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Terms and Conditions

General Terms and Conditions of Sale and Delivery

1. Scope of Application

These General Terms and Conditions of Sale and Delivery of Akkon AG (hereinafter the «Supplier») apply to all offers, tenders, and sales in the commerce of photovoltaic components (hereinafter the «Products») by the Supplier and shall be an integral part of any contract concluded between the Supplier and the Purchaser. Any deviating or conflicting terms and conditions or other reservation submitted by the Purchaser shall not be effective unless the Supplier has expressly accepted them in writing for a particular order, or if a separate written contract is concluded between the Supplier and the Purchaser.

2. Offers, Orders
The general sales documents of the Supplier shall not be binding and do not constitute nor purport to constitute binding offers. Any specific offers concerning the delivery of Products and services are always subject to the approval and the ability of the relevant component manufacturer to deliver, and are only binding following the written confirmation of the Supplier. The Supplier reserves the right to the intermediate sale of stocked Products. Any services rendered by the Supplier over and above the delivery of the Products, such as support, planning and training in relation to certain Products shall be subject to a separate agreement to be concluded between the Supplier and the Purchaser and shall only be carried out by the Supplier against adequate compensation.

3. Prices
The standard price basis depends on the individual contract and does not include VAT nor special wishes of the Purchaser concerning delivery, packaging, transport, and insurance. Any unanticipated increases in manufacturing costs, taxes, customs charges, or other mandatory fees, transport costs, and insurance premiums will be charged to and be borne by the Purchaser. Proof of such unanticipated changes will be presented by the Supplier to the Purchaser upon request.

4. Quantity Tolerance
The Supplier aims to maintain the quantities ordered by the Purchaser. However, the Supplier reserves the right to apply minor quantity deviations and to adjust the respective price accordingly.

5. Terms of Delivery
All delivery dates result from the contract between the contractual parties. The adherence of the Supplier to the delivery dates mandatorily requires the prior full technical and commercial specification of the Products to be delivered and the fulfilment by the Purchaser of all agreed obligations prior to the scheduled delivery dates, namely discharge of down-payments, provision of adequate security for payment, provision of a delivery address, accessibility of the point of delivery and provision of permits and/or certificates. In the event of non-fulfillment of any of these obligations by the Purchaser, the delivery dates shall be extended accordingly.

The adherence of the Supplier with the delivery dates is subject to the timely delivery of such Products to the Supplier by third party suppliers and/or manufacturers. The Supplier shall be released from any obligation to the adherence with the delivery dates in the event that a third party supplier and/or manufacturer is non-compliant with the agreed dates. The Purchaser shall not be entitled to reject any delivery, neither in whole or in part, without the proven and reported existence of any defects, as more fully described under clause 10 hereunder. Minor defects do not trigger any right of rejection of a delivery.

6. Retention of Ownership/Title
The ownership of any delivery remains with the Supplier until full payment has been received from the Purchaser. The Purchaser empowers the Supplier to effect all notices and to file all necessary documents with the appropriate authorities and/or registries to adequately protect its right of retention of ownership/title. The cost of any such registration shall be borne by the Supplier.

7. Payment
All invoices are payable net within 10 days of the invoice date, without any deductions, unless otherwise agreed in a separate agreement or by way of the offer of the Supplier. After expiry of such term the Purchaser is automatically deemed to be in default, without the requirement for the Supplier to issue any payment reminders. The Supplier is entitled to charge default interest on late payments. If the Purchaser is in arrears, the Supplier reserves the right to cancel the contract. The Purchaser shall not have the right to withhold any due payment. Counterclaims may only be offset, by the Purchaser if they are uncontested by the Supplier or have become resiudicata.

8. Creditworthiness
Any acceptance of orders by the Supplier is made under the express condition that the Purchaser is solvent. If a Purchaser does not meet this prerequisite, upon placement of the order or subsequently, the Supplier reserves the right to demand sufficient security or, if necessary, delivery against cash payment of all outstanding positions. If the Purchaser fails to comply with these requests, the Supplier shall have the right to cancel the contract respectively that portion of the contract which has not yet been performed.

