General terms and conditions of business
Section 1 General provisions, Validity
- These general terms and conditions of sale (T&Cs) shall apply to all our business relationships between us (i.e. E Fluid Technology Co., Ltd) and our business partners (hereinafter also known as Client). They shall also apply for all future goods and services or offers made to our Client, even if they are not agreed again separately, esp. when the Clients receive these T&Cs and do not file the explicit written objection during performance of the specific orders / contracts.
- Our T&Cs shall in particular apply to contracts on the sale and/or supply of movables (hereinafter also known as goods) regardless of whether we manufacture the goods ourselves or buy them in from sub-suppliers.
- Only Our T&Cs shall apply. If the Client’s general terms and conditions of business differ from, or are contrary to our T&Cs, they shall become an integral part of the contract only when we have expressly agreed to them, in particular, such general terms and conditions and/or such standard contractual clauses of the Client may apply only after signing these relevant documents by our legal representative and affixing our official company stamp.
- Individual agreements made in an individual case with the Client (including side agreements, supplements and amendments) shall in all cases prevail over these T&Cs. A written contract or our written confirmation shall be definitive for the content of such agreements.
- Legally relevant declarations and notices which are to be submitted to us by the Client after the contract is signed (e.g. periods of time to be set, notification of defects, declarations of withdrawal from the contract or reduction of the purchase price) must be made in writing for the purpose of legal validity.
- References to the validity of statutory laws and regulations shall only be significant for the purposes of clarification. Consequently the statutory laws and regulations shall also apply, insofar as they have not been directly modified or expressly precluded in these T&Cs, even without such a clarification.
Section 2 Offer, Conclusion of the contract
- Our offers shall be subject to change without notice and non-binding, provided that they have not been expressly marked as being binding or include a specific period of acceptance. This shall also apply if we have handed over catalogues, technical documentation (e.g. drawings, plans, electronic files, calculations, costings, references to DIN standards), other product descriptions or documents – including those in electronic format, to the Client.
- An order placed by the Client for goods shall be regarded as a binding offer to enter into a contract. Provided that there is nothing stated otherwise in the contract, we shall be entitled to accept this offer to enter into a contract within 30 days from receipt by us.
- Acceptance may be stated either in writing, whereby written form (e.g. by order confirmation) shall suffice, or by means of delivering the goods to the Client.
- The contract entered into in writing including these T&Cs alone shall apply to the legal relationship with our Client. This contact shall describe all arrangements between us and the Client. Verbal promises made by us prior to the contract being signed are not legally binding. Verbal arrangements shall be replaced by the written contract, unless they do expressly show that they are to continue to apply on a binding basis. Public comments (e.g. advertising statements, general sales promotion) made by us or by other third parties (e.g., manufacturers) shall not be regarded as an agreement on features and in particular do not include any promise of a guarantee.
- Information from us about the goods or services (e.g. technical data, weights, dimensions, tolerances, load capacity) as well as presentations, e.g. in the form of drawings or diagrams shall only approximate values, unless their use for the contractually assumed purpose requires precise conformity. Given this, it is in particular not guaranteed characteristics, but merely the description or identification of our goods or services.
Customary deviations in the trade and the deviations which arise as a result of legal provisions or which constitute technical improvements are allowed, provided that they do not impair the usage for the contractually intended objective. The same shall apply mutatis mutandis for the replacement of parts (e.g. parts of sub-assemblies) with equivalent parts.
- Amendments to or supplements to the contractual agreements including these T&Cs must be made in writing to be valid. Apart from our directors and authorised signatories, our employees are not entitled to make verbal arrangements differing from written amendments and supplements. Messages sent by telecommunications (e.g. e-mails or fax messages) shall satisfy the requirement for written form, provided that the copy of the signed declaration is forwarded.
Section 3 Delivery, Passing of risk, Acceptance, Default in taking delivery, Part-deliveries
- The terms of delivery are ex works, i.e. delivery at our works, which also refers to the place of performance for the delivery and any cure which may have to be rendered. At the Client’s request and expense the goods shall be despatched to another destination (delivery to a place other than the place of performance). Unless an agreement has been made otherwise, we shall be entitled to specify the method of despatch ourselves (in particular transport company, despatch route and packing). If we are responsible for installation work, the place of fulfilment shall be that place at which the installation work has to be carried out.
- This risk of accidental loss, accidental deterioration of the goods shall pass over to the Client upon delivery of the goods. If the goods sold are to be delivered to a place other than the place of performance the risk of accidental deterioration of the goods as well as the risk of delay shall pass over to the Client as soon as the goods are delivered to the haulier, the freight forwarder or to any other person or organisation appointed to despatch the goods. Insofar as acceptance test has been agreed, passing of risk shall be dependent upon the successful acceptance test. The statutory regulations in contracts for work and services law shall, moreover, also apply for an agreed acceptance test. If the Client delays in taking delivery of the goods or delays in accomplishing the acceptance test, it shall be the equivalent in terms of the passing of risk as delivery and/or acceptance should have done.
- Insofar as acceptance test has to take place, the goods shall be regarded as having been accepted, if
- The delivery and, provided that we are also responsible for installation, installation, has been completed,
- We have notified the Client that the goods/services are ready for the acceptance test, and, pointed out the consequence that the acceptance shall be deemed as having been accomplished in this paragraph and have called upon the Client to confirm acceptance,
- After delivery or installation, 14 calendar days have passed or the Client has begun to use the goods and in this case 10 working days have elapsed since delivery or installation, and
- Our Client has failed to grant acceptance within this period of time without any justified cause.
