The contract is based on the following General Terms and Conditions only. They shall also apply if the subject matter of the contract is creation of a work.
No terms and conditions of purchase of the Customer will be accepted. They do not form part of the contract.
These General Terms and Conditions shall also apply to future transactions without an explicit agreement being required in the individual case.
These General Terms and Conditions shall not apply if the Customer is a consumer within the meaning of Article 2 of the Law of the People's Republic of China on the Protection of Rights and Interests of Consumers.
Conclusion of contract
The Supplier may send non-binding offer to the Customer as required. In the event that the said offer quotes quantities, dimensions or weights or includes drawings, these are deemed to be approximate and shall not be binding. If the Customer requires compliance with exact dimensions, it shall make reference to this in its order. The Order provided by the customer will be considered as the binding offer hereunder.
Plans, drawings and other documents shall be handed to the Customer for the purpose of conclusion of the contract when required by the Customer and, if applicable, its execution. The Supplier reserves the right of ownership over the said plans, drawings, and any other documents provided to the Customer. No right of use will be granted for other than the purpose of conclusion of the contract. The Customer undertakes that the said plans, drawings, and other documents may not be made accessible to third parties. The Customer is obliged to return or destroy such documents as directed by the Supplier in the event that the contractual negotiations fail or the documents are no longer required for execution of the contract. The Customer shall confirm in writing that it complied with such instructions.
Samples shall only be provided against payment.
Insofar as the Customer provides samples, plans, drawings and other documents, Clause 2.2. shall apply mutatis mutandis. The Customer shall be liable towards the Supplier if such samples, plans, drawings or other documents infringe the rights of any third party. The Supplier is under no obligation to verify whether such materials infringe any third party rights.
The contract shall come into existence by the order placed by the Customer and confirmation of the order by the Supplier. The order confirmation by the Supplier shall apply to the content of the contract unless where the confirmation of the order by the Supplier makes a non-material alteration to the contents of the offer and the Customer raises an objection to this within three working days of receipt. In the absence of confirmation of the order, acceptance of the Customer's offer of a contract shall take the form of execution of the order.
Quantities ordered may have a tolerance of 10% in either direction as agreed by the Parties. The quantity invoiced shall in all cases by the quantity actually supplied.
Any and all amendments or supplements to the contract shall require the written form as agreed by the parties. This shall also apply to any agreement to set the requirement of the written form aside.
Prices quoted are net prices, to which the statutory value-added tax is to be added. Packing and shipping costs are not included and will be invoiced to the Customer also in the case of a DAP delivery.
In the event that the prices of raw materials increase after conclusion of the contact, the Supplier has the right to increase the agreed prices correspondingly. This shall not apply if the period between conclusion of the contract and the time of delivery in accordance with the terms the contract is four months or less. In the event that the price increase is over 10%, the Customer can withdraw from the contract within two weeks of announcement of the price increase. The Supplier shall be allowed a right of withdrawal in the event that as a result of the increase in the price of raw materials the agreed price would have to be increased by 20% or more.
The delivery period shall, in cases of doubt, be upon receipt of the Customer's order, not, however, prior to clarification of all details needed for performance of the contract and provision of all documents and parts to be obtained by the Customer. It shall be extended by any period required for completing import and export formalities. It shall also be extended by any impediments beyond the control of the Supplier (industrial action or similar) at the business of the Supplier or his sub-suppliers or sub-contractors as well as for the period of any retention rights of the Supplier.
The Supplier shall have a right of retention of title as long as the customer has not fulfilled its obligation arising from this or any other contract between the Parties unless the obligation is of a very minor nature only and does not impair performance of the contract by the Supplier.
The Customer only has the right to reject part deliveries if he cannot reasonably be expected to accept them, also taking the legitimate interests of the Supplier into account and notifying the Supplier for such act.
In the event that shipping is delayed at the request of the Customer, the Supplier can demand advanced payment in the manner agreed.
The delivery period has been complied with if the goods were shipped on time or the Customer was notified that they were ready for shipment.
Shipment shall be DAP (2010 Incoterms).
The route and mode of shipment shall be decided by the Supplier as its reasonably exercised discretion.The Supplier also has the right to deliver COD; charges incurred in this connection shall be paid by the Customer.
Goods ready for shipment shall be called off by the Customer without delay.In the event that this does not occur, the Supplier can put the goods in storage at the expense of the Customer.
The Customer shall file a complaint with the shipping company in respect of any visible transport damage and detail them in a record to be drawn up with the shipper jointly.
Gerät der Kunde in Zahlungsverzug oder werden nachträglich Umstände bekannt, die bei verständiger Würdigung die Gefahr begründen, daß der Kunde der Zahlungspflicht nicht nachkommen wird, so kann der Lieferer Vorauskasse verlangen.
The agreed price shall be due for payment strictly net and without any cash discounts after receipt of an invoice.
The Customer has no right to offset claims or rights of retention exist. The Supplier shall retain the title of the goods if the Customer fails to make the due payment or perform certain contractual obligations.
