TERMS & CONDITIONS OF SALE AND DELIVERY
The present Terms and Conditions of Sale and Delivery shall apply to all orders placed with and all deliveries made by Industrial Power Systems unless otherwise agreed in writing.
All quotations are based on the sales prices, customs duty rates, exchange rates, taxes, etc. applicable on the date of the quotation. Notwithstanding the provision contained in item 2, Industrial Power Systems reserves the right to adjust the final sales price in case of changes in the above-mentioned rates and taxes after the issue of the quotation.
All orders are binding on the party placing the order, for which reason any changes to or cancellation of any order are subject to Industrial Power Systems prior written accept. Concurrently with the placing of an order, the customer is obliged to advise whether the customer themselves will be responsible for collecting the order, cf. item 3.
All orders are delivered FCA (Incoterms 2010). If the customer has not informed Industrial Power Systems of the collection of the product at the time of order placement at the latest, Industrial Power Systems is entitled to arrange for the transportation of the product to the customer – at the customer’s expense and at the customers risk.
4. TIME OF DELIVERY
The time of delivery is stated in the order confirmation issued by Industrial Power Systems.
5. RETENTION OF TITLE
Industrial Power Systems shall retain the full title to the product delivered until the purchase sum, including any interest accrued, is paid in full, cf. below.
6. INTELLECTUAL PROPERTY RIGHTS
Subject to the provisions set forth herein, the sale by Industrial Power Systems of a product implies the non-exclusive and non-transferable license to customer under any of the supplier’s intellectual property rights
(1) to use and resell products as sold by Industrial Power Systems to customer, as well as (2) to use and resell systems of products manufactured by or on behalf of customer that include one or more of such supplier’s products.
To the extent that software and/or documentation is embedded or made available by Industrial Power Systems supplier for downloading into a product, the sale of such product shall not constitute the transfer of ownership rights or title to such software and/or documentation to customer, but subject to the provisions set forth herein, shall only imply a non-exclusive license to customer under the supplier’s intellectual property rights to use such software and/or documentation in conjunction with and as embedded in the product.
Unless otherwise agreed, invoices issued by Industrial Power Systems are due 30 days after the invoice date. In the event of a delay in payment, interest is payable at a rate of 12 per cent per annum from the due date and until payment. In connection with the fulfilment of orders placed by enterprises with which Industrial Power Systems has not previously traded, invoices are payable upon receipt thereof. The customer is in no event entitled to withhold payment without prior acceptance in writing from Industrial Power Systems.
In the event that delivery is delayed by more than two weeks, the customer is entitled to a penalty amounting to one per cent of the purchase sum exclusive of VAT per week for that part of the delivery which is delayed. In no event can this penalty exceed eight per cent of the purchase sum
exclusive of VAT for the part of the delivery which is delayed. In the event of delays exceeding eight weeks, the customer is furthermore entitled to request in writing that the agreement be cancelled, unless delivery is affected within 14 days thereof.
9. DEFECTS AND NON-COMPLIANCE
The supplier to Industrial Power Systems is obliged and entitled to remedy any defects or non-compliance in accordance with the contents of the present provision. Industrial Power Systems is not liable for the defects or non-compliance which is attributable to Industrial Power Systems, and which result from defects in design, materials, software or manufacture. Industrial Power Systems is not liable for any defects or non-compliance whatsoever in materials supplied by the customer, in designs made by the customer nor in designs made by Industrial Power Systems in accordance with customer specifications. Industrial Power Systems is not liable for defects caused by inadequate maintenance, by the customer’s use of the product sold in a way in which it was not intended to be used, by incorrect assembly or installation on the part of the customer, by changes carried out by the customer without Industrial Power Systems consent in writing, by repairs performed by the customer or by ordinary wear and tear. Industrial Power Systems is not liable for any consequences of the customer’s incorrect installation or use of product software updates made available to the customer. Industrial Power Systems is in no event liable for any defects or non-compliance in any product sold more than two years after delivery. Industrial Power Systems can be held liable for defects or non-compliance only if the defective or non-compliant products are returned to Industrial Power Systems in suitable packaging and only to the extent that Industrial Power Systems, at its sole discretion, confirms the existence of the alleged defects or non-compliance. In the event Industrial Power Systems determines that the returned products are neither defective nor non-compliant, Industrial Power Systems is entitled to charge the customer any costs which Industrial Power Systems has incurred on account of the unfounded allegations of defects or noncompliance by the customer. The liability, if any, of Industrial Power Systems for damages – whether arising from breach of the terms agreed for the supply of products, is limited to an amount not exceeding the purchase sum giving rise to the liability.
