General Terms and Conditions of Sale
1. Application of terms. The contract (Contract) between Seller and Buyer for the sale of goods (Goods) and/or services (Services) to be supplied by Seller shall be on these conditions to the exclusion of all other terms and conditions (including any terms/conditions which Buyer purports to apply under any purchase order, confirmation of order, specification or other document). These conditions apply to all Seller’s sales and any variation hereto shall have no effect unless expressly agreed in writing and signed by an officer of Seller. Each order or acceptance of a quotation for Goods or Services by Buyer shall be deemed to be an offer by Buyer to buy Goods and/or Services subject to these conditions. Any quotation is given on the basis that no Contract shall come into existence until Seller despatches an acknowledgement of order to Buyer.
2. Description. The quantity/description of Goods/Services shall be as set out in Seller’s acknowledgement. All samples, drawings, descriptive matter, specifications and advertising issued by Seller in its catalogues/brochures or otherwise shall not form part of the Contract. This is not a sale by sample.
3. Delivery: Unless otherwise agreed in writing by Seller, delivery of Goods shall take place at Seller’s place of business. Services shall be provided at such venue(s) specified in Seller’s quotation. Buyer shall take delivery of Goods within 10 days of Seller giving it notice that Goods are ready for delivery. Any dates specified by Seller for delivery of Goods or performance of Services are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery/performance shall be within a reasonable time. Subject to the other provisions hereof, Seller shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in delivery of Goods or Services (even if caused by Seller’s negligence), nor shall any delay entitle Buyer to terminate or rescind the Contract unless such delay exceeds 180 days. If for any reason Buyer fails to accept delivery of Goods when ready, or Seller is unable to deliver Goods on time because Buyer has not provided appropriate instructions, documents, licences or authorisations:
(i) Risk in Goods shall pass to Buyer;
(ii) Goods shall be deemed to have been delivered; and
(iii) Seller may store Goods until delivery, whereupon Buyer shall be liable for all related costs. The quantity of any consignment of Goods as recorded by Seller on despatch from Seller’s place of business shall be conclusive evidence of the quantity received by Buyer on delivery, unless Buyer can provide conclusive evidence proving the contrary. Buyer shall provide Seller in a timely manner and at no charge access to its facilities as required by Seller to perform Services, informing Seller of all health/safety rules and security requirements. Buyer also shall obtain and maintain all licenses/consents and comply with all legislation in relation to the Services. If Seller’s performance of the Services is prevented/delayed by any act/omission of Buyer, Buyer shall pay Seller all costs incurred by Seller.
4. Risk/title. Goods are at the risk of Buyer from time of delivery. Buyer’s right to possession of Goods shall terminate immediately if:
(i) Buyer has a bankruptcy order made against it or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory), except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of Buyer or notice of intention to appoint an administrator is given by Buyer or its directors or by a qualifying floating charge holder (as defined in Law of the People’s Republic of China on Enterprise Bankruptcy 2006), or a resolution is passed or a petition presented to any court for the winding-up of Buyer or for the granting of an administration order in respect of Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of Buyer; or
(ii) Buyer suffers or allows any execution, whether legal or equitable, to be levied on its property or obtained against it, or fails to observe or perform any of its obligations under the Contract or any other contract between Seller and Buyer, or is unable to pay its debts within the meaning of Law of the People’s Republic of China on Enterprise Bankruptcy 2006 or Buyer ceases to trade; or
(iii) Buyer encumbers or in any way charges any of Goods. Seller shall be entitled to recover payment for Goods notwithstanding that ownership of any of Goods has not passed from Seller. While any payment for Goods remains outstanding, Seller may require return of Goods. Where Goods are not returned in a reasonable time, Buyer grants Seller an irrevocable license at any time to enter any premises where Goods are or may be stored in order to inspect them, or, where Buyer’s right to possession has terminated, to recover them, and to sever Goods where they are attached or connected to another item without being responsible for any damage caused. Any such return or recovery shall be without prejudice to Buyer’s continuing obligation to purchase Goods in accordance with the Contract. Where Seller is unable to determine whether any goods are the Goods in respect of which Buyer’s right to possession has terminated, Buyer shall be deemed to have sold all Goods of the kind sold by Seller to Buyer in the order in which they were invoiced to Buyer. On termination of the Contract, howsoever caused, Seller’s (but not Buyer’s) rights contained in this Section 4 shall remain in effect.