In the case of payment default and the goods are delivered to the Customer, the Supplier has the right to prohibit resale; reuse or processing the goods supplied and demand their return to it or other rights or obligation as stipulated by applicable law.
In the event that the Customer defaults on payments or circumstances became known subsequently that, given a reasonable assessment of the situation, give rise to the risk that the Customer will not discharge its payment obligation, the Supplier can require advance payment.
Default in performance and damages
If any defects exist, a complaint shall be filed within 30 days upon receipt of the goods. Where the Customer is slow in notifying the Supplier, the quality and quantity of the goods shall be deemed to be in conformity with the parties' agreement. Regarding defects that cannot be detected even after the said inspection period of the goods upon receipt, a complaint shall be filed within six (6) months on which the Customer became aware or ought to be aware that his rights and interests had been infringed, but, if the quality of the goods is subject to a quality guarantee period, then the quality guarantee period shall apply. The complaint shall be made in writing, in advance by fax. The Customer shall give the Supplier an opportunity to examine the goods.
In the event that the Customer has a claim to subsequent performance, the Supplier can, at its discretion, rectify the defect or supply replacement goods. In the event of failure or refusal, the Customer can withdraw from the contract or reduce payment.
Claims arising from a defect shall lapse due to the passage of time one year after delivery of the goods.
The customer shall only have claims to damages in the case of intent or gross negligence on the part of the Supplier. This limitation of liability shall not apply in the case of damage arising from loss of life, bodily injury or damage to health, nor shall it apply to breach of a duty that is essential to the contract (cardinal duty).
Retention of title to ownership
For the sake of clarity, where the Customer fails to pay or fails to perform other major obligations under the contract hereunder, the Supplier is entitled to retain ownership of the subject matter until the Customer fulfils its corresponding obligations. In the event that retention of title to ownership is without legal effect under the law applicable at the seat of the Customer, the Customer shall draw the attention of the Supplier to this explicitly. In such a case, the Customer is obliged to offer the Supplier equivalent collateral. Instead, the Supplier can require advance payment.
The Customer is permitted in a manner that can be revoked at any time to sell, to use or process the goods in the ordinary course of business.
In the event of resale, the Customer hereby assigns it claims against its own customer to the Supplier. The Supplier hereby accepts the assignment. The Customer is permitted in a way that may be revoked at any time to collect the claim. The Supplier has the right to disclose the assignment as soon as the Customer does not discharge its payment obligations towards the Supplier punctually. The Customer is obliged to furnish the Supplier with information on the name and address of the Customer of the former and on the amount of the payment claim assigned and the time it was due. It shall make every effort to support the Supplier in collecting the claim. In the event that resale takes place in conjunction with other objects, the assignment shall, as a departure from sentence 1, be confined to that part of the payment claim that relates to the relationship between the invoice amount for the conditional goods and the total claim the Customer has against its own customer.
In the event that the conditional goods are treated or processed, the Parties hereby agree the following: The Supplier shall become co-owner of the new goods. The size of the co-ownership share shall be calculated according to the proportion of the conditional goods to the value of the new goods. Clause 7.3 shall apply mutatis mutandis.
Insofar as the value of the objects serving as collateral exceeds 120% of the payment claim to be collateralised, the supplier is obliged at the request of the Customer to release objects serving as collateral at its discretion by transferring conditional ownership to the Customer or retransferring the claims against the Customer's own customer.
In the case of loss, attachment, destruction or damage to the objects serving as collateral, the Supplier shall be notified without delay. The Customer hereby assigns its claims arising therefrom against any third party, in particular against the party causing the damage or against an insurer, to the Supplier.
Tools or moulds that the Supplier manufactures or obtains for performance of the contract shall remain the property of the Supplier. This shall also apply if the Customer is invoiced for the above.
In the case of contracts to supply the Customer on a recurring basis, it shall plan and call off the monthly quantities sufficiently well in advance. In the event of failure to do so, the Supplier has, after setting an additional period, the right to set the quantities to be delivered monthly itself and then to deliver these quantities.
In the event that the agreed total quantity is exceeded by the sum of individual quantities called off, the Supplier has the right to make supply of the additional quantity dependent upon a new price agreement.
The contract is governed by PRC law. The UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
Where any dispute or difference occurs in connection with, or arising out of, the contract hereunder, the parties shall endeavour to resolve it by friendly consultations. If within 30 (thirty) days following the date on which the request is given, the dispute cannot be settled through consultation, the dispute shall be submitted to arbitration in Shanghai pursuant to the then effective arbitration rules and under the auspices of the Shanghai International Arbitration Centre upon the request of any Party with notice to the other Party.
The language of arbitration shall be English. The arbitration award shall be final and binding on the Parties, and the Parties agree to be bound thereby and to act accordingly. The costs of arbitration and the costs of enforcing the arbitral award (including witness expenses and reasonable attorneys' fees) shall be borne by the losing Party, unless otherwise determined by the arbitral award.