The customer shall submit any complaint in writing to Industrial Power Systems and such complaint shall be submitted as soon as any defect or non-compliance has been observed or should have been observed, but in no event later than two years after the product has been delivered to the customer. In the event the time limit allowed for complaints passes, the customer’s right to hold Industrial Power Systems liable because of the defect or non-compliance observed shall lapse.
11. PRODUCT LIABILITY
Industrial Power Systems is not liable for personal injury only if such injury is attributable to products supplied by Industrial Power Systems. Industrial Power Systems is not liable for damage or injury caused by products made by the customer or by products which include components made by the customer or in which products made by the customer have been incorporated, when such damage is attributable to the customer’s products. If a third party, for example the customer’s customer, seeks to hold Industrial Power Systems liable for damage or injury, the customer is obliged to indemnify Industrial Power Systems in connection with any costs incurred by Industrial Power Systems as a result thereof, including any compensation payable, attorney’s fees and costs, etc. The customer is, furthermore, in support of Industrial Power Systems, obliged to enter into any court proceedings or arbitration case instituted against Industrial Power Systems by the third party.
12. INDIRECT LOSSES
Industrial Power Systems is in no event liable for the customer’s operating loss, loss of earnings, installation costs, loss of profits, loss of or damage to data, or any other indirect loss, including any loss resulting from the customer’s legal relationship with any third party.
13. REMEDYING DEFECTS AND NON-COMPLIANCE
If a product is defective or in any other way non-compliant, cf. above, Industrial Power Systems is entitled, at its own discretion, to remedy such defect or non-compliance by effecting repairs, a replacement delivery, or by refunding the purchase sum paid.
14. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
Industrial Power Systems, at its sole expense, shall:
(a) defend any legal proceeding brought by a third party against the customer to the extent that the proceeding includes a claim that any product supplied by Industrial Power Systems hereunder directly infringes the claimant’s patent, copyright, trademark, or trade secret; and
(b) hold the customer harmless against damages and costs awarded by final judgment in such proceeding to the extent directly and solely attributable to such infringement.
Notwithstanding the foregoing, Industrial Power Systems is not liable for any patent infringement arising from compliance with the customer’s design, specifications or instructions.
Industrial Power Systems has no obligation or liability towards the customer
(1) if Industrial Power Systems is not (i) promptly notified in writing of any such claim and (ii) given the sole right to control and direct the investigation, preparation, defence and settlement of such claim, including the selection of counsel and (iii) given full reasonable assistance and cooperation by the customer in such investigation, preparation, settlement and defence;
(2) if the claim is made after a period of three years from the date of delivery of the product.
If any product is or in Industrial Power Systems opinion is likely to become the subject of a claim of infringement as referred to above, Industrial Power Systems has a right, but not an obligation at its sole option to: (i) procure for the customer the right to continue to use or sell the product or (ii) replace or modify the product in such a way as to make the modified product non-infringing or (iii) terminate any supply agreement to the extent it is related to such product. Subject to the exclusions and limitations set forth in item 11 above, the foregoing constitutes Industrial Power Systems entire liability and obligation towards the customer and the customer’s sole remedy with respect to any actual or alleged infringement of any intellectual property rights of any kind.
15. FORCE MAJEURE
Industrial Power Systems is not liable for any non-performance of Industrial Power Systems obligations if such non-performance is attributable to circumstances which can be regarded as being beyond the control of the company, including but not limited to strike, fire, war, mobilisation, requisitions, sequestration, foreign exchange restrictions, uprising and unrest, shortage of transportation, general scarcity of goods, restrictions concerning energy or defects or delays in deliveries from sub-suppliers which are attributable to similar circumstances as the ones listed in this provision.
16. EXPORT CONTROLS
The products may be subject to export controls, and the delivery is therefore subject to the granting of the export authorisation required.
Any dispute in connection with the trading relation between the parties which cannot be settled amicably, shall be finally settled by a UK court, in English.
TERMS & CONDITIONS FOR ONSITE SERVICES
The present Terms and Conditions for On-Site Services (“the Terms”) shall apply to all agreements involving Industrial Power Systems installation services. The Terms apply in addition to any contract entered into between the Customer and Industrial Power Systems regarding Industrial Power Systems solutions and/or product supplies.
1) Industrial Power Systems shall perform and deliver the service(s) confirmed to the Customer in accordance with the provisions of these Terms and with the degree of skill and care required by currently prevailing best industry practices.
2) The services of Industrial Power Systems personnel are confined to product installation, programming, calibration, troubleshooting and testing of products, supplied by Industrial Power Systems. The Customer is responsible for overall plant operation, testing, and project management at the site.
3) In addition to the measures of preparation for installation to be taken by the Customer prior to the job in accordance with the quotation, order confirmation or itemised preparation document, it is assumed that throughout the installation/commissioning process:
· Qualified and authorised staff of the Customer is present or immediately available and that staff can communicate in the English language.
