PORTABLE + MODULAR + SUSTAINABLE + STRUCTURES
Welcome to our website. Your use of this website is subject to the following:
DEFINITIONS: The terms ‘qüb9’, ‘qüb9, Inc.’ ‘qüb9 ARCHITECTURE’, ‘us' or, ‘we’ refers to the owner(s) of the subject website whose principal mailing address is: 620 Park Avenue Rochester, New York 14607. The term 'you' refers to the user or viewer of this website whether an individual or legal entity.
CONTENT: The content pages of this website are for general information only. They do not constitute an ‘offer to sell’ and are subject to change without notice.
WARRANTY: We do not, nor do any third parties, provide any warranty or guarantee as to the accuracy, timeliness, performance, completeness or suitability of the information and materials found or presented on this website for any particular purpose. You acknowledge that such information and materials may contain inaccuracies or errors and you expressly waive any claim(s) for any such inaccuracies or errors to the extent permissible by applicable law. Unauthorized use of this website may give rise to a claim for damages and/or may constitute a criminal offense.
EXTERNAL LINKS: From time to time this website may include links to other websites. These links are provided as a convenience and do not constitute an endorsement of the website or its content. We have no responsibility for the content of linked website(s) or for any damages due to your reliance thereupon.
INTELLECTUAL PROPERTIES: This website contains material which is owned by, or licensed to, us. This material includes, but is not limited to, the design, layout, look, appearance and graphics. Reproduction of any images, parts, pieces, components or source code is prohibited other than in accordance with the copyright notice, which forms part of these ‘Terms and Conditions’.
DISCLAIMER: Your use of any information or materials on this website is at your own risk for which we shall not be liable. It shall be your responsibility to determine that the suitability of any products, services or information available through this website meet your specific requirements. Your reliance on this information shall be at your exclusive risk.
YOUR ACCEPTANCE: Your access and use of our website constitutes your tacit ACCEPTANCE of the ‘Terms and Conditions’ contained herein. If you disagree with any part of these ‘Terms and Conditions’, do not access, or use, our website.
How We Collect and Use Information:
It is fundamentally against qüb9's policy to collect any personally identifiable information from you except: information you have intentionally given to us via a direct inquiry of our company and, we will never send you unsolicited email.
We collect the following types of electronic information:
1. Information you provide us directly and, only if you correspond with us. We may also retain any messages you send us. Otherwise, we do not collect, or utilize any personally identifiable information or data.
2. Analytics information; We may indirectly collect analytics data, or use third-party analytics tools to help us measure traffic and usage trends. These tools collect information sent by your browser or mobile device, including the pages you visit on our site. We collect and use this analytics information in an aggregate form such that it cannot identify any particular individual user.
3. Cookies information: When you visit, we may send one or more cookies — a small text file containing a string of alphanumeric characters — that uniquely identifies your browser and the pages you view, the links you click and other actions you take. A persistent cookie remains on your hard drive after you close your browser. A session cookie is temporary and disappears after you close your browser. Some features of the site may not function properly if the ability to accept cookies is disabled.
4. Log file information: Log file information is automatically reported by your browser or mobile device each time you access the site. These server logs may include anonymous information such as your web request, Internet Protocol (“IP”) address, browser type, referring / exit pages and URLs, number of clicks and how you interact with links on the site, domain names, landing pages, pages viewed, and other such information.
5. Device identifiers; When you access the site by or through a mobile device (including but not limited to smart-phones or tablets), we may access, collect, monitor and/or remotely store one or more “device identifiers. A device identifier may be data stored in connection with the device hardware, data stored in connection with the device’s operating system or other software, or data sent to the device by qüb9.com. Some features of the site may not function properly if use or availability of device identifiers is impaired or disabled.
7. Sharing of Your Information; We do not rent or sell any information.
8. What happens in the event of a change of control; We may buy or sell/divest/transfer the company or any combination of its products, services, assets and/or businesses. Information such as customer names and email addresses may be among the items sold or otherwise transferred.
9. Instances where we are required to share your information: We will disclose information only where required to do so by law or subpoena.
Any reference or link obtained from this site, this server, to a specific company, product, process, or service does not constitute or imply an endorsement by qüb9 of the company, product, process, or service. The views and opinions expressed in any referenced website, document or materials do not necessarily state or reflect the views or opinions of qüb9.
Images, illustrations, technical drawings, specifications and other information contained in this material and on this site are based on the latest information available at time of publishing. qüb9, inc. reserves the right to withdraw products and/or make changes to any of the aforementioned, including product designs, prices, specifications, materials, at any time, without notice.
