1. Applicability of These Terms and Conditions

1.1 The terms and conditions set forth below shall govern all deliveries and services rendered by Energy Delivery Solutions.

1.2 These terms and conditions herein shall apply to the exclusion of all other terms and conditions. Energy Delivery Solutions shall not be bound by any terms or conditions contained in any purchase order, acceptance, acknowledgement, or other documents submitted by customer which propose any terms or conditions in addition to or differing from the terms and conditions herein set forth, irrespective of whether any of the same are in written or electronic form, and objection is hereby made to any such terms and conditions of customer. Energy Delivery Solutions’ failure subsequently to object to such terms and conditions contained in customer’s documents shall not be deemed a waiver of any of these terms and conditions herein set forth, which, and, as applicable, any EULA accepted by customer, shall constitute the entire agreement between the parties. No amendment, deletion, supplement or change to these terms and conditions shall be binding upon Energy Delivery Solutions unless separately and specifically approved in writing and signed by a duly authorized representative of Energy Delivery Solutions.

1.3 These terms and conditions are subject to change without notice at any time, in our sole discretion.

2. Conclusion of Contracts; Offer Documents

2.1 Our employees are not authorized to conclude oral agreements. Any oral commitments deviating from our offer, quotation or order confirmation shall only be valid if confirmed in writing and signed by a duly authorized representative of Energy Delivery Solutions.

2.2 Our offers and quotations are always without obligation. Orders from the customer shall only become binding upon our written confirmation (including delivery notice or invoice).

2.3 Verbal agreements made after execution of a contract must be confirmed in writing by a duly authorized representative of Energy Delivery Solutions to be valid.

3. Performance; Delivery

3.1 Representations as to deadlines for delivery of products are approximate only, unless we have given an express binding commitment in writing. Deadlines for deliveries shall begin to run when the order confirmation is given, but not before all technical issues and details relating to the order have been resolved.

3.2 Delivery dates shall be deemed to have been met if, on or before this date, the products have left our facilities or are ready for dispatch and the customer has been notified accordingly.

3.3 Energy Delivery Solutions shall not be responsible for failure or delay in performance or delivery as the result of events of force majeure, including all revisions of statutory law, acts of governmental authority or any agency or commission thereof, declarations of national or local emergencies, war, fire, flood, national or local disease outbreaks, pandemics, medical emergencies, accidents, acts of God, terrorism, embargoes, acts of third parties, breakdown of equipment, shortages of material, labor of power, labor strikes, work stoppage or labor unrest, or any other cause beyond our reasonable control that renders the delivery of service substantially more difficult or impossible. This shall also apply if such events occur during a delivery delay or at a supplier. If any of the foregoing events occurs, we may make deliveries of the products proportionate to production and/or postpone the shipment of delivery period of the products to a reasonable time after the difficulty has ceased. In no event shall Energy Delivery Solutions be liable to the customer for compensation or damages. We shall notify the customer without undue delay of the obstacle to performance and of its end.

3.4 Import, export and/or the transport of products outside of the United States shall be subject to the import and/or export regulations applicable in the United States, the country imported to, and in all other relevant jurisdictions, as the case may be. The customer shall be solely responsible for the procurement of relevant approvals and permits. However, at the customer’s request and expense, we shall use our best efforts, to the extent commercially reasonable and economical, to obtain the approvals necessary for the export of the subject of the agreement and/or any other necessary documents from the domestic authorities. We reserve the right to determine whether we will sell and/or deliver products to customers and/or nationals of countries outside of the United States.

3.5 If the customer fails to accept delivery or negligently breaches other obligations to cooperate with us, we shall be entitled to compensation for any loss that we may suffer as a consequence, including any additional expenses or costs that we may incur as a result of the delay.

3.6 We shall be entitled to make partial deliveries unless it would be commercially unreasonable to expect the customer to accept such partial deliveries. Each partial delivery may be invoiced separately.

4. Shipment; Risk

4.1 Unless otherwise agreed in writing, shipments of products shall be FOB from Energy Delivery Solutions’ facility.

4.2 Title and risk of loss or damage to the products, as well as the obligation to bear any costs relating thereto, shall pass to the customer upon Energy Delivery Solutions’ making delivery to a carrier at Energy Delivery Solutions’ facility, consigned to customer, or as customer may direct. This shall also apply in the event of partial deliveries. If the shipment is delayed as a result of instructions from the customer or due to customer’s fault, in particular, because customer has failed to give proper instructions in due time, risk shall pass to the customer upon notification that the product is ready for shipment.

4.3 All shipments shall be made on behalf of the customer. We shall not be liable for damage and loss during transport. Any damage and loss shall not release the customer from the obligation to pay the purchase price in full. If the customer has not given any special orders relating to shipment, we shall have the shipment sent via a carrier at our discretion.

