Terms and Conditions of Sale (the “Terms”)

1. Interpretation

In these Terms:
the “Agreement” means the agreement which is formed when we accept an order from you, as provided in Clause 2 below.
Customer” or “you” means the person who purchases Goods.
Goods” means the goods or products described in the Order Confirmation (as defined).
Order Confirmation” means the confirmation sent to you by Vox Power.
Order Documents” means the quotation, the order form, the Order Confirmation and/or the invoice sent by Vox to Customer which describes the Goods purchased by Customer under the Agreement as well as Prices, payment terms and other provisions.
Prices” means the gross price payable for the Goods including the charges set out in clause 5.3.
Supplier”, “Vox”, “we” or “us” means Vox Power Limited, registered in Ireland no. 419018, whose registered office is at Unit 2 Red Cow Interchange Estate, Ballymount Road, Ballymount, D22 Y8H2. This definition includes affiliates of Vox.

2. Terms of Sale

2.1 All Vox sales, quotations and standard pricing is subject to these Terms to the exclusion of all other terms and conditions. Unless otherwise stated, prices quoted are only valid for 30 days. No addition, alteration or substitution of these Terms shall be binding upon Vox unless and until expressly accepted in writing by a duly authorised person on behalf of Vox.

2.2 By placing an order, you are making an offer to buy which incorporates these Terms. Acknowledgment of receipt of the order shall not be deemed acceptance of the order. If we elect to accept your offer, you will receive an Order Confirmation. We reserve the right to decline any order, without giving a reason.

3. Orders

Orders are only binding when the Order Confirmation is received. You should check the Order Confirmation and notify us of any mistake by email or telephone immediately; otherwise the details stated in the Order Confirmation will apply to the Agreement.

4. Changes to Goods

Changes to standard products/goods can occur and are controlled via the Product Change Notification Process. The customer will be advised in advance of any changes via the PCN process which may affect orders sent to Vox Power. Any change to standard products which affects the form, fit or function of the ordered Goods, will be notified to the customer in advance of delivery.

5. Delivery and Payment

5.1 We will use reasonable efforts to meet requested delivery date which are inside standard quoted lead times but it should be understood that they are estimates and we are not liable (in contract, negligence or otherwise) for any loss or damage resulting from them not being met, howsoever caused. The standard production lead time can vary based on market conditions and will be advised upon request. Goods are delivered to the delivery address you gave, as stated in the Order Confirmation. Where you have ordered more than one item, we may make delivery in one or more instalments.

5.2 All orders must be consistent with established lead times. Unless agreed otherwise in writing the first three orders will be payment in advance where after Vox may at its sole discretion extend payment terms subject to a satisfactory credit worthy review. Extended payment terms must be applied for in writing. Vox shall be entitled to charge interest on overdue amounts at a rate of 3 percent above the European Central Bank base rate calculated on a daily basis until actual payment is made in full.

5.3 Prices are EXW (Incoterms 2000) Vox’s shipping facility; and prices do not include any taxes, freight, handling, duty or other similar charges that will also be charged to Customer. Freight charges may be constructed on the basis of standard carrier tariffs and may not reflect actual transportation costs. Vox reserves the right to modify terms prior to shipment, require payment in advance, or delay or cancel any shipment or order by reason of Customer’s creditworthiness or should Customer fail to fulfil any obligation when due. Vox reserves the right to deliver in more than one consignment and to invoice each consignment separately.

5.4 If for any reason Customer does not accept delivery of any of the Goods when they are ready for delivery, or Vox is unable to deliver the Goods on time because Customer has not provided appropriate instructions, documents, licences or authorisations then the Goods will be deemed to have been delivered, risk passing to Customer (including for loss or damage caused by Vox’s negligence) and Vox may:
(a) store the Goods until actual delivery and Customer shall be liable for all related costs and expenses (including without limitation storage and insurance); or
(b) sell the Goods at the best price readily obtainable and (after deduction of all reasonable storage and selling expenses) charge Customer for any shortfall below the price for the Goods.