EFFECTIVE DATE: FEBRUARY 28, 2016
ALL GOODS AND SERVICES SOLD BY qüb9, INC. ARE EXPRESSLY SUBJECT TO THE TERMS AND CONDITIONS OF SALE SET FORTH BELOW. ADDITIONAL OR CONFLICTING TERMS OR CONDITIONS CONTAINED IN BUYER'S PURCHASE ORDER OR OTHER RELATED COMMUNICATIONS ARE REJECTED AND SHALL NOT BE BINDING UNLESS RATIFIED IN WRITING BY A qüb9, Inc. OFFICER.
Sales: We sell our products wholesale.
Offer to Sell: We reserve the right to accept or reject orders. Issuance of a quote does not constitute an offer to sell.
Quotations: Unless otherwise specified in writing, the life of a quotation is 5-days due to fluctuations in the commodities market. A quotation does not constitute an offer to sell.
Prices: Prices are subject to correction without notice. Prices quoted are F.O.B. our facilities. Prices do not include fees for handling, Freight-made-Ready, freight expenses, taxes(where applicable) and/or any duties, customs, brokerage or agency fees unless otherwise specified in writing.
Acceptance of Orders: All orders are subject to ‘acceptance’ by qüb9. An order is accepted and placed into production queue only upon the occurrence of: 1) our receipt of our accepted quotation form, proposal or bid documents accompanied by; 2) payment pursuant to these Terms and Conditions of Sale and; 3) our mutual verification of specifications via our ‘Order Acknowledgement’ document unless those specifications were prepared by the Buyer. We reserve the right to correct errors or omissions.
Payment: Made-to-Order (MTO) and Custom PRODUCTS: 50% down, balance due in 25% installments commensurate to completion and the final 25% payment upon Buyer’s receipt of our Notice of FMR (Freight-Made-Ready for shipment) on our dock.
Currency: All amounts are stated, and shall be paid, in US Dollars.
Payment: Accepted Forms: qüb9 accepts cash, checks, wired funds. Payment must be made at the time specified in these Terms and Conditions regardless of whether the buyer plans to make any pre-shipment inspection of the product(s). Payments issued in the form of checks, drafts, certified funds and any other negotiable demand instruments, will not be considered ‘received’ until the instrument has been honored by the buyer’s institution and the funds have been transferred to our account. For wire instructions contact Accounts Receivable. Past due accounts may be subject to interest at the rate of 1.5% per month together with the possibility of added handling and/or storage fees. All invoices and amounts paid by the buyer to qüb9 may, regardless of any contrary directive, be applied by qüb9 to such outstanding invoices and accounts and as to principal, or interest, as qüb9 deems fit. All accounts are payable to qüb9 without deduction, set-off or counterclaim.
Sales Tax: Customer is responsible for payment of all applicable taxes or, for providing a valid sales tax exemption certificate. Customer shall indicate in writing which products are tax exempt.
Discounts 1: qüb9 may from time-to-time offer introductory, revised, remanufactured or discontinued product discounts and/or volume purchase incentives. These incentives or ‘discounts’ are not cumulative and will not be honored in conjunction with any other offer, incentive or discount(s). qüb9 will utilize the lowest price available at the time of order.
Discounts 2: Anticipation discounts are not allowed absent written agreement.
Cancellation 1: In-Stock Products: Orders of inventoried product under $5000 exclusive of taxes, handling, FMR, may be cancelled at anytime prior to shipment. We reserve the right to charge a reasonable cancellation and/or restocking fee only when handling or FMR services have been assumed on those stock products.
Cancellation 2: MTO (Made to Order) and Custom goods made to a customer’s specifications are not returnable nor subject to cancellation once placed in our production queue.
Changes/Change Orders: Change Orders and changes in requirement or specification sought after commencement of production should be avoided except where those changes are determined by the Buyer to critical. qüb9 relies exclusively on the Critical Path Method (CPM) for all production processes and activities beginning at time order is placed in our production 'queue' to, and including, notice of Freight-Made-Ready (FMR) at our facilities. For these purposes, the Buyer stipulates and agrees that all production processes and activities utilized by qüb9 in the production of Custom or Made-To-Order (MTO) goods are, and shall be defined as, 'critical path activities'. Changes and the costs thereof will be quoted for Change Order only upon qüb9's satisfactory receipt of Buyer's details, drawings and specifications. Where qüb9 has delivered contract design or engineering services in connection with the subject order, Buyer shall give qüb9 written notice by US Mail Certified of Buyer’s intention to make changes whether the Buyer intends that qüb9 create a specification for the proposed change(s) or not. The term 'cost-plus' is defined as qüb9's pricing plus the percentage specified. Changes are calculated and quoted at Cost-Plus 30% in all cases except contracts subject to FAR Part 16.102. There may be additional expenses incurred as a result of associated delays, reengineering productions processes and others that will be in addition to these costs. See: Delays/Additional Expense: below. Changes will be executed only upon written orders.
