2. EXCLUSION OF OTHER TERMS AND CONDITIONS
These terms and conditions of sale set forth herein constitute an integral and inseparable part of the agreement between the Seller and the Buyer. Any attempt by the Buyer to alter these terms and conditions of sale by counter offer or conditional acceptance shall be void and of no effect unless written confirmation is issued by the Seller.
These terms and conditions of sale are the only terms upon which the Seller will supply the Goods to the Buyer and apply to exclusion of any other terms and conditions including any terms and conditions which the Buyer purports to apply under any Order or similar document and any terms and conditions which may otherwise be implied by usage of trade, course of dealing or practice.
3. APPLICATION OF INCOTERM
If Incoterm is referenced in these terms and conditions of sale, the rules and regulations of Incoterms 2010 concerning the agreed Incoterm applies to the rights and obligations of the Seller and the Buyer, including but not limited to contract of carriage and insurance, the allocation of costs such as carriage and insurance premiums, customs clearance, delivery, transfer of risk of or damage to the goods. In case of discrepancy between these terms and conditions of sale and the Incoterms 2010, the provisions of the Incoterms 2010 shall prevail.
4.1. The Prices as specified in the Order Acknowledgement are based on EXW [Shanghai] (Incoterms 2010), unless otherwise agreed by the Seller and the Buyer.
4.2. The Prices are exclusive of value added tax, duties, fees and levies and any other applicable taxes which will be payable by the Buyer in addition to the Prices at the rate prescribed by law from time to time in line with Chinese tax law.
4.3. If the price of raw materials increases or if the shipment of all or any part of an order is delayed due to reasons attributable to the Buyer, the Seller shall have the right to increase the price to reflect the increased price of the raw materials or the increased price of the delayed goods in effect at the actual time of shipment.
4.4 .The Buyer acknowledges and undertakes that agreed upon pricing is often dependent on the Buyer’s meeting future conditions with respect to quantities requested and shipped over a specific time period, if Buyer fails to meet such conditions Seller may charge retroactive price adjustments or require the Buyer to meet the conditions upon which the pricing was based.
5.1. Payment shall be net thirty (30) days after date of issuance of the invoice by the Seller, unless otherwise specified.
5.2 .The Seller shall be entitled to issue an invoice for goods ready for shipment even though shipment is delayed due to reasons attributable to the Buyer. Under no circumstances will the thirty (30) day term be construed to begin after the goods arrive at the Buyer’s place of business or after the occurrence of any other event or contingency.
5.3. Any amount paid beyond the terms stated on the invoice issued by the Seller are subject to liquidated damages for overdue payment, and an interest equal to the eighteen percent (18%) per annum, calculated daily, will be charged against the Buyer by the Seller as liquidated damages for the overdue payment. The Buyer shall also pay the Seller any reasonable attorney fees and costs of collection, plus accrued interest, arising out of the Buyer’s failure to pay the price in whole or in part when due.
6. SECURITY FOR PAYMENT
Upon the request of the Seller, the Buyer shall provide an unconditional and irrevocable letter of bank guarantee designating the Seller as beneficiary to guarantee the Buyer will perform its obligations, including but not limited to payment of the total price for supply of the Goods, any liquidated damages, reasonable attorney fees and any other costs and expenses incurred by the Seller due to breach of contract by the Buyer.
7.1. The Goods will be delivered EXW [Shanghai](as such term is defined in Incoterms 2010). Delivery of the Goods (“Delivery”) will be deemed to occur when the Seller completes the delivery obligations under that Incoterm. To the extent only of any conflict or inconsistency between EXW (as such term is defined in Incoterms 2010) and these terms and conditions of sale, Incoterms 2010 will prevail.
7.2. Delivery dates are approximations and time shall not be of the essence for deliveries with respect to the agreement between the Buyer and the Seller. Without limiting the generality of the foregoing, if any delivery is delayed, a) the Buyer shall provide a reasonable time period for the Seller to make the delivery, or b) such delivery dates shall be reviewed by the Seller, and if, in the Seller’s sole judgment, delivery is delayed for an unreasonable period of time the Seller may cancel the agreement by written notice to the Buyer.
7.3. Subject to the agreement between the Seller and the Buyer, if the Seller is under the obligation of concluding the contract of carriage for the Goods, the Seller shall have the right to specify the routing of all shipments if the Buyer doesn’t indicate the routing and the Seller shall not be liable for specifying the routing.
7.4. In no event shall the Seller be liable for loss of use, loss of production or service interruption, loss of profits or any other pure financial loss which is consequential, indirect, incidental, caused by delays in delivery or cancellation. Further the Seller shall not be liable for punitive damages unless the Buyer is entitled to punitive damages under Chinese law.