- If the Client delays in taking delivery, if the Client is failing to co-operate or if our delivery is delayed for other reasons for which the Client is responsible, we shall consequently be entitled to demand compensation for the loss incurred including additional expenditure (e.g. storage costs). We shall charge a lump sum as compensation amounting to RMB 1,000.00 per calendar day beginning with the second day of expiry date of delivery period or – in the absence of a delivery period – with the date of notification that the goods are ready for despatch. Our right to prove that we have suffered a greater loss and our statutory rights (in particular for compensation for additional expenditure incurred by us, reasonable compensation, right of termination) shall remain unaffected. The lump sum is however to be offset against additional claims for money.
- We shall be entitled to deliver part deliveries, if the part delivery can be used by our Client as part of achieving the use intended by the contract, we have guaranteed that the remaining goods ordered will be supplied and our Client does not incur any considerable additional expenditure or additional costs as a result of this (unless we declare that we are prepared to take over such costs).
Section 4 Delivery period, Default in delivery, Call-off
- The delivery period shall be agreed individually and/or stated by us when accepting an order. Periods of time and deadlines tentatively offered for supplying goods and services shall always only apply as approximations, unless a fixed period of fixed date has been expressly agreed. Provided that this is not the case, the delivery period shall be at least 12 weeks as from the effective date of the contract. The delivery period will have been observed if the goods have left our works by its expiry, or we have notified the Client that the goods are ready for despatch. If a despatch has been agreed, delivery periods and delivery dates shall refer to the date when the goods are handed over to the haulier, freight forwarder or other third party contracted to transport the goods.
- The compliance with periods set for delivering goods and rendering services is conditional upon the requirement that our Client has fulfilled all its contractual obligations. Without prejudice to our rights in case of our Client’s delay in performance, we may demand an extension of periods set for delivering goods and rendering services or the postponement of dates for delivering goods and rendering services by the duration of the delay plus a reasonable start-up period, if our Client fails to fulfil its contractual obligations and/or responsibilities.
- Provided that we are unable to comply with binding delivery periods for reasons for which we are not responsible (non-availability of performance), we shall inform the Client of this straight away and at the same time notify the Client of a probable new delivery period. If the performance remains unavailable within the new delivery period either, we shall be entitled to cancel the contract in whole or in part. We shall refund the consideration already rendered to us by the Client straight away. For these purposes if we are not supplied on time by our sub-supplier in particular, this shall be regarded as an instance of non-availability of performance, provided that we have entered into a congruent hedging transaction and neither we nor our supplier shall be responsible for such non-availability of performance. The same shall apply mutatis mutandis if we are not obliged in a given case to procure things.
- Our delay in delivery shall be determined in accordance with the statutory laws and regulations. In all cases the Client shall however have to send us a written reminder.
- If we find ourselves in default with supplying our goods or services or if it becomes impossible, regardless of whatever reason, for us to supply goods and services, the liability on our side shall consequently be limited to paying compensation for damages in accordance with Section 9 of these T&Cs. Our rights when our performance obligation is precluded (e.g. as a result of impossibility or unreasonable to expect us to render performance and/or a cure) shall not be affected as a result.
- We cannot be held liable for impossibility of delivery or for delays in delivery, insofar as these have been caused by force majeure or other events which could not have been foreseen when the contract was signed. This shall apply, for example, for operational disruptions of all types, difficulties in the procurement of materials or power, transport delays, strikes, lawful lock-outs, labour shortages, power shortages or shortages in raw materials, difficulties in obtaining official consents required, for which we are not responsible. Provided that such events make it much more difficult or even impossible to supply goods or to render performance or the hindrance is not only of a temporary nature, we shall be entitled to terminate the contract. If hindrances are of a temporary nature, the periods of time allowed for delivery or performance shall be extended by the duration of the hindrance plus a reasonable period of time to allow for start-up. Insofar as the Client cannot be expected to accept the deliveries or performances as a result of the delay, the Client may terminate the contract by making a written statement to us to that effect straight away.
- If delivery by call-off order has been agreed, all call-off orders shall be placed by our Client latest within 12 months as from the conclusion of contract, unless an agreement has been made otherwise in writing.
Section 5 Prices, Terms of Payment, Offsetting, Discrepancies in quantities
- The prices shall be determined in accordance with the contractual agreements made with our Client. They shall apply to the scope of delivery and performance stated in the order confirmations. The prices are in RMB, quoted ex works plus the rate of value added tax in force at that time and plus packing costs. Customs duty and fees and other public duties will be added to export orders. Additional or special performances will be invoiced separately.
Provided that the agreed prices are based upon our list prices, and the goods are to be delivered only after more than four months as from the effective date of the contract, our list prices in force when the goods are delivered shall apply (minus any percentage or fixed discount which may have been agreed).
- For a sale by delivery to a place other than the place of performance (Section 3 Para. 1) the Client shall bear the transport costs ex stock and the costs of any transport insurance requested by the Client. With the exception of pallets and lattice boxes and other reusable containers, we shall not take back transport packing or any other packing/packaging, unless the Client assumes the recycling expenses and costs in this regard.
- The purchase price shall be due for payment and payable in full within14 days from presentation of invoice and delivery or acceptance of the goods, unless an agreement is made otherwise in writing. For contracts in which the value of goods to be delivered is in excess of RMB 50,000, we shall, however, be entitled to demand a down payment of 50% of the purchase price. The down payment shall be due for payment and payable within 14 days from presentation of invoice.
- The Client shall be in default when the above period of time allowed for payment expires. Default interest is to be paid at 150% of RMB benchmark lending rate of the same period published by the People’s Bank of China. We shall reserve the right to assert a claim for damages over and above the default interest above. Our entitlement to commercial interest payable from the due date of payment shall not be affected.
- Without our prior written consent, the Client shall not be have offsetting rights or rights of retention.