Delays/Additional Expense: Buyer shall be responsible for the cost of delays including any increased or additional production costs resultant of Buyer's incomplete, changed or proposed changes in requirement or specification. The term 'cost-plus' is defined as qüb9's pricing plus the percentage specified. Costs resulting from these occurrences shall be calculated at Cost-Plus 30% and may include, but shall not be limited to: delays in Buyer's provision or procurement of required information, plans, specifications or materials; delayed, interrupted or stopped work; material loss and damage or diminution of value due to the change itself or the passage of time; labor and work activity inefficiencies; loss of profits; increased general and administrative expenses; whether or not the Buyer ultimately delivers the information, material or executes change(s) proposed. It is accepted that delays may cause collateral production issues and result in a possible loss of standing in queue and other related expenses. The Buyer stipulates and agrees that where a contract may be subject to FAR Part 16.102; the costs of delays shall be subject to FAR 16.301-2 and FAR 16.301.1(i),(ii). Buyer agrees to pay these costs within five days of receipt of qüb9’s invoice unless another payment date is specified in writing. Buyer shall not be entitled, under any circumstances, to labor or production logs, data, notes, costs of sale, material costs, process or activity breakdowns or itemizations of the same. When retained, qüb9 shall not be responsible for reasonable delays in the making of any changes in specification or work.
Freight: All orders are F.O.B. our facilities in Rochester, New York 14603.
Reservation of Title: Title to goods shall remain with qüb9 until all amounts due under any order, contract or other agreement are fully paid to qüb9.
Shipping dates: Shipping dates are tentative and supplied to our customer only as a reference. We are reliant upon product and material availability, shipping, weather, etc. however, we cannot assume liability for production delays that are beyond our control. To the extent possible, we will make every reasonable effort to accommodate a customer’s preferred ship date but qüb9 does not warrant ship dates.
Freight Made Ready(FMR): FMR is the point-in-time whereby a completed product has passed our Quality Control(QCD) and is ready for transfer directly to Buyer or their shipper. Dependent upon Buyer’s shipping instructions on the Order Acknowledgement, FMR may include additional fees for crating, packing and/or other shipping preparations. Please request a quote. Otherwise, they are billed on the basis of Time and Materials.
Freight Policy: Prices stated are Freight-Made-Ready, F.O.B. Rochester, New York. Customer must specify means and manner of shipping. Freight is to be customer prepaid to shipper to the destination specified in the order. Dependent upon means and manner of shipping, qüb9 may charge a handling or FMR fee which is applied at time of qüb9’s order acceptance and will be reflected on our Order Acknowledgement and subsequent Invoice. Receipts for handling charges will not be furnished. Products are ‘Freight-Made-Ready’ on our dock.
Damage Claims: Title and risk of loss pass to customer upon our tender of shipment to the carrier. We accept no liability for carrier delays or damages associated with shipping. The Buyer’s only recourse is to file a claim with the carrier. Upon the occurrence of physical damage during transit, please let us know as soon as possible so that we can offer assistance in making repair(s), replacement and/or provide loss mitigation measures as mandated under applicable inland marine insurance policies. We will assist Buyer with evaluation of damage, claim documentation and expediting for claim purposes and replacement.
Defective Materials Received: It is the Buyer’s duty to thoroughly inspect all shipments received before the driver/shipper departs your facilities. In the case of damage or defect, have the driver make note of the same on the Bill of Lading. qüb9 will repair or replace materials determined to be defective at the time of shipment provided that the buyer notifies qüb9 of any such defect at within 3-days of receipt and notifies the carrier immediately. All warranty claims must be submitted in writing. See: Warranty.
Export: Orders for export may be subject to other special pricing. Export orders are subject to special export payment Terms and Conditions. All payments must be made in U.S. dollars. qüb9 has the right of set-off and deduction for any sums owed by the customer to qüb9.
