SCOPE
The term “Products” designates any product which is manufactured by and/or any service to be performed by PWRstation Holding or affiliates (hereinafter the “Seller”) for any person or entity which places an order to buy the Products (hereinafter the “Buyer”). The General Terms and Conditions of Sale herein contained govern the sale of any of PWRstation Products. Any order implies the full and complete acceptance of these terms excluding all other Seller or Buyer’s document. Unless accepted in writing by an executive officer of Seller, any terms or conditions in Buyer's offer to buy as transmitted to Seller in the form of a purchase order or otherwise, which are different from or which purport to add to, modify, supersede or otherwise alter the terms and conditions contained in these General Terms and Conditions, shall not be binding on Seller and will have no effect. No matter if drawings or instructions are given with the Products, no warranty is given. In case they are furnished, this is for indicative purpose only.
1 - Quotation - Purchase Order
Quotations are valid for thirty (30) days and are subject to change at any time prior to acceptance by Buyer. Purchase orders are valid only when expressly accepted by the Seller.
2 – Prices
Prices quoted are Ex-works, from PWRstation’s designated shipping point, according to the Incoterms ICC 2010 Ed. The invoices shall correspond to the actual quantities delivered. If, because of a drastic, unforeseeable and durable change in the economic conditions taken into account at the time the Contract was entered into by the Parties, and which is beyond the control of either Party, Seller would then no longer be able to continue performance of the Contract, the Parties would meet to define the adaptations to be brought to the Contract which will enable them to reduce the effects of such a situation. Should after a period of six (6) months from the date of the request for adaptation of the Contract sent by one of the Parties to the other, no agreement has been reached between the Parties, each Party may terminate the Contract, according to article 11 of these terms.
3 – Payment
Payment terms shall be on a Purchase Order and confirmed via Purchase Order Acknowledgment. If no payment terms are specified, payment shall be due 50% deposit in cash by wire to confirm the order, 30% on Bill of Lading, 20% within 3 days upon delivery of the goods by the carrier. Delivery lead time starts upon receipt of deposit. Payments shall be made in U.S. dollars unless otherwise agreed in writing. In the event of multiple deliveries on a Purchase Order, Seller may invoice Buyer for each delivery or aggregate multiple deliveries on a single invoice. Buyer shall pay invoices without any deductions, offsets, set offs or counterclaims.
4 – Delivery – Shipment
Seller will make all reasonable efforts to conform to the delivery schedule but in no event will Seller be liable for delays resulting from events of force majeure, as more fully described in Article 5 thereof. Delivery will be Ex-works from PWRstation’s designated shipping point according to the Incoterms ICC 2010 Ed. Risk of loss of Products shall pass to Buyer upon delivery. No liquidated damages for delay shall be accepted unless negotiated by the Seller and the Buyer prior to issuance of the concerned order and they will be the sole and exclusive remedy available to Buyer in case of delay for which Seller is liable. In case of delayed shipping attributable to Buyer, Seller shall be entitled to invoice the payment due at delivery and the warranty period shall commence as if delivery had taken place on the initially agreed upon delivery date. In addition,
Claims for shortages must be made within ten (10) days after delivery of Products at Buyer’s plant. No Product shall be returned to Seller without its prior written consent. In any case the costs and risks relating thereto shall be borne by Buyer. If Seller confirms the non-conformance of the Product, Buyer shall be entitled to a credit after the qualitative and quantitative verification of the returned Product. Subject to Seller's prior written consent, the Products may be inspected at Seller's factory at Buyer's cost and expense.
5 – Force Majeure
Seller shall not be considered in default in the performance of its obligations hereunder, or be liable in damages or otherwise for any failure or delay in performance which is due to strike, lockout, concerted act of workmen or other industrial disturbance, fire, explosion, flood or other natural catastrophe, civil disturbance, riot or armed conflict whether declared or undeclared, curtailment, shortage, rationing or allocation of normal sources of supply of labor, materials, transportation, energy, or utilities, accident, Act of God, delay of subcontractors or vendors, sufferance of or voluntary compliance with acts of government and government regulations (whether or not valid), embargo or any other cause whether similar or dissimilar to any of the causes or categories of causes described above and which is beyond the reasonable control of Seller. In the event of a delay arising from any of the above causes, the time of performance shall be extended by a period of time reasonably necessary to overcome the effect of the delay.
6 – Packing
Seller shall supply normal packing for underdeck export shipment, container shipment or air freight, as may be applicable. Special packing will be provided only if agreed to in writing by PWRstation and will be at Buyer’s expenses.
7 – IPR
The seller, which depending on the country may be PWRstation Holding SA or one of its subsidiaries, is mandated by PWRstation Holding SA to market and manage the "EXOrac" brand. PWRstation Holding SA has and retains exclusive ownership of the "EXOrac" trademarks, including the goodwill relating thereto. Seller shall have and retain sole ownership of the “PWRstation” Trademarks, including the goodwill pertaining thereto. Seller hereby grants to Buyer the right to market EXOrac in connection with its own brand. Buyer shall use and display its own Trademarks solely in connection with and solely to the extent reasonably necessary for the marketing, distribution, and support of Products within the Territory in accordance with the General Terms and Conditions of Sale. Buyer shall market, distribute, and support EXOrac only under Seller’s Trademarks, and not any other trademark or logo. Without the prior written consent of Seller, Buyer shall refrain from copying, reverse engineering, disassembling, decompiling, translating, or modifying any Products, or granting any other person or entity the right to do so. Ownership of drawings, bills of materials, flow diagrams, plot plans, details, specifications and other data prepared by Seller shall remain with Seller. Drawings, manuals, and other documentation so required to be supplied to Buyer shall be the property of Buyer, but Buyer agrees to use them solely for the purpose of facilitating, completing construction, maintenance, operation, modification, and repair of the Products supplied hereunder, and agrees not to disclose the same to third parties for other purposes without the written consent of Seller.
