The terms set forth below shall be incorporated into the Order Confirmation entered into between your side (the Buyer) and API Heat Transfer (Suzhou) Co., Ltd., together with its subsidiaries and authorized distributors (collectively the Seller), and shall form an integral part of such Order Confirmation. Where the Order Confirmation contains separate written stipulations, such stipulations shall prevail. In the absence of special provisions therein, the present terms shall be legally binding upon both the Buyer and the Seller.
1. Acceptance and Binding. All purchase orders are subject to acceptance at Seller’s factory, and Seller shall have no liability until and unless they are so accepted. Sales representatives are not authorized to bind Seller. Clerical errors are subject to correction. Seller shall not be bound by any representations or warranties which are not expressly set forth in writing and signed by an authorized employee of Seller.
2. Prices and Taxes. Unless otherwise acknowledged by Seller in writing: (i)Seller may adjust selling prices due to raw material costs and market fluctuations;
(ii) Settlement prices are governed by the Order Acknowledgmentt; (iii) Absent special agreement, delivery is at Seller’s factory for Buyer self-pickupt; (iv) All quotations in the Order Acknowledgment are tax-inclusive.
3. Terms of Payment. Terms of payment shall be as stated in the Order Acknowledgment. In the event payment is not made promptly when due, Buyer agrees to pay a penalty at the rate of 0.05% per day from the due date.
Partial shipments on quantity orders shall be deemed a separate and independent contract for billing.
Buyer shall bear all costs incurred by Seller for debt recovery, including but not limited to attorney fees, litigation costs, preservation fees and travel expenses.
Under no circumstances, the terms of payment should be linked to an expected date of payment of a customer of the Buyer.
If Seller is prepared to make shipment, and Buyer delays delivery, terms of payment shall apply as though delivery had been effected as of the date that Seller was prepared to make shipment.
4. Credit Approval. Shipment of goods under the Order Acknowledgment shall be subject to continuous approval by Seller’s risk control department. If Seller verifies that Buyer’s credit status has significantly deteriorated, including without limitation overdue large mature debts, judicial seizure/freezing/preservation of major assets, material litigation or enforcement cases, suspended operation or insolvency, Seller reserves the right to refuse shipment at any time unless Buyer pays in advance, provides security or accepts transaction terms acceptable to Seller.
5. Shipment. Shipping dates are approximate and may be contingent upon the prompt receipt from Buyer of drawing and data approval, or written release for procurement and fabrication. Seller shall have no liability for delays in delivery. All shipments from the factories of Seller are made in accordance with freight terms determined in the Order Acknowledgement. Method and route of shipment are at Seller’s discretion, unless Buyer supplies explicit instructions that are accepted by Seller in writing.
Risk of Loss Passing Rule: The risk of loss shall pass to the Buyer as of the date when the Seller notifies the Buyer that the goods are ready for collection.
The Buyer’s acceptance of the goods shall constitute a waiver of all claims arising out of delayed delivery.
6. Export Control. Buyer ensures that any deliverable under the purchase order or method of transportation will not be reshipped to any locations which are restricted or prohibited by any export control laws or regulations.
The Buyer shall indemnify the Seller against all losses resulting from unauthorized reshipment or unauthorized use of the Goods, including fines, administrative penalties, third-party claims, litigation costs and attorneys’ fees, and shall cover all costs expended by the Seller for asserting its rights.
To the extent that all or any part of this paragraph violates applicable or local law, this paragraph shall be enforced to the fullest extent as may be allowed by law.
7. Cancellation and Changes. Buyer shall not arbitrarily cancel orders. If cancellation is required, Buyer shall bear all cancellation costs, including but not limited to Seller’s invested materials, labor, processing costs, supporting service expenses, lost anticipated profits and all external liabilities arising from the Order.
If Buyer requests changes to product specifications, technical standards or delivery schedule, Seller reserves the right to accept or reject such requests. Any approved change shall take effect only after both Parties renegotiate and adjust the product price and payment terms.
8. Indemnity. If the Goods under the Order Acknowledgment cause third-party personal injury or property loss while in the possession, custody or use of the Buyer or Buyer’s successor-in-interest, all liabilities shall rest solely with the Buyer. The Buyer shall indemnify the Seller for all resulting losses, including but not limited to litigation fees, attorney fees and preservation fees, and hold the Seller harmless from all relevant legal liabilities.