· Industrial Power Systems staff (or Industrial Power Systems contractors) has access to the installation site free of disturbances and that testing can be performed freely (or at least during acceptable time slots sufficient for testing or according to previously agreed testing procedures).
4) Any product supplied by Industrial Power Systems to be adapted or programmed on site is specified on the basis of information and documentation at hand as to prevailing site conditions and the technical environment with which the product or system supplied by Industrial Power Systems is to rely, control or interact, such as but not limited to: switchboards, cabling, wireless network, monitors, engines, alarm systems or generators (including equipment interfaces and functionalities), as well as information at hand as to such equipment or other contributions to be supplied and/or installed on site by other vendors. It is assumed that prevailing site installations are compliant with applicable regulations and standards. The risk of any effects of incorrect or insufficient information or non-compliance with regulations or standards shall rest with the Customer. The Customer is responsible for installation, cabling, and interfacing of all equipment connected to any delivered Industrial Power Systems supplied product prior to commissioning except to the extent any such responsibility has been specifically assumed by Industrial Power Systems in writing.
5) The Customer has to give Industrial Power Systems a minimum 10 business days’ notice before technical assistance for commissioning is required on site. Before the service is commenced, it should be checked that the installation is functioning and is complete. All signals should be loop tested prior to commissioning. The allocated days and terms for commissioning are counted from day of departure home to day of return home base.
6) The representative from Industrial Power Systems on site carrying out commissioning and start-up is only responsible for products supplied by Industrial Power Systems and their functions according to the specifications agreed. Any additions or changes outside the agreed specifications have to be clarified with the project manager with regard to technical changes, price adjustments, and changes in delivery time or other conditions.
7) If the Customer’s preparatory work is not finished before the agreed date on which the installation or commissioning is due to start, then Industrial Power Systems will consult with the Customer and seek to agree how to proceed. In some circumstances Industrial Power Systems could carry out the work at the Customer’s cost, or delay installation until the Customer has completed the work. The Customer shall be responsible for the extra reasonable costs Industrial Power Systems incurs caused by the delay to installation.
It is expressly understood that – unless explicitly agreed otherwise between the parties as evidenced by a duly signed document – any of the following activities or services are not included in the agreed services or service charges:
a) any action or activity that is required due to misuse or improper use of equipment, or a negligent act of the Customer, his technicians or any third parties (excluding Industrial Power Systems or any one on its behalf); or
b) any fault in any associated material, equipment or accessories, not provided by Industrial Power Systems; or
c) failure, instability or unsuitability of parts, tooling or accessories not provided or explicitly approved by Industrial Power Systems; or
d) any action or activity that is required due to Force Majeure or due to external influences like improper power supply or mobile connectivity, vibration, radiation, destruction including damage caused by vehicles, lock-outs, violence, vandalism and other occurrences; or
e) delivery and/or replacement of products or consumables, unless explicitly stated in the description of the purchased services purchased hereunder;
f) any action or activity that is required due to normal wear and tear;
g) use of input signals, use of software, and/or use of hardware or accessories not provided or explicitly approved by Industrial Power Systems.
8) In the event that installation or commissioning process delays beyond the number of days stipulated in the quotation or order confirmation due to reasons not attributable to Industrial Power Systems, extra time will be charged for (including any waiting time) and invoiced separately at Industrial Power Systems then current standard rates for service engineer services. Delays may also be caused by the customer requiring functionalities not foreseen in the quotation or order confirmation. Where circumstances prevent the installation or commissioning completion Industrial Power Systems reserves the right to leave the installation job/site and return again once the preventive circumstances have been removed. All related extra costs will be invoiced accordingly.
9) The Customer is responsible for project management at the site and for advising Industrial Power Systems well in advance of the scheduled on-site services of any local safety requirements or codes or special precautions that must be adhered to by Industrial Power Systems staff during the performance of services. If special personnel safety equipment is mandatory, the Customer is responsible for providing the Industrial Power Systems service engineer with such equipment or specialist training. Industrial Power Systems reserves the right to discontinue on-site services in the event that the Industrial Power Systems staff deems working conditions unsafe (irrespectively of compliance with any applicable safety code or requirement).
10) Unless to the extent specifically provided for in any order confirmation, the price of installation and/or commissioning is exclusive of travel and accommodation for Industrial Power Systems staff (and staff of any Industrial Power Systems installation contractor). Travel and accommodation will be charged at cost plus a handling charge of 15%. The Industrial Power Systems staff will usually be staying at hotels at a reasonable quality level and as close to the installation site as possible. If the site is located beyond reach of public or private transportation the Customer shall provide for suitable means of transport and local accommodation for the Industrial Power Systems staff.
