Terms and Conditions

VAPOR PROPULSION LABS

GENERAL TERMS AND CONDITIONS FOR THE SALE OF PRODUCTS OR SERVICES

The Parties expressly agree as follows: 

1. That the sale of any Products sold by, or Services performed by Vapor Propulsion Labs (VPL) is expressly conditioned on Buyer’s agreement and acceptance of these Terms and Conditions. 

2. Any order by Buyer to purchase products or receive services represents Buyer’s agreement to the following Terms and Conditions. 

3. No Buyer issued Purchase Order or any other order form shall modify these Terms and Conditions, nor shall any course of dealing, usage in the trade, or prior course of performance operate as a modification or waiver of these Terms and Conditions. 

4. Seller expressly objects to any additional or different terms proposed by Buyer. 

5. Definitions. 

“Affiliate” of a party hereto shall mean any entity that controls or is controlled by such party or is under common control with such party.  For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least 50% of the voting equity of another entity (or other comparable interest for an entity other than a corporation).

“Buyer” means the entity or individual to which Seller is providing Products or Services under the Contract. 

“Contract” means the purchase order or written contract signed by Buyer and accepted by Seller for the sale of Products or Services, together with these Terms and Conditions and Seller’s order acknowledgement which includes Seller’s final price and delivery quotation or the agreed scope of work. In the event of any conflict between and terms contained in the Contract and these Terms and Conditions, the Terms and Conditions shall take precedence over other all other documents and terms included in the Contract. 

“Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract. 

“Parties” means the Buyer and Seller as defined in this agreement.

“Products” means the parts, materials, supplies, and other goods Seller has agreed to supply to Buyer under the Contract. 

“Seller” or “VPL” shall refer to Vapor Propulsion Labs. 

“Services” means the services VPL has agreed to perform for Buyer under the Contract. 

“Terms and Conditions” means these “General Terms and Conditions for the Sale of Products or Services”, together with any modifications or additional provisions specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing. 

“Territory” means North America (United States, including Puerto Rico and the US Virgin Islands, Canada, Mexico). 

6. Contract Price. 

(a) Buyer shall purchase the Products and, if applicable, shall pay for all services provided, from Seller at the Contract Price. Prices are subject to change without prior notice and Seller shall thereafter notify Buyer of any price increases.  In the event of a price increase, Buyer may cancel any undelivered portion of any order by written notice to Seller, provided such notice is received by Seller not more than ten (10) days after Buyer’s receipt of Seller’s notice of price increase.  Upon cancellation, Buyer shall pay Seller: (1) the Contract Price for all Products which have been completed or are in the process of completion, (2) components or goods secured by Seller from outside sources for the performance of the Contract, and (3) for any special tooling and equipment procured for the performance of the Contract. All prices shall be confidential, and Buyer shall not disclose such prices to any unrelated party.  

(b) All Contract Prices are exclusive of all sales, use, import, 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, taxes, and fees; except that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.  

(c) The Contract Price excludes shipping and handling charges which are the obligation of Buyer, Ex Works, and will be added to the invoice if prepaid by Seller. 

 (d) Buyer shall submit to Seller purchase orders for the purchase of Product(s) or Service(s) (“Purchase Order”).  A duly authorized representative of Buyer shall place all Purchase Orders.  Each Purchase Order placed by Buyer shall minimally contain the following information (1) applicable part number and description for each Product ordered; (2) desired delivery date; (3) quantity of each Product ordered; (4) shipment instructions and (5) Contract Price (6) Buyer unique Purchase Order number.

7. Payment Terms. 

See Attachment No. 1 below and incorporated herein for all purposes. 

(a) Deposit – All orders require an advance nonrefundable deposit equal to twenty-five percent (25%) of the total order amount, payable at the time the order is placed. 

(b) Payment of invoice balance is due upon shipment, all payable in the currency specified in the invoice with the exception of shipments scheduled for Buyer pick up in Taiwan which require pre-payment of the full invoice balance prior to pick up. 

(c) 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 Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees, and court costs. In addition to all other remedies available under these Terms and Conditions or at law, Seller shall be entitled to immediately suspend the delivery of any Products if Buyer fails to pay any amounts when due hereunder. 

(d) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. 

(e) If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing within thirty (30) days of receipt of said invoice, detail the reason for the dispute, and pay all undisputed amounts.  The parties shall use good faith efforts to reconcile the disputed amounts as soon as practicable.   All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.

8. Delivery and Shipping Terms. 

(a) Seller shall deliver Products to Buyer EXW Seller’s facility or at a designated third-party location (Incoterms 2020). Buyer shall pay all delivery costs, shipping charges, handling fees, import/export duties, clearance fees, and charges. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type, or price to those itemized in the shipping invoice or documentation, Buyer shall notify Seller within ten (10) days after receipt. 

(b) Title to Products shall pass to Buyer upon delivery in accordance with Section 8(a). For Buyer arranged export shipments, Buyer will provide Seller evidence of exportation acceptable to the relevant tax and custom authorities, including but not limited to HTS codes as the importer of record for all parts purchased. 

