Sales Terms and Conditions
1. GENERAL – The terms and conditions of sale contained herein (the “Terms and Conditions”) apply to all quotations made and all purchase orders (the “Purchase Orders”) entered into by Capacité, and the buyer named in such Purchase Order (the “Buyer”). Capacité’s acceptance of any Purchase Order by confirmation or commencement of performance shall be based on the Terms and Conditions. The Terms and Conditions constitute the entire agreement between Capacité and the Buyer. No terms or conditions contained in any proposal, acknowledgement, or other writing, whether or not such terms or conditions conflict with the Terms and Conditions, shall have any effect and only the Terms and Conditions shall apply, provided, however, that if the parties enter into a supply agreement, the terms of such supply agreement shall apply in the event of any conflict with the Terms and Conditions applicable to the Purchase Order. A supply agreement will take effect only upon its full execution by duly authorised representatives of Capacité and the Buyer.
2. ACCEPTANCE OF ORDERS – The Buyer agrees to obtain from Capacité the product (the “Product”) as set forth in the Purchase Order, which Product may include, without limitation, batteries, battery cells, battery spare parts, and services. Purchase Orders from the Buyer are subject to acceptance by Capacité, and Capacité reserves the right to accept or reject any Purchase Orders in whole or in part. All Purchase Orders for Product must include:The Buyer’s Purchase Order numberComplete bill-to and ship-to addressThe Purchasing agent or the Buyer’s name and titleContact informationA complete description of the Product being ordered, Capacité’s part reference number, quoted price, and quantity.
3. Buyer agrees to pay a deposit of fifty (50) percent. Capacité will provide an order confirmation with projected delivery dates for Product to Buyer within 7 business days after receipt of the Purchase Order and the full deposit.
3. Buyer agrees to pay a deposit of fifty (50) percent. Capacité will provide an order confirmation with projected delivery dates for Product to Buyer within 7 business days after receipt of the Purchase Order and the full deposit.
4. PRICES – Prices are quoted in EUR and Ex Works (EXW) Capacité according to Incoterms 2022. Prices for rushed orders outside standard quotaed lead time will be quoted separately. Prices are subject to change in the event of an increase in Capacité’s costs including, but not limited to, increases in components, raw material, manufacturing, transportation, duty, brokerage and other direct costs. Capacité will endeavour to provide the Buyer with 30 days’ written notice of any price changes, however, Capacité reserves the right to make price changes without notice.
5. TAXES – Prices are exclusive of VAT, and the Buyer shall pay, all present or future taxes, duties, tariffs, levies or fees, or other similar charges imposed on Capacité or on the Buyer by any taxing authority (other than taxes imposed on Capacité’s income) related to the Buyer’s Purchase Order. Buyers who have any sort of tax exemption must provide the relevant valid tax exemption documents concurrent with their Purchase Order.
6. TITLE AND TRANSPORTATION – Capacité will inform Buyer when Product will be delivered. Title passes to the Buyer when Buyer pickups the Product from Capacité. Buyer bears all risks and costs after title transfer. Capacité has no obligation to clear Product for export. All risks of damage, loss or destruction of the Product shall pass with title to the Product.
7. DELIVERY & RESCHEDULE PRIVLEGES –Delivery dates are approximate and are based on prompt receipt from the Buyer of all necessary information. Capacité reserves the right to make partial shipments. Capacité will not pay for any penalty or damage, whether liquidated or otherwise, for late delivery. Freight charges are the responsibility of the Buyer, unless otherwise agreed to in writing. Capacité reserves the right to charge Buyer a penalty if Product is not picked up within seven (7) days of confirmed delivery date. Buyer can reschedule the confirmed date on the Purchase Order out to a maximum of four (4) weeks.
8. LEAD TIMES – The Buyer shall endeavour to provide Capacité with a six (6) month rolling demand forecast for released Product. Firm Purchase Orders for released Product are required a minimum of twelve (12) weeks prior to the requested delivery date. Product delivery lead times will vary due to a number of factors including manufacturing capacity, physical stock availability and location, component availability and the accuracy of the Buyer’s Product demand forecast provided to Capacité. Capacité will confirm current lead times with the order confirmation.
