General terms and conditions of sale Vandapower

1. General
   • 1 These General Terms and Conditions of Sale, and any other terms and/or conditions as set out in a Seller’s Quotation in respect of the Goods, as may be varied by the terms of a Seller’s Confirmation (together the “Conditions”) govern the offering, sale and delivery of all goods (the “Goods”) from or on behalf of Vandapower, LLC, a Texas limited liability company (the “Seller”) to customer (the “Customer”). These Conditions supersede any and all prior oral and written communications of the parties in respect of the sale and delivery of the Goods and shall apply in preference to and supersede any and all terms and conditions submitted by Customer at any time. All orders for Goods submitted by the Customer to the Seller will be deemed to be an offer by the Customer to purchase Goods pursuant to the Conditions and each such order will be treated as an individual and legally binding contract entered into between the Seller and any Customer in respect of the Customer’s purchase of Goods. Equally, the acceptance of a Seller’s Quotation by the Customer, the acceptance by Customer of any delivery of Goods from Seller, and, in general, any communication or conduct of Customer which confirms an agreement for the delivery of Goods by Seller, shall constitute an unqualified acceptance by Customer of these Conditions. Save as to Article 1.2 of these Conditions, these Conditions may only be varied or waived by a duly executed written agreement between Seller and Customer.
   • 2 Seller shall be entitled to update/amend the Conditions and by and as of the moment of notifying Customer of such update/amendment, or by sending the updated or amended Conditions to Customer, these revised Conditions shall apply to all dealings between Seller and Customer, following such notice or delivery.

• 3 Any electronic communication between Seller and Customer shall be considered to be a “writing” and/or “in writing”. The electronic communication system used by Seller will serve as sole proof for the content and the time of delivery and receipt of such electronic communication.

2. Quotations, orders and confirmation
   • 1 No quotation in respect of the Goods provided by the Seller to the Customer (“Seller’s Quotation”), and no advertisement or issue of a catalogue by the Seller will constitute an offer to sell any Goods to the Customer or to any other person. Orders are not binding until accepted by Seller in writing (“Seller’s Confirmation”) or until Seller delivers the Goods to the Customer, and then only on the terms of the Conditions. Seller shall be entitled to refuse an order without indication of its reasons. Statements and agreements made by Seller’s employees, officers, representatives and/or agents are not binding upon Seller unless, and only to the extent that, the statements and agreements are confirmed or made in writing by duly authorized representative(s) of Seller.
   • 2 Except as provided for in Article 6.3, any samples supplied to Customer are supplied solely for information purposes only and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose and Customer shall be deemed to have satisfied itself as to such matters prior to ordering the Goods.
3. Prices
   • 1 Prices of Seller’s Goods are as set out in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation in respect of these Goods. Unless stated otherwise by Seller in these documents, Seller’s prices include standard packaging but do not include Value Added Tax or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Goods or the delivery thereof (“Taxes”). The amount of any Taxes levied in connection with the sale of the Goods to Customer are Customer’s responsibility and such Taxes shall be added to each invoice or separately invoiced by Seller to Customer.
   • 2 Unless the prices have been indicated as firm by Seller in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation, Seller is entitled to increase the price of the Goods still to be delivered if the cost price determining factors have been subject to an increase. These factors include, but are not limited to, raw and auxiliary materials, energy, products obtained by Seller from third parties, wages, salaries and related charges , governmental charges, freight costs and insurance premiums. Seller shall notify Customer in writing of such increase within a reasonable time.
4. Payment and Customer’s credit
   • 1 Unless expressly stated otherwise in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation, the Seller will issue an invoice in respect of each delivery of Goods prior to despatch from the Seller’s premises and the Customer must pay the amount of such invoice in full and in cleared funds and/or obtain a letter of credit in favour of the Seller on terms acceptable to the Seller (at its absolute discretion), prior to and as a condition of the despatch of the Goods.
   • 2 Where the Seller has agreed that payment of the invoice in respect of Goods may be made after delivery of the Goods, and unless otherwise agreed in writing, payment shall be made on the basis of net cash, to be received by Seller within thirty (30) days following the date of Seller’s invoice for the Goods by means of wire transfer into the bank account reflected on the invoice and the wiring instructions reflected therein. All payments shall be made without any deduction of any applicable Taxes and free of set-off or other counterclaims.
   • 3 With regard to payment of the price for Goods, Customer agrees that time is of the essence. Seller may, without prejudice to any other rights of Seller, charge interest, ipso jure, without prior notice being required, on any overdue payment at twelve percent (12%) per annum or the highest annual interest rate permitted under applicable law, not to exceed the maximum interest rate permitted under applicable law, from the due date computed on a daily basis until all amounts outstanding are paid in full. All costs and expenses incurred by Seller with respect to collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) are the responsibility of Customer. Furthermore, in case of any overdue payment, the Seller may suspend or cancel further deliveries of Goods under any contract with the Customer, and/or alter the terms of payment (including, for example, requiring payment in advance or by letter of credit or similar instrument) in respect of future deliveries and/or orders.
   • 4 Every payment by Customer shall in the first place serve to pay the collection-related legal fees and and court costs and the accrued interest owed by it and afterwards shall be deducted from the oldest outstanding claim regardless of contrary instruction from Customer.
   • 5 Customer must notify the Seller of any complaint with respect to any invoice within seven (7) days after the date of the invoice (“Invoice Complaint Period”). If no complaint is made during the Invoice Complaint Period Customer shall be deemed to have approved the invoice.
5. Delivery and acceptance
   • 1 . Customer shall accept the Goods upon Delivery to Customer at the address provided by Customer.
   • 2 Unless expressly stated otherwise in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation in respect of these Goods, any times or dates for delivery by Seller are estimates and shall not be of the essence. Seller is entitled to deliver the Goods as stated in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation in respect of these Goods, in parts and to invoice separately. In no event shall Seller be liable for any delay in delivery and any delay shall extend the time for delivery correspondingly.

