General Terms & Conditions for Customers
- In these Conditions:
“Conditions” means these general terms and conditions for the sale of Goods, which are incorporated into and form part of the Order, and includes any special terms and conditions agreed in writing between Purchaser and Seller.
“Confirmation” means Order signed by Purchaser’s authorized representative.
“Contract” means the agreement between Purchaser and Seller for the purchase and sale of Goods, comprising:
I. the Order;“Delivery Date(s)” a delivery schedule will be issued by Seller following completion of DTS.
II. the Warranty;
III. the Project Construction Drawing Set which consists of the layout/assembly signed by Purchaser;
IV. the documents (if any) incorporated by express reference on the face of the Order or the Confirmation;
V. and these Conditions.
“Delivery Time Stamp Date” (“DTS”) means the date the Seller receives all of the following from the Purchaser: signed Order (also known as a sales order), purchase order, project construction drawing approval and the payment of the deposit. Changes to the Order may reset DTS and delay Delivery Date(s).
“Goods” means the products manufactured by Seller or its affiliates which Seller is to supply in accordance with these Conditions.
“Order” means the Seller’s sales order confirming the supply of Goods or performance of Services placed by Purchaser.
“Party” means Seller or Purchaser, (collectively the “Parties”).
“Purchaser” means the person, firm or company that places the Order for Goods.
“Purchase Order” means the written authorization from Purchaser for Seller to deliver goods under agreed terms on the Order.
“Seller” means GameChange Solar LP referred to on the face of the Order with whom the Contract is made by Purchaser.
“Services” means Geotechnical surveys, Pull Testing and/ or Engineering Services.
- The headings in these Conditions are for convenience only and shall be ignored in construing these Conditions and shall not affect their interpretation.
- Words (including words defined in the Contract) importing the singular also include the plural and vice versa where the context requires. The words “written” and “in writing” include any means of visible reproduction.
- In these Conditions:
Basis of the SaleThese Conditions are the only terms which govern the Order issued by the Seller. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the Order, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Conditions. The accompanying Order and these Conditions comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Conditions prevail over any of Purchaser’s general terms and conditions of purchase regardless whether or when Purchaser has submitted its purchase order or such terms. Fulfillment of Purchaser’s order does not constitute acceptance of any of Purchasers terms and conditions and does not serve to modify or amend these Conditions.
Amendment and ModificationThese Conditions may only be amended or modified in a writing which specifically states that it amends these Conditions and is signed by an authorized representative of each party.
Orders, Specifications and Cancellations
- Seller shall send to Purchaser the Order specifying the type of Goods or Services, quantity, price, and payment terms among other terms specific to the Order.
- The Order shall be deemed to be accepted by Purchaser upon completion of DTS requirements, when Seller shall commence manufacturing and issue the Delivery Dates (also referred to as a delivery schedule).
- The Purchaser may request to change the Order only before raw materials have been purchased prior to manufacturing commencement. The Purchaser’s request will be accepted only at Seller’s discretion. All Purchaser requested changes made after raw materials are purchased will not be accepted, however, at Seller’s discretion, changes may be accepted at a cost to Purchaser.
- Purchaser may not cancel the Order after Confirmation.
- Deposits paid are not refundable.
- If Purchaser requests delays to Delivery Dates by more than 2 weeks, Seller will ship in accordance with the delivery schedule, to the extent Goods have been manufactured and will either: i) ship the goods to Purchaser’s requested delivery address; ii) ship the goods to an indoor storage facility provided by Purchaser. Title and risk of loss will transfer to Purchaser upon delivery of goods to the storage facility; or iii) ship the goods to a storage location provided by Seller and at cost to Purchaser.
- Storage fee of 1.5% per month on the value of the stored Goods will be charged to Purchaser
- Total price of the Order is based on panel wattage, unless otherwise notified, of the ordered racking system and shall be adjusted if such wattage, sizes and/or quantity of any of the Goods or shipping destination of the Goods should change after Confirmation with the Seller providing an updated Sales Order with adjusted price. Prices may adjust after pull test results.
- If for any reason Purchaser fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s Delivery Dates, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Purchaser has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Purchaser; and (ii) the Goods shall be deemed to have been delivered. Any cost incurred by Seller shall be borne by Purchaser.
- Seller may, at its discretion, deliver Goods ahead of delivery schedule.
- The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary.
- The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 24 hours of the date when the Goods would in the ordinary course of events have been received.
- Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time.
Inspection and Rejection of Nonconforming Goods
- Purchaser shall inspect the Goods within 24 hours of the Delivery Date (”Inspection Period”). Purchaser will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Seller’s bill of materials.
- If Purchaser timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace or repair such Nonconforming Goods with conforming Goods, within a mutually agreed time frame.
- Purchaser acknowledges and agrees that the remedies set forth in Section 6.2 are Purchaser’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6.2, all sales of Goods to Purchaser are made on a one-way basis and Purchaser has no right to return Goods purchased under this Agreement to Seller.
