Terms and Conditions
This Supply Agreement (this “Agreement”) is entered into as of the Effective Date listed on the signature page, between Aten Solar, a New Jersey S-Corporation (“Seller”), and the entity listed on the signature page (“Buyer”). Seller and Buyer are each referred to as a “Party” individually and the “Parties” collectively.
1. SCOPE OF AGREEMENT. This Agreement is non-exclusive, and does not obligate Buyer to buy, or Seller to sell, any items (“Products”) unless and until: (1) a written Purchase Order or “PO” as defined in Section 2 is issued by Buyer; and (2) Seller’s Quotation is duly executed by both Buyer and. Once a PO is issued by Buyer and the Seller’s Quotation is duly accepted by both Parties, this shall commit both parties to binding obligations for that particular PO, as set forth in these terms and conditions. The whole Agreement consists of: (1) these terms and conditions, (2) Seller’s duly executed quotations, and (3) Buyer’s PO’s. Any conflict between such documents shall be resolved by giving priority to the documents in the order set forth above.
2. PURCHASE ORDERS. All orders for Products shall be in writing and shall specify the requested quantity, price, delivery location(s), and delivery date(s) (each, a “Purchase Order” or “PO”). No PO submitted by Buyer shall be effective unless and until accepted by Seller pursuant to a PO Acceptance. Should Seller so fail to respond to a PO within ten (10) days, Buyer shall regard this as a rejection of the PO (unless Seller subsequently issues a PO Acceptance). All PO’s between Seller and Buyer shall be governed by this Agreement, including any and all pending PO’s as of the Effective Date, regardless of whether or not such PO’s and/or PO Acceptances explicitly refer to this Agreement.
3. PRICE; TAXES. Buyer shall pay to Seller the amount(s) indicated on the applicable PO (the “PO Purchase Price”). Seller shall be responsible for taxes on Seller’s net income. Buyer shall pay any federal, state or local taxes, duties, and/or assessments in connection with the sale, purchase, use or possession of the Products. If applicable, Buyer shall provide Seller with a reseller’s certificate or similar document prior to delivery of the Products. To the extent that: (1) the reseller’s certificate is not accepted by a taxing authority; (2) Buyer has not provided Seller with appropriate exemption documentation prior to delivery; or (3) has not paid taxes attributable to Buyer herein, then Buyer agrees to within 30 days reimburse Seller for any taxes, interest, and penalties (including attorneys’ fees) assessed against Seller on taxes for which Buyer is responsible.
4. SHIPPING, TITLE, AND RISK OF LOSS. Shipping terms shall be specified on a PO. If shipping terms are not specified on a PO or PO Acceptance, default shipping terms are ExWorks (Seller’s New Jersey warehouse). Title to the Products and risk of loss shall pass to Buyer upon delivery of the applicable Products. Buyer shall be responsible for all demurrage, storage, or similar charges resulting from failure to timely pickup or offload the Product.
5. BUYER DELIVERY DELAY. If Buyer requests a delay in delivery on PO by more than fifteen (15) days from the original delivery date, Seller may at its sole and continuing option: (a) elect to treat such PO as canceled for convenience by Buyer, and collect the relevant cancellation fee from Buyer; and/or (b) store the Products and invoice Buyer for all of the charges resulting from the delay (including storage and cost of capital expenses) until Buyer takes delivery. In the event that prior to delivery Seller cancels a PO in whole or in part, Seller’s liability shall be limited as specified in Section 17.
6. PRODUCT ACCEPTANCE. Buyer shall have five (5) days after any delivery to accept or reject any Products, or report quantity discrepancies, by providing written notice to Seller. If no such rejection or report is provided by Buyer within such deadline, the Products shall be deemed accepted and the quantities deemed correct. After the product acceptance deadline, Buyer still has the right to notify Seller of non-conforming Products, however all such claims by Buyer subsequent to the product acceptance period shall be made via a warranty claim. If rejecting Products, Buyer will provide documentation of such non-conformity as reasonably requested by Seller. Upon receipt of Buyer’s notice, Seller will, at its sole option, repair or replace the non-conforming Products. Buyer shall retain the non-conforming Products for inspection by Seller. In the event of a dispute about the cause of damage or any non-conforming Products under this Section, Seller and Buyer may mutually agree on a testing procedure (for example, independent laboratory testing), or either Party may elect to use dispute resolution procedures under this Agreement.
7. PAYMENT TERMS. Payment terms shall be listed on a PO. If no payment terms are specified, full payment shall be due in cash as a condition precedent to shipment by Seller. Payments shall be made in U.S. dollars unless otherwise agreed in writing by both Parties. Interest shall be charged at the rate of 12% per year (or, if lower, the highest rate permitted by law), compounded daily on accounts past due. Buyer agrees to pay all costs, including reasonable attorneys’ fees, arising in connection with the collection of late payments. Seller may refuse further POs from Buyer or not fulfill deliveries agreed to in any PO Acceptances in the event that Buyer’s payment for a PO is late by more than five (5) days on any Invoice. Notwithstanding anything in this Agreement to the contrary, Buyer agrees that in the event of a payment default by Buyer, Seller may at its sole option choose to not honor its limited warranty for Products sold under any PO for which Buyer is in breach of its payment obligations.