- If, after the contract has been entered into, it becomes apparent that our claim to the purchase price is jeopardised as a result of the Client being unable to render his performance (e.g. as a result of an application being made to open insolvency proceedings), we shall consequently be entitled under the statutory regulations to refuse performance and – if necessary after setting a period of time for the Client to render its performance – to terminate the contract (Article 68, 69 of the Chinese Contract Law). Contracts for the manufacture of non- fungible things (Special productions) we may terminate the contract immediately.
- Samples provided by us shall generally be invoiced. After a sample is approved, no defect exists if goods are supplied in compliance with such sample. If we manufacture the goods according to the specifications of samples provided by the Client, this shall not mean that we shall furnish a manufacturer’s guarantee.
Section 6 Reservation of title, Tools
- We shall reserve the title to the sold goods until all our current and future accounts from supply contracts and under a continuous business relationship have been paid in full. The goods as well as the goods replacing them covered by the reservation of title in accordance with the terms and conditions below shall be known below as "goods subject to reservation of title". Our Client shall keep the goods subject to reservation of title in safe-keeping for us free of charge.
- The goods subject to reservation of title must not be pledged or assigned by bill of sale as a security to third parties before payment for the secured claims has been made in full. Our Client has to inform us straight away in writing if, and insofar as, third parties have seized the goods subject to reservation of title, to enable us to enforce our ownership rights. Provided that the third party should not be in a position to reimburse us for the costs incurred by us in or out of court in connection with enforcing our ownership rights, our Client shall be liable to us for them.
- If the conduct of our Client is in breach of contract, in particular if it fails to pay the purchase price payable, we shall be entitled to terminate the contract in accordance with the statutory laws and regulations and/or to demand the return of the goods subject to reservation of title. The demand for the return of the goods shall not at the same time constitute the declaration that we terminate the contract. We shall, instead, be entitled to only demand the return of the goods and to reserve the right of termination of the contract. If our Client does not pay the purchase price payable, we may only assert these rights if we have set our Client a reasonable period of time beforehand to pay the purchase price and the Client has not done so or if we do not have to set such a period of time for payment by law.
- Our Client shall be entitled to process and sell the goods subject to reservation of title in a proper commercial transaction. Resale is not allowed if our Client is in arrears with making his payments to us or if an application for insolvency proceedings has been opened on the Client, such insolvency proceedings have been opened or if an application for such insolvency proceedings to be opened was rejected on account of insufficient assets as well as in cases in which the Client stops trading or stops making his payments. In each case we shall then be entitled to object to the resale of the goods subject to reservation of title for an important reason.
- If the goods subject to reservation of title are processed by our Client, they shall consequently be processed for our account and in our name as manufacturer. We shall acquire direct ownership of them or – if they are processed out of materials supplied by more than one owner, or if the value of the processed materials is higher than the value of the goods subject to reservation of title – co-ownership (fractional ownership) of the newly created thing in proportion to the value of the goods subject to the reservation of title to the value of the newly created thing. In the event that we should not acquire such ownership, our Client shall assign to us here and now his future title or – as described above – co-ownership in the newly created thing as a security. If the goods subject to the reservation of title are connected or indivisibly mixed with other things to become jointly-owned property, and if one of the other things is to be regarded as the main thing, the Client shall, insofar as the main thing belongs to it, assign to us a proportion of the co-ownership in the jointly- owned property according to the aforesaid provisions.
- In the event that the goods subject to reservation of title are resold, our Client shall assign the claims against the buyer resulting from it for security reason to us; in the event that we have co-ownership of the goods subject to reservation of title, the Client shall assign a proportion of the account reflecting the proportion of our co-ownership. The same shall apply to claims which replace the goods subject to reservation of title or arise with regard to the goods subject to reservation of title, such as, for example, insurance claims or claims based on tort law in the event of loss or destruction of the goods.
- We shall authorise our Client on a revocable basis to collect in its own name the accounts assigned to us, insofar as the Client is not in default with its payments to us, an application has not been made to open insolvency proceedings on its assets, no insolvency proceedings have been opened, or insolvency proceedings have been rejected on account of insufficient assets and our Client has not stopped trading or making payments. Under any circumstance we shall be entitled to revoke our authorisation to the Client to collect accounts.
- We shall undertake not to collect an account insofar as the Client fulfils its payment obligations to us, does not fall into arrears with its payments, an application has not been made to open insolvency proceedings on its assets, no insolvency proceedings have been opened, or insolvency proceedings have been rejected on account of insufficient assets and there is no other defect in its performance. If, however, this is the case, we may consequently demand that our Client informs us of the assigned accounts and the identity of the debtors and passes over all the information required by us to collect said accounts.
- If the marketable value of the securities exceeds our accounts by more than 20% we shall, as the request of our Client, release them as we choose.
- Even in the event that the full-cost pricing method is applied, tools shall not become the property of the Client – unless an agreement is made otherwise –. They shall remain our property.
Section 7 The Clients warranty claims
- Provided that nothing is specified otherwise below, the statutory laws and regulations shall apply for the Client’s rights in the event of quality defects or legal defects (including the wrong goods or quantity shortfalls being supplied as well as incorrect assembly or incorrect assembly instructions.
- Our liability for defects shall above all be based upon the agreement made governing the condition of the goods and/or performance service. Insofar as the condition was not agreed, assessment is to be made on the basis of the statutory laws and regulations whether or not a defect is extant (Article 61, 62 etc, Chinese Contract Law). All product descriptions constituting the subject- matter of the individual contract shall be regarded as the agreement on the condition of the goods. It shall not make any difference whether the product description comes from us, from the manufacturer or from our Client. We shall not be held liable for any public statements by the manufacturer or other third parties (e.g. advertising messages).
