General Terms and Conditions of Sale — Equipment

1.1 Offer to sell. Through a Quote that references these Sale Terms, Edgevana offers to sell to the Buyer the Equipment identified in that Quote. The Buyer accepts by signing the Order Form, issuing a purchase order in response to the Quote, or otherwise authorizing the purchase in writing.

1.2 These terms control. The Buyer acknowledges and agrees that: (a) every Quote, Order Form, and purchase order is made subject to these Sale Terms; (b) these Sale Terms govern the relationship between the parties and prevail over any conflicting, additional, or pre-printed terms in any purchase order, statement of work, or other document the Buyer submits, all of which are of no effect; (c) Edgevana may accept or reject any purchase order in its sole discretion; and (d) Edgevana’s acceptance of any purchase order is conditioned on the Buyer’s acceptance of these Sale Terms. A purchase order that fails to reference these Sale Terms is still governed by them.

1.3 Fixed version. The Quote or Order Form incorporates the specific dated version of these Sale Terms identified on it. Later revisions published to this page do not change any Agreement already formed unless both parties agree in writing.

2.1 How to order. Equipment may be ordered only by a written purchase order or signed Order Form delivered by mail, email, or other written means, stating the quantity, the specific Equipment, the applicable price, shipping instructions, and the requested delivery date.

2.2 Acceptance by Edgevana. All orders are subject to written acceptance by Edgevana. Delivery schedules are established according to Equipment availability, OEM and manufacturer allocation, and the Buyer’s credit and compliance status. Edgevana is not bound by, and assumes no obligation under, any order until it issues written acceptance.

2.3 Requested delivery window. Edgevana will accept orders for requested delivery of Equipment up to a commercially reasonable period after the date of the order, subject to availability and the Conditions Precedent in Section 3.

3.1 Conditions Precedent. Notwithstanding any other provision, Edgevana’s obligation to sell or deliver the Equipment for any order is subject to the prior satisfaction of each of the following (the “Conditions Precedent”), in each case as determined by Edgevana:

1. OEM / Manufacturer / Allocation Approval. Confirmation from NVIDIA, the applicable OEM, or the integration partner (as applicable) of allocation of the specified Equipment to Edgevana for sale to the Buyer, and of any required approval of the Buyer, the end user, and the end-use facility.
2. Data Center Provider Attestation. Completion and acceptance of any required data center provider attestation or end-use attestation, executed by the provider that will host the Equipment.
3. US Export Control Clearance. Completion of all US export-control review and approval required under the Export Administration Regulations (EAR), including any required export license or license-exception determination.
4. Required Forms. Completion, submission, and acceptance of all forms, attestations, end-use letters, end-user statements, and other documentation required by NVIDIA, the OEM, the integration partner, or any government authority.
5. Sanctions & Compliance Screening. Completion of Edgevana’s sanctions, anti-corruption, restricted-party, and customer due-diligence screening on the Buyer, the end user, the end-use facility, and any third parties involved, with results acceptable to Edgevana in its sole discretion.

3.2 Buyer cooperation. The Buyer will promptly provide accurate and complete information about itself, the end user, the end-use facility, the intended use of the Equipment, and any other information Edgevana, NVIDIA, the OEM, the integration partner, or any authority reasonably requests, and will sign all documentation required to satisfy the Conditions Precedent.

3.4 No waiver by preparation. Edgevana’s commencement of preparatory or coordination activities before the Conditions Precedent are satisfied does not waive any Condition Precedent or create any obligation to sell.

4.2 Currency. All prices and amounts are in United States Dollars (USD) unless the Quote states otherwise.

4.3 Price changes. Quoted prices may be changed by Edgevana on thirty (30) days’ prior written notice (the “Notice Period”). Orders accepted before the Notice Period begins, and not yet shipped, and orders accepted during the Notice Period specifying delivery within thirty (30) days after it ends, will be invoiced at the prior price. Prices are also subject to change to reflect increases in OEM, manufacturer, component, freight, or duty costs, or changes in currency or applicable law, between the date of the Quote and shipment.

5.2 No release or title until paid. Edgevana is not obligated to ship or release the Equipment until the Deposit and the pre-shipment installment have been received in full, and title does not pass until the full price and all charges have been received (Section 7.3). “Proof of delivery” means the carrier’s delivery confirmation or a signed delivery receipt for the Equipment.

