TERMS AND CONDITIONS OF SUPPLY of CELLS
Version: March 2024
1. Scope
1.1 These Terms and Conditions of Supply shall apply to and are deemed to be incorporated in all contracts for the sale of Products or the supply of goods and/or services from DURAPOWER HOLDINGS PTE. LTD., DURAPOWER TECHNOLOGY (SINGAPORE) PTE. LTD., SUZHOU DURAPOWER TECHNOLOGY CO. LTD., DURAPOWER TECHNOLOGY GROUP B.V. (“DURAPOWER”, hereinafter) and other DURAPOWER-related entities, including other DURAPOWER entities stated in quotations, purchase orders or any documents intended for such supply of Products or goods and services. No changes or variation or waiver of these Terms and Conditions of Supply (“TERMS AND CONDITIONS” hereinafter) shall have any legal effect except and unless expressly agreed to by DURAPOWER in writing.
1.2 This document, together with the quotations, order acknowledgments, invoices and specifications (and all supplements and attachments thereto issued by DURAPOWER from time to time) shall constitute the entire agreement between DURAPOWER and Buyer for each sale or supply of goods and/or services between the parties. Buyer agrees that any document, agreement or contract and the terms of sale and supply stipulated by the Buyer for such sale and supply of goods and/or services shall be superseded and shall not apply. Once referred, only these TERMS AND CONDITIONS shall apply. Unless expressly agreed to by DURAPOWER in writing, or provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment, in the event of any inconsistency between these TERMS AND CONDITIONS and the provisions on any other quotation or on any other supplement or attachment thereto, these TERMS AND CONDITIONS shall control/prevail.
1.3 In addition to Buyer’s expressed acceptance of these TERMS AND CONDITIONS, Buyer’s conduct, including without limitation, sending an order for, payment for, accepting the delivery of, use of, the Product or goods and services shall be deemed to be Buyer’s acceptance that these TERMS AND CONDITIONS shall apply.
2. Definitions
“Product” means lithium-ion cell assemblies, produced and/or sold by DURAPOWER as “Cells”, whether consisting of single or multiple lithium-ion cells, and includes singular and plural when required by the context.
“Buyer” includes any principal or agent or subcontractor of the Buyer.
“Location” means the place where the Product has to be installed or where the Product will become part of an assembly for its intended use.
3. Quotations and Acceptance
3.1 Unless otherwise agreed with the Buyer in writing or provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment, prices and terms of contract quoted by DURAPOWER shall be for delivery term EXW DURAPOWER’s premises. The only exception to this delivery term shall be for exports from China whereupon the delivery term shall be FOB (Shanghai).
3.2 Prices quoted by DURAPOWER shall remain in force for a period of thirty (30) days, as from the date of the quotation, unless otherwise agreed between the parties or unless DURAPOWER ‘s costs has increased within this term due to reasons beyond of DURAPOWER’s control.
3.3 Where required, Buyer is solely responsible and liable to provide to DURAPOWER, in a timely manner, valid, applicable and complete certifications and licenses, including export licenses, required in connection with any required movement, transport or shipment of the Product. In addition, nothing contained herein shall be deemed to require DURAPOWER to take any action that would constitute, directly or indirectly, a violation of any laws of any applicable jurisdiction, and DURAPOWER’s failure to take any such action shall not be deemed a breach hereunder and Buyer shall defend and indemnify DURAPOWER for any claims or loss arising therefrom.
4. Schedules and Delays
4.1 DURAPOWER shall notify the Buyer of any projected delays in delivery. Notwithstanding any expressed delivery date stated on the order or supply document, any notification of changes to the delivery date shall be DURAPOWER ‘s best estimate of the date on which delivery is projected.
4.2 Buyer agrees that any expressed date of delivery shall not be an essential condition of the quotation but shall be taken to be the probable foreseen date of delivery only.
4.3 Buyer agrees that any variation or change in shipment schedule or date shall be notified to DURAPOWER no less than 4 months prior to the agreed date of shipment. DURAPOWER shall at its sole discretion accept or reject any requests for changes in shipment schedule or date that has been notified to DURAPOWER less than 4 months prior.
4.4 Buyer agrees that any non-confirmation of, or, change to Product design will naturally affect any previously determined or agreed shipment date and DURAPOWER shall at its sole discretion inform Buyer of reasonably plausible shipment dates subsequent to non-confirmation of, or change to Product design. Parties shall come to an agreement and Buyer shall pay any agreed fee to DURAPOWER for any customisation and design fee fully to Buyer as a condition of any delivery of such by DURAPOWER.
5. Control and Permits
For the avoidance of doubt, unless otherwise agreed in writing, Buyer and their representative or agents are entirely responsible to possess or to obtain for any documentation, permits, licenses, homologation or the like from all and any pertinent authorities to allow Buyer to exercise its rights under the TERMS AND CONDITIONS, including but not limited to the transportation, movement, export, import, handling, certifications for any Products and Services to be provided herein and Buyer shall defend and indemnify DURAPOWER for any claims or loss arising therefrom.
6. Shipment and Delivery
6.1 All Product term of delivery shall be EXW DURAPOWER premises unless otherwise agreed in writing or provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment. The sole exception to this rule shall be for exports from China whereupon the delivery term shall be FOB (Shanghai). In exception cases, and only upon agreement with Buyer’s request to do so, DURAPOWER shall, at Buyer’s expense, arrange carriage and insure the Product against normal transit risks, but in the event of loss or damage whether or not caused by the negligence of DURAPOWER or its carrier or any third party, DURAPOWER’s liability shall be limited to endorsing to Buyer the benefit of such insurance.
6.2 If instructions for dispatch are not received or if Buyer otherwise fails to take delivery or it requires DURAPOWER to delay delivery beyond any agreed delivery date, DURAPOWER shall be entitled to make arrangements for storage of the Product and to charge Buyer accordingly and inventory holding cost. Buyer shall become responsible for the risk of loss of or damage to the Product and for paying the contract price as if the Product had been delivered. Unless otherwise agreed between the Parties, where Buyer fails to take complete delivery or causes delivery to not be completed within 30 days from the agreed delivery date, Buyer agrees that the Retention of Title clause (Clause 8.4) shall apply.
7. Installation and Commissioning
7.1 Unless otherwise agreed in writing between the parties, any provisioning of supervisory, installation or commissioning services of the Products expressly as described in the quotation and to be paid for by Buyer are subject to the following terms:
a) Buyer shall pay the services at the specified rate per man-day plus living and travel and any other ancillary expenses that may be incurred to perform such services.
b) Each man-day shall be an indivisible block of eight (8) hours.
c) The stated specific rate per man-day applies to weekdays, Mondays through to Fridays only.
d) Additional hours per day, Saturdays, Sundays and any work to be done on local public holidays shall be charged with an additional premium.
e) If such services are finally required for a number of days in excess of the period agreed, Buyer shall inform DURAPOWER in writing of the requirement and DURAPOWER reserves the right to request Buyer to pay for additional days in the same manner as specified above plus any additional costs or expenses incurred by reason of the extension of the period of service, including journey costs for travelling from Location to DURAPOWER’s premises by DURAPOWER’s employees and vice versa for the duration that DURAPOWER employees are station at the Location, including any travel at the beginning and end of rest days and weekends.
7.2 Buyer warrants that the Location where the Product has to be installed meets at least the DURAPOWER’s specifications of application environment or as represented by Buyer and accepted by DURAPOWER. If DURAPOWER is not satisfied with the preparatory work and/or conditions of the Location of any installation, commissioning or work to be done by DURAPOWER, DURAPOWER shall at DURAPOWER’s sole and absolute discretion, determine whether to suspend DURAPOWER’s intended work, whether supervisory, commissioning or installation services if it is under DURAPOWER’s responsibilities, and, charge Buyer for any additional costs incurred by DURAPOWER, whereupon such costs shall form and accrue against Buyer in accordance with the Payment term described herein.
7.3 Buyer shall be responsible for obtaining all necessary permits and licenses and the like for any installation, and commissioning to be undertaken and completed to the satisfaction of DURAPOWER, and warrants that Buyer has provided DURAPOWER with all necessary information including engineering plans, blueprints, technical descriptions and drawings about the Location where the Product will be installed and shall provide at its own expense such ancillary services and facilities as DURAPOWER may reasonably require to fulfil provisioning of supervisory, commissioning or installation services, as required under the agreed terms of the quotation.
