GENERAL terms and CONDITIONS
I. General Scope
- The following General Conditions of Sales and Deliveries regulate the current and future business relationships between mPower GmbH (“mPower”) and the Customer “Customer” and shall be a part of the contract of purchase. Changes and additions must be made in writing.
- Conflicting or deviating conditions of purchase or other reservations made by the Customer shall not be effective unless the mPower has expressly accepted them in writing for a specific order.
- The customer shall not duplicate or provide access to third party; the software delivered by mPower, as well as the documentation and shall only be used for the purpose specified by the customer. The customer shall not analyse, chemically or otherwise, the equipment delivered to determine the identity and/or properties of components used to prepare the equipment.
II. Offers, Orders, Services
- After mPower has confirmed the acceptance or confirmation of the order, it is considered to be binding and accepted under the acknowledged conditions and if the Customer does not object to these conditions in writing prior to the end of the mentioned offer period or immediately after having received the confirmation of the order.
- The mPower reserve the right to accept or reject variations in the performance of the contract as agreed upon, only if, in the sole opinion of the mPower, such variations are reasonable concerning their complexity and their nature.
- The mPower's offers shall not be binding with respect to price, quantity, delivery time or availability unless mentioned or quoted specifically to the Customer.
- The Customer's orders shall become binding to the mPower upon receipt of the mPower's written or computer-printed acknowledgement (including invoice or delivery receipts) by the Customer.
- Services to the Customer with respect to rights granted in purchase or delivery contracts with the mPower shall be not effective until the mPower's prior written consent.
- The prices invoiced shall be the mPower's prices effective at the time of delivery, plus statutory VAT, packaging, transportation and related insurances.
- Should the mPower, in the interval between conclusion of the contract and delivery, effect a general price increase, the Customer shall have the right to withdraw from the contract within two weeks of having been informed thereof, unless the price increase is exclusively due to an increase in freight rates. The right of withdrawal shall not apply to long-term supply contracts (contracts for the performance of a continuing obligation).
IV. Terms of Payment, Payment Transactions, Delayed Payment
- All devices and services are offered on the basis of an advance payment, except Technical Support, which is billed on a monthly basis according to actual time and material efforts.
- Payments shall be made without cash discount and with an indication of the invoice number to the account designated by mPower GmbH. An advance payment of 50 % of the total price, due within 30 days after placing the order as quoted in the respective offer. The final payment due within 30 days after delivery.
- The Customer shall examine mPower's invoice within 10 days after receipt. mPower's invoice is considered to have been accepted by the Customer unless it is accepted through written communication by both the parties.
- The statutory rules for default in payment apply. Should Customer exceed the term of payment, the mPower shall have the right to charge interest at a rate of eight per cent above the basis interest rate. The mPower reserves the right to prove and claim a higher damage caused by delay.
- When mPower has reason to doubt the Customer's solvency or credit worthiness, and the Customer is not prepared to effect advance cash payment or provide mPower with security as requested, the mPower shall have the right to cancel that portion of the contract which he has not yet performed.
- Deposits and advance payments shall be made plus VAT, if required.
- Payment shall not be deemed to have been effected until the amount has been finally cleared into the mentioned mPower’s account.
- mPower reserves the right to use payments for the settlement of the invoices which have been outstanding longest, plus any interest on arrears and costs accrued thereon, in the following order: costs, interest, principal claim.
- The Customer shall not have the right to withhold payments. Counterclaims may only be offset if they are uncontested or have become res judicata.
- mPower shall make every effort to effect delivery as early as possible. There shall be no fixed periods for delivery unless agreed in writing by both the parties at least 3 weeks before the delivery.
- Delivery shall be subject to punctual delivery of the appropriate goods by mPower unless given in writing to the Customer.
- The delivery date will be approx.16 weeks after placing the written order. Any changes to the delivery time will be informed through email after agreed by both the sides before three weeks of redefined delivery date.
- Natural calamities like 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 mPower obliged to fulfil the contract that diminish, delay or prevent production, shipment, acceptance or use of the Products, 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.
VI. Rights to the Contractual item
- The customer is to receive ownership of the equipment to be constructed and of the documentation. The customer is entitled to use the equipment in accordance with its purpose of use. Further rights, including, but not limited to, licenses on copyright, know-how, inventions made or IP rights applied for or granted to mPower GmbH shall not be granted to the customer.
