TERMS AND CONDITIONS FOR SALE OF PRODUCTS(Rev. 3 March, 2016)
NOTICE 1: Sale of any Products identified herein is expressly conditioned on the Buyer's assent to the terms and conditions contained or referred to herein (hereinafter “Terms and Conditions”). Any additional or different terms or conditions proposed by Buyer are expressly objected to and will not be binding upon Seller unless specifically assented to in writing by Seller's authorized representative. Any order for, or any statement of intent to purchase hereunder, or any direction to perform work or any assent to Seller's performance of work shall constitute assent to these Terms and Conditions (including those made over the internet). Unless otherwise specified in writing by Seller, any quotation by Seller shall expire 30 days from its date and may be modified or withdrawn by Seller prior to receipt of Buyer’s acceptance.
1.1 The prices to be paid by Buyer for the Products shall be those agreed with Seller .
1.2 If Buyer fails to fulfill any condition of its payment obligations, Seller may suspend performance and delivery. Any cost incurred by Seller in accordance with such suspension (including storage costs) shall be payable by Buyer upon submission of Seller’s invoices. Performance of Seller’s obligations shall be extended for a period equaling the period of Buyer’s non-fulfillment of any portion of the payment terms of the Agreement, whether or not Seller suspends performance, and such additional time as may be reasonably necessary in the circumstances. If Buyer does not correct such failure in the manner and time satisfactory to Seller, then Seller may, at its option, terminate the transaction in respect to the portion of the Products not delivered and work not yet performed. Buyer shall pay Seller its reasonable and proper termination charges in the event of such termination.
1.3 If Buyer becomes bankrupt or insolvent, or if any proceeding is brought against Buyer, voluntarily or involuntarily, under the bankruptcy laws or any insolvency laws, Seller shall be entitled to terminate this Agreement. Buyer shall pay Seller its reasonable and proper termination charges in the event of such termination.
1.4 In the event of any special price authorization being issued by the Seller to the Buyer, the Buyer must ensure that the quotation code/ project code is quoted on all orders to which such authorization applies (including internet orders) to ensure that the correct prices are allocated to such orders.
1.5 Any query or dispute by the Buyer relating to an invoice or products delivered must be initiated in writing within 30 working days from the delivery date. If such query or dispute is not initiated within that period of time the Buyer expressly agrees to waive its right to such query or dispute.
1.6 Without prejudice to the foregoing, the Seller shall be entitled to charge interest on a day to day basis on any amount overdue for payment at the rate of 2.5% per annum above the base rate for the time being of the Seller's bankers until payment is received.
1.7 The Seller reserves the right to deduct from any monies due or becoming due to the Seller from the Buyer monies owed by the Seller to the Buyer in respect of Products supplied or services rendered by the Buyer to the Seller and any other sums owed by the Seller to the Buyer. For the purposes of this condition, the Seller shall be deemed to include any affiliate of the Seller.
1.8 Unless otherwise previously agreed upon and as a standard, payment terms must be made within 30 days of issuance of invoice.
2. TAXES AND DUTIES
Taxes, customs duties, state fees, income taxes and all other expenses, which shall be paid for in the Seller’s country, shall be borne by the Seller, whereas all taxes, customs duties, state fees, income taxes and other expenses related to the present CONTRACT and its execution in the Buyer’s country, shall be borne by the Buyer.
3. DELIVERY, TITLE TRANSFER, RISK OF LOSS, STORAGE
3.1 (i) Seller shall deliver the Products to Buyer EXW Seller’s ;(ii) For All Other Export Shipments, Seller shall deliver the Products to Buyer FCA Shenzhen or Honghong port specified by Seller (Incoterms 2000);
(iv) Buyer shall pay all delivery costs and charges. Except for those obligations, which are consistent with Incoterms 2000 specifically stated above, Seller shall be without liability on any claim asserted by Buyer with respect to such delivery. Partial deliveries will be permitted.
3.2 The Products shall, unless otherwise agreed, remain the property of the Seller until all amounts that Buyer owes to the Seller for the relevant Products have been paid in full.
(i) Until title to the Products passes to the Buyer, the Buyer shall hold the Products as the Seller's bailee and shall store or mark them so that they can at all times be identified as the Seller's property. Without prejudice to the Buyer’s strict obligations under this Condition, if the Products are not so stored and marked the Seller shall acquire title in such property with which the Products have been mixed as would represent the value of the Products.
(ii) The Seller shall be entitled at any time before property passes to the Buyer to enter the Buyer's premises to repossess and move any of the Products and in so doing shall be entitled to dismantle any Products from equipment or products to which they have been attached without being liable for any damage caused thereby whereupon the Buyer's right to use or deal in the Products shall terminate. (iii) Until property in the Products passes to the Buyer, any proceeds of the sale of the Products by the Buyer shall be held for the benefit of and in trust for the Seller.
