Terms for the Sale of Equipment

Terms and Conditions for the Sale of Equipment

Last Modified: February 8, 2023

  1. Applicability.  
    • These terms and conditions of sale (“Terms and Conditions”) govern the sale of products, device or other equipment (collectively “Equipment”) by Lunar Outpost Inc. (“Lunar Outpost”) to the customer (the “Buyer”) identified in the applicable Internet order, Customer Order, purchase order or other agreement (collectively, the “Order”) relating to the purchase of Equipment from Lunar Outpost.
    • The Order and these Terms and Conditions (collectively, this “Agreement”) comprise the entire agreement between the parties related to the sale of Equipment, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms and Conditions prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms and conditions. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms and Conditions.
    • Lunar Outpost reserves the right to change or modify these Terms and Conditions at any time.
  2. Delivery of Equipment.  
    • The Equipment will be delivered within a reasonable time after the receipt of the executed Order. Lunar Outpost shall not be liable for any delays, loss, or damage in transit.
    • Unless otherwise agreed in writing by the parties, Lunar Outpost shall deliver the Equipment to Buyer’s location (the “Delivery Point”) using Lunar Outpost’s standard methods for packaging and shipping such Equipment.
    • Lunar Outpost may, in its sole discretion, without liability or penalty, make partial shipments of Equipment to Buyer. Except for orders that are paid upfront. each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the Order.
  3. Quantity. If Lunar Outpost delivers to Buyer a quantity of Equipment of up to 10% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Equipment or any portion of them by reason of the surplus or shortfall and shall pay for such Equipment the price set forth in the Sales Confirmation adjusted pro rata. Partial shipments in accordance with a communicated schedule shall not be considered a shortfall.
  4. Shipping Terms and Conditions. Delivery of the Equipment shall be made FOB Lunar Outpost’s location.
  5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon shipment. As collateral security for the payment of the purchase price of the Equipment, Buyer hereby grants to Lunar Outpost a lien on and security interest in and to all of the right, title, and interest of Buyer in, to and under the Equipment, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Colorado Uniform Commercial Code.
  6. Buyer’s Acts or Omissions. If Lunar Outpost’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Lunar Outpost shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
  7. Inspection and Rejection of Nonconforming Equipment.  
    • Buyer shall inspect the Equipment within three days of receipt (the “Inspection Period”). Buyer will be deemed to have accepted the Equipment unless it notifies Lunar Outpost in writing of any Nonconforming Equipment during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Lunar Outpost. “Nonconforming Equipment” means only the following: (i) product shipped is different than identified in Buyer’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents.
    • If Buyer timely notifies Lunar Outpost of any Nonconforming Equipment, Lunar Outpost shall, in its sole discretion, (i) replace such Nonconforming Equipment with conforming Equipment, or (ii) credit or refund the Price for such Nonconforming Equipment, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Equipment to Lunar Outpost’s facility. If Lunar Outpost exercises its option to replace Nonconforming Equipment, Lunar Outpost shall, after receiving Buyer’s shipment of Nonconforming Equipment, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Equipment to the Delivery Point.
    • Buyer acknowledges and agrees that the remedies set forth in Section 7(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Equipment. Except as provided under Section 7(b), all sales of Equipment to Buyer are made on a one-way basis and Buyer has no right to return Equipment purchased under this Agreement to Lunar Outpost.
  8. Price.  
    • Buyer shall purchase the Equipment from Lunar Outpost at the prices (the “Prices”) set forth in the Order, all prices, fees and other amounts payable in USD.
    • All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Lunar Outpost’s income, revenues, gross receipts, personal or real property, or other assets.
  9. Payment Terms and Conditions.  
    • Unless Lunar Outpost has have agreed in writing to extend credit to Buyer in another manner, all Equipment must be paid in in full before delivery or collection.
    • Where Lunar Outpost has agreed to extend credit to Buyer, Buyer must pay in full, without deduction or setoff, by the date indicated on the invoice. Payment is made only when funds have fully cleared through the banking system into Lunar Outpost’s bank account. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Lunar Outpost for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms and Conditions or at law (which Lunar Outpost does not waive by the exercise of any rights hereunder), Lunar Outpost shall be entitled to suspend the delivery of any Equipment if Buyer fails to pay any amounts when due hereunder.
    • Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Lunar Outpost, whether relating to Lunar Outpost’s breach, bankruptcy or otherwise.
  10. Intellectual Property Rights. Neither Lunar Outpost nor its suppliers transfer any right, title or interest in any copyright, trademarks, or other intellectual property rights relating to the Equipment, including any software incorporated or provided as part of the Equipment. Where Lunar Outpost supplies software to you, Lunar Outpost licenses you to use that software only in conjunction with the Equipment, and you agree that you will not modify, reverse engineer, decompile, disassemble, recompile, sell or redistribute the software or the Equipment.
  11. Disclaimer of Warranties.   EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, LUNAR OUTPOST MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE EQUIPMENT (INCLUDING ANY SOFTWARE PROVIDED AS PART OF THE EQUIPMENT), INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
  12. Limitation of Liability.  NEITHER LUNAR OUTPOST NOR ITS REPRESENTATIVES OR SUPPLIERS SHALL BE LIABLE TO BUYER, OR ANYONE ELSE, FOR ANY LIABILITY, CLAIM, LOSS, DAMAGE OR EXPENSE OF ANY KIND, OR FOR ANY DIRECT, COLLATERAL, INCIDENTAL CONSEQUENTIAL, OR EXEMPLARY DAMAGES RELATIVE TO, ARISING FROM, CAUSED DIRECTLY OR INDIRECTLY BY THE EQUIPMENT, ITS INSTALLATION OR THE USE THEREOF OR ANY DEFICIENCY, DEFECT OR INADEQUACY OF THE EQUIPMENT AND IT IS EXPRESSLY AGREED THAT THE BUYER’S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION RELATING TO THE PURCHASE, INSTALLATION AND/OR USE OF THE EQUIPMENT SHALL BE FOR ACTUAL DAMAGES IN AN AMOUNT NOT GREATER THAN THE PURCHASE PRICE OF THE EQUIPMENT WITH RESPECT TO WHICH SUCH CLAIM IS MADE, AND Lunar Outposts’ LIABILITY FOR ANY AND ALL LOSES OR DAMAGES, INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE, RESULTING FROM ANY CAUSE WHATSOEVER, INCLUDING WITHOUT LIMITATION NEGLIGENCE, STRICT LIABILITY, ANY OTHER TORT, BREACH OF CONTRACT AND BREACH OF WARRANTY SHALL IN NO EVENT EXCEED THE PURCHASE PRICE OF THE EQUIPMENT IN RESPECT TO WHICH THE CLAIM IS MADE, OR AT THE ELECTION OF Lunar Outpost THE RESTORATION, REPLACEMENT OR REPAIR OF SUCH EQUIPMENT.
  13. Resale of Equipment. The Equipment may not be resold without the prior written approval of Lunar Outpost. If such approval is granted, Buyer agrees to the following terms with respect to any resale:
    • Marketing and Reselling Equipment. Buyer shall, in good faith and at its own expense (i) market, advertise, promote, and resell the Equipment consistent with good business practice, (ii) observe all reasonable directions and instructions given to it by Lunar Outpost in relation to the marketing, advertisement, and promotion of the Equipment, including Lunar Outpost’s sales, marketing, and merchandising policies as they currently exist or as they may hereafter be changed by Lunar Outpost, to the extent that these marketing materials, advertisements, or promotions refer to the Equipment or otherwise use Lunar Outpost’s trademarks; (iii) market, advertise, promote and resell Equipment and conduct business in a manner that reflects favorably at all times on Equipment and the good name, goodwill, and reputation of Lunar Outpost; (iv) promptly notify Lunar Outpost of and address and investigate any complaint or adverse claim about any Equipment or its use of which Buyer becomes aware, provided that nothing in this Agreement requires Buyer to reveal proprietary pricing information; (v) only resell Equipment that has been fully paid for by Buyer; (vi) only resell any software or accessories sold, bundled, or packaged with any Equipment on those terms and conditions as Lunar Outpost may, from time to time, require; and (vii) resell the Equipment subject to terms and conditions equally protective of Lunar Outpost as these Terms and Conditions.
