NOTICE: Sale of any Products or Services is expressly conditioned on Buyer’s assent to these Terms and Conditions. Any acceptance of Green Power Solutions’s offer is expressly limited to acceptance of these Terms and Conditions and Green Powewr Solutions (Seller) expressly objects to any additional or different terms proposed by Buyer. No Buyer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase products or receive services shall constitute Buyer’s assent to these Terms and Conditions.
Unless otherwise specified in the quotation, Seller’s quotation shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s conforming acceptance.
Index
1 Definitions
2 Payment
3 Taxes and Duties
4 Deliveries; Title Transfer; Risk of Loss; Storage
5 Warranty
6 Changes
7 Limitations of Liability
“Buyer”: the entity to which Seller is providing Products or Services under the Contract.
“Contract“: either the contract agreement signed by both parties, or the purchase order signed by Buyer and accepted by Seller in writing, for the sale of Products or Services, together with these Terms and Conditions, Seller’s final quotation, the agreed scope(s) of work, and Seller’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
“Contract Price”: the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.
“Hazardous Materials”: any toxic or hazardous substance, hazardous material, dangerous or hazardous waste, dangerous good, radioactive material, petroleum or petroleum-derived products or byproducts, or any other chemical, substance, material or emission, that is regulated, listed or controlled pursuant to any national, state, provincial, or local law, statute, ordinance, directive, regulation or other legal requirement of the United States (“U.S.”) or the country of the Site.
“Insolvent/Bankrupt”: that a party is insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for it or any of its assets, or files or has filed against it a proceeding under any bankruptcy, insolvency dissolution or liquidation laws.
“Products”: the equipment, parts, materials, supplies, services, software, and other goods Seller has agreed to supply to Buyer under the Contract.
“Seller“: means Green Power Solutions, the entity providing Products or performing Services under the Contract.
“Services”: means the services Seller has agreed to perform for Buyer under the Contract.
“Site”: means the premises where Products are used or Services are performed, not including Seller’s premises from which it performs Services.
“Terms and Conditions”: these “Terms and Conditions for Sale of Products and Services, together with any modifications or additional provisions specifically stated in Seller’s final quotation or specifically agreed upon by Seller in writing.
2.1 Buyer shall pay Seller for the Products and Services by paying all invoiced amounts in Euro (if not otherwise stated on Seller’s order acknowledgement) according to the Payment schedule indicated on Seller’s invoice, without set-off for any payment from Seller not due under this Contract.
All quoted prices are subject to revision at any time in the event of any increase in raw material, energy costs or governmental actions such as tariffs.
Buyer shall pre-pay any possible banking cost on its side.
For each calendar month, or fraction thereof, that payment is late, Buyer shall pay a late payment charge computed at the rate of 1.0 % per month on the overdue balance, or the maximum rate permitted by law, whichever is less.
Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Contract (“Seller Taxes”).
Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority on Buyer or Seller or its subcontractors) in relation to the Contract or the performance of or payment for work under the Contract other than Seller Taxes (“Buyer Taxes”). The Contract Price does not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Contract Price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes.
4.1 Seller shall deliver Products to Buyer EXW Seller’s facility ( GPS – Caselle T.se, Torino, Italy ) according to Incoterms ICC 2010 latest issue: Buyer shall pay all delivery costs and charges.
Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by Seller of all information necessary to proceed with the work without interruption.
If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Buyer shall so notify Seller within ten (10) days after receipt.
The risk of damage to the Products shall pass to the Buyer in accordance with the agreed delivery terms according to Incoterms in force at the formation of the Contract. If not agreed otherwise, the Incoterms 2010 delivery term “Ex works” (EXW) shall apply. If, in the case of delivery Ex works, the Supplier, at the Buyer’s request, undertakes to send the Products to the place determined by the Buyer, the risks of loss of or damage to the Products shall pass to the Buyer no later than when the Products are handed over to the first carrier.
4.4 If any Products to be delivered under this Contract or if any Buyer equipment repaired at Seller’s facilities cannot be shipped to or received by Buyer when ready due to any cause attributable to Buyer or its other contractors, Seller may ship the Products and equipment to a storage facility, including storage at the place of manufacture or repair, or to an agreed freight forwarder. If Seller places Products or equipment into storage, the following apply:
(a) title and risk of loss immediately pass to Buyer, if they have not already passed, and delivery shall be deemed to have occurred;
(b) any amounts otherwise payable to Seller upon delivery or shipment shall be due;
(c) all expenses and charges incurred by Seller related to the storage shall be payable by Buyer upon submission of Seller’s invoices;
(d) when conditions permit and upon payment of all amounts due, Seller shall make Products and repaired equipment available to Buyer for delivery.
