The following General Terms and Conditions (“Terms and Conditions”) are hereby incorporated as an integral part of the Purchase Order (“PO”) executed by ZOOZ POWER LTD. (“ZOOZ”) and the customer detailed therein (“Customer”), for purchase of unit(s) of the ZOOZTER™-100 (the “Product”) and services (the “Services”) described in the PO, and supersedes and excludes any other terms and conditions of Customer, unless otherwise explicitly agreed in advance and in writing by ZOOZ.
All additional POs must be submitted in writing to ZOOZ. Any such additional POs are subject to acceptance by ZOOZ and shall not be deemed accepted until executed by ZOOZ’s authorized signatory. ZOOZ reserves the right to accept or reject any PO in its sole discretion, and for whatever reason.
Article 1: DELIVERY
ZOOZ will make reasonable efforts to meet the estimated delivery date stated in the PO with respect to the Products, but will have no liability for failure to do so. In the event of a delay for any reason, ZOOZ will promptly inform Customer of its expected duration. Notwithstanding the foregoing, in the event of a delay attributable to ZOOZ, exceeding 120 days from the estimated delivery date stated in the PO, Customer shall be entitled, as a sole remedy for such a delay, to terminate the order covered under the PO by written notice to ZOOZ.
Article 2 : INSTALLATION
(a) Customer shall complete preparation of the installation site prior to the scheduled delivery date (to be coordinated in advance with ZOOZ) in accordance with ZOOZ’s standard instructions for site preparation and environmental conditions provided to the Customer. ZOOZ shall commence installation of the Product at a date coordinated in advance by the Parties, provided the site preparation is completed and further provided that ZOOZ has received all payments which are due prior to installation. Customer shall render at its expense reasonable assistance to ZOOZ. Customer shall at its expense furnish suitable working facilities, electric power, communications and other assistance required for proper installation and testing of the Product. Customer shall reimburse ZOOZ for all the costs and expenses associated with installation that could not be commenced or completed due to failure by Customer to complete site preparation.
(b) After completion of installation ZOOZ shall demonstrate, in the presence of Customer’s representative that the Product is in good working order in accordance with ZOOZ’s standard procedures. Upon successful completion of the aforesaid demonstration, ZOOZ shall provide Customer with a Completion of Installation Document (the “COI”) signed by an engineer of ZOOZ. The Products shall be considered and deemed as finally and fully accepted upon Customer’s receipt of the COI as of the date of installation, unless Customer provides ZOOZ with a written notice of rejection, no later than 30 (thirty) days following the date of installation, which sufficiently details Customer’s reasons for rejection of the COI, in which event such installation process shall be repeated by ZOOZ for a period of up to 60 (sixty) days.
(c) Customer shall not unpack the Product, other than in the presence and under the supervision of authorized ZOOZ technical personnel. In addition, prior to the receipt of the COI, Customer shall not install and/or operate the Product, in production or otherwise. Customer acknowledges that any Product warranty, support and/or maintenance services with respect to the Product shall terminate and shall be null and void in the event of any violation by Customer of its aforesaid obligations.
(d) Customer will establish and maintain, throughout the Term, at its sole cost and expense, a secured remote data connection (through VPN or other means approved by ZOOZ) to enable ZOOZ to remotely log-in to the Product, asses its activities, perform testing and better service the Customer via remote support services. Customer acknowledges that in the absence of remote access to the Product, ZOOZ will not be able or required to provide Customer with any maintenance and support services. The data remotely collected will be used by ZOOZ for internal purposes only and will be kept in confidence.
Article 3: TRAINING
All Customer personnel engaged in the installation, commissioning, start-up, or support of the Products must be trained
and certified by ZOOZ. ZOOZ will provide certification training to Customer’s personnel. Customer shall ensure that all relevant Customer’s personnel attending ZOOZ’s training shall be qualified and experienced technician(s) and engineer(s). Training will take place as part of the site installation process.
Article 4: RISK OF LOSS AND TITLE; INSURANCE
Risk of loss or damage to the Product shall pass to Customer upon delivery. Title to the Products shall remain with ZOOZ until the full purchase price is paid by Customer (with the exception of any software which is licensed as set forth hereunder). Customer shall insure the Product against all hazards in a form and in amounts and with an insurer satisfactory to ZOOZ, and naming ZOOZ as the primary insured, until the Products have been paid for in full.
Article 5: SOFTWARE LICENSE AND INTELLECTUAL PROPERTY RIGHTS
(a) The Product operates with ZOOZ’s proprietary software: Micro Grid Energy Management System and the Real-time Data Visualization and Monitoring (the “Software”). The Software is licensed, not sold, to Customer by ZOOZ, for use in accordance with these Terms and Conditions. ZOOZ and its third-party licensors retain ownership of the Product, including the Software, and reserve all rights not expressly granted to Customer hereunder. The Customer shall not rent, lease, sell, transfer, assign, or sublicense any Software, including new software releases, provided by ZOOZ hereunder.