Subsidiary/Affiliate Liability: Customer agrees to assume responsibility for, and customer hereby unconditionally guarantees payment, as provided herein, of all purchases made by customer, its subsidiaries and affiliates. Each of customer’s subsidiaries and affiliates purchasing from qüb9 are jointly and severally liable for purchases and customer is also acting as agent for such subsidiaries and affiliates.
Security Interest: Customer hereby grants to qüb9 a first priority purchase money security interest and/or chattel mortgage in the products and any accounts receivable or cash from resale thereof until full payment is made to us. Customer agrees to file, and permits and authorizes us to file, any financing statements or other appropriate documents with its governmental authorities to perfect the validity, priority, and enforceability of our lien or security interests.
Default 1: Failure to Pay: With respect to MTO or Custom products: upon the occasion of Buyer’s failure to comply with these Terms and Conditions of Sale; specifically, failure to pay outstanding balances reasonably and promptly upon receipt of qüb9’s notice of ‘Freight-Made-Ready’(FMR) or Invoicing, qüb9 shall deliver to Buyer it’s Notice of Breach and a Demand to Cure within a time to be specified. Given the size and difficulty of handling of our products, a breach, or threatened breach, of these Terms & Conditions of Sale may cause qüb9 damages, additional administrative, handling and/or storage expenses that may be passed on to the Buyer. We reserve the right to charge customer a late payment fee at the rate of one and one-half percent (1-1/2%) of the amount due for each month or portion thereof that the amount due remains unpaid, or such amount as may be permitted under applicable law.
Default 2: If the Buyer fails to comply with these Terms & Conditions of Sale, or fails to supply adequate assurance of full performance to us within a reasonable time after request by us (such time as specified in our request), we may defer shipment until such payment or compliance is made, require cash in advance for any further shipment(s), demand immediate payment of all amounts then owed, elect to pursue collection action at the Buyer’s expense(including without limitation, attorneys’ fees and any and all other associated costs of collection), and/or may, at our option, cancel all or any part of an unshipped order and liquidate at our discretion.
Default 3: Upon any event of default by the buyer or, in the event that qüb9 at any time determines that its remaining credit position, or balance owing, is in any manner insecure, inadequate or in jeopardy, qüb9 may, without limiting its other remedies hereunder or at law or in equity: (a) deem all amounts owing by the buyer to be immediately due and payable, (b) take possession of any goods supplied or otherwise enforce its security interest against the buyer, (c) refuse, stop, cease or suspend further sales, deliveries or services to the Buyer, including goods in transit, and/or (d) as a condition to completing or commencing such sales, deliveries or services, impose prepayments, security or other terms, all as qüb9 sees fit. The Buyer agrees to pay all reasonable costs and expenses including legal expenses incurred by qüb9 in the collection of any monies due to qüb9 and/or in enforcing any of qüb9’s rights under these terms and conditions.
UCC Filings, Security Interests: Conditioned only upon Buyer’s payment in full, the Buyer transfers, mortgages, grants and assigns to qüb9 a security interest in all of the buyer’s present and after acquired personal property, and all proceeds therefor, as security for the due payment and satisfaction of any and all obligations and liabilities whatsoever, liquidated or unliquidated, of the Buyers to qüb9, present or future, direct or indirect, howsoever arising. Upon the occurrences of notice of default, failure to cure, repossession or forfeiture, qüb9 may dispose of its security interest/collateral by public or private sale, retain the collateral in satisfaction of the debt, terminate the Buyer's right of redemption, add the costs of repossession and/or foreclosure to the unpaid balance of the debt and pursue the Buyer for any remaining unpaid balance or deficiency.
Returns: No merchandise may be returned for credit or exchange without the prior written approval from qüb9. All returned merchandise must be in original containers and/or packaging in new and merchantable condition, and will be subject to inspection and may be subject to a restocking charge. Returns will not be accepted by our shipping/receiving department without an RGA(Return Goods Authorization) number conspicuously displayed per our direction. Please contact Customer Service for a written RGA number and shipping directions. Return freight is to be prepaid by the buyer. Returns made without an RGA # will be considered abandoned and will be disposed of at our discretion and without notice.
Special Tools: Unless specifically agreed in writing by qüb9, and unless paid for by Buyer as shown on the invoice, all special tools, dies, jigs, patterns, machinery and/or equipment required by qüb9 for the performance of this sale are, and shall remain, the property of qüb9.