7.4 Unless otherwise agreed by the Parties in writing, for the avoidance of doubt, DURAPOWER shall not be responsible for raw materials, parts or machinery required for the provisioning of such installation, commissioning, or work, and shall not be liable for the operation, connectivity or utility of any equipment, plant or process, or any part thereof.
7.5 Buyer warrants safe and adequate access to the Location for DURAPOWER’s employees and/or subcontractors and warrants the safe custody of all Product, materials and other property left on the site by DURAPOWER in the course of installation and commissioning. Buyer shall be liable for any injury suffered by DURAPOWER or its employees and/or subcontractors, except to the extent that such injury is caused by their own negligence. Buyer shall be liable for any property damage, loss, deficiency, loss of function, loss of functionality and loss of utility, or any other damage to the Products, even if such Products have become a part of or component of an assembled product, property, plant or complex.
8. Payment
8.1 Full payment must be made to DURAPOWER in advance at order confirmation by bank wire, unless otherwise agreed in writing. Notwithstanding anything to the contrary, for any part or portion of the full payment not received by DURAPOWER six (6) months after the date of the order or purchase order, DURAPOWER shall, at its sole discretion, reserve the right to instruct Buyer to cause any remainder of the full payment to be made to DURAPOWER and Buyer shall then take all actions to cause DURAPOWER to receive such part or portion of the payment unpaid. Product shall remain the full property of DURAPOWER until the Buyer has made full and unconditional payment.
8.2 Unless not enforceable under the law, Buyer agrees that if DURAPOWER does not receive full payment of amounts due by the date required herein or agreed to, any portion unpaid by Buyer shall be subject to accrued interest at a rate of twelve per cent (12%) of the outstanding balance per annum, or the maximum rate allowed by the applicable law, whichever is lower, from the date such payment is due to DURAPOWER until the full amount due to DURAPOWER is fully paid. In addition, Buyer shall be liable for DURAPOWER’s collection costs and attorney’s fees in collecting any monies unpaid and shall reimburse DURAPOWER for any costs so arising.
8.3 If any payment is overdue, DURAPOWER shall be entitled to suspend further deliveries or services.
8.4 Retention of title by DURAPOWER
Title to the Product shall remain vested in DURAPOWER and shall not pass to the Buyer until the purchase price for Product has been paid in full and received by DURAPOWER. Until title to Product passes:
a) DURAPOWER shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of Product;
b) DURAPOWER and its agents and employees shall be entitled at any time and without the need to give notice enter upon any property upon which Product or any part are stored, or upon which DURAPOWER reasonably believes them to be kept;
c) The Buyer shall store or mark Product in a manner reasonably satisfactory to DURAPOWER indicating that title to the Product remains vested in DURAPOWER;
d) The Buyer shall insure the Product to their full replacement value, and arrange for DURAPOWER to be noted on the policy of insurance as the loss payee; and
e) Irrespective of whether title to the Product remains vested in DURAPOWER, risk in the Product shall pass to the Buyer upon delivery based on agreed incoterms.
9. Delivery
9.1 Although DURAPOWER shall endeavour to supply the Product within the specified time, DURAPOWER shall not be liable for delays due to any cause beyond DURAPOWER’s reasonable control.
9.2 DURAPOWER is allowed to make partial shipments.
9.3 Unless otherwise agreed, upon Delivery of the Product, any damage to the Product or discrepancy with the packing list must be, within seven (7) calendar days,: (i) notified to DURAPOWER in writing and (ii) stated in the CMR or forwarding agent’s receipt alike, failing which DURAPOWER shall not be liable for damages, losses or discrepancies with the packing list or damage to the Product. Failure by Buyer to give such notice and make such statement within the stated period of time shall constitute acceptance and a waiver of all such claims by Buyer and end users. DURAPOWER reserves all rights of refusal to accept such notice if notification under (i) or the statement in (ii) are incomplete, or deficient.
9.4 Buyer shall be required to procure at its own expense any import licenses or related documentation required for the country of destination and/or any intermediate destination to which the Product is to be dispatched or delivered. Buyer shall be responsible for any and all import duties, taxes, leaves, fees, cost and alike.
9.5 Unless otherwise agreed between the parties in writing, Buyer agrees to be under an obligation to collaborate with DURAPOWER to provide performance data available from the Product in the form and frequency that is useful (as solely defined at DURAPOWER’s sole and utmost discretion) to DURAPOWER. To the extent allowed under the law and to the fullest extent possible, all rights, including rights of ownership, use, re-use and all rights to deal, related with performance data, shall pass to DURAPOWER upon the performance data being received by DURAPOWER. Buyer agrees that this clause 9.5 is a term of this Agreement for the supply of the Products. Buyer agrees to undertake such provisioning of performance data in the form that are considered to be industry normative format (in Hexadecimal format, ASCII format, or similar) that DURAPOWER has agreed to be used, and shall undertake to instruct the Product or any pertinent component, to provide at the minimum, the following performance data, at a frequency that is no less than 1 (one) time per minute:
a) Minimally operating voltage of battery (at pack, module, cell);
b) Minimally operating current of battery (at pack, module, cell);
c) Minimum operating temperature of battery (at pack, module, cell);
d) State of Charge;
e) State of Health; and
f) Energy Consumption.
10. Intellectual Property
10.1 Any know how, technical information, drawings, specifications or documents supplied in connection with the supplies made by DURAPOWER to Buyer shall be kept confidential by Buyer and shall not be disclosed to any third party or used for any other purpose than for the purpose of the supply without the prior written consent of DURAPOWER, unless and until the same is or becomes public knowledge.
10.2 Ownership of any and all intellectual property rights are hereby retained by DURAPOWER.
10.3 DURAPOWER is not aware that the Product infringes any third-party patent or any other intellectual property restrictions as and when supplied, and DURAPOWER gives no other warranty against patent or other intellectual property infringement and shall not be liable in respect thereof.
10.4 If DURAPOWER introduces variations to the Product to meet Buyer’s special requirements, or to Buyer’s own specifications, no further warranty is given and Buyer shall accept full liability in respect of any and all infringement of patents or other intellectual property rights and agrees to indemnify and keep DURAPOWER harmless against any and all claims, losses or costs arising therefrom.
10.5 No warranty is given that any particular use of the Product, or any technique employed therewith is free from any limitations of use or other intellectual property restrictions. Any advice given by DURAPOWER in relation thereto is given without liability to DURAPOWER.
10.6 The trademarks and names of DURAPOWER, including any trademark and commercial name commonly used by DURAPOWER in the course of business, shall not be used by Buyer and/or end users other than use as applied by DURAPOWER to the Product supplied.
11. Warranty
11.1 For the purposes of this Agreement, a “Defective Product” shall mean any single Product or part thereof supplied by DURAPOWER to Buyer under this TERMS AND CONDITIONS, suffering a manufacture malfunction thereby resulting in performance that does not meet the performance specifications of the Product, as specified in the quotation (usually the specific Data Sheet of the Products), and which is confirmed by DURAPOWER or proved by Buyer to be suffering from such malfunction and being covered by DURAPOWER’s warranty under this Agreement.
11.2 Unless otherwise provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment, DURAPOWER solely provides a Product Specification Warranty, where DURAPOWER warrants that the Product at Delivery shall conform to the technical features as described in the quotation (usually Data Sheet or Proposal of the Product). Subsequent to completion of delivery, installation and commissioning whether performance by DURAPOWER or Buyer, subject to Buyer performing operation and maintenance in full accordance with DURAPOWER’s product manuals for installation, commissioning, maintenance or any other instructions or directions provided to Buyer, this Product Specification Warranty shall be provided by DURAPOWER for a total period of twelve (12) months whether starting from the date of Delivery (“Warranty Period”) or for any replacement or repaired or refurbished part or product.
11.3 Subject to due compliance by Buyer of the sections herein, DURAPOWER’s warranty as provided under 11.2 shall be subject and restricted to the following conditions:
(a) Notice:
(i) Product Specification Warranty – Buyer provides DURAPOWER with written notice in case of any apparent breach of the Product Specification Warranty within seven (7) calendar days of the Delivery date; or , within the Warranty Period, the Buyer shall provide written notice to DURAPOWER within three (3) working days as of the detection of a breach of the Product Specification Warranty.
(ii) In the event that either of the above-mentioned warranty periods were to expire without the Buyer providing any notice to DURAPOWER, the warranty shall be voided and DURAPOWER shall avoid any liability thereof.