5.3. Delay in delivery of any Goods shall not relieve Customer of its obligation to accept delivery thereof. Deviations in quantity of Goods delivered from that stated in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation in respect of these Goods, shall not give Customer the right not to accept the Goods. Customer shall be obligated to pay the rate specified in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation in respect of these Goods, for the quantity of Goods delivered.

6. Examination and conformity to specifications

• 1 On Delivery and during the handling, use, processing, transportation, storage and sale of the Goods (the “Use”), Customer shall examine or have a third party examine on its behalf, the Goods and satisfy itself that the Goods delivered meet all contractual requirements.
• 2 Complaints about the Goods shall be made in writing and must reach Seller not later than seven (7) days from the date of Delivery in respect of any defect, default or shortage which would be apparent from a reasonable inspection on delivery, and seven (7) days from the date on which any other claim was or ought to have been apparent, but in no event later than six (6) months from the date of Delivery of the Goods. Use or processing of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all claims in respect of the Goods.

6.3 A determination of whether or not delivered Goods conform to the agreed specifications for the Goods as stated in Seller’s Quotation, as may be varied by the terms of Seller’s Confirmation in respect of these Goods or, in the absence of agreed specifications, to the most recent specifications held by Seller or provided by the manufacturer at the time of delivery of the Goods (the “Specifications”), shall be done solely by analysing the samples or records retained by Seller and taken from the batches or production runs in which the Goods were produced in accordance with the methods of analysis used by Seller. Goods that Seller consents or directs in writing to be returned shall be returned to Seller at the risk of Customer, to the destination directed by Seller.

• 4 Complaints, if any, do not affect Customer’s obligation to pay any invoice as provided in Article 4 hereof.

7. Transfer of risk and property- Reservation of Title
   • 1 The risk of the Goods shall pass to Customer on Delivery and upon such transfer the Customer shall assume full and exclusive custody of such Goods, including the responsibility to comply with applicable laws, regulations and rules in connection with delivery of such Goods.
   • 2 Goods for which delivery is suspended pending payment by Customer, as well as Goods of which delivery is wrongfully rejected or not accepted by Customer, shall be held and stored by Seller at the risk and expense of Customer.

7.3 The ownership of the Goods shall not pass to Customer and full legal and beneficial ownership of the Goods shall remain with Seller unless and until Seller has received payment in full for the Goods, including all secondary costs such as interest, charges, expenses etcetera and including payment of any other sums which are due from Customer to Seller.

7.4 In the event of termination on the basis of Article 15 of these Conditions, Seller shall, without prejudice to any other rights of Seller, be entitled to require immediate return of the Goods for which it may invoke a retention of title.

