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General Terms and Conditions of Delivery and Payment

of BayWa r.e. Solar Systems Corporation (hereinafter referred to as “BayWa r.e.”)

I.  SCOPE OF TERMS

1). These General Terms and Conditions of Delivery and Payment (hereinafter: “Terms”) apply to all legal transactions/deals, including all corresponding secondary and auxiliary transactions, whose direct or indirect object/ origin is the distribution (sale) of the products traded by BayWa r.e.

2). Business transactions, including all auxiliary, secondary, and executing transactions (deliveries and services), as well as the preceding offers of BayWa r.e., are based exclusively on these Terms.

3). They also apply to legal obligations whose origin lies directly or indirectly in business transactions between BayWa r.e. and business partner/customer (hereinafter referred to as the “Customer”), as well as for future business relations between them, should BayWa r.e. refer to these. Each BayWa r.e. and the Customer shall be referred to as a “Party” and collectively the “Parties”.

4). If BayWa r.e., as a trade enterprise, is economically or legally limited on the supply side by terms of preliminary suppliers, also those of components, single parts, and software, these limitations also apply to the Customer of BayWa r.e., if and to the extent to which BayWa r.e. has informed the Customer about the limitation upon the closing of the transaction and instructed the Customer about its contents.

5). These Terms become the subject of the transaction with the Customer through indications/references to them by BayWa r.e. in offers, acceptances (express or implied), order confirmations, and other equivalent documents, or through the conclusion of framework agreements/term sheets (if applicable) (collectively referred to as the “Order”).

II. ORDER CONFIRMATION

1). The Order may be issued by way of an offer by BayWa r.e. to the Customer and the offer shall become binding upon the earlier of (i) signing of acceptance of the offer by the Customer, (ii) signing of a purchase order by both Parties, (iii) receipt by the Customer of a confirmation from BayWa regarding the offer in any alternative form, or (iv) once BayWa issued the proforma invoice to the Customer upon the receipt of purchase order, unless BayWa explicitly rejects the terms of the purchase order in writing. By completing the offer, the Customer agrees to purchase, and BayWa agrees to deliver, the products as specified in the offer.

III.  PRODUCTS, PRICE AND TERMS OF PAYMENT

1). Description of products, quantity, price per unit, total price, terms of payment, terms of delivery, and delivery lead time shall be as described in the Order.

2). Price: The price is exclusive of value added tax (“VAT”) and/or any other sales related taxes, if any, any direct or indirect taxes, levies, customs, tariffs, duties, imposts and fees, and/or any other payment being applicable at the point in time the Order becomes binding. The price shall not include any transportation costs and any other services provided by BayWa r.e. in connection with the delivery of the products at the place of performance in accordance with the agreed Incoterms.

3). BayWa r.e. shall issue its invoice(s) as soon as reasonably practical after delivery of the products at the place of performance.  Save as otherwise agreed, payment shall be made in full by the Customer before delivery is made (“ETD”) to a bank account nominated by BayWa r.e. All payments shall be made by the Customer to BayWa r.e. without any deductions or offset for any reason, unless otherwise agreed or waived by BayWa r.e.

4). Any overdue amount will be subject to interest at the rate of 0.02% per day running from the 15th day after due date for such payment until receipt by BayWa r.e. of the full amount.  BayWa reserves the right to suspend the delivery of any of the products or to terminate the binding Order immediately in case the Customer is in default or in delay with any payment.  Once the Customer has remedied the default situation, BayWa r.e. will inform the Customer on the new delivery schedule and reserves the right to renegotiate the price according to market fluctuation.

5). If the Customer pays through an irrevocable, unconditional and assignable L/C at-sight opened from an internationally reputable bank, such L/C shall be subject to the Uniform Customs and Practice for Documentary Credits 2007 revision I.C.C. publication no. 600.  The original L/C shall be opened and provided to BayWa r.e. no later than the 15th day before the ETD.  The original L/C shall be subject to acceptance of BayWa r.e.  Each Party shall be responsible for its own bank charges.  BayWa r.e. reserves the right to suspend the delivery of any of the products or terminate the Order immediately in case the Customer is in default or in delay with opening the L/C.  Once the Customer has remedied the default situation, BayWa r.e. will inform the Customer on the new delivery schedule and reserves the right to re-negotiate the price according to market fluctuation.

