1 General
1.1 Conflicting business conditions: These General Terms and Conditions (“GTC”) shall exclusively apply to all contracts, including all future contracts with the Customer. Other conditions shall not become a part of the contract even if we do not expressly object to such conditions. Customer may claim validity of additional agreements only before or upon conclusion of the contract and only on our immediate written confirmation.
1.2 Offers, right to make changes: Our offers are subject to confirmation, which can only be changed upon our consent. FOR ANY CHANGE OF ORDER OCCURRING AFTER ORDER CONFIRMATION WAS SENT WE SHALL BE ENTITLED TO AN ADMINISTRATIVE SURCHARGE OF 20 % OF THE NET VALUE OF THE POSITION CHANGED, HOWEVER NOT LESS THAN 1,000 RMB. Simultaneously, we reserve the right to make technical improvements to our products.
1.3 Recording of data: We may store and process data necessary to carry out the contract.
1.4 Offset and retention: The Customer shall not be entitled to offset or retain his claims against any other claims but those which are acknowledged, uncontested or final.
1.5 Rush orders / small orders: Orders having a value of less than 1,000 RMB are subject to a minimum order surcharge of 200 RMB. Delivery is made in packaging units (PU) as per our valid price list. For deliveries effected within five (5) working days or for order values below 5,000 RMB, we reserve the right to ship and invoice immediately waiving the requirement for an order confirmation.
1.6 Place of jurisdiction and governing law: Both parties agree to settle any dispute under these GTC by way of friendly negotiation. In case of failure of those negotiations both parties agree to submit to arbitration of the China International Economic and Trade Arbitration Commission in Shanghai, according to the China International Economic and Trade Arbitration Commission Arbitration Rules. The results of the arbitration shall be final and binding on both parties. The place of the arbitration shall be Shanghai. The language to be used in the arbitral proceedings shall be English.
Chinese law shall apply exclusively under the exclusion of the conflict of laws principles of Private International Law and the UN Convention on Contracts for the International Sale of Goods (CISG).
2 Delivery
2.1 Place of performance shall be our warehouse in Shanghai, P.R.C.. The risk is transferred to the Customer as soon as the goods have been packed and are available for pick-up (ex works Shanghai warehouse – Incoterms 2020 EXW Shanghai warehouse). This shall also apply to partial deliveries, deliveries to a consignment location and all deliveries where we have agreed to provide additional services such as dispatch, transport packaging, insurance, export or installation.
2.2 Should we have accepted a call or blanket order, the Customer shall be obligated to request delivery of the entire order quantity within twelve (12) months from the order date.
2.3 Should there be any delay in the Customer's acceptance of a shipment we may, at our own discretion, have the products stored at Customer’s expense or, after providing a warning and setting a deadline, sell the products for the Customer’s account.
3 Delivery period, Delay
3.1 Indicated delivery periods are ex works Shanghai warehouse. Delivery deadline shall commence upon Customer's receipt of our order confirmation and after settlement of all technical questions and after we have received all necessary documents, such as diagrams, permits, Customer required releases and all previously agreed upon advances and payments. The delivery deadline is deemed to have been met if the goods have been packed and made available for pick-up prior to the expiration of the delivery deadline. All deliveries are subject to the punctual delivery of required materials from our suppliers to our warehouse.
3.2 In case of force majeure, such as natural disasters, pandemics, wars, riots, strikes, lockouts, operating breakdowns, shortages of raw materials or means of production for which we are not responsible, including delayed deliveries or failure to deliver by upstream suppliers, we shall immediately inform the Customer of such and simultaneously notify the Customer of a foreseeable provisional new delivery deadline, which shall be granted by the Customer as reasonable period of grace. The Customer shall release us from our obligation to deliver if delivery becomes impossible as a result thereof. We are considered not to be responsible for the aforementioned circumstances, even where they occur during an existing delay. The same applies in case of additional or amended services or products requested by the Customer.
