CarbonX Conditions of Sales & Supply

  1. ARTICLE 1. DEFINITIONS
    1. “CarbonX” means CARBONX B.V. a limited liability company incorporated in the Netherlands having its registered office at Amstelplein 1, 1096 HA Amsterdam, The Netherlands.
    2. “Intellectual Property Rights” means any patent, registered design, copyright, database right, design right, trade mark, trade name, application to register any of the aforementioned rights, trade secret, inventions, rights in know-how, right of confidence and any other intellectual or industrial property right of any nature whatsoever in any part of the world.
    3. “Order Confirmation” has the meaning given to it in Article 3.1
    4. ‘Product(s)’ means any products, goods or physical materials procured from CarbonX and/or supplied by CarbonX to the Purchaser, (such as for example, but not limited to, any new carbon substance, also referred to as carbon nanofiber networks).
    5. ‘Product(s) Application & Improvements’ means any discoveries or inventions, whether patentable or not, made by or on behalf of the Purchaser or any of its employees:
      1. regarding new applications, modifications and/or improvements of or to the Product(s); and/or
      2. which include and/or are derived from any information (regarding the Product(s)) provided directly or indirectly by CarbonX.
    6. ‘Purchaser’ means the party that procures Product(s) or to which Product(s) are supplied by CarbonX.
  2. ARTICLE 2. APPLICABILITY, CONTRACT & WRITTEN TERMS
    1. These terms and conditions of sales and supply of Product(s) (hereinafter all referred to as “Conditions of Sales & Supply”) apply to and form an integral part of (a) any quotations and offers of CarbonX, (b) all acceptances, acknowledgements or confirmations by CarbonX of any order of the Purchaser(hereinafter all referred to as “Order Confirmation”); (c) any agreement resulting from such Order Confirmation and (d) any agreement incorporating these Conditions of Sales & Supply by reference (both types of agreements referred to under (c) and (d) shall hereinafter be referred to as a “Agreement”).
    2. The applicability of any general terms and conditions used by the Purchaser is expressly excluded, and the delivery of Product(s) or acceptance of payments by CarbonX does not constitute a recognition of terms that vary from these Conditions of Sales & Supply.
    3. Amendment, supplement and/or amicable termination of an Agreement or these Conditions of Sale & Supply, including this requirement of written form, must be made in writing and agreed by CarbonX and Purchaser.
    4. Any statement or notification (including notice of termination) issued by Purchaser after execution of a Contract must be made in writing in order to be valid, and any Agreement between CarbonX and Purchasers shall not be amended unless in writing and signed by the authorized representatives of CarbonX and Purchaser.
  3. ARTICLE 3. ORDERS & ACCEPTANCE
    1. CarbonX is only bound by the Purchaser’s order after CarbonX has confirmed the acceptance of the order in writing in an Order Confirmation, or if CarbonX has started to carry out the order (the “Order”).
  4. ARTICLE 4. PRICES & PAYMENT
    1. Unless agreed otherwise in writing, all prices are quoted in Euros, exclusive of VAT and any other statutory levies and based on delivery of Product(s) Ex-Works (‘Ex-works’ according to INCOTERMS 2010), CarbonX facilities in Delft the Netherlands.
    2. CarbonX is entitled to require payment from the Purchaser of the entire amount of the Order in advance or upon delivery. All payment must be made within 14 days after the invoice date without any discount, reduction, suspension or set off.
    3. The Purchaser shall be in default merely by the expiry of a deadline for payment without the need for any demand, notice of default or judicial intervention. In that event, the Purchaser shall be liable to pay CarbonX default interest equivalent to 2% of the invoiced amount, subject to CarbonX’s rights to demand any outstanding amount in full, with immediate effect and subject to any other rights that CarbonX may have. The Purchaser shall be required to compensate CarbonX for all the expenses required to incur for the purposes of collecting the amount which is due, including judicial and extrajudicial expenses, which shall at any rate include the actual costs incurred by CarbonX for legal assistance and advice.
  5. ARTICLE 5. DELIVERY AND TRANSFER OF RISK
    1. Delivery of Product(s) takes place Ex-works (according to INCOTERMS 2010), CarbonX facilities, Delft, The Netherlands unless stated otherwise in the Order Confirmation.
    2. If shipment of Product(s) has been explicitly agreed to be included, CarbonX shall ship the Product(s) at Purchaser’s risk and expense. Furthermore, CarbonX shall specify the manner of shipment, shipment route and carrier and CarbonX is authorized to cover appropriate transport insurance on behalf and at the expense of the Purchaser in an amount at least equal to the invoiced value of the goods.
