GENERAL SALES CONDITIONS OF PHOTOVOLTECH NV - SA
Article 1 – General sales conditions
The scope of sales and deliveries shall be determined by specific written declarations of Photovoltech (the offer) and the buyer (the acceptance) (hereinafter referred to as the “parties”).
The offer and the acceptance form together the agreed purchase order (hereinafter referred to as the “agreed purchase order”).
The agreed purchase order and the general sales conditions constitute the entire agreement (hereinafter referred to as the “contract”) between Photovoltech and the buyer subject to any mutually agreed written amendments.
Supplements, modifications or additional verbal agreements to the agreed purchase order require written confirmation by Photovoltech to become effective.
Unless otherwise expressly agreed in the agreed purchase order, the present general sales conditions of Photovoltech, well known and accepted by the buyer, shall apply for the sale and supply of photovoltaic solar cells and/or modules (hereinafter together referred to as the “products”). These general sales conditions shall in any case have precedence over any general terms and conditions of the buyer. Buyer’s terms and conditions shall only become valid if Photovoltech has expressly accepted in advance such terms and conditions in writing.
If a part of Photovoltech’s general sales terms and conditions is held invalid, void or unenforceable under any particular national or international legislation, it shall not affect the remaining parts of the terms and conditions. Photovoltech reserves all rights, title and interest in all intellectual property rights to specifications, drawings and other documents (hereinafter jointly or separately referred to as the “documents”), provided to the buyer. The buyer shall not make available documents to third parties without the prior written consent of Photovoltech and, upon reasonable request of Photovoltech, shall immediately return these to Photovoltech.
Article 2 – Offers (quotations) and Ordering
Offers are only binding when confirmed in writing by Photovoltech.
Photovoltech reserves the right without compensation to the buyer to withdraw an offer as long as the buyer did not order yet.
The Parties are bound and therefore the purchase order is agreed on once Photovoltech receives the written acceptance of the buyer to its offer.
The prices mentioned in the offer are prices excluding VAT and apply in respect of requirements as known to Photovoltech when the offer is made regarding properties of material, measurement tolerances and machining conditions as well as in respect of the specified quantities. Subsequent requests for modification require Photovoltech’s specific written confirmation and entitle Photovoltech to amend the price and extend the agreed time limits.
Photovoltech reserves the right, without compensation to the buyer, to review the quantities to be delivered as stated in the agreed purchase order according to the quantities available to Photovoltech at the respective delivery times.
Article 3 - Delivery times
Delivery times indicated by Photovoltech are approximate. They are given for convenience only and shall not be binding on Photovoltech.
In the event of late deliveries, no penalty or interest may be applied, even after formal notification, except of proven unlawful misconduct or gross negligence of Photovoltech.
However, in the event one of such delivery times is exceeded by more than six (6) weeks, the buyer shall have the right to terminate the contract with no compensation or penalty due from Photovoltech.
Article 4 – Force Majeure
On giving timely notice to the buyer, Photovoltech shall have the right either to suspend the performance of the contract or to restrict its deliveries and equitably allocate and distribute among its long term customers the products it has in stock at the time of the event, in case of any unforeseeable event which is beyond its control and temporarily prevents it from complying with its delivery obligations. These events are hereinafter referred to as “Events of Force Majeure”.
If such event prevents delivery indefinitely, the contract shall be deemed terminated automatically.
Events of Force Majeure shall not give rise to any compensation or penalty from Photovoltech. Events of Force Majeure are such as: lock-out, total or partial strikes, import or export restrictions, epidemic, war, requisition, fire, flood, accident or breakdown of factory equipment, rejection of major parts during manufacture, trade embargoes or blockage and accidents of all kinds even those occurring in transit, unavailability of packaging or means of transport, shortage of products or raw materials, restrictions of all kinds arising either in Belgium or in the buyer country, market disturbance by decision of any authority whatsoever, any occurrence restricting Photovoltech’s ability to purchase, produce, transport, import, export, unload or distribute the products or raw materials, either at Photovoltech’s premises or those of its subcontractors and suppliers, any other cause leading to lay-offs or part-time work by Photovoltech or Photovoltech’s suppliers or any other act or event beyond Photovoltech’s control. Photovoltech will 2 provide the buyer with timely information concerning the above-mentioned events.