(b) Rectification. DURAPOWER’s warranty obligation and Buyer’s sole and exclusive remedy arising herein, shall be limited to, at the sole and unfettered option of the DURAPOWER, (i) the repair by DURAPOWER or the arrangement for such repair by an authorised subcontractor, of the Product or the defective part thereof or (ii) replacement of the Product itself or the defective part of the Product thereof, where the Parties agree that the supplied replacement Product or part may differ slightly, or, (ii) the refund of the price of the Product paid by Buyer to DURAPOWER. DURAPOWER disclaims and excludes any liability for any other loss caused by a breach of warranty, such as any loss arising from, but not limited to, transport, displacements, package disassembly, installation, loss of production, loss of earnings.
(c) DURAPOWER may request Buyer to place at DURAPOWER’s disposal the defective Product or the defective parts thereof in the same condition they were delivered, before proceeding with DURAPOWER’s obligation to undertake any repair, replacement or refund.
(d) Solely to the extent that certain components of the Product or parts thereof are not of DURAPOWER’s own manufacture, DURAPOWER’s liability for warranty therein is limited to the passing on to Buyer the benefit of any guarantee or warranty given to DURAPOWER by the manufacturer for such component of the Product or part thereof;
(e) DURAPOWER disclaims all liability for a purported breach of warranty arising from a defect, if the defect has been caused by one or more of the following:
(i) Buyer or any third party has caused the defect by negligence, incorrect handling or improper use or lack of due maintenance;
(ii) Product(s) were used for a purpose for which they were not designed for;
(iii) Product(s) were connected to other products or hardware or to an incompatible software;
(iv) Wear and tear;
(v) Unauthorized modification of the Product or replacement of parts of the Product by the Buyer or end-user(s).
(f) DURAPOWER’s obligation to respond to or act under a claim for a breach of warranty shall be conditional on Buyer having no late payments due to DURAPOWER. During periods where Buyer is late in its payments to DURAPOWER, the Warranty Period shall continue to run down.
(g) For the avoidance of doubt, in a situation where a Product needs to be upgraded after its delivery, due to the application or requirements of new industry standards, safety requirements, laws or statutes regarding the use and application of the Product, any deficiency or non-use of the Product arising therefrom shall not cause the Product to be considered as a Defective Product. If and when an upgrade and/or improvement of the Product is available, Buyer’s requirement or purchase of a replacement Product shall be subjected to a new order by Buyer to DURAPOWER and the parties shall agree on the amended specifications and technical requirements of such an order.
(h) Nothing in this section shall be understood as an extension to the term for notices related to discrepancies with the packing list and damages to the Product upon Delivery, as described in section 6 herein.
(i) EXCEPT AS EXPRESSLY STATED IN THIS SECTION, BUYER ACCEPTS THAT PRODUCTS ARE BEING PURCHASED AND SOLD ON AN “AS-IS” BASIS, AND, BUYER ACCEPTS THAT THE WARRANTIES AND CONDITIONS SET OUT IN THESE SUPPLY CONDITIONS APPLY TO ANY SUPPLY OF PRODUCT IN LIEU OF ALL OTHER EXPRESS AND/OR IMPLIED AND/OR STATUTORY WARRANTIES (EXCEPT TITLE) THAT MAY BE CLAIMED ON THE GROUNDS OF LAW, USES OR CUSTOMS, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE DIFERENT FROM THE ONE MENTIONED IN THE QUOTATION, AND ANY SUCH IMPLIED TERMS AND CONDITIONS ARE HEREBY EXPRESSLY EXCLUDED TO THE EXTENT PERMITTED BY LAW. BUYER ACKNOWLEDGES THAT IT IS PURCHASING THE PRODUCT SOLELY ON THE BASIS OF THE COMMITMENTS OF DURAPOWER AS EXPRESSLY SET FORTH HEREIN.
(j) FOR THE AVOIDANCE OF ANY DOUBT, BUYER BY PASSING AN ORDER AGREES TO RENOUNCE TO ANY OTHER EXPRESS OR IMPLIED WARRANTY OR REMEDY TO THE LARGEST EXTENT ALLOWED BY LAW.
12. Safety
So far as reasonably practicable DURAPOWER has ensured that its Products has been designed and constructed as to be safe and without risks to health when properly installed and used in accordance with DURAPOWER’s operating instructions. Buyer is aware of the local laws and regulations about risks regarding health and safety and of the Product specifications and operation. Therefore, Buyer is solely responsible for any risks regarding due compliance of such laws and regulations by the Product and its operation as from delivery and shall ensure that the individuals that will use, maintain or otherwise ensure the Product receive adequate training and safety literature. Standard safety literature will be supplied by DURAPOWER free of charge and may be duplicated by the Buyer if required and the Buyer has to check such literature and complete it, if needed, to duly comply with any local requirement.
13. Insurance and Liabilities
13.1 Buyer by entering into a contract with DURAPOWER commits and secures to be sufficiently insured for civil liability to reasonably cover any risk.
13.2 Notwithstanding anything to the contrary herein or in any agreement or document signed between the parties and to the fullest extent permitted under the law, neither party will be liable to the other in any action or claim for incidental, special, consequential, indirect, punitive, exemplary or statutory damages, including without limitation any loss of revenues, loss of savings or loss of profits for any matter whatsoever, arising out of or related to any supply under this supply conditions, whether the action in which recovery of damages is sought is based upon contract, tort (including, to the greatest extent permitted by law, the sole, concurrent or other negligence, whether active or passive, and strict liability of seller), statute or otherwise, including fundamental breach or negligence, even if the party has been advised of such possibility of such damages.
13.3 Notwithstanding anything to the contrary herein or in any agreement or document signed between the parties and to the fullest extent permitted under the law, DURAPOWER’s liability for any claim of any kind, for any loss or damage arising out of, connected with or resulting from any supply under this TERMS AND CONDITIONS or from the performance or breach thereof, shall in no case exceed the purchase price allocable to the Product or unit thereof which gives rise to the claim. For undelivered Products, DURAPOWER ‘s liability is limited to the difference between the market price for a similar Product and DURAPOWER’s price. The parties undertake not to hold the other liable for penalty clauses of any description.
13.4 Any action resulting from any claim arising under this agreement which may be brought by any of the parties must be commenced within one (1) year after the cause of action has accrued. Otherwise the claimant party shall lose any and all entitlement to the claim and agrees to hold the other harmless against such claims.
14. Indemnity
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, DURAPOWER SHALL NOT BE LIABLE TO BUYER FOR, AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS DURAPOWER AND ITS ASSOCIATED OR SUBSIDIARY COMPANIES, RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS AND EMPLOYEES, AND THE SUCCESSORS AND ASSIGNS OF THE FOREGOING, FROM AND AGAINST ALL OR ANY PART OF ANY CAUSES OF ACTION, CLAIMS, LIABILITIES, LOSS, COSTS, DAMAGES AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES, (COLLECTIVELY “CLAIMS”) FOR ANY INJURY, ILLNESS OR DEATH TO PERSONS (INCLUDING, WITHOUT LIMITATION, THIRD PARTIES AND BUYER’S EMPLOYEES AND ITS AGENTS, CONTRACTORS, SUBCONTRACTORS AND CUSTOMERS, AND THEIR RESPECTIVE EMPLOYEES) AND DAMAGES TO OR LOSS OF PROPERTY (INCLUDING, WITHOUT LIMITATION, THAT OF BUYER OR THIRD PARTIES) ARISING OUT OF OR RESULTING FROM BUYER’S PURCHASE, OWNERSHIP, TRANSPORTATION, RECEIPT, HANDLING, STORAGE, PROCESSING, ALTERATION, USE, DISPOSAL OR RESALE OF THE PRODUCT, ALONE OR IN COMBINATION WITH OTHERS OR IN THE OPERATION OF ANY PROCESS.
15. Force Majeure and Cancellation
15.1 DURAPOWER and the Buyer shall be relieved from liability hereunder for failure to perform any or all of its obligations, for the time and to the extent of such failure to perform where the Party’s failure is occasioned by any cause or causes of any kind or character reasonably beyond the control of the Party (any such cause herein called “Force Majeure”), including, without limitation: Acts of God; pandemics, epidemics, accidents, fire, explosion, floods, hurricanes; strikes, lockouts or other industrial disturbances; riots or civil commotion; war, declared or undeclared; compliance with any laws, rules, regulations, ordinances, codes or executive orders of any kind and nature now or hereafter in effect promulgated by any federal, state, county or local government, or any other government (domestic or foreign) or any other governmental agency (domestic or foreign)(collectively, the “Laws”) including, without limitation, prioritization, rationing, allocation or pre-emption orders or regulations affecting the conduct of DURAPOWER ‘s business which DURAPOWER in its sole discretion deems it advisable to comply with as a legal or patriotic duty; cancellation of DURAPOWER’s license to operate its plant; shortage or breakdown or other failure of facilities used for manufacture or transportation; shortage of labour; inability to secure, all at reasonable prices or on account of shortages of, transportation, power, fuel, materials or supplies; or total or partial shutdown due to DURAPOWER’s normal plant turnaround or as required by DURAPOWER’s operation. If any of the Parties is rendered unable by Force Majeure to carry out its obligations under this Agreement, that Party shall give notice to the other Party, and upon the giving of such notice the obligations the Party, so far as they are affected by such Force Majeure, shall be suspended during the continuance of any inability so caused.
