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Terms of Sale

1.General.  These Standard Terms of Sale (the “Agreement”) and the terms of the corresponding purchase order (the “Quote”) shall exclusively govern the ordering, purchase and supply of the EdgeEV, EdgeBoost (BESS), EdgeAssure, EdgeView (the “Goods”) to _________[1] (the “Buyer”). No modification of this Agreement or the Quote shall be effective unless and until specifically affirmed in writing by One Three Energy, Inc. dba EdgeEnergy (“Edge”), and in the event any terms or provisions of any other agreement, invoice or similar document conflict with the terms provided in this Agreement, the terms of this Agreement shall control and the parties shall be bound to the terms provided herein.

2.Delivery and Shipping Terms. Unless otherwise specifically set forth in the Quote, charges for shipping and handling shall be prepaid or billed as a separate item on an invoice provided by Edge and based on Edge’s current shipping policies. Buyer shall be solely responsible for all costs of shipping and handling. Shipping dates are estimates only, which are not guaranteed, and assume prompt receipt from Buyer of all necessary shipping and other information. Edge’s shipping terms are Ex Works (EXW). Delivery of Goods to a commercial carrier at Edge’s plant or other loading point shall constitute delivery to Buyer, and any risk of loss and further cost and responsibility thereafter for claims, delivery, loss or damage, including, if applicable, placement and storage, shall be borne by Buyer. Claims for shortages or other errors in delivery must be made in writing to Edge within ten (10) days after receipt of shipment, and failure to give such notice shall constitute unqualified acceptance and a waiver of all such claims by Buyer.

3.Payment. Buyer shall purchase the Goods from Edge at the agreed upon price as stated in the Quote for the sale of the Goods, including adjustments (if any) (the “Purchase Price”). Unless otherwise specifically set forth in the Quote, the Buyer agrees that fifty percent (50%) of the Purchase Price owed by the Buyer is due upon receipt of the Quote, and the remaining fifty percent (50%) of the Purchase Price owed by the Buyer is due prior to shipping. Buyer may, with the express consent of Edge, request changes to the specifications for the Goods covered by the Quote. In the event such changes are approved by Edge, Edge will provide an updated Quote (the “Modified Quote”) reflecting the adjusted Purchase Price, shipping fees, and delivery rates for the Goods (collectively the “Modified Purchase Price”). Edge shall be entitled to payment, pursuant to the Modified Quote, for the Modified Purchase Price plus any and all costs and expenses incurred by it for work and materials rendered unnecessary as a result of such changes, and for work and materials required to effect said changes. In the event Buyer fails to make all payments required by the Quote or Modified Quote, Buyer shall pay interest on all late payments, which shall accrue interest compounding monthly from the due date of the Quote or Modified Quote at the maximum rate allowed under applicable law until such time that full payment has been received by Edge. Buyer shall be liable for all other losses, damages or expenses directly incurred by Edge as a result of Buyer’s failure to make timely payment, including, but not limited to, reasonable attorney’s fees incurred for collection thereof.

4.Taxes. The Purchase Price is exclusive of all sales, use, and excise taxes, manufacture’s tax, retailer’s occupation tax, and any similar taxes, duty, custom, inspection or testing fee, and any charges of any kind imposed by any governmental authority on any amounts payable by Buyer (collectively the “Taxes”). Buyer shall be solely responsible for all such Taxes. In the event Edge is required to pay any such Taxes, Buyer shall reimburse Edge within ten (10) days of written notice that such reimbursement is due. Any amount unpaid or reimbursed by Buyer for Taxes shall accrue interest compounding monthly at the maximum rate allowable by law. Notwithstanding the foregoing, Buyer shall not be responsible for any taxes imposed on, or with respect to, Edge’s income, revenues, gross receipts, personnel or real or personal property or other assets. Unless otherwise provided in the Quote, the Purchase Price excludes shipping and handling charges, which are the obligation of the Buyer and will be added to the Quote.

5.Assembly, Installation, and Set-Up. In the event Buyer desires for Edge to perform any assembly, installation or set-up of the Goods, said work shall be performed by Edge pursuant to a separate agreement to be entered into in writing by both the Buyer and Edge detailing the terms of said work, and the fee to be invoiced by Edge related thereto.

6.Delays Due to Causes Beyond Edge’s Control. Edge shall not be liable for any ordinary, incidental, or consequential loss or damage as a result of delay in or failure of delivery or installation of the Goods due to (i) any cause beyond Edge’s reasonable control, (ii) an act of God, an act of the Buyer, embargo or other government act, authority, regulation or request, extreme power surge, extreme electromagnetic field, water intrusion, fire, or other environmental factors, theft, accident, strike, slowdown or other labor disturbance, pandemic, war, riot, delay in transportation, or (iii) inability to obtain necessary labor, materials, components, or facilities. Should any of the aforementioned events occur, Edge at its option, may cancel the order for the Goods, with respect to any undelivered Goods or extend the delivery date for a period equal to the time lost because of delay. Notice of such election shall be given promptly to Buyer.