- The Client’s warranty claims shall be subject to the fulfilment by the Client of its statutory obligation of inspection and notification (Article 157, 158 etc., of the Chinese Contract Law). That means that the goods supplied are to be inspected carefully straight away after they have been handed over to the Client or to third parties instructed to do so by the Client. If during the inspection or subsequently a defect becomes apparent, we are to be notified of this straight away in writing. Notification will be regarded as having been made straight away if it is made within 7 working days, whereby the period of time allowed for notification will be satisfied if notification has been sent on time. Irrespective of this obligation of inspection and notification the Client shall have to notify us in writing of manifest defects (including the delivery of incorrect goods or shortfalls in quantity) within 7 working days from delivery, whereby the period of time allowed for notification will be satisfied if notification has been sent on time. If the Client fails to carry out the inspection properly, and/or notify us of a defect, the goods supplied and/or the services rendered by us shall be deemed as qualified goods and/or services in conformity with the agreement.
- If the thing supplied is defective, we may first of all decide whether to effect a rectification by remedying the defect (repair) or by supplying a fault-free thing (replacement). Our right to refuse to effect a rectification in accordance with the statutory regulations shall not be affected by the above.
- We shall be entitled to make the rectification dependent upon whether the Client has paid the purchase price due. The Client shall however be entitled to retain a reasonable part of the purchase price in proportion to the defect.
- The Client shall have to allow us the necessary time and opportunity to carry out the rectification owed, in particular the rejected goods must be handed over for the purpose of inspection and/or if necessary for a cure at the place of fulfilment. In the event that a replacement is supplied, the Client shall have to provide the defective thing with carriage prepaid to the place of fulfilment. If the notified defect is justified, we shall remunerate the Client the costs of the cheapest despatch route. This shall not apply if the costs have been increased because they are located at another place other than the place of fulfilment. If, however, it turns out that the Client’s request for a defect to be rectified is unjustified, we may demand that the costs incurred by us for this are reimbursed by the Client, unless the Client was unable to identify that the goods were not defective.
Only in urgent cases, e.g. if operational safety is at risk or to avert disproportionate damages, the Client shall be entitled to rectify the defect itself and to demand that we reimburse the Client the expenses incurred by the Client which are necessary from an objective view. We are to be informed straight away if the Client intends to carry out a repair itself, and beforehand if possible. The Client shall not be entitled to carry out a repair itself if we would have been entitled to effect a corresponding cure in accordance with the statutory regulations.
- The rectification shall not include the removal of the defective thing or reinstalling it again if we were not originally obliged to install it.
- If the rectification is unsuccessful or if a reasonable period of time to be set by the Client for the cure to be carried out has elapsed without a cure having been effected, or if such a period of time does not have to be set under the statutory regulations, the Client may terminate the contract or reduce the purchase price. The Client shall not, however, be entitled to terminate the contract on account of a minor defect which does neither impair the overall function of the delivered goods / services nor undermine the accomplishment of the main purpose of the contract.
- The Client’s claims for compensation for damages or the reimbursement of expenditure he has incurred in vain shall only exist subject to the proviso of Section 9 hereof and shall not otherwise be recognised.
- When selling used movables, no rights on account of defects and all compensation claims for damages shall be recognised. The above regulations on the exclusion of compensation claims for damages for used things shall not apply for damages arising from death, personal injury or physical harm, if we are responsible for our obligations according to the Chinese product liability laws and regulations.
- If products manufactured by other manufacturers (e.g. individual components, components of sub-assemblies) are defective and we are unable to remedy them on account of licencing or other actual reasons, we shall, as we choose, assert our warranty claims against the manufacturer and/or supplier on behalf of our Client or assign our claims to the Client. Warranty claims asserted against us shall only exist for such defects subject to other preconditions and in accordance with these T&Cs, if enforcement of the above-named claims against the manufacturer and supplier were unsuccessful in court or for example there is no prospect of success as a result of them being insolvent. During the legal dispute the period of limitation of the respective warranty claim of our Client towards us shall be suspended.
- The warranty shall not be valid if the Client modifies the item supplied without our consent or allows it to be modified by third parties and as a result of this it becomes impossible or unreasonably more difficult to rectify the defect as a result thereof. In all cases our Client shall have to bear the additional costs of having the defect rectified as a result of the modification.
Section 8 Proprietary rights – Copyrights etc.
- We shall reserve the title right and/or copyright to all the offers and cost estimates submitted by us as well as to those documents which we provide to our Client, such as, for example, drawings, diagrams, calculations, catalogues, models, tools and other documents and tools. The Client must not allow any third parties to have access to such items or documents without our express consent either as such or their contents and the Client must not divulge them, use them itself or through any third parties or reproduce them. Our Client must return them in full to us upon our request and destroy any copies of them there may be, if they are no longer required in a proper commercial transaction or if negotiations do not result in conclusion of the contract.
- Each Party to the contract shall notify the other straight away, if claims are asserted against this party on account of a breach of third party’s industrial proprietary rights or copyrights.
- In cases in which the supplied item is in breach of the third party’s industrial proprietary right or copyright, we shall, as we choose, and at our expense, modify or replace the item supplied in such a way so that no third party’s rights are breached any longer, but the supplied item continued to fulfil the contractually agreed function or we procure the right of use for our Client by entering into a licence agreement. If we are unable to do this within a reasonable period of time, our Client shall be entitled to terminate the contract or to reduce the purchase price as appropriate. Any compensation claims for damages our Client may have shall be subject to the restrictions in the following arrangements in Section 9.
- If we manufacture according to the instructions of our Client, or if we render services according to the Client’s specifications, the Client shall be obliged to exempt us from any third party’s claims which may be asserted against us on account of breaches of proprietary rights / copyrights and the alike.
Section 9 Compensation for damages, other liability
- Insofar as there is nothing stated otherwise in these T&Cs including the following provisions, we shall be liable for in the event of a breach of contractual and non-contractual obligations in accordance with the relevant statutory laws and regulations.