Confidentiality: The Buyer acknowledges that it has/will receive(d) information from qüb9 that is sensitive business information and other information that may be considered confidential or proprietary at law and that the Buyer will not use the confidential information of the qüb9 for any purpose other than completing its obligations under these terms and conditions and, except as required under applicable law, it will not disclose the confidential information of the other party to any other person or entity. The buyer acknowledges that all specifications, plans, designs, concepts and other proprietary information relating to the products or services provided by qüb9 hereunder, including, without limitation, all trademarks, patents, copyright, industrial design or other intellectual property rights related thereto, are and remain the sole property of qüb9. The buyer is granted a non-exclusive, non-assignable, royalty free license to use any written or electronically formatted drawings, plans, manuals or product information materials created by qüb9 and delivered to the buyer solely for the purposes of the use, deployment, maintenance and repair of any products or services provided by qüb9 and without adding to, increasing or extending any warranties or liabilities of qüb9 or altering the limitations or warranties or liability contained in these terms and conditions.
Manufacturer’s Limited Parts and Labor Warranty OEM Products Only: Subject to the terms of the Limited Warranty set out in this section, qüb9 warrants that (a) systems manufactured by it, (b) parts manufactured by it, and (c) parts repaired by it, will each be as specified by qüb9 and will be free from defects in material and workmanship. All products manufactured by qüb9 are subject to qüb9’s standard tolerances for specifications. qüb9 reserves the right to make substitutions and modifications in the specifications of any products, provided such substitutions or modifications do not materially affect the performance of the products.
Warranty Period(s) OEM Products Only: The applicable limited warranty period is as follows: (a) for all systems designed and manufactured by qüb9, a period of ten (10) years including parts and labor on our site or, the site of an authorized qüb9 service provider in your area, (b) for all parts manufactured by qüb9, a period of five (5) years, (c) for all components found in qüb9 products but manufactured by any other company, a period not to exceed the manufacturer’s warranty or 2-years whichever is greater, (d) for all products and components repaired by qüb9, a period of 90-days in each case commencing with the shipment date to the Buyer, unless otherwise stipulated in writing by qüb9. Although qüb9’s limits of liability remain in force, the Buyer may have other claims, rights and/or remedies available to them through those other manufacturers.
Warranty Transportation OEM Products Only: qüb9’s Limited Parts and Labor Warranty covers only the cost of our authorized repair and replacement parts and our authorized repair / service labor. In the case of a defective system, component or part, Buyer has several options. Service at qüb9 facilities, service at a qüb9 authorized facility in the Buyer’s service area or, service at Buyer’s facilities. Buyer is solely responsible for: (a) delivery of defective product to authorized qüb9 facilities in your area or (b) the cost of transportation of qüb9 service personnel and relevant equipment to Buyer’s facilities.
Warranty Voidance: Warranty shall not apply and shall be null and void with respect to a system, component or part if: (a) the system, component or part has been incorrectly, improperly or inadequately installed, assembled, stored, maintained, handled, treated or if the system, component or part has been used in contravention of qüb9’s published Product or Safety Manual, the manufacturer’s recommendations or, submitted to any operation or assembly abuses; (b) if the system or part has been damaged due to an accident, negligence, fortuitous circumstances, act of God or any other circumstances which arise through no fault of qüb9; (c) in respect of normal wear and tear, or parts that, owing to their inherent material properties or their specified use, are subject to premature wear; (d) if the buyer has not complied with all requirements set out in these terms and conditions and any applicable order or contract, or (e) any material modifications or structural adjustments to the system or part having been carried out by any person(s) or entity other than qüb9 or a qüb9 authorized party or, a material influence of any parts or components not supplied or authorized by qüb9, the original equipment manufacturer.
OEM Warranties of Others: qüb9 provides no warranty, express or implied, with respect to any other products, parts or components not manufactured or repaired by qüb9. This warranty and these terms shall in no way alter or replace the warranties of individual components sold by qüb9 but which are manufactured by others. The terms and conditions, including as to warranty length, that are contained in any manufacturer warranty applicable to any portion of a system, or part, shall take precedence over, and supersede the terms of qüb9’s warranty. Buyer’s may have additional statutory rights beyond these terms. In any case, qüb9’s maximum liability shall not exceed the repair or replacement of the subject part or component.
Merchantability & Fitness: It is the sole responsibility of the Buyer, and Buyer’s exercise of due diligence, to determine the suitability and fitness of any product for Buyer’s intended use. Thus, any and all implied warranties of merchantability or fitness for a particular use are hereby excluded.
Not Consumer Products: qüb9 products are sold for commercial and industrial use only and are not intended for use by consumers. qüb9 specifically disclaims all warranties to those parties defined as ‘consumers’ by the Magnuson-Moss Act. qüb9 personnel are not authorized to alter this provision.
