GENERAL TERMS AND CONDITIONS
1 INTRODUCTORY PROVISIONS
These GENERAL TERMS & CONDITIONS FOR THE SUPPLY OF PHOTOVOLTAIC SOLAR POWER MODULES AND ACCESSORIES apply to all Purchase Orders to OPES Solutions Ltd or its subsidiaries OPES Shanghai Ltd and OPES Changzhou Ltd or OPES Solar Mobility GmbH (the “Supplier”). The Purchase Orders given by the party therein identified as the “Customer” and after receipt of the Purchase Order, the Supplier will submit to the Order Confirmation or Proforma Invoice(collectively the “Order Confirmation”) with terms and conditions for approval and acceptance by the Supplier. The Order Confirmation with terms and conditions, and not those of the Purchase Order, will govern the terms of the sale.Supplier and Customer are each individually and sometimes referred to as a “Party” and collectively as the “Parties”.
2 SUPPLIER OBLIGATIONS
2.1 Delivery Obligation
Subject to such adjustments as set forth in Article 2.2, Supplier shall deliver to Customer such Product and on terms as set out in the Order Confirmation in response to the Purchase Order.
2.2 Limited Raw Material Availability Period
Supplier shall have the right to reduce deliveries of Product to Customer provided that such a reduction is a consequence of a shortage of necessary raw materials required for Supplier’s production, and Supplier cannot with reasonable commercial efforts overcome the shortage.
2.3 Order Confirmation
Supplier shall not be obligated to deliver any quantities of Product not covered by an Order Confirmation. If Supplier finds that a Purchase Order cannot be confirmed, Customer shall be informed accordingly, and a new Purchase Order be issued by Customer.
2.4 Product specification
The Product delivered by Supplier to Customer shall conform to the product specifications and product drawings issued by Supplier based on Customer’s input and signed by both Parties and referred to in the Order Confirmation (“Product Specifications”).
The delivery date, destination and delivery terms shall be as set out in the Order Confirmation.
Supplier shall issue Order Confirmation to confirm the order and Commercial Invoice for the Product delivered to Customer.
3 CUSTOMER OBLIGATIONS
3.1 Purchase obligation and Purchase Order
Customer shall have a purchase obligation for the quantity set out in the Purchase Order provided it has been matched by an Order Confirmation. The Purchase Order may not refer to any agreements, rules, terms and/or conditions other than those contained herein (including Appendixes to the Purchase Order signed by both Parties), and any such reference shall be without any legal effect on the rights and obligations of the Parties hereto. A Purchase Order shall be binding for Customer upon its issue and shall be binding for Supplier upon its written Order Confirmation.
The Price is exclusive of any and all net income, profits, gross income, gross receipts, minimum, alternative minimum, sales, use, ad valorem, net worth, value added, transfer, excise, stamp, or other taxes, Value Added Tax or similar, customs duties, public license fees etc., assessments, or charges of any kind whatsoever, which shall all be borne by Customer. To the extent that Supplier is obligated to pay any such taxes to any authority, the amount paid shall be reimbursed by Customer upon Supplier’s invoicing, on ordinary agreed payment terms.
3.3 Payment Terms – Retention of title
The Customer explicitly accepts and agrees that Supplier shall retain title to the Product until such time as Customer has made full, effective and irrevocable payment for the Product.
3.4 Inspection of Product
An inspection of appearance of each shipment of Product shall be made by Customer in accordance with sound business practice upon the delivery of the Product, and in no case later than 5 days after delivery. Customer shall inform Supplier promptly, and in no case later than 10 days after delivery of Product, in case of any damages or other defects to the Product which Customer discover under the inspection of appearance. A final inspection of the Product shall take place by Customer when installing the Product or upon transferring physical possession of the Product to a third party, provided, however, that such final inspection shall in any event take place within 90 days after delivery. If the Product does not meet the Product Specifications, Customer shall notify Supplier in writing without undue delay after the final inspection and, together with the notification, submit documentary evidence of the result of the final inspection whereupon Supplier shall have the right to undertake its own inspection.