7.5 Until full payment for the Goods in good funds has been made, Customer shall: (i) hold the Goods as Seller’s fiduciary agent and bailee;  (ii) keep the Goods separate and in a clearly identifiable manner and as Seller’s property; and (iii) notify Seller immediately of any claims by third parties which may affect the Goods;  (iv) adequately insure the Goods against all risks for their full price from the date of Delivery; and (v) not pledge or offer Goods as guarantee or collateral security, provided that the Customer may resell the Goods or Use the Goods in the ordinary course of its business.

7.6 Should the Goods (or any of them) be sold, mixed with other substances or converted into a new product, the sale, mixture or conversion shall be deemed to have been effected on behalf of Seller and Seller shall have the full legal and beneficial ownership of the sold, mixed or new products, but without accepting any liability whatsoever in respect of such sold, mixed or converted goods in relation to any third party, and the Customer hereby shall indemnify and defend Seller, and its officers, managers, members, employees, attorneys, agents and other representatives in relation thereto.

7.7 Seller may at any time after payment for any Goods has become due take possession of such Goods or any of them (which for the avoidance of doubt will include the right to stop the Goods in transit) and remove them and Customer shall be deemed to have granted irrevocable authority to Seller to enter upon the Customer’s premises or other premises and vehicles or modes of transport where such Goods may be by its employees or agents to take possession of such Goods. The foregoing is without prejudice to any other statutory or other legal or equitable rights or privileges granted to an unpaid seller under the Uniform Commercial Code and other applicable law. The Customer hereby waives any right to claim from the Seller damages caused to the Customer’s premises, business or reputation, and/or any consequential damages, special damages, incidental damages, lost profits or business however arising as a result of the Seller’s entry onto the Customer’s premises for the purposes of repossessing the Goods.

7.8 All claims which Customer may or will have with regard to the Goods delivered, against any third party (including, without limitation, a customer of Customer, a third party who may have caused damage to or destroyed the Goods, an insurance company,etc.), will revert ipso jure to Seller as long as payment for the Goods remains unpaid. Customer shall have the obligation to inform its own debtors of the assignment of debt and to submit to Seller proof of such notification. Seller shall equally be entitled to notify the Customer’s debtors of the assignment, it being understood that such notification on behalf the Seller shall in no way relieve Customer of its obligations in this regard.

7.9 The Seller is entitled to bring an action against the Customer for the price of the Goods in the event of non-payment by the Customer by the due date even though ownership in the Goods has not passed to the Customer and/or Seller has the right by notice to the Customer at any time after Delivery to transfer ownership in the Goods to the Customer beginning on the date of such notice.

8. Limited warranty
   • 1 Seller solely warrants that on the date of delivery, the Goods shall conform to the Specifications and that the Goods were produced in accordance with current manufacturing practices.
   • 2 If and to the extent Goods fail to meet such warranty, as shall be determined in accordance with the provisions of Article 6 of these Conditions, Seller may, at its own option and within a reasonable time: (i) either replace the Goods at no charge to Customer; or (ii) issue a credit for any such Goods in the amount of the original invoice price. Accordingly, Seller’s obligation shall be limited solely to the provisions of this Article 8.1.
   • 3 Seller’s obligations under Article 8.2 shall be contingent upon receipt by Seller of timely notice of any alleged non-conformance of Goods and, if applicable, the return of the Goods, in accordance with Article 6 of these Conditions. The foregoing warranty is exclusive and in lieu of all other warranties, representations, conditions or other terms, express, implied, statutory, contractually or otherwise, including, without limitation, any warranty of merchantability, suitability or fitness for any particular purpose, or absence of infringement of any claim in any intellectual property right covering the Goods.

9. Limitation of liability

• 1 The liability of Seller for any and all claims for damages arising out of or in connection with the goods and the Use thereof shall under no circumstances exceed the sum of Customer’s payments for the Goods that are the subject of the claim. Under no circumstances shall Seller be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profits, work stoppage, production failure, impairment of other goods or otherwise, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise.
• 2 In no event shall Seller be liable for any claim of breach of warranty based on or caused by: (i) accident, abuse, alteration, or misuse; (ii) failure to store, use or consume the Goods under normal operating conditions or environment; (iii) use or consumption of the Goods in combination with any equipment, process, or product other than that necessary for the normal use or consumption of the Goods; (iv) any attempt by the Customer or a third party to remedy the defect before Seller has an opportunity to remedy; (v) any other reason beyond Seller’s reasonable control; or (vi) the Customer’s negligence or intentional misconduct. In no event shall Seller be liable once the Goods have been mixed with other substances or once the packaging of the Goods is damaged or opened.
• 3 The warranty obligations of Seller shall only apply if Customer notifies Seller in writing not later than seven (7) days after appearance of the matter in respect of which the warranty may apply, but in no event later than six (6) months from the date of Delivery of the Goods.
• 4 Nothing in the Conditions excludes or restricts the Seller’s liability for death or personal injury of the Customer resulting from the Seller’s gross negligence or from its fraudulent misrepresentation.

