General Terms and Conditions of Sale
1. Applicability and Entire Agreement. These General Terms and Conditions of Sale (“Terms”) apply to and are incorporated into any offer, quotation, confirmation, or agreement (“Agreement”) to which they are attached or referenced, constitute the entire agreement between you (“Buyer”) and Shanghai QUKEN New Material Technology Co., Ltd. (“QUKEN”) for the sale of goods, and supersede all prior discussions, proposals, negotiations, representations, and agreements. The sale of any goods by QUKEN is subject to and expressly conditioned upon Buyer’s acceptance of these Terms. If there is a discrepancy between the Agreement and these Terms, then the Agreement prevails. Any terms or conditions submitted by Buyer to QUKEN, which are inconsistent with, different than, or additional to these Terms are rejected. Fulfillment of Buyer’s purchase order does not constitute acceptance of Buyer’s terms and conditions and does not modify or amend these Terms. Any amendment or modification to these Terms or the Agreement requires QUKEN’s written consent.
2. Offers and Orders. All offers and quotations provided by QUKEN are nonbinding and subject to change. All orders provided by Buyer, even if submitted pursuant to an offer or quotation, will only be deemed accepted upon written confirmation by QUKEN. Once accepted by QUKEN, orders are non-cancellable.
3. Delivery and Acceptance. Unless otherwise set forth in the Agreement, all goods will be delivered FOB SHANGHAI (Incoterms® 2010). Risk of loss shall pass to Buyer upon shipment. Each delivery constitutes a separate sale. All delivery times set forth in the Agreement are only non-binding estimates. Buyer may not reject goods or be entitled to a reduction in price simply because goods are delivered outside of such times. Buyer shall inspect all goods within five (5) business days of their receipt and provide QUKEN with written notice of acceptance or rejection. If Buyer fails to provide QUKEN with such notice, then goods will be deemed accepted by Buyer “AS IS.”
4. Price and Transfer of Title. Unless otherwise set forth in the Agreement, the price of goods excludes all taxes, duties, fees, and other charges, which are the responsibility of Buyer. If QUKEN is required to collect or pay any such taxes, duties, fees, or charges upon the sale of goods, then QUKEN may add such amounts to the price and they will be paid by Buyer. Title to goods will transfer from QUKEN to Buyer upon shipment. Buyer assumes all risk and liability for, and hereby agrees to indemnify and hold QUKEN harmless from and against, all losses, liabilities, damages, and claims whatsoever (whether for personal injury, property damage, or otherwise), arising out of the transportation, unloading, storage, handling, or use of any goods after title passes to Buyer.
5. Payment Terms. Unless otherwise set forth in the Agreement, Buyer shall pay for goods 100% in advance or within thirty (30) days of the date of the applicable invoice. If Buyer’s credit worthiness changes, QUKEN may demand: (i) advance payment for goods; or (ii) other means of financial security, including a letter of credit. In addition to any other legal remedy, if Buyer is in default, QUKEN may cancel all further deliveries to Buyer. Buyer shall make all payments unconditionally and without any setoff, recoupment, or counterclaim. All past-due amounts will incur interest at a rate of one percent (1%) per month. Buyer shall be responsible for all costs and expenses incurred by QUKEN, including attorneys’fees.
6. Changes. QUKEN shall have no liability to Buyer for any costs, lost profits, or other damages resulting from any design or specification change or product discontinuance. If Buyer desires product changes, Buyer shall submit a written request to QUKEN for consideration. Within a reasonable period thereafter, QUKEN shall notify Buyer of its acceptance or rejection of Buyer’s request. If accepted, QUKEN shall provide Buyer with its charges for the product change and a proposed implementation date.
7. Limited Warranty. QUKEN hereby warrants to Buyer that the goods will, at the time of delivery, materially comply with QUKEN’s printed specifications. Buyer’s sole and exclusive remedy for any breach of the foregoing limited warranty is, at QUKEN’s option: (i) repair or replacement of the non-conforming goods; or (ii) reimbursement of that portion of the purchase price attributable to the nonconforming goods. Any claim under this limited warranty must be made within fifteen (15) days after Buyer is aware of the alleged non-conformity, and, in any event, no later than twelve (12) months after delivery. This warranty does not cover goods which: (a) have been subject to misuse, negligence, accident, or improper maintenance or storage; (b) have been altered without QUKEN's prior written consent; or (c) based on QUKEN’s examination, do not disclose to QUKEN's satisfaction nonconformance to this warranty. QUKEN makes no warranty as to the intended use or application of the goods by Buyer. Goods may not be returned without written authorization from QUKEN and all costs of return will be the responsibility of Buyer.
8. Disclaimer of Damages and Limitation of Liability. To the maximum extent permitted by applicable law, QUKEN hereby disclaims, and shall not be liable to Buyer, for any special, consequential, incidental, indirect or punitive damages, including, without limitation, damages arising out of the delivery, non-delivery, sale, resale, or use of the goods, lost profits or production downtime, whether based on the contract, warranty, negligence, strict liability, or otherwise, as a result of the agreement or these terms, even if QUKEN has been informed of the possibility of such damages. QUKEN’s maximum liability under the Agreement and these Terms shall not exceed the purchase price of the goods for which any claim is made.
9. Compliance. Buyer shall handle, store, process, use, and transfer goods in compliance with all applicable: (i) safety information provided by QUKEN; and (ii) laws, rules, and regulations, including, without limitation, those regarding environmental health and safety. Buyer hereby represents to QUKEN that Buyer is a sophisticated consumer and possesses all requisite skill and expertise necessary to handle, store, process, use, and transfer the goods, which may contain hazardous, or otherwise dangerous substances.
10. Confidentiality. Buyer shall treat the Agreement and any confidential information provided by QUKEN as confidential and shall not disclose it, or its contents, to any third party without the prior written consent of QUKEN.
11. Force Majeure. QUKEN shall be excused from its obligations under the Agreement to the extent prevented by circumstances beyond its reasonable control, including, without limitation, fire, flood, natural disaster, change in applicable law, difficulty sourcing raw materials, war, equipment breakdown, strike, lockout, labor dispute, and interruption in utilities or transportation.
12. Termination. Unless otherwise set forth therein, Buyer may not terminate the Agreement. If the Agreement may be terminated, Buyer shall reimburse QUKEN for all costs and expenses incurred by QUKEN as a result of performing the Agreement prior to the date of termination. Such costs and expenses may include, without limitation, raw materials, labor, and production costs. In addition to any remedies that may be provided under these Terms, QUKEN may terminate the Agreement with immediate effect upon written notice to Buyer if Buyer: (i) fails to pay any amount when due under the Agreement; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.