9. COLLECTION OF GOODS, STORAGE FEES, AND PAYMENT BALANCE – The Buyer must collect all Capacité goods when the goods are ready for collection. Failure from the Buyer to collect goods within two (2) months gives Capacité the right to re-use material and invoice the Buyer for any costs as a result. Capacité reserves the right to apply the order deposit in the event of non-COLLECTION OF GOODS.
10. PAYMENT AND TERMS – All invoices are payable before shipping and without deduction in EUR unless otherwise agreed and confirmed in writing on Capacité’s Purchase Invoice. A monthly penalty charge of 2% above the prevailing interest rates will be added to all accounts not paid by due date. Full payment, cleared in Capacité’s bank account, is required prior to Product being released for delivery to Buyer.
11. INTELLECTUAL PROPERTY – All rights to the Products, Services, Intellectual Property and any Improvements are owned by Capacité. The Buyer shall maintain confidentiality with respect to Capacité’s Intellectual Property, and shall not use it for its own, or any third party’s purposes.
12. LIMITED WARRANTY – Capacité warrants only released Product. Capacité warrants that released Product sold by it to be free from defects in materials and workmanship and to meet Capacité’s published specification for the Product or, the specifications agreed upon with Buyer, at the time of shipment, assuming the Product was under proper storage and specified use, for a period of twenty-four (24) months from the date of the original delivery.
13. WARRANTY LIMITATIONS – Capacité’s liability and obligation to the Buyer under Section 11 shall be limited to the unit replacement or repair cost, as per Capacité’s published Aftersales Procedure. Capacité will not be liable for any consequential damages. The limited warranty under Section 14 does not apply in the case of:
1. non-conformities, defects or errors in any Products due to accident, abuse, misuse or negligent use of the Products, use of the Products in a manner other than as intended by Capacité, use of the Products in environmental conditions not conforming to Capacité’s instructions or conditions not typical to the Product and intended field of use, or failure to follow typical operating procedures with respect to the Products and intended field of use;
2. defects, errors or non-conformities in any Products due to normal wear and tear;
3. damage to any Products caused by force of nature or act of any third party; or
4. any unauthorised modifications, repair or repair attempt.
14. WARRANTY REPAIR AND RETURN POLICY – The Buyer must follow strictly Capacité’s published Aftersales Procedure to return or repair any in warranty Product. If, in the sole opinion of Capacité, the in-warranty Product has been dismantled, altered or repaired by any individual or entity other than Capacité or its authorised representative, or has been damaged in any manner by the Buyer, the warranty claim will be denied and the costs will be invoiced to the Buyer.
15. LIMITATION OF LIABILITY – Capacité’s total liability, if any, for any damages suffered by the Buyer, or any other party claiming on behalf of or through the Buyer, or any other third party, whether in contract, tort, warranty, or otherwise, shall be limited to direct money damages actually incurred, and shall not exceed the amount of money paid to Capacité by the Buyer for the Product giving rise to such claim. Capacité shall not be liable for and the Buyer shall indemnify, defend, and hold Capacité harmless from any claims based on Capacité’s compliance with the designs, specifications or instructions, or modifications made of any Products by parties other than Capacité, or the use of Capacité’s Products in combination with other items in a sub-system or system. Buyer acknowledges that Capacité Product could act as a single point of failure and Buyer warrants that Capacité has no liability or obligation for system failure analysis or system testing under normal operation or failure mode operation of the sub-systems or end user product. Buyer future acknowledges that Capacité has not duty to warrant the fitness of the Product or Service, whether released or pre-released for the sub-system or end user product. Under no circumstances shall Capacité be liable for any alleged, indirect, special, incidental, exemplary, punitive, or consequential damages suffered by the Buyer, by any party claiming on behalf of or through the Buyer, or by any other party resulting from or arising out of the purchase of Products and Services from Capacité, including loss of business or profits, business interruption or damage or destruction of data, even if Capacité has been previously advised of the possibility of such damages. No action, regardless of form or basis arising out of the transactions hereunder may be brought by the Buyer after one (1) year following the time in which the Buyer knew or should have known the occurrence of the event(s) which gave rise to such action. Capacité hereby disclaims any duty to indemnify the Buyer, any party claiming on behalf of or through the Buyer, or any other party.