- We shall be liable for compensation for damages – regardless of whatever legal reason upon which they are based – within the framework of fault-based liability in case of intent and gross negligence. In case of ordinary negligence we shall be liable subject to a more lenient scope of liability in accordance with statutory laws and regulations (e.g. for diligence we exercise in our own matters) only
a) for damages arising from death, personal injury or physical harm,
b) for damages arising from a breach of an important contractual duty (that means an obligation the fulfilment of which makes it possible to carry out the contract properly in the first place and upon compliance with which the other Party to the contract normally relies and may rely). In this case our liability shall however be limited to the reimbursement of foreseeable damages typically occurring.
- The limitations of liability arising in Paragraph 2 above shall not apply, insofar as we have maliciously concealed a defect or if we have furnished a guarantee for the condition of the goods. The same shall apply for the Client’s claims under the Chinese product liability law and in the event of fraudulent intent on our part.
- The Client may only terminate the contract or serve notice of termination on account of a breach of duty not consisting of a defect, if we are responsible for the breach of duty. The Client shall not be entitled to an unrestricted right of termination (in particular in accordance with Article 268, Chinese Contract Law). Moreover, the statutory preconditions and legal consequences shall apply.
- The above exclusions of liability shall apply to the same extent for our executive bodies, legal representatives, salaried staff and other assistants.
- Insofar as our colleagues pass over technical information or act in an advisory capacity, and this information or advice is not included in the contractually agreed scope of performance owed by us, this shall be done on a cost-free basis with no liability.
Section 10 Period of limitation
- Without prejudice to the inspection period stipulated in Section 7 Para. 3 above, the warranty period regarding quality defects and legal defects shall be one year as from the delivery date. Insofar as acceptance test has been agreed, the period of limitation shall begin when acceptance has been granted.
- The Client’s compensation claims for damages in accordance with Section 9 hereof as well as under the Chinese product liability laws and regulations shall, however, only become time-barred in accordance with the statutory period of limitation regulations.
Section 11 Choice of law and Place of jurisdiction etc.
- These T&Cs and all legal relationships between us and the Client shall be governed by the law of the People’s Republic of China. However, uniform international law and in particular, the UN law on sales [CISG] shall not apply.
- The contractual language is English.
- The exclusive place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship shall be the courts having jurisdiction where our principal place of business is located.
- Insofar as the contract or these T&Cs contain gaps, those legally valid regulations which the Parties to the contract would have agreed given the set economic objectives of the contract and the objective of these T&Cs, had they known about the gaps in the contract shall be regarded as having been agreed to fill those gaps.
Status as at: October 2020
Section 1 Scope of validity, General provisions
- All goods, services and offers from our Sellers shall be rendered solely on the basis of these general purchasing terms and conditions (T&Cs). These constitute an integral part of all contracts which we enter into with our Sellers for the goods or services offered by them, esp. when the Sellers receive these T&Cs and do not file the explicit written objection during performance of the specific orders / contracts.
- The T&Cs shall apply in particular to the contracts regarding the sale and/or supply of movables regardless of whether the supplier manufactures the goods itself or buys them from sub-suppliers. Provided nothing to the contrary has been agreed, the T&Cs shall apply as a framework agreement to the future contracts regarding the sale and/or the supply of movables with the same supplier in future as well, without any requirements on our part to repeat reference to them in each individual case.
- Any terms and conditions of business or any standard contractual clauses of our business partners and suppliers (hereinafter also known as Seller) or third parties shall not apply, even if we have not specifically objected to their application in an individual case. Even if we refer to a letter containing or making reference to such terms and conditions of business or such standard contractual clauses of the Seller or a third party, this shall not constitute our recognition that those terms and conditions of business shall apply. Such terms and conditions and/or such standard contractual clauses of the Seller or any third party may apply only after signing these relevant documents by our legal representative and affixing our official company stamp.
- Agreements made with the Seller in an individual case (including side agreements, supplements and amendments) shall in all cases prevail over these T&Cs. A written contract or our written confirmation shall determine the content of such agreements.
- References to the application of statutory laws and regulations shall only be for the purposes of clarification. Even without such a clarification, the statutory laws and regulations shall still apply, provided that they have not been directly amended in these T&Cs or expressly precluded.
- Notifications and legally relevant declarations which are to be submitted to us by our Sellers after the contract has been signed must be made in writing for the purpose of legal validity.
Section 2 Orders, Delivery contract, Call-off
- Insofar as our offers (e.g. enquiries) do not expressly include a binding period, we shall abide by our offer to enter into a contract for two weeks after sending date of the offer. It shall be the date on which the Seller’s declaration of acceptance is received by us which shall determine whether our offer has been accepted on time. A belated declaration of acceptance by the Seller to enter into a contract which is received by us beyond the aforesaid two-week period shall be regarded as a new offer and it shall be subject to acceptance by us.
- Our order shall be regarded as being binding when it is submitted or confirmed in writing at the earliest. The Seller shall draw our attention to obvious errors, such as spelling mistakes and arithmetical errors as well as to missing information in the order including the order documents so as to allow us to correct mistakes and/or fill gaps prior to acceptance of our order. Otherwise the (delivery) contract shall not be regarded as having been duly entered into by both parties.
- The Seller is required to confirm our order within a period of two weeks as from sending date of such document or in particular carry out the order without reservation by shipment of the goods (Acceptance).
- Delivery call-offs from call-off supply contracts shall become binding at the latest if the Seller does not raise an objection within one week as from receipt of a delivery call-off from us. Delivery call-off orders shall be based upon a call-off period of approximately 12 months. The call-off orders may be conducted in writing (Article 11, Chinese Contract Law), e.g. by e-mail, fax message or by data transmission.