5.3 Deposit non-refundable. Except as required by applicable law, the Deposit is applied to the price and is non-refundable, including as provided in Section 3.3.

5.4 Late payment. Any installment not paid when due accrues interest, computed daily, at the lesser of 1.5% per month (18% per year) or the maximum rate permitted by law, from the due date until paid. Edgevana may withhold, suspend, or cancel shipment while any amount is overdue, and may apply any payment received to the oldest outstanding amount first.

5.5 Security; partial payment. Edgevana may require additional security or advance payment at its discretion. Acceptance of a partial payment is not an accord and satisfaction and does not waive Edgevana’s right to recover the balance or pursue any remedy.

5.6 Card payments. Payment by credit card, virtual card, or similar method is accepted only with Edgevana’s prior written approval and is subject to a processing fee of at least 3% of the amount paid.

5.7 No set-off. The Buyer will pay all amounts in full without set-off, deduction, or withholding of any kind, except as required by law.

6.1 Changes. Any change to an accepted order must be requested by the Buyer in writing and is subject to Edgevana’s written approval.

6.2 Cancellation and returns require approval. Cancellation of an order and return of Equipment must be pre-authorized by Edgevana in writing. Orders for Equipment not held in Edgevana inventory — including Equipment shipped directly from, or built or allocated by, NVIDIA, an OEM, the integration partner, or a distributor — and software and custom-configured Equipment may not be cancelled or returned except in special circumstances pre-authorized by Edgevana in writing.

6.3 Restocking and cancellation charges. If Edgevana permits cancellation or return, the Buyer will pay a charge equal to the greater of (a) any restocking, cancellation, or non-cancellable/non-returnable (NCNR) charge imposed by NVIDIA, the OEM, the integration partner, or a distributor, or (b) thirty percent (30%) of the price of the affected Equipment, plus any freight, duties, and costs already incurred. Deposits may be applied against these charges and are non-refundable to that extent.

7.1 Shipping basis. Unless the Order Form states a different Incoterm, delivery is FOB Origin, freight and insurance prepaid and added. Edgevana may arrange transportation and insurance on the Buyer’s behalf and bill the cost to the Buyer in addition to the price (see Section 8).

7.2 Risk of loss. Risk of loss or damage passes to the Buyer when the Equipment is delivered to the carrier, and the Equipment is deemed accepted for risk-of-loss purposes at that point. The Buyer is responsible for all shipment and insurance costs.

7.3 Title. Title to the Equipment passes to the Buyer only on Edgevana’s receipt of payment in full for that Equipment.

7.4 Delivery estimates. Delivery dates are estimates only and time is not of the essence. Edgevana will use commercially reasonable efforts to meet requested delivery dates and to expedite “ASAP” orders, but is not liable for delay, and the Buyer may not reject or cancel for delay, where the delay results from OEM, manufacturer, integration-partner, allocation, supply, carrier, or government causes or any cause in Section 16.

8.1 Buyer bears all charges. All prices are exclusive of all federal, state, local, and international sales, use, excise, ad valorem, property, VAT, import, export, and similar taxes and duties, and of all freight and insurance. Where any such tax, duty, freight, or insurance charge applies to a sale under these Sale Terms, the Buyer pays it in addition to the invoiced price; if Edgevana is required to pay it, the Buyer will reimburse Edgevana.

8.2 Determined at shipment. Freight, insurance, taxes, and duties are determined at the time of shipment based on the actual carrier, government, and third-party charges then in effect and on Edgevana’s then-current standard rates, and are billed to the Buyer accordingly. Estimates given before shipment are non-binding.

8.3 Edgevana’s own taxes. Taxes on Edgevana’s net income or gross receipts (including franchise, employment, and income taxes) remain Edgevana’s responsibility.

9.1 Mutual. Each party represents and warrants that it is duly organized and validly existing under the laws of its jurisdiction of formation, that it has full power and authority to enter into and perform the Agreement, that the individual signing is duly authorized, and that its performance does not breach any other agreement or any applicable law.