7.Ownership.  Edge shall solely own and have exclusive worldwide right, title and interest in and to all the results and data collected, generated, or processed by the Goods[2] (collectively, “Edge Data”); in all pre-existing materials, technology, Specifications (as defined herein), including Specifications, any designs, technology, and other information related thereto, that is (a) owned or controlled by Edge or any of its affiliates, as of the date of the Quote, and/or (b) owned or acquired by Edge or any of its affiliates at any time after the date of the Quote in perpetuity (collectively, “Edge Background IP”); in all specifications, including brand specifications, and the applicable documentation for the use, operation, handling, and installation of the Goods, as such may be amended from time to time by Edge (collectively “Specifications”); in all deployment and testing plans, equipment and supplies provided in connection with the Goods (collectively, “Resources”); in all Confidential Information (as defined below), and in all trademarks, service marks, copyrights, patents, mask works, trade dress, trade secrets, and all other intellectual property rights (collectively, “Intellectual Property Rights”) relating thereto.  No license or other interest of any kind in the Edge Data, Edge Background IP, Specifications, Resources, Confidential Information, or any Intellectual Property Rights is granted directly or indirectly to Buyer.

8.Disclaimer of Warranty. Edge warrants that the Goods shall, at the time of sale to Buyer, be free from any defects in materials or workmanship in accordance with Edge’s Limited Warranty available at __________________[3]. Edge makes no other express or implied warranty with respect to the Goods. All other warranties, including without limitation, any warranty of design, merchantability, fitness for a particular purpose (even if Edge has been informed or should have been informed of such purpose), or warranty against infringement, are excluded hereby, to the extent permitted by law. If any implied warranty cannot be disclaimed under applicable law, such implied warranty shall be limited in duration as provided in Edge’s Limited Warranty. No warranties, including an implied warranty, shall apply after the expiration of Edge’s Limited Warranty. Edge’s personnel are not authorized to alter this disclaimer of warranty.  

9.Limitation of Liability. In no event shall Edge 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), warranty, strict liability, or otherwise, regardless of whether such damages were foreseeable and whether or not Edge has been advised of the possibility of such damages, and notwithstanding the failure of any agreed or other remedy of its essential purpose. In no event shall Edge’s aggregate liability arising out of or related to this Agreement or the purchase of the Goods, whether arising out of or related to breach of contract, tort (including negligence), warranty, strict liability or otherwise exceed the total amounts paid to Edge for the Goods sold hereunder. This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between Edge and the Buyer, without which Edge would not have agreed to provide the Goods at the price charged pursuant to the Quote or Modified Quote, as applicable.

10.Confidentiality.  During the performance of this Agreement, Edge may disclose to Buyer certain confidential or proprietary methods, specifications, know how, libraries, data, parts, supplies of any kind, Specifications, and other information in written, oral and physical/sample form regarding the Goods and/or confidential material from Edge (collectively “Confidential Information”).  Buyer shall not in any way disclose, copy, disassemble, decompile, reverse engineer, or use any bill of materials, manufacturing instructions, supplier information, Specifications and other trade secrets provided by Edge, or a derivative thereof, or any other Confidential Information, to create or modify any technology, process, methods or materials which are functionally, visually or otherwise equivalent to Edge’s product(s), including the Goods, technology, proprietary information, trade secrets or its Confidential Information, or to otherwise transfer Edge’s Confidential Information to any other person or entity at any time.

11.Indemnification.  Buyer shall indemnify, defend and hold harmless Edge, its partners, employees, representatives, customers and clients against all damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorney’s fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arise out of or relate to (a) claims brought by a third party alleging breach of contract, or warranty by Edge; and/or (b) any claims brought by a third party related to personal injury or damage, to the extent caused by the negligence of the Buyer related to with the Goods purchased pursuant to this Agreement.     

12.Regulatory Laws. Edge makes reasonable steps to keep its products, including the Goods, in conformity with nationally recognized standards and applicable regulations; however, Edge recognizes that its products, including the Goods, are utilized in many regulated applications and that from time-to-time standards and regulations are in conflict with each other. Edge makes no promise or representation that its product, including the Goods, will conform to any federal, state or local laws, ordinances, regulations, codes or standards. Edge’s prices do not include the cost of any related inspections or permits or inspection fees. Edge represents that’s its products, including the Goods, will be produced in compliance with the Fair Labor Standards Act of 1938, as amended.

