These general terms and conditions (hereinafter ”GTCs”) shall apply to all offers, deliveries and services by SOLTARO Australia Pty. Ltd.. (including its parent, subsidiaries and affiliated companies, hereinafter “SOLTARO”) to any direct customer (hereinafter the “Customer”) pursuant to any order, invoice or other purchase document between SOLTARO and the Customer (any of which, hereinafter a “Contract”). Unless otherwise expressly agreed by the parties in writing, these GTCs shall govern over the other terms of any Contract.
Cancellation or modifications of all or part of any Contract are subject to SOLTARO’s prior written consent in each instance. If cancellation or modification is allowed, Customer agrees to pay to SOLTARO all expenses incurred and damage sustained by SOLTARO on account of the cancellation or modification, plus a reasonable profit.
Prices in any Contract from SOLTARO are subject to change upon notice sent to Customer at any time before the Contract has been accepted. Prices for Products covered by these GTC may be adjusted by SOLTARO, upon notice to Customer at any time prior to shipment, to reflect any increase in SOLTARO’s cost of raw materials and parts incurred by SOLTARO after issuance of the applicable Contract. All stated prices are exclusive of any taxes, fees, duties, and levies, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under these GTC (collectively, “Taxes”). Any Taxes related to the Products purchased pursuant to these GTC are the responsibility of Customer (excluding taxes based on SOLTARO’s net income), unless Customer presents an exemption certificate acceptable to SOLTARO and the applicable taxing authorities. If possible, SOLTARO will bill Taxes as a separate item on the invoice presented to Customer. If any exemption certificate presented by Customer is held to be invalid, then Customer will pay SOLTARO the amount of the Tax and any penalties and interest related thereto.
Unless otherwise set forth in the Contract, Customer will pay all invoiced amounts within thirty (30) days following the date of SOLTARO’s invoice. Unpaid amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus SOLTARO’s reasonable costs of collection. SOLTARO reserves all other rights granted to a seller under the Uniform Commercial Code (“UCC”) for Customer’s failure to pay for the Products or any other breach by Customer of these Terms. In addition to all other remedies available to SOLTARO (which SOLTARO does not waive by the exercise of any rights hereunder), SOLTARO may suspend the delivery of any Products if Customer fails to pay any amounts when due and the failure continues for five (5) days following Customer’s receipt of notice thereof.
The Customer shall be granted the non-exclusive right to use any software referenced in the Contract. Sublicensing, selling or using the software in any other manner, as well as the reproduction, reverse engineering or other modification of the software (other than duplication for backing up purposes) shall only be permitted with the written consent of SOLTARO. In the event of infringement, the Customer shall be obliged to compensate SOLTARO for the damages suffered by the latter. All property interest (including intellectual property in and to the software shall remain with SOLTARO, and in no case shall the Customer obtain any right, title or interest in or to the software except for the limited license granted herein.
All business information, including but not limited to trade secrets that SOLTARO provides to the Customer, or that comes into the possession of the Customer, shall be deemed to be proprietary and confidential and shall vest solely in SOLTARO. The Customer shall not disclose such information to any third party or use it for any purpose other than in connection with an order, without the prior written consent of SOLTARO, which SOLTARO may in its sole discretion withhold.
Any documents, prototypes, examples or samples, technical data and descriptions in the respective product information or advertising materials included in any Contract are nonbinding, and are solely for information purposes. To the extent permitted by law, they do not constitute any guarantee of quality or durability in relation to any products to be supplied or services to be rendered by SOLTARO.
Prices &-Terms of Payment
Prices are quoted FOB per INCOTERMS 2020. For products deliverable from the local SOLTARO warehouse, the delivery terms shall be FCA SOLTARO warehouse or DAP place of destination indicated on the purchase order per INCOTERMS 2020. Notwithstanding the pricing excludes shipping, handling, insurance, applicable taxes, and unloading for which the cost shall be borne by the Customer, unless otherwise included in the order confirmation.
Cancellation in whole or part of any confirmed customer order shall NOT be attempted, permitted, or accepted, except by mutual agreement in writing.
Unless otherwise directed by SOLTARO in writing, all payments shall be made in USD dollars, and shall be due within 30 days from the SOLTARO invoice date. SOLTARO shall be entitled to charge interest on overdue accounts at a rate of 12% per annum, calculated and payable monthly. Interest shall accrue on overdue interest in the same manner.
If (a) the Customer defaults on any payments owing to SOLTARO, whether under any Contract or any other agreement or (b) circumstances arise or become known to SOLTARO that, in SOLTARO’s opinion, call the Customer’s creditworthiness into question, including but not limited to insolvency proceedings instituted involving the Customer or the Customer’s assets, SOLTARO shall be entitled, in its discretion and without prejudice to any other remedies available hereunder or at law, to any or all of the following remedies: (i) to declare any amounts outstanding to then be immediately due and payable; ( ii ) demand and receive additional or other reasonable security; and ( iii ) terminate the Contract if the Customer fails to pay the amount due after a reasonable period of notice.
Customer may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with SOLTARO, regardless of whether relating to SOLTARO’s breach, bankruptcy, or otherwise.