9.2 Buyer representations. The Buyer further represents, warrants, and covenants, on the date of the order and continuously through delivery, that:

1. all information it provides in connection with the Quote, the order, and the Conditions Precedent — including information about itself, the end user, the end-use facility, and the intended use of the Equipment — is true, accurate, and complete in all respects;
2. it is acquiring the Equipment for its own use or for its affiliated group at the identified end-use facility, and not for resale, redistribution, transfer, or diversion without Edgevana’s prior written consent;
3. it will not export, re-export, transfer, or divert the Equipment, or any portion of it, in violation of US or applicable foreign export-control or sanctions laws, or outside the destination country identified in the order, without Edgevana’s prior written consent;
4. it is not, and is not owned or controlled by or acting on behalf of, any person on the US Treasury OFAC Specially Designated Nationals list, the US Commerce Department Entity List, or any other restricted-party or sanctions list, and is not located in or organized under the laws of any embargoed or sanctioned jurisdiction;
5. it will comply with all applicable laws, including export-control, sanctions, anti-boycott, anti-corruption (including the US Foreign Corrupt Practices Act), and data-protection laws; and
6. it has and will maintain the facility readiness (power, cooling, structural, and network) required to receive, deploy, and operate the Equipment in accordance with the manufacturer’s specifications, and is responsible for installation, commissioning, and operation, which are not included unless expressly stated.

9.3 No other reliance. The Buyer has not relied on any representation, statement, or sample not expressly set out in the Agreement, and no description, specification, or performance figure provided by an OEM or manufacturer constitutes a representation or warranty by Edgevana.

10.1 Compliance. The Equipment and any related technical or confidential information are subject to US and applicable foreign export-control and sanctions laws and regulations, including the EAR and the regulations administered by the US Treasury Office of Foreign Assets Control (OFAC). Each party will comply with all such laws and with applicable anti-boycott laws.

10.2 Restricted parties and end use. The Buyer will not sell, ship, export, re-export, transfer, divert, or otherwise make the Equipment available, directly or indirectly, to or for the benefit of (a) any person on a US or applicable foreign restricted-party or sanctions list, (b) any embargoed or sanctioned jurisdiction, or (c) any prohibited end use (including prohibited military, intelligence, or weapons end uses), in each case without all required government authorizations and Edgevana’s prior written consent.

10.3 Screening; suspension. Edgevana may conduct sanctions and restricted-party screening at any time and may suspend, delay, or terminate any order, withhold delivery, or decline to proceed, without liability, if Edgevana determines in its sole discretion that proceeding could violate, or create risk under, any export-control or sanctions law, or that the Buyer, the end user, or the end-use facility presents an unacceptable compliance risk. Amounts retained in such circumstances are governed by Section 3.3.

10.4 Survival of obligations. The Buyer’s export-control and sanctions obligations continue after delivery and survive termination of the Agreement.

11.1 Pass-through only. The Buyer acknowledges that the Equipment is manufactured by third parties and not by Edgevana. Edgevana’s sole responsibility with respect to the Equipment is to pass through to the Buyer the original OEM’s or manufacturer’s product warranty, if any, to the extent transferable. Edgevana will reasonably cooperate in registering the Equipment and facilitating warranty claims with the OEM or manufacturer.

12.3 Basis of the bargain. The Buyer accepts these limitations as part of the bargain to obtain the stated price and understands that the price would be higher if Edgevana bore additional liability. This allocation of risk is a fundamental basis of the Agreement.

13.1 Indemnification of Edgevana. The Buyer will defend, indemnify, and hold harmless Edgevana and its affiliates and their respective members, managers, officers, directors, employees, agents, and representatives (the “Edgevana Indemnitees”) from and against any and all claims, demands, suits, proceedings, losses, damages, liabilities, fines, penalties, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to:

1. the Buyer’s breach of these Sale Terms or of any representation, warranty, or covenant in Section 9;
2. the Buyer’s negligence, misrepresentation, error, omission, willful misconduct, or fraud, or that of its affiliates, officers, directors, employees, agents, or representatives;
3. any inaccurate, incomplete, or false information the Buyer provides in connection with a Quote, an order, or the Conditions Precedent;
4. the Buyer’s use, configuration, installation, modification, deployment, or operation of the Equipment after delivery; and
5. the Buyer’s violation of any export-control, sanctions, anti-corruption, or other applicable law, or any re-export, transfer, or diversion of the Equipment.

13.2 Procedure. Edgevana will give the Buyer notice of a claim, and the Buyer will assume the defense with counsel reasonably acceptable to Edgevana; the Buyer may not settle any claim in a manner that imposes any obligation or admission on an Edgevana Indemnitee without Edgevana’s prior written consent. This Section 13 states the Buyer’s indemnification obligations; Edgevana provides no indemnification under these Sale Terms.