5. Limited Warranty

5.1 Energy Delivery Solutions’ products are manufactured are rendered with due care and in accordance with applicable statutory laws and regulations. Owing to the complexity of our products, materials, and procedures, it cannot be guaranteed that our products function without defects in all applications, conditions and/or combinations. For this reason, Energy Delivery Solutions does not assume any guarantee or liability to the effect that our products are appropriate in each individual case for the specific purpose intended by the customer. Subject to the limitations of Section 5, and unless otherwise expressly provided, Energy Delivery Solutions warrants only that the products will conform to Energy Delivery Solutions’ published specifications for such products and services in effect at the time of order acceptance, or any analysis certificate presented with the product result.

5.2 Any samples, measurements and product details contained in catalogues, price lists, brochures and/or quotations presented to the customer only constitute an approximate guide and may under no circumstances be understood as an assurance of properties in terms of a guarantee. We reserve the right to make any changes thereto which we consider necessary in our absolute discretion. In the event Energy Delivery Solutions and the customer wish to agree on a guarantee in an individual case, contrary to the above, this must be done expressly and in writing signed by a person with requisite authority at Energy Delivery Solutions.

5.3 Energy Delivery Solutions’ sole liability, and customer’s sole and exclusive remedy, pursuant to any claim of any kind against Energy Delivery Solutions, including without limitation any claim in contract, negligence or strict liability, shall be, at Energy Delivery Solutions’ option, (a) replacement of any non‐conforming products until completion or (b) a refund of the payments allocable to the non‐conforming products.

5.4 UNLESS ANY OTHER EXPRESS LIMITED WARRANTY IS PROVIDED IN WRITING BY ENERGY DELIVERY SOLUTIONS OR PURCHASED BY CUSTOMER IN CONNECTION WITH CUSTOMER’S PURCHASE OF A ENERGY DELIVERY SOLUTIONS PRODUCT, THE LIMITED WARRANTY IN SECTION 5.1 ABOVE IS EXPRESSLY IN LIEU OF ANY AND ALL OTHER WARRANTIES AND ENERGY DELIVERY SOLUTIONS HEREBY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION (A) ANY IMPLIED WARRANTIES OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR (B) ANY IMPLIED WARRANTY THAT ANY USE OF THE PRODUCTS WILL NOT VIOLATE OR INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHTS OF THIRD PARTIES, WITH RESPECT TO THE PRODUCTS, OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 5.1 ABOVE.

6. Inspection, Acceptance, and Storage

6.1 The customer shall inspect the products promptly upon delivery and shall give written notice to Energy Delivery Solutions specifying any alleged non‐conformance, defect, damage, or shortage. The customer shall be deemed to have accepted the products as having been delivered in accordance with the relevant contract and as being free from any defect, damage, shortage, or any other deficiency whatsoever, unless such notice has been given in writing and received by Energy Delivery Solutions by (a) seven (7) working days after customer’s receipt of delivery of the products, in the case of any non‐conformities or deficiencies reasonably ascertainable by visual inspection or routine testing procedures, or (b) seven (7) working days after customer learns of the facts giving rise to the claim, in the case of any other non‐conformities or deficiencies not reasonably ascertainable by visual inspection or routine testing procedures. Customer’s failure to give notice of any claim within the applicable time period specified above, shall be deemed an absolute and unconditional waiver of such claim, irrespective of whether the facts giving rise to such claim shall have been discovered or whether processing or use of the products shall have then taken place.

6.2 Energy Delivery Solutions reserves the right to inspect and test the product to which objection has been made in each case of a notification of defects by customer. The customer shall give us reasonable time and opportunity for such inspection. Upon our request, the customer shall return to us, at our expense, the item to which objection has been made. If customer’s notification of defects proves to be unjustified, customer shall be obligated to reimburse us for all costs incurred in this context (e.g., inspection costs, travel costs and shipment costs) upon submission of receipts.

6.3 Defects of partial deliveries shall not entitle customer to reject the remainder of the contractual quantity unless customer can prove that it would be commercially unreasonable for customer to accept only a part of the delivery under these circumstances.

6.4 As a condition of Energy Delivery Solutions providing any warranty for its products, Customer must where applicable immediately upon receipt, and continually while in its possession, store the products in accordance with any recommended instructions or methods, including but not limited to storage at recommended temperatures, provided in any product documentation supplied with the products.

