General Terms and Conditions of Sale
The terms and conditions below represent the terms and conditions under which Advanced Power Technology Limited, or any of its affiliates that Company may be doing business with (hereinafter either collectively or individually referred to as “APT”), shall sell any and all APT products (“Products”), non‐ APT, third party equipment (“Equipment”), and services (including installation) included on this Purchase Order. Unless a master purchase agreement or similar contract has been executed by Company with APT, in which case such contract or agreement shall govern any sale of any products or services by APT, but only to the extent the terms of that agreement do not conflict with the terms below, APT’s sale of any and all products and services are expressly conditioned upon and subject to the following terms and conditions. Any and all conflicting terms, including those on the face or previous pages of this Purchase Order or in any existing agreement between the parties, shall be considered null and void for purposes of this Purchase Order and APT expressly rejects and disclaims any and all such supplied terms, conditions representations, warranties, guarantees or such other obligations.
Purchase Orders for custom manufactured or manufactured to order Products are not cancelable. No later than thirty (30) days prior to scheduled shipment, Company may issue an alteration to this Purchase Order in order solely to, (i) change a location for delivery, (ii) implement any change as required by or permitted by APT, (iii) correct typographical or clerical errors. Company agrees to reimburse APT for any additional costs associated with Changes or alterations of this Purchase Order including additional costs in shipping, storage or resale of Products or Equipment.
APT’s standard method of payment for the Products (including taxes, shipping charges and insurance) is by a wire transfer, money order or check net thirty (30) days from APT’s invoice date less the amount of any outstanding and undisputed credit amount due. APT may require prepayment if no established credit lines exist.
All shipments from APT will be made DDP (Delivery Duty Paid) as per Incoterms 2000, from APTs shipping docks to such destinations as Company may state in this Purchase Order. Risk of loss or damage of goods will pass to the company on delivery, and the title of goods shall pass on payment.
If specific environmental conditions are required for installation, warranty, or maintenance, Company or Company’s end user, as applicable, shall indicate such to APT. All project site preparation shall be solely Company’s or Company’s end user’s, as applicable, responsibility. APT shall be entitled to rely on the sufficiency and accuracy any documentation or data provided by Company or Company’s end user regarding the project site. APT shall not be liable for any, differing, subsurface, latent or concealed conditions encountered in the performance of any services or provision of any Products or Equipment. The existence of such differing, latent or concealed conditions shall constitute a Change below.
“Change” means any alteration to a Purchaser Order or any extra work, or any delay, or other circumstance which adversely impacts the cost, delivery schedule or results in an adjustment to any of the cost, delivery schedule, and/or any other affected provision of this Purchase Order. Should any Change cause an increase or decrease in the cost of or time required for performance or otherwise affect any provision of this Purchase Order, Product, Services, the project, or Equipment, an equitable adjustment will be made to any of the cost, or this Purchase Order as affected. When APT is notified of a Change or becomes aware of circumstances entitling APT to a Change, APT shall promptly prepare and submit to Company or Company’s end user, as applicable, an estimate of the cost and estimated time required to perform the Change, together with an explanation of the basis therefore. A written change order describing the Change and its effect on any of the provisions of this Purchase Order shall be prepared. Prior to APT ‘s commencement of work on such Change or the Purchase Order affected by such Change, agreement must have been reached between APT and Company or Company’s end user, as applicable, on the equitable adjustments to the items listed above. If agreement cannot be reached on such adjustments to the Cost and other affected items (i.e. delivery schedule) at the time APT’s services on such Change are affected, APT will, unless Company or Company’s end user, as applicable, otherwise direct, proceed with the Change on a reimbursable basis. Except to the extent a Change specifically amends one or more provisions hereof, all other provisions of this Purchase Order shall apply to all Changes
For Products which require installation, APT shall provide written notice to Company or Company ‘s end‐user customer when APT deems this installation to be “substantially complete.” Substantial Completion occurs when (i) the installation of the product and Equipment, (except for punch list items not affecting the operability, safety and mechanical and electrical integrity of the Project “Punch List Items”) has been completed; and (ii) APT has determined that the products and Equipment are ready for initial operation and startup. Within five (5) days after receiving notice of the substantial completion Company or Company’s end‐user customer shall advise APT in writing of any known defects or deficiencies in the services or discrepancies between installed Products, Equipment or workmanship. APT shall then take appropriate corrective action and again notify Company or Company ‘s end‐user customer in writing that the project has achieved substantial completion. Company or Company ‘s end‐user customer shall have five (5) days after such second notification to advise APT of any remaining known defects, deficiencies and discrepancies, and this process shall be repeated as necessary until Company or Company’s end‐user customer agrees that no such known defects, deficiencies or
discrepancies exist. The installation shall be deemed to have achieved substantial completion should Company or Company’s end‐ user customer fail to reply to APT ‘s written notice within said five (5) day time periods. Acceptance of this installation shall occur upon the satisfaction of the following requirements: (a) The installation has reached substantial completion and the project has been started up and tested and (b) The Punch List Items, if any, have been completed. If the parties are unable to complete the acceptance process above, under the terms above, Company will be liable to APT for certain costs associated with the manufacture of a custom Product or restocking fees for other non‐accepted Products. Company may owe APT up to the full purchase price of a custom manufactured or manufactured to order Product. APT will make reasonable efforts to minimize Customer’s costs by attempting to utilize that work and material to fulfill orders from other customers, but APT will not be liable to Customer if APT is unable to do so.