8. PASSING OF RISK AND RETENTION OF TITLE
8.1. Risk of loss of or damage to the Goods will pass to the Buyer on Delivery.
8.2 .Notwithstanding delivery of any Goods from the Seller to the Buyer, the Seller shall reserve its title to the Goods delivered until the Buyer has paid in full the total price for supply of the Goods. The Seller shall be entitled to repossess the Goods upon demand in the event of failure by the Buyer to pay the total price in full on time. The Buyer shall indemnify the Seller all costs, expenses, losses and liabilities, etc. relating to repossessing the Goods by the Seller.
9. INSPECTION AND ACCEPTANCE
The Buyer shall inspect the Goods and notify the Seller of the defect in quality or shortage of quantity for the Goods within [ten (10)] days in written form after the Goods are delivered to the Buyer. If defect in quality or shortage in quantity is confirmed by the Seller after such notification, the Seller will be responsible for resolving it. Failing to deliver such notification within the period as specified hereto will be deemed that the Goods delivered to the Buyer is accepted as qualified and complying with the quantity as agreed with the Seller and the Buyer.
10. LIMITED WARRANTY
10.1.The Seller warrants that all goods sold by the Seller to the Buyer pursuant to the agreement between the Seller and the Buyer shall be free from defects in workmanship and materials for the following period of time from and including the date of shipment: one (1) year for goods other than equipment; one hundred eighty (180) days for goods that are equipment used by Buyer in one eight hour shift; and ninety (90) days for goods that are equipment used by the Buyer in more than one eight hour shift. This warranty does not apply unless the Buyer gives written notice of any defects within ten (10) days of discovery of the defect.
10.2. The Seller will not be responsible for the warranty liabilities set out in Article 10 if the defect is not caused by or not attributable to the Seller or if:
(a) the relevant defect was caused by damage occurred during the course of transportation;
(b) the relevant defect was caused by fair wear and tear;
(c) the relevant defect was caused or exacerbated by improper use, handling, alternation, installation, repair and maintenance by the Buyer or any third party;
10.3. The Buyer acknowledges and agrees that its sole and exclusive remedy for any breach of the foregoing warranty shall be the repair by the Seller (or replacement, at the Seller’s sole option) of any products or parts supplied by the Seller, without obligation of the Seller for installation of the repaired or replacement parts. The transportation costs and other costs and expenses in relation to the repair and replacement shall be borne by the Buyer. In no event may the Buyer claim for defects of the Goods after expiration of the warranty period provided in this Article 10.1.
10.4. EXCEPT AS STATED IN THIS ARTICLE 10, THE SELLER MAKES NO WARRANTIES WITH RESPECT TO THE GOODS. THE WARRANTIES OF FITNESS FOR PARTICULAR PURPOSE ARE HEREBY EXCLUDED, UNLESS SUCH FITNESS FOR PARTICULAR PURPOSE ARE CONFIRMED IN WRITTEN FORM BY THE SELLER WHEN REACHING AGREEMENT FOR SUPPLY OF GOODS.
10.5. The Buyer acknowledges that the Seller will provide application assistance and recommendations to the Buyer to support the incorporation of the Goods into the Buyer’s application and such assistance and recommendations provided by the Buyer are subject to approval based on the Buyer’s testing and final approval. The Buyer acknowledges and undertakes that the Seller will not be liable for such assistance and recommendations and such assistance and recommendations shall not in any manner affect or expand the limited warranty as specified in this Article 10. The Seller may, from time to time, provide recommendations as to the best practices in the testing and usage of the Seller's goods. The Buyer further acknowledges and agrees that such recommendations shall not in any manner affect or expand the limited warranty as specified in this Article 10.
11. LIMITATION OF LIABILITY
11.1. These terms and conditions of sale have specified the Seller's scope of liabilities to the Goods. The Seller shall not be responsible for any liabilities with respect to the Goods which are not specified in these terms and conditions of sale. The Buyer acknowledges and undertakes that the Buyer agrees to all and any of the provisions under this Article 11.
11.2. IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES INCURRED BY BUYER AS THE RESULT OF ANY ACT, BREACH OR OMISSION BY THE SELLER, EVEN THOUGH THE SELLER MAY HAVE BEEN ON NOTICE THAT THE BUYER WOULD INCUR SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, THE SELLER WILL NOT BE LIABLE FOR BUYER'S LOST PROFITS, LOSS OF USE, DAMAGE TO EQUIPMENT OR PROPERTY, REDUCTION IN MANUFACTURING OUTPUT, LOSS OF DATA, LOSS OF BUSINESS OPPORTUNITY OR REPUTATION, OR ANY INDIRECT DAMAGES ARISING FROM ANY BREACH OF THE AGREEMENT BETWEEN THE SELLER AND THE BUYER BY THE SELLER.
11.3. Further, in no event shall Seller's maximum aggregate liability to the Buyer exceed the lesser of (i) $15,000 or (ii) the amount actually paid for the defective goods.
11.4. The limitations of liabilities as set out in Article 11.2 and Article 11.3, shall remain in full force and effect regardless of the nature of the Buyer's claims and the type of cause of action (including but not limited to cause of action arising out of contract, warranty, tort, product liability or otherwise, which expressly applies to any negligent acts or omissions of Seller).