    3. The delivery date stated in the Order Confirmation or any other Agreement is approximate and may never be regarded by the Purchaser as a binding deadline.
    4. Unless the fulfilment of the Agreement has become permanently impossible without doubt, the Agreement cannot be dissolved by the Purchaser because exceeding the delivery date.
    5. If CarbonX fails to comply with the agreed schedules of delivery in time, Purchaser shall establish an additional delivery period of reasonable length. Such additional delivery period shall be at least six (6) weeks.
    6. CarbonX is entitled at all times to make partial deliveries of Product(s) and to invoice any partial delivery separately.
    7. Risk of loss or damage to the Product(s), as well as the obligation to bear any costs relating thereto, shall pass to the Purchaser upon CarbonX making delivery of the Product(s) to a carrier at CarbonX’s facility or such other location as stated in the Order Confirmation or as otherwise confirmed by CarbonX.
  6. ARTICLE 6. RETENTION AND TRANSFER OF TITLE
    1. Any Product(s) supplied remain the property of CarbonX until full payment for the Product(s) has been received by CarbonX, upon which the tile to the Product(s) shall pass to Purchaser.
    2. If the Purchaser fails to fulfil its obligations and pursuant to the provisions of this article, CarbonX is entitled at all times to recover any delivered Product(s) or to have the same recovered from the Purchaser or from any party keeping the Product(s) for the Purchaser. The Purchaser is obliged to provide CarbonX with full assistance in the recovery.’
    3. If the Product(s) have been processed or finished, combined or mixed by Purchaser with goods of others inseparably, CarbonX acquires joint title pro rata to that part of the new products representing the invoiced value of the Product(s) in relation to the total value of the other goods which have been processed, finished, combined or mixed.
  7. ARTICLE 7. LICENCES, REGULATIONS & NO RIGTH TO RESELL
    1. The Purchaser is responsible for and bears the risk of obtaining all documents, permits and licences required for the delivery, or use of the Product to be delivered and CarbonX shall in no event be liable for the failure of any government to issue such permits or licences.
    2. Purchaser acknowledges and agrees that all Product(s) supplied to Purchaser are for use by Purchaser only and Purchaser agrees and warrants not to resell the Product(s) in whole or in part to any third party without the prior written consent of CarbonX.
  8. ARTICLE 8. PRODUCT INFORMATION & DISCLAIMERS
    1. Unless otherwise agreed, the characteristics of the Product(s) shall be based on CarbonX’s sales specifications or physical description applicable to such Product(s) or to such other specifications as CarbonX has expressly agreed to in writing.
    2. All Product(s) are provided and sold by CarbonX “as is”, without representation, warranty or condition of any kind, express or implied statutory or otherwise, however arising (whether by contract, tort, negligence, principles of manufacturer’s liability, operation of law, conduct, statement or otherwise), including, without restriction, any implied warranty or condition of quality, merchantability, merchantable quality, durability, title, non-infringement or fitness for a particular purpose.
    3. Purchaser is responsible to verify the suitability of the Product(s) for the use intended by Purchaser.
    4. Neither CarbonX nor Purchaser, shall be liable towards each other for any loss of actual or anticipated profits, losses caused by business interruption, loss of goodwill or reputation, or any indirect, incidental, punitive, special or consequential loss or damages (“Indirect Loss”) whether such Indirect Loss are based on tort, (including negligence) warranty, contract or any other legal theory, except where such Indirect Loss is the results of breach by Purchaser of any of its obligations according to Article 12, and furthermore, nothing in this Clause 8.4 shall limit the obligation of Purchaser to indemnify and hold harmless CarbonX under Clause 13.1.
  9. ARTICLE 9. INSPECTION DUTY & REPORTING MATERIAL DEFECT
    1. The Purchaser shall have a duty to inspect the Product(s) immediately upon delivery and if the Product(s) do not materially comply with the agreed specifications as referred to in Article 8.1 (“Material Defect” or “Materially Defective”), such Material Defect must be reported to CarbonX in writing within five (5) days after the date of delivery of the Product(s) to Purchaser.
    2. Any claims regarding Material Defects that are not reported in accordance with this Article 9 are precluded from compensation in accordance with these Conditions of Sales & Supply.
  10. ARTICLE 10. RIGHTS OF PURCHASER IN CASE OF DEFECTS
    1. Purchaser shall have no right to remedies for a defect in the Products’ if only negligible impairment of the value or the usage of the Product(s) exists.
