(iii) References to a Section, subsection or Exhibit refer to this Agreement
unless otherwise specified.
(iv) The word “include,” “includes,” and “including” when used in this
Agreement shall be deemed to be followed by the words “without limitation,” and, unless otherwise specified, shall not be deemed limited by the specific enumeration of items. The term “or” is not exclusive.
(v) A reference to a party to any agreement or document shall include such
party’s predecessors, successors and permitted assigns.
(vi) The Parties have participated jointly in the negotiation and drafting of this
Agreement. Any rule of construction or interpretation otherwise requiring this Agreement to be construed or interpreted against either Party by virtue of the authorship of this Agreement shall not apply to the construction and interpretation hereof.
(d) Headings. All headings or captions contained in this Agreement are for
convenience of reference only, do not form a part of this Agreement and shall not affect in any way the meaning or interpretation of this Agreement.
(e) Conflicts in Documentation. This Agreement, including the Exhibits hereto, shall be taken as mutually explanatory. If either Party becomes aware of an express conflict between the provisions of this Agreement or any Exhibit hereto, such Party shall promptly notify the other Party. In the event of a conflict between any provision within Sections 1 through 29 of this Agreement and an Exhibit, the provisions of Sections 1 through 29 of this Agreement shall take precedence over such Exhibit.
(f) Documentation Format. This Agreement and all documentation to be supplied
hereunder shall be in the English language and all units of measurement in the design process, specifications, drawings and other documents shall be specified in dimensions as customarily used in the United States of America.
2.
SALE OF GOODS
(a) Subject to the provisions of this Agreement, Buyer shall purchase, and Seller shall
sell and deliver to Buyer, the Goods conforming to the Specifications in the quantity, for the price and to the location identified in Exhibit 8. (b) Seller represents and warrants to Buyer that the Goods to be delivered by Seller
under this Agreement are and will at the time of delivery be:
(i) fully certified for ground mount utility-scale installation in, and comply
with all federal, regional, state and local laws, codes and standards of, California and the United States; and
(ii) fully approved for use in ground mount utility-scale installations with 60-
to 72-cell polycrystalline or monocrystalline PV modules with an average power output
NY:13068283.1 3
of 235 to 300 Wp or Cd/Te thin film PV modules with an average power output of 85 Wp or greater. 3.
INSPECTION AND REPORTING
(a) Seller shall notify Buyer not less than 10 and not more than 30 days prior to, and
Buyer may, upon reasonable advance notice to Seller and without derogation of Seller's obligations under this Agreement, attend and witness at its own expense:
(i)
any QA/QC inspection of the Goods referred to in Exhibit 4; and (ii) loading of any shipment at Seller's manufacturing facility so as to inspect
the Goods for any apparent damage prior to shipment. (b)
Seller shall provide Buyer:
(i) not later than 10 days prior to release of the relevant Goods for shipment,
the manufacturing reports set forth in Exhibit 5; and (ii) as and when requested by Buyer, in electronic and hardcopy form, all
performance data, quality assurance data, product data sheets, drawings, technical and sales literature, operating and maintenance manuals and similar materials related to the Goods and their resale, installation, operation and maintenance. 4.
DELIVERY OF GOODS
(a) Seller shall deliver the Goods on a CIP (Incoterms 2010) basis to the delivery
point identified in Exhibit 8 (the “Delivery Point”) on the date specified therein (the “Delivery Date”).
(b) Not later than 5 days prior to the date of release of any Goods for shipment, Seller
shall provide Buyer complete and accurate Shipping Documentation in respect of such shipment. If Seller’s Shipping Documentation is incomplete or inaccurate, Seller shall be responsible for payment of any resulting demurrage, storage, customs clearance or similar charges incurred as a direct result of the incomplete Shipping Documentation.
(c) Where a delay in delivery occurs which is attributable to or contributed to by an
act of prevention or breach of this Agreement by Buyer, Seller shall be entitled to an extension to the Delivery Date (an “Extension of Time”) equal to the length of the resulting delay, and the Delivery Date shall be deemed to be extended accordingly.