(b) Customer shall not, and will not allow others to disassemble, decompile, copy, reverse engineer, attempt to derive the source code of, decrypt, modify, or create derivative works of the Product and/or the Software or any part thereof, without the explicit written permission of ZOOZ. Customer shall immediately notify ZOOZ if the Software and/or data related to the Software, including documentation of any kind and copies thereof, is lost or stolen.
(c) ZOOZ and/or its third party licensors own all rights, title and interest in and to all intellectual property rights of any kind and/or nature whatsoever including, without limitation, patents, patent applications, inventions (whether or not patentable or otherwise protectable), trade secrets, trademarks, logos, service marks, trade names, works, designs, copyrights, markings, slogans, and legends, and the various applications therefore and registrations thereof, in and to the Product, including the ZOOZTER™-100 and the Software, and in and to all modifications, alterations and enhancements thereto, no matter by whom made.
(d) Customer will not adapt or use any trademark, trade name, service mark or other commercial symbol of ZOOZ which is likely to be similar to or confusing with that of ZOOZ or take any other action which impairs or reduces the trademark rights of ZOOZ.
Article 6: Limited Warranty
(a) The Company warrants to Customer that the Products will be free of defects in material and workmanship under normal use and service for a period of 24 months following the delivery of Products to the Customer (the “Warranty” and “Warranty Period”, respectively). To the extent applicable, extended warranty purchased by the Customer at additional cost for an additional period, shall be covered under the Warranty during such additional period for all intents and purposes.
(b) If, during the Warranty Period, a defect in a Product is discovered, then subject to the receipt of immediate notification of such defect from Customer no later than 7 business days after discovering such defect, the Company, at its sole obligation and liability will, at its option, repair or replace the defective Product. Such repair or replacement obligation is conditioned upon the defective Product being returned to the Company with its original serial number and, to the extent possible, including its original labels.
(c) The Warranty shall not apply to a Product which has been repaired or altered not in accordance with the Company’s instructions, nor shall it apply to a Product which has been subject to misuse, unauthorized use, negligence, accident, (including fire, water, explosion, smoke, vandalism, etc.), or which has been operated contrary to the Company’s instructions,
(d) Customer’s rights under the Warranty shall be non-transferable and non-assignable, and the Warranty shall apply only
to Customer and shall not extend, expressly or by implication, to any other person or entity.
THE WARRANTY UNDER THIS ARTICLE 6 SHALL BE EXCLUSIVE, IN LIEU OF ANY AND ALL OTHER WARRANTIES, GUARANTEES, PROMISES, OR REPRESENTATIONS WHETHER WRITTEN, ORAL OR IMPLIED, AND NO OTHER WARRANTY IN RESPECT TO THE PRODUCTS, IS OR WAS GIVEN BY THE COMPANY, SUCH THAT ANY OTHER WARRANTY, INCLUDING WITHOUT LIMITATION WITH RESPECT TO MERCHANTABILITY, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE IS HEREBY EXPLICITLY DISCLAIMED.
Article 7: TERM AND TERMINATION
(a) These Terms and Conditions and the parties’ engagement hereunder shall commence on the last date of execution of the above PO, and unless earlier terminated as set forth below, shall remain in effect until completion of the partis’ responsibilities and obligations under these Terms and Conditions.
(b) Either Party may terminate these Terms and Conditions if the other Party breaches any provision of these Terms and Conditions and such breach is not remedied within 30 (thirty) days after receiving written notice thereof. Notwithstanding the foregoing, ZOOZ may, immediately, by written notice to Customer, suspend or terminate the services and the rights provided to Customer hereunder if Customer fails to make any timely payment of fees owed to ZOOZ and such failure is not cured within 14 days of receipt of notice thereof.
(c) Notwithstanding the above, ZOOZ shall have the right to immediately terminate the services under these Terms and Conditions, upon written notice to Customer, in the event that Customer files a petition in bankruptcy or is adjudicated as bankrupt or insolvent, or makes an assignment for the benefit of creditors, or an arrangement pursuant to any bankruptcy law, or discontinues its business or has a receiver appointed for its business and such receiver is not discharged within 60 (sixty) days.
(d) Upon the effective date of the termination or expiration of these Terms and Conditions for any reason whatsoever, the following shall apply:
(1) Customer shall, within 14 days following the effective date of the expiration or termination hereof, pay ZOOZ any outstanding fees owed and/or other amounts due to ZOOZ hereunder and/or the Remaining Payments in the event of termination by Customer in accordance with subsection (d) in this Article 7; and
(2) Each Party shall return (or destroy, if requested by the other Party, and certify such destruction in writing) to the other Party all Confidential Information (as defined below) of such other Party.
(e) Termination of these Terms and Conditions under this Article shall be in addition to, and not a waiver of, any remedy at law or in equity available to a Party arising from the other Party’s breach of these Terms and Conditions.
