These Solar Trader Platform Buyer Terms and Conditions (“Terms and Conditions”) apply to any purchase of goods from Sunhub LLC or its affiliates (whichever of Sunhub LLC or its affiliates is selling the goods at issue is referred to as “Seller”). These Terms and Conditions constitute a binding agreement between the entity or individual purchasing goods (“Buyer”) and Seller, and are effective on the earliest date when Buyer signs up on the Sunhub Platform, executes an online offer, bid, and/or order on any Sunhub marketplace comprising of Solar Trader Platform, executes a written Sales Order or Sales Contract Agreement, or clicks a box or button during the online negotiation process signifying acceptance (an online order, Sales Order, or Sales Contract Agreement shall each be referred to hereafter as a “Sales Order”).
Seller may update these Terms and Conditions from time to time, by giving Buyer notice via the Sunhub Platform, email, or other method.
If you click a box or button signifying acceptance, purchase goods from Sunhub, or otherwise execute any Sales Order or these Terms and Conditions, you represent that: (1) you have the capacity and authority to bind the Buyer to these Terms and Conditions; and (2) that Buyer has read all of these Terms and Conditions, understands them, and agrees they are binding upon Buyer.
GENERAL:
A Sales Order creates a firm and legally binding commitment from Buyer to purchase from Seller the goods (“Goods”) identified in the Sales Order subject to these Terms and Conditions, which are expressly incorporated into the Sales Order.
All Goods supplied by Seller are a final sale. No refunds, returns, cancellation or exchanges shall be allowed.
Seller’s employees or agents are not authorized to make any representations concerning the Goods, except for those written warranties set forth in the contract terms of any Sales Order, including these Terms and Conditions. Buyer acknowledges that it does not rely on and waives any claim for breach of any such unconfirmed representation.
WARRANTIES:
Seller warrants only that the Goods sold by Seller will be new, unless specified used in the online sales listing and materially conform to the manufacturer’s specifications for the specific model number(s) of the Goods. For all claims regarding the Goods, Buyer’s sole remedy shall be a claim under a warranty, if any, provided by the manufacturer of the Goods. Such claims shall be made directly with the manufacturer. Buyer confirms that Buyer has requested and reviewed any and all information it deems necessary to determine that the Goods are satisfactory for Buyer’s intended purpose.
SELLER EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR ARISING BY COURSE OF DEALING OR PERFORMANCE, CUSTOM, USAGE IN THE TRADE OR OTHERWISE, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE.
LIMITATION OF LIABILITY:
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY DAMAGE OR INJURY TO PERSONS OR PROPERTY OR FOR OTHER LOSS OR INJURY ARISING OUT OF OR RELATED TO ANY OF THE GOODS OR THEIR USE, NOR SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, PROFIT, OR EQUIPMENT DOWNTIME, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO A SALES ORDER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD PURSUANT TO THE APPLICABLE SALES ORDER.
IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY UNDER ANY PROVISION OF THIS CONTRACT, TORT (INCLUDING FAULT, NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, FOR ANY DAMAGES OF ANY KIND (WHETHER DIRECT, INDIRECT, CONSEQUENTIAL, OR HOWEVER CATEGORIZED) FOR LOSS OF ANY PAST, PRESENT OR FUTURE TAX CREDITS OR BENEFITS OR POTENTIAL TAX CREDITS OR BENEFITS, INCLUDING, WITHOUT LIMITATION, WITH RESPECT TO INTERNAL REVENUE SERVICE NOTICE 2018-59, EVEN IF SELLER WAS AWARE OF BUYER’S INTENT TO CLAIM SUCH TAX CREDITS OR BENEFITS. BUYER ACKNOWLEDGES THAT THE LIMITATIONS OF THIS SECTION 8 ARE A “BASIS OF THE BARGAIN” WITHOUT WHICH SELLER WOULD NOT HAVE ENTERED INTO THIS CONTRACT. BUYER FURTHER ACKNOWLEDGES THAT IT IS NOT RELYING ON ANY ADVICE OR INTERPRETATION OF SELLER WITH RESPECT TO BUYER’S CLAIM FOR ANY TAX CREDITS. BUYER RETAINS ALL RISK IN DETERMINING WHETHER (OR TO WHAT EXTENT) BUYER CAN QUALIFY FOR ANY TAX CREDITS.
FORCE MAJEURE:
Seller shall not be liable for any delay or failure to perform due to a Force Majeure Event. “Force Majeure Event” shall mean any cause or condition beyond Seller’s reasonable control, whether foreseeable or not, including, without limitation, acts of God, war, riot, fire, explosion, accident, epidemic or pandemic, flood or sabotage, embargoes or acts of civil, government, or military authorities, robbery, theft, terrorist activities, labor conflicts, cyber-attacks, or information security and data breaches caused by third parties. Seller shall give prompt written notice to Buyer of any Force Majeure Event, and any affected orders or schedule for the delivery of the Goods shall be suspended for the duration of the delay. Either party hereto may by prior written notice terminate a Sales Order without further liability if delivery is delayed more than (60) sixty days due to a Force Majeure Event.