12. FORCE MAJEURE
12.1. Force Majeure shall mean any event which is beyond the reasonable control of the Parties and which is unforeseeable, unavoidable and cannot be overcome which shall include Acts of God, severe weather conditions, mass labor disputes, governmental actions, war, inability to obtain permits, licenses, raw materials or shipments of product, shortages and any other causes or circumstances beyond the Seller's control.
12.2. A notice shall be given to the counterparty within five (5) working days when a Force Majeure event happens which makes one party unable to perform its obligations due to Force Majeure and provide evidence regarding the Force Majeure event within five (5) working days.
12.3. The Seller will not be liable for any delays or losses resulting, directly or indirectly, from events of Force Majeure.
13. CANCELLATION BY THE SELLER
13.1. The Seller reserves the right to cancel all or any part of the agreement at any time by giving a written notice with immediate effect if the Buyer fails to pay any amount when due under the agreement between the Seller and the Buyer or otherwise breaches the agreement between the Seller and the Buyer or if in the Seller’s sole judgment the financial condition of the Buyer warrants such action.
13.2．The Buyer agrees to authorize its creditors to disclose to the Seller information concerning the Buyer’s credit worthiness, upon the Seller’s request.
13.3. The Buyer acknowledges and undertakes to agree that the Seller shall not be responsible to the Buyer for any liabilities for the cancellation by the Seller.
14. CANCELLATION BY THE BUYER
14.1 .The Seller reserves the right to charge the Buyer up to [20%] of the [aggregate] value of [the orders already placed by the Buyer under] the Open Order Contract as liquidated damages for order cancellations. The Seller will be entitled to deduct such liquidated damages from any payments already made by the Buyer (if any).
14.2. If the Buyer fails to pay [20%] of the
[aggregate] value of [the orders already placed by the Buyer under the] Open Order Contract within the specified time period as requested by the Seller, the Buyer agrees that the Seller shall be entitled to review and adjust existing commercial terms including but not limited to unilateral adjustment of the prices, the deadline for payment, prepay terms, etc. for future orders.
14.3. For the situation of repeated orders
(where an individual order is accepted by the Buyer and an independent contract is formed), the Buyer agrees that the Seller shall be entitled to charge [20%] of the value of the individual order as liquidated damages for cancellation and deduct such liquidated damages from any payments already made by the Buyer (if any), if the Buyer cancels such order. Further the Seller shall be entitled to adjust the existing commercial terms including but not limited to unilateral adjustment of the prices, the deadline for payment, prepay terms, etc., for future orders.
15. CLAIMS AND ADJUSTMENTS
Specially manufactured and/ or customized goods are not returnable. No shortage claim or error in shipment will be adjusted unless reported in writing to the Seller within [ten (10)] days after the Goods are delivered to the Buyer. Returns, regardless of reason, will not be accepted without prior written authorization by the Seller.
16. STATUE OF LIMITATION FOR ACTIONS AND CLAIMS
Any claim or cause of action with respect to the agreement between the Seller and the Buyer must be commenced within one (1) year after the party knows or ought to have known of the infringement of its rights unless a longer mandatory statute of limitation applies.
17. GOVERNING LAW AND DISPUTE RESOLUTION
17.1．The agreement between the Seller and Buyer shall be governed by and construed in accordance with the laws of China and the choice of law provisions in Chinese law will not be applied. In no event shall the United Nations Convention on Contracts for the International Sale of Goods apply to the agreement between the Seller and the Buyer.
17.2．Any controversy or claim arising out of or relating to supply of the Goods, or the goods which are the subject hereof, shall be settled by arbitration by [Hong Kong International Arbitration Centre (HKIAC)] in accordance with its arbitration rules which is in force when the controversy or claim is submitted for arbitration. The place of arbitration shall be in [Hong Kong] and the language to be in the arbitration shall be [English]. The arbitration tribunal shall consist of by [three (3)] arbitrator who shall be appointed in accordance with the arbitration rules of the [Hong Kong International Arbitration Centre (HKIAC)] which is in force when the dispute is submitted for arbitration. The losing party in the arbitration shall pay the arbitrator's fees and costs of arbitration and shall pay the prevailing party’s reasonable attorney’s fees. The award rendered by the arbitration tribunal shall be final and binding on the parties and no party shall seek recourse to a law court or other authorities to appeal for reversion of the award and the award shall be enforceable by any court of competent jurisdiction.
18. SOLE AGREEMENT
These terms and conditions of sale and Seller's Order Acknowledgement, in the form sent to the Buyer, constitute the final expression of the parties’ agreement, and it is he complete and exclusive statement of the terms and conditions of the agreement between the Seller and the Buyer which supersedes all previous negotiations and commitments in respect of the matters stated herein. No other oral or written terms re part of the agreement between the Seller and the Buyer. The agreement between the Seller and the Buyer may only be modified by a document in writing signed by both parties.
Revised on 7th, Februray, 2014