FRAMEWORK GENERAL TERMS AND CONDITIONS (THE PHILIPPINES)
of BayWa r.e. Solar Systems Corporation (hereinafter referred to as “BayWa r.e.”)
These Framework General Terms and Conditions (hereinafter: “Framework”) 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.
Business transactions, including an offer(s) (“Offer”), a purchase order(s) (“PO”), an invoice (“Invoice”), all auxiliary, secondary, and executing transactions, as well as the preceding offers of BayWa r.e., are based exclusively on terms and conditions of the Framework. They also apply to legal obligations whose origin lies directly or indirectly in business transactions between BayWa r.e. 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”.
“Affiliates” shall mean a company that directly or indirectly controls, is controlled by or is under common control with another company.
“Control” shall mean: (i) the direct or indirect ownership of more than 50% (Fifty Percent) 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.
“Delivery” shall mean EX WORKS BayWa r.e. Warehouse (INCOTERMS 2020), unless otherwise agreed by the Parties or as specified by BayWa r.e. under the relevant Offer and/or Invoice.
“Destination” shall mean a place where the Parties agreed that the Product shall be delivered.
“ETD” shall mean the estimated time of departure.
“Force Majeure” shall mean any event beyond the reasonable control of the affected Party, including fire, flooding, strike, pandemic, 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.
“Manufacturer Warranty” shall mean a warranty, guarantee, promise, representations provided by the manufacturer of the Product.
“Product” shall mean the product specifed by BayWa r.e. under the relevant Offer and/or Invoice.
“Purchase Price” or “Price” shall mean the price of the Product specifed specified by BayWa r.e. under the relevant Offer and/or Invoice. The Purchase Price is exclusive of any value added tax (VAT) and/or any other related taxes, customs, tariffs, duties, and fees (if any).
2. Delivery of the Product
2.1 The terms of Delivery, Destination, and the Delivery lead time shall be specified by BayWa r.e. under the relevant Offer and/or Invoice.
2.2 In case of a late Delivery solely or substantially attributable to BayWa r.e., and as the sole and exclusive remedy of the Customer, upon receipt of a calim made by the Customer, BayWa r.e. shall pay liquidated damages at a daily rate of 0.02% (Zero Point Zero Two Percent) for the value of any late Delivery, calculated beginning on the 15th (fifteenth) calendar day from the originally confirmed the ETD of affected shipments which have been postponed. The maximum liability of BayWa r.e. for the late Delivery shall not exceed 1% (One Percent) of the value of any late delivery.
2.3 The Customer shall complete an inspection of the Delivery of the Product within one (1) day following the Delivery at the Destination and shall immediately notify BayWa r.e. of any defect (if any).
2.4 The Purchase Price shall not include any transportation costs and any other services provided by BayWa r.e. in connection with the Delivery of the Product at the Destination.
2.5 BayWa r.e. shall use best effort to ensure that the Product are delivered to the Customer at the Destination, free of any design error, defect, deficiency, omission, non-conformity, failure, malfunction, irregularity, or otherwise, which relates to any performance characteristic of the Product (including in any design, materials, or workmanship) and for which BayWa r.e. is responsible (“Defects”).
2.6 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.
2.7 The Customer shall be responsible for making all arrangements and expenses for its own account. The Customer shall check the Product against the packing list supplied by BayWa r.e. 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.
3. Payment Terms and Invoicing
3.1 The terms of Payment shall be 100% (One Hundred Percent) of the Purchase Price.
3.2 The Purchase Price shall not include any transportation costs and any other services provided by BayWa r.e. in connection with the delivery of the Product at the Destination.
3.3 Any overdue amount shall be subject to interest at the rate of 0.02% (Zero Point Zero Two Percent) per day running from the 15th (fifteenth) day after due date for such payment until receipt by BayWa r.e. of the full amount.
3.4 The Customer shall pay the Purchase Price to BayWa r.e. via Telegraphic Transfer (T/T) to the bank account designed by BayWa r.e. Terms of payment shall be in accordance with the Framework, unless otherwise agreed in writing by the Parties.
3.5 Unless otherwise notified in writing and signed by authorised representatives of BayWa r.e., the Purchase Price shall be paid to the bank account as shown in the Invoice.
3.6 Cancellation Fee: If for any reason, except for Force Majeure event, the Customer cancels a binding purchase order within 30 (thirty) calendar days prior to the ETD, the Customer shall pay to BayWa r.e. an amount equal to 10% (Ten Percent) of the total amount of the purchase order (the “Cancellation Fee”). The Cancellation Fee is 5% (Five Percent) of the total amount of the PO if the PO is cancelled more than 30 (thirty) calendar days but less than 50 (fifty) calendar days ahead of the ETD.
3.7 BayWa r.e. shall issue its invoice(s) as soon as reasonably practical after Delivery of the Product at the Destination. Save as otherwise agreed, payment shall be made in full by the Customer before the 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.
