General Terms and Conditions of Delivery and Payment of
IMS Connector Systems (Suzhou) Co., Ltd.
The following General Terms and Conditions for Sale (hereinafter referred to as the “Sales GTC”) apply exclusively to all deliveries of goods and services – now and in the future – (hereinafter referred to collectively as the “Goods”) by IMS Connector Systems (Suzhou) Co., Ltd. (hereinafter referred to as the “Supplier”) to customers (hereinafter referred to as the “Customer”, together with the Supplier, hereinafter collectively referred to as the “Parties” and each as a “Party”), unless otherwise expressly agreed by the Parties in writing. These Sales GTC shall apply in preference to and supersede the Customer’s own terms and conditions even where the Supplier delivers the Goods without expressly ruling out the Customer’s own terms and conditions.
II. Conclusion and Terms of the Contract
1. A contract comes into effect and becomes binding on the Parties upon the earlier of (i) the Customer’s acceptance in writing of the Supplier’s order confirmation (hereinafter referred to as the “Order Confirmation”) or (ii) the Customer’s acceptance of the Goods, unless otherwise indicated by the customary trading practices between the Parties. A contract shall be comprised of these Sales GTC, the Order Confirmation and any other written agreement between the Parties (hereinafter referred to as the “Contract”).
2. The Supplier’s quotations are non-binding and merely constitute invitations to the Customer to place orders. Unless otherwise indicated in the order, the Customer is bound by its order for a period of 15 days as from the date when the Supplier receives the order. A Contract only comes into effect pursuant to ClauseII.1 hereof.
III. Price and Payment
1. Unless expressly stated otherwise in the Order Confirmation, prices set forth therein are in RMB and are inclusive of the packaging costs and PRC (as defined below) value added tax. Notwithstanding the foregoing, if the Customer is required under any applicable law to withhold or deduct any tax, duty or other amount from the payment due to the Supplier, the Customer shall increase the sum it pays to the Supplier by the amount necessary to leave the Supplier with an amount equal to the sum it would have received if no such withholdings or deductions had been made.
2. Where the Delivery Period (as defined below) is longer than 2 months as from the issuance date of the Order Confirmation, the Supplier is entitled to increase the prices accordingly if, following conclusion of the Contract, there are major changes in the cost of wages, supplies, energy, raw materials, packaging or delivery, and the Supplier is not responsible for these changes. Where the increase of the total price of the Contract exceeds 5%, the Customer is entitled to rescind the Contract in writing within two weeks of receiving written notification of the price increase.
3. Change requests made by the Customer, if and to the extent consented by the Supplier in writing after an examination of their feasibility, shall entitle the Supplier to increase the price at its sole discretion so as to cover the costs for introducing the changes into production.
4. Unless expressly stated otherwise in the Order Confirmation or any other written document issued by the Supplier, payment must be made within 30 days from the date of the invoice issued by the Supplier to the Customer, without any deduction, by means of transfer to the Supplier’s bank account specified in the Order Confirmation. Payments are only deemed to have been made to the extent that the Supplier has unlimited access to them in its bank account. All bank charges shall be borne by the Customer.
5. If required by the Supplier in the Order Confirmation or in any other written form, the Customer shall, within 1 week after the Supplier’s issuance of an Order Confirmation or any other written request, open an irrevocable and nontransferable documentary letter of credit via a bank acceptable to the Supplier, at
the Customer’s cost and for the benefit of the Supplier. The letter of credit shall remain valid for negotiation in the PRC until 30 days after the last day of the Delivery Period and shall specify that transshipment and partial shipment are allowed. The letter of credit shall be subject to the ICC Uniform Customs and
Practice for Documentary Credits, UCP 600.
6. The Customer is only entitled to withhold payment or to set payment off against its counter claims insofar as the counter claims are undisputed or have been
declared final and binding by the arbitration institution in accordance with Clause XIV.4 hereof.
7. In the event of delays in payment, the Supplier is entitled – without prejudice to any other rights and claims – to claim penalty at a rate of 0.05% per day of the payment in arrear until full and final payment has been made. All costs and expenses incurred by the Supplier with respect to the collection of overdue
payments (including without limitation, reasonable attorney’s fees, expert fees and arbitration costs) shall be borne by the Customer.
7. Every payment by the Customer shall in the first place serve to pay the costs and expenses incurred by the Supplier for the collection of overdue payments and the penalties owed by it and afterwards shall be used to offset the eldest outstanding payment regardless of contrary advice from the Customer.
IV. Delivery, Delivery Period
1. Subject to the Order Confirmation, the Supplier shall deliver the Goods to the delivery premise specified in the Customer’s order and confirmed in the Order
Confirmation, or delivery shall take place Ex Works (pursuant to Incoterms® 2010) from the Supplier’s premise (hereinafter referred to as the “Delivery”).
