HUASU STANDARD TERMS AND CONDITIONS OF SALE AND ACCEPTANCE OF ORDER
ACCEPTANCE. The acceptance of Buyer's order by Seller is expressly made conditional upon Buyer's assent to these Standard Terms and Conditions of Sale. Terms as specified in Seller's Order Confirmation (if any) and these Standard Terms and Conditions shall constitute the only binding contract terms and conditions between the parties (the “Agreement”) in the absence of a written agreement as described in the Clause on Written Agreement.
WRITTEN AGREEMENT. If there is an executed written sales agreement in effect between Buyer and Seller covering Buyer's order, the terms and conditions of that agreement shall prevail over any conflicting term in Seller's Order Confirmation and/or these Standard Terms and Conditions and/or Buyer's purchase order.
PRICE ADJUSTMENT. The price cannot be changed after the confirmation of this Agreement. However, if the fluctuation range of product market price, main raw material price and / or labor cost exceeds 10%, the Seller has the right to send a price adjustment notice, and both parties negotiate the supply price. The new price shall be subject to the subsequent written confirmation of both parties. If no agreement is reached within 30 days after the price adjustment notice is sent, the Seller has the right to terminate the contract.
QUANTITY. Product quality and quantity shall be determined by Seller or its nominee. For solid product shipments, to allow for standard tolerances of scales, no claim shall be made for shortages of less than 3% of the quantity of any shipment of packaged solid product. Buyer is obligated to accept products exceeding Buyer’s order quantity within the scale of 3%. The payment shall be settled according to actual delivery within tolerance scale. Seller shall have the right at all times to appoint an independent surveyor.
TAXES. Unless otherwise provided for in this Agreement, the domestic sales price is inclusive of VAT, and the oversea sales price is exclusive of taxes.
TRANSFER OF RISK AND OWNERSHIP. Risk of loss of and damage to product shall pass to Buyer in accordance with the Incoterm specified in Seller's Order Confirmation or separate sales contract. Buyer assumes all risk and liability for loss, damage, or injury to the person or property of Buyer or other parties arising out of the use or possession of any product sold hereunder.
STORAGE. Should the pick up or shipment of the product be postponed for any reasons beyond the delivery date, Seller may, but is not obliged to, keep the products in storage free of charge (and at Client’s sole risk) for a maximum period of sixty (60) days from the delivery date. Upon expiry of such 60-days period Supplier shall have the right to demand the Buyer to assume the storage and handling costs, as well as demand the Buyer to fully pay the purchase price of the products that have not been picked up.
WARRANTIES. There are no warranties which extend beyond the description on the face hereof, and Seller makes no warranty, expressed or implied, of satisfactory quality, merchantability, fitness for any particular use or otherwise, except that the products sold hereunder shall meet Seller's applicable standard specifications or such other specifications as may be notified by Seller to Buyer from time to time. Buyer assumes all risk whatsoever as a result of the use of the products purchased, whether used singly or in combination with other substances or in any process.
LIMITATION OF CLAIMS. Seller's maximum liability for all claims for a shipment due to any cause whatsoever, whether based in contract, tort or otherwise, shall be no greater than the invoiced price of that shipment, or at Seller's option, and only in the case of claims regarding defective or non-conforming product, to replacement of such products, provided that in all cases Buyer shall be under an obligation to mitigate any loss as far as possible. Seller shall not in any event be liable for any special, incidental, exemplary or consequential damages. All claims for any cause whatsoever, whether based in contract, tort or otherwise, shall be deemed waived unconditionally and absolutely unless Seller receives complete written details of such claim and all supporting documents required by Seller not later than sixty (60) days after Buyer's receipt of product as to which such claim is made. Receipt will be deemed to have taken place for purposes of this subparagraph when product title and risk pass to Buyer.
LATE PAYMENTS (If applicable). If the Buyer late in making a payment, the Seller shall grant the Buyer a 7-day grace period. If the Buyer fails to make payment after the grace period, the Buyer shall pay interest to the Seller at the Loan Prime Rate (LPR) published by the National Interbank Funding Center. For late payments of one year or less, interest shall be calculated based on the 1-year LPR; for late payments exceeding one year, interest shall be calculated based on the 5-year LPR.