10. Force majeure
    • 1 Neither party shall be liable in any way for any damage, loss, cost or expense arising out of or in connection with any delay, restriction, interference or failure in performing any obligation towards the other party caused by any circumstance beyond its reasonable control, including, without limitation, acts of God, laws, statutes, ordinances, regulations, legislative measures, acts of governments or other administrative measures, orders or decrees of any court or arbitration panel or arbitrator, earthquake, flood, fire, explosion, war, terrorism, riot, sabotage, accident, epidemic, strike, lockout, slowdown, labour disturbances, difficulty in obtaining necessary labour or raw materials, lack of or failure of transportation, breakdown of plant or essential machinery, emergency repair or maintenance, breakdown or shortage of utilities, delay in delivery or defects in goods supplied by suppliers or subcontractors (“Force Majeure”).
    • 2 Upon the occurrence of any event of Force Majeure, the party suffering thereby shall promptly inform the other party by written notice thereof specifying the cause of the event and how it will affect its performance of its obligations under Seller’s Confirmation. In the event of any delay, the obligation to deliver shall be suspended for a period equal to the time loss by reason of Force Majeure. However, should a Force Majeure event continue or be expected to continue for a period extending to more than two (2) months after the agreed delivery date, either Party is entitled to cancel the affected part of Seller’s Quotation and/or Confirmation without any liability to the other Party.
11. Modifications and information, indemnity
    • 1 Unless the Specifications have been agreed to be firm for a certain period or quantity of Goods, Seller reserves the right to change or modify the Specifications, construction and/or manufacture of Goods and to substitute materials used in the production and/or manufacture of Goods from time to time without notice. Customer acknowledges that data in Seller’s catalogues, specification sheets and other descriptive publications distributed or published on its websites by Seller, may accordingly be varied from time to time without notice.
    • 2 Any advice, assistance or recommendation given, or any details and information provided by the Seller with regard to the suitability and Use of the Goods are given and accepted at the Customer’s sole risk; they shall not be binding and Seller does not assume any liability based on any such consultations or information.

11.3 The Customer must not rely on any information displayed on the website or contained in product datasheets but must use its own skill and judgment to ascertain whether any Good is of a suitable nature for the Customer’s need and purpose and how such Good is to be used.

12. Compliance with laws and standards
    • 1 Seller makes no promise, warranty or representation that the Goods will conform to any law, statute, ordinance, regulation, code or standard (“Laws and Standards”). Customer shall be exclusively responsible for (i) ensuring compliance with all Laws and Standards associated with its intended Use of the Goods; and (ii) obtaining all necessary approvals, permits or clearances for such Use.
13. Independent contractors
    • 1 Seller and Customer are independent contractors, and the relationship created hereby shall not be deemed to be that of a partnership, joint venture, or principal or agent. No sale to or obligation of either party towards a third party shall in any way bind the other party.
14. Non-assignment
    • 1 Neither party may assign any of the rights or obligations under Seller’s Quotation or Confirmation without the prior written consent of the other party, provided however, that Seller may assign such rights and obligations, wholly or partly, to any of its parent companies, subsidiaries or affiliates or to a third party acquiring all or a substantial part of Seller’s assets, equity or business relating to the Goods.
15. Suspension and termination

