General Terms and Conditions of Sales - China
1.– ORDERS –
Orders, whether received directly from the Purchaser or forwarded through the Seller’s agents and representatives, shall not be binding on the Seller until they have been accepted, recorded and a confirmation of receipt has been returned, except with respect to the sales price which shall always be the price in effect on the date of actual delivery. All sales are subject to such acceptance and to the agreement of the Purchaser to be bound by the Seller’s terms and conditions of sales.
2.–DELIVERIES-
When the prices indicate that they are established with carriage paid, the expression of carriage paid indicates only that the Seller shall pay the costs of transport, but shall not be liable for the risks associated therewith, and all of these risks shall be born by the Purchaser upon the delivery of the products to the first transporter. Furthermore, the Seller shall not guarantee under any circumstances the method of transportation. If the Seller arranges rail cars, trucks, boats, planes, etc. and even if the Seller deals with the liability of the Purchaser, whatever the method of transportation or the means of payment for the cost of transportation is, carriage should only be paid to the port due. The delivery of the products shall be completed at the Seller’s plant. The Seller is free of the obligation to make delivery and shall not be liable for the suspension or delay in the completion of orders for any and all events force majeure, including but not limited to general or partial strikes, war, floods and fires, epidemic, interruptions of transport, shortages of raw materials, energy or supplies, and accidents and events resulting in total or partial idling of the Seller’s plants or of the industries on which the Seller depends and which prevent the normal operation of market. Delivery times shall be agreed by the Parties in advance. Unless it is caused by the Seller’s fault, any delay in delivery that may possibly occur shall not give rise to any right on the part of the Purchaser to cancel the purchase, and / or to return the products and / or to claim for damages.
3.– LIABILITY FOR DELIVERIES AND FOR MERCHANDISE-
The products shall be checked and accepted in the Seller’s plant at the time of delivery. Defects which are discovered after the delivery shall only result in an obligation on the Seller to replace the product in question, without any other compensation of any sort whatsoever, the property of the products so replaced remaining with the Seller. Any Claims arising from the check and acceptance of the products must be made in the manner and within 10 days after the goods received .Technical advice that the Seller has given or may give, whether directly or through the Seller’s engineers or technicians, even if the latter supervise or with the consent of the Purchaser install the product or equipment that is the subject of order, shall in no event result in the Seller being liable in any manner whatsoever, including but not limited to, for the choice of products the customer is induced to order, their use or the results achieved. The technical specifications, which the Purchaser agrees to be informed of prior to making any use of the product, shall be provided for information purposes only despite of any technical assistance possibly provided by the Seller. The Purchaser shall remain solely liable for any damages resulting from the use of the product sold, the Seller shall in no event be held liable for such utilization and the consequences thereof.
4.–RETURNS –
No returns shall be accepted without the prior express agreement of the Seller.
5.– PRICES AND TERMS OF PAYMENT –
Sales prices shall be invoiced on the basis of prices in force as of the date of delivery. Unless specified otherwise, the Seller’s agents and representatives shall not be authorized to receive any payment under the contract. Unless agreed otherwise, the Seller’s invoices shall be payable to the Seller by noted dates the in the contract. The due dates fixed are absolute. Any delay in payment of an invoice or a draft, in so far as such payment is made after the date of payment mentioned on the invoice shall result in the application of default interest, which shall be calculated on the basis of an annual rate equal to one and a half (1.5) times the base rate for each month. The Purchaser shall be notified that such interest is being invoiced by the registered letter, the return receipt requested. Upon the non-payment of a single delivery or the non-acceptance of a single draft related thereto the Seller shall have the option, without notice of default, of suspending or terminating the contracts outstanding. In the event of discount for payment in cash calculated on the basis of the net amount (VAT included), the Purchaser shall be obligated to calculate the amount of VAT on the discount given. In the event of a change in the situation of the Purchaser, including but not limited to death, disability, bankruptcy, judicial administration or winding up, suspension of payments, or dissolution of the company, the Seller shall be entitled to reserve the right to cancel the outstanding orders, require further assurances or repossess the product without any further legal formalities. The non-payment shall be deemed a condition under which the sale can be rescinded.