16. FORCE MAJEURE – Capacité shall not be liable for any failure or delay in manufacture or delivery resulting from any cause beyond the reasonable control of Capacité, including by way of illustration and not by way of limitation, compliance by Capacité with any government or military regulation, or from acts of God, fires, floods, elements of nature, earth quakes, pandemics, epidemics, extraterrestrial events, rebellions, revolutions or other casualty or accident, strikes, lockouts, factory shutdowns, or alterations, embargoes, riots or other disorders, delays or shortages in transportation, or inability to obtain sufficient quantity of fuel, power, labor, manufacturing facilities of materials or other supplies from the usual sources of Capacité.
17. PURCHASE ORDER TERM AND TERMINATION – The Terms and Conditions will remain in effect until terminated or the Product as set out in the Purchase Order is delivered and the warranty obligations fulfilled (the “Term”). The Buyer acknowledges that Capacité will purchase in advance the materials and supplies to fulfil each Buyer’s Purchase Order. Buyer acknowledges that Purchase Orders are not cancellable by Buyer. If Capacité wishes to terminate the Purchase Order as a result of the Buyer’s breach of any of the Terms and Conditions, including, without limitation, by non-payment of any amounts due to Capacité hereunder, the Buyer agrees to pay to Capacité a cancellation charge equal to the value of materials and supplies purchased and work performed on the cancelled Purchase Order at the time of cancellation (the “Cancellation Fee”). Any Cancelled Purchase order, that results in the abandonment of finished goods, or components that are orphaned, Capacité reserves the right to sell to any and all customers and shall apply the deposit against any losses.
18. END OF LIFE – Capacité has the sole discretion to discontinue a released Product at any time. Capacité will endeavour to provide Buyer with written notice twelve (12) months prior to the anticipated final availability date of the released Product. Capacité will accept Purchase Orders for released Product for a period of five (5) years after such notice however Capacité reserves the right to reduce the quantity of released Product available to each Buyer if demand exceeds Capacité’s ability to provide such released Product. Each Buyer of custom product is responsible for any excess custom inventory related to their custom Product, once the custom Product has been discontinued; or obsolescence resulting from design changes requested by the Buyer.
19. AMENDMENT – No change, modifications or amendments to the Purchase Order shall be valid unless agreed to in writing and signed by a duly authorised representative of Capacité or acknowledged by way of issuance of a revised order verification by Capacité.
20. NO WAIVER – No failure or delay by Capacité to exercise any right, power or privilege hereunder shall operate as a waiver thereof. No single or partial exercise of any right, power or privilege hereunder shall preclude any other or further exercise thereof, or the exercise of any other right, power or privilege.
21. PARTIAL INVALIDITY – If, in any instance, any provision of the Terms and Conditions shall be determined to be invalid or unenforceable under any applicable law, such provision shall not apply in such instance, but the remaining provisions shall be given effect in accordance with their terms.
22. ADDITIONAL TERMS – The Terms and Conditions shall be governed by and be interpreted in accordance with the laws of France, without giving effect to the choice of law provisions thereof. The Buyer and Capacité agree to submit to the personal jurisdiction of the provincial and federal courts of the France with respect to conflicts that arise under the Terms and Conditions.
23. LANGUAGE – The parties hereby acknowledge that they have required the Terms and Conditions and any and all schedules to be drawn up in the English language.
24. APPLICATION – The Buyer acknowledges that the Terms and Conditions will apply to all Purchase Orders for Product entered into between the Buyer and Capacité, provided that, if the parties have entered into a supply agreement, the supply agreement will prevail in the event of any conflict between the supply agreement and the Terms and Conditions.