    • Reporting and Recordkeeping. Buyer shall, at its own expense: (a) within five business days after the end of each shipment month of the Term, or upon request by Lunar Outpost, submit to Lunar Outpost complete and accurate reports of inventory, marketing, and sales of the Equipment and the name and address of the end users to whom the Equipment are sold, in a computer-readable format and containing the scope of information acceptable to Lunar Outpost; and (b) maintain books, records and accounts of all transactions and activities covered by this Agreement and permit full examination thereof by Lunar Outpost and its representatives.
    • Authority to Perform Under this Agreement. Buyer shall, at its own expense, obtain and maintain required certifications, credentials, licenses, and permits necessary to conduct business in accordance with this Agreement.
    • End User Support. Buyer shall, at its own expense provide all technical and customer support regarding to end users regarding the Equipment. Except as explicitly authorized in this Agreement or in a separate written agreement with Lunar Outpost, Buyer may not service, repair, modify, alter, replace, reverse engineer, or otherwise change the Equipment it sells to end users.
    • Prohibited Acts. Notwithstanding anything to the contrary in this Agreement, neither Buyer nor Buyer personnel shall: (i) make any representations, warranties, guarantees, indemnities, similar claims, or other commitments: actually, apparently, or ostensibly on behalf of Lunar Outpost, or to any end user regarding the Equipment, which representations, warranties, guarantees, indemnities, similar claims, or other commitments are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in this Agreement or any written documentation provided by Lunar Outpost to Buyer; (ii) engage in any unfair, competitive, misleading, or deceptive practices respecting Lunar Outpost, Lunar Outpost’s trademarks or the Equipment, including any product disparagement or “bait-and-switch” practices; (iii) separate any software or accessories sold, bundled, or packaged with any Equipment from the Equipment or sell, license, or distribute the software on a standalone basis, or remove, translate, or modify the contents or documentation of or related to the software or accessories, including, without limitation, any end user license agreements or warranty statements; (iv) sell, either directly or indirectly, or assign or transfer, any Equipment to any person when Buyer knows or has reason to suspect that the person may resell any or all of the Equipment to a third party, including any third-party Buyer or distributor; or (v) promote, market, or sell Equipment using promotional information and material, unless the promotional information or material was provided by Lunar Outpost.
    • Indemnification. Buyer shall defend, indemnify and otherwise hold Lunar Outpost harmless for all claims, damages, or other losses or harm, including attorney fees and costs, relating to any breach by Buyer of the obligations under this Agreement, Buyer’s negligence or violation of applicable law, and all claims brought by third parties arising out of or relating to Equipment resold by Buyer or any support or services provided by Buyer.
  14. Insurance. Buyer agrees to maintain at all times reasonable and appropriate insurance, including insurance covering the full value of Buyer’s Premises and any contents. Customer does hereby for Buyer and any parties claiming under Buyer, release and discharge Lunar Outpost from and against all hazards covered by the required insurance (or that would have been covered had insurance been obtained), and all claims against Lunar Outpost arising out of such hazards, including any right of subrogation by Buyer’s insurance carrier, are hereby waived.
  15. Compliance with Law. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement.
  16. Termination. In addition to any remedies that may be provided under these Terms and Conditions, Lunar Outpost may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
  17. Waiver. No waiver by Lunar Outpost of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Lunar Outpost. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
  18. Confidential Information. All non-public, confidential or proprietary information of Lunar Outpost, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Lunar Outpost to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Lunar Outpost in writing. Upon Lunar Outpost’s request, Buyer shall promptly return all documents and other materials received from Lunar Outpost. Lunar Outpost shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
  19. Force Majeure. Lunar Outpost shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Lunar Outpost including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
  20. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Lunar Outpost. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
  21. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  22. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
  23. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Colorado without giving effect to any choice or conflict of law provision or rule (whether of the State of Colorado or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Colorado.
  24. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Colorado in each case located in the City and County of Denver, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. The parties agree that the UN Convention for the International Sale of Goods will have no force or effect on this Agreement.
  25. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
  26. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
  27. Survival. Provisions of these Terms and Conditions which by their nature should apply beyond their Terms and Conditions will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
  28. Amendment and Modification. These Terms and Conditions may only be amended or modified in a writing stating specifically that it amends these Terms and Conditions and is signed by an authorized representative of each party.