5. Price. Unless otherwise set forth in writing by Seller, the price for Goods shall be the price set out in Seller’s price list published on the date of delivery/deemed delivery and the price for Services shall be on a time and materials basis calculated in accordance with Seller’s standard daily fee rates. This price shall be exclusive of any value-added tax (VAT) and all costs/charges in relation to packaging, loading, unloading, carriage and insurance, all of which Buyer shall be liable to pay. Seller reserves the right, by giving notice to Buyer at any time prior to delivery, to increase the price of Goods/Services to reflect an increase in cost to Seller due to any factor beyond Seller’s control (such as, without limitation, foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in cost of labour, materials or other costs of manufacture), change in the delivery dates, quantities or specification of Goods which shall be requested by Buyer, or any delay caused by the instructions of Buyer, or failure of Buyer to give Seller adequate information/instructions.
6. Payment. Unless otherwise set forth in writing by Seller, payment of the price for Goods/Services shall be due in pounds sterling per the following: 30% with order; 60% not less than 7 days prior to delivery/performance; and balance of 10% within 30 days from the date of delivery/performance. Time for payment shall be of the essence. No payment shall be deemed received until Seller shall have received cleared funds. The whole purchase price (including VAT, as appropriate) shall be payable as aforesaid, notwithstanding the fact that Services ancillary or relating thereto remain outstanding. Notwithstanding the foregoing, all payments shall become due immediately on termination of the Contract. Buyer shall make all payments due in full without deduction whether by way of set-off, counterclaim, discount, abatement or otherwise. If Buyer fails to pay Seller any sum due, Seller shall be entitled to
(i) charge interest on such sum from the due date for payment at a compounded monthly rate equivalent to 3% until payment is made, whether before or after any judgment [Seller reserves the right to claim interest];
(ii) suspend performance of Services or provision of Goods and/or
(iii) terminate the Contract without notice
7. Warranty. Seller shall use reasonable endeavours to provide the Services in accordance in all material respects with its quotation. Seller warrants that for 12 months from the date of delivery, the Goods shall comply with the requirements of the Contract. Seller shall not be liable for a breach of the warranty as to Goods unless:
(i) Buyer gives written notice of the defect to Seller, and, if the defect is as a result of damage in transit to the carrier, within 10 days of the time when Buyer discovers or ought to have discovered the defect; and
(ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if asked to do so by Seller) returns such Goods to Seller’s place of business at Buyer’s cost; and
(iii) Buyer provides Seller with full details of the alleged defect.
Seller further shall not be liable for a breach of the warranty if:
(i) Buyer makes any further use of such Goods after giving such notice; or
(ii) The defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of Goods or (if there are none) good trade practice; or
(iii) Buyer alters or repairs such Goods without the written consent of Seller; or
(iv) The defect results from fair wear and tear. If Goods/Services do not conform with the warranty, Seller shall at its option repair or replace such Goods (or the defective part) or re-perform the Services or refund the price of such Goods/Services at the pro rata Contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return the Goods or the part of such Goods which is defective to Seller. In the event that no defect is found, Buyer shall reimburse Seller for the reasonable costs incurred in investigating the alleged defect. If Seller complies with the conditions in the 2 preceding sentences, Seller shall have no further liability for a breach of warranty in respect of such Goods/Services.