- We shall be entitled to terminate the contract at any time by means of a written declaration to that effect stating the reason for termination, if we are no longer able to use the ordered products in our business as a result of circumstances arising after the contract is signed. In such circumstances we shall remunerate the Seller for the part-performance it has already rendered to the extent that
- the Seller has purchased the materials only for the performance of this contract and cannot be resold to other potential purchasers;
- the Seller has accomplished the goods/services which are ready for delivery and cannot be resold to other potential purchases upon receipt of our termination notice;
- the compensation amount has been recognized by us or acknowledged by a third party recognized by us;
- the compensation amount shall in no case exceed the purchase price of the order / contract agreed by the parties.
- We are entitled to amend the time and place of the delivery as well as the type of packing at any time by means of written notification (written form shall suffice) giving at least 7 days’ notice prior to the agreed delivery date. The same shall apply for amendments of product specifications provided that they can be implemented in the course of the Seller’s normal production process without considerable additional expenditure, whereby in these cases the notification period in the above sentence shall be at least 2 weeks. We shall reimburse our Seller the proven and reasonable additional costs incurred by the amendment in each case. If such amendments result in delays in delivery which cannot be avoided in our Seller’s normal production and business operations by applying reasonable efforts, the originally agreed delivery date shall be postponed accordingly. The Seller shall notify us in writing of the additional costs expected by him given a careful estimate and / or of delivery delays in good time prior to the delivery date, within at least 7 working days as from receipt of our notification in accordance with Sentence 1 above, and, such additional costs and estimated delivery delay shall be agreed by us.
Section 3 Prices, Terms of Payment etc.
- The prices stated in the order are binding. The value added tax is not included in the price and shall be invoiced at the rate in force at that time.
- Provided that nothing has been otherwise agreed in an individual instance, the price shall include all performances and ancillary performances by the Seller (e.g. assembly, installation etc.) as well as all ancillary costs (transport, packing, insurance etc.,). The Seller shall have to take back packing materials at our request. Insofar as the price does not include packing in the agreement made, and the remuneration for the packing – only provided on loan – is not expressly specified, this is to be charged at cost price. At our request the Seller shall have to take back the packing at its expense.
- Unless agreed otherwise, we shall pay the agreed price within 14 days as from the delivery of all goods and supply of all services including acceptance of the goods as agreed or laid down by law, if applicable, and receipt of a properly made out invoice to qualify for a prompt payment discount of 3% or within 30 days net. The receipt of our payment instruction by our bank shall determine whether the payment owed by us has been made on time. We cannot be held responsible for delays caused by the payment procedures of the banks involved.
- We shall be entitled to offsetting rights and rights of retention as well as the objection that the contract has not been fulfilled as provided for by law. In particular, we shall be entitled to withhold payments due, provided that we have claims against the Seller due to incomplete or defective goods or services.
- The statutory laws and regulations shall apply to the event that we are in default of payment, provided that the Seller has given us at least one written payment reminder first.
- Only after it has obtained our written consent, the Seller shall be entitled to assign his claim against us.
- Without prior written approval by us, the Seller shall NOT have a right to offset or of retention against counter-claims.
- In the event of default in payment, we shall assume default interest which shall be no more than 50% of RMB benchmark lending rate of the same period published by the People’s Bank of China.
- Our order numbers, the item numbers, quantity delivered and delivery address are to be stated on all order confirmations, shipping documentation and invoices. Should delays arise as a result of the lack of such information, the length of time we are allowed for payment shall be extended by the length of such delay.
Section 4 Delivery period
- The delivery period stated by us shall be binding. If the delivery period is not stated in the order, and an agreement has not been otherwise concluded, the delivery period shall be two weeks commencing from the date when the contract takes effect. The Seller shall be obliged to inform us straight away in writing if it will probably be unable to comply with the agreed delivery period regardless of whatever reasons. Early delivery is not allowed unless we have expressly agreed to it.
- If the Seller fails to render its performance or if it fails to do so within the agreed delivery period or if it delays in performance, our rights, in particular to terminate the contract and to demand compensation for damages, shall be determined by the statutory laws and regulations. The provisions of Paragraph 3 below shall not be affected.
- If the Seller delays in performance, we may demand a contractual penalty amounting to 0.5 % of the net price for each full calendar week of delayed goods / services. We shall be entitled to demand the contractual penalty in addition to performance and, as a minimum amount, the compensation for damages owed by the Seller in accordance with the statutory regulations. Our claim for further damages shall not be affected. We shall not be obliged to reserve the right to claim a contractual penalty when taking delivery of a consignment.
- If the day on which the goods/services have to be delivered/rendered is stipulated in the contract, the Seller shall consequently delay in performance when this day expires and the Seller has not fulfilled its contractual obligations, and, it does not require separate reminder by us to the Seller.
- The Seller shall be obliged to inform us in writing straight away if circumstances as a result of which the delivery period cannot be observed arise or become known.
Section 5 Performance, Delivery, Passing of risk, Delay in taking delivery
- Without our prior written consent the Seller shall not allow any third party (e.g. sub-contractors) to carry out the performance which should be accomplished by itself. The Seller shall bear the procurement risk for its performances, unless an agreement has been otherwise concluded in a specific instance (e.g. purchase of stockpiled goods).
- The Seller shall not be entitled to deliver the goods in part without our prior consent. We may reject such deliveries.
- Our Seller’s goods/services must be delivered free of charge to the address stated in our order. If no such address is stated in our order and nothing has been agreed otherwise, goods/services are to be supplied to our principal place of business. The place to which the goods/services have to be supplied shall also be the place of performance. The respective place of destination shall also be the place of performance for any rectification which may be rendered.
- It shall be the receipt of the goods at the place of performance which shall determine whether the goods have been delivered on time.
- A delivery note stating the date and content of the consignment as well as our order identification (number and date) is to be attached to the consignment. If the delivery note is missing or is incomplete, we cannot be held responsible for the delays resulting in processing invoices and payment.