15.2 Upon the cessation of the cause or causes for any such failure or delay, performance hereof shall be resumed, but such delay shall not, except by mutual agreement, obligate DURAPOWER to make up deliveries or Buyer to purchases quantities so missed. Settlement of strikes or lockouts shall be entirely within the sole discretion of the Party affected by the Force Majeure, and that Party shall not be required to settle strikes or lockouts by acceding to the demands of the employees involved, when such course is inadvisable in the affected Party’s sole discretion.
15.3 The Parties agree that if, subsequent to Buyer’s issuance of a Purchase Order, Buyer for any reason decides to inform DURAPOWER that a requirement under such a Purchase Order is to be cancelled, Buyer is to immediately be liable to DURAPOWER for liquidated damages equal in value to the part of the Purchase Order that is cancelled, unless any other reimbursement for cancellation is agreed between the Parties in writing.
15.4 If the delivery of Product should be delayed for more than six (6) months, Buyer shall be entitled to cancel the order/s or the remainder thereof, subject to payment of the price of any partial performance (if any) and neither of the parties shall be entitled to any other damages or compensation whatsoever.
16. Termination
16.1 If the Buyer commits any act of bankruptcy or, being a company, has a receiver appointed or an administration order made against it or goes into liquidation (except for the purpose of reconstruction or amalgamation) or commits any breach of any provision of these conditions of supply, then all sums due hereunder shall immediately become due and payable and DURAPOWER may, notwithstanding any previous waiver, terminate any current supply forthwith by written notice, with no liability to DURAPOWER, but without prejudice to any prior right of either party.
16.2 In the event that either DURAPOWER or Buyer or the country of incorporation of either is found to be or at any time becomes subject to economic sanctions imposed by the Office of Foreign Assets Control of the United States of America or relevant international regulatory authorities, the parties agree, regardless of whether expressed notice of such termination is provided by the non-sanctioned party, to immediately terminated any agreement based on these TERMS AND CONDITIONS without further obligation or liability on the part of either party, and, that all prior, existing or current obligations or liabilities of the parties shall be voided. This clause shall supersede and/or apply notwithstanding any conflicting provisions within the TERMS AND CONDITIONS to the contrary.
17. Governing Law
These conditions of supply are governed by the laws of the Republic of Singapore, without recourse to any conflict of laws principles. The parties agree that the current Contracts (Rights of Third Parties) Act on the date of agreement shall not apply.
18. Jurisdiction and Arbitration
18.1 DURAPOWER and Buyer shall endeavour to settle possible points at issue or disputes in an amicable way. In case a controversy cannot be resolved by the management dealing with the matter on an operational level, the dispute shall be transferred to the Chief Executive Officers of both parties who shall then try to find a mutual solution within thirty (30) days following their involvement.
18.2 If the foregoing procedure does not lead to a solution then, all disputes arising out of or in connection with this Agreement including, but not limited to, any question regarding its existence, validity or termination, shall refer to and be subjected to the exclusive jurisdiction of the courts of Singapore.
18.3 If Buyer is incorporated in a country where court orders from Singapore will not be serviceable or effective, the Parties hereto agree that all disputes arising out of or in connection with this Agreement shall be finally settled under the Singapore International Arbitration Center (“SIAC”) by one arbitrator appointed in accordance with the said Rules. The seat, or legal place, of arbitration shall be Singapore, and the language to be used in the arbitral proceedings shall be English. Judgment upon the award rendered by the arbitrator shall be final and binding upon the Parties. Such judgment may be entered in any court having jurisdiction thereof and finally resolved by arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce (“ICC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator to be appointed by the ICC. The arbitrator will be a citizen expert in the applicable law and in arbitration procedures The language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the parties.
19. Nullity
19.1 If any provision or part thereof of this TERMS AND CONDITIONS is held to be unenforceable by the competent court, then the remaining provision will continue in full force and effect. The parties acknowledge and agree that if any provision of this Agreement, or any part thereof, is held to be invalid or unenforceable by a competent court due to such provision or part thereof having an excessive or illegal time period and/or overly broad or illegal scope, such invalid or unenforceable provision or part thereof shall automatically be substituted by the same provision having the same intent, but having a legally valid time period and/or scope.
19.2 In the remaining cases, the Parties will in good faith negotiate a mutually acceptable and enforceable substitute for the unenforceable provision or part thereof, which substitute will be as consistent as possible with the original intent of the parties. If the Parties are unable to agree about such substitute for the unenforceable provision or part thereof, then the Court shall interpret the contract and implement such provisions or part thereof held to be unenforceable within the full extent permitted by law and the Court shall interpret the full contract as a whole and as closely as possible to the initial intend of the parties.
20. Waiver
Unless provided hereunder otherwise, the failure of any of the parties to exercise, and/or any delay in exercising any right or remedy under the terms of this TERMS AND CONDITIONS shall be deemed waiver of the same, nor partial or single exercise of any right or remedy preclude the future exercise thereof or the exercise of any other right or remedy which is granted by this TERMS AND CONDITIONS or any related document or by law.
21. Binding Effect and Assignment
The rights and obligations of Parties under this TERMS AND CONDITIONS or any agreement or contract that may arise from any order send by the Buyer and accepted by DURAPOWER cannot be transferred, assigned or subrogated, in whole or in part, by any Party hereto without prior written consent of the other, but shall be binding upon and ensure the appropriate benefit and be enforceable by the parties that signed this TERMS AND CONDITIONS and any successor, permitted assigns or legal representative.
22. Compliance with Laws
Buyer warrants that Buyer shall comply with all local Laws arising out of this Agreement.
23. Responsible Practices
23.1 Buyer shall:
a) familiarize itself with all information furnished by DURAPOWER from time to time;
b) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the Product furnished hereunder, including, without limitation, special care and practices as Buyer’s use of the Product requires including, without limitation, all such practices required by applicable Laws;
c) instruct its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation, and disposal of the goods furnished hereunder, and
d) comply with applicable safety and environmental Laws and take action necessary to avoid any dangers to persons, property or the environment.
e) hereby grant, unless otherwise agreed between the Parties in writing, to DURAPOWER a non-exclusive, worldwide, paid-up, sublicensable, non-transferable license to use the Buyer company name, brand, branding, logo and any distinguishing trademark for marketing, promotional material and publication either in news media, or social media or on the DURAPOWER company website, except for any information reasonably determined by DURAPOWER to be commercially and operationally sensitive information.
23.2 Buyer shall indemnify, defend, and hold DURAPOWER harmless against any and all third party causes of action, claims, liabilities, losses, costs, damages and expenses (including, without limitation, attorneys’ fees and expenses) to the extent arising out of Buyer’s failure to comply with any of its commitments under this Section 23.
24. Survival
Notwithstanding the termination of the relationship between DURAPOWER and Buyer, these TERMS AND CONDITIONS of supply, shall be maintained until full compliance. The Parties’ rights and remedies and the parties’ obligations and responsibilities which have accrued before, or by their nature would extend beyond, the expiration, termination or other cancellation of this TERMS AND CONDITIONS shall survive such expiration, termination or other cancellation and continue to bind the parties and their permitted successors and assigns indefinitely until fulfilled or waived (including, without limitation, Sections 17 to 24, any obligations of confidentiality, warranty and the limitation of liabilities).
