1. General
These Terms and Conditions for the Supply of Goods (“Terms and Conditions”) are applied in the supply of the goods (“Goods”) by Seller and are the exclusive binding agreement between the parties regarding the Goods. The acceptance of any or all Buyer’s purchase order (“Purchase Order”) is conditional upon Buyer’s assent to the Terms and Conditions in this document, incorporated by reference herein, in lieu of the terms contained in Buyer’s Purchase Order.
2. Price and Payment
2.1 The price of Goods is as indicated in the Quotation/ Purchase Order. Unless otherwise specified or required by law, all prices will be quoted and billed exclusive of customs, duties or taxes, and Buyer shall be responsible for all such applicable duties and taxes.
2.2 Unless otherwise agreed between the parties, the payments shall be made by T/T in US dollar to Seller. If Buyer fails to make payment within due time, Seller is entitle to charge Buyer 0.1% of the value of delayed payment as liquidated damages each day from the payment date. If Buyer fails to pick up the Goods beyond five (5) days as of the delivery date as notified by Seller, Seller is entitled to charge Buyer 10% of the total value of the Goods that Buyer delays to pick up as liquidated damages.
3. Delivery and Acceptance
3.1 Seller shall, subject to events beyond its control, make reasonable best efforts to meet specified delivery dates referenced in the Purchase Order. However, shipping dates are approximate and are not guaranteed, andSeller shall have no liability, direct or indirect, contingent or otherwise, for delay in delivery. Seller may not be declared in breach nor shall the Purchase Order be subject to cancellation so long as Seller is making a bona fide effort to complete manufacture and delivery.
3.2 Terms of delivery should be determined in accordance with INCOTERMS2010, all risks of loss of or damage to the Goods shall pass to Buyer upon delivery, Seller is not liable in any way for any loss or damage to the Goods after delivery. Seller retains the title and ownership of all the Goods until Buyer has paid fully to Seller the total value of the Purchase Order and all related costs.
3.3 The Goods shall be picked up by Buyer at the place specified in the Purchase Order in accordance with the delivery date of Seller’s delivery notice. Buyer or Buyer’s agent shall inspect the Goods, sign the delivery notice and notify Seller in writing of any defect (along with evidence thereof satisfactory to Seller) within ten (10) business days of receipt. Failure to notify Seller or sign the delivery notice shall constitute full acceptance by Buyer, relieving Seller of liability for defects, if any.3.4 The sale of any of Goods to Buyer in no way conveys to Buyer, either expressly or by implication, any intellectual property license whatsoever, except as may be granted by Seller in the materials which accompany the Goods upon delivery. Seller expressly reserves its rights under any such claim, and asserts that additional restrictions may apply to the use of the Goods, as may be set forth in the materials which accompany the Goods.3.5 Buyer may not reschedule any Goods shipment without the prior writtenconsent of Seller. All Purchase Orders may not be cancelled by Buyer after acceptance by Seller.
4. Warranty
4.1 Seller expressly warrants that the Goods will conform to the specifications as agreed hereunder or in the respective Quotation/Purchase Order.
4.2 The warranty shall not apply if any of the following has occurred:i. improper handling, transportation, use, modification, repair, maintenance or installation (based on the most current installation and maintenance manuals provided to Buyer by Seller);ii. caused by the Goods’ normal wear and tear;iii. caused by the use of parts other than genuine parts provided by Seller or unspecified lubricating oil;iv. Buyer, in its own discretion, modifies, rebuilds or hires a third party without due authorization from Seller to repair the Goods;
v. vulnerable or consumable parts defined in accordance with internationally accepted standards, including but not limited to sealing elements, filter elements, lamps, safety piece, tools, oils, antifreeze fluid and diesel exhaust fluid.
Seller shall not have responsibility or liability, direct or indirect, contingent or otherwise, arising out of, or based upon, a violation of the warranty caused in whole or in part, in the opinion of Seller, by those actions or omissions of or on behalf of Buyer described in this section.