7. Use

7.1 Products sold by Energy Delivery Solutions must only be used for the purposes and in accordance with the usage instructions stated on the product package and/or the applicable product use statement. In particular, Energy Delivery Solutions’ products are for research or further manufacturing use only and are not to be used, neither directly nor indirectly, for therapeutic or diagnostic purposes unless (a) the product has been expressly approved for such purposes by Energy Delivery Solutions, (b) such use is permitted under the statutory law applicable to the customer, and (c) all required permits have been granted by the appropriate regulatory agency or other competent authority. The customer shall be solely responsible for ensuring that the customer’s intended use of the products does not violate statutory law and that all required permits have been granted.

7.2 Customer shall handle and use the results of the products in conformity with (a) good laboratory practice, (b) all applicable laws and regulations, guidelines and decisions of judicial or regulatory bodies and (c) any patent and other proprietary rights of third parties.

7.3 Products with use‐by dates may only be used subject to the use‐by dates stated on the product package and are only warranted for the use by such dates, and only if the customer can provide written confirmation of its compliance with Energy Delivery Solutions’ storage instructions for the product(s).

8. No Resale
Except as otherwise agreed in writing by Energy Delivery Solutions’ authorized representative, the purchase or other delivery of Energy Delivery Solutions products only conveys to the customer the non‐transferable right for customer to use the delivered products in compliance with the applicable product use statement. Unless otherwise authorized under a commercial license from Energy Delivery Solutions, no right to resell the products, or any portion of them, in any way, shape or form, including as a component of another product, is conveyed.

9. Limitation of Liability and Remedy

9.1 ENERGY DELIVERY SOLUTIONS SHALL NOT IN ANY EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION PROPERTY DAMAGE, LOST PROFITS OR OTHER ECONOMIC LOSS, ARISING IN CONNECTION WITH CUSTOMER’S USE OF OR INABILITY TO USE THE PRODUCTS OR SERVICES, OR ENERGY DELIVERY SOLUTIONS’ FAILURE TO PERFORM THE SERVICES IN ACCORDANCE WITH THE LIMITED WARRANTY SET FORTH IN SECTION 5 ABOVE. THIS LIMITATION OF LIABILITY WILL APPLY UNDER ANY LEGAL THEORY AND REGARDLESS OF THE FORM OF ACTION, INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND, EVEN IF ENERGY DELIVERY SOLUTIONS HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES, AND SHALL ALSO APPLY IN THE EVENT OF LOSSES CAUSED BY THE BREACH OF DUTIES IN CONTRACT NEGOTIATIONS.

9.2 Energy Delivery Solutions’ liability for breach of warranty or for any loss or damage resulting from any other cause whatsoever, including alleged negligence, shall not exceed the lesser of (i) the cost of correcting any non‐conformity in the products or (ii) the cost of replacing the products. In no event (including unenforceability of the above limitations and independent of any failure of essential purpose of the limited warranty and remedies provided hereunder) shall Energy Delivery Solutions’ aggregate liability for damages hereunder exceed the purchase price to which the particular claim relates. The parties acknowledge that the limitations set forth in this Section 9 are integral to the prices charged and that, were Energy Delivery Solutions to assume any further liability other than as set forth herein, such prices would of necessity be set substantially higher. Customer expressly agrees that this limitation of damages and remedies shall constitute the exclusive remedies and measure of damages available to customer and all other remedies and measure of damages which might otherwise be available under the law of any jurisdiction are hereby waived by customer.

9.3 Without limitation to the generality of the foregoing limitation, Energy Delivery Solutions shall not be liable for any damage or loss caused by the improper or unapproved use of the products. Customer shall defend, indemnify and hold harmless Energy Delivery Solutions from and against any and all losses, costs and expenses, including without limitation reasonable attorneys’ fees, in any way arising out of or relating to (a) any use of the products not in compliance with the uses stated in Section 7 above, (b) any failure of customer to comply with good laboratory practice, laws, regulations, guidelines or decisions in the handling or use of the products, (c) any violation or infringement of any patent or other proprietary
rights of third parties by customer in the handling or use of the products, or (d) any other use or misuse of the products by customer.

9.4 The limitations set forth in this Section 9 shall not restrict or exclude our liability for death or personal injury caused by negligence on the part of our executive employees or on the part of our vicarious agents. Further, nothing set forth herein shall restrict or exclude our liability based on intentional misconduct or gross negligence on or part, on the part of our executive employees or on the part of our vicarious agents, or our liability resulting from mandatory product liability laws or other mandatory statutory laws and regulations, as applicable.

10. Payment Terms

10.1 The full amount of each invoice in respect of the deliveries of products by Energy Delivery Solutions hereunder shall be paid upon ordering from Energy Delivery Solutions. The customer may not withhold payment of any amounts due to Energy Delivery Solutions by reason of any claim to a right of set‐off or counterclaim or for any other reason, unless to the extent the customer’s counterclaims have been affirmed finally and absolutely in a court judgment, are undisputed or are acknowledged by us.