Upon completion of such final inspection, Customer shall be deemed to have accepted the Product in accordance with the Uniform Commercial Code. Customer’s failure to perform such inspections within the time periods specified above and to notify Supplier accordingly shall also be deemed an acceptance of the Product and shall release Supplier from any obligations or liabilities with regard to defects in a Product, including but not limited to any warranties, which Customer can reasonably be expected to have discovered had it properly performed said inspections.
4.1 Late payments
Any delayed payment hereunder shall carry a delayed payment interest at a rate of 2 % per month from the due date until full and effective payment is made. If the due date of any payment to be made hereunder falls on a day that is not a working day in Customer’s country, delayed payment interest shall accrue as from the first working day after the due date.
Supplier may temporarily withhold any further deliveries of Product, without breaching the Contract, for as long as a delayed payment situation exists.
4.2 Late pick-up
In case of delayed pick-up of shipment by Customer, paragraph 4.1 is applicable from the first working day following the delay.
Notwithstanding that Customer fails to take delivery of the Product at the stipulated time, Customer shall make any payment contingent upon delivery as if delivery of the relevant Product had taken place. Supplier shall make sure that the Product are stored for the Customer’s account and at the Customer’s risk. Supplier shall at the Customer’s request insure the Product for the Customer’s account.
4.3 Cancellation of Order
Cancellation of Order shall not be accepted once Supplier has issued an Order Confirmation.
4.4 No waiver
No failure to exercise any right hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right preclude further exercise of such right. Remedies provided are cumulative, not exclusive of any other remedies provided by law, except as otherwise expressly provided in the Order Confirmation
5 WARRANTY AND LIMITATION OF LIABILITY
5.1 Product warranty
Subject to Article 3.4, Supplier shall warrant that the quality and specification of the Products are in conformity with the agreed Product Specifications at the time of delivery. Except for as set out in this Article 5.1, Supplier shall have no further liability whatsoever relating to a defective Product, including but not limited to liability for any direct, indirect or consequential losses resulting from defective Products.
5.2 Use of product
Unless otherwise provided by the Supplier, the Product shall be used in compliance with the Product Specifications or the Product Label. In case Supplier issued a specific handling and installation manual for a specific product only complying use is permitted. Any other use of Product shall be on Customer’s sole risk.
5.3 Limitation of liability
In no event, or series of events, shall either Party be liable for breach of the Contract for an amount higher than the total Price hereunder of Product for the total quantity of the Purchase Order as confirmed by the Order Confirmation.
The above limitation of liability shall not apply to a Party’s liability for losses caused by gross negligence or intentional acts by the Party or a person for whom the Party is responsible. A Party’s liability shall never cover any indirect or consequential losses of the other.
5.4 Force Majeure
Neither Party shall be responsibility to the other Party for non-fulfilment or delays or additional costs in fulfilment of its obligations under the Contract due to causes over which that Party has no control (“Force Majeure”). Such causes include wars, hostilities between states, terrorist acts, national strikes and lock-outs, national or international transport strikes, publicly laws, ordinances and regulations, embargoes, governmental acts and acts by governmental agencies, natural disasters, storms, fires, explosions or other similar contingencies beyond the reasonable control of a Party, which leads to the inability to perform its obligations under the Contract.
Either Party who desires to declare Force Majeure due to any of the causes listed above shall notify the other Party in writing of the reasons for non-fulfilment or delays in fulfilment of its obligations under the Contract due to the intervention within 15 days of the occurrence of the event, and shall propose to the other Party any equitable remedy for such non-fulfilment or delays in fulfilment of its obligation under the Contract. If the Force Majeure event should continue beyond 30 days, then the Parties shall meet to discuss and agree on how to proceed.
5.5 No other warranties, obligation or liabilities:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUPPLIER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THERE ARE NO EXPRESS WARRANTIES BEYOND THOSE EXPRESSLY STATED IN THE CONTRACT. WITHOUT LIMITATION OF THE FOREGOING, SUPPLIER SHALL NOT IN ANY EVENT HAVE ANY OBLIGATIONS OR LIABILITIES TO CUSTOMER OR ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF USE OR INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER THEORY OR FORM OF ACTION, EVEN IF SUPPLIER HAS BEEN ADVISED, OR OTHERWISE IS AWARE, OF THE POSSIBILITY THEREOF, ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, SALE, DELIVERY OR USE OF THE PRODUCT, OR ANY FAILURE OR DELAY IN CONNECTION WITH ANY OF THE FOREGOING OR FOR BREACH OF ANY WARRANTY SET FORTH HEREIN. WITHOUT LIMITING THE GENERALITY OF THE PRECEDING SENTENCE, SUPPLIER SHALL NOT BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR PERSONAL INJURY OR PROPERTY DAMAGES.