15.1 If: (i) Customer is in default of performance of its obligations towards Seller; or (ii) if Seller has reasonable doubts with respect to Customer’s performance of its obligations to Seller and Customer fails to provide to Seller adequate assurance of Customer’s performance before the date of scheduled delivery and in any case within thirty (30) days of Seller’s demand for such assurance; or if Customer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation (otherwise than for the purposes of a reconstruction or amalgamation) or any bankruptcy, insolvency, reorganization, or similar proceeding shall be instituted by or against Customer or if a trustee or receiver or administrator is appointed for all or a substantial part of the assets of Customer or if Customer enters into a deed of arrangement or makes any assignment for the benefit of its creditors, then, without prejudice to any other rights of Seller, Seller may by notice in writing forthwith: (a) demand return of the Goods and take repossession of any delivered Goods which have not been paid for, for which purpose Customer hereby grants an irrevocable right and licence to Seller to enter upon all or any of the premises where the Goods are or may be located and all costs relating to the recovery of the Goods shall be for the account of Customer; and/or (b) suspend its performance or terminate Seller’s Confirmation for outstanding delivery of Goods unless Customer makes such payment for Goods on a cash in advance basis or provides adequate assurance of such payment for Goods to Seller; without any intervention of courts being required and without liability for Seller of whatsoever kind arising out of or in connection with such suspension or termination.

• 2 Upon the occurrence of any such event listed in 15.1 (i) and/or (ii), all outstanding claims of Seller shall become due and payable immediately with respect to the Goods delivered to Customer and not re-possessed by Seller.

16. Waiver
    • 1 Failure by Seller to enforce at any time any provision of these Conditions shall not be construed as a waiver of Seller’s right to act or to enforce any such term or condition and Seller’s rights shall not be affected by any delay, failure or omission to enforce any such provision. No waiver by Seller of any breach of Customer’s obligations shall constitute a waiver of any other prior or subsequent breach.
17. Severability and conversion
    • 1 In the event that any provision of these Conditions shall be held to be invalid or unenforceable, the same shall not affect in any respect whatsoever, the validity or enforceability of the remaining provisions between the parties and shall be severed therefrom. The pertaining provisions held to be invalid or unenforceable shall be reformed to provisions satisfying the legal and economic intent of the original provisions to the maximum extent permitted by applicable law.
18. Governing law and Dispute Resolution
    • 1 The parties’ rights and obligations arising out of or in connection with Seller’s Confirmation and/or these Conditions shall be governed by, construed in accordance with, and interpreted and enforced according to, the laws of the State of Texas as applied to contracts that are executed and performed entirely in Texas, notwithstanding the principles of conflicts of law.
    • 2 The parties agree to resolve all disputes regarding Seller’s Confirmation and/or these Conditions in any court of competent jurisdiction in Austin, Travis County, Texas.
19. Survival of rights
    • 1 The parties’ rights and obligations shall be binding upon and inure to the benefit of the parties and their respective successors, permitted assigns, directors, officers, employees, agents and legal representatives. Termination of one or more of the rights and obligations of the parties, for whatsoever reason, shall not affect the provisions of these Conditions which are intended to continue to have effect after such termination.

20. Headings

20.1 The headings contained in these Conditions are included for mere convenience of reference and shall not affect their construction or interpretation.

21. Intellectual Property

21.1 Seller has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and/delivery of the Goods and Seller shall not be held liable for any loss or damages in that respect.  Seller expressly disclaims any and all warranties with regard to any intellectual property that may be incorporated in any Goods.

21.2 The sale of Goods shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Goods, and Customer expressly assumes all risks of any intellectual property infringement by reason of its importation and/or Use of the Goods, whether singly or in combination with other materials or in any processing operation.

22. Entire Agreement

22.1  These Conditions constitutes the entire agreement between the parties pertaining to the subject matter contained in it and supersedes all prior and contemporaneous agreements, representations, and understandings of the parties.  No supplement, modification, or amendment of these Conditions shall be binding unless executed in writing by all of the parties. 

23. Counterparts

23.1 These Conditions may be executed in two (2) or more counterpart, each of which shall be deemed to be an original, but all of which together shall constitute one and the same agreement, and shall become effective when one or more counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart.  Executed counterparts of these Conditions may be delivered by facsimile transmission or by delivery of a scanned counterpart in portable document format (.pdf) by email, in either case with delivery confirmed.  On such confirmed delivery, the signatures in the facsimile or .pdf data file shall be deemed to have the same force and effect as if the manually signed counterpart had been delivered to the other party in person.

24. Parties in interest

24.1  Nothing in these Conditions, whether express or implied, is intended to confer any rights or remedies under, or by reason of, these Conditions on any persons other than the parties to it and their respective successor and assigns; nothing in these Conditions is intended to relieve or discharge the obligation or liability of any third party to any party to these Conditions; and no provision shall give any third party any right of subrogation or claim against a party to these Conditions.