VII. Retention of Title
- The customer shall only be granted ownership of the equipment and the documentation after full payment of the agreed remuneration. Ownership on mPower may neither be mortgaged nor transferred as security. In the event that mPower ownership of the equipment lapses through combination, commingling, or processing it is already hereby agreed that the ownership of the combined object created in such case shall, until full payment of the agreed fee, be assigned pro rata (invoiced value) to mPower GmbH.
- In the event of onward sale of the equipment prior to complete payment of remuneration, the customer shall cede to mPower all rights in the proceeds of the onward sale to mPower GmbH until full payment of the agreed remuneration.
- mPower GmbH shall be responsible for applying scientific care and for complying with accepted scientific standards. Should the equipment delivered by mPower prove to be defective and the same was identified before installation, mPower shall first be given the opportunity to supplementary performance - depending on the nature of the defect and other circumstances also repeatedly - at its own choice either by means of remedying the defect or substitute delivery. Probes and sensors are wear-and-tear parts. The wear-and-tear of these parts is not deemed to be a defect and is therefore not subject to warranty. Should mPower reject supplementary performance or if supplementary performance cannot be achieved or the Customer cannot reasonably be expected to accept supplementary performance, then the Customer may either terminate the contract or demand reduction of the fee owed (reduction). The right to termination may be exercised only in case of a serious defect. Such right lapses if the Customer does not declare the termination of the contract within 14 days after receiving notification of rejection or failure of supplementary performance or at the latest 14 days after the date at which it is recognized that the Customer cannot reasonably be expected to accept supplementary performance. Further rights of the Customer by reason of defects shall be precluded hereby.
- The Customer shall immediately examine the product supplied by mPower and report any defects found without undue delay. mPower only warrants for recognizable defects if it has been notified thereof within a period of 14 days from the date of delivery.
- In case of an infringement of third party intellectual property rights, mPower shall only be liable if such rights apply in the Republic of India, if the Customer uses the equipment in a manner consistent with the contract, if a court decision based on infringement by the Client of third party intellectual property rights is rendered against the Customer, and if the Customer has immediately notified mPower in writing of the claims asserted by such third party. Supplementary performance will be carried out by mPower either by obtaining a contractual authorization for the Customer’s use or by modifying the equipment such that the relevant third party intellectual property rights are no longer infringed. The liability of mPower, its legal representatives and agents, in the case of violation of obligations and tort, shall be limited to intent and gross negligence. Except in case of intent, liability shall be limited to the foreseeable, contractual typical damages. Except in case of intent, mPower shall not be liable for primary financial losses (e.g. lost profit).
- If mPower could not fulfill the performance as agreed upon, not do so at the time due or not in the manner agreed upon, then the Customer may only demand compensation equal to the value of instrument in lieu of performance if the Customer has unsuccessfully set an appropriate deadline for the performance to mPower including the statement that it would reject acceptance of the performance.
IX. Product Liability:
- The Customer is aware that the equipment also contains a product liability risk. The Customer shall ensure adequate insurance against this risk. Independently thereof, the Customer will indemnify mPower from any product liability claims made by third parties.
- The contracting parties shall, for a period of five years after receipt of this offer, not make information of a technical or commercial nature received from the respective other party and declared to be confidential accessible to third parties. This shall not apply to information known or generally accessible to the other contracting party or to the public, or to information that becomes known or generally accessible to the public after disclosure without any involvement or fault on the part of the other contracting party, or correspond to information disclosed or made accessible to the other contracting party by an entitled third party, or independently developed by an employee of the other contracting party not in possession of the information disclosed.
- Third parties within the meaning of this provision shall not include subcontractors mPower if these have been entrusted with a part of the services by mPower within the context of the assignment and if they have been placed under an obligation of confidentiality.
- The contents of this quote, as well as all drawings and other documentation related to this quote and given to the Customer, shall not be made accessible to third parties by the Customer and shall be returned to mPower on demand if the quote is not accepted.
- mPower reserves the right to changes in so far as they are due to technical or scientific improvements. The stated technical data are intended but not guaranteed characteristics.
XII. Termination of Contract
- Both the Customer and mPower are entitled to terminate the contract with immediate effect for good cause. Should no substantial progress have been achieved within six months of commencement of work, notice of termination may be given with one month’s notice at the end of any calendar month. Following effective notice of termination, mPower will, within four weeks, deliver the results achieved up to that date to the Client.
- The Customer is obliged to remunerate mPower for expenses incurred up till date. Personnel costs shall be reimbursed as incurred up to the date of termination. In the event that the termination is due to a fault by one of the contracting parties, this shall not affect damage compensation claims.