Invoicing and Payment
- Purchaser shall pay all invoiced amounts due to Seller within 30 days from the date of Seller’s invoice. Purchaser shall make all payments hereunder by wire transfer and in US dollars. Each Party shall be responsible for its own bank charges.
- Purchaser shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Purchaser fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
- Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
- If deliveries are delayed by Purchaser by more than 2 weeks from the Delivery Dates, Seller shall invoice for Goods at the end of such two-week period.
Packaging and Shipping MarksThe Goods shall be packed per industry practice in a manner suitable for long distance transportation. Packaging costs shall be borne by Seller and packaging materials shall become the property of Purchaser upon delivery. Purchaser shall be responsible for disposal of the packaging materials in compliance with applicable laws. Seller shall mark the consignee, place of destination, and other standard shipping marks on each shipment of the Goods. Costs associated with any special packaging requests made by Purchaser shall be paid for by Purchaser.
Title and Risk of LossTitle and risk of loss passes to Purchaser upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Purchaser hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
- Seller warrants to Purchaser that, at the time of delivery to Purchaser as stated in the Contract, the Goods provided by Seller hereunder shall comply in all respects with the specifications stipulated in the Warranty, that such Goods will materially conform to the specifications set forth in Contract.
- EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9.1 SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
- The Seller shall not be liable for a breach of the warranty set forth in Section 10.1 unless: (i) Purchaser gives written notice of the defect, reasonably described, to Seller within 10 days of the time when Purchaser discovers or ought to have discovered the defect; and (ii) Seller reasonably verifies Purchaser’s claim that the Goods are defective.
- The Seller shall not be liable for a breach of the warranty set forth in Section 10.1 if: (i) Purchaser makes any further use of such Goods after giving such notice; (ii) the defect arises because Purchaser failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Purchaser alters or repairs such Goods without the prior written consent of Seller.
- Subject to Section 10.3 and Section 10.4 above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: repair or replace such Goods (or the defective part). The return of Goods to the Seller shall be at Purchaser’s expense.
- THE REMEDIES SET FORTH IN SECTION 10.5 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.1
Limitation of LiabilityIN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THESE CONDITIONS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED 25% OF THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER.
- The Seller shall not be liable or responsible to Purchaser, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any Condition of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage, provided that, if the event in question continues for a continuous period in excess of 60 days, Purchaser shall be entitled to give notice in writing to Seller to terminate this Agreement, Governing Law and Jurisdiction.
- All matters arising out of or relating to this Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York.
TaxesPurchaser bears all risk for state and local sales and use taxes (and if applicable, shall provide Seller with any applicable reseller’s certificate or similar document regarding such).
Intellectual PropertyPurchaser acknowledges that Seller retains all intellectual property rights (collectively, “Intellectual Property”), including, but not limited to, the ideas, concepts, techniques, inventions (whether patented, patentable or not), trade secrets, processes, Seller’s trademarks or works of authorship comprising, embodied in, or practiced in connection with the Goods. Purchaser shall not directly or indirectly attack or impair the ownership or title of Seller to the Intellectual Property, the validity of the Contract, or any of Seller’s registrations or applications relating to any Intellectual Property in any jurisdiction. Purchaser agrees that it shall not file any state, federal or foreign applications to register any of the Intellectual Property, in whole or in part, or any intellectual property that infringes any of the Intellectual Property, in any jurisdiction. Notwithstanding anything in the Contract to the contrary, Purchaser specifically acknowledges that no license or right to make or sell the Goods is granted by Seller to Purchaser. Any enhancement, refinement or other improvement of any Product shall be owned exclusively by Seller.
ConfidentialityAll non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with these Conditions is confidential, solely for the use of performing these Conditions and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Purchaser shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
TerminationIn addition to any remedies that may be provided under these Conditions, Seller may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under this; (ii) has not otherwise performed or complied with any of these Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
WaiverNo waiver by Seller of any of the provisions of these Conditions is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from these Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
AssignmentPurchaser shall not assign any of its rights or delegate any of its obligations under these Conditions without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under these Conditions.
Relationship of the PartiesThe relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party BeneficiariesThese Conditions is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Conditions.
Submission to JurisdictionAny legal suit, action or proceeding arising out of or relating to these conditions shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York and County of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
NoticesAll notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or email (providing receipt thereof is confirmed) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
IndemnificationPurchaser shall indemnify, defend and hold harmless Seller and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Conditions and the cost of pursuing any insurance providers, incurred by Indemnified Party relating to any claim of a third party or Seller arising out of or occurring in connection with the products purchased from Seller or Purchaser’s negligence, willful misconduct or breach of these Conditions. Purchaser shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.
SeverabilityIf any term or provision of these Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction.
SurvivalProvisions of these Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Conditions including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.