Liability: Notwithstanding any other provision, qüb9’s maximum liability under this warranty shall be strictly limited to the repair or replacement of any system or part which is determine by qüb9 to be defective or, at the most, repayment of the purchase price (as qüb9 may elect in its absolute discretion), within the applicable limited warranty period.
Further, in no event shall qüb9 be liable to the buyer or any third party with respect to any product, system, part, goods or service sold or provided by qüb9, whether based on contract, warranty, negligence, indemnity, strict liability or otherwise, (a) for any indirect, special, incidental, punitive, exemplary or consequential loss or damages, or (b) in an amount in excess of the price paid to qüb9 by the buyer for such product, system, part, component, goods or service. In any and all events, no claim in tort (including negligence), breach of contract or any other cause whatsoever may be brought or counterclaimed against qüb9, more than 60-days after the delivery of goods or services to which such claim relates even if the grounds for such claim are not discovered or discoverable until after the expiration of such time.
General Conditions: All orders are subject to acceptance by qüb9. The terms in qüb9’s forms are incorporated herein by reference, and when integrated, constitute the entire and exclusive agreement between Buyer and qüb9. Any representation, affirmation of fact and course of dealing, promise or condition in connection therewith or usage of trade not incorporated herein, shall not be binding on either party.
Adhesion: Buyer agrees that Buyer’s acceptance of qüb9's proposal or submission of it’s order shall subject to, and adhere Buyer to these Terms and Conditions of Sale and further, it is agreed that the jurisdiction of this agreement shall be Monroe County New York. All export orders agree to be subject to the laws and jurisdiction of federal courts of the United States of America.
Governing Law/Jurisdiction: These terms and conditions shall be governed by and construed in accordance with the laws of the State of New York, County of Monroe, without reference to conflict of law’s principles, unless otherwise stated by qüb9 in writing. qüb9 and Buyer hereby agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Contract and is strictly excluded. International Buyers agree to subject themselves to the jurisdiction of federal courts of the United States of America.
Severability: If any provision hereof shall be unenforceable, invalid or void for any reason, such provision shall be automatically voided and shall not be part of this agreement and the enforceability or validity of the remaining provisions shall not be affected thereby.
Equal Opportunity and Labor Practices: The contract provisions in Section 202 of Executive Order 11246, as amended, and the regulations promulgated thereunder are incorporated by reference as if fully written with respect to any order. qüb9 certifies that the Materials covered by this invoice have been produced in accordance with the Fair Labor Standards Act of 1938, as amended.
Nuclear or Other Hazardous Activities: Unless specifically agreed to in writing by an authorized officer of qüb9, Materials sold hereunder are not intended for use in connection with any nuclear facility or any other application or hazardous activity where failure of a single component could cause substantial harm to persons or property. If so used, qüb9 disclaims any and all liability for any nuclear damage, contamination or other damage or injury and Buyer shall indemnify and hold qüb9 harmless from such liability whether as a result of breach of contract warranty, tort (including negligence) or other grounds. qüb9 and its suppliers shall not be liable to Buyer or its insurers based on contract, warranty, tort (including negligence), or other grounds for onsite damage to property located at a nuclear facility.
Shortages/Overages: All shortages and/or overages must be identified within 7 days of the date of shipment.
Force Majeure: qüb9 shall not be liable for failure to deliver or for delay in delivery or performance due to: (i) a cause beyond its reasonable control; (ii) an act of God, act or omission of Buyer, act of civil or military authority, governmental priority or other allocation or control, fire, strike or other labor difficulty, riot or other civil disturbance, insolvency or other inability to perform by the manufacturer, delay in transportation; or, (iii) any other commercial impracticability. If such a delay occurs, delivery or performance shall be extended for a period equal to the time lost by reason of delay.
Changes in Interest and/or Shares: Buyer shall notify Seller immediately upon any change in ownership of more than fifty percent (50%) of Buyer's voting rights or of any controlling interest in Buyer. If Buyer fails to do so or, Seller objects to the change, Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance of performance(including but not limited to payment), and/or (c) put in place special controls regarding Seller’s Confidential Information.
