SCOPE OF APPLICATION

The term “Products” refers to any product manufactured by and/or any service provided by PWRstation Holding or its affiliates (hereinafter the “Seller”) to any individual or legal entity who places an order for a Product (hereinafter the “Buyer”). These General Terms and Conditions of Sale govern the sale of all PWRstation Products. Any order implies full acceptance of these conditions to the exclusion of any other document of the Seller or the Buyer. Unless accepted in writing by an officer of Seller, any terms or conditions of Buyer's offer to purchase, whether transmitted to Seller in the form of a purchase order or otherwise, which are different from or intended to supplement, modify, replace or otherwise alter the terms and conditions contained in these Terms and Conditions, shall not be binding upon Seller and shall have no effect. No warranty is given, even if drawings or instructions are supplied with the products. If supplied, they are for guidance only.
 

1 - Quotations - Order forms

Quotations are valid for thirty (30) days and may be modified at any time before being accepted by the purchaser. Purchase orders are valid only when expressly accepted by the seller.
 

2 - Prices

Prices quoted are ex works, from the shipping point designated by PWRstation, in accordance with Incoterms ICC 2010 Ed. Invoices are for quantities actually delivered. If, due to a drastic, unforeseeable and lasting change in the economic conditions taken into account at the time the Parties entered into the Contract, and beyond the control of either Party, the Seller is no longer in a position to continue performance of the Contract, the Parties will meet to define the adaptations to be made to the Contract which would enable them to reduce the effects of such a situation. If at the end of 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, either of them may terminate the Contract, in accordance with article 11 of these terms and conditions.
 

3 - Payment

Terms of payment must appear on an order form and be confirmed by an acknowledgement of receipt of the order form. If no payment terms are specified, payment is due 50% by bank transfer to confirm the order, 30% on the freight bill and 20% within three days of delivery of the goods by the carrier. The delivery period begins on receipt of the deposit. Payments are made in US dollars, unless otherwise agreed in writing. In the event of multiple deliveries on a purchase order, the seller may invoice the purchaser for each delivery, or group several deliveries together on a single invoice. Buyer shall pay invoices without any deduction, set-off or counterclaim.
 

4 - Delivery - Shipping

The Vendor will make all reasonable efforts to comply with the delivery schedule, but will in no event be liable for delays resulting from events of force majeure, as more fully described in article 5 of this contract. Delivery shall be ex-works from the shipping point designated by PWRstation, in accordance with Incoterms ICC 2010 Ed. The risk of loss of the Products shall pass to the Buyer at the time of delivery. No lump-sum compensation for delay will be accepted unless it has been negotiated by the Seller and the Buyer prior to the issue of the relevant order, and shall constitute the sole and exclusive remedy of the Buyer in the event of delay attributable to the Seller. In the event of a delay in shipment attributable to the Buyer, the Seller is entitled to invoice payment due on delivery, and the warranty period begins as if delivery had taken place on the delivery date originally agreed.

Claims for product shortages must be made within ten (10) days of delivery of the products to the buyer's factory. No product may be returned to the seller without his prior written consent. In all cases, the related costs and risks shall be borne by the purchaser. If the seller confirms the non-conformity of the product, the buyer is entitled to a credit after qualitative and quantitative verification of the returned product. Subject to the seller's prior written agreement, products may be inspected at the seller's plant at the buyer's expense.
 

5 - Force Majeure

Seller shall not be deemed to be in default in the performance of its obligations hereunder, nor liable for damages or otherwise for any failure or delay in performance due to strike, lockout, concerted labor action or other industrial disturbance, fire, explosion, flood or other natural disaster, civil disturbance, riot or armed conflict, declared or undeclared, curtailment, shortage, rationing or apportionment of normal sources of supply of labor, materials, transportation, energy or utilities, accident, act of God, delay by subcontractors or vendors, submission to or voluntary compliance with governmental acts and governmental regulations (valid or invalid), embargo or any other cause similar or dissimilar to any of the causes or classes of causes described above and beyond the reasonable control of Seller. In the event of delay resulting from any of the aforementioned causes, the lead time will be extended by a period of time reasonably necessary to overcome the effect of the delay.
 

6 - Packaging

Seller will provide standard packaging for export under deck, container shipment or air freight, as applicable. Special packaging will only be provided with the written consent of PWRstation and will be at the buyer's expense.
 

7 - Intellectual Property Rights

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 related goodwill. The Seller has and retains exclusive ownership of the “PWRstation” trademarks, including goodwill therein. Seller hereby grants Buyer the right to market EXOrac in connection with its own trademark. Buyer shall use and display its own trademarks only in connection with the marketing, distribution and support of the Products in the Territory, in accordance with the General Terms and Conditions of Sale, and only to the extent reasonably necessary. Buyer shall market, distribute and support EXOrac only under Seller's trademarks, to the exclusion of any other trademarks or logos. Without Seller's prior written consent, Buyer shall not copy, reverse engineer, disassemble, decompile, translate or modify any product, or grant any other person or entity the right to do so. Drawings, bills of materials, flow charts, plans, details, specifications and other data prepared by Seller shall remain Seller's property. Drawings, manuals and other documents to be furnished to Buyer are the property of Buyer, but Buyer agrees to use them only to facilitate, complete the construction, maintenance, operation, modification and repair of the products furnished hereunder, and agrees not to disclose them to any third party for any other purpose without Seller's written consent.
 