    2. In the event of justified and rightfully raised Material Defect claims of the delivered Product(s) CarbonX’s sole and exclusive obligation and total liability to Purchaser, and the Purchaser’s sole and exclusive right in relation to any such justified and rightfully raised claim arising out of or in connection with a Material Defect in Product(s), shall be limited, at CarbonX’s option, either to the replacement of the Materially Defective Product(s), or to an appropriate credit for the purchase price thereof. CarbonX will have a reasonable time to replace or credit. The Materially Defective Product(s) shall become CarbonX’s property as soon as it has been replaced or credited for.
    3. A Material Defect will not constitute a ground for dissolving the for delivery of any Product(s) concerned, unless it concerns a Material Defect that CarbonX fails to remedy in an acceptable manner after repeated attempts.
  11. ARTICLE 11. FORCE MAJEURE
    1. Any full or partial non-fulfilment will not be an attributable failure by CarbonX if the non-fulfilment is the result of a circumstance beyond CarbonX’s control, foreseeable or not, including but not limited to: war or similar situations, riots, sabotage, boycotts, strikes, occupation, blockades, shortages in raw materials, machine damage, sickness of CarbonX staff, failures by suppliers and/or carriers, measures by the government (including foreign governments) such as bans on transport, import, export or manufacturing, natural disaster, adverse weather conditions, lightning strikes, fire, explosion and/or discharges of dangerous substances and gasses.
  12. ARTICLE 12. INTELLECTUAL PROPERTY RIGHTS, PRODUCT(S) APPLICATION & IMPROVEMENTS AND RIGHTS OF THIRD PARTIES.
    1. Purchaser grants to CarbonX a royalty free, non-exclusive, perpetual, irrevocable and global right and licence under any Intellectual Property Rights of Purchaser to develop, make, have made, use, sell, import, export and lease any Product(s) Application & Improvements globally, including the right to grant sub-licences of this right and licence to any CarbonX affiliates or third parties. On the request of CarbonX, Purchaser shall promptly inform CarbonX of any Product(s) Application & Improvements discovered or generated and of any patents or patent applications of Purchaser in relation thereto.
    2. Purchaser acknowledges and understands that CarbonX has not verified the possible existence of third party Intellectual Property Rights which might be infringed as a consequence of the use or import of the Product(s) by Purchaser, and CarbonX shall not be liable for any loss or damages in that respect.
    3. The provision and sale of Product(s) shall not, by implication or otherwise, convey any licence under any intellectual Property Rights and Purchaser expressly assumes all risks of any Intellectual Property Rights infringement.
  13. ARTICLE 13. INDEMNIFICATION
    1. Purchaser hereby indemnifies and holds CarbonX its directors, officers, employees, agents, sub-contractors, successors and assignees (any such directors, officers, employees, agents, successors and assignees, hereafter ‘Indemnitees’) harmless from and against any and all losses, costs, damages and expenses (including, reasonable attorneys’ fees and other costs of defending any action), that CarbonX or any Indemnitees incur in any way arising out of or relating to: (a) any breach by Purchaser of Purchaser’s obligations under an Agreement and/or these Conditions of Sales & Supply; (b) any claim (from a third party) that the use of the Product(s) by Purchaser violates or infringes any third party Intellectual Property Rights; and (d) any other claims by any third party, including but not limited to claims based on product liability, demands, actions, liabilities, judgements, cost and expenses of whatever kind, whether based on contract, negligence, strict liability or statutory liability, arising out of or related in any way to the use of any Product(s) purchased by Purchaser under an Agreement and/or these Conditions of Sales & Supply and/or the use of any Product(s) Application & Improvements by Purchaser or a third party who obtained such Product(s) Application & Improvements directly or indirectly from Purchaser.
  14. ARTICLE 14. INSURANCE
    1. The Purchaser shall maintain adequate insurance to cover its liability under these Conditions of Sales & Supply or any Agreement. The insurance policy shall contain a waiver of subrogation against CarbonX and its directors, officers, employees, agents, sub-contractor, successors and assignees.
  15. ARTICLE 15. COMPLIANCE WITH LAWS, SEVERABILITY & TRADE TERMS
    1. Purchaser represents that it is duly authorized to enter into the Agreement and represents that with respect to its performance hereunder, it will comply with all applicable laws and regulations.
    2. Should any of these Conditions of Sales & Supply be deemed wholly or partly invalid, this shall have no effect on the validity of the remaining conditions.
  16. ARTICLE 16. APPLICABLE LAW & DISPUTES
    1. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
    2. These Conditions of Sales & Supply and Each Agreement and/or legal relationship between CarbonX and the Purchaser is be governed by and construed in accordance with the laws of the Netherlands.
    3. All disputes – in so far as these cannot be settled amicably – will be submitted to the competent civil court in Amsterdam.

These Conditions shall be referred to as “CarbonX General Conditions of Sale – EN-25082015”.