- The risk of accidental loss or damages of the goods shall pass over to us upon delivery at the place of performance, even if it has been agreed that we are responsible for transportation. Insofar as it has been agreed that there is to be an acceptance test, such risk shall pass over to us after the acceptance test has been passed. The statutory laws and regulations for contract for work and services law shall furthermore apply accordingly upon passing such acceptance test.
- The Seller must, however, expressly offer us its services, even if a specific or definable calendar period has been agreed for an action or assistance on our part (e.g. furnishing materials). If delay in taking delivery of goods or services is completely caused by us, the Seller may consequently demand compensation for its extra expenditure incurred which shall cover the actual storage costs and transportation costs only.
Section 6 Ownership protection
- We shall retain the ownership or copyright for all orders and assignment submitted by us as well as drawings, diagrams, calculations, descriptions and other documents we have provided to the Seller. Without our express consent, the Seller must neither allow any third parties to have access to them nor use them itself or through any third parties or reproduce them. Such documents are only to be used for rendering the contractual performance stipulated in contracts entered into with us. The Seller shall have to return these documents to us in full at our request, if they are no longer required by the Seller in its proper course of business or if negotiations do not result in a contract being signed. Under such circumstances copies made by the Seller are to be destroyed.
- Tools, devices and models, which we provide the Seller or which are made for the purposes of the contract and which are invoiced separately to us by the Seller, shall remain or become our property. They shall be marked clearly as our property by the Seller, kept in safe-keeping with care by the Seller and protected from damage of all types and are only used for the purposes of the contract with us.
- The Seller’s reservation of title shall not be recognized unless we give the prior written consent.
- The Seller’s processing, mixing, or joining (further processing) of items furnished by us shall be carried out on our behalf. The same rule shall apply in case of our further processing of the goods supplied to us so that we are regarded as the manufacturer and acquire ownership of the product in accordance with statutory regulations when the goods are finished at the latest.
- It is imperative that the ownership of goods shall be transferred to us according to the contract and these T&Cs, regardless of whether the purchase price has been paid or not. If, however, in a given instance, we accept an offer by the Seller stipulating the ownership of the goods to be transferred is conditional upon the payment of the purchase price, the Seller’s reservation of ownership shall cease to exist when the purchase price for the goods delivered is paid at the latest. We shall still be authorised to sell on the goods in a proper commercial transaction even before we have paid the purchase price subject to assigning the account materialising as a result of the resale to the Seller in advance of the resale. Unless otherwise stipulated in these T&Cs or in the specific contract, any and all forms of reservation of title, in particular the expanded, forwarded and prolonged reservation of title shall in any case be precluded.
Section 7 Defects, Notification of defects, Warranty
- Unless specified otherwise below, the statutory laws and regulations shall apply in the event of quality defects and legal defects of the goods (including incorrect and short deliveries as well as improper assembly, incorrect instructions for assembly or operation or owner’s handbook) and in the event of other breaches of duty by the Seller.
- The statutory laws and regulations shall apply for the commercial obligations to inspect goods and notify the Seller of defects subject to the following provisos:
Our obligation to inspect incoming goods shall be limited to defects which become apparent during our goods inward inspection and external appraisal including shipping documentation as well as by means of our quality control department conducting random checks (e.g. transport damage, incorrect deliveries and short deliveries). Insofar as acceptance test has been agreed, there shall be no obligation on our part to inspect incoming goods. Moreover, what matters is the extent to which an inspection is feasible taking the circumstances of the individual case into consideration in the proper course of business.
Our obligation to notify the Seller of discovered defects shall not be affected by the above. In all cases our notification (notification of defects) shall be regarded as having been submitted straight away and on time, if it is received by the Supplier within 10 working days as from the receipt of the goods duly delivered by the Seller to us.
- The Seller shall have to bear all expenditure necessary for the purposes of effecting a rectification, in particular, transport costs, travelling expenses, labour and the cost of materials. In the event that defective parts have already been installed because we were unaware of the defect, the Seller shall also have to bear the costs of removal and installation of incorrect parts.
- The costs incurred by the Seller for the purposes of inspection and repair (including any costs incurred for removal and installation which may be incurred), shall also be borne by itself even if it turns out that there exists in fact no defect. Our liability to pay compensation for defects for unjustified requests to rectify the possible defects shall not be affected; given this, we shall only be liable if we were aware that there was no defect or the fact that we did not know that there was a defect was attributable to gross negligence on our part.
- If the Seller fails to fulfil its obligation to render a cure – either by rectifying a defect (repair) or by supplying a new fault-free thing (replacement) as we so choose – within a reasonable period set by us, we may consequently rectify the defect ourselves and demand compensation for the expenditure necessary for this or a corresponding sum in advance. If the cure is unsuccessful or unreasonable for us (e.g. on account of it being particularly urgent, a hazard to safety at work or on account of the impending threat of disproportionate damage), we shall not have to set a time limit. We shall inform the Seller of such circumstances beforehand if possible.
- Moreover, in the event that there are quality defects or legal defects, we shall, in accordance with the statutory laws and regulations, be entitled to reduce the purchase price or to terminate the contract. In addition, we shall be entitled to claim compensation for damages and expenses incurred according to the statutory laws and regulations.
- Our claim for warranty is not waived upon passing the acceptance test or approving the specimens or samples submitted by the Seller.
Section 8 Property rights
- The Seller warrants that if the delivered items are used in accordance with the contract, this shall not give rise to a breach of any property rights and applications filed for property rights, in particular third party compensation claims for damages against us, provided that such applications for property rights have been filed or registered with the Chinese, German or European patent office. The Supplier also warrants that no third party’s property rights in those countries, in which the products are manufactured or in which the Seller has them manufactured, will be breached by the products supplied by the Seller.
