the Products, either alone or in combination with other third party products.

If Fluxergy issues replacement Fluxergy Products, Customer acknowledges that the above warranty will apply only for the duration of the original Warranty Period.

Except as expressly set forth in these Terms & Conditions, FLUXERGY MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY WITH RESPECT TO THE MERCHANTABILITY OF THE PRODUCTS, OR THEIR FITNESS FOR A PARTICULAR PURPOSE. Any description of the Products contained on Fluxergy’s website or promotional materials is for the sole purpose of identifying the Products, and any such description is not apart of the basis of the Parties’ bargain and does not constitute a warranty that any Products unit will conform to that description.

‍

14. TECHNICAL SUPPORT; AUTHORIZED REPAIRS

Fluxergy’s agreement to provide any Technical/Clinical Support to Customer for the first year after purchase at no charge is subject to the following limitations: maximum 5 hours for the 1st month, and 2 hours each following month. Thereafter, in its sole discretion, Fluxergy may provide further Technical/Clinical Support at its standard hourly rates then in effect (check with your customer service representative for current rates).

Only Fluxergy or its authorized representatives may perform repairs of the Fluxergy Products. Customer shall not attempt to repair any Fluxergy Products without first notifying Fluxergy, receiving written instructions from Fluxergy, and having Fluxergy’s prior written approval of any such actions. Any repairs to the Fluxergy Products by Customer must be performed in compliance with Fluxergy’s instructions and applicable laws.  Any unauthorized repairs to the Products, or Customer’s failure to follow Fluxergy’s instructions in making repairs, shall void Fluxergy’s limited warranty set forth in these Terms & Conditions.

‍

15. RETURN PROCEDURE FOR WARRANTY CLAIMS AND REPAIRS

A.  Procedure for Warranty Claims. For all Fluxergy Product warranty claims, Customer shall comply with FLUXERGY’s then-current warranty return procedure, which is generally described below (“RMA Procedure”).  FLUXERGY may from time to time revise its RMA Procedure to improve efficiency or customer satisfaction—please see www.fluxergy.com for any recent updates.  

1.     Customer shall contact FLUXERGY in writing during the Warranty Period and inform FLUXERGY of (i) the identity of the Product claimed to be defective (including its serial number if applicable); (ii) the nature of the problem or defect, and (iii)the Purchase Order number that the Product was ordered under. Depending on the Product and the nature of the defect/problem, FLUXERGY will require CUSTOMER to either (a) return the Product in question to Fluxergy, or (b) dispose of the Product in question.  

2.     If FLUXERGY requires CUSTOMER to return the Product, it shall provide CUSTOMER with a return authorization number/barcode, and CUSTOMER’s return shipping label will display such number/barcode legibly and prominently. Customer shall (a) clean and disinfect/decontaminate all analyzer(s) being returned to FLUXERGY prior to shipment, taking care to ensure that no cleaning or other fluids enter the internals of the analyzer(s), and (b) execute FLUXERGY’S standard decontamination acknowledgement form to certify cleaning and disinfection/decontamination has taken place (“Decontamination Certification”), and email a copy of such Decontamination Certification to FLUXERGY prior to analyzer shipment.  Copies of the Decontamination Certification form may be found at www.fluxergy.com, or Customer may request a copy be emailed to it.

3.     FLUXERGY shall pay return freight charges on shipments of defective Products covered under warranty and returned to FLUXERGY by CUSTOMER, provided that FLUXERGY has requested such return.  Customer shall utilize FLUXERGY’S preferred carrier and shipping method for all returned Products.  

4.     If FLUXERGY elects to repair or replace a returned defective Product, it shall complete the repair or procure a replacement in a commercially reasonable period of time, subject to parts availability and force majeure events. Upon completion of the repair or procurement of the replacement, FLUXERGY shall ship the same to CUSTOMER at FLUXERGY’S expense.  Alternatively, FLUXERGY may at its option refund the defective Product purchase price to CUSTOMER, and in that event FLUXERGY may retain the defective Product.

5.     If FLUXERGY determines that a returned Product is not defective, is not under warranty (for any reason) or was not returned in compliance with FLUXERGY’s RMA Procedure, FLUXERGY shall contact CUSTOMER and inform it of such fact, and thereafter all freight charges for the returned Products shall be paid by CUSTOMER (or if already paid by FLUXERGY, reimbursed by CUSTOMER).  In addition, for all such returned Products Section 15(B) hereof shall apply.