6. Title

6.1 Vox retains legal, beneficial and equitable ownership of the Goods until full payment for such Goods and all other money payable by Customer to Vox on any other account or under the Terms or any other agreement is received by Vox from Customer. The Goods shall be at the risk of Customer or its representative from the time of delivery.

6.2 Until full payment has been made for the Goods by the Customer in accordance with clause 5, Vox’s goods shall be stored and kept separate from any other goods of the Customer and of third parties and the Customer shall identify the goods as the property of Vox. The Customer shall not remove any identifying marks placed on the goods by Vox.

6.3 Until full payment has been made for the goods by the Customer in accordance with clause 5, the Customer shall hold the goods as Vox’s bailee and as its fiduciary and shall accordingly remain liable to account to Vox for the goods or, if the same shall be sold by the Customer for all the proceeds, tangible and intangible (and including without limitation insurance proceeds and proceeds of proceeds), thereof. The Customer shall as trustee for Vox, pay such proceeds into a bank account separate from any other goods of the Customer and of third parties.

6.4 Subject to clause 5.3, the Customer may exercise its right to sell the goods in the usual course of the Customer’s business but such right: (i) may be revoked at any time by Vox giving notice in writing to that effect if the Customer is in default for longer than extended payment terms in the payment of any sum whatsoever due to Vox (whether in respect of the Goods or of any other Goods or services supplied at any time by Vox to the Customer or for any reason whatsoever) or if Vox has bona fide doubts as to the solvency of the Customer and (ii) shall automatically cease if a receiver, manager or administrator is appointed over the assets, undertaking or property of the Customer, or a winding up or administration order against the Customer is made or petitioned or order in bankruptcy against the Customer is presented or made, or the Customer into voluntary liquidation (otherwise than for the purposes of reconstruction or amalgamation while solvent) or calls a meeting of or makes arrangements or compositions with creditors.

6.5 Upon the determination of the Customer’s rights of sale under clause 5.4(b) above, the Customer shall place the goods at the disposal of Vox (who shall be entitled to enter any premises of the Customer for the purpose of removing the Goods from the said premises) and/or, as the case may be, pay to Vox the proceeds then held by the Customer as trustee for Vox in accordance with clause 5.3.

7. Cancellation and price increases

7.1 No order which has been acknowledged by Vox may be cancelled, rescheduled or reconfigured without Vox’s prior written authorisations and in such event, Customer will be liable to Vox for any additional costs and expenses incurred by Vox.

7.2 Prices are subject to change by Vox upon Customer rescheduling or reconfiguration of orders. If a price increase is notified to Customer in response to supplier price increases, Customer may cancel the undelivered portion of any affected order by delivering written notice to Vox prior to the shipment thereof and within ten (10) days of its receipt of notice of the price increase.

8. Queries and Complaints

Notification of queries and/or complaints must be notified to us in writing within fourteen (14) days of receipt of the Goods.

9. Warranties

9.1 We warrant that for a period from the date of shipment, which period will depend on by the product purchased, that the Goods will be free from defects in materials and workmanship. The Customer has a period of sixty (60) days from the date of shipment to inform Vox if the Goods delivered do not conform in all material respects to the product specifications in effect at the time of shipment. Otherwise Customer will notify Vox in writing of any material non-conformance during the warranty period. Please contact Vox to confirm the actual warranty period of the Goods you purchased.

9.2 Vox reserves the right to examine any allegedly non-conforming product and perform a failure analysis to determine if the alleged non-conformance is a result of defective materials or workmanship (in which case the remedies set forth in this clause 9 shall apply), or does not exist or was caused by improper use or installation or damage in transit or while in the control of Customer (in which case Customer shall have no right to any remedies hereunder). If Vox determines that the non-conformance was due to defective materials or workmanship, Vox will issue a return material authorisation (“RMA”) for the nonconforming products, and Customer will return the non-conforming unit(s) to Vox’s designated repair facility in accordance with the instructions set forth in the RMA.