3.3 OUR DELIVERIES SHALL NOT BE DEEMED TO BE IN DEFAULT UNLESS THE CUSTOMER HAS SERVED UPON US A WRITTEN WARNING INDICATING THE DELAY AND AN APPROPRIATE GRACE PERIOD AND SUCH GRACE PERIOD HAS ELAPSED. The Customer shall be obligated to promptly notify us in writing of any consequences of delay in delivery or service.
3.4 IN THE CASE OF REQUESTED DAMAGES FOR DELIVERY DELAYS, OUR LIABILITY FOR DAMAGE COMPENSATION SHALL BE LIMITED TO 5% OF THE NET VALUE OF OUR DELAYED DELIVERY OR SERVICE.
The limitation does not apply in the case of willful intent, gross negligence and/or damage to life, body or health.
4 Th Prices, Terms of Payment
4.1 Prices quoted shall be ex-works Shanghai warehouse including VAT, if applicable. Charges for packaging, transport, freight and insurance shall be at the Customer’s expense. All prices exclusive of costs for returning, recycling, and disposal of used equipment.
4.2 Invoices shall be paid in full, without deductions and must be credited to our bank account in RMB immediately or by the due date indicated on the order confirmation or for lack of order confirmation as per the order. Bills of exchange and cheques will not be accepted.
4.3 We retain, at our sole discretion, the right at any time to deny any extension of credit to either new or existing customers and/or to request payment in full in advance of any dispatch.
4.4 IF THE PERIOD BETWEEN CONCLUSION OF THE CONTRACT AND DELIVERY IS LONGER THAN TWO (2) MONTHS, WE RESERVE THE RIGHT TO DEMAND AN EXTRA CHARGE AT OUR DISCRETION, CORRESPONDING TO OUR COST INCREASE.
4.5 No products shall be returned without our prior written authorization. DULY AUTHORIZED RETURNS ARE SUBJECT TO AN INSPECTION- AND PROCESSING FEE OF 20% OF THE INVOICED VALUE (1,000 RMB MINIMUM).
4.6 SHOULD THE CUSTOMER BE IN DEFAULT OF OUR PAYMENT TERMS, PAYMENT OF ALL OF OUR RECEIVABLES SHALL BE IMMEDIATELY DUE IN FULL AND WE SHALL NOT BE OBLIGED TO MAKE ANY FURTHER DELIVERIES REGARDLESS OF THE TERMS PRESCRIBED IN CURRENT DELIVERY CONTRACTS.
4.7 Should the Customer be in default of payment, default interest on arrears at a rate legally applicable shall be due and payable, subject to any further claims for damages. If Customer’s financial circumstances change for the worse to a not only insignificant degree, we have the right to deny any continuation of our performance and to claim cash in advance.
4.8 We reserve the right to offset accounts payable to the Customer, such as credit notes, against our claims against the Customer.
5 Retention of Title
5.1 Products delivered shall remain our property until the complete and unconditional payment of all of our claims against the Customer. Should there exist any further claims against the Customer, we reserve our proprietary rights until Customer’s complete payment of these claims.
5.2 The Customer shall neither consume products nor merge nor inseparably connect products subject to retention of title with other objects, which a third party may have rights to. If products subject to retention of title, however, become a component of a new object (e.g. through the connection with other objects), then we shall be a direct proportional co-owner of this object even if it constitutes a new legal entity. Our proportion of co-ownership shall be based on the relation of the invoice value of the conditional products to the value of the new object at the time of the connection.
5.3 In case of default of payment or if payments are not carried out, cancelled or revoked for whatever reason, we shall be authorized to withdraw from the contract, and/or to demand the return of any products subject to retention of title being in the possession of the Customer .
6 Warranty, Liability for Spare Parts
6.1 We warrant that our products are free from defects in materials and workmanship at time of risk transfer. The required quality, durability and use of our products are based solely on the written contractual specification, product description and/or operating manuals. Any information beyond this and in particular in preliminary discussions, advertisement and/or referenced industrial standards shall only become a part of the contract if they are expressly referenced in writing.