TERMS AND CONDITIONS OF SUPPLY OF MODULES
Version: March 2024
1. Scope
1.1 These Terms and Conditions of Supply shall apply to and are deemed to be incorporated in all contracts for the sale of Products or the supply of goods and/or services from DURAPOWER HOLDINGS PTE. LTD., DURAPOWER TECHNOLOGY (SINGAPORE) PTE. LTD., SUZHOU DURAPOWER TECHNOLOGY CO. LTD., DURAPOWER TECHNOLOGY GROUP B.V. (“DURAPOWER”, hereinafter) and other DURAPOWER-related entities, including other DURAPOWER entities stated in quotations, purchase orders or any documents intended for such supply of Products or goods and services. No changes or variation or waiver of these Terms and Conditions of Supply (“TERMS AND CONDITIONS” hereinafter) shall have any legal effect except and unless expressly agreed to by DURAPOWER in writing.
1.2 This document, together with the quotations, order acknowledgments, invoices and specifications (and all supplements and attachments thereto issued by DURAPOWER from time to time) shall constitute the entire agreement between DURAPOWER and Buyer for each sale or supply of goods and/or services between the parties. Buyer agrees that any document, agreement or contract and the terms of sale and supply stipulated by the Buyer for such sale and supply of goods and/or services shall be superseded and shall not apply. Once referred, only these TERMS AND CONDITIONS shall apply. Unless expressly agreed to by DURAPOWER in writing, or provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment, in the event of any inconsistency between these TERMS AND CONDITIONS and the provisions on any other quotation or on any other supplement or attachment thereto, these TERMS AND CONDITIONS shall control/prevail.
1.3 In addition to Buyer’s expressed acceptance of these TERMS AND CONDITIONS, Buyer’s conduct, including without limitation, sending an order for, payment for, accepting the delivery of, use of, the Product or goods and services shall be deemed to be Buyer’s acceptance that these TERMS AND CONDITIONS shall apply.
2. Definitions
“Product” means lithium-ion cell assemblies, produced and sold by DURAPOWER as one or more “Modules” and includes any goods, machinery, systems (including any services provided by DURAPOWER as part of or independent of tangible goods and/or machinery) or related parts or spare parts designed, manufactured, assembled and/or supplied by DURAPOWER as a “Module” and includes singular and plural when required by the context. For the avoidance of doubt, “Product” here does not refer in whole or in part to any component that shall be or has been assembled along or with a DURAPOWER Module in the same application.
“Buyer” includes any principal or agent or subcontractor of the Buyer.
“Location” means the place where the Product has to be installed or where the Product will become part of an assembly for its intended use.
3. Quotations and Acceptance
3.1 Unless otherwise agreed with the Buyer in writing or provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment, prices and terms of contract quoted by DURAPOWER shall be for delivery term EXW DURAPOWER’s premises. The only exception to this delivery term shall be for exports from China whereupon the delivery term shall be FOB (Shanghai).
3.2 Prices quoted by DURAPOWER shall remain in force for a period of thirty (30) days, as from the date of the quotation, unless otherwise agreed between the parties or unless DURAPOWER ‘s costs has increased within this term due to reasons beyond of DURAPOWER’s control.
3.3 Where required, Buyer is solely responsible and liable to provide to DURAPOWER, in a timely manner, valid, applicable and complete certifications and licenses, including export licenses, required in connection with any required movement, transport or shipment of the Product. In addition, nothing contained herein shall be deemed to require DURAPOWER to take any action that would constitute, directly or indirectly, a violation of any laws of any applicable jurisdiction, and DURAPOWER’s failure to take any such action shall not be deemed a breach hereunder and Buyer shall defend and indemnify DURAPOWER for any claims or loss arising therefrom.
4. Schedules and Delays
4.1 DURAPOWER shall notify the Buyer of any projected delays in delivery. Notwithstanding any expressed delivery date stated on the order or supply document, any notification of changes to the delivery date shall be DURAPOWER ‘s best estimate of the date on which delivery is projected.
4.2 Buyer agrees that any expressed date of delivery shall not be an essential condition of the quotation but shall be taken to be the probable foreseen date of delivery only.
4.3 Buyer agrees that any variation or change in shipment schedule or date shall be notified to DURAPOWER no less than 4 months prior to the agreed date of shipment. DURAPOWER shall at its sole discretion accept or reject any requests for changes in shipment schedule or date that has been notified to DURAPOWER less than 4 months prior.
4.4 Buyer agrees that any non-confirmation of, or, change to Product design will naturally affect any previously determined or agreed shipment date and DURAPOWER shall at its sole discretion inform Buyer of reasonably plausible shipment dates subsequent to non-confirmation of, or change to Product design. Parties shall come to an agreement and Buyer shall pay any agreed fee to DURAPOWER for any customisation and design fee fully to Buyer as a condition of any delivery of such by DURAPOWER.
5. Control and Permits
For the avoidance of doubt, unless otherwise agreed in writing, Buyer and their representative or agents are entirely responsible to possess or to obtain for any documentation, permits, licenses, homologation or the like from all and any pertinent authorities to allow Buyer to exercise its rights under the TERMS AND CONDITIONS, including but not limited to the transportation, movement, export, import, handling, certifications for any Products and Services to be provided herein and Buyer shall defend and indemnify DURAPOWER for any claims or loss arising therefrom.
6. Shipment and Delivery
6.1 All Product term of delivery shall be EXW DURAPOWER premises unless otherwise agreed in writing or provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment. The sole exception to this rule shall be for exports from China whereupon the delivery term shall be FOB (Shanghai). In exception cases, and only upon agreement with Buyer’s request to do so, DURAPOWER shall, at Buyer’s expense, arrange carriage and insure the Product against normal transit risks, but in the event of loss or damage whether or not caused by the negligence of DURAPOWER or its carrier or any third party, DURAPOWER’s liability shall be limited to endorsing to Buyer the benefit of such insurance.
6.2 If instructions for dispatch are not received or if Buyer otherwise fails to take delivery or it requires DURAPOWER to delay delivery beyond any agreed delivery date, DURAPOWER shall be entitled to make arrangements for storage of the Product and to charge Buyer accordingly and inventory holding cost. Buyer shall become responsible for the risk of loss of or damage to the Product and for paying the contract price as if the Product had been delivered. Unless otherwise agreed between the Parties, where Buyer fails to take complete delivery or causes delivery to not be completed within 30 days from the agreed delivery date, Buyer agrees that the Retention of Title clause (Clause 8.4) shall apply.
7. Installation and Commissioning
7.1 Unless otherwise agreed in writing between the parties, any provisioning of supervisory, installation or commissioning services of the Products expressly as described in the quotation and to be paid for by Buyer are subject to the following terms:
a) Buyer shall pay the services at the specified rate per man-day plus living and travel and any other ancillary expenses that may be incurred to perform such services.
b) Each man-day shall be an indivisible block of eight (8) hours.
c) The stated specific rate per man-day applies to weekdays, Mondays through to Fridays only.
d) Additional hours per day, Saturdays, Sundays and any work to be done on local public holidays shall be charged with an additional premium.
e) If such services are finally required for a number of days in excess of the period agreed, Buyer shall inform DURAPOWER in writing of the requirement and DURAPOWER reserves the right to request Buyer to pay for additional days in the same manner as specified above plus any additional costs or expenses incurred by reason of the extension of the period of service, including journey costs for travelling from Location to DURAPOWER’s premises by DURAPOWER’s employees and vice versa for the duration that DURAPOWER employees are station at the Location, including any travel at the beginning and end of rest days and weekends.
7.2 Buyer warrants that the Location where the Product has to be installed meets at least the DURAPOWER’s specifications of application environment or as represented by Buyer and accepted by DURAPOWER. If DURAPOWER is not satisfied with the preparatory work and/or conditions of the Location of any installation, commissioning or work to be done by DURAPOWER, DURAPOWER shall at DURAPOWER’s sole and absolute discretion, determine whether to suspend DURAPOWER’s intended work, whether supervisory, commissioning or installation services if it is under DURAPOWER’s responsibilities, and, charge Buyer for any additional costs incurred by DURAPOWER, whereupon such costs shall form and accrue against Buyer in accordance with the Payment term described herein.
7.3 Buyer shall be responsible for obtaining all necessary permits and licenses and the like for any installation, and commissioning to be undertaken and completed to the satisfaction of DURAPOWER, and warrants that Buyer has provided DURAPOWER with all necessary information including engineering plans, blueprints, technical descriptions and drawings about the Location where the Product will be installed and shall provide at its own expense such ancillary services and facilities as DURAPOWER may reasonably require to fulfil provisioning of supervisory, commissioning or installation services, as required under the agreed terms of the quotation.
7.4 Unless otherwise agreed by the Parties in writing, for the avoidance of doubt, DURAPOWER shall not be responsible for raw materials, parts or machinery required for the provisioning of such installation, commissioning, or work, and shall not be liable for the operation, connectivity or utility of any equipment, plant or process, or any part thereof.
