General sales terms and delivery conditions
- GOODS shall mean the materials and/or equipment and/or services, to be sold as specified in the CONFIRMATION OF ORDER and any part or component thereof.
- SELLER shall mean SolarWorld Africa (PTY) LTD.
- PURCHASER shall mean the person or company identified on the CONFIRMATION OF ORDER as the purchaser of the GOODS
- SUPPLIER shall mean any person or company (other than SELLER) having a contract with SELLER for the supply of the GOODS or a part thereof.
- CONFIRMATION OF ORDER shall mean SolarWorld Africa (PTY) LTD.’S written confirmation of the sale of GOODS ordered by PURCHASER, whereby reference is made to the GENERAL CONDITIONS OF SALE.
- GENERAL CONDITIONS OF SALE shall mean the terms and conditions as specified herein.
- END USER shall mean the person or company buying GOODS for his own use.
- The CONFIRMATION OF ORDER shall be solely governed by the GENERAL CONDITIONS OF SALE and any other conditions mentioned in the CONFIRMATION OF ORDER. The GENERAL CONDITIONS OF SALE shall form an integral part of the CONFIRMATION OF ORDER. If other specific conditions are mentioned in the CONFIRMATION OF ORDER conflicting with the GENERAL CONDITIONS OF SALE then those specific conditions shall prevail. Standard terms and conditions of the PURCHASER shall not apply to the CONFIRMATION OF ORDER unless expressly accepted in writing by SELLER.
- Delivery terms specified in the CONFIRMATION OF ORDER are as described in the latest edition of "Incoterms" issued by the International Headquarters of the International Chamber of Commerce in Paris,France.Where these conflictwith the other terms and conditions of the CONFIRMATION OF ORDER the latter shall prevail.
- If the GOODS are ready for delivery before the moment of delivery specified in the CONFIRMATION OF ORDER, SELLER shall give PURCHASER notice in writing regarding the earliest possible date of delivery on terms as specified in CONFIRMATION OF ORDER.
- SELLER shall give PURCHASER notice in writing immediately after any delay is foreseen.
- Without prejudice to SELLER's obligations hereunder, SELLER may contract one or more SUPPLIERS for delivery of the GOODS in accordance with the CONFIRMATION OF ORDER.
- The delivery time,which is specified as accurately as possible,shall commence as soon as SELLER has confirmed in writing the sale of the GOODS ordered by PURCHASER, has received counter confirmation and is in timely possession of information and goods to be provided by PURCHASER and has where applicable received PURCHASER's prepayment and/or security.
- Without prejudice to other remedies SELLER may put the GOODS into storage at PURCHASER's cost, if and so long as PURCHASER is not able and/or unwilling to receive the GOODS in accordance with the applicable delivery terms and conditions.
IV. PRICE AND PAYMENT
- Unless otherwise stated in the CONFIRMATION OF ORDER, the cost of specially required tests, packing, transport and delivery of the GOODS as well as documents, special licenses and permits or duties to be paid in countries of transit or destination thereto, are excluded from the sale price.
- Payment will be remitted to an account designated by SELLER, without any deduction or discount and within 30 calendar days after the invoice date.
- PURCHASER shall not entitled to set off any payment due against any alleged or actual claims under the CONFIRMATION OF ORDER, or against claims under any other agreement between SELLER and PURCHASER.
- Payment will be exclusively made in the currency and at the place specifically described in the CONFIRMATION OF ORDER.
- In the event of failure to pay in due time the outstanding amount is increased by interest as from the first date of such failure up to the date of receipt of PURCHASER's payment by SELLER, without any notice of default being required and without prejudice to SELLER's other rights.
- The interest mentioned in Article (e.) amounts to the current rate for the lending facility as fixed by the European Central Bank plus two percentage points.
- SELLER shall be compensated for any costs incurred to cause PURCHASER to comply with his obligations under the CONFIRMATION OF ORDER, SELLER's compensation shall consist of either the actual costs incurred or an amount equivalent to 10% of the due but unpaid outstanding amount, whichever is the higher.
- In the event of PURCHASER's noncompliance with the CONFIRMATION OF ORDER, SELLER may, without judicial intervention, terminate the CONFIRMATION OF ORDER forthwith.
- Notwithstanding SELLER's liability under Article 7 hereof SELLER's liability for damages incurred by PURCHASER because of SELLER's default in complying with the CONFIRMATION OF ORDER shall be limited to liability for damages caused by SELLER's willful misconduct or gross negligence.
- SELLER warrants the good condition of the GOODS for at period of one year after their delivery on the understanding that - to the exclusion of any other liability for direct or indirect damage to persons or goods, those of third parties included,against whose claims PURCHASER shall indemnify SELLER - SELLER shall repair or cause to be repaired free of charge in SELLER's factory or, at SELLER's option, on site any defects which have been observed in the GOODS and which PURCHASER can prove to be the results of detective materials, poor workmanship or defective construction on SELLER's part, while any related costs of transport of either GOODS, other goods or people shall be for PURCHASER's account
- in the case of on-site repair, PURCHASER shall place at SELLER's disposal at a mutually acceptable price agreed upon in advance, workmen and ancillary equipment to assist SELLER in the on-site repair.