9. Indemnity for Infringement of Intellectual Property Rights. Except as stipulated herein, Seller shall not be liable for any infringement of patents, trademarks, copyrights, trade dress, trade secrets or other similar intellectual property rights.
Where a third party claims the Goods under the Order Acknowledgment infringe its intellectual property rights and such infringement is confirmed by judicial authorities, Seller may elect any of the following remedies at its sole discretion:(i)Obtain legal authorization for Buyer’s continued use of the Goods;(ii)Replace or modify the Goods to eliminate infringement;(iii)Accept returned Goods and refund payment after deducting reasonable depreciation.
Seller shall be exempt from liability for infringement claims arising from any of the following circumstances:(i)Claims based on materials supplied by Buyer;(ii)Goods fully or partially designed per Buyer’s specifications;(iii)Infringement caused by Buyer’s modification, combination with other equipment or use in supporting systems.
Seller reserves the right to recover all resulting losses from Buyer.
This Clause constitutes Seller’s sole and full liability for intellectual property infringement and Buyer’s exclusive remedy for related claims.
Counter-Indemnity Obligation of Buyer: If infringement claims stem from Buyer-supplied materials or Buyer-specified full/partial designs, Buyer shall conduct all defense work and indemnify Seller for all related costs, expenses and awarded damages.
10. Installation, Initial Operation and Service, Lifting Devices. All material shall be installed by and at the expense of Buyer. Should Buyer request the services of Seller, such service shall be rendered and charged at the established rate at the time of performing said service, plus all other expenses including travel, hotel bills and living expenses. Seller assumes no liability for Buyer’s use or application of lifting devices attached to or installed on product or material provided by Seller. Lifting devices such as eye bolts, rings, loops, clips, etc. when permanently attached to component parts are intended to lift only those components to which they are attached.The Seller shall not be liable for any equipment damage, personal injury or death caused by the Buyer’s improper use of lifting fittings. All risks arising from the Buyer’s own operation and use of lifting equipment shall be borne solely by the Buyer.
11. Tooling. Any tooling designed or produced by Seller in the manufacture of any product or material sold to Buyer shall remain the sole and exclusive property of Seller, unless the cost of designing and producing the tooling is paid by Buyer in which case such tooling shall be the sole and exclusive property of Buyer and shall be provided to Buyer upon completion of the work.
12. Corrosion and Vibration. Seller shall have no responsibility, without any exceptions, for the determination of any corrosion allowance in any equipment which it builds or quotes. This decision is the responsibility of Buyer. Accordingly, Seller shall not be responsible for loss or damage resulting from any failure to provide corrosion allowance or anti-corrosive materials, or from deterioration of any part of the equipment due to corrosion, erosion, flow induced tube vibration, or any other causes regardless of when such deterioration occurs. In addition, Seller shall not be responsible for excessive fouling of the equipment by material such as coke, silt, scale or any foreign substance that may be deposited.
If the Buyer has special requirements, it shall provide the equipment corrosion allowance, anti-corrosion scheme and anti-vibration design standards, which shall be separately agreed by both Parties in the Order Acknowledgment.
13. Software Programs. Computer software programs that may be included in material or products sold to Buyer have been designed to perform a given set of tasks as defined in the documentation provided and are offered AS IS. It is Buyer’s responsibility to determine if the features of the software programs are suitable for Buyer’s requirements and must confirm that the software programs operate correctly. Buyer understands that such software programs are of such complexity that they may have inherent defects and that Seller makes no warranty that all software features will perform correctly as supplied. For Seller’s software utilizing automation servers, improper reading and writing data to the automation server can cause the automation server software to malfunction and may cause the
14. Limited warranty
14.1 Scope of seller's warranty
(1) The products conform to the descriptions set forth in the order confirmation at the time of shipment;
(2) The products are free from material and workmanship defects for a period of twelve (12) months from the date of shipment;
(3) The heat exchanger, when operated under the design conditions specified in the purchase order or as stated in the seller's heat exchanger specification sheet, shall meet the warranted thermal and mechanical performance requirements.
The foregoing warranties constitute the seller's sole and exclusive warranties with respect to the products under this order. The seller makes no other warranties, express or implied.