Article 5 - Delivery and acceptance
Photovoltech shall provide appropriate packaging, according to the standard conditions of transportation and shipping. Packaging shall not be returned to Photovoltech.
Within the European Union (EU), the delivery of products shall be made Ex Works (EXW), and outside the EU, the delivery of products shall be made Carriage and Insurance Paid (CIP), both according to the Incoterms 2000 (as possibly amended). Places of delivery are restricted to the central warehouse of the buyer to be agreed upon in the agreed purchase order.
Photovoltech’s obligation as to delivery shall be deemed to have been satisfied by the delivery of the quantity of products meeting the agreed specifications slightly at variance with the quantity stipulated in the agreed purchase order. Photovoltech is entitled to make partial deliveries of products.
Any divergence from the agreed specifications consistent with the standards of the industry shall be deemed accepted by the buyer without any liability whatsoever being incurred by Photovoltech.
The buyer is obliged to examine delivered products with respect to defects and to notify any detected or detectable defects within eight (8) days after receipt of the products.
Under no circumstances may products be returned to Photovoltech without its prior written consent.
In the absence of any such notification, all products delivered under the same agreed purchase order shall be deemed to have been accepted, and all warranties and remedies by Photovoltech with regard to detected or detectable defects shall be excluded.
Photovoltech shall be entitled to suspend any delivery under an agreed purchase order, if the buyer is reasonably expected not to be able to pay the amounts, which will become due and payable under the agreed purchase order. In case of a delivery suspension, any agreed delivery date shall be postponed according to the time of the delivery suspension. Photovoltech shall not be entitled to impose a delivery suspension if the buyer provides Photovoltech with adequate securities (e.g. bank guarantee) to Photovoltech’s reasonable satisfaction. If the delivery suspension lasts for more than thirty (30) days and the buyer does not provide Photovoltech with an adequate security, Photovoltech shall be entitled to terminate the agreed purchase order. The buyer shall pay any storage costs incurred by Photovoltech during the delivery suspension period. They shall amount to 0,5% of the total price of the agreed purchase order but no more than 5% of the total price of the agreed purchase order.
If dispatch or delivery is delayed at the buyer’s request after notice was given of the readiness of dispatch, the buyer may be charged storage costs for every month started, to the amount of 0,5% of the total price of the agreed purchase order for every month started but not more than 5% of the total price of the agreed purchase order.
Article 6 – Prices and terms of payment
Prices are based on the applicable term of the Incoterms 2000 (as possibly amended) as stated under article 5 and include Photovoltech’s standard packaging. Relevant VAT and all additional costs shall be added to the price. All prices are based on the general price list of Photovoltech in force at the date the Parties are bound, as stated under article 2.
Prices payable for the products may at any time be adjusted by Photovoltech as a result of any factor affecting price structure, such as taxation, salaries, transportation and insurance costs and raw materials prices, always subject, however, to the buyer’s right to notify Photovoltech of its disagreement upon receipt of the notice of the change in price and, if no agreement on the new price is reached within ten (10) days pursuant to that notification, the contract shall be deemed to have terminated without due compensation by Photovoltech with respect to the outstanding deliveries.
Payments for any agreed purchase order shall be made within thirty (30) days from the date of Photovoltech’s invoice. Such invoice shall not be dated before the date of shipment. All payments shall be made in EUR. In case of partial delivery of products of any agreed purchase order, the buyer shall make payments for such partial deliveries within thirty (30) days from the date of Photovoltech’s invoice.
In case of late payment, from the 31st day onwards, the amount recoverable by Photovoltech shall automatically and without prior notice be increased by interest for late payment at the Euribor rate, for a six months period, increased with seven (7) full percentage points per annum.
In case of late payment, Photovoltech shall have the right to require reasonable damages for all relevant recovering fees incurred due to late payment (including in-house counsel fees).
Any disagreement regarding invoices does not allow the buyer to postpone the ultimate payment date for the accepted part of the invoice.