8 – Warranties
Seller warrants the Products manufactured by it to be free from defects in material and workmanship at date of delivery and for a period of five (5) years thereafter, under proper and normal use and service. Any remedy performed by Seller pursuant to Article 8 here below shall in no event extend the warranty period. The warranties and remedies set forth herein are further conditioned upon the proper receipt, handling, storage and installation of Seller's furnished Products, upon the Products not being operated beyond their rating and, in all respects, having been operated and maintained in a normal and proper manner and not having been subjected to accident, alteration, abuse or misuse. If, during the applicable warranty period, the Products manufactured by Seller are found to have been defective when delivered, they will be replaced without charge DDP Buyer’s initial facility of shipment, provided that Buyer gives Seller immediate written notice upon discovery of such defect, provides supporting pictures and or any other material demonstrating clearly the defects and that product remains available for Seller’s inspection at Buyer’s facility should Seller wishes to do so for a period of no less than twelve (12) months. In no event shall Seller be liable for the expenses of removal and reinstallation of the defective Products or defective parts of the Products. Seller shall have the option of removing and reclaiming the Products at its own expense and of repaying to Buyer all sums received on account of the purchase price, in which event all liability of Seller shall terminate. No allowance will be made for repair or alterations made without the written consent of Seller, in which event all Seller’s warranties shall be void and of no effect. All Seller’s warranties of the products are expressly set forth in Article 8 and are in lieu of any warranty of merchantability or of fitness for a particular purpose and other warranties of any kind, whether express or implied, in fact or by law, save for the implied warranties of seller’s title, its right to transfer the products and the freedom thereof from encumbrance. Unless otherwise provided, Seller only warrants the Products for the use it has been designed for, and not for the use the Buyer intends to, even if Seller has been informed by Buyer of its purpose.
9 – Limitation of Liability
Notwithstanding anything to the contrary contained in the contract, Seller’s aggregate liability arising out of or in connection with any contract or purchase order, which may be formed whether based on breach
of contract, statutory warranty, the law of tort or negligence, or otherwise, shall in no event exceed, in addition to the repair or provision of a replacement Product, 20% of the purchase price of the Product with respect to which any related claim may be made. This limitation of liability does not apply to corporeal damages. Seller shall not be liable for any special, indirect, incidental or consequential damages of any kind in contract or in tort including but not limited to loss of use, data, profit, income, business, anticipated savings, reputation as well as financing costs or increase in operating costs. Beyond these limits/exclusions, Buyer waives any right of recourse against Seller and its insurer and will obtain the same waiver from its own insurer; Buyer will indemnify and will keep Seller and Seller’s insurer free from any recourse if Buyer does not succeed in getting these waivers.
10 – Assignment
Any contract or purchase order between Seller and Buyer may be transferred or assigned by Seller in whole or in part to any subsidiary or affiliate of Seller or to any legal successor as a result of a legal reorganization such as spin -off, merger or solvent amalgamation. Buyer shall in no event be entitled to claim any right of termination of any contract or purchase order or to any indemnity whatsoever based on such assignment. Buyer may only transfer or assign in whole or in part any such contract or purchase order upon the prior written consent of Seller.
11 – Termination
Should Buyer be lead to terminate any contract or cancel any purchase order which was accepted by Seller, Buyer will be liable and agrees that there will be no penalty charged by the seller to the buyer, but the 50% deposit is kept by the seller without justification to cover any incurred damages and losses.
12 – Option to recover the Product
All sales made hereunder are made subject to the condition subsequent of Buyer’s payment of the price on time, failing which Seller has the option at its discretion to recover title to and possession of the Product. If after delivery, but prior to full effective payment, the Product is attached, or Buyer is subject to a bankruptcy proceeding, whether voluntary or not, Seller may then, at its option, recover title to and possession of the Product. The exercise of this option under this condition subsequent shall not affect Seller’s other remedies.
13 – Severability
In the event any provision or part of this General Terms and Conditions of Sale document is found to be invalid or unenforceable, only that particular provision or part so found, and not the entire Agreement, will be inoperative.
14 – Governing Law-Settlement of Disputes
Any contract or purchase order between Seller and Buyer which may be formed subsequent to the issuance of Seller's quotation shall be governed by and construed according to the laws of Switzerland with the exception of its conflict of law provisions. All disputes arising in connection with any contract or purchase order which may be formed subsequent to the issuance of this quotation shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators (unless the Parties can agree on the name of one single arbitrator) to be appointed in accordance with the said Rules. The arbitration shall take place in Lausanne, Switzerland.
15 – Compliance with laws and regulations
The Parties agree that, at all times in connection with and throughout the course of this contract and thereafter, they will comply and take reasonable measures so that, their subcontractors, agents or other third parties, who are subject to their control or decisive influence, will comply with the applicable anti-corruption laws which prohibit improper, illegal and corrupt payment, including without limitation any laws that implements the OECD Convention on Combating Bribery of Foreign Officials in International Business Transactions.