(c) Risk of loss shall pass to Buyer upon delivery pursuant to Section 8(a). 

(d) If any Products to be delivered under this Contract cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer, Seller may ship the Products to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places Products into storage, the following apply: (i) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be due; (iii) all associated storage fees plus an interest rate calculated at 1.5% per month will be charged to Buyer; and (iv) when conditions permit and upon payment of all amounts due, Seller shall make Products available to Buyer for delivery. 

(e) Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered. 

9. Cancellation of Purchase Order. 

Buyer may cancel its order only with the prior written consent of Seller, which Seller may withhold in its sole discretion. All cancellations will be subject to payment to Seller of reasonable and proper cancellation charges. Buyer may return eligible Products only at its sole cost and only with the prior written authorization of Seller, subject to a 25% restocking fee, accepted returns will be exchanged for credit only.  No returns of batteries or special, custom, or made-to-order Products will be permitted.  No returns will be permitted more than thirty (30) days after delivery.

10. Title, Risk of Loss, Security Interest. 

(a) Title and risk of loss passes to Buyer pursuant to the terms of Section 8. 

(b) Buyer hereby grants to Seller a lien on and security interest in and to all of Buyer’s right, title, and interest in, to, and under the Products, 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 as collateral security for the full payment of the purchase price of the Products. The security interest granted under this provision constitutes a purchase money security interest under (i), the Colorado Uniform Commercial Code. Seller shall have the right to file any and all documents and take any action it deems necessary to fully establish protection of its security interest in the Products; however, the failure of Seller to file any such document shall not in any way act as a waiver of Seller’s right to such security interest. 

11. Special Services. 

In the event Buyer desires for Seller to perform any special consulting or engineering services, such work will be performed pursuant to a separate agreement to be entered into in writing by both Buyer and Seller detailing the extent and terms of such services to be performed. 

12. Disclaimer of Warranty. 

(a) All products sold by Seller are sold only with the warranties provided by the manufacturer of products, if any. SELLER MAKES NO OTHER WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller personnel are not authorized to alter this disclaimer of warranty. 

(b) All Products are sold for Buyer’s commercial use for incorporation into Buyer’s manufactured or assembled products and are not intended for separate direct use by consumers. Accordingly, Seller disclaims all warranties to consumers, as defined by the Magnuson-Moss Act and/or applicable Canadian Consumer Protection Act. Any inspection services provided by Seller at Buyer’s request shall be provided as a customer service only and shall not be deemed to act as a warranty or approval of Buyer’s installation, use, or maintenance of the Products, nor shall Seller be liable for failure to detect improper use, installation, or maintenance of the Products by Buyer. 

13. Limitation of Liability. 

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO SELLER FOR SERVICES PERFORMED HEREUNDER. 

(c) This limitation of liability is a material basis for the Parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products or services at the price charged. 

14. Indemnification. 

(a) Subject to Section 10 above, Buyer and Seller (each as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the loss or expense shall be borne by each party in proportion to its degree of negligence.

(b) Whenever an indemnified party becomes aware of a claim, suit or proceeding as to which it believes it is entitled to indemnification under this Article, it shall give notice in writing to the indemnifying party, shall permit indemnifying party to assume exclusive control of the defense of the matter, and shall provide, at the expense of indemnifying party, all authority, information and assistance which indemnifying party may reasonably request for purposes of such defense. An indemnified party may engage its own counsel, at its own expense, to monitor the defense of any such matter. In no event shall the indemnifying party be entitled to settle any of the above-mentioned claims without the indemnified party’s advance written consent.

15. Adequate Assurance. 

Seller reserves the right to cancel any order or require full or partial payment or other adequate assurance of performance from Buyer in the event of the following: (i) Buyer’s filing of a voluntary petition in bankruptcy (ii), Buyer’s execution of an assignment for the benefit of creditors. (iii) Buyer’s insolvency, inability, or unwillingness to pay its bills when due, (iv) the appointment of a receiver or trustee for Buyer. 

Seller reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Buyer’s credit at any time for any reason. 

16. Intellectual Property Rights. 

All patent rights, trade secrets, trademarks, copyrights, all other intellectual property right associated with Products are the property of the manufacturer of the Products. Seller does not make claims or any guarantees with respect to the any intellectual property rights associated with the Products. 

17. Compliance with Laws. 

(a) Buyer acknowledges that Products may be used in various jurisdictions and subject to different regulations. Therefore Seller cannot warrant compliance with all applicable laws and regulations. Seller disclaims any representation or warranty that the Products conform to federal, state, or local laws, regulations, ordinances, codes, or standards, except as expressly set forth by Seller in writing. Buyer agrees that items manufactured or assembled by Buyer incorporating the Products shall comply with all applicable laws, regulations, standards, and ordinances where distributed. Seller may terminate this Contract if any governmental authority imposes antidumping, countervailing duties, or any other penalties on Products. 

