Unless otherwise specified in the order or in the general purchase agreement, concluded by both parties, if necessary.
Without written or express derogation, all Powerstorm Holdings. Inc. (PSTO) orders are being governed by the following conditions, with the exception of any contrary clauses, either hand written or typed.
PSTO orders, for the acceptance of the supplier’s offer, are valid only if confirmed by a regular purchase order.
Any clause contrary to the existing purchasing conditions, which is not the subject to some special agreements to the contract, is rejected and cancelled, in particular the clauses which are part of the general sales conditions, delivery slips, invoices, etc.
II. RECEIPT CONFIRMATION
Any PSTO order will require a receipt confirmation, which will be the same with accepting the special and general conditions governing the order. PSTO reserves the right to consider null and unjustified any order for which a receipt confirmation has not been issued within two (2) calendar days from the date of placing the respective order. In the absence thereof, the supplier agrees in all respects with the terms in the order.
Any order adjustment, requested by the supplier, will represent the subject of an amendment, drawn up and signed by both parties.
IV. FACTORY INSPECTION
PSTO reserves the right to verify the proper execution of its orders by performing visits or inspections, considered useful. All the means and the necessary documents will be made available to the persons authorized to perform such inspection.
V. PACKAGING – DISPATCHES – SHIPMENT
The supplier commits to have the materials packed in the most efficient way, in order to keep their integrity until they are being used. The invoicing or the storage of the packages will not be accepted, unless stipulated in the agreement.
Any delivery will be the subject of a delivery note, which will include the references of the order, the delivered items, the quantity, the date of shipment and the packaging; the delivery note will be placed on the outside of the package (or inside one), in a sealed pocket.
In the absence of a delivery note properly indicated, being impossible to notify the carrier regarding the existence of any reserves, only the identified weight and quantity will be retained by the buyer for the purpose of payment.
The mutual risks and obligations of the two parties concerning the shipment of the merchandise are being governed in accordance with incoterm 2010.
VI. RECEPTION OF THE MERCHANDISE
The risk will be passed on to PSTO, only when the materials are delivered and received, at the reception place, defined in accordance with incoterm and retained by both parties.
VII. RESERVATION OF THE PROPERTY RIGHT
PSTO doesn’t acknowledge any reservation clause of the property right in favor of the supplier, despite any clauses included in the supplier’s documents, with the exception of building a stock on consignment, placed at PSTO.
VIII. ACCEPTANCE – REFUSAL
All the merchandises or products that don’t comply with PSTO’s order will be rejected, returned, within maximum forty-eight (48) hours, at the supplier’s expense, risk and jeopardy, and shall be the subject of a debit note.
The delivery deadlines, specified in PSTO’s orders, are binding and contractual. PSTO reserves the right to return the deliveries performed within more than eight (8) days before the established date, as well as the extra quantities. If PSTO agrees to an early delivery, the payment will be made still in accordance with the contractual terms concerning payment.
The supplier commits to immediately notify PSTO regarding any event, which is likely to cause a delivery delay, beyond the deadline stipulated in the order.
In the event of an actual delay, at its sole discretion, without prejudicing any damage request, and regardless of what caused the delay, except for force majeure events, PSTO will be able to:
- Request delivery through overnight courier, at the supplier’s expense.
- Cut down or cancel the order or the portion of the order improperly executed, with no compensation fees.
- Replace the supplier or entrust the delivery of the merchandise to another company, after the written official notification addressed to the supplier, unless it is being followed by a proper remediation within fifteen (15) days.
Additional shipment expenses will be fully assigned to the supplier who has not met its contractual obligations and will be subject to deduction from the amounts owed to him. The supplier will agree to the penalties below.
X. DELAY PENALTIES
Without prejudicing a higher damage, the minimum delay penalty shall represent:
- 1% from the value of the order, no taxes included, in the event of delay, per week, from the second to the fifth week of delay.
- 5% for any further week, etc., up to a maximum of 10% from the total value of the order, no taxes included. The penalties can represent the subject of a compensation fee equal to the value of the amounts owed to the supplier. The payment of the penalties will not relieve or exempt the supplier from perfectly executing its contractual obligations.
The pointed out prices are firm and cannot be revised.
XII. INVOICES – PAYMENTS
The invoices will be sent to the Accounting Department for Suppliers, within PSTO. The address is: PSTO, to the attention of the Accounting Department for Suppliers, 31244 Palos Verdes Dr. W, Ste 245, Rancho Palos Verdes, CA 90275-5370. The invoices will by all means state the number of the order, the numbers (or the references) of the delivered product lines and the number(s) of the delivery note(s).
One copy thereof will be sent, no later than the delivery date, unless there are no special conditions to the contrary, the correspondent payment being performed through bill of exchange, within sixty (60) days from the date of delivery and receipt of the contractual documents. The issue of the bill of exchange does not imply either the final acceptance of the deliveries, or the waiver of the warranty. The supplier agrees that the adjustments made to the amounts invoiced to PSTO (which become necessary as a result of some significant invoicing errors, of some products missing or rejected upon reception), will be the subject of some debit notes from PSTO.