7.5 Buyer warrants safe and adequate access to the Location for DURAPOWER’s employees and/or subcontractors and warrants the safe custody of all Product, materials and other property left on the site by DURAPOWER in the course of installation and commissioning. Buyer shall be liable for any injury suffered by DURAPOWER or its employees and/or subcontractors, except to the extent that such injury is caused by their own negligence. Buyer shall be liable for any property damage, loss, deficiency, loss of function, loss of functionality and loss of utility, or any other damage to the Products, even if such Products have become a part of or component of an assembled product, property, plant or complex.
8. Payment
8.1 Full payment must be made to DURAPOWER in advance at order confirmation by bank wire, unless otherwise agreed in writing. Notwithstanding anything to the contrary, for any part or portion of the full payment not received by DURAPOWER six (6) months after the date of the order or purchase order, DURAPOWER shall, at its sole discretion, reserve the right to instruct Buyer to cause any remainder of the full payment to be made to DURAPOWER and Buyer shall then take all actions to cause DURAPOWER to receive such part or portion of the payment unpaid. Product shall remain the full property of DURAPOWER until the Buyer has made full and unconditional payment.
8.2 Unless not enforceable under the law, Buyer agrees that if DURAPOWER does not receive full payment of amounts due by the date required herein or agreed to, any portion unpaid by Buyer shall be subject to accrued interest at a rate of twelve per cent (12%) of the outstanding balance per annum, or the maximum rate allowed by the applicable law, whichever is lower, from the date such payment is due to DURAPOWER until the full amount due to DURAPOWER is fully paid. In addition, Buyer shall be liable for DURAPOWER’s collection costs and attorneys’ fees in collecting any monies unpaid and shall reimburse DURAPOWER for any costs so arising.
8.3 If any payment is overdue, DURAPOWER shall be entitled to suspend further deliveries or services.
8.4 Retention of title by DURAPOWER
Title to the Product shall remain vested in DURAPOWER and shall not pass to the Buyer until the purchase price for Product has been paid in full and received by DURAPOWER. Until title to Product passes:
a) DURAPOWER shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of Product;
b) DURAPOWER and its agents and employees shall be entitled at any time and without the need to give notice enter upon any property upon which Product or any part are stored, or upon which DURAPOWER reasonably believes them to be kept;
c) The Buyer shall store or mark Product in a manner reasonably satisfactory to DURAPOWER indicating that title to the Product remains vested in DURAPOWER;
d) The Buyer shall insure the Product to their full replacement value, and arrange for DURAPOWER to be noted on the policy of insurance as the loss payee; and
e) Irrespective of whether title to the Product remains vested in DURAPOWER, risk in the Product shall pass to the Buyer upon delivery based on agreed incoterms.
9. Delivery
9.1 Although DURAPOWER shall endeavour to supply the Product within the specified time, DURAPOWER shall not be liable for delays due to any cause beyond DURAPOWER’s reasonable control.
9.2 DURAPOWER is allowed to make partial shipments.
9.3 Unless otherwise agreed, upon Delivery of the Product, any damage to the Product or discrepancy with the packing list must be, within seven (7) calendar days,: (i) notified to DURAPOWER in writing and (ii) stated in the CMR or forwarding agent’s receipt alike, failing which DURAPOWER shall not be liable for damages, losses or discrepancies with the packing list or damage to the Product. Failure by Buyer to give such notice and make such statement within the stated period of time shall constitute acceptance and a waiver of all such claims by Buyer and end users. DURAPOWER reserves all rights of refusal to accept such notice if notification under (i) or the statement in (ii) are incomplete, or deficient.
9.4 Buyer shall be required to procure at its own expense any import licenses or related documentation required for the country of destination and/or any intermediate destination to which the Product is to be dispatched or delivered. Buyer shall be responsible for any and all import duties, taxes, leaves, fees, cost and alike.
9.5 Unless otherwise agreed between the parties in writing, Buyer agrees to be under an obligation to collaborate with DURAPOWER to provide performance data available from the Product in the form and frequency that is useful (as solely defined at DURAPOWER’s sole and utmost discretion) to DURAPOWER. To the extent allowed under the law and to the fullest extent possible, all rights, including rights of ownership, use, re-use and all rights to deal, related with performance data, shall pass to DURAPOWER upon the performance data being received by DURAPOWER. Buyer agrees that this clause 9.5 is a term of this Agreement for the supply of the Products. Buyer agrees to undertake such provisioning of performance data in the form that are considered to be industry normative format (in Hexadecimal format, ASCII format, or similar) that DURAPOWER has agreed to be used, and shall undertake to instruct the Product or any pertinent component, to provide at the minimum, the following performance data, at a frequency that is no less than 1 (one) time per minute:
a) Minimally operating voltage of battery (at pack, module, cell);
b) Minimally operating current of battery (at pack, module, cell);
c) Minimum operating temperature of battery (at pack, module, cell);
d) State of Charge;
e) State of Health; and
f) Energy Consumption.
10. Intellectual Property
10.1 Any know how, technical information, drawings, specifications or documents supplied in connection with the supplies made by DURAPOWER to Buyer shall be kept confidential by Buyer and shall not be disclosed to any third party or used for any other purpose than for the purpose of the supply without the prior written consent of DURAPOWER, unless and until the same is or becomes public knowledge.
10.2 Ownership of any and all intellectual property rights are hereby retained by DURAPOWER.
10.3 DURAPOWER is not aware that the Product infringes any third-party patent or any other intellectual property restrictions as and when supplied, and DURAPOWER gives no other warranty against patent or other intellectual property infringement and shall not be liable in respect thereof.
10.4 If DURAPOWER introduces variations to the Product to meet Buyer’s special requirements, or to Buyer’s own specifications, no further warranty is given and Buyer shall accept full liability in respect of any and all infringement of patents or other intellectual property rights and agrees to indemnify and keep DURAPOWER harmless against any and all claims, losses or costs arising therefrom.
10.5 No warranty is given that any particular use of the Product, or any technique employed therewith is free from any limitations of use or other intellectual property restrictions. Any advice given by DURAPOWER in relation thereto is given without liability to DURAPOWER.
10.6 The trademarks and names of DURAPOWER, including any trademark and commercial name commonly used by DURAPOWER in the course of business, shall not be used by Buyer and/or end users other than use as applied by DURAPOWER to the Product supplied.
11. Warranty
11.1 For the purposes of this Agreement, a “Defective Product” shall mean any single Product or part thereof supplied by DURAPOWER to Buyer under this TERMS AND CONDITIONS, suffering a manufacture malfunction thereby resulting in performance that does not meet the performance specifications of the Product, as specified in the quotation (usually the specific Data Sheet of the Products), and which is confirmed by DURAPOWER or proved by Buyer to be suffering from such malfunction and being covered by DURAPOWER’s warranty under this Agreement.
11.2 Unless otherwise provided by DURAPOWER to Buyer on a quotation or invoice for a particular order or shipment, DURAPOWER solely provides a Product Specification Warranty, where DURAPOWER warrants that the Product at Delivery shall conform to the technical features as described in the quotation (usually Data Sheet or Proposal of the Product). Subsequent to completion of delivery, installation and commissioning whether performance by DURAPOWER or Buyer, subject to Buyer performing operation and maintenance in full accordance with DURAPOWER’s product manuals for installation, commissioning, maintenance or any other instructions or directions provided to Buyer, this Product Specification Warranty shall be provided by DURAPOWER for a total period of twelve (12) months whether starting from the date of Delivery (“Warranty Period”) or for any replacement or repaired or refurbished part or product.
11.3 Subject to due compliance by Buyer of the sections herein, DURAPOWER’s warranty as provided under 11.2 shall be subject and restricted to the following conditions:
(a) Notice:
(i) Product Specification Warranty – Buyer provides DURAPOWER with written notice in case of any apparent breach of the Product Specification Warranty within seven (7) calendar days of the Delivery date; or, within the Warranty Period, the Buyer shall provide written notice to DURAPOWER within three (3) working days as of the detection of a breach of the Product Specification Warranty.
(ii) In the event that either of the above-mentioned warranty periods were to expire without the Buyer providing any notice to DURAPOWER, the warranty shall be voided and DURAPOWER shall avoid any liability thereof.