2. The delivery period shall be specified in the Order Confirmation (hereinafter referred to as the “Delivery Period”).
3. The Delivery Period will commence only upon the Customer’s provision of necessary documents, consents and approvals, and upon the Supplier’s receipt of
advance payment or payment guarantee, or a bank’s issuance of a letter of credit if the aforementioned documents, consents, approvals, advance payment and/or
letter of credit are requested by the Supplier in the Order Confirmation or in any other written form. Notwithstanding anything to the contrary herein, the Delivery Period is an approximate period and therefore non-binding.
4. To the extent applicable, where the Customer fails to notify the Supplier in due time as to when and by whom shipment is to be carried out, the Supplier is entitled to conclude a customary shipment agreement at the Customer’s expense and risk. The Delivery Period is deemed to have been complied with as long as the Goods are ready for shipment prior to its expiry.
5. If Delivery takes place “Ex Works” pursuant to the Order Confirmation, the Supplier shall notify the Customer when the Goods are ready for pick-up, while in
the case of delivery of the Goods to the premise specified in the Order and confirmed in the Order Confirmation, the Supplier shall not be obliged to notify the Customer of successful Delivery.
6. Unforeseen or unavoidable events for which the Supplier cannot be held responsible (including without limitation force majeure, strikes or lockouts,
operational breakdown, problems in the procurement of supplies or energy, transport delays, shortages in staff, energy or raw materials, official measures or
difficulties in obtaining authorisations especially import or export licence) shall entitle the Supplier to extend the Delivery Period appropriately. This also applies where such circumstances obstruct sub-suppliers. The Supplier shall not be liable for any losses incurred by the Customer due to the aforementioned extension of the Delivery Period.
Where the obstruction lasts for more than 30 days, either Party is entitled to cancel the Contract by serving the other Party a written notice. In this case, claims for damages are excluded.
7. Change requests made by the Customer, if and to the extent consented by the Supplier in writing after an examination of their feasibility, shall extend the Delivery Period by the time that is required for introducing the changes into production as solely determined by the Supplier. Where ongoing production is suspended due to the Customer’s request for changes, the Supplier may bring forward and finish other orders. The Supplier is not obliged to keep production capacity free during the period of the delay.
8. Where Delivery is delayed at the Customer’s request or as a result of circumstances for which the Supplier cannot be held responsible, the Customer
shall be charged for the costs of storage, which in the case of storage on the Supplier’s premises, shall be no less than 0.5% of the price of the Goods for each month of storage starting from the thirty-first day after the last day of the Delivery Period. This shall be without prejudice to any additional remedies available to the Supplier.
9. The Supplier shall only be obligated to comply with the Delivery Period provided that the Customer has fulfilled its entire obligations under the Contract.
10. Partial deliveries are permitted for any Goods ordered under the Contract.
11. The Supplier is entitled to deliver the Goods outside the Delivery Period provided that it notifies the Customer that it would exceed the Delivery Period and specifies a new delivery date. The Customer is entitled to object in writing, within 3 days upon its receipt of the Supplier’s notification, to the extension of the Delivery Period provided it can prove that late Delivery is useless. The Supplier shall be liable for necessary additional expenditure incurred by the Customer as a result of the late Delivery only in accordance with Clause IV.12.
12.The Supplier shall be liable for losses incurred by the Customer as a result of late Delivery to which the Customer has successfully objected in accordance with Clause IV.11 only in the case of intent or gross negligence. In all other cases, liability on the part of the Supplier is excluded. The Supplier shall not be liable for the conduct of those persons or entities assisting it with the performance of the Contract. In particular, the Supplier’s Delivery obligation shall be subject to the ontime and correct delivery by its own sub-suppliers unless the incorrect or late delivery by sub-suppliers is caused by the Supplier either intentionally or by gross negligence.
V. Right of Retention
1. The Supplier may refrain from performance of its contractual obligations, in whole or in part, if, after conclusion of the Contract, the Customer fails, in whole or in part, to perform its contractual obligations or if it becomes apparent that the Customer will not, in whole or in part, comply with its contractual obligations. This is particularly true where the Customer fails to comply, in whole or in part, or delays compliance with its payment obligations towards the Supplier or third parties even if the Customer provides security to guarantee counter performance which is contestable under the applicable insolvency rules.
VI. Transfer of Risk
The risk of loss or damage to the Goods shall pass to the Customer upon the Delivery.This also applies to partial deliveries.
VII. Retention of Title
1. The Supplier shall reserve title to the Goods until the Customer’s full payment of the purchase price and any ancillary charges (the Goods to which the Supplier reserves title are hereinafter referred to as the “Reserved Goods”). This also applies where payment of the purchase price is made in installments.
