UltraCell Applications

Terms and Conditions of Sale

  1. Authority to Modify Terms. All purchase orders for UltraCell products and services ("Products") placed by the "Purchaser" identified on the reverse of this form are expressly limited to, and conditional upon the terms and conditions herein stated. THE TERMS STATED HEREIN SHALL CONSTITUTE THE FINAL, INTEGRATED, AND EXCLUSIVE AGREEMENT OF THE PARTIES PERTAINING TO SUCH SALE. No course of prior dealings between the parties, and no course of performance or dealing or usage of trade shall be relevant to explain any terms stated herein. No statement, promise, or understanding shall rescind, waive, modify or add to these terms and conditions, or any right or claim arising out of a breach or default by Purchaser, unless such rescission, waiver, modification or addition is expressly approved by UltraCell in writing.

  2. Price and Terms of Sale. Terms of sale are INCOTERMS 2000 EXW UltraCell Dock at Livermore, California. Unless otherwise provided in writing by the parties, each invoice will be due and payable in United States funds net 30 days from date of invoice. Federal or state taxes now or hereafter imposed affecting the production, treatment, manufacture, sales delivery, transportation or proceeds of the Products specified herein, shall be for the account of the Purchaser, and, if paid or required to be paid by UltraCell, the amount thereof shall be added to and become part of the price payable by Purchaser hereunder. Purchaser may not offset against UltraCell's invoices any amounts that Purchaser claims are due to it.

  3. Cancellation. Orders, or installments on an order, accepted by UltraCell are not subject to cancellation except with UltraCell's written agreement and upon terms which will indemnify UltraCell for all loss or damage.

  4. Shipping. Unless UltraCell receives specific shipping instructions from Purchaser, UltraCell shall exercise its own discretion and choice in selecting the carrier and most suitable method of shipment. Purchaser shall bear all risk of loss after INCOTERMS 2000 EXW delivery by UltraCell. Purchaser is responsible for all shipping and handling costs unless negotiated otherwise.

  5. Partial Shipments. Partial shipments shall not be subject to rejection for defect in quantity, and remittances with respect thereto, must be made in accordance with invoices rendered in connection therewith.

  6. Claims. All claims must be made in writing within (15) fifteen days of delivery at destination Purchaser site. All Product returns shall require a return material authorization ("RMA") from UltraCell and be delivered INCOTERMS 2000. Purchaser shipping point in accordance with UltraCell instructions. UltraCell shall pay for all RMA shipping, insurance, and related costs. No Products will be accepted for credit or return by UltraCell absent RMA.

  7. Returns. Products returned without UltraCell's prior written permission will not be accepted for credit. UltraCell may choose at its discretion the method of transportation and carrier for returned freight.

  8. Limited Warranty and Disclaimer. READ THIS ENTIRE WARRANTY AND DISCLAIMER BEFORE USE. IF THE TERMS ARE NOT ACCEPTABLE, RETURN THE PRODUCT PRIOR TO ANY USAGE IN THE ORIGINAL PACKAGING WITHIN 7 DAYS OF RECEIPT FOR A REFUND OF THE PURCHASE PRICE. This warranty applies to Products as specified in the user's manual and is effective upon delivery date, and covers only the fuel cell unit and not fuel cartridges and/or accessories associated with this sale. UltraCell warrants that the Products will be free from defects in material and workmanship, under normal use and service: (a) one (1) year from the 1st day of use or b) 1,000 hours of operation, whichever comes first. This warranty is void under any of the following conditions: (i) opening the case; (ii) unit is damaged by accident or use not in accordance as specified in the operations manual and/or operating conditions as determined by UltraCell; (iii) revision of the purchase agreement and/or any relevant official document without UltraCell's written prior approval; and (iv) use of fuel cartridges that are not manufactured and/or refilled by UltraCell. ULTRACELL MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED. The exclusive remedies of Purchaser under the warranty set out in this Section will be, at the option of UltraCell; either repair, replacement or the issuance of a credit to the Purchaser. Purchaser agrees that no agent, employee or representative of UltraCell has authority to bind UltraCell to any affirmation, representation or warranty concerning the Products other than those warranties expressly set forth herein.

  9. In the event the Product is subject to technical issues under this warranty, the registered owner must report the problem immediately via telephone during regular business hours at (925) 455-9400 or email at with your name, contact information, and brief description of the problem. A customer service representative will contact the registered owner within 2 business days to determine the appropriate course of action. If the unit is determined to be faulty due to manufacturing defects, UltraCell shall repair or replace the Product at its discretion. The warranty expiration shall be pro-rated based on the hours used and/or date of purchase.

  10. UltraCell's Liability. TO THE EXTENT PERMITTED BY LAW, ULTRACELL SHALL HAVE NO LIABILITY TO PURCHASER OR ANY OTHER PERSON FOR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, USE, DATA, OR GOODWILL) OR COSTS OF PROCURING SUBSTITUTE PRODUCTS ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH THESE TERMS AND CONDITIONS OR THE PURCHASE, SALE, USE, OPERATION OR PERFORMANCE OF THE PRODUCTS, WHETHER ARISING OUT OF BREACH OF WARRANTY OR OTHER BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, OR OTHERWISE, EVEN IF ULTRACELL SHALL HAVE BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES. The maximum liability of UltraCell for any reason whatsoever arising out of delivery or use of Products delivered under this order shall in no case exceed the amount that purchaser has paid to UltraCell for such Products prior to the assertion of such liability. In no event shall UltraCell be liable for special or consequential damages hereunder. No liability shall be assumed by UltraCell for delays due to conditions beyond UltraCell's control. The Products sold by UltraCell are not specifically developed for use in the planning, construction, maintenance, operation or other use of any nuclear facility, for flight, navigation or communication of any aircraft or ground support equipment involving flight aircraft, medical instruments or medical equipment, or in any other device which involves life threatening of or inherently dangerous activity. The Products sold by UltraCell have not been certified for indoor use. Purchaser agrees that UltraCell shall have no liability for any claims, losses, costs, or damages arising from such use. Without limiting the immediately foregoing two sentences in any respect Purchaser agrees to indemnify and hold UltraCell harmless from and against all claims, losses, costs, or damages arising out of or in connection with the use of the Products in any such applications.

  11. Taxes. Federal or state taxes now or hereafter imposed affecting the production, treatment, manufacture, sales delivery, transportation or proceeds or the Products specified herein, shall be for the account of the purchaser, and if paid or required to be paid by the Seller the amount thereof shall be added to and become part of the price payable by the purchaser hereunder.

  12. Trade Customs. Terms and conditions not specifically stated herein shall be governed by trade customs.

  13. Limitations on Actions. No action, regardless of form, arising out of any transaction to which these terms and conditions are applicable may be brought by the Purchaser more than one year after the cause of action has occurred.

  14. Applicable Law. All rights and obligations of the parties hereto shall be governed by the internal laws of the State of California, without regard to the principles of comity and conflicts of laws provisions of any jurisdiction. The parties disclaim application of the United Nations Convention on Contracts for the International Sale of Goods.