4.5 If repair Services are to be performed on Buyer’s equipment at Seller’s facility, Buyer shall be responsible for, and shall retain risk of loss of, such equipment at all times, except that Seller shall be responsible for damage to the equipment while at Seller’s facility to the extent such damage is caused by Seller’s negligence.
5.1 Seller warrants that Products shall be delivered free from defects in material, workmanship and title and that Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications.
5.2 The warranty for Products shall expire one (1) year from first use or eighteen (18) months from delivery, whichever occurs first. The warranty for Services shall expire one (1) year after performance of the Service.
5.3 If Products or Services do not meet the above warranties, Buyer shall promptly notify Seller in writing prior to expiration of the warranty period.
Seller shall at its option, repair or replace defective Products and re-perform defective Services.
If despite Seller’s reasonable efforts, a non-conforming Product cannot be repaired or replaced, or non-conforming Services cannot be re-performed, Seller shall refund or credit monies paid by Buyer for such non-conforming Products and Services.
Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable warranty period. Buyer shall obtain Seller’s agreement on the specifications of any tests it plans to conduct to determine whether a nonconformance exists.
5.4 Buyer shall bear the costs of access for Seller’s remedial warranty efforts (including removal and replacement of systems, structures or other parts of Buyer’s facility), de installation, decontamination, re installation and transportation of defective Products to Seller and back to Buyer.
Seller may, in its sole discretion, assume only the cost of shipment of suspected non-conforming Product to its facility.
In any case Buyer is not allowed to ship until the Seller Material Return Authorization Number is issued.
5.5 The warranties and remedies are conditioned upon
(a) proper storage, installation, use, operation, and maintenance of Products,
(b) Buyer keeping accurate and complete records of operation and maintenance during the warranty period and providing Seller access to those records
(c) modification or repair of Products or Services only as authorized by Seller in writing.
Failure to meet any such conditions renders the warranty null and void. Seller is not responsible for normal wear and tear.
5.6 This Article 5 provides the exclusive remedies for all claims based on failure of or defect in Products or Services, regardless of when the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise. The warranties provided in this Article 5 are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. NO IMPLIED OR STATUTORY WARRANTY, OR WARRANTY OR CONDITION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.
6.1 Each party may at any time propose changes in the schedule or scope of Products or Services. Seller is not obligated to proceed with any change until both parties agree upon such change in writing. The written change documentation will describe the changes in scope and schedule, and the resulting changes in price and other provisions, as agreed.
6.2 The scope, Contract Price, schedule, and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change, after Seller’s proposal date, in Buyer’s Site specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations. However, no adjustment will be made on account of a general change in Seller’s manufacturing or repair facilities resulting from a change in laws or regulations applicable to such facilities. Unless otherwise agreed by the parties, pricing for additional work arising from such changes shall be at Seller’s time and material rates.
6.3 It shall be acceptable and not considered a change if Seller delivers a Product that bears a different, superseding or new part or version number compared to the part or version number listed in the Contract.
7.1 The total liability of Seller for all claims of any kind arising from or related to the formation, performance or breach of this Contract, or any Products or Services, shall not exceed the Contract Price.
7.2 Seller shall not be liable for loss of profit or revenues, loss of use of equipment or systems, interruption of business, cost of replacement power, cost of capital, downtime costs, increased operating costs, any special, consequential, incidental, indirect, or punitive damages, or claims of Buyer’s customers for any of the foregoing types of damages.
7.3 All Seller liability shall end upon expiration of the applicable warranty period, provided that Buyer may continue to enforce a claim for which it has given notice prior to that date by commencing an action or arbitration, as applicable under this Contract, before expiration of any statute of limitations or other legal time limitation but in no event later than one year after expiration of such warranty period.
7.4 Seller shall not be liable for advice or assistance that is not required for the work scope under this Contract.
7.5 If Buyer is supplying Products or Services to a third party, or using Products or Services at a facility owned by a third party, Buyer shall either (a) indemnify and defend Seller from and against any and all claims by, and liability to, any such third party in excess of the limitations set forth in this Article 7, or (b) require that the third party agree, for the benefit of and enforceable by Seller, to be bound by all the limitations included in this Article 7.
7.6 For purposes of this Article 7, the term “Seller” means Seller, its affiliates, subcontractors and suppliers of any tier, and their respective employees. The limitations in this Article 7 shall apply regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability (including negligence), strict liability or otherwise, and shall prevail over any conflicting terms, except to the extent that such terms further restrict Seller’s liability.