The delivered goods are guaranteed for one (1) year, are exempt from any material fabrication fault, deficient construction, operation or installation, apart from the legal guarantee for hidden faults. If the delivered goods are not executed accordingly or are subject to a fault previously mentioned or otherwise, they can be returned to the supplier, at its expense, risk and jeopardy, including the shipment costs. The suppliers will not be able to make use of the performed payment in order to decline:
- The proposal of some corrective actions, to avoid a recurrent situation;
- The repair or the replacement of the faulty material;
- The compensation of PSTO for the damage suffered;
- The reimbursement in full of the amounts paid, in the event of goods rejection.
The mission(s) assigned by PSTO to a supplier is (are) strictly confidential. Therefore, the supplier has the obligation to avoid the disclosure of any information that might damage PSTO’s interests.
PSTO will be solely authorized to ensure industrial protection, on its own behalf and expense.
The supplier is prohibited to transfer its order, to subcontract the execution thereof, to bring it as contribution to a group’s or a society’s share capital, without PSTO’s prior written consent. Even in the light of this expressed acceptance, the supplier will still remain liable for the complete execution of the order. For this reason, PSTO will honor the payments owed only to the supplier, and not to somebody else.
XVI. TECHNICAL FAILURE OF THE SUPPLIER
If the supplier is unable to meet the technical requirements related to the accepted order, PSTO reserves the right to request the reimbursement of the amounts paid to the supplier or of the necessary expenses in order to remedy the supplier’s failure. Also, under these circumstances, PSTO reserves the right to claim damages.
XVII. CIVIL LIABILITY OF THE SUPPLIER
The supplier shall answer to PSTO from a civil point of view and shall guarantee its accountability.
- The supplier is solely and entirely responsible before PSTO, for its products, for all the works included in its order, either personally executed or performed by a third party.
- The supplier will take all necessary measures to prevent accidents which might affect its, or PSTO’s or another person’s authorized representatives, during the execution of the works, accidents for whose consequences the supplier will be fully liable.
- In the event of the accidents or damages occurred during the performance of certain works and caused by the staff or by the material possibly made available to the supplier by PSTO, the latter, as occasional principal or custodian of the entrusted object, shall be held responsible.
- Therefore, the supplier will transmit to PSTO the certification of its civil liability insurance, along with the table of correspondent guarantees.
XVIII. EQUIPMENTS – DELIVERIES PERFORMED BY PSTO TO THE SUPPLIER
The machines manufactured specifically for the execution of a PSTO order or of any other equipment belonging to PSTO, shall lawfully belong to PSTO and will need to be listed by the supplier. These will be put aside for PSTO’s exclusive use, and will be returned to it upon its first request, with no possibility for the supplier to claim damages. The types, the models, the plans or others, made available with a view to the execution of the ordered objects, will be kept and returned in the same condition.
In the situation when these equipment’s or other supplied items are entrusted to the supplier, it will ensure their preservation in good working condition and will commit to take all necessary insurance measures.
The supplier remains solely responsible for the quality of the items produced using equipment’s owned by PSTO.
Any delivery performed by PSTO to the supplier for ensuring the execution of an order (raw material, spare parts, the machine…) will be the subject to a delivery note.
Any legal appeal made by the supplier will be addressed to PSTO’s buyer within eight (8) days from the receipt of the delivered items, and in the absence thereof, the delivered spare parts will be the subject of an invoice issued by PSTO.
XIX. REGULATION – BRAND
PSTO asks the supplier that the delivered products meet the requirements of the European regulations, starting with the effective date thereof.
XX. INDUSTRIAL PROPERTY – PUBLICITY – FORGERY
The documents shared with the supplier, owned by PSTO, as well as the materials produced under PSTO’s guidance shall not be disclosed, or made available to others, without PSTO’s prior written consent.
PSTO orders cannot, under any circumstances, lead to direct or indirect publicity, without PSTO’s prior written consent.
The supplier, unless it informs PSTO when receiving the order, about the existence of third party rights, shall account to PSTO for any action of forgery or unfair competition, initiated by third parties either against PSTO, or against its client, and will offer compensation fees as a consequence of such actions.
XXI. SUPPLIER’S LEGAL STATUS AMENDMENT
The supplier commits to inform PSTO, within fifteen (15) days, about any change in its shareholding structure, in its management, in its legal form or in its financial structure, as well as about any legal decision, which might influence PSTO, such as receivership or liquidation of goods.
The Law of the State of Delaware USA is governing all orders. It was deliberately agreed that any legal dispute regarding the execution or the interpretation of the present order will make the subject of the exclusive jurisdiction of the Court of Delaware, despite any contrary clause stated by the supplier in its general correspondence, and even despite an incidental request, impleader, or plurality of defendants.