B.  Procedure for Repairs Not Covered by Warranty. If FLUXERGY determines that a returned Product is not defective, is not under warranty (for any reason), or was not returned in compliance with FLUXERGY’s RMA Procedure, it shall inform CUSTOMER and thereafter CUSTOMER at its option may, within ten(10) days, request either (i) that the Product in question be disposed of by FLUXERGY, (ii) that the Product in question be returned to CUSTOMER at CUSTOMER’S sole cost and expense, freight prepaid, or (iii) that FLUXERGY provide CUSTOMER with a repair quote.  If CUSTOMER fails or refuses to elect one of the foregoing options within such ten day period, it shall be deemed to have elected to have FLUXERGY dispose of the Product in question, and FLUXERGY may thereafter promptly do so without further liability or responsibility to CUSTOMER.

1.     If CUSTOMER requests a repair quote for a defective Product not under warranty, FLUXERGY shall use commercially reasonable efforts to provide such quote within fifteen (15) days.  If CUSTOMER finds such quote acceptable, it shall request in writing that FLUXERGY perform the repair, and shall prepay all charges for such repair, including all return shipping charges and related taxes and fees.  FLUXERGY shall thereafter perform such repair in a commercially reasonably period of time, and ship the same to CUSTOMER upon completion.

2.    CUSTOMER acknowledges and agrees that repair of a defective Product may not always be possible or commercially feasible for various reasons, including lack of repair parts availability, lack of qualified repair personnel, or force majeure events, and FLUXERGY shall have no responsibility or liability to CUSTOMER to make repairs to any Products in these circumstances.

‍

16. DEFAULT

Any of the following shall constitute an “Event of Default” under any Agreement between the Parties:  A party (a) fails to timely make any payment within seven (7) days of when due, (b) breaches or is in material violation of any of its obligations set forth in any Agreement, including those set forth in these Terms & Conditions, and fails to cure such breach or violation (if capable of being cured) within the stated cure period (or within fifteen [15] days if no cure period is stated), or (c) ceases conducting business in the ordinary course, becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, or avails itself of or becomes subject to any proceeding under any bankruptcy law or other statute of any jurisdiction relating to insolvency or the protection of rights of creditors.

Upon the occurrence of an Event of Default, the non-defaulting party may immediately terminate this Agreement and all active/outstanding Purchase Order(s) by giving written notice to the defaulting party. Interest shall accrue on any unpaid Customer invoice balances at a rate of 1.5% per month (or the maximum legal interest rate allowed by applicable law, whichever is less) from and after the due date.  

The rights and remedies provided to the Parties in this provision shall not be exclusive and are in addition to other rights and remedies provided by these Terms & Conditions or at law or in equity.

‍

17. EXCUSE OF PERFORMANCE

Fluxergy shall not be liable for delays in performance or for non-performance of any obligation under any Agreement due to acts of God; pandemics or epidemics; war (declared or undeclared); fire; flood; unusual or severe weather events; sabotage; strikes or labor disputes; civil disturbances or riots; governmental restrictions, allocations, and/or rationing, laws, regulations, or orders; unavailability of or delays in transportation; inability to secure raw materials at reasonable cost due to any of the foregoing; default or delay by any Fluxergy suppliers; acts of Customer; or any other events or causes beyond Fluxergy's reasonable control (each, a “Force Majeure Event”). Product deliveries may be suspended for an appropriate period of time or canceled by Fluxergy upon notice to Customer due to any Force Majeure Event.

In the event of a shortage in available Products for any reason, including without limitation lack of manufacturing capacity, parts supply problems, or a Force Majeure Event, Fluxergy shall have the right, in its discretion, to apportion deliveries among its various customers in such manner as Fluxergy deems reasonable and equitable, without liability to Customer for any failure of performance which may result therefrom.

‍

18. PRODUCT STORAGE AND USE CONDITIONS

Customer agrees to store and use the Products only in a location that is shielded from inclement weather (including rain, snow or high winds), and which is free of excessive dust, humidity in excess of 75%, temperatures below freezing or higher than 30° Celsius, and excessive vibrations. Failure to adhere to these requirements may void Fluxergy’s limited warranty set forth in these Terms & Conditions.

‍

19. NO LIENS

Until the Products are paid for in full, Customer shall (i) keep the Products free and clear of all levies, liens and encumbrances, and (ii) cause the immediate removal of any levy, lien or encumbrance against the Products upon written notice thereof from Fluxergy, or otherwise upon Customer becoming aware of the existence of any such levy, lien or encumbrance.

‍

20. NO ASSIGNMENT; NO TRANSFER OR SOFTWARE LICENSE

Customer shall not assign or otherwise transfer its rights or interests, or delegate any of its duties, under any Agreement without the prior written consent of Fluxergy, and any such assignment without such consent shall be null and void and deemed a breach of the Agreement.  In addition, Customer acknowledges and agrees that the Software License Agreement is non-transferable under any circumstance.