2. The Customer shall sufficiently insure the Reserved Goods against loss and damage, at its own expense, at the replacement value. The insurance policy and
evidence of payment of the premiums shall be submitted to the Supplier on request. The Customer hereby assigns to the Supplier any claims arising under the insurance contract subject to the condition subsequent that title passes. The Supplier hereby accepts the assignment.
3. Where a third party asserts, or wishes to assert, a right to the Reserved Goods, the Customer shall notify the Supplier of this immediately. The costs arising as a result of defending a claim on the Reserved Goods by a third party shall be borne by the Customer insofar as they cannot be recovered from the third party.
4. Any treatment or processing of the Reserved Goods by the Customer shall be undertaken on the Supplier’s behalf without involving any obligations on the
Supplier’s part. Where the Reserved Goods are mixed or combined with other goods, the Supplier shall acquire co-ownership of the newly manufactured product in accordance with the ratio of the value of the Reserved Goods to the other materials.
5. The Customer may only resell or make further use of the Reserved Goods or the new product manufactured from the Reserved Goods in the ordinary course of
business. The Customer hereby assigns to the Supplier and the Supplier hereby accepts all receivables arising from the resale or continued use of the Reserved
Goods, whether or not the Reserved Goods have been processed. The Supplier may, at any time, require the Customer to disclose the assignment to its debtors
and instruct its debtors to pay the receivables directly to the Supplier, as well as to make available to the Supplier all the information necessary for recovery of the receivables and to hand over the accompanying documentation.
VIII. Liability where Goods Deviate from Contract
1. The Supplier warrants that all Goods sold to the Customer hereunder will conform in all material respects to the specifications contained in or attached to the Order Confirmation. All information in other documents (such as pictures, drawings and advertisements), warranties or conditions (whether express or implied) as to quality, condition, description, compliance with sample or fitness for purpose, unless expressly labelled by the Supplier as binding, is merely of an approximate nature and the Supplier hereby expressly excludes all liability for its accuracy or completeness to the fullest extent permitted by the applicable laws.
2. A customary deviation in quantity of up to 10% more or less than the quantity specified in the Order Confirmation or a technical improvement of the Goods shall not constitute a breach of the Contract. The Customer shall accept any Delivery with a customary deviation and shall pay for the actual quantity delivered.
3. The Customer shall examine the Goods promptly after the Delivery and notify the Supplier of any defect in writing within 3 days upon the Delivery. In such notice, the Customer shall describe the type of defect in detail. For the avoidance of doubt, the Customer’s failure to notify the Supplier of such defect in detail within the aforementioned period or the Customer’s use or processing of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all claims in respect of the Goods.
4. The Supplier shall deliver the Goods free from infringements of intellectual property rights within the People’s Republic of China (hereinafter referred to as the “PRC”, for the purpose of these Sales GTC only, excluding Hong Kong, Macau and Taiwan). The Supplier declares however that (without having made a special investigation) it is unaware of any infringements of intellectual property rights in other countries.
5. If the Customer alleges in accordance with Clause VIII.3 that any Goods are defective, it shall, if so requested by the Supplier, return a sample of the defective Goods to the Supplier for inspection as soon as possible and at its own risk and expense. Upon confirmation of the defect by the Supplier or an inspection institute mutually designated by the Parties, the Customer may only require rectification or, if this is infeasible, replacement of the Goods which fail to comply with the Contract. Cancellation of the Contract, purchase price reduction or rights to claim damages or compensation are not available to the Customer unless the Supplier has willfully concealed the defect.
6. Statements by the Supplier about any defect notified by the Customer serve only to clarify the situation and do not constitute acknowledgement of such defect.
7. Insofar as a defect arises from an integral third-party product, the Supplier is entitled to at first restrict its liability to the assignment to the Customer of the remedies to which it is entitled against the supplier of the third-party product, unless assignment of the remedies fails or cannot be obtained for some other reason.
8. During the processing of materials supplied by the Customer, the Supplier shall not be liable for defects caused by the fact that the Customer provided incorrect material specifications or incorrect material. In this case, the Supplier remains entitled to the agreed price. The costs of the testing of necessary materials shall be borne by the Customer.
9.The Supplier shall not be liable for any modification or repair work conducted on the Goods after the Delivery.
10.Claims by the Customer on the Goods which do not comply with the Contract shall lapse after 2 years from the time when the Customer knows or should know such non-compliance.
11. Defects in part of the Goods specified in the Order Confirmation shall not entitle the Customer to reject the entire Goods. Unless otherwise expressly provided herein, defects in any Goods shall not affect the Customer’s payment obligations under Clause III hereof.