6.2 If the Customer requires the products for purposes other than those defined in clause 6.1, Customer must check before use if the products are suitable for such purposes - including all aspects pertaining to product safety - and Customer is required to ensure that products comply with all relevant technical, legal and official regulations and requirements. We shall not be liable for the fitness of our products for any application not expressly confirmed by us in writing. Further we shall not be liable for the accuracy of designs, specifications or materials furnished or specified by the Customer and thus have no particular testing obligation. The observation of safety-related and occupational health regulations depends on the place and conditions of the product’s use. The observation of these regulations is, therefore, the responsibility of the Customer.
6.3 The exclusive remedy of Customer in the event of a breach of the foregoing warranty is either replacement or repair (at our choice) of any defective product. No goods shall be returned to us for repair or replacement pursuant to the warranty without prior written approval. If the Customer uses the delivered products with materials that are harmful to the environment, poisonous, radioactive or dangerous in any other way, Customer shall be obliged to clean them prior to any return shipment. All cleaning, decontamination, and shipping costs shall be the sole responsibility of Customer together with any damage to the goods that might occur from transit to or from our warehouse.
6.4 The Customer shall be obliged to promptly and carefully check incoming products - also for product safety - and to notify us in writing of any apparent deficiencies within five (5) working days from receipt of products, and of any hidden defects as soon as they become apparent,. We shall not be liable if the defect is insignificant in regard to the Customer’s interests or is based on a circumstance that is within the Customer’s scope of responsibility. The Customer must notify the carrier immediately of any transport damage. Non-observation of the obligation to check and give notice of defects will void any and all warranty claims for those deficiencies.
6.5 UNDER NO CIRCUMSTANCES DOES OUR RESPONSIBILITY OR WARRANTY EXTEND TO ANY PRODUCTS OTHER THAN THOSE MANUFACTURED OR DISTRIBUTED BY US; NOR DOES OUR LIABILITY EXTEND TO ANY PRODUCTS, ARTICLES OR PARTS WHICH ARE FURNISHED BY CUSTOMER OR OBTAINED FROM OTHER MANUFACTURERS OR SUPPLIERS AT CUSTOMER’S REQUEST AND/ OR IN ACCORDANCE WITH CUSTOMER’S SPECIFICATIONS. ALL WARRANTY CLAIMS SHALL BE FORFEITED AS SOON AS CUSTOMER ITSELF HAS REPAIRED OR IMPROVED THE PRODUCT OR HAS TRIED TO CURE THE DEFECT WITHOUT OUR KNOWLEDGE AND WITHOUT OUR CONSENT.
6.6 In the event that we are unwilling or unable to repair or replace any defective or non-conforming product due to change in technical standards, technical modifications, non-availability of material or parts, or any other reason, Customer shall be entitled to a return of the purchase price paid for such product, as its sole exclusive remedy.
6.7 THE WARRANTY SET FORTH IN SECTION 6 IS MADE IN LIEU OF ALL OTHER WARRANTIES (WHETHER EXPRESS OR IMPLIED), RIGHTS OR CONDITIONS, AND CUSTOMER ACKNOWLEDGES THAT EXCEPT FOR SUCH LIMITED WARRANTY, THE PRODUCTS ARE PROVIDED “AS IS.” WE SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE, TO THE MAXIMUM EXTENT PERMITTED BY LAW.
6.8 The warranty period for all our products shall be one year and starts at the time of delivery of products to the Customer. The limitation period in respect of replaced or repaired products shall only commence anew if we admitted the defectiveness of the replaced or repaired products.
7 Limitation of Liability
7.1 We shall not be held responsible for the consequences of the improper handling, use, maintenance and operation of the products as well as for the consequences of normal wear and tear (in particular in glass parts, such as pistons, seals, valves, breakage of plastic and ceramic parts, diaphragms, gaskets etc.), chemical, electrochemical or electrical influences or the failure to follow the instructions in the operating instructions.