Article 7 - Risk of loss and retention of title
Except to the extent set out to the contrary in the agreed purchase order, the products shall remain the exclusive property of Photovoltech until the invoice, interest for late payment and any other payments due by the buyer are paid in full. So long as the price and other payments shall not have been paid in full, the buyer undertakes not to alter, modify or otherwise amend the labeling on the packaging and products and in general not to modify the means of identification of the products. The buyer undertakes further to identify and store the products delivered under the agreed purchase order in such a manner that they cannot be confused with any other similar products sourced from 3 other suppliers. The buyer shall inter-alia keep an inventory of the products and store them apart from other products.
Where this separate identification is not possible due to the nature of the storage of the products, or the nature of the products themselves, the products as mixed shall be deemed to be the property, in part, of Photovoltech and for the other part of the buyer according to the respective quantities mixed. Any withdrawal or disposal of any part of the products by the buyer shall be deemed to be a withdrawal from or a disposal of the part belonging to the buyer first until the whole of such part shall have been withdrawn or disposed of.
If the buyer has not so separately identified the products, Photovoltech shall have the right, inter-alia, to re-possess any goods of the same type and of the same quality still found to be in inventory up to the value of products for which payment has not been received, or to require the repayment of its products and to suspend any future delivery.
The above provisions are without prejudice to the transfer to the buyer if the risk in the products is in accordance with article 5 of the general sales conditions.
If full payment has been made before the delivery of the products, ownership of the products will only pass on to the buyer at the time of the transfer of the risk. The buyer shall obtain exclusively at its costs, with an insurance company of financial repute, insurance coverage indemnifying against the risk/damage which the products may incur or themselves cause from the time they are made available and until full payment of the price, and Photovoltech shall be the beneficiary of any indemnity which might be paid by the insurance company. The buyer undertakes to communicate details of the insurance policy to Photovoltech on demand and give evidence of the payment of the insurance premiums.
In case of arrest or seizure or any other protective measure by a third party on, or in respect of the products or any mixture thereof, the buyer shall undertake all possible steps to defend any such claim by a third party and to notify Photovoltech of such claim without delay so as to allow Photovoltech to resist such claim and protect its rights. The buyer undertakes neither to pledge nor to grant by any other means any right or interest in the products or the ownership therein by way of security or otherwise.
Until such time as the price is fully paid, the buyer may only use or process the products for its normal business activities and transformation, for consumption and resale. In case of resale of the products to a third party, the buyer undertakes to inform such third party of Photovoltech’s retention of title and to inform this latter of the transfer so as to enable Photovoltech to exercise its rights to reclaim the resale price from the third party.
In the event of transformation, incorporation or assembly of the products, the buyer shall be deemed to have performed such transformation, incorporation or assembly for and on behalf of Photovoltech. The ownership of the products resulting from the transformation, incorporation or assembly is thus transferred by the buyer to Photovoltech as a guarantee for the original claim of this latter.
The authority to resell, process, consume, transform, incorporate or assemble the products as herein set out shall automatically be deemed to be withdrawn in its entirety if the buyer falls to make payment on or before the payment date or where the buyer is found bankrupt, insolvent, or a winding up order of the buyer is made or a resolution for its voluntary winding up passed or a liquidator, is appointed or a winding up petition or petition for an administrative or similar order is presented under any applicable law. Furthermore, the buyer may, without prejudice to the above provisions, deem the sale as having terminated automatically without notice and without prejudice to the rights of Photovoltech to claim damages.
In the event the sale has been terminated or in the event of any breach by the buyer of one of the provisions above, Photovoltech shall have the right to re-possess immediately the products in any place where they might be located, without any prior notice or need to initiate legal action, at the cost and at the risk of the buyer. The buyer undertakes to allow access to its premises to the representatives or appointees of Photovoltech, so as to allow them to re-possess the products.
The buyer shall inform Photovoltech without delay regarding any obligation to register a retention of title in an official register or any other formal obligation necessary to be valid in the country where the products shall be delivered. The buyer shall at its own costs fully cooperate, assist and give all consents to Photovoltech regarding any formal obligation necessary to achieve a valid retention of title.