8. Limitation of liability. The following provisions set out the entire financial liability of Seller (including any liability for acts/omissions of its employees, agents and sub-contractors) to Buyer in respect of:
(i) Any breach of the Contract;
(ii) Any use made or resale by Buyer of Goods, or of any product incorporating Good;
(iii) Provision of the Services;
(iv) Use or application of any information contained in Seller’s documentation; and
(v) Any representation, statement or tortious act/omission including negligence arising under or in connection with the Contract.
All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by Contract Law of the People’s Republic of China) are, to the fullest extent permitted by law, excluded from the Contract. Nothing in these conditions excludes or limits the liability of Seller:
(i) For death or personal injury caused by Seller’s negligence; or
(ii) For any matter which it would be illegal for Seller to exclude or attempt to exclude its liability; or
(iii) For fraud or fraudulent misrepresentation.
Subject to the foregoing, Seller’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and Seller shall not be liable to Buyer for loss of profit, loss of business, or depletion of goodwill in each case whether direct, indirect or consequential, or any claims for consequential compensation whatsoever (howsoever caused) which arise out of or in connection with the Contract.
9. Force majeure. Seller reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods/Services ordered by Buyer (without liability to Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond its reasonable control including, without limitation, acts of God, expropriation, confiscation or requisitioning of facilities or equipment, governmental actions, directives or requests, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, inclement, adverse or extreme weather conditions, including but not limited to storm, hurricane, tornado, or lightning, natural disasters, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, labour, fuel, utilities, parts or machinery, failure to obtain any license, permit or authority, import or export regulations, restrictions or embargoes.
10. Intellectual Property. All intellectual property rights in the products/materials developed by Seller, independently or with Buyer, relating to the Services shall be owned by Seller.
11. General. Each right or remedy of Seller under the Contract is without prejudice to any other right or remedy of Seller whether under the Contract or not. If any provision of the Contract is found by any court, or like body to be wholly or partly illegal, invalid, void, voidable, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. Failure or delay by Seller in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights thereunder. Seller may assign the Contract or any part of it, but Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of Seller. Any waiver by Seller of any breach of, or any default under, any provision of Contract by Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect other terms of the Contract. The parties to the Contract do not intend that any term of the Contract shall be enforceable by virtue of the Contracts (Rights of Third Parties) Contract Law of the People’s Republic of China 2010 by any person that is not a party to it. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Chinese law and the parties submit to the exclusive jurisdiction of the Chinese courts.
General Terms and Conditions for the Purchase of Goods and Services
1. APPLICABILITY OF CONDITIONS. These conditions shall apply to any order placed by Buyer (“Order”) for the supply of goods (“Goods”) and/or provision of services (“Services”), and along with terms on the face of the Order, are the only terms governing the contractual relationship between Buyer and Seller in relation to the Goods/Services. Alternative conditions in Seller’s quote, invoices, acknowledgments or other documents shall be void and of no effect. No variation in the Order terms, including without limitation these terms and conditions, shall be binding on Buyer unless agreed to in writing by Buyer’s authorized representative.
2. PURCHASE. The Order constitutes an offer by Buyer to purchase the Goods and/or Services specified therein. Buyer may withdraw such offer at any time by notice to Seller. Seller shall accept or reject the Order within the time period specified therein by notice in writing to Buyer. If Seller does not unconditionally accept or reject the Order within such time period, it shall lapse and determine in all respects. Seller’s acknowledgment, acceptance of payment or commencement of performance shall constitute its unqualified acceptance of the Order.
3. DOCUMENTATION. Invoices and statements from Seller shall separately state the value-added tax (VAT) rate, the amount charged, and Seller’s registration number. Seller shall provide advice notes with the Goods, stating the Order number, the nature and quantity of the Goods, and how and when the Goods were dispatched. All consignments of the Goods to Buyer shall include a packing note, and, where appropriate, a “Certificate of Conformity”, each showing the Order number, the nature and quantity of the Goods (including part numbers).