IV.  TERMS OF DELIVERY AND PRODUCT INSPECTION

1). BayWa r.e. shall use best effort to ensure that the products are delivered to the Customer at the place of performance, free of any design error, defect, deficiency, omission, non-conformity, failure, malfunction, irregularity, or otherwise, which relates to any performance characteristic of the products (including in any design, materials or workmanship) and for which BayWa r.e. is responsible (“Defects”).

2). BayWa r.e. shall inform the Customer immediately in writing once BayWa r.e. has reason to believe that the delivery schedule may not be complied with.  BayWa r.e. shall use best efforts to mitigate delays in the delivery schedule including by way of using different shipment methods and partial shipment.

3). For any late delivery solely or substantially attributable to BayWa r.e., and as the sole and exclusive remedy the Customer may claim for with regard to the late delivery, BayWa shall pay a penalty at a daily rate of 0.02% for the value of any late delivery, calculated beginning on the 15th calendar day from the originally confirmed ETD of affected shipments which have been postponed; provided, however, that BayWa r.e.’s maximum liability for late delivery hereunder shall not exceed 1% of the total value of any late delivery.

4). The Customer, or his authorized representative, shall inspect the products within 1 day following the delivery at the place of performance and notify BayWa r.e. of any Defect. The Customer shall be responsible for making all arrangements and expenses for its own account. The Customer shall check the products against the packing list. BayWa r.e. is entitled to have its representative present at the inspection at its own cost. If any Defect is found during the inspection, a detailed record shall be made and signed by representatives of both Parties.  If any Defect caused solely by BayWa r.e. is found during the inspection, then BayWa r.e. shall supplement or replace such damaged product at its sole discretion.

5). The Customer shall also have all rights set forth in the manufacturer warranty (“Manufacturer Warranty”).

V.  PASSING OF RISK AND TITLE

1). Risk of loss, destruction or damage to, the products shall pass to Customer upon delivery at the place of performance. Title in each of the products shall automatically transfer to the Customer upon delivery of the products at the place of performance and full payment of the price. The Customer shall be obliged to carefully handle all the products until the ownership have been transferred to the Customer. 

2). Unless otherwise agreed by the Parties, insurance for shipment will be purchased by BayWa r.e. according to the Incoterms 2020 against minimal transportation risks.

VI.  LIMITATION OF LIABILITY AND RESERVATION OF PROPRIETARY RIGHTS

1). To the maximum extent permitted by applicable law, BayWa r.e. hereby disclaims, and shall have no responsibility or liability whatsoever for, damage or injury to persons or property or for other loss or injury resulting from any cause whatsoever arising out of or related to any of its products or their use.  To the maximum extent permitted by applicable law, under no circumstances shall BayWa r.e. be liable to the Customer, or to any third party claiming through the Customer, for any loss of profits, loss of use, or equipment downtime, or for any incidental, consequential or special damages of any kind, howsoever arising, related to the products, even if BayWa r.e. has been advised of the possibility of such damages.  To the maximum extent permitted by applicable law, BayWa r.e.’s aggregate liability, if any, in damages or otherwise, shall not exceed the price paid to BayWa r.e. by the Customer for the products furnished that gave rise to the warranty claim.

2). Except for other obligations and liabilities set forth under the Terms and Order, the Customer is liable for any costs and for any damages including but not limited to demurrage, storage, transport and/or re‐ shipping costs, reselling loss (if any) which incur due to any breach of one of its main contractual obligations and/or any illegal cancellation or termination of the Order.