6 MISCELLANEOUS PROVISIONS
6.1 Termination - Cancellation
In case there is a material breach of one or more material provisions of the Contract by one Party (the “Breaching Party”), the Breaching Party shall endeavor to remedy the matter as soon as possible to the reasonable satisfaction of the other Party (the “Non-Breaching Party”). Unless the remedies of the relevant matter are obtained within 60 (sixty) days following notification in writing of the Non-Breaching Party, the Non-Breaching Party shall have the right to terminate the Contract with immediate effect by providing the Breaching Party a written notice.
Termination of the Contract for any reason shall not affect any obligation arising prior to the effective date of termination and any obligation which by its nature is intended to survive the termination of the Contract. Termination of the Contract by one Party shall not affect any deliveries made by Supplier prior to the termination of the Contract and any payment and pick-up obligations by the Customer for placed orders.
During the term of the Contract and at any time thereafter, each Party agrees to keep confidential and not to disclose to any person the existence or the terms of the Contract, nor any information relating to the Product or any other aspect of the other’s business practice or relationships, organization, technology, production methods or any other information that by its nature is confidential, proprietary or a trade secret, with the exception of in respect of employees, professional and financial advisors and institutions with a need to know within the normal activities of the Parties and then only when these have signed nondisclosure or secrecy agreements or perform under confidential professional/banking relationship rules and regulations. The obligation of confidentiality shall not extend to information which is publicly known or which a party is obligated to disclose by law, regulation, a court or administrative decision that may not be appealed or the rules of a stock exchange where the Party’s, or the Party’s direct or indirect ultimate owner’s, shares are listed.
6.3 Governing language
The Parties hereby confirm that they have agreed that all written documents between them shall be prepared in the English language only and such language shall be the governing language for the Contract and all communications in relation thereto. Communications between the Parties in any other language shall have no legal effect on the rights and obligations of the Parties.
6.4 Choice of law – Dispute resolution
This Agreement shall be governed by and interpreted in accordance with the laws of Hong Kong. The parties hereby submit to the Exclusive jurisdiction of the court of Hong Kong. Any dispute, claim or controversy arising under or relating to this Agreement, including without limitation any dispute concerning the existence or enforceability hereof, shall be resolved by arbitration to be held in Hong Kong. The dispute shall be settled by a sole arbitrator to be appointed by the parties to the dispute. If the parties to the dispute are unable to appoint a sole arbitrator by way of mutual consent, the arbitration shall be conducted by 3 (three) arbitrators appointed in the manner set forth hereafter. The claimant (or claimants, if there is more than one claimant, acting jointly,) shall appoint 1 (one) arbitrator in its request for arbitration (“Request”). The respondent (or respondents, if there is more than one respondent, acting jointly,) shall appoint 1 (one) arbitrator within 30 (thirty) days of receipt of the Request and shall notify the claimant(s) of such appointment in writing, and the 2 (two) arbitrators so appointed shall be entitled to appoint the third arbitrator who will act as umpire of the arbitral tribunal. The language of the arbitration shall be English. Any arbitration award by the arbitral tribunal shall be final and binding upon the Parties, shall not be subject to appeal, and shall be enforced by judgment of a court of competent jurisdiction.
Any and all disputes, differences or claims arising out of or in connection with this Agreement, including any question regarding its existence, validity, breach, termination, interpretation or performance (the “Dispute”), shall be settled, if possible, by negotiation of the Parties. If the matter is not resolved by such negotiations, either Party may, by the giving of written notice to the other Party, refer the Dispute to a meeting of appropriate higher management of the Parties. Such meeting shall be held within ten (10) days following the giving of the written notice. The Parties shall then have a further ten (10) days (unless extended by mutual agreement) to resolve the Dispute.
The language of the arbitration shall be English.
Version 1.2 | 26.11.2021