1. Without prejudice to any other remedies available to the Supplier, in case of default in acceptance of the Goods or other breach of duties by the Customer, the Supplier is entitled to claim compensation for any resulting losses including but not limited to additional expenses caused by the Customer’s default in
acceptance of the Goods, if any.
2. Unless otherwise provided in Clause VIII, the Supplier shall be liable, irrespective of the legal basis, for loss incurred by the Customer only where such loss is caused by the Supplier’s willful intent or gross negligence. In all other cases, liability on the part of the Supplier is excluded. The Supplier shall not be liable for the conduct of those persons or entities assisting it with the performance of the Contract.
3. The Supplier’s liability for death, personal injury and damage to health under the PRC Product Liability Law remains unaffected.
4. Claims by the Customer against the Supplier under Clause IV.12, Clause IX.2 and Clause IX.3 shall lapse after 2 years from the time when the Customer knows or should know such infringement.
5. To the extent permitted under PRC laws, under no circumstances shall the Supplier be liable to the Customer or any other person for any kind of special,
incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profits, work stoppage, production failure, impairment of other goods or otherwise, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise. Notwithstanding anything herein contained to the contrary, the liability of the Supplier for any and all claims for direct damages arising out of or in connection with the Goods shall under no circumstances exceed the sum of Customer’s aggregate payments for the Goods that are the subject of the claim.
X. Intellectual Property Rights
1. The sale of Goods shall not, by implication or otherwise, convey any licenses or grant any rights in favor of the Customer in relation any patents, trademarks, copyrights, database rights, design rights, trade names, domain names and any other intellectual property rights of a similar nature relating to the Goods or any compositions and/or applications thereof.
1. The Supplier reserves title and copyright to pictures, drawings, advertisements, product proposals, offer documents, cost estimates and any other documents which the Supplier makes available to the Customer. The Customer shall keep confidential all documents and information provided by the Supplier unless otherwise expressly consented by the Supplier in writing. The Customer further undertakes to ensure full compliance with this clause by its employees, agents and subcontractors.
1. The Customer undertakes to conduct its business activities in compliance with the applicable laws and regulations and, in particular, to prevent and take immediate actions against all forms of corruption and bribery, including without limitation, commercial bribery by itself or any of its employees, agents and subcontractors, in particular, towards the Supplier or the Customer’s clients.
1. If any of the following events occurs and without prejudice to any other remedies available to the Supplier under the Contract or the applicable laws, the Supplier is entitled to terminate the Contract with immediate effect by serving a written notice to the Customer:
(1) The Customer delays payment, in whole or in part, for an aggregate period of more than 15 days starting from the first day following the end of the payment period stipulated under Clause III.4;
(2) The Customer defaults in the performance of any of its other obligations under the Contract and fails to rectify such default within 30 days upon receipt of the Supplier’s written notice; or
(3) The Customer becomes insolvent or any bankruptcy proceeding is instituted by or against the Customer.
2. Upon termination of the Contract, all outstanding payments under the Contract shall become immediately due and payable by the Customer.
3. Termination of the Contract shall not affect either Party’s rights, obligations, liabilities and remedies that have accrued as of the termination date.
XIV. Written Form, Language, Place of Performance, Place of Jurisdiction, Applicable
1. Amendments, additions as well as termination of the Contract shall be made by the Parties in writing in order to be valid. The same applies to other declarations by either Party which are required in order to establish, assert or exercise its rights, particularly notifications of defects, deadlines or unilateral termination of the Contract. Where a notification which is sent by registered post or via an internationally recognised courier service is delayed, it shall be deemed to have been received on the date that it would have been received under normal circumstances.
2. All communications between the Parties shall be made in Chinese or English.
3. Unless otherwise agreed in writing, the place of performance for the Contract shall be the Supplier’s premise.
4. Any dispute, controversy or claim arising out of or relating to the Contract, including without limitation, its existence, performance, breach, termination or invalidity thereof (hereinafter referred to as the “Dispute”), shall be settled in friendly negotiations between the Parties. If the Dispute cannot be solved within 1 month after friendly negotiations were first proposed by a Party to the other Party in writing, the Dispute shall be submitted to China International Economic and Trade Arbitration Commission (hereinafter referred to as “CIETAC”) for arbitration which shall be conducted in accordance with CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral tribunal shall be composed of 3 arbitrators. The proceedings shall take place in Shanghai and be conducted in Chinese language. The arbitral award shall be final and binding upon the Parties without recourse to the ordinary courts of law. The costs of arbitration shall be borne by the losing Party unless the arbitration tribunal decides differently.
5. The Contract shall be governed by PRC laws excluding the provisions of the UN Convention on Contracts for the International Sale of Goods dated April 11, 1980
As of: February 2015