4. BUYER’S PROPERTY. All patterns, dies, molds, tools, drawings, models, materials and other items supplied by Buyer to Seller for the purposes of fulfilling an Order shall remain the property of Buyer, and shall be at the risk of Seller until returned to Buyer. Seller shall not remove Buyer’s property from Seller’s custody, nor allow is to be used (other than for the purpose of fulfilling the Order), seized or sequestered.
5. DELIVERY. Time is of the essence in fulfilling the Order. Seller shall deliver the Goods to and/or perform the Services at the premises specified in the Order on or before the delivery date shown on the Order, or if no date is specified, within a reasonable time. If Seller cannot deliver by the agreed date, Seller shall make such special delivery arrangements as Buyer may direct, at Seller’s expense, and such arrangements shall be without prejudice to Buyer’s rights under the Order. Buyer may request postponement of delivery of the Goods and/or performance of the Services, in which case Seller shall arrange for any required safe storage at Seller’s risk.
6. PRICES AND PAYMENT. The price of the Goods/Services shall be as stated in the Order and shall be exclusive of any applicable VAT (which shall be payable by Buyer per a VAT invoice), and inclusive of all charges for packaging, packing, shipping carriage, insurance, duties, or levies (other than VAT). Buyer shall pay for delivered Goods/Services within 60 days of receipt of a valid VAT invoice from Seller, unless otherwise stipulated in the Order, provided the Goods/Services have been delivered and unconditionally accepted by Buyer. Even where Buyer has made payment, Buyer reserves the right to reject, within a reasonable period after they have been supplied to Buyer, the whole or any part of the Goods/Services, if they do not comply in all respects with the Order, and in such case, Seller shall upon demand refund all monies paid by or on behalf of Buyer in respect of such Goods/Services and collect any rejected Goods.
7. PASSING OF RISK/TITLE. Without affecting Buyer's rights to reject Goods, title in Goods shall pass to Buyer on delivery. Risk in Goods shall only pass to Buyer when accepted by Buyer. If Goods are rejected by Buyer after payment for them, title in such Goods shall only revert to Seller on receipt by Buyer of a full refund of the sum paid for such Goods.
8. TESTING AND INSPECTION. Buyer reserves the right to test/inspect Goods/Services prior to or on receipt of delivery of same. Seller, prior to delivery of Goods/Services, shall carry out and record such tests/inspections as the Buyer may require, and supply to Buyer free-of-charge with certified copies of all records taken thereof. Without limiting the effect of the preceding sentence, if a British or International standard applies to the Goods/Services, Seller shall test/inspect the relevant Goods/Services in strict accordance with that standard.
9. SUBCONTRACTING/ASSIGNMENT. Seller shall not subcontract or assign any part of this Order without Buyer’s prior written consent. Buyer may assign the benefits and obligations under this Order to any person.
10. WARRANTIES. All conditions, warranties and undertakings on the part of Seller and all rights and remedies of Buyer, expressed or implied by common law or statute shall apply to the Order, including but not limited to fitness for purpose, and merchantability, on the basis that Seller has full notice of the purposes for which Buyer requires the Goods/Services. The Goods shall conform with specifications/statements made by Seller, and all relevant codes of practice, guidelines, standards and recommendations made by trade associations or other bodies including all applicable British and International Standards, and be in accordance with best industry practices. Goods shall be of good and sound materials and first-class workmanship, free from all defects. Services shall be supplied with all due skill and care, and on the basis that Seller holds itself out to be expert in every aspect of performance of the Order. Seller warrants specifically that it has the right to pass title in the Goods, and that the Goods are free from any charge, lien, encumbrance or other right in favour of any third party. Seller’s warranties shall run for 18 months from delivery of the Goods, or performance of the Services.