(b) Rectification. DURAPOWER’s warranty obligation and Buyer’s sole and exclusive remedy arising herein, shall be limited to, at the sole and unfettered option of the DURAPOWER, (i) the repair by DURAPOWER or the arrangement for such repair by an authorised subcontractor, of the Product or the defective part thereof or (ii) replacement of the Product itself or the defective part of the Product thereof, where the Parties agree that the supplied replacement Product or part may differ slightly, or, (ii) the refund of the price of the Product paid by Buyer to DURAPOWER. DURAPOWER disclaims and excludes any liability for any other loss caused by a breach of warranty, such as any loss arising from, but not limited to, transport, displacements, package disassembly, installation, loss of production, loss of earnings.
(c) DURAPOWER may request Buyer to place at DURAPOWER’s disposal the defective Product or the defective parts thereof in the same condition they were delivered, before proceeding with DURAPOWER’s obligation to undertake any repair, replacement or refund.
(d) Solely to the extent that certain components of the Product or parts thereof are not of DURAPOWER’s own manufacture, DURAPOWER’s liability for warranty therein is limited to the passing on to Buyer the benefit of any guarantee or warranty given to DURAPOWER by the manufacturer for such component of the Product or part thereof;
(e) DURAPOWER disclaims all liability for a purported breach of warranty arising from a defect, if the defect has been caused by one or more of the following:
(i) Buyer or any third party has caused the defect by negligence, incorrect handling or improper use or lack of due maintenance;
(ii) Product(s) were used for a purpose for which they were not designed for;
(iii) Product(s) were connected to other products or hardware or to an incompatible software;
(iv) Wear and tear;
(v) Unauthorized modification of the Product or replacement of parts of the Product by the Buyer or end-user(s).
(f) DURAPOWER’s obligation to respond to or act under a claim for a breach of warranty shall be conditional on Buyer having no late payments due to DURAPOWER. During periods where Buyer is late in its payments to DURAPOWER, the Warranty Period shall continue to run down.
(g) For the avoidance of doubt, in a situation where a Product needs to be upgraded after its delivery, due to the application or requirements of new industry standards, safety requirements, laws or statutes regarding the use and application of the Product, any deficiency or non-use of the Product arising therefrom shall not cause the Product to be considered as a Defective Product. If and when an upgrade and/or improvement of the Product is available, Buyer’s requirement or purchase of a replacement Product shall be subjected to a new order by Buyer to DURAPOWER and the parties shall agree on the amended specifications and technical requirements of such an order.
(h) Nothing in this section shall be understood as an extension to the term for notices related to discrepancies with the packing list and damages to the Product upon Delivery, as described in section 6 herein.
(i) EXCEPT AS EXPRESSLY STATED IN THIS SECTION, BUYER ACCEPTS THAT PRODUCTS ARE BEING PURCHASED AND SOLD ON AN “AS-IS” BASIS, AND, BUYER ACCEPTS THAT THE WARRANTIES AND CONDITIONS SET OUT IN THESE SUPPLY CONDITIONS APPLY TO ANY SUPPLY OF PRODUCT IN LIEU OF ALL OTHER EXPRESS AND/OR IMPLIED AND/OR STATUTORY WARRANTIES (EXCEPT TITLE) THAT MAY BE CLAIMED ON THE GROUNDS OF LAW, USES OR CUSTOMS, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY AND FITNESS FOR PURPOSE DIFERENT FROM THE ONE MENTIONED IN THE QUOTATION, AND ANY SUCH IMPLIED TERMS AND CONDITIONS ARE HEREBY EXPRESSLY EXCLUDED TO THE EXTENT PERMITTED BY LAW. BUYER ACKNOWLEDGES THAT IT IS PURCHASING THE PRODUCT SOLELY ON THE BASIS OF THE COMMITMENTS OF DURAPOWER AS EXPRESSLY SET FORTH HEREIN.
(j) FOR THE AVOIDANCE OF ANY DOUBT, BUYER BY PASSING AN ORDER AGREES TO RENOUNCE TO ANY OTHER EXPRESS OR IMPLIED WARRANTY OR REMEDY TO THE LARGEST EXTENT ALLOWED BY LAW.
12. Safety
So far as reasonably practicable DURAPOWER has ensured that its Products has been designed and constructed as to be safe and without risks to health when properly installed and used in accordance with DURAPOWER’s operating instructions. Buyer is aware of the local laws and regulations about risks regarding health and safety and of the Product specifications and operation. Therefore, Buyer is solely responsible for any risks regarding due compliance of such laws and regulations by the Product and its operation as from delivery and shall ensure that the individuals that will use, maintain or otherwise ensure the Product receive adequate training and safety literature. Standard safety literature will be supplied by DURAPOWER free of charge and may be duplicated by the Buyer if required and the Buyer has to check such literature and complete it, if needed, to duly comply with any local requirement.
13. Insurance and Liabilities
13.1 Buyer by entering into a contract with DURAPOWER commits and secures to be sufficiently insured for civil liability to reasonably cover any risk.
13.2 Notwithstanding anything to the contrary herein or in any agreement or document signed between the parties and to the fullest extent permitted under the law, neither party will be liable to the other in any action or claim for incidental, special, consequential, indirect, punitive, exemplary or statutory damages, including without limitation any loss of revenues, loss of savings or loss of profits for any matter whatsoever, arising out of or related to any supply under this supply conditions, whether the action in which recovery of damages is sought is based upon contract, tort (including, to the greatest extent permitted by law, the sole, concurrent or other negligence, whether active or passive, and strict liability of seller), statute or otherwise, including fundamental breach or negligence, even if the party has been advised of such possibility of such damages.
13.3 Notwithstanding anything to the contrary herein or in any agreement or document signed between the parties and to the fullest extent permitted under the law, DURAPOWER’s liability for any claim of any kind, for any loss or damage arising out of, connected with or resulting from any supply under this TERMS AND CONDITIONS or from the performance or breach thereof, shall in no case exceed the purchase price allocable to the Product or unit thereof which gives rise to the claim. For undelivered Products, DURAPOWER ‘s liability is limited to the difference between the market price for a similar Product and DURAPOWER’s price. The parties undertake not to hold the other liable for penalty clauses of any description.
13.4 Any action resulting from any claim arising under this agreement which may be brought by any of the parties must be commenced within one (1) year after the cause of action has accrued. Otherwise the claimant party shall lose any and all entitlement to the claim and agrees to hold the other harmless against such claims.
14. Indemnity
NOTWITHSTANDING ANYTHING TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, DURAPOWER SHALL NOT BE LIABLE TO BUYER FOR, AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS DURAPOWER AND ITS ASSOCIATED OR SUBSIDIARY COMPANIES, RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS AND EMPLOYEES, AND THE SUCCESSORS AND ASSIGNS OF THE FOREGOING, FROM AND AGAINST ALL OR ANY PART OF ANY CAUSES OF ACTION, CLAIMS, LIABILITIES, LOSS, COSTS, DAMAGES AND EXPENSES INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES AND EXPENSES, (COLLECTIVELY “CLAIMS”) FOR ANY INJURY, ILLNESS OR DEATH TO PERSONS (INCLUDING, WITHOUT LIMITATION, THIRD PARTIES AND BUYER’S EMPLOYEES AND ITS AGENTS, CONTRACTORS, SUBCONTRACTORS AND CUSTOMERS, AND THEIR RESPECTIVE EMPLOYEES) AND DAMAGES TO OR LOSS OF PROPERTY (INCLUDING, WITHOUT LIMITATION, THAT OF BUYER OR THIRD PARTIES) ARISING OUT OF OR RESULTING FROM BUYER’S PURCHASE, OWNERSHIP, TRANSPORTATION, RECEIPT, HANDLING, STORAGE, PROCESSING, ALTERATION, USE, DISPOSAL OR RESALE OF THE PRODUCT, ALONE OR IN COMBINATION WITH OTHERS OR IN THE OPERATION OF ANY PROCESS.