FAILURE IN PERFORMANCE. Failure by Seller to deliver on a specific date shall not entitle Buyer to repudiate this Agreement. Buyer shall not be relieved of any obligations to accept or pay for products by reason of any delay in delivery or dispatch. Furthermore, no liability shall result to either party for delay in performance or non-performance of an obligation hereunder (except an obligation to make payment) in whole or in part caused by circumstances reasonably beyond the control of the party affected, including but not limited to war, strike, lockout, fire damages, unexpected and substantial business shutdowns and/or business disruptions – provided that these are not culpably caused by lack of maintenance and servicing measures –, traffic congestions, delivery disruptions by pre-suppliers or subcontractors, unavoidable regulatory provisions, delay in deliveries due to negative effects of Brexit such as time delays at borders/customs/immigration etc., earthquakes and other natural phenomena, epidemics and supply chain disruptions caused by epidemics such as but not exclusively lack of transport equipment and/or means of transport etc., officially ordered quarantine measures as well as other cases of force majeure of any kind shall release from the obligations of this contract for the period of the event and the scope of its effects. Regardless, however, of the occurrence or nonoccurrence of any such circumstances, if for any reason supplies of product or feedstock for making product, from any of Seller's existing sources are curtailed or are inadequate to meet Seller's own requirement and/or its obligation to its customers, Seller's obligation to deliver product during such period shall be reduced to the extent necessary, in Seller's sole judgment, to apportion fairly among Seller's own requirements and its customers (whether under contract or not) such products as received and as may be available in the ordinary and usual course of Seller's business from any existing sources of supply at the location(s) from which deliveries like those covered hereby are normally shipped. Seller shall not be obligated to purchase or obtain product, or feedstock to make product, to replace deliveries omitted or curtailed under this paragraph. In case of an occurrence or a removal of an event of force majeure, the other contracting party shall be notified immediately in writing (via telefax or e-mail) stating the date of occurrence or the date of removal. The respective contracting party shall confirm receipt of such notification immediately in writing (via telefax or e-mail). In the event of an occurrence of force majeure as defined in this provision, the contractual partner affected by force majeure shall in all cases strive to the best of its ability and insofar as this can be considered economically justifiable to fulfil its contractual obligations and make every effort to remedy any interference causing disruptions.
MODIFICATION AND AMENDMENTS. There are no oral understandings, representations or warranties between the parties that conflict with these Standard Terms and Conditions or the details of price, payment, shipment or delivery schedule as communicated by Seller. No modification of any Standard Terms and Conditions shall be of any force or effect unless such modification is in writing and signed by the party to be bound thereby, and no modification of the same shall be effected by the acknowledgement of Buyer's purchase orders or equivalent forms containing terms and conditions at variance with those set forth herein and all such terms or conditions in Buyer's purchase orders or equivalent forms shall be considered null and void. In the event that Buyer wishes to re-sell the products to a third party(ies), and requests Seller to incorporate a reference to such or other third party(ies) in any shipping or other document, Buyer agrees to indemnify Seller and hold it harmless in respect of any liability, loss or damage of whatsoever nature which it may sustain by reason of acceding to Buyer's request, and, if required by Seller, to provide a written confirmation of the same.
GOVERNING LAW AND JURISDICTION. This Agreement shall be governed by the laws of the People's Republic of China without referring to its conflict of laws principles. Parties agree to exclude the application of the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be settled through friendly consultations between Seller and Buyer. In the event that no settlement is reached, then such dispute, controversy or claim shall be submitted to the competent court of the domicile of the Seller.
ASSIGNMENT. This Agreement shall not be assigned, in whole or in part, by either party without the prior written consent of the other party, but shall be binding upon and shall inure to the benefit of the legal successors of the respective parties hereto; except that Seller may assign this Agreement, in whole or in part, to any affiliate. For purposes of this Clause, an "affiliate" of Seller means the ultimate holding company of Seller or any corporation of which fifty percent (50%) or more of the stock is held directly or indirectly by such ultimate holding company.
DEFINITION. To the extent not inconsistent with the terms hereof, Incoterms 2020 shall apply hereto.
NO WAIVER. No waiver by either party of any breach of these Standard Terms and Conditions shall be construed as a waiver of any succeeding breach of the same.