(f) Termination or expiration of these Terms and Conditions shall not affect any provision of these Terms and Conditions which is expressly or by implication intended to come into force or continue in force on or after the termination, including Articles 5 (“Software License and Intellectual Property Rights”), 10 (“Limitation of Liability”) and 11 (“Confidentiality”), herein.
Article 8: TAXES AND CHARGES; LATE PAYMENT
Customer shall be solely responsible for and bear all liability with respect to payment of any and all taxes, levies, dues or impositions applicable thereto, in connection with the payments made by Customer hereunder. Without derogating from any right or remedy available to ZOOZ hereunder or under applicable law, any payment owed to ZOOZ, which is not timely paid, shall accrue interest from said due date until the date of actual payment at the monthly rate of 1%.
Article 9: FORCE MAJEURE
ZOOZ shall not be liable for any damage and/or loss of any kind due to default or delay in the performance of its obligations to the Customer, caused by or related to any circumstances of force majeure, including act of God, fire, war, terrorism, hostilities, accident, scarcity of supplies, government action, or any other circumstances beyond ZOOZ’s reasonable control.
Article 10: LIMITATION OF LIABILITY
IN NO EVENT SHALL ZOOZ BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTIES, WHETHER IN CONTRACT, TORT OR OTHERWISE FOR ANY INDIRECT, INCIDENTAL, SPECIAL AND/OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGE OR INJURY TO BUSINESS EARNINGS, LOST PROFITS AND/OR GOODWILL SUFFERED BY ANY PERSON (OR ENTITY) ARISING FROM AND/OR RELATED WITH THESE TERMS AND CONDITIONS AND/OR ANY PRODUCT AND/OR ANY SOFTWARE AND/OR ANY SERVICES TO BE PROVIDED HEREUNDER, EVEN IF ZOOZ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT SHALL THE TOTAL LIABILITY OF ZOOZ FOR ANY CLAIM UNDER ANY CAUSE OF ACTION IN CONNECTION WITH THIS AGREEMENT AND THE PRODUCTS AND/OR SOFTWARE AND/OR SERVICES TO BE PROVIDED HEREUNDER EXCEED THE FEES PAID TO ZOOZ BY CUSTOMER UNDER THE PO IN THE TWELVE MONTHS PRECEDING SUCH CLAIM.
Article 11: CONFIDENTIALITY
The parties acknowledge that any and all information with respect to the Product and the Software, and any Data collected, revealed or exposed pursuant to the operation and use of the Product and the Software, by a Party to the other Party, or which came to such Party’s knowledge, including without limitation any know-how, technical data, technical information, commercial information, technology etc., are of confidential proprietary nature to the disclosing party (the “Confidential Information”). The parties agree and undertake not do disclose, and not to allow to be disclosed, to any third party, and not to use, in any manner, either directly or indirectly, any Confidential Information, unless otherwise explicitly authorized in advance and in writing by the disclosing party.
Article 12: ASSIGNMENT
Customer shall not assign or transfer, in whole or in part, any of its rights and/or obligations hereunder to any third party without the prior written consent of ZOOZ. Notwithstanding, ZOOZ may assign any of its rights and/or obligations hereunder to any purchaser of all or substantially all of its shares, or all or substantially all of its assets, or to any successor corporation resulting from any merger or consolidation of ZOOZ with or into such corporation.
Article 13: SEVERABILITY
Should it be determined by any court of competent jurisdiction that any provision of these Terms and Conditions is invalid, unenforceable or illegal for any reason, such provision will be severed from these Terms and Conditions and the remaining provisions shall continue in full force and effect.
Article 14: GOVERNING LAW; JURISDICTION
These Terms and Conditions and the PO shall be governed by and construed in accordance with the laws of the State of Israel, excluding its choice of law rules, and shall be subject to the exclusive jurisdiction of the competent courts in Tel-Aviv, Jaffa, Israel, to the exclusion of any other court. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions.
Article 15: ENTIRE AGREEMENT
These Terms and Conditions including the annexes attached hereto are a binding and final expressly of the parties’ agreement, and supersede any and all prior representations, agreements or understandings, whether oral or written, with respect to all of the subject matters hereof. No course of dealing or usage of trade shall be relevant to supplement or explain any of these Terms or Conditions. No modification, amendment or correction to these Terms and Conditions shall be binding upon ZOOZ unless it is in writing and executed by ZOOZ’s CEO.
Article 16: NOTICE
All notices given by one party to the other party shall be given in writing, and shall be deemed to have been delivered to the addressee immediately upon their delivery to the addresses noted in the PO (or otherwise notified by one of the
parties to the other in writing) if delivered by hand, or within one (1) business day following transmission if sent by facsimile and confirmed by a machine printout, or within five (5) business days after being sent by registered mail, to the addresses or facsimile numbers provided by either party, or within one (1) business day if sent by email to the email addresses provided by either party.