3). The Parties agree that, save as otherwise provided herein, in no event shall BayWa r.e. be liable for obtaining or registration of any permits, licenses, consents, clearances, or approvals from any ministry, department, governmental authorities, board of investment, or any competent agencies. The Customer undertakes that it shall observe and cause its clients to observe rights, responsibilities, or benefits apply to it under applicable laws.

4). The Customer acknowledges that any and all rights in and to BayWa r.e.’s intellectual property related to the products are and shall remain the property of BayWa r.e., and the Customer shall not at any time, during or after the expiration or termination of the Order in any way question or dispute the ownership thereof by BayWa r.e. All software, even if embedded in the products, is licensed and not sold by BayWa r.e.  All rights not expressly granted under the Order are reserved.

VII.  NON-ASSIGNMENT

1). Neither Party may disclose, assign or novate its rights under the Terms and/or the Order, or the Manufacturer Warranty, without the prior written consent of the other Party, except that either Party may (without the prior written consent of the other Party) assign and disclose all or any part of its rights under the Terms and/or the Order or the Manufacturer Warranty to: (i) an Affiliate; (ii) by way of security in favor of any bank or financial institution in relation to a project financing or refinancing of that Party’s business activities; and (iii) to a third party which seriously intends to acquire the solar photovoltaic project at which the products have been installed.

2). “Affiliates” shall mean a company that directly or indirectly controls, is controlled by or is under common control with another company.  

3). “Control” shall mean: (i) the direct or indirect ownership of more than 50% of the voting rights or shares; (ii) the right to nominate more than half of the members of any executive body; or (iii) any other contractual relationship that entitles the company to direct the business of another company.

VIII.  GENERAL

1). Neither Party shall be in breach of an obligation under the Terms and/or the Order as long as and to the extent that the performance of the respective obligation is impossible as a result of Force Majeure and the affected Party has notified the other Party about this in writing without undue delay.  “Force Majeure” shall mean any event beyond the reasonable control of the affected Party, including fire, flooding, strike and any other interruption of the production which is not the result of one’s party actions or administrative orders, which could not be prevented by a reasonable, prudent and experienced party, which materially and adversely impacts the performance of the fulfilment of the respective contractual obligations.

2). Amendments and supplements to the Order shall only become effective if made in writing by the Parties.

3). The Parties shall keep confidential the content of the Order as well as any other confidential information about the other Party and its subsidiaries and affiliates.

4). Unless otherwise agreed, all disputes from and in connection with the Order shall be resolved by arbitration in Manila, the Philippines. The Order shall be governed by the substantive laws of the Philippines, excluding those provisions under private international law which might result in another governing law. The Vienna UN-Treaty on Agreements for the International Sale of Goods shall not apply.

5). In case of any discrepancy between the Terms and the Order, the provisions of the Order signed by the Parties shall prevail. 

6). Should one (or more) provisions of the Terms be invalid or become invalid, the legal validity of the remaining provisions remains unaffected thereof. The relevant legal provisions shall take the place of the invalid provision(s).

IX.    COMPLIANCE

1). The Customer confirms for itself, its shareholders, persons acting on its behalf or commissioned third parties (“Customer’s Representatives”) that the Customer and the Customer’s Representatives shall neither (i) offer, promise, grant, or accept any unlawful advantages to any public officials or decision-makers in private companies, nor (ii) directly or indirectly, commits criminal offences against BayWa r.e. or a third party or assists in doing so, including agreements restricting competition in tender procedures, bribery and corruption, granting of advantages, or laws on the protection of business secrets, or the corresponding applicable national and international regulations (e.g. US Foreign Corrupt Practices Act or the UK Bribery Act). The Customer and the Customer’s Representatives shall not enter into any unfair agreements with competitors, customers or suppliers which have the object or effect of preventing, restricting or distorting competition under the applicable antitrust laws. BayWa r.e. is entitled to terminate the Order without notice and without further obligations or liability towards the Customer if the Customer or the Customer’s Representatives violate any provision of this compliance clause, and the Customer must compensate BayWa r.e. for all damages which arise directly or indirectly through the termination or withdrawal.

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