4.3 For a warranty claim to be valid, Buyer must submit the claim to Seller within six weeks following the first discovery of the problem with the Goods. If the applicable warranty period described has not expired, Seller’s liability shall be limited solely to any and all direct losses and damages to Buyer resulting from defective parts of the Goods and shall in no event exceed the cost of repair or replacement of the defective Goods. If the warranty period has expired, Seller shall not be liable for any defects of any kind whatsoever and have no obligation under this warranty.
4.4 Buyer acknowledges and agrees that the provisions contained in this warranty constitute the sole and exclusive remedy available to it with regard to the Goods. Except for the express warranties made in this section, the Goods is sold “AS IS” and Seller expressly disclaims and excludes all warranties, whether statutory, express or implied, including all warranties which, but for this provision, might arise from course of dealing, custom or trade and including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement of third party rights with respect to the Goods furnished by Seller hereunder. If any portion of the Goods is not manufactured by Seller, then Seller will, to the extent it is authorized to do so, pass along to Buyer the manufacturer’s warranty. Seller makes no warranty whatsoever with respect to any portion of the Goods not manufactured by Seller and such portion of the Goods are sold to Buyer by Seller “AS IS”.
5. Limitation of Liability
Seller shall not be liable for consequential, incidental, or indirect damages sustained by Buyer, including loss of profits or revenue, loss of use of Goods, cost of capital, cost of substituted Goods, facilities, services, or claims of Buyer's customers for damages. And Seller shall not be liable for any claim made by any of Buyer’s subcontractors or customers or any third party. It is agreed, however, that in no event shall Seller’s liability exceed 10% of the total value of Purchase Order. The damage limitations provide in these Terms and Conditions stated herein shall be exclusive and Buyer’s sole remedy. This Limitation on liability shall survive failure of any essential purpose.
6. Force Majeure
If either Party is prevented or delayed in the performance, either in total or in part, of any of its obligations under these Terms and Conditions by the circumstances of force majeure including acts of God, any war, military operations, export/import embargos, the performance of such obligations shall be suspended for the duration of the contingency, and the affected Party that fails to perform its obligations under these Terms and Conditions shall notify the other Party within five (5) days after the occurrence and cessation of the above circumstances. The certificates issued by the Chamber of Commerce of the country where force majeure takes place shall be a necessary evidence of such circumstances and their duration. Any delivery date may be extended, at Seller’s option, to the extent of any delay resulting from any force majeure event. These force majeure events cannot influence and postpone the payment obligation of Buyer.
7. Governing Laws and Arbitration
These Terms and Conditions shall be governed by the laws of the People’s Republic of China without reference to its rules as to conflicts of law and for the sole purpose of this Agreement. All disputes in connection with these Terms and Conditions and the Purchase Orders or the execution thereof shall be settled amicably through friendly negotiations. In case no settlement can be reached through negotiation, the case shall then be submitted to China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration with the CIETAC‘s arbitration rules in effect at the time of applying for arbitration in Chinese. The place of the arbitration shall be Beijing. The Tribunal shall consist of three arbitrators. The arbitral award shall be final and binding on both Parties. The arbitral fee shall be borne by the losing party.
8. Miscellaneous
8.1 Buyer understands that the Goods supplied by Seller are subject to United Nations sanction and international law and U.S. export control and sanctions laws. Buyer shall not export, re-export, transfer, or otherwise divert such Goods unless permitted by such laws or previously authorized by the United Nations and U.S. Government. To comply with such laws, Buyer shall certify that unless prior approval from the United Nations and U.S. Government has been obtained, it will not allow Goods to be used in embargo countries or by persons or entities on any United Nations and U.S. Government restricted list.
8.2 No waiver of any breach of any provision of these Terms and Conditions shall constitute a waiver of any prior, concurrent or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.
8.3 Neither Party shall has the right to assign its rights and obligations under these Terms and Conditions to any third party without the prior written consent of the other Party and any purported assignment without such consent shall be null and void.8.4 These Terms and Conditions and Purchase Order/Quotation contained herein constitute the entire agreement between Buyer and Seller with respect to the Goods purchased, and supersedes all prior or contemporaneous negotiations, understandings and agreements with respect to such subject matter.