(d) Seller guarantees that all Goods shall be available to Buyer at the Delivery Point
by the Delivery Date [for such Goods]1, failing which Seller shall pay Buyer within 30 days of a request therefor liquidated damages at a rate of 0.2% of the purchase price for such Goods per day of delay calculated from the guaranteed Delivery Date [for such Goods]2 (or pro rata part 12
Note: Include if there are multiple Delivery Dates indicated in Exhibit 8. Note: Include if there are multiple Delivery Dates indicated in Exhibit 8.
NY:13068283.1 4
thereof where only part of the shipment is delayed) (the “Delay Liquidated Damages”). The Parties agree that Buyer’s actual damages in the event of such a delay in delivery would be extremely difficult or impracticable to determine. The Parties have agreed that the Delay Liquidated Damages are in the nature of liquidated damages and are a reasonable and appropriate measure of the damages that Buyer would incur as a result of such a delay, and do not represent a penalty. If any Goods have not been made available to Buyer at the Delivery Point by the date that is 30 days following the Delivery Date [for such Goods]3, Buyer may cancel this Agreement and recover from Seller, in addition to any Delay Liquidated Damages that may have accrued to that date, any difference in the cost of replacement Goods purchased from third parties and delivered to the Delivery Point.
(e) Within 45 days following receipt of any Goods at the Delivery Point, Buyer shall
inspect such Goods for apparent defects and may by written notice to Seller reject any such Goods not conforming to the Specifications. Without prejudice to Seller's obligation to pay any Delay Liquidated Damages accrued in accordance with Section 4(d) above, on receipt of a notice of rejection from Buyer, Seller shall, within 30 days thereafter, at its risk and expense, and at Buyer’s sole option, either repair or collect and replace the rejected Goods.
(f) If Seller fails to repair or collect and replace any rejected Goods as and when
requested by Buyer in accordance with Section 4(e) above, Buyer may, itself or through third parties, repair or replace such rejected Goods, and Seller shall promptly reimburse Buyer the actual costs of such repair or, if the Goods are replaced, any difference in the cost of replacement Goods purchased from third parties and delivered to the Delivery Point.
5.
PRICING AND PAYMENT
(a) Buyer shall pay Seller for the Goods delivered by Seller in accordance with the
terms of this Agreement (i) the corresponding price set forth in Exhibit 6 multiplied by (ii) the quantity of Goods set forth in Exhibit 8. (b) Seller;
(ii) 80% of the value of the Goods upon delivery of all Goods to the
designated Delivery Point; and (iii)
Goods.
10% of the value of the Goods upon successful commissioning of all
Seller may invoice Buyer for the Goods as follows: (i)
10% of the value of the Goods upon delivery of the Notice to Proceed to
(c) Buyer shall be entitled to terminate this Agreement [with respect to Goods not yet 4
delivered] by written notice delivered to Seller not later than 30 days prior to the scheduled date of shipment [for such Goods]5. Upon termination in accordance with the foregoing sentence, 34
Note: Include if there are multiple Delivery Dates indicated in Exhibit 8. Note: Include if there are multiple Delivery Dates indicated in Exhibit 8. 5
Note: Include if there are multiple Delivery Dates indicated in Exhibit 8.
NY:13068283.1
5
Seller shall be entitled to invoice Buyer, and Buyer shall pay within 30 days thereafter, a cancellation charge equal to Seller's actual costs incurred due to such cancellation, not to exceed 10% of the price of the Goods.
(d) Within 180 days following receipt of Seller's invoice, Buyer shall pay Seller (or
procure payment by its assignee, as applicable) all undisputed amounts invoiced by Seller and due under this Agreement by wire transfer to a bank account specified by Seller in writing; provided that any amount due will be discounted by 1% if paid within 10 days following receipt of Seller's invoice. Payment by any assignee of Buyer shall to the extent of such payment constitute full satisfaction in the corresponding amount of Buyer's payment obligations under this Agreement.