8 - Warranties

Seller warrants that the products it manufactures are free from defects in materials and workmanship on the date of delivery and for a period of five (5) years thereafter, under proper and normal use and service. Any repairs carried out by the seller in accordance with article 8 below shall in no case extend the warranty period. The warranties and remedies set forth herein are further conditioned upon proper receipt, handling, storage and installation of the products supplied by Seller, upon the fact that the products have not been used beyond their rated capacity and, in all respects, have been used and maintained in a normal and proper manner and have not been subjected to accident, modification, abuse or misuse. If, during the applicable warranty period, products manufactured by Seller prove to be defective at the time of delivery, they will be replaced free of charge DDP Buyer's original shipping facility, provided that Buyer gives Seller immediate written notice upon discovery of the defect, provides supporting photographs or other material clearly demonstrating the defects, and that the product remains available for Seller's inspection at Buyer's facility if Seller so desires for a period of at least twelve (12) months. The seller is in no way responsible for the costs of removal and reinstallation of defective products or defective parts of products. The seller has the option of removing and reclaiming the products at its own expense and refunding to the buyer all sums received in respect of the purchase price, in which case all liability of the seller ceases. No compensation will be paid for repairs or modifications made without Seller's written consent, in which case all Seller's warranties will be null and void. All warranties of Seller with respect to the Products are expressly set forth in Section 8 and are in lieu of all warranties of merchantability or fitness for a particular purpose and all other warranties of any kind, express or implied, in fact or in law, except for the implied warranties relating to Seller's title, right to transfer the Products and freedom from encumbrance thereon. Unless otherwise provided, the seller warrants the products only for the use for which they were designed, and not for the use the buyer intends to make of them, even if the seller has been informed by the buyer of such use.
 

9 - Limitation of liability

Notwithstanding anything to the contrary contained in the contract, the aggregate liability of the seller arising out of or in connection with any contract or purchase order, which may be formed on the basis of breach of contract, statutory warranty, tort law or negligence, or otherwise, shall in no event exceed, in addition to the repair or supply of a replacement product, 20% of the purchase price of the product which is the subject of a related claim. This limitation of liability does not apply to personal injury. Seller shall not be liable for any special, indirect, incidental or consequential damages of any kind, whether in contract or tort, including, but not limited to, loss of use, data, profits, revenue, business, anticipated savings, reputation, as well as financing costs or increased operating costs. Beyond these limits/exclusions, the buyer waives any right of recourse against the seller and its insurer and will obtain the same waiver from its own insurer; the buyer will indemnify and hold the seller and the seller's insurer harmless if the buyer fails to obtain 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 following a legal reorganization such as a spin-off, merger or solvent amalgamation. In no event shall Buyer be entitled to any right of termination of any contract or purchase order or to any indemnity whatsoever on the basis of such assignment. The purchaser may only transfer or assign, in whole or in part, such a contract or purchase order with the prior written consent of the seller.
 

11 - Cancellation

If the purchaser is required to terminate a contract or cancel a purchase order which has been accepted by the seller, the purchaser shall be liable for and agrees that no penalty shall be charged by the seller to the purchaser, but that the 50% deposit shall be retained by the seller without justification to cover damages and losses incurred.
 

12 - Product recovery option

All sales made hereunder are subject to the subsequent condition of timely payment of the price by the buyer, failing which the seller has the option, at its discretion, to recover ownership and possession of the product. If, after delivery but before full payment has been made, the product is seized or the purchaser is the subject of bankruptcy proceedings, whether voluntary or involuntary, then the seller may, at its discretion, recover title to and possession of the product. The exercise of this option under this condition does not affect Seller's other remedies.

 

13 - Severability

If any provision or part of these terms and conditions of sale is held to be invalid or unenforceable, only that provision or part, and not the entire agreement, shall be ineffective.

 

14 - Applicable law - Settlement of disputes

Any contract or purchase order between the seller and the buyer which may be formed after the seller's quotation has been issued shall be governed by and construed in accordance with the laws of Switzerland, excluding its conflict of law provisions. All disputes arising in connection with any contract or purchase order which may be formed after the issuance of this quotation shall be finally settled in accordance with the Rules of Arbitration of the International Chamber of Commerce by three (3) arbitrators (unless the parties agree on the name of a sole arbitrator) to be appointed in accordance with said Rules. The arbitration will take place in Lausanne, Switzerland.

 

15 - Compliance with laws and regulations

The parties agree that, at all times, in connection with this Agreement and throughout its performance and thereafter, they will comply with and take reasonable steps to ensure that their subcontractors, agents or other third parties, who are subject to their control or decisive influence, comply with applicable anti-bribery laws that prohibit improper, illegal and corrupt payments, including, without limitation, any laws implementing the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.

 

PWRstation Holding SA

World Trade Center

1018 Lausanne

Switzerland
 

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