Change in Buyer’s Financial Condition: qüb9 reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Buyer without liability to qüb9 in the event of: (i) Buyer's insolvency, (ii) the filing of a voluntary petition in bankruptcy by Buyer, (iii) the appointment of a receiver or trustee for Buyer, or (iv) the execution by Buyer of an assignment for the benefit of creditors. qüb9 reserves the right to suspend its performance until payment or adequate assurance of performance has been received. qüb9 also reserves the right to cancel Buyer's credit at any time for any reason. Buyer, in order to provide security for the payment of the full price of Materials furnished hereunder, grants qüb9 a security interest in the Materials and the proceeds thereof. Title to the Materials shall remain in qüb9, and Materials furnished by qüb9 shall not become a fixture by reason of being attached to real estate, until paid in full. Buyer agrees to execute any documents or furnish information necessary to perfect this security interest. A copy of the invoice may be filed at any time as a financing and/or chattel mortgage, in order to perfect qüb9's security interest. qüb9 may, in its sole discretion require, and Buyer hereby grants to qüb9, a continuing purchase money security interest in all inventory, equipment, and Materials sold by qüb9 to or for the benefit of Buyer, wherever located, and all accessions and products and all proceeds from the sale thereof; and all accounts and accounts receivable which may from time to time hereafter come into existence during the term of this Security Agreement. qüb9’s purchase money security interest is explicitly limited to outstanding obligations between qüb9 and Buyer.
Assignment & Delegation: Buyer shall not assign or delegate any or all of its duties or rights hereunder without qüb9’s prior written consent.
Waiver, Choice of Law and Dispute Resolution: The failure of either party to assert a right hereunder or to insist upon compliance with any term or condition will not constitute a waiver of that right or excuse any subsequent nonperformance of any such term or condition by the other party. All transactions shall be governed by the laws of the State of New York, United States of America, excluding conflict of law rules. Any dispute arising out of or relating to transactions hereunder shall be settled by binding arbitration in Monroe County, Rochester, New York under New York law administered by the American Arbitration Association under its Commercial Arbitration Rules, and a judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrators will have the powers a state court judge would have had if the matter had been filed in such court, including equitable powers, except for the power to award punitive damages, which they shall not have. Actions by qüb9 for Buyer's non-payment of materials, products or services sold, may be brought by qüb9, at qüb9’s option, before any court of competent jurisdiction in Monroe County, New York, United States of America and to the extent permitted by applicable law. The provisions of the United Nations Convention on Contracts for the International Sale of Materials shall not apply.
Attorney Fees: In the event it becomes necessary for qüb9 to engage in any legal and/or judicial proceeding out of this agreement, Buyer agrees that it will be at Buyer’s sole expense, including without limitation, attorneys’ fees and any and all other associated costs.
Compliance with Laws: qüb9 shall take reasonable steps to ensure that materials sold by it are in conformity with various nationally recognized standards and such regulations as may affect the Materials; however, Buyer recognizes the Materials are utilized in many regulated applications and that from time to time standards and regulations are in conflict with one another. qüb9 makes no promise or representation that the Materials will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon, in writing as part of the contract between Buyer and qüb9. qüb9 prices do not include the cost of any related inspections, permits or inspection fees. Notwithstanding any other provision, Buyer shall timely obtain, effectuate and maintain in force any required permit, license, exemption, filing, registration and other authorization, including, but not limited to, building and environmental permits, import licenses, environmental impact assessments, and foreign exchange authorizations, required for the lawful performance of Services at the Site.
Third-party Liability: Except as provided, this Contract is only for the benefit of the parties, and no third party shall have a right to enforce any provision of this Contract, whether under the English Contracts (Rights of Third Parties) Act of 1999 or otherwise. No part of qüb9 products sold under this agreement is considered third party property.
BUYER'S PAYMENT OR DEPOSIT OR ACCEPTANCE OF SHIPMENT OR ACCEPTANCE OF SELLER'S PERFORMANCE (WHETHER OR NOT COMPLETE) SHALL CONSTITUTE BUYER'S ACCEPTANCE OF qüb9’s TERMS AND CONDITIONS OF SALE.
US GOVERNMENT CONTRACTS:
US Government, GAO, GSA Contracts: This article applies only if the case of a direct or indirect sale to any agency of the U.S. government and/or which sale is funded in whole or in part by any agency of the U.S. government. Buyer agrees that all Products and Services provided by qüb9 meet the definition of “commercial-off-the-shelf” (“COTS”) or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Products is unknown unless otherwise specifically stated by qüb9 in this Contract. Buyer agrees any Services offered by qüb9 are exempt from the Service Contract Act of 1965 (FAR 52.222-41). Buyer represents and agrees that this sale is not funded in whole or in part by American Recovery Reinvestment Act funds unless otherwise specifically stated in the Contract. The version of any applicable FAR clause listed in this article shall be the one in effect on the effective date of the sale. If Buyer is an agency of the U.S. Government, then as permitted by FAR 12.302, Buyer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions. Buyer further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the contract price. If Buyer is procuring the Products or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Buyer agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the contract price.