13.International Sales and Export.  Buyer and Edge hereby expressly exclude the application of the Convention on Contracts for the International Sale of Goods to the Quote or Modified Quote, as applicable. The Goods and associated materials supplied or licensed under this Agreement may be subject to various export laws and regulations. It shall be the responsibility of Buyer and the exporter to comply with all such laws and regulations.

14.Nuclear and Hazardous Activities. Goods shall not be used in connection with any nuclear facility or any other application or hazardous activity where the failure of a single component could cause substantial hard to persons or property. If so used, Buyer shall indemnify and hold Edge harmless for any and all causes of action, claims, costs, liabilities, and losses that arise from or relate to the use of the Goods in such facilities, applications, or activities.

15.Rights of Third Parties. Edge warrants that the use of the goods delivered hereunder will infringe no claim of any U.S. patent covering the Goods themselves; but does not warrant against infringements by reason of Buyer’s use thereof in combination with other material or in the operation of any process. If Edge is subject to any claims or charges of patent infringement, Buyer or any party in privity with Buyer agrees, in addition to the indemnification obligations provided herein, to hold harmless and indemnify Edge, its successors and assigns, against any and all damages, claims, liabilities, losses and other expenses, including without limitation reasonable attorney’s fees and costs, whether or not a lawsuit or other proceeding is filed, that in any way arise out of or relate resulting from such claims, demands, and lawsuits.

16.Termination.  Neither this Agreement nor the Quote or Modified Quote, as applicable, may be cancelled by Buyer without the prior written consent by Edge, of which such consent shall at all times be conditioned upon Buyer’s agreement to pay Edge a cancellation charge. For finished Goods, which in Edge’s sole judgment is readily resalable to others, the cancellation charge shall be fifteen percent (15%) of the Purchase Price or Modified Purchase Price, if applicable, of the Goods. For all other cancellations, the cancellation charge shall amount to all costs and expenses incurred by Edge and arising out of or in connection with the Quote or the Modified Quote, if applicable, net of recoverability, but in no event less than fifteen percent (15%) of the Purchase Price or the Modified Purchase Price, if applicable, for the Goods[4].  In the event Edge elects to cancel this Agreement and/or a Quote or Modified Quote, as applicable, due to default of Buyer or causes beyond Edge’s control, Edge shall be released of and from all liability for failure to deliver the Goods, including, but not limited to, any and all claims on behalf of Buyer for lost profits, or any other claim of any nature which Buyer might have. If shipping or progress of the work is delayed or interrupted by Buyer, directly or indirectly, Buyer shall pay for all additional charges resulting therefore.

17.Governing Law.  This Agreement shall be interpreted and enforced according to the substantive laws of the State of Delaware, without application of its conflicts or choice of law rules.  The U.N. Convention of Contracts for the International Sale of Goods shall not apply.  In the event a dispute arises regarding this Agreement, the prevailing party shall be entitled to recover attorneys’ fees and costs, in addition to other relief to which it is entitled.

18.Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Edge. Any purported assignment or delegation in violation of this Section 18 shall be null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.

19.Entire Agreement.  This Agreement constitutes the entire Agreement between the parties regarding the subject matter hereof and supersedes all prior oral or written agreements or understandings.  If any provision of this Agreement is judicially determined to be invalid, void or unenforceable, the remaining provisions shall remain in full force and effect. In the event any terms or provisions of any other agreement, invoice or similar document entered into by and between Edge and the Buyer as related to the purchase and use of the Goods conflict with the terms provided in this Agreement, the terms of this Agreement shall control and the parties shall be bound to the terms provided herein.

20.Miscellaneous.  Any consent, notice or report required or permitted to be given or made under the Agreement by one of the parties hereto to the other shall be in writing and shall be (as elected by the person giving such notice) sent by facsimile (with confirmation received of recipient’s number) or delivered by overnight delivery service, addressed to such other party at the address as the addressee shall have last furnished in writing to the addressor and (except as otherwise provided in the Agreement).  Notices shall be deemed delivered (a) on the date delivered if by an overnight delivery service, with proof of delivery, and (b) on the date telecommunicated if by facsimile (with confirmation of receipt).  This Agreement is not made for, and shall not benefit or create any right or cause of action in favor of, any person other than, the Buyer, Edge, and all indemnitees. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, power, or privilege hereunder precludes any other further exercise thereof or the exercise of any other right, remedy, power or privilege.  Provisions of this Agreement, which by their nature should apply beyond their terms will remain in full force after any termination or expiration of this Agreement, including, but not limited to the following provisions:  Ownership (Section 7), Disclaimer of Warranty (Section 8), Limitation of Liability (Section 9) Confidentiality (Section 10), Indemnification (Section 11), Governing Law (Section 17), Entire Agreement (Section 19), and Miscellaneous (Section 20).

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