Delivery and Passage of Risk – Delivery deadlines – Delivery Delay – Delivery Default
Deliveries of residential, commercial, and off-grid storage products will be made on a FOB arrival port basis per INCOTERMS 2020. For products deliverable from the local SOLTARO warehouse, the delivery terms shall be FCA SOLTARO warehouse or DAP place of destination indicated on the purchase order per INCOTERMS 2020. If requested by the Customer, products will be made available to a carrier selected by SOLTARO, at the Customer’s sole expense.
SOLTARO shall be entitled to provide and invoice partial deliveries and services from time to time and shall be entitled to modify the materials used in the manufacture of the products without prior notice to the Customer, provided this does not materially alter the properties or functionality of the products.
Deadlines for any delivery are estimates only. However, SOLTARO will use reasonable commercial efforts to meet any such deadline, provided that all provisions, documents, permits and releases to be supplied by the Customer are received in due time, and if the agreed payment terms, including advance payments and all other obligations required for the delivery are fulfilled. Otherwise, the delivery estimate will be extended by a reasonable period of time equal to the length of the delay.
In the case of a force majeure, including but not limited to acts of God, war, riot, insurrection, labor disputes, measures by public authorities, severe weather or the occurrence of similar events beyond the reasonable control and foreseeability of SOLTARO, SOLTARO shall not be responsible for the performance of any obligation affected by such force majeure for so long as it is in effect. The time for performance will be extended by a period of time equal to the length of the force majeure. If the force majeure event prevents SOLTARO’s performance of its obligation for a period of 6 months or more, either party shall be entitled in its sole discretion to terminate the Contract, in which event SOLTARO will refund any amount of the price for such Contract paid by the Customer, other than those relating to costs incurred by SOLTARO which cannot be mitigated.
If the goods ordered in the Contract are not available because there is a lack of supply with SOLTARO’s suppliers, SOLTARO shall be entitled to replace such good with an alternate or substitute good of similar quality and price. If no such replacement is available, SOLTARO may rescind the Contract, upon prior notification to the Customer of the non-availability of the product or good in question, in conjunction with the immediate reimbursement to the Customer of any payments already made in relation to such product or good.
If the Customer requires the equipment to be held in storage after the requested delivery date, then any costs incurred by SOLTARO shall be billed directly to the Customer including, but not limited to the following fees: $130 per unit/per month (or part of any month) for stored inverter or battery products; (ii) $70 per each battery or inverter unloaded or loaded by SOLTARO. No costs shall incur or be levied for the first fifteen (15) days of storage following the original requested delivery date. SOLTARO shall have the right to modify costs provided it gives no less than 30 days prior written notice.
Retention of title
Legal title shall not pass, and the delivered products shall remain the exclusive property of SOLTARO, until all obligations of the Customer arising from the Contract have been performed, including full payment. Until then, the Customer shall not sell or transfer in any way or lien, pledge, grant a security interest in or otherwise encumber the products. If any such encumbrance is nonetheless created, the Customer shall notify SOLTARO immediately of such encumbrance.
The Customer is entitled to sell the products supplied by SOLTARO purchased as inventory in the ordinary course of business notwithstanding the above retention of title, provided however, that the Customer hereby assigns all claims it has against its customers with respect to payment for the products to SOLTARO to the extent of the value of the obligations outstanding to SOLTARO, and shall use its best efforts to collect such claims on behalf of SOLTARO. To the extent there are outstanding obligations owed to SOLTARO, the Customer shall hold any proceeds received in connection with such a sale in trust for SOLTARO and shall forthwith remit those proceeds to SOLTARO upon receipt.
Any processing or manufacturing of the supplied products while title retention rights apply shall be carried out for SOLTARO without binding SOLTARO to any additional obligations. If the products to which title is retained are inseparably processed with third party goods that do not belong to SOLTARO or become fixtures, SOLTARO is entitled to the resulting co-ownership share of the new goods in proportion to the invoiced value of the supplied goods with the other goods at the time of processing.
If the Customer breaches the Contract or fails to pay SOLTARO any amount when due, the Customer shall return the products to SOLTARO upon demand. If the Customer fails to promptly return the products, SOLTARO, or a private receiver appointed by it, shall be entitled to enter upon the premises where the products are located and take possession of them at the cost and expense of the Customer.
All costs and expenses incurred by SOLTARO in enforcing these provisions, including legal fees on a full indemnity basis, shall be for the Customer’s account, and constitute a lawful debt of Customer to SOLTARO.
Acceptance – Limited Warranty
The Customer shall inspect all goods and products purchased from SOLTARO immediately on delivery to ensure that there is no transport damage and the products are complete and free from defects. Material defects, or incorrect/incomplete delivery must be reported to SOLTARO, in writing, within 7 days of receipt of the products. Otherwise, delivery will be deemed to have been accepted by the Customer. Notwithstanding the above, the Customer may not refuse acceptance of deliveries due to immaterial defects (including but not limited to cosmetic damage or variations in color or texture) and subject to the terms of this clause, SOLTARO shall not be responsible for any damage or defects which occur after risk has passed to the Customer.