(b) The Products, items, technology, or software covered by an order may be subject to various laws including U.S. and foreign export controls. Seller is committed to complying with all relevant export laws. If items of United States origin incorporating the Products are exported from the United States, the following statement applies, “These commodities, technology or software were exported from the United States in accordance with the Export Administration Regulations. Diversion contrary to U.S. law is prohibited.” Buyer is responsible for applying for export licenses, if required, based on end user or country of ultimate destination. 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 Products other than in and to the Territory or country of destination declared by Buyer and specified as the country of ultimate destination on Seller’s invoice. Buyer agrees to indemnify and hold Seller harmless from any and all costs, liabilities, penalties, sanctions, and fines related to non-compliance with Section and all applicable export laws and regulations. 

(c) Buyer represents and warrants that it is not subject to any trade sanctions imposed by any country in the Territory and that it is in compliance and shall comply with all applicable laws and regulations relating to trade restrictions and/or export controls in the Territory with respect to the Products or items incorporating the Products and shall provide evidence of compliance with the foregoing as Seller may reasonably request from time to time. 

(d) Buyer represents and warrants that it is currently in compliance with and shall comply with all applicable anti-bribery and anti-corruption laws, including the U.S. Foreign Corrupt Practices Act, and has not, directly, or indirectly, offered, paid, promised, or authorized the giving of money or anything of value to any government official for the purpose of influencing any act or decision of such government official. Buyer is not on, nor is Buyer associated with any organization that is on, any list of entities maintained by the United States government that identifies parties to which the sale of goods or services is restricted 

18. Termination. 

1. In addition to any remedies that may be provided under these Terms and Conditions, Seller may terminate this Contract with immediate effect upon written notice to Buyer, if Buyer: (i) experiences a material adverse change in Buyer’s financial condition or failure to meet any of its debt obligations when due ; (ii) has not otherwise performed or complied with any of these Terms and Conditions, in whole or in part; (iii) exhibits any breach of Buyer’s representations and warranties; or (iii) 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.   Any termination effected pursuant to Section 18 – Termination shall be deemed effective as of the date specified in the notice of termination.

2. Upon termination of these Terms and Conditions, Seller shall deliver to Buyer a report describing Purchase Orders outstanding as of the date of termination.  Buyer shall pay Seller for the Products and Services delivered to Buyer, as of the date of termination, at the applicable prices under these Contract and any applicable pricing schedule and Buyer shall pay Seller for all work performed pursuant to any unfinished Purchase Order prior to the date of termination.

19. No Pending Claims or Litigation.

Buyer represents and warrants to Supplier that there is no action, suit, claim, investigation or proceeding pending or, to the best of its knowledge, threatened against it that, if adversely decided, might adversely affect Buyer’s:  (a) ability to enter into these Terms and Conditions; or (b) the performance of its obligations hereunder.

20. Amendment and Modification. 

These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party. 

21. Waiver. 

No waiver by Seller of any of the provisions of this Contract is effective unless explicitly set forth in writing and signed by Seller. No failure by Seller to exercise, or delay in exercising, any right, arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right precludes any other or further exercise thereof or the exercise of any other right. 

22. Confidential Information. 

All non-public, confidential or proprietary information of Seller, including but not limited to pricing, discounts, rebates specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, or customer lists disclosed by Seller 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 Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller 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. 

23. Force Majeure. 

Seller shall not be liable or responsible to Buyer, deemed to have defaulted, or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller 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, pandemic, 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, material or telecommunication breakdown, or power outage. 

24. Assignment. 

Buyer shall not assign any of its rights or delegate any of its obligations under this Contract without the prior written consent of Seller. 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 Contract. 

25. Relationship of the Parties. 

The relationship between the parties is that of independent contractors. Nothing contained in this Contract 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. 

26. Governing Law and Jurisdiction 

This Contract is governed by and construed in accordance with the internal laws of (i) 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 other jurisdiction. The Parties agree that any legal action shall be commenced in the US District Court for the District of Colorado, or the courts of the State of Colorado located in the City of   ___{insert City}__  and__{insert County}__ County. 

27. Dispute Resolution. 

The Parties agree that any dispute arising out of or relating to this Contract that is not resolved by the Parties through direct negotiation, except for the remedies contained herein, shall be first be addressed through third-party mediation in ______{insert CO county}_____ County, Colorado, or at a location as otherwise agreed to by the Parties, prior to either Party initiating a lawsuit. 

28. Notice. 

All notices, requests, consents, claims, demands, waivers, and other communications (“Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Contract or to such other address designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), via an attachment to facsimile, email, or other electronic means (with confirmation of transmission) or certified or registered mail (postage prepaid, return receipt requested). Except as otherwise provided in this Contract, 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. 

29. Severability. 

If any term or provision of this Contract is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction. 

30. Survival. 

Any part of these Terms and Conditions which by their nature apply or continue beyond the term of this agreement including, but not limited to: Insurance, Compliance with Laws, Confidential Information, Governing Law, Indemnification, Jurisdiction, Dispute Resolution and Survival will remain in force after any expiration or termination of these Terms and Conditions 

31. Complete Agreement. 

These General Terms and Conditions constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.