14.1 Confidential Information. Pricing, Quotes, deal terms, Edgevana’s supplier and OEM relationships and economics, allocation information, and any non-public technical or commercial information Edgevana provides are Edgevana’s confidential information. The Buyer will use it only to perform under the Agreement, protect it with at least a reasonable degree of care, and not disclose it except to its personnel and advisors who need to know and are bound by comparable obligations.

14.2 Compelled disclosure. The Buyer may disclose confidential information to the extent required by law or by NVIDIA, an OEM, the integration partner, or a government authority in connection with the Conditions Precedent, giving Edgevana reasonable prior notice where legally permitted.

15.1 Changes. Edgevana may change, improve, substitute (with equivalent or higher specification), add, or discontinue any Equipment at any time. Minor variations in components, firmware, or configuration that do not materially affect form, fit, function, or performance are permitted.

15.2 Allocation. Where Equipment, OEM allocation, or supply is limited, Edgevana may allocate available Equipment among its customers in its sole discretion and is not liable for any resulting shortfall or delay.

Edgevana is not liable for any delay or failure to perform, or for any loss or damage, resulting from causes beyond its reasonable control, including acts of the Buyer, acts of civil or military authority, government action or priorities, export-control or sanctions restrictions, OEM, manufacturer, or integration-partner delays, semiconductor or component shortages, allocation delays, fire, flood, epidemic, pandemic, quarantine, energy crisis, strike or labor dispute, war, terrorism, riot, accident, or delays in transportation. Delivery dates extend by the duration of the event.

The Buyer may not assign or transfer the Agreement or any right or obligation under it without Edgevana’s prior written consent; any attempted assignment in violation of this Section is void. Edgevana may (a) subcontract any support or fulfillment obligation, (b) assign the Agreement and its rights in connection with its financing activities in the ordinary course, and (c) assign the Agreement on written notice in connection with a merger or sale of substantially all of its assets or equity.

18.1 Waiver. A waiver of any default or term applies only to the specific instance and is not a waiver of any other default or term. Exercising any right or remedy is without prejudice to any other right or remedy at law or in equity.

18.2 Severability. If any provision is found invalid, illegal, or unenforceable, the remaining provisions remain in full force and effect, and the provision is modified to the minimum extent necessary to make it enforceable while preserving its intent.

These Sale Terms, together with the applicable Quote and signed Order Form, are the complete, final, and exclusive statement of the terms of sale and supersede all prior or contemporaneous communications, proposals, and quotations on the subject matter. They may be amended only by a writing signed by both parties. If there is a conflict, the signed Order Form controls for the commercial terms expressly stated in it (parties, Equipment, quantity, price, payment, and delivery), and these Sale Terms control in all other respects; both prevail over any conflicting or additional terms in any Buyer purchase order or other document.

20.1 Governing law. The Agreement is governed by the laws of the State of Delaware, USA, without regard to its conflict-of-law principles. The UN Convention on Contracts for the International Sale of Goods does not apply.

20.2 Dispute resolution. Any dispute arising out of or relating to the Equipment or the Agreement will be resolved by binding arbitration administered by JAMS in San Francisco, California, under the JAMS Comprehensive Arbitration Rules, before a single arbitrator. The award is final and binding and may be entered in any court of competent jurisdiction. Either party may still seek injunctive or equitable relief from a court of competent jurisdiction to protect its intellectual property or confidential information or to collect amounts owed.

21.1 Attorney’s fees. In any action or arbitration to enforce the Agreement, the prevailing party is entitled to recover its costs and reasonable attorneys’ fees.

21.2 Notices. Notices must be in writing and sent by email (with confirmation) to the addresses in the Quote or Order Form, or by recognized courier with tracking, and are effective on receipt.

21.3 Independent contractors; no third-party beneficiaries. The parties are independent contractors; nothing creates a partnership, joint venture, agency, or employment relationship. The Agreement creates no rights in any third party.

21.4 Counterparts; electronic signature. The Order Form may be signed in counterparts and by electronic signature, each an original and together one instrument.

21.5 Survival. Sections 3.3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, and 18–21, and any payment obligation, survive termination or completion of the Agreement.