Products purchased from SOLTARO are warranted to be free from manufacturing and material defects as set forth in SOLTARO’s applicable Limited Factory Warranty. This warranty shall not apply to immaterial defects, normal wear and tear, damage caused after the transfer of risk, or damage related to or caused by the use of unsuitable equipment or tools, faulty construction work, overload, lightning, modifications, improper maintenance, and external influences such as extreme weather or negligence.
SOLTARO does not warrant the Products, or any repaired or replacement parts, against normal wear and tear or corrosion. Each SOLTARO Limited Factory Warranty is expressly conditioned upon: (i) Customer’s payment of the purchase price in full, (ii) Customer giving written notice of the defect, reasonably described, to SOLTARO within ten (10) days of the time when Customer discovers or ought to have discovered the defect, (iii) the storage, installation, operation, use, and maintenance of the Products in compliance with SOLTARO’s instructions and usage specifications, (iv) the existence of proper records of Customer’s operation and maintenance of the Products during the Warranty Period, (v) Customer providing SOLTARO with a reasonable opportunity to examine the Products and the aforementioned records, and (vi) the absence of any unauthorized modification or repair of the Products, including without limitation the removal or alternation of any serial numbers or warranty date decals.
Customer will bear the costs of access, de-installation, re-installation and transportation of the Products to SOLTARO and back to Customer, save for those costs that are compensated by SOLTARO on its website or set out in a Contract between SOLTARO and the Customer. Any repair or replacement pursuant to this limited warranty will not extend the Warranty Period.
Before any test may be used to evaluate the Products, Customer will: (i) provide SOLTARO with reasonable written notification of the test, (ii) allow SOLTARO to be present during the test, and (iii) receive SOLTARO’s consent to the conditions of the test, which consent will not be unreasonably withheld. If a test is performed on the Products, and SOLTARO has not consented to the conditions of the test, then this limited warranty will be void
The warranties expressly set forth above and herein are the exclusive warranties made by SOLTARO with respect to the products.
Without limitation to section 5(f) below concerning guarantees under the local consumer Law in the country of the Customer, all warranted defective products reported to SOLTARO within the applicable limitation period and which SOLTARO reasonably verifies shall, at the discretion of SOLTARO, be repaired or replaced in accordance with SOLTARO’s Limited Factory Warranty.
SOLTARO makes no warranty whatsoever that any product will satisfy domestic content requirements in any country, unless otherwise expressly made in writing in the relevant Contract.
THE REMEDIES SET FORTH IN THIS SECTION ARE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES FOR ANY FAILURE OF SOLTARO TO COMPLY WITH ITS OBLIGATIONS UNDER CONTRACT, INCLUDING ANY BREACH OF THE LIMITED FACTORY WARRANTY. SOLTARO MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, OF ANY KIND, AND CUSTOMER DISCLAIMS ALL OTHER WARRANTIES WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Other Compensation Claims
To the extent permitted by law and subject to the customer’s rights under any applicable consumer law as set out in section 5(f) above:
SOLTARO’s liability with respect to all claims of any kind, whether in contract, tort (including negligence) or other legal theory, for all losses or damages arising out of or connected with any contract or these general terms & conditions or the performance of any of its obligations thereunder shall be limited to the purchase price actually paid by the customer for the product giving rise to the claim.
In no event shall SOLTARO be liable for special, incidental, punitive, exemplary or consequential damages or other similar damages, including but not limited to loss of profits, revenue or anticipating savings, loss of use, loss of business or loss of data or records, whether or not SOLTARO was informed or aware of the possibility of such loss.
SOLTARO products may NOT be used in the medical or in aviation applications without SOLTARO’s prior written consent.
All matters arising out of or relating these GTC is governed by and construed in accordance with the laws of Australia without giving effect to any choice or conflict of law provision or rule (whether of Australian law or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of Australia. Any legal suit, action or proceeding arising out of or relating to these Terms will be instituted in the courts located in Australia. Each party irrevocably submits to the exclusive jurisdiction of the courts in any the suit, action or proceeding.
These GTC, together with the appropriate Contract documents, constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements. No oral agreements shall be binding on either party.
The invalidity or unenforceability of any provision of these GTC or any Contract shall not impair the validity or enforceability of any of the other provisions.
Specific terms for Australian Customers
Notwithstanding any other provision of these GTC, other than for goods that are to be resold by the Customer, SOLTARO’s goods come with guarantees that cannot be excluded under the Australian Consumer Law. The Customer is entitled to a replacement or refund for a major failure and compensation for any other reasonably foreseeable loss or damage. The Customer is also entitled to have the goods repaired or replaced if the goods fail to be of acceptable quality and the failure does not amount to a major failure.
Subject to any statutory guarantees under the Australia Consumer Law that cannot be excluded, SOLTARO disclaims all other warranties, conditions and obligations of any kind whatsoever, expressed or implied.
Customer shall comply with Australian federal law in any re-export of items purchased hereunder. SOLTARO reserves the right to not provide services in countries with a high safety risk or to provide them only under certain limited conditions. Please refer to the general terms of delivery and the Limited Factory Warranty for more details.
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