(iv) The Seller shall be entitled to maintain an action for the price of any Products notwithstanding that property in them has not passed to the Buyer.
3.3 If any Products cannot be shipped to Buyer when ready due to any cause not attributable to Seller, upon notice to Buyer, Seller may ship such Products to storage. If such Products are placed in storage, including storage at the facility where manufactured, the following conditions shall apply: (i) all risk of loss or damage shall thereupon pass to Buyer if it had not already passed; (ii) any amounts otherwise payable to Seller upon delivery or shipment shall be payable upon presentation of Seller’s invoices and certification as to cause for storage; (iii) all expenses incurred by Seller, such as for preparation for and placement into storage, handling, inspection, preservation, insurance, storage, removal charges and any taxes shall be payable by Buyer upon submission of Seller’s invoices; and (iv) when conditions permit and upon payment of all amounts due hereunder, Seller shall resume delivery of the Products to the originally agreed point of delivery.
4. FORCE MAJEURE
4.1 Seller shall not have any liability or be considered to be in breach or default of its obligations under the Agreement, to the extent that performance of such obligations is delayed or prevented, directly or indirectly, due to: (i) causes beyond its reasonable control; or (ii) acts of God, acts (or failures to act) of governmental authorities, fires, severe weather conditions, earthquakes, strikes or other labor disturbances, floods, war (declared or undeclared), epidemics, civil unrest, riot, delays in transportation, or car shortages; or (iii) acts (or omissions) of Buyer including failure to promptly: (a) provide Seller with information and approvals necessary to permit Seller to proceed with work immediately and without interruption, or (b) comply with the terms of payment, or (c) provide Seller with such evidence as Seller may request that any export or import license or permit has been issued (if such is the responsibility of Buyer), or (iv) shipment to storage under Article 3, or (v) inability, due to causes beyond the reasonable control of Seller, to obtain necessary materials, necessary components or services. Seller shall notify Buyer in the event of any such delay. The date of delivery or of performance shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of such excusable delay. Seller shall notify Buyer, as soon as practicable, of the revised delivery date. If Seller is delayed by acts or omissions of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall also be entitled to an equitable price adjustment.
4.2 If delay excused by this Article extends for more than one hundred twenty (120) days and the parties have not agreed upon a revised basis for continuing the work at the end of the delay, including adjustment of the price, then either party (except where delay is caused by Buyer, in which event only Seller), upon thirty (30) days written notice, may terminate the order with respect to the unexecuted portion of the work, whereupon Buyer shall promptly pay Seller its termination charges determined in accordance with Seller's standard accounting practices upon submission of Seller's invoices therefore.
Notwithstanding any other provisions herein, Buyer shall be responsible for timely obtaining any required authorization, such as an export license, import license, foreign exchange permit, work permit or any other governmental authorization, even though any such authorization may be applied for by Seller. Buyer and Seller shall provide each other reasonable assistance in obtaining required authorizations. Seller shall not be liable if any authorization is delayed, denied, revoked, restricted or not renewed and Buyer shall not be relieved thereby of its obligations to pay Seller for the Products.
6.1 Seller warrants to Buyer that at the time of delivery the Products shall be free from defects in material, workmanship and title.
6.2 If any failure to meet the foregoing warranty appears within the Warranty Period (as defined in Section 6.3), Buyer shall promptly notify Seller and make the Products available promptly for correction. Seller shall thereupon correct any defect by, at its option, (i) repairing the defective Products or (ii) making available necessary replacement Products under the same shipment terms that was used in the case of the original shipment; or (iii) refund the price of the Products in question.
6.3 The foregoing warranties (except as to title) for each Product shall apply to defects which appear within twelve (12) months from delivery of the Product (the “Warranty Period”).
6.4 The supply of repaired or replacement Products by Seller pursuant to Section 6.2 shall not extend the duration of the Warranty Period. Seller shall not be responsible for removal or replacement of systems, structures or other portions of Buyer’s facility.
6.5 Seller does not warrant the Products or any repaired or replacement Products (i) against normal wear and tear including that due to environment or operation, including excessive operation at peak capability, frequent starting, type of fuel, detrimental air inlet conditions or erosion, corrosion or material deposits from fluids or (ii) which have been involved in an accident. The warranties and remedies set forth herein are further conditioned upon (i) the proper storage, installation, operation, and maintenance of the Products and conformance with the operation instruction manuals (including revisions thereto) provided by Seller and/or its subcontractors, as applicable and (ii) repair or modification pursuant to Seller’s instructions or approval. Seller does not warrant any equipment or services of others designated by Buyer where such equipment or services are not normally supplied by Seller.
6.6 The preceding Sections of this Article 6 set forth the exclusive remedies for all claims based on failure of or defect in the Products and incidental services provided under the Agreement, whether the failure or defect arises before or during the Warranty Period and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise. The foregoing warranties are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory. NO EXPRESS OR IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE SHALL APPLY.