ACKNOWLEDGEMENT OF TARIFFS AND WRO RISKS:
Buyer acknowledges that Buyer is aware that safeguard tariffs imposed by the President of the United States on imported solar product under Section 201 of the Trade Act of 1974 (the “Section 201 Tariff”) may be extended and/or otherwise increased or modified, and thus subject the Goods to a Section 201 Tariff at the time of customs clearance in the United States. Buyer agrees that it is uncertain that bi-facial PV modules which might be tariff-free or monofacial PV modules that are subject to tariffs on the date of the Sales Order will not remain so prior to or after delivery by Seller and that uncertainty with regard to the final tariff status applied to the Goods might continue for years. Buyer agrees that if there is an imposition of any new, or any reimposition or modification of any existing or former taxes, duties, or tariffs or similar charges applicable to the Goods after the date of the execution of the Sales Order that increases the cost to import the Goods into the United States, Buyer shall timely pay said charges as required and indemnify and hold Seller harmless from such charges so long as Seller defines the costs, including current costs per watt attributed to existing tariffs, and further defines any new tariff over and above tariffs already included in overall costs of Goods.
Buyer acknowledges that Buyer is aware that the Uyghur Forced Labor Prevention Act and the Uyghur Forced Labor Disclosure Act have been passed by Congress and signed into law. Seller represents that Seller is not aware of any enforcement U.S. Customs and Border Protection (“CBP”) of a withhold and release order (“WRO”) upon the Goods. However, Seller has no ability to forecast future CBP actions or prevent a CBP enforcement of a WRO upon the Goods. The parties hereto recognize and acknowledge that CBP actions, including the imposition of a WRO, findings, questions, detentions, or seizures are beyond the reasonable control of Seller. Seller will not be liable for any damages for delays caused by CBP’s actions. Buyer agrees that should CBP issue a WRO, finding, seizure notice, or penalty notice applicable to the Goods, or if CBP questions, detains, or seizes any shipment of the Goods due to concerns about the use of forced labor in the supply chain, Buyer shall bear sole responsibility and liability for all losses suffered by Buyer due to such CBP actions including, but not limited to, the imposition of fines or penalties. Seller shall also be entitled to respond to CBP communications directed to Seller.
SHIPPING AND PRICE TERMS:
Seller shall make delivery in accordance with the terms set forth in the Sales Order.
Unless otherwise specified in the Sales Order, title and risk of loss passes to Buyer upon delivery of the Goods.
Buyer is solely responsible for and shall pay all transaction taxes, including sales, use, and value-added taxes, goods and services taxes, duties, customs, tariffs, and other government imposed transactional charges however designated (and any related interest or penalty) (collectively “Transaction Taxes”) on amounts payable by Buyer or otherwise related to the Goods, regardless of when such Transaction Taxes are levied or imposed. Such Transaction Taxes shall be due whether or not identified in a Sales Order or included on an applicable invoice. Seller may identify Transaction Taxes on any invoice for the sale of the Goods or a separate invoice. Buyer shall provide Seller with proof of exemption from Transaction Taxes at least twenty-one (21) days before the invoice due date. Buyer shall indemnify and hold Seller harmless from all costs, fees and expenses, including reasonable attorneys’ fees, incurred by Buyer, which arise from Buyer’s failure to pay Transaction Taxes or any breach of this Section.
Unless otherwise specified in the Sales Order, Seller shall be entitled to provide and invoice partial deliveries.
All Goods and materials shall be delivered as packed and shipped by the manufacturer. No additional charge for packing, boxing, or palletizing shall be made to Buyer unless otherwise stated in the Sales Order.
Buyer shall be responsible for all shipping and freight costs. The Sales Order does not include shipping or freight costs unless otherwise specified therein. Any shipping or freight costs set forth in the Sales Order are only an estimate. Said estimate includes costs to ship Goods to the delivery destination via flatbed truck, rail and/or cargo ship. The pricing estimate shown is based upon information known as of the date of the Sales Order. Shipping/Freight costs shall be updated at time of shipment once all material/equipment weight estimates, final shipping dimensions, and transportation route, and Buyer’s approved carrier(s) are confirmed. Transportation routes may be adversely impacted by many factors, such as the time of year the shipment is to occur, the required routing of the load and current fuel or other related charges out of Seller and the respective freight carrier’s control.
Upon arrival at the delivery destination, Buyer shall be responsible for the unloading of Goods from the shipping containers in a timely manner so as not to incur any wait time expenses from the transportation providers. Buyer shall be responsible for any additional expenses from transportation providers due to wait times or other delivery delays.