7.2 IN NO EVENT SHALL WE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY CUSTOMER OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, PRODUCT LIABILITY OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7.3 OUR TOTAL CUMULATIVE LIABILITY UNDER THESE GTC AND ANY PRODUCT COST QUOTATION SHALL IN NO EVENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID (LESS ANY REFUNDS OR CREDITS) BY CUSTOMER FOR THE PRODUCT PURSUANT TO WHICH THE CLAIM AROSE, UNLESS OTHERWISE STIPULATED BY MANDATORY LAW. IT IS AGREED AND ACKNOWLEDGED THAT THE PROVISIONS OF THESE GTC AND OUR PRICING CORRECTLY REFLECT THE RISKS BETWEEN CUSTOMER AND USWHICH SHOULD BE REGARDED AS THE BASIS OF THE TRANSACTION. BETWEEN CUSTOMER AND US.
7.4 Customer covenants and agrees that each of his customers shall be subject to a written agreement that contains language consistent in all material respects with the limitation of liability and exclusion of damages contained in this Section 7, limiting the liability of Customer and types of damages that can be pursued against Customer by his customers.
8 Software use
8.1 As far as software is contained in the delivery, the Customer will be granted the non-exclusive right to use the software delivered including its documentation. Use of the software on more than one system is prohibited.
8.2 The Customer may only copy, transfer, translate or convert the software from object code to source code for backup purposes. Reverse engineering or modifying of software is prohibited. The Customer is obliged to not remove our and/ or the Software Supplier’s instructions, especially copyright entries, or to change them without our prior permission.
8.3 All remaining rights to the software and the documentation thereof, including copies, remain with us and/or Software Supplier. Granting of sublicenses is strictly forbidden.
9 Installation
9.1 Fixed installation prices shall apply to the installation work as agreed upon. Otherwise, our price list for installation and service costs shall apply.
9.2 As far as required the Customer shall be responsible for providing the following at his own expense: lighting, motive power, compressed air, water, electrical power for welding, heating including any required connections, electrical installations for the connection of the products delivered by us, the required devices (e.g., hoisting equipment), a lockable room for storing material, tools and clothing during the installation.
10 Spare Parts, Maintenance/Repair and Calibration
10.1 For spare parts, maintenance, repair and calibration services our current repair and replacement price list shall apply.
10.2 In case we have an obligation to maintain/deliver spare parts, the obligation shall be limited to a period of three (3) years from the date of delivery of the products. As far as spare parts are not manufactured by us or are no longer available on the market, e.g. electrical components, or as far as raw materials required for spare part production are no longer available, our obligation to supply spare parts shall expire.
10.3 Calibration and servicing shall be performed by using our original disposables and spare parts.
10.4 Any servicing and/or calibration service shall only be performed upon presentation of a proper and duly signed declaration on the absence of health hazards for each product presented for service and or calibration.
10.5 Servicing- and/or repair costs of less than RMB 500 may be invoiced without prior cost estimate.
11 Legal reservation, Industrial proprietary rights, secrecy
11.1 We reserve ownership in any of the tools, molds, samples, diagrams, commercial or technical documents produced or provided by us as well as all copyrights, proprietary and intellectual property rights in any such item. This also applies if the corresponding costs are wholly or partly borne by the Customer. The Customer may use any of the above only as agreed to in writing. The Customer may neither manufacture nor have the contractual items manufactured without our prior written approval.
11.2 If we deliver products according to designs or other specifications (models, samples etc.) specified by the Customer, the Customer shall be liable towards us in case of for ensuring that industrial property rights or other rights of third parties are not infringed through their manufacturing and delivery. If the Customer is at fault, he/she must compensate us for all damages resulting from such legal infringements.
11.3 All information acquired through the business relationship with us which is not deemed to be public knowledge shall be deemed proprietary and must not be disclosed to any third party.
12 Language
The contractual language is Chinese and/or English. In the event of a discrepancy between the English and Chinese version of these GTC, the English version shall prevail.
Status as of: December 2020