‍

21. MISCELLANEOUS PROVISIONS

If any provision in these Terms & Conditions is declared void or unenforceable in any jurisdiction, the other provisions herein shall remain in full force and effect. If any action or proceeding at law or in equity is necessary to enforce or interpret these Terms & Conditions or any related transaction between the Parties, the substantially prevailing Party shall be entitled to recover its reasonable attorneys’ fees, costs and reasonably necessary expenses in addition to any other relief to which such Party may be entitled. The Parties agree that no provision of these Terms & Conditions shall be construed against any Party on the basis that such Party drafted all or any portion thereof. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter stated herein and herein, and the Parties acknowledge and agree there are no oral agreements or other understandings that are not expressly stated in writing.  The headings of any section of these Terms & Conditions are for convenience only, and shall not have any substantive effect.  Wherever the word “including” appears in these Terms & Conditions, it shall be construed to mean “including but not limited to”.  These Terms & Conditions cannot be modified or amended, or any provision waived, except in a writing signed by an authorized representative of the Party to be charged.  Waiver by any Party of a breach of any provision of the Agreement shall not operate or be construed as a waiver of any subsequent breach, even if of the same type.

‍

22. GOVERNING LAW; MANDATORY ARBITRATION

All disputes, claims or controversies between the Parties concerning any transaction that is contemplated by the Agreement shall be governed by and construed in accordance with the substantive laws of the State of California, USA. The United Nations Convention on the International Sales of Goods shall not apply to any transactions contemplated hereunder.

IN THE EVENT OF ANY DISPUTE, CLAIM OR CONTROVERSY ARISING OUT OF OR RELATED TO ANY TRANSACTION CONTEMPLATED BY THE AGREEMENT, THE PARTIES SHALL EXCLUSIVELY RESOLVE THE SAME IN ACCORDANCE WITH THE RULES OF ARBITRATION (“RULES”) OF THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) BEFORE A SINGLE ARBITRATOR.  THE PLACE OF ARBITRATION SHALL BE ORANGE COUNTY, CALIFORNIA, USA.  HOWEVER, TO THE EXTENT PERMITTED BY THE RULES, THE PARTIES EXPRESSLY AGREE TO THE USE OF THE CASE MANAGEMENT TECHNIQUES CONTEMPLATED BY THE RULES, INCLUDING THE USE OF TELEPHONE AND/OR VIDEO CONFERENCING FOR PROCEDURAL AND OTHER HEARINGS WHERE ATTENDANCE IN PERSON IS NOT ESSENTIAL, AND THE USE OF INFORMATION TECHNOLOGY TO ENABLE COMMUNICATION AMONG THE PARTIES AND WITH THE SOLE ARBITRATOR.  THE PARTIES AGREE THAT THE SOLE ARBITRATOR SHALL BE AN ATTORNEY LICENSED TO PRACTICE THE LAW FOR AT LEAST FIFTEEN (15)YEARS, AND WITH EXPERIENCE IN CONDUCTING AT LEAST FIVE (5) FORMAL ARBITRATION PROCEEDINGS.  IF THE PARTIES FAIL TO AGREE UPON A SOLE ARBITRATOR WITHIN THIRTY (30) DAYS OF EITHER PARTY SUBMITTING A REQUEST FOR ARBITRATION TO THE AAA, HE/SHE SHALL BE SELECTED BY THE AAA IN ACCORDANCE WITH THE RULES. THE SOLE ARBITRATOR’S AWARD MAY TAKE THE FORM OF MONETARY DAMAGES, EQUITABLE RELIEF (INCLUDING ISSUING PRELIMINARY AND/OR PERMANENT INJUNCTIONS), OR BOTH.  ANY AWARD SHALL BE BINDING ON THE PARTIES, PUBLISHED, FINAL, NON-APPEALABLE, AND ENFORCEABLE IN ANY COURT HAVING JURISDICTION OVER THE PARTIES.  THE ENGLISH LANGUAGE SHALL BE USED IN ALL ARBITRATION PROCEEDINGS, SUBMISSIONS, DOCUMENTS, AND OTHER CORRESPONDENCE.  TO THE EXTENT PERMITTED BY THE RULES, DEPOSITIONS AND/OR TESTIMONY OF INDIVIDUAL WITNESSES SHALL TAKE PLACE IN SUCH INDIVIDUAL’S DOMICILE AND MAY BE CONDUCTED BY A PARTY IN PERSON AND/OR THROUGH THE USE OF TELEPHONE OR VIDEO CONFERENCING. UPON REQUEST OF EITHER PARTY, ALL ARBITRATION SUBMISSIONS BY THE PARTIES (BUT NOT ANY AWARD OR PROCEDURAL ORDER) SHALL BE TREATED AS CONFIDENTIAL INFORMATION (AS THAT TERM IS DEFINED HEREUNDER) AND SHALL BE GOVERNED BY THE PROVISIONS OF THESE TERMS & CONDITIONS.

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍

‍