Deadlines for any delivery are estimates only, unless otherwise specified in the Sales Order. Seller’s estimated delivery deadlines are conditioned upon the full and timely supply of Seller’s suppliers to Seller. However, Seller will use reasonable commercial efforts to meet any such deadline, provided that all provisions, documents, and releases to be supplied by the Buyer are received in due time, and if the agreed payment terms, including advance payments, and all other obligations required for the delivery are fulfilled. Delivery estimates will be extended by a reasonable period of time commensurate with the length of any such delay.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer, unless otherwise specified in the Sales Order. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s order for the Goods.
PAYMENT TERMS:
Buyer shall pay all amounts due to Seller as invoiced in accordance with the terms of the Sales Order and in U.S. Dollars.
Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily. Buyer shall reimburse, indemnify, and hold harmless Seller for all costs and expenses incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under the Sales Order or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 10 days following written notice thereof.
Buyer shall not withhold payment of any amounts due and payable by reason of any set-off or any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.
INSPECTION AND REJECTION OF NONCONFORMING GOODS:
Buyer shall visually inspect the Goods no later than seven (7) business days after delivery (“Inspection Period”), unless otherwise specified in the terms of the sales order. The purpose of the inspection is to check for quantity shortages or overages, and for any visible damage to the Goods or pallets containing the Goods (“Nonconforming Goods”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. Buyer shall notify Seller in writing of any quantity discrepancies within the Inspection Period, otherwise the Goods quantity shown on the shipping documents upon delivery shall be deemed correct. If inspection during the Inspection Period indicates a Goods quantity overage, Seller may pick up the excess Goods at Seller’s expense.
If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the purchase price for such Nonconforming Goods, except for any associated shipping and freight costs for the Nonconforming Goods. Buyer shall ship, at Seller’s expense, the Nonconforming Goods to a location specified by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense, the replaced Goods to the delivery point specified in the Sales Order.
Buyer acknowledges and agrees that the remedies set forth in Section 25 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
Notwithstanding the foregoing, Buyer may not refuse acceptance of deliveries due to immaterial defects (including cosmetic damage or variations in color or texture), and Seller shall not be responsible for any damage or defects which occur after title or risk of loss has transferred to the Buyer.
MISCELLANEOUS:
The Sales Order, including these Terms and Conditions, shall be governed by the laws of the State of OHIO, both procedural and substantive, without regard to principles of conflicts of laws. THE SALES ORDER SHALL NOT BE GOVERNED BY THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. All disputes arising out of or relating to the Sales Order, including any action to enforce the Sales Order, shall be brought in the state or federal courts in OHIO, and each party hereto does hereby consent to personal jurisdiction in such venue. EACH PARTY IRREVOCABLY WAIVES ANY JURY TRIAL RIGHT. Notwithstanding the preceding venue provision, Seller shall be entitled to seek provisional remedies, preliminary and/or pre-judgment relief (including but not limited to: a writ of possession, replevin, attachment, injunctive relief, restraining order and/or like remedies, including any remedy available under the Uniform Commercial Code), in any court that has personal jurisdiction over Buyer, Buyer’s assets or properties, and/or in rem jurisdiction over applicable Goods.
The Sales Order, including these Terms and Conditions, supersedes all quotations, communications, agreements and understandings of the Buyer and Seller with respect to such subject matter.
Buyer and Seller (each a “Party,” and collectively, the “Parties”) shall comply with all applicable foreign and domestic laws, regulations and ordinances. The Parties shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations.
In addition to any remedies that may be provided under the Sales Order, Seller may terminate a Sales Order with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the Sales Order; (ii) has not otherwise performed or complied with any of the provisions of the Sales Order, including these Terms and Conditions, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
No waiver by Seller of any of the provisions of the Sales Order is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Sales Order operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
All non-public, confidential or proprietary information of the Parties, including but not limited to specifications, samples, patterns, design, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”), orally or in written or electronic form, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Sales Order, is confidential, solely for the use of performing under the Sales Order and may not be disclosed unless authorized in advance by the Disclosing Party in writing. Upon the Disclosing Party’s request, the Receiving Party shall promptly return or destroy, at its option, all documents and other materials received from the Disclosing Party. The Disclosing Party shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; or (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party.
Buyer shall not assign any of its rights or delegate any of its obligations under the Sales Order without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void.
The relationship between the parties hereto is that of independent contractors. Nothing contained in the Sales Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
The Sales Order is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Sales Order.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of the Sales Order or to such other address that may be designated by a Party in writing. All Notices shall be delivered by e-mail, personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Sales Order, a Notice is effective only (a) upon receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
If any term or provision of the Sales Order, including these Terms and Conditions, is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Sales Order or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of the Sales Order, including these Terms & Conditions, which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Sales Order.