11) LIMITATION OF LIABILITY
The liability, if any, of Industrial Power Systems for damages, whether arising from breach of the terms agreed for the supply of products, or otherwise with respect to the installation or commissioning work hereunder, is limited to an amount not to exceed the total value of the order giving rise to the liability. Nothing herein is intended to relieve Industrial Power Systems from liability for third party claims relating to personal injury, death, or tangible property damage to the extent caused by Industrial Power Systems or its respective employees’ or contractors’ wrongful or negligent acts or omissions.
INDUSTRIAL POWER SYSTEMS SHALL HAVE NO LIABILITY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST REVENUES OR PROFITS, OR GOODWILL ARISING FROM ANY FAILURE OR MATTER ARISING UNDER THE INSTALLATION OR COMMISSIONING. Additionally, Industrial Power Systems shall have no liability for any claims or damages arising from or related to: (1) pre-existing site conditions, construction or design; (2) information, data or documents provided by the Customer for use by Industrial Power Systems in connection herewith; (3) work of third parties not under contract to Industrial Power Systems; and (4) environmental pollution or exposure to hazardous materials except as directly and solely caused by work performed by Industrial Power Systems hereunder.
13) All disputes arising out or related to these Terms shall be submitted to the responsible management of the parties for amicable resolution. In the absence of settlement, the laws of the UK shall have exclusive jurisdiction.
The Terms and Conditions of Sale and Delivery for Products supplied by Industrial Power Systems shall apply.
TERMS & CONDITIONS FOR PROJECTS
The Terms and Conditions for Projects are hereafter referred to as “the T&Cs”.
1) These T&Cs govern exclusively Industrial Power Systems development of one or more power control solution(s) tailored for a Customer-specific solution. All proposals, functional specifications, quotations or acknowledgments issued by Industrial Power Systems, these T&Cs, and a Customer valid purchase order constitute Industrial Power Systems agreement with the Customer with respect to such services.
2) The services comprise the development of a specific project proposal, possibly with diagrams and component lists, which will include 3rd party products (the “Deliverables”).
The sale of products and any rendering of on-site services, including installation services, shall be governed by the Terms and Conditions of Sale and Delivery for Products and the Terms and Conditions for On-Site Services of Industrial Power Systems, respectively.
3) The Deliverables are provided on the basis of the Customer’s information about the available installations and the agreed functional specifications.
4) Industrial Power Systems shall perform and deliver the project service(s) described to customer in accordance with the provisions of these T&Cs, and with the degree of skill and care required by currently prevailing best industry practices.
5) The Customer shall be obligated to fully inform Industrial Power Systems of any and all facts relevant to the suitability of the Deliverables.
Industrial Power Systems shall not be obligated to check or verify data, information or other services supplied to Industrial Power Systems by the Customer, with regard to completeness and correctness, unless such verification has been expressly agreed upon between the parties as being a contractual duty.
In the event that information or documentation supplied by the Customer proves to be faulty, incomplete, and ambiguous or objectively non-executable, the Customer shall affect the required corrections and/or amendments.
The Customer will be responsible for, and assumes the risk caused by any problems resulting from the content, accuracy, completeness and consistency of all such data, materials and information supplied by the Customer.
6) The parties acknowledge and agree that the services are being provided by Industrial Power Systems on the basis that the project’s financial or operational risks shall be the sole responsibility of the Customer.
7) In the event Industrial Power Systems commits an error with respect to, or incorrectly performs the services, Industrial Power Systems shall use commercially reasonable efforts to correct such error, or re-perform such services at no cost to the Customer.
The Customer will give Industrial Power Systems a reasonable opportunity to remedy any deficiencies. The Customer acknowledges that his sole and exclusive remedy, and Industrial Power Systems sole and exclusive liability, for any defect or error in the services shall be correction, re-performance or substitution of such services by Industrial Power Systems.
Industrial Power Systems liability for a claim of any kind arising out of the design services provided pursuant to these T&Cs shall in no case exceed the fees paid by the Customer. In no event shall Industrial Power Systems be liable for any special, indirect, incidental or consequential damages, including loss of profits or business interruption however caused, arising from the services provided pursuant to these T&Cs.
8) Industrial Power Systems works on the basis of generally accepted international standards but takes no responsibility for society or other approval of the project proposal as devised. The obtaining of any required system approvals by marine societies, by other classification societies, or any local statutory approvals lies entirely with the Customer.
9) These T&Cs shall govern over any inconsistent terms in the documentation referred to in clause 1 above, except those specifically identified as a modification to these T&Cs. Any amendment to the agreement must be in writing and signed by both parties.
10) All disputes arising out of or related to these T&Cs or the documentation referred to in clause 1 shall be submitted to the responsible management of the contracting parties for amicable resolution.
In the absence of settlement, the laws of the UK shall govern this agreement (without regard to choice of law principles), and the courts of the UK shall have exclusive jurisdiction.