Article 8 –Modules warranty
The remedy set forth in the paragraphs below shall be the sole remedy provided under this warranty. This limited warranty set forth herein does not apply to module uses departing from generally accepted standard practices for photovoltaic modules. For instance, this guarantee does not apply in case of misuse, negligence or lack of caution, or module which has been damaged through abuse, alteration, improper installation, or application, or negligence in use, storage, transportation or handling, or has been repaired, or in any way tampered with. This warranty does not cover any transportation costs for return of modules, or for reshipment of any repaired or replaced module, or cost associated with installation, removal or reinstallation of modules.
Mechanical warranty
Photovoltech warrants the modules to be free from defects in materials and workmanship. The duration of the present warranty is sixty (60) months from the date of the purchase order agreed with the initial buyer. Claims under the warranty shall only be receivable if the customer can provide the evidence that module malfunctions result exclusively from defects in materials and/or workmanship.
If the product fails to comply with this warranty, Photovoltech will, at its option, either repair or replace the product, or refund the purchase price. This warranty does not cover failure of products due to unprofessional application, installation or use, or to special conditions of use unknown to Photovoltech.
Electrical warranty
For glass-Tedlar® modules with a power superior of 75 Watts (except for use in marine, tropical or equatorial environments): If, within twelve (12) years from the date of the purchase order agreed with the initial buyer, any module has a power output below 90% or within twenty-five (25) years, a power output below 80% of the minimum power specified at time of that agreed purchase order, as measured at Photovoltech in both cases, then, provided that such loss in power is determined by Photovoltech at its sole discretion to be solely due to materials or workmanship, Photovoltech shall replace such loss in power by either providing the buyer with additional modules to make up the total wattage loss, at the cost pro-rated for the time in service of the faulty module, or by repairing or replacing the module, at the option of Photovoltech.
For glass-Tedlar® modules with a power superior of 75 Watts in a marine, tropical or equatorial environments: If, within fifteen (15) years from the date of the purchase order agreed with the initial buyer, any module has a power output below 80% of the minimum power specified at time of that agreed purchase order, as measured at Photovoltech, then, provided that such loss in power is determined by Photovoltech at its sole discretion to be solely due to materials or workmanship, Photovoltech shall replace such loss in power by either providing the buyer with additional modules to make up the total wattage loss, at the cost pro-rated for the time in service of the faulty module, or by repairing or replacing the module, at the option of Photovoltech.
If the buyer would have a claim that could be covered by warranty, he must notify Photovoltech without delay and with all relevant documents. Photovoltech will give advice on handling the claim.
Photovoltech will not accept the return of any modules unless it has given prior written authorization.
Article 9 – Product liability
Any liability of Photovoltech for damages shall in no event exceed two hundred fifty thousand EURO (€ 250 000) per event or series of related events, except mandatory law about product liability.
However, Photovoltech will not be liable at all in case of gross negligence and/or misuse of the product by the Buyer.
Article 10 – Export control
The supply of products may be subject to laws, customs and export control regulations of the Kingdom of Belgium and the European Union (EU). Each party shall comply with such laws, customs and regulations and shall not export the products without first obtaining all required governmental authorizations or licenses.
Notwithstanding anything to the contrary in these general sales conditions or any agreed purchase order, Photovoltech shall in no event be obliged to deliver any product or perform any of its obligations under these general sales conditions or any agreed purchase order until the required approvals relating to the export regulations above mentioned have been obtained. Each party agrees to provide the other party with such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. Photovoltech shall be entitled to terminate any agreed purchase order or any part thereof, if the respective necessary approval(s) according to the applicable export regulations can not be obtained within a reasonable time period .
Article 11 - Disputes
The general sales terms and conditions are governed and shall be interpreted in accordance with the laws of Belgium and the Incoterms 2000 (as possibly amended). In the event of a dispute concerning the interpretation or performance of these general sales terms and conditions, the Court of Commerce of Brussels shall have exclusive jurisdiction (unless otherwise required by prevailing legislation), irrespective of any terms and conditions of sale and accepted method of payment, even in the event of closely related legal proceedings, recourse to a guarantor or plurality of sellers.