9.3 Vox shall, at its option, either (i) repair or replace non-conforming Goods, at Vox’s cost, and return the non-conforming Goods to Customer, or (ii) credit Customer for any non-conforming Goods. Any such repair or replacement provided to Customer will not extend the original warranty period for the Goods in question. Goods which are out of warranty and repaired by Vox shall have a ninety (90) day warranty from the date of shipment on the workmanship performed. The foregoing sets forth Vox’s sale and exclusive obligation and Customer’s sole and exclusive remedy for any breach of the foregoing warranty. Customer shall bear all risk of loss or damage to returned goods while in transit. In the event no defect or a breach of warranty is discovered by Vox upon receipt of any returned item, the item will be returned to Customer at Customer’s expense and Customer will reimburse Vox for the transportation charges, labour, and associated charges incurred in testing the allegedly defective item.

9.4 Notwithstanding any provision of these Terms to the contrary, any orders for special, customised, value added and other non-standard Goods, including products to be assembled in kit form and products from other manufacturers are sold as NCNR or Non-Cancellable and Non-Returnable and shall not be capable of cancellation and/or return (Non-Standard Products). If Vox agrees to accept cancellation or part cancellation of an order of non-standard products a charge of 20% of the total order price or such other charge to compensate Vox for any charges incurred to produce the order before cancellation, may be levied at the sole discretion of Vox. No returns are permitted, without the Vox’s previous agreement. Product returns shall follow the Vox’s RMA procedure as described in this clause 9.2 at the time of return.

10. Liability

10.1 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the contract.

10.2 Nothing in these Terms shall exclude or limit:
(a) our liability for death or personal injury resulting from our negligence, or that of any of our employees or agents; or
(b) any other liability which cannot be legally excluded or limited by applicable law, including the statutory rights of a consumer.

THE CUSTOMER’S ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS CONTAINED IN SECTION 10.3
10.3 Without prejudice to clause 10.1 and clause 10.2, we will not have any liability to the Customer, arising under or in connection with these Terms or any Agreement, whether in contract, tort (including but not limited to negligence), restitution, for breach of statutory duty, misrepresentation or otherwise for any of the following:
(a) economic loss of any kind, including but not limited to any indirect, consequential, special, incidental or punitive loss or damage (whether for loss of current or future profits, loss of business or loss of business opportunity, loss of enterprise value or otherwise);
(b) damage to the Customer’s reputation or goodwill, or;
(c) product recall or business interruption costs.

10.4 Without prejudice to clauses 10.1 to 10.3 and subject to clause 10.5, Vox’s total aggregate liability arising under or in connection with these Terms or any Agreement, whether arising in contract, tort (including but not limited to negligence), restitution, for breach of statutory duty, misrepresentation or otherwise, shall in all circumstances be limited to €100,000.

10.5 Where the value of Goods supplied to the Customer under these Terms in the 12-month period prior to any claim (the “Relevant Period”) is less than the sum of €100,000, Vox’s maximum liability shall be the value of Goods supplied to the Customer in the Relevant Period under these Terms.

10.6 The provisions of this clause 10 shall survive the termination or expiry (for whatever reason) of this Contract.

11. Force Majeure

We are not liable for delays in performance (including delivery or service) caused by circumstances beyond our reasonable control and will be entitled to a time extension for performance. Examples include fire, flood, acts of God, strikes, problems with suppliers or transport, industrial relations problems, exchange fluctuations, governmental or regulatory reaction and natural disasters. A party affected by an event described in this clause 11 shall promptly notify the other party of the event causing failure or delay in performance and shall use all reasonable endeavours to mitigate the effect of the Force Majeure event to carry out its obligations.

12. Unintended Applications

Unless specifically otherwise agreed in writing by Vox Power, the Customer acknowledges that Goods sold by Vox Power are not intended for and will not be used in connection with life support systems, human implantations, nuclear facilities or systems, aircraft spacecraft, military or naval missile, ground support or control equipment used for the purpose of guidance navigation or direction of any aircraft spacecraft or military or naval missile or any other application where product failure could lead to loss of life or catastrophic property damage. The Customer will indemnify and hold Vox Power harmless from any loss, cost or damage resulting from its breach of the provisions of this clause 12.