10.2 Payment by ACH or wire transfer will be accepted on a case-by-case basis. Any wire transfer or banking transaction fees shall be borne by customer.

11. Intellectual Property Rights

11.1 Energy Delivery Solutions is the owner of all intellectual property rights and all other rights related to the product(s) provided by Energy Delivery Solutions.

11.2 The customer is prohibited from attempting to reverse engineer, alter, re‐manufacture, and all other activity to learn the chemical composition, formula, manufacturing process, or any other secret information about the product(s) or services.

12. Confidentiality

12.1 The term “Confidential Information”, as used herein, shall include all scientific, technical, business, or financial information disclosed by Energy Delivery Solutions to customer, including any information learned by customer during any visit to Energy Delivery Solutions’ facilities. This Agreement shall not apply to Confidential Information or of any portion of such information which a customer can show by presenting adequate evidence:
(a) Is now or later made known to the public through no default by customer of its obligations under this Agreement; (b) Was in its rightful possession prior to the earliest disclosure by Energy Delivery Solutions, as evidenced by written documents in customer’s files; (c) Is rightfully received by customer from a third party having no obligation of confidentiality to Energy Delivery Solutions; (d) Is independently developed by customer or by persons who did not have access to Confidential Information.

12.2 Customer agrees to hold in confidence and not publish or disclose to any third parties any of the Confidential Information without the prior written consent of Energy Delivery Solutions, and not to use the Confidential Information for any purpose except for using the products. Customer agrees to use the same degree of care (and in any event not less than reasonable care) to safeguard the confidentiality of the Confidential Information that it uses to protect its own secret information, and to keep the Confidential Information in a secure location at all times.

12.3 Customer agrees to limit any disclosure of the Confidential Information only to those of its directors, officers, employees, and outside professional advisors (including consultants, independent contractors, and the like) or of any entity controlled, controlling, or under common control with customer (“Affiliate”), who have a need to know and who are bound by obligations of confidentiality and non‐use at least as restrictive as set forth herein, and to advise such persons of customer’s obligations hereunder.

12.4 In case customer is required to disclose Confidential Information in order to comply with laws, regulations or court order, customer shall disclose such Confidential Information only to the extent necessary for such compliance, provided, however, that customer shall give Energy Delivery Solutions prompt written notice of such requirement or request to disclose Confidential Information so that Energy Delivery Solutions may seek an appropriate protective order, and customer shall use its best efforts to secure confidential treatment of the Confidential Information to be disclosed.

12.5 No warranties or representations are made by Energy Delivery Solutions for Confidential Information. Customer should rely on Confidential Information at its own risk. Customer expressly recognizes that ANY AND ALL CONFIDENTIAL INFORMATION IS PROVIDED “AS IS”.

12.6 In the event of breach, or a threatened breach of the provisions of this Section 12 by customer, Energy Delivery Solutions shall be entitled to an injunction restraining customer from committing such breach without showing or proving any actual damage sustained and without posting a bond thereof.

13. Data Privacy Protection
We shall treat all personal data relating to the customer confidentially. BY PLACING ORDERS, THE CUSTOMER CONSENTS TO THE STORAGE AND FORWARDING OF PERSONAL DATA FOR THE PURPOSE OF CREDIT REVIEW, COLLECTION OF DEBTS AND NOTIFICATIONS UNDER ANY APPLICABLE LAWS AND REGULATIONS.

14. Notices
Notices and other communications hereby required or contemplated shall only be effective if delivered in writing to the party for whom intended at its designated “Invoice Address” if to customer or the Energy Delivery Solutions contact address if to Energy Delivery Solutions, either by (a) personal delivery, (b) postage prepaid, return receipt requested, registered or certified mail, (c) internationally recognized overnight courier (such as UPS, FedEx, or DHL), or (d) facsimile with a confirmation copy sent simultaneously by any of the other methods described above. Notice by registered or certified mail shall be effective on the date officially recorded as delivered to the intended recipient by return receipt or equivalent, and in the absence of such record of delivery, the effective date shall be presumed to have been the fifth (5th) business day after deposit in the mail. Notices delivered in person or sent by courier shall be effective on the date of personal delivery. Notices delivered by facsimile shall be deemed to be effective on the date sent. Notice not given in writing shall be effective only if acknowledged in writing by a duly authorized representative of the party to whom it was given.

15. Return Policy
ATPv, Vitalise Wound Care Spray: Due to the critical storage conditions of our product and chain of custody concerns after shipment to customers, all sales are final. If you have any questions or concerns about your purchase, or for special circumstances, please contact Customer Care.