(e) If any part of an invoice is disputed in good faith by Buyer in writing (including a
description of the cause of dispute), Buyer may withhold the disputed amount only. The parties shall attempt to promptly resolve any such dispute in good faith in accordance with Section 19. (f) Any undisputed amounts remaining unpaid following the date on which they are
due shall accrue interest payable at a rate of 1% per month.
(g) Buyer shall be entitled to set off any amounts due under this Agreement against
amounts owed by Seller to Buyer.
6.
RESALE
(a) Buyer represents to Seller that its primary intention in entering into this
Agreement is to incorporate the Goods purchased from Seller into power generation projects to be developed and constructed by Buyer or its affiliates, and that Buyer is not entering into this Agreement with the express intention of reselling any Goods to third parties. Notwithstanding the foregoing, Buyer may, on an exceptional basis and not as part of a trading business, resell or transfer any Goods purchased from Seller along with Buyer’s associated warranty rights to any third parties.
(b) Seller acknowledges and agrees that any lender assuming ownership of Goods
purchased by Buyer under this Agreement upon enforcement of its security interest in such Goods or any projects in respect of which the Goods are purchased shall be entitled to resell such Goods and transfer the associated warranty rights in them to the purchaser without restriction.
7. (a)
RISK AND TITLE Subject to Section 4(e): (i) risk of loss or damage to and responsibility for all Goods shall pass to
Buyer in accordance with the delivery terms stated in Section 4(a) above; and (ii) title to all Goods shall pass to Buyer upon the earlier of payment in full for
such Goods or delivery of such Goods.
NY:13068283.1 6
Where title transfers upon delivery and an outstanding balance remains due to Seller, Buyer shall maintain responsibility to pay such outstanding balance in accordance with Section 5. (b) Seller shall deliver with good title, and shall defend and indemnify Buyer against
any liens or encumbrances on, Goods purchased by Buyer under this Agreement.
8.
PERFORMANCE GUARANTEES AND DEFECTS LIABILITY
(a) Seller warrants all Goods sold under this Agreement against defects in materials,
workmanship or performance on the terms set forth in Exhibit 3 during the period of 5 years following receipt of such Goods at the Delivery Point (the “Warranty Period”).
(b) Buyer's rights under Exhibit 3 in respect of Goods purchased under this
Agreement shall transfer, and Seller shall promptly execute and deliver any documentation necessary to effectuate or evidence such transfer, to any new owner on any assignment, resale or transfer of such Goods by Buyer.
(c) If Buyer furnishes Goods purchased under this Agreement to third party
contractors for incorporation into the power generation facilities being developed by Buyer or any affiliate, Buyer's rights under Exhibit 3 shall transfer to such third party contractor in accordance with Section 8(b) above, provided that Buyer may upon written notice to Seller continue to exercise such rights at any time if the third party contractor is unwilling or unable to do so.
9.
PREVENTIVE MAINTENANCE
Buyer may by written notice to Seller exercise its option for Seller to perform the
preventive maintenance services described in Exhibit 7 (“Preventive Maintenance Services”) during one or more of the following periods:
(a) from the date of the commissioning of the Goods until the date which is 5 years
following commissioning of the Goods;
(b) from the date which is 5 years following commissioning of the Goods until the
date which is 10 years following commissioning of the Goods; and
(c) from the date which is 10 years following commissioning of the Goods until the
date which is 25 years following commissioning of the Goods,
in each case in consideration of the corresponding price adjustment set forth in Exhibit 6. 10.
OPTIONS
If Buyer exercises any of the Options set forth in Exhibit 10 in accordance with the terms of this Section 10, Seller shall (a) in respect of Options constituting modifications or additions to the Goods supplied under this Agreement, sell and deliver to Buyer Goods conforming to such Option in accordance with and subject to the terms of this Agreement, and (b) in respect of Options constituting additional services in respect of the Goods supplied under this Agreement,
NY:13068283.1 7
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