- Parts replaced by SELLER shall become SELLER's property and must be returned to SELLER by PURCHASER if SELLER so requests.
- It is a condition to the warranty that within fourteen days after the defect being observed, SELLER must be furnished with all details thereof in writing and that the goods must have been installed,maintained, handled and properly applied or used by PURCHASER and that no changes or repairs have been made to them without SELLER's prior authorization.
- GOODS or parts thereof obtained by SELLER from SUPPLIERS shall be covered only by a SUPPLIER's warranty, if any.
- SELLER's warranty shall not take effect if at the same time the warranty is invoked PURCHASER does not comply with the CONFIRMATION OF ORDER.
- If and when specifically agreed upon between SELLER and PURCHASER, SELLER may provide additional warranties in respect of the GOODS. In case of conflict or discrepancies between the warranty as provided in this Article 7 and these additional warranties, the latter shall prevail.
VIII. OWNERSHIP AND RISK
- Ownership and risk regarding the GOODS shall pass to PURCHASER on delivery of the GOODS in accordance with the CONFIRMATION OF ORDER. If no full payment of any amount due by PURCHASER in respect of the GOODS delivered by SELLER has been made, however, ownership will remain with SELLER until full payment is made. As long as ownership of the GOODS remains with SELLER, PURCHASER shall refrain from any activity thatmay infringe SELLER's ownership rights and PURCHASER shall not sell,pledge, mortgage, process, assemble, or employ the GOODS in any way, without having obtained SELLER's prior written permission.
- Until full payment has been made, SELLER is entitled to claim and remove the GOODS without any previous notice to PURCHASER and without judicial intervention, and without prejudice to any other rights SELLER may have.
- SELLER is not responsible for the acquisition of permits, licences or other documents that are necessary for the transfer of ownership to PURCHASER or the possession, use or assembly of the GOODS by PURCHASER.
- All designs, drawings and all further technical, financial or other information pertaining to the GOODS and furnished to PURCHASER therewith shall not be sold, copied, shown or otherwise made available by PURCHASER to Third parties.
X. PURCHASER's INFORMATION UNDERLYING THE ORDER
- All data, estimates, assumptions and all other factors underlying PURCHASER's decision to buy the GOODS and all changes therein, whether or not made explicit to SELLER are at PURCHASER's risk.
- If SELLER has reason to believe that PURCHASER is not fulfilling or may not for any reason whatsoever, including insolvency, fulfil in a proper manner his obligations under the CONFIRMATION OF ORDER, SELLER may require adequate security from PURCHASER for the proper fulfilment of such obligations and suspend delivery of the GOODS until adequate security has been received.
- If PURCHASER ceases his payments, offers his creditors a compensation, applies for or obtains suspension of payments, is adjudged bankrupt (including the filling of a petition of bankruptcy), is imprisoned for debt or placed under guardianship, or if PURCHASER's goods are distrained or attached in the hands or a garnishee, SELLER will be entitled to give written notice of termination of the PURCHASE ORDER with immediate effect or with effect from a day specified in that notice, without judicial intervention and without any warning or demand being required,all without prejudice to SELLER's other legally available rights.
- The delay or failure on the part of SELLER to insist, in any one instance or more, upon strict performance of any of the terms or conditions of the contract of sale, or to exercise any right or privilege, shall not be construed as waiver for the future of any such terms, conditions, rights or privileges, but the same shall continue and remain in full force and effect.
- SELLER will all times be entitled to assign its rights and obligations under the CONFIRMATION OF ORDER to another company of the SolarWorld Group of Companies.
- Without SELLER's explicit consent PURCHASER is not entitled to assign its rights and obligations under the CONFIRMATION OF ORDER to a third party.
- Changes in the CONFIRMATION OF ORDER will be valid only to the extent that they have been expressly accepted in writing by SELLER.
XVI. PURCHASER's USE OF GOODS
- PURCHASER shall not remove SELLER's name, trademark, logo or any other reference to SELLER or SELLER's product on the GOODS.
XVII. APPLICABLE LAW
- The CONFIRMATION OF ORDER shall be exclusively governed by the law of The German Law. The United Nation Convention on Contracts for the International Sale of Goods 1980 shall not apply to the CONFIRMATION OF ORDER.
- All disputes arising in connection with the CONFIRMATION OF ORDER shall be finally settled in arbitration in competent courts in Bonn. The arbitrators shall be appointed in accordance with said rules. The arbitration shall be conducted in the English Language. The arbitrators shall decide in accordance with the rules of law.