1. MISCELLANEOUS PROVISIONS
1.1 This General Terms of Sale apply to all sales from Wuxi Huifeng Machineryt Co., LTD. (in the following: the Seller) to entrepreneurs, corporate bodies under public law or special Public Properties (in the following: the Buyer). The Seller expressly disagrees with conflicting or differing terms of the Buyer. General Terms provided by the Buyer shall only apply when expressively agreed in writing; in particular such agreement may be done for special promotion or discount orders.
1.2 Material, specification, quantity, prices or fixing price, delivery and payment shall be arranged as stated in the Contract.
1.3 Risk of loss or damage shall pass to the Buyer according to the ICC Incoterms 2000.
1.4 If the Buyer's business shall be operated beyond the ordinary course of business which shall include, without limitation, payments shall be delayed or insolvency proceedings shall have been petitioned, then we shall have the right to declare all our claims arising from the business relationship as immediately payable. The same shall apply if other incidents shall surface which give rise to doubts about its creditworthiness. Moreover, the Seller may in such event demand prepayments or a security deposit or rescind the agreement.
1.5 The Buyer shall have no right to set off, retention or reduction unless the underlying counterclaims have been conclusively determined by a court or expressly acknowledged by the Seller.
1.6 Each Party shall have the right to assign the rights from the present agreement to a third Party which shall not become effective if the other Party objects in writing within 4 weeks of notification to such effect; assignor shall point this out in the notification. However, each Party shall be entitled, without the consent of the other Party, to assign rights from the present Contract to other companies within the company group.
1.7 The Seller's offer does not imply a binding offer in the legal sense, but an invitation to the Buyer for presenting his offer. A contract between the Buyer and the Seller is closed when the Buyer receives a written and so named acceptance of order by the Seller. The acceptance of order includes particulars of the order. If the acceptance of order varies from the Buyer's order, it is held to be a new offer provided by the Seller, which requires a written acceptance by the Buyer.
1.8 The prices are agreed with terms and conditions as fixed with the Sales Agreement.
2. INSPECTION AND OBJECTION
2.1 Upon taking possession, the Buyer shall immediately check quantities, weight and packaging and record any objections thereto on the delivery note or consignment note.
2.2 The Buyer shall carefully conduct a quality check representatively on a spot check basis.
2.3 Objection shall clearly specify the kind and amount of the alleged defect. Notification shall be delivered to the Seller in writing, by telegraph, telex or fax conforming to the following deadlines:
(a) Objection referring to 2.1: within 7 days after possession of the goods has been taken
(b) Objection referring to 2.2: for obvious defects: within 7 days after possession of the goods has been taken; for hidden defects: within 7 days after the hidden defect has been detected by the Buyer or its representatives.
2.4 Right to object shall cease to exist, when the Buyer has mixed, used or transferred the goods to others in the sense of §§ 929, 930 or 931 of the German Civil Code, or when it shall have started its processing.
2.5 Right to object shall become statute-barred if the Buyer fails to meet his obligations stipulated in 2.3 above.
3. WARRANTY, DEFAULT
3.1 In case of one Party commits a breach of contract, the other Party shall be entitled to give the defaulting Party notice in writing to remedy the breach.
3.2 The Seller warrants that the goods to be supplied conform to the specifications stated in the Contract. However, this shall not be considered as a guarantee declaration, but as an agreement regarding condition of the goods.
3.3 In case of quality objection, the Parties shall jointly appoint an independent, authorized technical expert to get its opinion. Upon justified objections raised in accordance with the procedures and deadlines of this Contract, the Seller shall be obliged to supplementary performance which shall be carried out by rectification of the deficiency or by providing goods free of deficiencies at the Seller's discretion.
3.4 If the subsequent remedy fails within the scope of the law, the Buyer shall be entitled to rescind the agreement or reduce payment and to cover damages in accordance with the limitations stated in this Contract.
3.5 The warranty period and related claims due to a deficiency shall become statute-barred after 12 months from delivery.
4.1 The Seller shall be liable without limitation for damages resulting from injury to life, body or health or damages caused through intent or gross negligence.
4.2 Violating cardinal contractual obligations due to intent or gross negligence, the Seller shall only be liable for contractual foreseeable, typical damages. The amount shall be limited to the respective order value as specified in the order documents.