- The Seller’s obligation to pay compensation for damages and/or obligation to exempt us from damages shall also cover all expenditure we necessarily incur as a result of, and in connection with, claims asserted against us by third parties, including but not limited to the legal costs, attorney’s fees and administrative costs / fines.
- The above provisions shall not apply, if the Seller manufactures items for us in accordance with our specifications, in particular drawings, models and other descriptions and the Seller is unaware or has no reason to be aware that the third party’s property rights would be breached as a result.
- The Seller is obliged to inform us immediately of any risks that property rights might be breached when the Seller becomes aware of and in particular alleged instances of breach.
- Our further claims due to legal defects of the products supplied against the Seller shall not be affected by the above provisions.
Section 9 Product liability, Insurance
- If the Seller is responsible for product damage, the Seller shall indemnify us from any claims by the third party to the extent that the cause of the loss is within the Seller’s sphere of control and organisation and he is personally liable in the external relationship. If we are obliged to mount a recall campaign with other parties as a result of a defect in a product supplied by the Seller, the Seller shall bear all costs associated with the recall campaign.
- As part of its obligation of indemnification, the Seller shall have to reimburse us for the expenditure incurred by us in accordance with the relevant laws and regulations, arising from or in connection with a claim asserted by a third party including recall campaigns mounted by us. We shall – insofar that this is possible and reasonable – inform the Seller of the content and scope of recall campaigns and allow the Seller to have the opportunity to respond. Our further legal claims shall not be affected.
- The Seller shall have to purchase a product liability insurance policy with coverage sum of at least RMB 2 million per personal injury / property damage claim and maintain the policy continuously. The Seller shall have to send us a copy of the liability insurance policy upon request and upon further request submit the original to us for our inspection. We shall also be entitled to demand to see the original copy during the contractual relationship.
Section 10 Recourse asserted against a Seller
- In addition to the claim due to the defects, we have the right of recourse stipulated in the statutory laws and regulations within the supply chain (recourse of the entrepreneur in accordance with the relevant laws and regulations). We shall, in particular, be entitled to demand the specific type of cure (repair or replacement). Our statutory right of choice (Article 111, Chinese Contract Law]) shall not be restricted.
- Before we recognise or fulfil a claim due to defect filed by our buyer (including compensating the buyer for the expenses in accordance with the relevant laws and regulations), we shall inform the Seller and, by giving a brief description of the facts and circumstances, request a written opinion from the Seller. If we do not receive such opinion within a reasonable period, and, if an amicable solution is not reached by mutual agreement, the warranty claim that we actually concede shall consequently be deemed as owed to our buyer; counter evidence in this case shall be incumbent upon the Seller.
- Our claim of recourse shall also apply in those cases in which the goods have been finished by us or one of our buyers, e.g. installation into another product, prior to being sold to a consumer.
Section 11 Spare parts
- The Seller shall be obliged to keep a stock of spare parts available for the products supplied to us for a period of at least 10 years after delivery.
- If the Seller intends to stop production of spare parts for the products supplied to us, it must inform us of this straight away after making the decision to stop making them. Subject to Paragraph 1 above, this decision must be made at least 6 months prior to closing down production.
Section 12 Non-disclosure
- The Seller shall be obliged to keep secret the terms of our order as well as all information and documents provided to the Seller for this purpose (with the exception of information in the public domain) for a period of 60 months after disclosure, but at least however, for the duration of the actual supplier- customer relationship with us and only use it for carrying out our order. The Seller shall return it to us straight away after queries have been dealt with or after handling orders upon request.
- The Seller shall, moreover, be obliged to handle all commercial and technical information not in the public domain and which he becomes aware of as a result of our business relationship as business secrets. In particular, models, templates, specimens, tools and similar items must not be handed over to third parties or made accessible for them by other means. The reproduction of such items, except within the scope of business operational necessities, is prohibited, subject to deviating provisions.
- The Seller shall ensure by taking suitable measures that his salaried staff employees, freelance staff and sub-contractors to work on the contracts entered into with us maintain the above confidentiality obligations. The Seller shall only disclose information as described above in Paragraph 1 and Paragraph 2 to those of its salaried staff, freelance staff, consultants, etc. who have to be involved with the development, design, manufacture and supply of goods to us. Disclosure shall, moreover, mean that the persons receiving such information shall be obliged to maintain silence in accordance with this non- disclosure regulation (Section 12).
- Any sub-suppliers which the Seller is allowed to call in shall be also under the corresponding obligation.
- Our Seller may use our business relationship for advertising purposes only after obtaining our prior written consent.
Section 13 Statute of limitation
- The reciprocal claims of the Parties to the contract shall become time-barred in accordance with the statutory laws and regulations.
- The warranty period for the goods delivered and/or the services rendered by the Seller shall be no less than [two] years as from the delivery date. The warranty period shall be suspended when the Seller receives our written notification of a defect, unless the Seller has remedied the defect of the goods. If a replacement part is supplied and the defect is remedied, the warranty period for replaced and repaired parts shall be recalculated from the date of replacement / repair, unless the Seller is not obliged to take such measures, but supplied a replacement or remedied the defect as a gesture of goodwill or for similar reasons.
Section 14 Choice of law, Place of jurisdiction, Miscellaneous
- These T&Cs and all legal relationships between us and the Seller shall be governed by the law of the People’s Republic of China. International uniform law, in particular the Convention on Contracts governing the International Sale of Goods (CISG) shall not apply.
“We”or “Us” under these T&Cs shall refer to E Fluid Technology Co., Ltd.
“Seller” refers to our business partner which supplies any goods, services and/or undertakes any performance obligations agreed and recognized by us.
“T&Cs” refers to all terms and conditions contained in this General Purchasing Terms.
- The exclusive place of jurisdiction is the courts having jurisdiction where our principal place of business is located.
- The contractual language is English.
Status as at: October 2020