8. INVOICES. In the event of multiple deliveries on a PO, Seller at its discretion may invoice Buyer for each delivery, or aggregate multiple deliveries on a single invoice. Buyer shall pay invoices without deductions, offsets, set offs or counterclaims.
9. TERMINATION FOR CAUSE. This Agreement may be terminated by Seller, at Seller’s sole discretion, as follows (each, an “Event of Default”): (i) if Buyer fails to make any payment under this Agreement as and when due; (ii) if Buyer or an affiliate of Buyer becomes insolvent, makes an assignment for the benefit of creditors, has a receiver appointed over its property, becomes subject to a voluntary or involuntary bankruptcy petition, and/or is liquidated or dissolved or its affairs are wound up. In an Event of Default by Buyer, all amounts then owing by Buyer hereunder shall immediately become due and payable. Any such termination by Seller shall be without prejudice to any other right or remedy Seller may have under this Agreement or at law or in equity. No such remedy of Seller shall be exclusive of any other remedy.
10 WARRANTY. Seller warrants the Products per the warranty document attached to each Sales Quotation. If no warranty document is attached or otherwise transmitted to Buyer in writing, then the “Limited Warranty for PV Modules” for the applicable Solar PV Module Manufacturer applies to all Products sold. Seller provides no other warranties, express or implied. THE WARRANTIES UNDER THIS AGREEMENT ARE EXCLUSIVE AND IN LIEU OF ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED; AND SELLER EXPRESSLY DISCLAIMS AND EXCLUDES ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. Subject to this Section 10, any limited warranty will be transferable by Buyer to any subsequent purchaser of the Products according to the terms provided in the warranty document. Seller may revise its limited warranty from time to time, provided that: (1) Seller provides ten (10) days advance written notice, and (2) such revisions shall not retroactively apply to any PO’s issued by Buyer prior to the close of the notice period.
11. FORCE MAJEURE. “Force Majeure” shall mean all events which are beyond the control of a Party and which are unforeseen and unavoidable, and which prevent complete performance by either Party, including without limitation: earthquakes, typhoons, flood, fire, war, strikes (including Longshoreman strikes), riots, acts of governments, or similar instances. If a Force Majeure occurs, a Party’s contractual obligations affected by such an event under this Agreement shall be suspended during the period of delay caused by the Force Majeure and shall be automatically extended, without penalty or liability, for a period equal to such suspension. The Party claiming Force Majeure shall promptly inform the other Party in writing and shall furnish within fifteen (15) days thereafter sufficient proof of the occurrence and duration of such Force Majeure. The Party claiming Force Majeure shall use commercially reasonable efforts to terminate the Force Majeure and shall consult with the other in order to minimize the consequences of such Force Majeure. Economic hardship of a Party shall not be a Force Majeure.
12. CONFIDENTIALITY. “Confidential Information” shall mean: (i) trade secrets or other proprietary or confidential information (such as information regarding pricing, availability of the Products, and commercial terms) and (ii) other materials designated in writing as confidential by the disclosing party at the time of disclosure. Confidential Information will not include any information that is either known to the general public or to the industry, or known to, or in the possession of, a receiving Party prior to disclosure by the other Party, that is disclosed as required by law, or that is independently developed by such Party. If disclosure of such Confidential Information is required by law, the Party receiving such Confidential Information shall notify the other Party prior to such disclosure and cooperate with the other Party with any efforts to prevent or oppose such disclosure. Each Party agrees that it will not disclose to any third party any Confidential Information it obtains with respect to the other Party during or after the term of this Agreement except as expressly permitted hereunder, and that it will treat all such information as confidential and will use such information only for carrying out the purposes of this Agreement; provided, however, that the Party receiving such Confidential Information of the other Party shall be used only in connection with its performance under this Agreement and for no other purpose. The confidentiality obligations of the Parties hereunder shall continue during the term of this Agreement for a period of three (3) years from the date of disclosure of Confidential Information. The Parties shall consult with each other as to the substance and timing of any press release or other public disclosure related to this Agreement or the PO’s and transactions contemplated herein. For clarity, this Agreement and related documents (including but not limited to: PO’s, PO Acceptances) shall be confidential, unless expressly agreed to in writing by both Parties.
13. GOVERNING LAW; DISPUTES. This Agreement shall be governed by New Jersey State law, without regard to principles of conflicts of laws. THIS AGREEMENT SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. All disputes arising out of or relating to this Agreement, including any action to enforce this Agreement, shall be brought in the state or federal courts in New Jersey, New Jersey and each Party does hereby consent to personal jurisdiction in such venue. EACH PARTY IRREVOCABLY WAIVES ANY JURY TRIAL RIGHT. The prevailing Party shall be entitled to recover all reasonable costs, expert fees, and attorneys’ fees and expenses, in addition to any other relief to which such prevailing Party may be entitled. Notwithstanding the preceding venue provision, Seller shall be entitled to seek provisional remedies, preliminary and/or pre-judgment relief (including but not limited to: a writ of possession, replevin, attachment, injunctive relief, restraining order and/or like remedies, including any remedy available under the Uniform Commercial Code), in any court (for clarity, including outside of California) that has personal jurisdiction over Buyer, Buyer’s assets or properties, and/or in rem jurisdiction over applicable Products.