CREDIT. At Seller's request, Buyer shall furnish Seller with security on terms stipulated by Seller. If at any time Buyer fails to make payment when due or if Seller determines, in its sole discretion, that the financial status of Buyer is impaired or that the level of security provided does not for any reason reflect fairly or adequately the financial risk or exposure undertaken by Seller, Seller shall have the right, without prejudice to its other rights in contract or at law, upon notice to Buyer, to withhold further deliveries of product, change any terms of payment or credit, suspend performance under this Agreement, accelerate payment obligations such that all amounts owed under prior deliveries and not paid shall become immediately due and payable, require Buyer to furnish security as deemed appropriate by Seller and/or exercise rights against any collateral and apply the proceeds against amounts due and owing. Seller shall in any event have the right to set-off any claim that Seller (or its affiliate) may have against Buyer (or its affiliate), against any sum which Seller may owe to Buyer (or its affiliate).
In the event Seller requires a documentary letter of credit, it shall be issued by an international bank in form and substance acceptable to Seller. A clean letter of credit is to be received by Seller prior to the estimated shipment date or by such date as Seller shall agree. Seller shall have no obligation to deliver product if the letter of credit is not so received by Seller.
Without prejudice to Seller's other rights in law and contract, it is agreed that Buyer shall indemnify and hold harmless the Seller from and against any dead-freight, vessel and/or port charges and payments, demurrage and/or any damages, losses or expenses incurred as a result of any delay in loading or non-delivery of any product under this Agreement arising from Buyer's failure or delay in providing the letter of credit in accordance with the terms of this Agreement.
BUSINESS PRACTICES. (a) Business Standards. Each party to this Agreement shall establish precautions to prevent its employees or subcontractors from making, receiving, providing or offering any substantial gifts, extravagant entertainment, payments, loans, or other considerations to the employees of the other party and/or their families and/or third parties in connection with this Agreement.(b) Compliance With Law. Each party agrees and will secure agreement by its subcontractors to comply with all applicable laws, regulations, decrees and judicial orders. Notwithstanding anything in this Agreement to the contrary, no provision shall be interpreted or applied so as to require any party to do, or refrain from doing, anything which would constitute a violation of, or result in a loss of economic benefit under, United States anti-boycott and other export laws and regulations. Each party represents to the other party that it shall not make any improper payments of money or anything of value to a government official (whether appointed, elected, honorary, or a career government employee) in connection with this Agreement, nor shall it make improper payments to a third party knowing or suspecting that the third party will give the payment, or a portion of it, to a government official. The Products may be subject to U.S. or other export control laws and regulations, including the U.S. Export Administration Regulations. Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, transship, transfer, deliver, or otherwise release any Products to any jurisdiction or country to which, or any party to whom, or for any use for which, the export, reexport, or release of Products is prohibited by applicable law, regulation, or rule. Buyer agrees to provide Seller with all end-use, end-user, and destination information as may be reasonably required to ensure compliance with applicable laws. Buyer understands that Seller or its ultimate parent is a U.S. person and is subject to laws and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control or other government authorities, where such laws and regulations include economic sanctions and trade embargoes that prohibit dealing, directly or indirectly, with designated countries, regimes, entities, and persons, including those owned 50% or more by or, in some cases, otherwise controlled by such designated parties. Buyer complies with and affirms that it is not a target of or otherwise subject to any such sanctions or embargoes. Buyer shall comply with all U.S. antiboycott laws and regulations. Buyer shall be responsible for any breach of this Section by its, and by its successors’ and permitted assignees’, affiliates, employees, officers, directors, customers, agents, distributors, resellers, or vendors. Buyer agrees to indemnify and hold Seller harmless from any claims, damages, liabilities, or penalties arising from Buyer’s or Buyer’s successors’ or permitted assignees’ non-compliance with the provisions of this Section. Buyer’s obligations under this Section shall survive the termination or expiration of this Agreement. (c) Notice of Non-Compliance. Each party (the "Relevant Party") agrees to notify the other party promptly upon discovery of any instance where the Relevant Party fails to comply with this Clause. If either party discovers or is advised of any errors or exceptions related to its invoicing under this Agreement, both parties will together review the nature of the errors or exceptions, and will, if appropriate, promptly take corrective action that is necessary on its part and adjust the relevant invoice or refund overpayments.