9. Place of Execution, Transport and Packaging
Unless otherwise agreed in a separate agreement or by way of a separate offer of the Supplier the place of execution for any sales ex stock is either the registered seat of Akkon AG or of one of its subsidiaries, or FOB at the notified port of delivery in accordance with the relevant INCOTERMS in force at the time of delivery, or any other place which shall be notified to the Purchaser in writingand for deliveries from third party suppliers and/or manufacturers the respective import customs facilities as shall be notified to the Purchaser.

Transport and delivery are on account of the Purchaser and at the Purchaser’s own risk. The Supplier reserves the right to choose the most appropriate form of delivery and of packaging, the cost of which shall be borne by the Purchaser. Benefit and risk are transferred to the Purchaser at the latest either on dispatch of the goods from the Supplier’s stock or from the manufacturer’s site. Subject to the above, all deliveries might be effected in accordance with the agreed terms of trade expressed in accordance with the relevant INCOTERMS in force at the time of delivery.

If dispatch and/or delivery is delayed at the Purchaser›s request or for reasons for which the Purchaser is responsible, then any Products shall be stored by the Supplier at the cost and risk of the Purchaser. In these cases, any notification to the Purchaser that the Products are ready for dispatch shall be deemed equivalent to the actual dispatch. Any subsequent release to the Purchaser shall be effected only against full payment of any outstanding invoices by the Purchaser, such payment to include any invoices for cost of storage and any default interest accrued on the amount payable from the moment the Purchaser delayed the dispatch of the Products.

10. Notification of Defects
Any defects should be reported to the Supplier in writing within eight days of receipt of the consignment, together with supporting evidence, samples and packing slips, stating the invoice number and date, and the markings of the packaging. Later claims will only be considered if the defects were hidden, i.e. if, at the time of delivery, in spite of conscientious inspection, the defects could not be recognized and the Purchaser issued a written claim within one week of the discovery of the defect, but in any event not after the expiry of the legal warranty period. The burden of proof to show that a defect is a hidden defect shall rest with the Purchaser.

The Supplier will replace any Products for which it determined that they suffer of material manufacturing defects; the Supplier reserves the right to take back the goods without replacement and to refund the purchase price. Any additional claims of the Purchaser, such as claims for direct, indirect or consequential damages or for lost profits are expressly excluded. The Purchaser has to give to the Supplier the opportunity to examine, test, and return the defective goods before their subsequent processing and use.

11. Technical Information/Standards
All technical information and properties of the different products reflected in the Supplier’s sales documents are standard values, and not guaranteed ones. The guarantee of specific properties and the appropriateness for specific applications always require the express written agreement and confirmation of the Supplier. To the extent to which they may be applicable, the relevant international standards (e.g. ISO, CE, DIN, VSM, etc.) may only be taken into account to establish the condition of the Products, the measurements, quantity tolerances and such-like as well as all valid trade usages. Any delivery to the Purchaser may be additionally subject to the application of special conditions imposed by third party suppliers and/or manufacturers.

12. Warranty and Compensation
Within the applicable mandatory warranty period of the respective country of delivery, if any, or as agreed in the relevant contract, any verifiably defective Products will be repaired or replaced upon return of the defective goods at no cost, or the Supplier will credit the corresponding invoice. The right of the Supplier to repair or replace the defective Products prevails over crediting, whereas after two failed attempts of repair the Supplier has the option to credit the invoice. The Supplier will bear only the cost of repair or replacement, which shall not include any cost incurred by the Purchaser to dismantle, disassemble or reinstall the defective Products, and for delivery to and from the Supplier. For any minor defects of the delivered Products, the Supplier will reduce the price and will credit the difference to the invoiced amount. Any additional claims for direct, indirect or consequential damages, as well as any claims for additional costs incurred by the Purchaser in accordance with Article 208, paragraph 2 of the Swiss Code of Obligations are excluded, except in cases of verifiable gross negligence by the Supplier. Any claim which might be raised against the Supplier presupposes a verifiable correct storage and handling of the delivered Products by the Purchaser.