13. Export Control

Goods may be subject to export or resale restriction or regulation, and Customer acknowledges that it will comply with such regulations or restrictions. In no circumstances shall Vox be liable for any damage, loss or claim howsoever occasioned by an act, or omission on the part of the Customer in contravention of any provisions (statutes, ordinances, directives, regulations, administrative acts) issued by the United States Government, the countries of domicile of the contracting parties and the European Union concerning the export of Goods, services or technologies. Any or all products may have been imported. Country of origin information is as provided to Vox by its suppliers and is, where applicable, located on the Goods themselves or the supplier’s innermost packaging thereof.

14. Intellectual Property Rights.

14.1 In all cases, intellectual property rights in and to, and all technology relating to the Goods, including but not limited to, their design and all improvements thereto, and any accompanying software, whether or not such product, design, improvement, or software is made pursuant to Customer’s specifications or at Customer’s expense, shall be and remain the exclusive property of Vox.

14.2 Any software or firmware incorporated in or provided with the Goods is licensed to, not sold to the Customer. Except for the right to use the software or firmware as incorporated in the Goods, all rights are reserved. Customer agrees to comply with Vox’s requirements with regard to proprietary and similar rights in and to any third party software incorporated in the Goods (including any requirement to enter into a separate license agreement and prohibitions against duplicating or disclosing the same, even if the seal on any “shrink wrap” item has been broken by Vox).

15. Miscellaneous.

15.1 Notices given under these Terms must be given in writing and shall be effective when delivered to the other party’s legal officer at the address stated on the Vox invoice, or such other address as either party may substitute by written notice to the other and shall be deemed given upon personal delivery or three days following deposit in the mail or in electronic mail format.

15.2 Vox’s failure to or delay in exercising any of its rights hereunder shall not constitute or be deemed a waiver or forfeiture of such rights. All waivers must be in writing. Any waiver or failure to enforce any provision of these Terms is agreement on one occasion and will not be deemed a waiver of any other provision or of such provision on any other occasion.

15.3 Customer’s relationship with Vox is that of an independent contractor, and neither party is an agent or partner of the other. If any provision of this agreement is unenforceable, such provision will be changed to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Customer may not assign or delegate these Terms or its rights or duties hereunder (by operation of law or otherwise) without the prior written consent of Vox. Any assignment not in conformity with the foregoing will be null and void. These terms and conditions and the invoice, purchase order, or sales acknowledgement form to which it is attached constitutes the entire agreement between the parties regarding the subject hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral. These Terms may be amended only by a written document signed by both parties that specifically references these terms and conditions.

16. Severability

If any of these Terms should be determined to be illegal, invalid or otherwise unenforceable, such terms or condition shall be deleted and severed from the rest of the relevant Terms and the remaining Terms shall survive, remain in full force and effect and continue to be binding and enforceable.

17. Data Protection

To the extent Vox processes personal data under or in connection with these Terms, Vox shall ensure appropriate protection is in place to safeguard such personal data. Personal data used in connection with the business relationship is stored and processed by Vox, to the extent necessary for business purposes, in accordance with the provisions of the Data Protection Acts 1988 and 2003. Customer authorises Vox to collect, use, store and transfer the personal data Customer provides to Vox for the purpose of performing Vox’s obligations under these Terms and for any additional purposes described, pursuant to the Agreement.
Together, they contain the entire understanding and agreement between the Supplier and the Customer relating to the sale of Goods to the Customer.

18. Governing Law

These Terms shall be governed by Irish law and all disputes between the parties arising out of or in any way relating to these terms or any other disputes between the parties in any way connected with the subject matter of these terms shall be governed by the laws of the Republic of Ireland. The courts of the Republic of Ireland shall have exclusive jurisdiction to hear all matters arising out of or in any way relating to these terms.

 

DOC-VOX-001-03, Vox Power Terms and Conditions of Sale

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