14. DAMAGES LIMITATION; LIMITATION OF LIABILITY. Seller’s liability with respect to the Products or services sold hereunder shall be limited to the warranty and indemnity provided herein. Seller’s maximum aggregate liability, including any and all breaches, warranties, and indemnities, shall be limited to the applicable PO Purchase Price. SELLER SHALL NOT BE SUBJECT TO ANY OTHER OBLIGATIONS OR LIABILITIES, WHETHER ARISING OUT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR UNDER ANY OTHER THEORIES OF LAW OR EQUITY, WITH RESPECT TO GOODS OR SERVICES SOLD BY SELLER, OR ANY UNDERTAKINGS, ACTS OR OMISSIONS RELATING THERETO. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR CONTINGENT DAMAGES WHATSOEVER ARISING OUT OF THE THIS AGREEMENT OR ITS PERFORMANCE OR BREACH, EVEN IF SELLER IS INFORMED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES. Seller’s maximum aggregate liability arising from any combination of Seller’s delivery delay and/or Seller’s termination of a PO shall be limited to ten percent (10%) of the Purchase Price of the Products subject to the claim of delay and/or cancellation. Without limiting the generality of this Section, Seller specifically disclaims any liability for property damages, penalties, special or punitive damages, damages for lost profits or revenues, down-time, lost good will, cost of capital, cost of substitute Products or services, or for any other types of economic loss, or for claims of Buyer’s customers or any third party for any such damages, costs or losses. The limitations of liability in this Section are a fundamental part of this Agreement and enable Seller to provide the Products to Buyer at lower prices.
15. LEGAL COMPLIANCE. Both Parties shall comply with all applicable federal, state and local laws, rules, and regulations. Both Parties acknowledge that anticorruption laws, including the Foreign Corrupt Practices Act (“FCPA”), extend to this Agreement.
16. INDEMNITY. Each Party (each an “Indemnifying Party”) shall indemnify, defend and hold harmless, the other Party, its affiliates, and their officers, employees, agents, financing parties and subcontractors (each an “Indemnified Party”) against any and all suits, actions, losses, damages, claims or liability (including reasonable attorneys’ fees and expenses) for: (1) any injury or death to any person, and (2) direct damage to property of third parties arising out of, or in connection with, negligence or willful misconduct of the Indemnifying Party or its officers, employees, agents or subcontractors. The Indemnifying Party’s liability shall be limited by the Indemnified Party’s own proportional negligence and/or willful conduct. The Parties will cooperate in good faith with each other in the defense of any claim. The Indemnified Party will use commercially reasonable efforts to mitigate the damages for the Indemnifying Party. The Indemnified Party will have the right to participate, at its expense, in the defense of any claim but may not settle any claim without the prior written consent of the Indemnifying Party.
17. ASSIGNMENT. Neither party may assign this Agreement or any PO without the written consent of the other party; provided that Buyer may collaterally assign a PO to a financing party upon written notice to Seller. This Agreement shall be binding upon and shall inure to the benefit of the successors and assigns of Buyer and Seller. Any attempted assignment in violation of this Section shall be null and void.
18. Notice. Notice to a Party shall be sent: (1) via internationally recognized express courier service; or (2) fax/e-mail (receipt confirmed). A Party may amend its notice contact information by giving notice as provided herein. Notices provided under applicable lien laws and/or the Uniform Commercial Code shall be deemed to have been given according to the applicable law.
19. MISC. PROVISIONS. If any provision of this Agreement shall be found invalid or unenforceable, then such provision shall not invalidate or affect the enforceability of the remainder of this Agreement. This Agreement is the entire agreement between the Parties, and may not be contradicted or modified by any external written or oral evidence. This Agreement supersedes all prior agreements written or oral, including all prior agreement terms and conditions for PO’s governed by this Agreement. This Agreement cannot be amended except by written instrument that also is signed by both Parties. The Agreement shall be interpreted based on the plain language of the Agreement terms, without regard for which Party drafted the Agreement language, and without bias for or against either Party. This Agreement may be executed and recorded in two or more counterparts, each of which shall be deemed an original and all of which, when taken together, shall constitute the same instrument. Signatures signed and/or transmitted electronically shall have the same force and effect as hard copy signatures.
20. ORDERS 20% Deposit. is required or otherwise stated to secure the product. Deposit or payment is non-refundable, unless stated otherwise in writing. Based on certain circumstances, buyer and seller will agree to apply the non-refundable deposit or full payment to another order of equal quantity within 6 months if the customer’s order is acancelled for a valid reason (other than finding a better priced product).