- Ancillary agreements, amendments, additions hereto must be made in writing. This also applies to any waiver of the written form requirement. Place of performance for mPower shall be Dresden, Germany. Place of performance for payment by the Customer shall be Germany. Where this contract does not provide any other regulation of the matter, the provisions of service contract law shall apply.
- This contract shall be governed by and construed in accordance with the laws in Germany. The United Nations Convention on the International Sale of Goods (CISG) shall not apply. Place of jurisdiction shall be Germany. Should one or more provisions of this contract be or become fully or partially void or un-enforceable then the validity of the remaining provisions shall remain unaffected. The same shall apply in the case of an unintentional gap in the provisions.
- To comply with statutory obligations of mPower, the results of mPower SOFC products and stack modules demonstration activities and field trials will be documented by mPower GmbH. The client shall provide statistical data and technical information on stack as well as system operation (e.g. accumulated operating hours, accumulated number of operating cycles, and short description of practical applications) upon request by mPower. It is recommended to create and maintain an electronic logbook for each delivered system. For the submission of requested information, a short questionnaire is prepared by mPower and sent to the Customer in due time. This offer is valid until June 30, 2016. Quoted system prices remain valid for a period of 1 year after the date of binding order.
XIV. Warranty for Defects
- The delivery will have to be examined immediately by the Customer after handing over or receiving the shipment. Defects, shortfall quantities, and other irregularities of the performance agreed upon are to be reported in writing to us immediately after their discovery or detection and within 3 days after delivery.
- If the actual quantity delivered (number of parts, weight) should differ from the quantity stated in the delivery receipt or the transport document, the Customer will have to report and prove this difference when accepting the delivery. In the case of shipping, the last carrier will have to be informed, otherwise an oversupply is considered to be approved, and any claim for later delivery of a shortfall quantity is waived and excluded.
- If proven defects in a delivery are discovered, such defects must be reported in sufficient time, max. within 3 days, to allow us to correct these in a subsequent delivery.
- mPower will decide to repair or replace goods proven to be defective, and either take back the defective product and deliver a product free from defects, or we will eliminate the defect. If, at the time of the discovery and reporting of a defect, the purchase price is already due from the buyer, mPower will be obliged to make a subsequent delivery and replace proven defective goods only after the Customer has paid the portion of the purchase price that is equivalent to the value of the products or goods proven to be defective.
- If a subsequent delivery fails, the Customer may choose either to lower the purchase price or to withdraw from the contract. Further claims of the Customer – no matter what the legal ground may be – are excluded.
- In the case of a defect reducing the value or the suitability of the product or goods only minimally or insubstantially, the Customer may neither demand a subsequent delivery nor reduce the purchase price.
- If the defect is due to a discrepancy to statements from advertisements concerning the features of the product, the Customer will have to prove that the advertisement was the cause for his purchase decision.
XV. Indemnification and Reimbursement for Expenditures
- In principle, we are liable for indemnification only when the damage is due to a deliberate, gross or wanton negligent breach of duty, committed either by ourselves or by our agents. However, this limitation is not effective in the case of indemnification due to personal physical injury. In the case of claims for indemnification due to non-delivery or delay, this limitation of liability is not effective.
- The Customer may only demand reimbursement for actual and direct expenditures in the case of a deliberate or wantonly negligent breach of duty on our part.
XVI. Limitation of Claims concerning Defects
- Claims due to deficient performance will be limited to one year time from date of delivery of each shipment of the goods or products.
XVII. Conditions of Payment
- Payment terms are always provided along with the offers.
- Product samples are to be paid for immediately without deduction after entry of the invoice.
- mPower will principally not accept checks and bills of exchange from third parties.
- In the case that, after the conclusion of the contract, we find out about facts concerning the financial circumstances of the buyer that seem to put our purchase price claim severely at risk, mPower may refuse the delivery until the purchase price is paid fully or partially.
- In the case of delay of payment mPower is entitled to make our performance of ongoing orders - also due to other contracts concluded with the Customer – dependent from the simultaneous payment of the purchase price or the simultaneous delivery of adequate security. After a further reminder and the failure of the Customer to pay for the goods after an adequate extension of time, we may withdraw from single contracts or from all of the contracts entered into with the Customer, insofar as they are not yet or only partly fulfilled for us, or demand indemnification due to non-fulfilment without the need for a corresponding announcement of rejection; for the rest we may assert all of our claims towards the Customer and utilize our securities. Legal claims in the case of delay of payment will remain unaffected for the rest.