APT warrants that the APT hardware Product delivered to Company under the terms of this Purchase Order will be free from defects in workmanship and materials under normal use for the length of time outlined in the hardware Product manual for the relevant hardware Product. The length of a warranty on a given product may differ depending on the country that you are located in. APT warrants that APT software Products delivered to Company under the terms of this Purchase Order will perform in substantial conformance to the program specifications therefore and the magnetic media on which the software Product is furnished will be free from defects in material and workmanship when given normal, proper and intended usage, for the length of time outlined in the software Product manual or specifications for the relevant software Product. APT’s sole obligation and Company’s exclusive remedy with respect to this express warranty shall be limited to the replacement or repair, of defective Products during the warranty period. Certain Products have special warranty procedures that must be complied with when a warranty claim is submitted. Please refer to the Warranty Terms and Conditions for each Product. APT warrants that any services to be performed hereunder shall be performed in accordance with recognized professional standards customary in the industry in which the Services are being performed. Should APT services fail to comply with such standards APT agrees to re‐perform such deficient services at no cost to Company. For Company’s benefit APT shall obtain from any vendors of third-party equipment, materials or services, warranties against defects in materials and workmanship to the extent such guarantees are reasonably obtainable, and Company releases APT from any further liability. APT itself shall not be liable for any such warranty or for any defects caused by such third-party equipment, materials, or services. Upon Company’s request and within one (1) year from the date of shipment of such third-party equipment, APT agrees to take such steps as are necessary, short of litigation, to assist in enforcement of said warranties. APT shall not be responsible for any products that have been modified by any person other than APT, or for any software, firmware, information or memory data contained in, stored on, or integrated with any products returned to APT for repair, whether under warranty or not. APT also makes no warranty or representation that its software will work in combination with any hardware or applications software products provided by third parties, that the operation of the software will be uninterrupted or error‐free, or that all defects in the software will be corrected. APT HEREBY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OR CONDITIONS OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. THE APPLICABLE WARRANTIES FOR ANY PRODUCTS ARE STATED ON THE LIMITED WARRANTY CARD OR PRODUCT MANUAL ACCOMPANYING EACH PRODUCT.
EACH PARTY SHALL INDEMNIFY THE OTHER FOR DIRECT DAMAGES RESULTING FROM ANY PHYSICAL LOSS OR DAMAGE TO PROPERTY OR PERSONAL INJURY OR DEATH CAUSED BY AND TO THE EXTENT OF ANY NEGLIGENCE, INTENTIONAL MISCONDUCT, OR NEGLIGENT OMISSION IN THE PERFORMANCE OF SUCH PARTY’S OBLIGATIONS UNDER THIS AGREEMENT. IN NO EVENT, WHETHER BASED IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL THEORY) SHALL APT, ITS OFFICERS, DIRECTORS, AFFILIATES OR EMPLOYEES BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES OF ANY KIND, OR FOR LOSS OF REVENUE OR PROFITS, LOSS OF BUSINESS, LOSS OF INFORMATION OR DATA, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, USE, PERFORMANCE, FAILURE OR INTERRUPTION OF THE PRODUCTS PURCHASED. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE MAXIMUM LIABILITY OF APT FOR DAMAGES HEREUNDER SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID TO APT UNDER THIS PURCHASE ORDER.
APT NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR IT ANY OTHER LIABILITY IN CONNECTION WITH THE SALE, INSTALLATION, MAINTENANCE OR USE OF ITS PRODUCTS. SOME COUNTRIES, TERRITORIES, LOCALITIES OR STATES, AS APPLICABLE, DO NOT ALLOW LIMITATIONS ON HOW LONG A WARRANTY LASTS, IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SUCH LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO COMPANY. IT IS APT ‘S INTENT TO MAKE SUCH LIMITATIONS AND EXCLUSIONS IN THESE TERMS AND CONDITIONS TO THE FULLEST EXTEND ALLOWED UNDER ANY APPLICABLE LAW.
This Agreement shall be governed by, subject to, and construed according to the laws of the England, excluding its conflict of laws provisions. THE RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. Any dispute arising from or connected with this Agreement shall be referred to and finally resolved by the relevant court in London, England.