15. Force Majeure and Cancellation
15.1 DURAPOWER and the Buyer shall be relieved from liability hereunder for failure to perform any or all of its obligations, for the time and to the extent of such failure to perform where the Party’s failure is occasioned by any cause or causes of any kind or character reasonably beyond the control of the Party (any such cause herein called “Force Majeure”), including, without limitation: Acts of God; pandemics, epidemics, accidents, fire, explosion, floods, hurricanes; strikes, lockouts or other industrial disturbances; riots or civil commotion; war, declared or undeclared; compliance with any laws, rules, regulations, ordinances, codes or executive orders of any kind and nature now or hereafter in effect promulgated by any federal, state, county or local government, or any other government (domestic or foreign) or any other governmental agency (domestic or foreign)(collectively, the “Laws”) including, without limitation, prioritization, rationing, allocation or pre-emption orders or regulations affecting the conduct of DURAPOWER ‘s business which DURAPOWER in its sole discretion deems it advisable to comply with as a legal or patriotic duty; cancellation of DURAPOWER’s license to operate its plant; shortage or breakdown or other failure of facilities used for manufacture or transportation; shortage of labour; inability to secure, all at reasonable prices or on account of shortages of, transportation, power, fuel, materials or supplies; or total or partial shutdown due to DURAPOWER’s normal plant turnaround or as required by DURAPOWER’s operation. If any of the Parties is rendered unable by Force Majeure to carry out its obligations under this Agreement, that Party shall give notice to the other Party, and upon the giving of such notice the obligations the Party, so far as they are affected by such Force Majeure, shall be suspended during the continuance of any inability so caused.
15.2 Upon the cessation of the cause or causes for any such failure or delay, performance hereof shall be resumed, but such delay shall not, except by mutual agreement, obligate DURAPOWER to make up deliveries or Buyer to purchases quantities so missed. Settlement of strikes or lockouts shall be entirely within the sole discretion of the Party affected by the Force Majeure, and that Party shall not be required to settle strikes or lockouts by acceding to the demands of the employees involved, when such course is inadvisable in the affected Party’s sole discretion.
15.3 The Parties agree that if, subsequent to Buyer’s issuance of a Purchase Order, Buyer for any reason decides to inform DURAPOWER that a requirement under such a Purchase Order is to be cancelled, Buyer is to immediately be liable to DURAPOWER for liquidated damages equal in value to the part of the Purchase Order that is cancelled, unless any other reimbursement for cancellation is agreed between the Parties in writing.
15.4 If the delivery of Product should be delayed for more than six (6) months, Buyer shall be entitled to cancel the order/s or the remainder thereof, subject to payment of the price of any partial performance (if any) and neither of the parties shall be entitled to any other damages or compensation whatsoever.
16. Termination
16.1 If the Buyer commits any act of bankruptcy or, being a company, has a receiver appointed or an administration order made against it or goes into liquidation (except for the purpose of reconstruction or amalgamation) or commits any breach of any provision of these conditions of supply, then all sums due hereunder shall immediately become due and payable and DURAPOWER may, notwithstanding any previous waiver, terminate any current supply forthwith by written notice, with no liability to DURAPOWER, but without prejudice to any prior right of either party.
16.2 In the event that either DURAPOWER or Buyer or the country of incorporation of either is found to be or at any time becomes subject to economic sanctions imposed by the Office of Foreign Assets Control of the United States of America or relevant international regulatory authorities, the parties agree, regardless of whether expressed notice of such termination is provided by the non-sanctioned party, to immediately terminated any agreement based on these TERMS AND CONDITIONS without further obligation or liability on the part of either party, and, that all prior, existing or current obligations or liabilities of the parties shall be voided. This clause shall supersede and/or apply notwithstanding any conflicting provisions within the TERMS AND CONDITIONS to the contrary.
17. Governing Law
These conditions of supply are governed by the laws of the Republic of Singapore, without recourse to any conflict of laws principles. The parties agree that the current Contracts (Rights of Third Parties) Act on the date of agreement shall not apply.
18. Jurisdiction and Arbitration
18.1 DURAPOWER and Buyer shall endeavour to settle possible points at issue or disputes in an amicable way. In case a controversy cannot be resolved by the management dealing with the matter on an operational level, the dispute shall be transferred to the Chief Executive Officers of both parties who shall then try to find a mutual solution within thirty (30) days following their involvement.
18.2 If the foregoing procedure does not lead to a solution then, all disputes arising out of or in connection with this Agreement including, but not limited to, any question regarding its existence, validity or termination, shall refer to and be subjected to the exclusive jurisdiction of the courts of Singapore.
18.3 If Buyer is incorporated in a country where court orders from Singapore will not be serviceable or effective, the Parties hereto agree that all disputes arising out of or in connection with this Agreement shall be finally settled under the Singapore International Arbitration Center (“SIAC”) by one arbitrator appointed in accordance with the said Rules. The seat, or legal place, of arbitration shall be Singapore, and the language to be used in the arbitral proceedings shall be English. Judgment upon the award rendered by the arbitrator shall be final and binding upon the Parties. Such judgment may be entered in any court having jurisdiction thereof and finally resolved by arbitration in accordance with the Arbitration Rules of the International Chamber of Commerce (“ICC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this clause. The Tribunal shall consist of a single arbitrator to be appointed by the ICC. The arbitrator will be a citizen expert in the applicable law and in arbitration procedures The language of the arbitration shall be English. The award of the arbitrator shall be final and binding upon the parties.
19. Nullity
19.1 If any provision or part thereof of this TERMS AND CONDITIONS is held to be unenforceable by the competent court, then the remaining provision will continue in full force and effect. The parties acknowledge and agree that if any provision of this Agreement, or any part thereof, is held to be invalid or unenforceable by a competent court due to such provision or part thereof having an excessive or illegal time period and/or overly broad or illegal scope, such invalid or unenforceable provision or part thereof shall automatically be substituted by the same provision having the same intent, but having a legally valid time period and/or scope.
19.2 In the remaining cases, the Parties will in good faith negotiate a mutually acceptable and enforceable substitute for the unenforceable provision or part thereof, which substitute will be as consistent as possible with the original intent of the parties. If the Parties are unable to agree about such substitute for the unenforceable provision or part thereof, then the Court shall interpret the contract and implement such provisions or part thereof held to be unenforceable within the full extent permitted by law and the Court shall interpret the full contract as a whole and as closely as possible to the initial intend of the parties.
20. Waiver
Unless provided hereunder otherwise, the failure of any of the parties to exercise, and/or any delay in exercising any right or remedy under the terms of this TERMS AND CONDITIONS shall be deemed waiver of the same, nor partial or single exercise of any right or remedy preclude the future exercise thereof or the exercise of any other right or remedy which is granted by this TERMS AND CONDITIONS or any related document or by law.
21. Binding Effect and Assignment
The rights and obligations of Parties under this TERMS AND CONDITIONS or any agreement or contract that may arise from any order send by the Buyer and accepted by DURAPOWER cannot be transferred, assigned or subrogated, in whole or in part, by any Party hereto without prior written consent of the other, but shall be binding upon and ensure the appropriate benefit and be enforceable by the parties that signed this TERMS AND CONDITIONS and any successor, permitted assigns or legal representative.
22. Compliance with Laws
Buyer warrants that Buyer shall comply with all local Laws arising out of this Agreement.
23. Responsible Practices
23.1 Buyer shall:
a) familiarize itself with all information furnished by DURAPOWER from time to time;
b) adopt and follow safe handling, storage, transportation, use, treatment and disposal practices with respect to the Product furnished hereunder, including, without limitation, special care and practices as Buyer’s use of the Product requires including, without limitation, all such practices required by applicable Laws;
c) instruct its employees, independent contractors, agents and customers of the precautions and safe use practices required in connection with the unloading, handling, storage, use, transportation, and disposal of the goods furnished hereunder, and
d) comply with applicable safety and environmental Laws and take action necessary to avoid any dangers to persons, property or the environment.
e) hereby grant, unless otherwise agreed between the Parties in writing, to DURAPOWER a non-exclusive, worldwide, paid-up, sublicensable, non-transferable license to use the Buyer company name, brand, branding, logo and any distinguishing trademark for marketing, promotional material and publication either in news media, or social media or on the DURAPOWER company website, except for any information reasonably determined by DURAPOWER to be commercially and operationally sensitive information.
23.2 Buyer shall indemnify, defend, and hold DURAPOWER harmless against any and all third party causes of action, claims, liabilities, losses, costs, damages and expenses (including, without limitation, attorneys’ fees and expenses) to the extent arising out of Buyer’s failure to comply with any of its commitments under this Section 23.
24. Survival
Notwithstanding the termination of the relationship between DURAPOWER and Buyer, these TERMS AND CONDITIONS of supply, shall be maintained until full compliance. The Parties’ rights and remedies and the parties’ obligations and responsibilities which have accrued before, or by their nature would extend beyond, the expiration, termination or other cancellation of this TERMS AND CONDITIONS shall survive such expiration, termination or other cancellation and continue to bind the parties and their permitted successors and assigns indefinitely until fulfilled or waived (including, without limitation, Sections 17 to 24, any obligations of confidentiality, warranty and the limitation of liabilities).