3.8 BayWa r.e. reserves the right to suspend the Delivery of any of the Product or to terminate the Framework immediately in case the Customer is in default or in delay with any payment. Once the Customer has remedied the delayed payment, BayWa r.e. shall inform the Customer on the new delivery schedule and reserves the right to re-negotiate the Purchase Price according to market fluctuation.
3.9 BayWa r.e. reserves the right to suspend the Delivery of any of the Product or terminate the Framework 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. shall inform the Customer on the new delivery schedule and reserves the right to re-negotiate the Purchase Price according to market fluctuation.
3.10 Unless otherwise agree, insurance for shipment shall be purchased by BayWa r.e. according to the trade terms (INCOTERMS 2020) against minimal transportation risks.
4. Title; Risk of Loss; Warranty of the Product
4.1 Title in each of the Product shall automatically transfer to the Customer upon delivery of the Product at the Destination and full payment of the Purchase Price. The Customer shall be obliged to carefully handle all the Product until ownership of such Products have been transferred to the Customer.
4.2 Risk of loss of, or damage to, the Product shall pass to Customer upon delivery at the Destination.
4.3 The Customer shall have all rights set forth in the Manufacturer Warranty.
5. Liability of BayWa r.e.
5.1 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.
5.2 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 Product, even if BayWa r.e. has been advised of the possibility of such damages.
5.3 To the maximum extent permitted by applicable law, BayWa r.e.’s aggregate liability, if any, in damages or otherwise, shall not exceed the purchase price paid to BayWa r.e. by the Customer for the Product furnished that gave rise to the warranty claim.
5.4 Except for other obligations and liabilities set forth under the Framework, the Customer is liable for any costs and for any damages including but not limited to demurrage, storage, transport and/or reshipping costs, reselling loss (if any) which incurred due to any breach of one of its main contractual obligations and/or any illegal cancellation or termination of the Framework.
5.5 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 law.
5.6 Neither Party shall be in breach of an obligation under the Framework 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.
5.7 If the execution of one’s Party obligations is prevented for a continuous period of thirty (30) consecutive calendar days by reason of Force Majeure either Party may give to the other Party a notice of termination of the affected Offer. In this event, the termination shall take effect seven (7) calendar days after the notice is given
6. Intellectual Property Rights
6.1 The Customer acknowledges that any and all rights in and to BayWa r.e.’s intellectual property related to the Product 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 Framework in any way question or dispute the ownership thereof by BayWa r.e. All software, even if embedded in the Product, is licensed, and not sold by BayWa r.e. All rights not expressly granted under the Framework are reserved.
6.2 BayWa r.e. hereby grants to the Customer a non-exclusive, non-transferable license, without the right to sublicense, to import, offer to sell or sell the Product to resale customers. The Customer shall not modify or alter any of the Product in any way, including but not limited to set label, type, or serial number.
The Parties shall keep confidential the content of the Framework, the Offer, and the Invoice as well as any other confidential information about the other Party and its subsidiaries and affiliates, but exclude information that (i) now or becomes public knowledge otherwise than by breach of the Framework, (ii) is lawfully in the possession of the receiving Party prior to the Effective Date, (iii) is lawfully disclosed to the receiving Party by a third party without breach by the receiving Party of any obligation of confidentiality towards the disclosing Party, or (iv) independently developed by the receiving Party.
Neither Party may disclose, assign or novate its rights under the Framework and/or a PO, 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 Manufacturer Warranty, the Framework and/or any PO 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 Product have been installed.
9.1 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 Applicable Law and international regulations (e.g. US Foreign Corrupt Practices Act or the UK Bribery Act).
9.2 The Customer and the Customer’s Representatives shall not enter into any unfair agreements with competitors, customers or Customers which have the object or effect of preventing, restricting or distorting competition under the applicable antitrust laws.
9.3 BayWa r.e. is entitled to terminate the Framework, the Offer, or the PO 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.
10. Applicable Law and Dispute Resolution
10.1 The Framework shall be governed by and construed in accordance with the laws of the Republic of the Philippines (“Applicable Law”).
10.2 The Parties shall attempt to resolve any dispute arising out of or in connection with the Framework, including any question regarding their existence, validity, or termination (a “Dispute”), amicably. If either Party determines that a Dispute is not likely to be resolved amicably, the Dispute shall, upon referral of the Dispute by either Party, be resolved exclusively and finally by arbitration at the Philippines Dispute Resolution Center, Inc. (“PDRCI”) in accordance with its Rules of Arbitration ("PDRCI Rules") for the time being in force, which PDRCI Rules are deemed to be incorporated by reference in this Clause. The arbitral tribunal shall consist of 1 (one) arbitrator. The language of the arbitration shall be English, and the seat of arbitration shall be the City of Makati.
11.1 The terms and conditions specified in the Framework shall be incorporated into the Offer, PO, or Invoice by reference. However, the Parties agree that in case of any discrepancy or inconsistency between any provisions of the Framework and any provisions of any subsequent Offer, PO, or Invoice, the latest provisions agreed by the Parties shall prevail.
11.2 Amendments and supplements to the Framework shall only become effective if made in writing by the Parties.