4.3 The Seller shall not be liable for the violation of non-cardinal contractual obligations.
4.4 Further claims for damages, e.g. liability for consequential damages, including the loss of anticipated profits on the part of the Buyer, shall be expressly excluded.
4.5 For claims regarding the reimbursement of expenses as opposed to claims regarding damages, the sections mentioned before shall apply accordingly.
5. RETENTION OF TITLE
5.1 The Seller shall retain full title of the goods that have been delivered until the Buyer has discharged all claims arising from the business relationship.
5.2 The Buyer shall have the right to dispose and process the goods delivered by the Seller within the ordinary course of business. The authority granted hereunder shall cease in the cases referred to in 1.4 of this Contract. The processing shall be free of charge for the Seller's benefit as Manufacturer in the sense of § 950 of the German Civil Code.
5.3 If the goods in which the Seller has retained title shall be inseparably assembled or mixed with goods that are third Party property, then the Seller shall acquire co-title in the new goods or the mixed stock following from the proportion of the invoice values.
5.4 The Buyer hereby assigns to the Seller all claims arising from the resale of the goods delivered under retention of title. The Seller hereby accepts such assignment.
5.5 Where the Seller's claims shall be undoubtedly be secured through the assignment and retention by more than 125%, any surplus of receivables and / or goods delivered under retention of title shall, upon demand of the Buyer, be released in accordance with the Seller's choice.
5.6 The Buyer shall be authorized to collect any receivables arising from the resale of goods. Such authority shall cease to exist in the cases referred to in 1.4.
5.7 If the Buyer shall be in breach of contract, in particular in payment default, then it shall, upon the Seller's demand, immediately return all goods delivered under retention of title to the Seller and assign to the Seller any repossession claims against any third Party in conjunction with such goods. Any repossession or enforcement proceedings with regard to the goods delivered under retention of title shall not be regarded as a rescission of this Contract.
6. FORCE MAJEURE
The Seller shall not be responsible or liable for any failure on his part to perform or fulfill any obligation, covenant, condition or promise under this contract on account of or because of any of the following: an act of Buyer or Buyer's agents; an act of any governmental authority; an act of any public enemy; an act of God; the elements; war; war defense conditions; riots; litigation; strikes; walkouts; lockouts; force majeure; or any other act or cause which is beyond our control.
7. ORDER CANCELLATION AND DELAY
7.1 If the Buyer resigns from Contract and by this commits breach of Contract, the deposit payment will be used on the Seller's production, transportation and other costs, and will not be returned. The Seller is entitled to claim further damages.
7.2 If the Seller resigns from Contract and by this commits breach of Contract, the Buyer shall be awarded 10% of the order amount as damage compensation. Further damages shall be barred. Deposit payment shall be returned to the Buyer without any interest.
7.3 If the Buyer fails to pay in time, for then the Seller shall have the right to recover default interest equaling 8% above the base rate of the European Central Bank.
7.4 In case of delay in delivery the Seller shall pay to the Buyer for every beginning calendar week of delay a penalty amounting to 0.5% of the Purchase Price of the goods in delay. The total amount of penalty shall not, however, exceed 5% of the total value of the goods involved. If delay exceeds 10 weeks after the stipulated delivery date, the Buyer has the right to resign from part of this Contract as far as goods in delay are concerned. Other claims for damage compensation due to delay in breach of contract shall be excluded.
8. FINAL PROVISIONS
8.1 The Parties choose their respective addresses set out in the agreement for all purposes arising out of or in connection with this Contract. A Party may at any time change its address by notice in writing to the other Party.
8.2 Modifications and supplements to the Contract shall not be valid unless in writing and signed by both Parties. This shall also apply to modifications and supplements of this provision.
8.3 The courts of Dusseldorf, Germany shall have jurisdiction over all disputes arising from the Seller's and the Buyer's business relationship.
8.4 The procedural and substantive law of Germany shall apply. Save as the ICC Incoterms 2000, international purchase laws shall not apply. This shall, in particular, refer to the UN Convention (CISG) on the International Sale of Goods.
8.5 The invalidity of any provisions of the Contract shall not affect the validity of the other provisions. Invalid provisions shall be deemed to be placed by such valid provisions that shall be suitable to implement the economic purpose of the deleted provision to the greatest extent possible.