6.–GUARANTY OF PAYMNET –
In the event an invoice is not paid when due, the Seller shall have the option of requiring payment in cash for all subsequent deliveries and the Seller reserves the right, upon notice thereof, of suspending delivery or requiring the immediate payment of all amounts outstanding without prejudice to any other remedies available to the Seller.
7.– RESERVATION OF TITLE –
It is expressly agreed that the property of product sold shall remain with the Seller until the payment in full of the purchase price. In the event of payment by commercial paper, the transfer of title to the Purchaser shall only come into effect after the actual payment of the said instruments. Nevertheless, the Seller may authorize the Purchaser, immediately upon delivery, to proceed to all the processing or selling operations relating to such products, it being agreed however that even in such circumstances the Seller shall retain the right to repossess such products in whatever state they may be found in and from whomsoever may be holding them. Moreover, immediately upon delivery, the Purchaser shall take over the custody and shall alone bear the risks for the products with respect both to the Seller and to any third party. Accordingly, the Purchaser shall be bound by the obligations incumbent upon it as custodian of such goods.
8.– PACKING –
Packing that may be lent for the storage of products is noted on the invoice. The amount of the deposit shall not constitute a sales price. It will be reimbursed to the Purchaser upon the return of the packaging, carriage paid, within two months of the receipt thereof, beyond such time limit it shall be retained.
9. – FORCE MAJEURE –
“FORCE MAJEURE” hereby includes but not limited to war, strike, lockout, fire damages, unexpected and substantial business shutdowns and/or business disruptions – provided that these are not culpably caused by lack of maintenance and servicing measures –, traffic congestions, delivery disruptions by pre-suppliers or subcontractors, unavoidable regulatory provisions, delay in deliveries due to negative effects of Brexit such as time delays at borders/customs/immigration etc., earthquakes and other natural phenomena, epidemics and supply chain disruptions caused by epidemics such as but not exclusively lack of transport equipment and/or means of transport etc., officially ordered quarantine measures as well as other cases of force majeure of any kind shall release from the obligations of this contract for the period of the event and the scope of its effects.
In case of an occurrence or a removal of an event of force majeure, the other contracting party shall be notified immediately in writing (via telefax or e-mail) stating the date of occurrence or the date of removal. The respective contracting party shall confirm receipt of such notification immediately in writing (via telefax or e-mail).
In the event of an occurrence of force majeure as defined in this provision, the contractual partner affected by force majeure shall in all cases strive to the best of its ability and insofar as this can be considered economically justifiable to fulfil its contractual obligations and make every effort to remedy any interference causing disruptions.
10. – SANCTION COMPLIANCE -
The Products may be subject to U.S. or other export control laws and regulations, including the U.S. Export Administration Regulations. Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, transship, transfer, deliver, or otherwise release any Products to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of Products is prohibited by applicable law, regulation, or rule. Buyer agrees to provide Seller with all end-use, end-user, and destination information as may be reasonably required to ensure compliance with applicable laws.
Buyer understands that Seller or its ultimate parent is a U.S. person and is subject to laws and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control or other government authorities, where such laws and regulations include economic sanctions and trade embargoes that prohibit dealing, directly or indirectly, with designated countries, regimes, entities, and persons, including those owned 50% or more by or, in some cases, otherwise controlled by such designated parties. Buyer complies with and affirms that it is not a target of or otherwise subject to any such sanctions or embargoes.
Buyer shall comply with all U.S. antiboycott laws and regulations. Buyer shall be responsible for any breach of this Section by its, and by its successors’ and permitted assignees’, affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors. Buyer agrees to indemnify and hold Seller harmless from any claims, damages, liabilities, or penalties arising from Buyer’s or Buyer’s successors’ or permitted assignees’ non-compliance with the provisions of this Section. Buyer’s obligations under this Section shall survive the termination or expiration of this Agreement.
11. – ATTRIBUTION OF JURISDICTION –
This contract shall be governed by and construed in accordance with the laws of the People’s Republic of China. All disputes or divergences arising from the execution of this contract shall be settled through friendly discussion between both Parties. In case no settlement can be reached, any party should sue to People’s Count at the place where the seller locates. The court fee shall be borne by the losing Party. In course of the case trial, the contract shall continuously be executed by both Parties except for the part under trial.