ADDITIONAL TERMS AND CONDITIONS RELATED TO EXPORT OF qüb9 PRODUCTS - IN ADDITION TO THE STANDARD TERMS AND CONDITIONS ABOVE, EXPORT SALES OF qüb9 PRODUCTS WILL BE GOVERNED BY THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS (“ADDITIONAL TERMS”). IN THE EVENT OF A CONFLICT BETWEEN qüb9’s STANDARD TERMS AND CONDITIONS AND THE ADDITIONAL TERMS, THE ADDITIONAL TERMS SHALL PREVAIL FOR EXPORT SALES OF qüb9 PRODUCTS.
EXPORT CONTROLS AND RELATED REGULATIONS: Buyer represents and warrants that it is not on, or associated with any organization on the United States Department of Commerce's Bureau of Industry and Security's Denied Persons List or Unverified List; or the United States Department of the Treasury's Office of Foreign Assets Control lists, Specially Designated Nationals, Specially Designated Global Terrorists, Specially Designated Narcotics Traffickers, Specially Designated Narcotic Traffickers-Kingpin, or Specially Designated Terrorists List; or the United States Department of State's Designated Foreign Terrorist Organizations, Embargoed Countries list, or Debarred Persons List; or is subject to a denial order issued by the United States Department of Commerce. Buyer shall comply with all relevant laws and regulations of governmental bodies or agencies, including but not limited to all applicable export control laws of the United States or other governing agencies and their successors. BUYER AGREES TO INDEMNIFY AND HOLD qüb9 HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.
FOREIGN PRINCIPAL PARTY IN INTEREST; FREIGHT FORWARDER AND DOCUMENTATION: It is specifically agreed that Buyer shall be the foreign principal party in interest and/or that its freight forwarder shall act as Buyer's agent in such capacity for Export Administration Act or other applicable purposes; and Buyer and freight forwarder shall assume responsibility for all export or routed transactions documentation. At APPLIED's request, Buyer or its freight forwarder shall provide copies of any export, shipping, or import documentation prepared by Buyer or its freight forwarder related to sales to them by APPLIED.
U.S. FOREIGN CORRUPT PRACTICES ACT: Buyer states that it is an independent contractor, and represents, warrants, and covenants that it has not paid, offered or agreed to pay, authorized the giving of, or caused to be paid, directly or indirectly, money or anything of value to any foreign official (as defined in the U.S. Foreign Corrupt Practices Act, as amended), in connection with the purchase and/or resale of the products ordered from qüb9.
COUNTRY OF IMPORTATION AND ANTI-DIVERSION: Buyer represents that it is purchasing products from the U.S. and importing them to the country specified in the Buyer and qüb9 documentation. Buyer agrees that the products will be shipped to the specified destination in compliance with the laws of such destination and the U.S., and that the products will not be directly or indirectly sold, exported, transferred, assigned, used, or otherwise disposed of in a manner which may result in any non-compliance with applicable U.S. laws and regulations relating to the product purchased by Buyer. Any commodities, technology and software will be exported from the U.S. in accordance with the U.S. Export Administration Regulations and other applicable laws or regulations. Diversion contrary to U.S. law is prohibited. If requested by qüb9, Buyer shall provide documentation satisfactory to qüb9 verifying delivery at the designated country. Buyer further agrees to inform qüb9 at the time of order of any North American Free Trade Agreement or other applicable documentation, packaging or product marking or labeling, but qüb9 shall not be responsible for providing any such documentation, packaging, marking or labeling other than such documents that are necessary under U.S. export laws and regulations for export, unless qüb9 expressly agrees, in writing, to do so.
Seller’s obligations are conditioned upon Buyer’s compliance with all U.S. and other applicable trade control laws and regulations. Buyer shall not trans-ship, re-export, divert or direct qüb9 products other than in, and to, the ultimate country of destination declared by Buyer and specified as the country of destination on Seller’s invoice.
PERMITS, EXPORT, AND IMPORT LICENSES: Buyer shall be responsible for obtaining any licenses or other official authorizations that may be required by the country of importation and/or under the Export Administration Regulations, International Traffic in Arms Regulations, Toxic Substances Control Act, or other applicable laws or regulations.
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