13. Impossibility of Delivery/Withdrawal/Rescission
The Purchaser is entitled to withdraw from the contract in the event of impossibility of delivery of parts of the entire order, provided the Purchaser proves a substantial interest to decline a partial delivery. If the Purchaser fails to prove any such interest, then any effected partial delivery shall be immediately due for payment.

Any withdrawal from the contract by the Purchaser for any other reason notified to the Supplier at least ten days from the placement of the order shall automatically entitle the Supplier to request payment of 20% of the overall order value. If the Purchaser has effected a down payment, the Supplier shall be entitled to apply any such payment against such claim.

Any subsequent withdrawal by the Purchaser, expressed within a period of 14 days prior to the intended delivery date of the Products shall entitle the Supplier to request payment of 100% of the overall order value. Any down payment effected by the Purchaser shall be applied by the Supplier in partial settlement of any such claim.

The Purchaser is only entitled to rescind the contract following written notification by the Supplier of the general impossibility to deliver the Products in whole or in part. In this case any down payments made by the Purchaser will be reimbursed.

Any failure of the Supplier to deliver at the agreed delivery dates does not establish a general right to rescind or withdraw from the contract. In such case, both parties shall assess the situation and mutually agree upon a reasonable alternative delivery date. Both parties may withdraw from the contract if no acceptable solution is found. In this case, any down payments made by the Purchaser will be partly re-compensated after deduction of all relevant handling expenses in relation to the relevant order.

14. General Limitation of Liability
In cases of breach of contractual and non-contractual obligations, particularly as a result of impossibility, default, negligence upon conclusion of the contract, and illicit actions, the Supplier shall be liable – also for his executive staff and other auxiliary persons – only for intent and gross negligence, with the amount of damages to be limited to the foreseeable damages typical for the relevant contract. Any additional liability is excluded, to include any such liability resulting from defects of the delivered Products or consequential damages caused by such defects. These limitations shall not apply to damages resulting from death, bodily injury and health damages as well as in cases of compulsory liability in accordance with product liability laws.

15. Force Majeure, Impediments to Performance
Force majeure of any kind, in particular unforeseeable production, traffic or shipping disturbances, fire damage, floods, unforeseeable shortages of labour, utilities or raw materials and supplies, strikes, lockouts, acts of authorities or any other hindrances beyond the control of the party obliged to fulfil the contract (any one of the occurrences hereinafter referred to as an «Event of Force Majeure») that diminish, delay or prevent production, shipment, acceptance or use of the goods, or make their use unreasonable, shall relieve the party from the obligation to supply or accept delivery, as the case may be, as long as and to the extent that the hindrance prevails. If as a result of the hindrance, supply and/or acceptance is delayed by more than six months, either party shall have the right to cancel the contract, provided, however that any partial delivery of Products already effected at the time of occurrence of any such Event of Force Majeure shall not be returnable to the Supplier by the Purchaser. The Supplier shall be entitled to invoke any Event of Force Majeure affecting its third party suppliers and/or manufacturers.In particular, if as result of any such Event of Force Majeure, the third party suppliers and/or manufacturers should fail to supply in whole or in part, then the Supplier shall not be under any obligation to purchase equivalent Products from other sources.

16. Data Protection
The Supplier shall store and use the Purchaser›s personal data to perform the contractual relationship entered into and, to the extent necessary, to review the creditworthiness of the Purchaser. The data shall further be used to provide ongoing support and assistance with respect to the contractual relationship concluded.

17. Place of Execution, Jurisdiction and Applicable Law
In the event that certain provisions of these General Terms and Conditions of Sale and Delivery are invalid in whole or in part, such invalidity shall not affect the validity of the remaining provisions of these General Terms and Conditions or of the respective contract. The parties agree to replace the invalid provision with a provision which conforms as much as possible to the economic purpose of the invalid provision.

For all obligations arising out of these General Terms and Conditions of Sale and Delivery, the place of execution is Appenzell, Canton Appenzell, Switzerland. The place of jurisdiction for the settlement of all legal disputes arising out or in connection with these General Terms and Conditions of Sale and Delivery respectively with any contract concluded between Supplier and Purchaser is Appenzell, Canton Appenzell, Switzerland. Swiss law is applicable, to the exclusion of its conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (CISG) shall not be applicable.