11. INDEMNITIES. Seller shall defend and indemnify Buyer from and against any losses, claims and expenses (including attorneys’ fees) arising from:
(a) any personal injury or damage to property caused by Seller, its agents, servants or employees or by the Goods and/or Services; and
(b) any infringement of any intellectual or industrial property right relating to the Goods and/or Services, other than where such infringement relates to a design furnished solely by Buyer.
In the event of any loss/claim/expense arising under (b), Seller shall, at its expense and Buyer’s option, either make the Goods non-infringing, replace them with compatible non-infringing Goods or refund in full the amounts paid by Buyer in respect of the infringing Goods.
12. TERMINATION. Without prejudice to any rights or remedies to which it may be entitled, Buyer may terminate the Order with immediate effect without any liability in the event of any of the following: (a) Seller makes any voluntary arrangement with its creditors or becomes subject to an administration order, becomes bankrupt, goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); (b) an encumbrancer takes possession of or is appointed for all or any part of the assets or undertakings of Seller; (c) Seller commits a breach of its obligations under the Order and fails to rectify such breach (where remediable) within twenty-eight (28) days of receipt of a notice in writing from Buyer requiring remedy; (d) Seller ceases or threatens to cease to carry on business or becomes insolvent; or (e) Buyer reasonably apprehends that any of the events mentioned above are about to occur in relation to Seller and notifies Seller accordingly. Furthermore, Buyer shall be entitled to terminate the Order at any time for any reason by providing ten (10) days’ written notice to Seller.
13. CONFIDENTIALITY. Seller shall not, and shall ensure that its employees, agents and sub-contractors do not, use or disclose to any third party, any information relating to Buyer’s business, including but not limited to specifications, samples and drawings, which may become known to Seller through its performance of the Order or otherwise, save only that such information may be used as necessary for the proper performance of the Order. Upon completion of the Order, Seller shall return and deliver to Buyer forthwith all such items and copies of the same. Seller shall not, without Buyer’s prior written consent, use Buyer’s name or trademarks in connection with the Order, or disclose the existence of the Order in any publicity materials.
14. GOVERNMENT CONTRACTS. If it is stated on the face of the Order that it is in aid of a contract placed with Buyer by a Department of China’s Government, the conditions set out in the Appendix hereto shall apply to the Order. In the event that any conditions in the Appendix conflict with conditions herein, the former shall take precedence. Seller confirms that prices charged under the Order do not exceed those charged for similar goods delivered by Seller under a direct contract between a Department of China’s Government and Seller. References to the Buyer in any contract between the Buyer and a Department of China’s Government shall be deemed to be references to the Seller for the purposes of these Terms and Conditions
15. HAZARDOUS SUBSTANCES. Seller shall advise Buyer of any information about substances that shall be subject to the Montreal Protocol, which might be the subject of the Order. Seller shall comply with all applicable regulations concerning substances hazardous to health, and provide Buyer with such information about such substances supplied under the Order as Buyer may require for the purpose of discharging its obligations under such regulations, or to otherwise ensure Buyer is aware of any special precautions necessary to avoid endangering the health and safety of any person in receiving and/or using the Goods.
16. LAW. The Order shall be governed by English Law, and both Parties shall submit to the exclusive jurisdiction of the Chinese Courts.
17. ORIGIN CERTIFICATION; CONFLICT MINERALS COMPLIANCE. Seller shall provide Buyer with a certificate of origin for each of the Goods sold hereunder and such certificate shall indicate the origin rule that the Seller used in making the certification.
18. GENERAL. No waiver by Buyer of any breach of the Order by Seller shall be considered as a waiver of any subsequent breach by Seller of the same or any other provision. If any provision hereof is held by a competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions shall not be affected. Clauses or other provisions expressed or implied to survive expiry or termination shall so survive including the following: clauses 10, 11 and 13. Notices required to be served hereunder shall be in writing and may be delivered by hand, sent first class post, or sent by facsimile transmission to the address of the other party appearing in the Order or any other address notified in writing from time to time by the parties.