All other statutory or customary implied warranties, including but not limited to warranties of merchantability and fitness for a particular purpose, whether express or implied, or arising under law, industry practice, or course of dealing, are hereby excluded in their entirety.
14.2 Exclusions from warranty
For products manufactured wholly or partially in accordance with the buyer's drawings or specifications, the seller warrants only that such products are strictly fabricated in conformity with the buyer's written-confirmed documentation, and assumes no warranty liability whatsoever with respect to the buyer's design scheme, selected parameters, or fitness for the intended operating conditions.
If any product failure or failure to meet performance specifications results from the buyer's design defects, erroneous parameters, mismatch with operating conditions, unauthorized modifications by the buyer, or compatibility issues with ancillary systems, the seller shall not assume any warranty, repair, or compensation obligations.
15. Limitation of Remedy. Limitation of Remedies. For any dispute arising from contract, warranty or tort (including negligence, failure to warn and strict product liability), Seller’s total liability for the Goods shall be limited to one remedy selected solely by Seller: repair the Goods, replace the Goods or refund Buyer's paid amount.
Seller’s maximum compensation liability for breach of contract, warranty or tort shall not exceed the contract price of the corresponding batch.
Under no circumstances shall Seller be liable for incidental, consequential or special damages, including but not limited to lost profits.
16. Seller’s Lien Right. Seller shall have the right, in addition to all others it may possess, at any time, for credit reasons or because of Buyer’s default, to withhold shipments, in whole or in part, and to recall goods in transit, retake same, and repossess all goods which may be stored with Seller for Buyer’s account, without the necessity of taking any other proceedings, and Buyer consents that all goods so withheld, recalled, retaken or repossessed shall become Seller’s absolute property, provided that Buyer is given full credit therefor. The foregoing shall not be construed as limiting, in any manner, any of the rights or remedies available to Seller because of any default by Buyer.
17. Controlling Provisions. If the Order Acknowledgment is accepted and Buyer’s purchase order is used for any purpose, it is expressly understood and agreed that the terms and conditions set forth in the Order Acknowledgment and these Terms and Conditions of Sale shall prevail insofar as the same may in any way conflict with the terms and conditions set forth in Buyer’s order form, and the issuance of such order by Buyer shall be deemed to note Buyer’s assent to the foregoing. Provisions in Buyer’s purchase orders contrary to these terms and conditions are not binding upon Seller unless accepted in writing by an authorized agent or representative of Seller. The terms and conditions of the Order Acknowledgment and herein shall supersede any provisions, terms and conditions contained in any confirmation, order or other writing Buyer may give or receive and the parties shall be governed exclusively by the provisions, terms and conditions hereof. Seller makes no representations or warranties concerning the Order Acknowledgment except such as are expressly contained in the Order Acknowledgment and these Terms and Conditions of Sale, which may not be changed or modified orally.
18. Force Majeure. Seller shall not be liable for any delay in the performance of the Order Acknowledgment, or in the delivery or shipment of goods, or for any damages suffered by Buyer or its customers by reason of such delay, if such delay is, directly or indirectly, caused by, or in any manner arises from, fires, floods, accidents, civil unrest, acts of God, war, governmental interference or embargoes, strikes, labor difficulties, shortage of labor, fuel, power, materials, or supplies, transportation delays, or any other cause (whether or not similar in nature to any of those hereinbefore specified) beyond its control.
19. Conditions. The Order Acknowledgment is accepted with the understanding that it is subject to Seller’s ability to obtain the necessary raw materials, and the Order Acknowledgment and all shipments applicable thereto are subject to Seller’s current manufacturing schedules, and governmental regulations, orders, directives and restrictions that may be in effect from time to time.
20. Assignment. Buyer shall not assign, subcontract, delegate or transfer in any way the Order Acknowledgment, in whole or in part, without the prior written consent of Seller and any such assignment, subcontract, delegation or transfer without Seller’s prior written consent shall be void.
Even if the Seller grants written consent to the assignment, the Buyer shall remain jointly and severally liable for all contractual obligations under the Order.
21. Non-Waiver by Seller. Waiver by Seller of a breach of any of the terms and conditions of the Order Acknowledgment or these Terms and Conditions of Sale shall not be construed as a waiver of any other breach.
22. Language Precedence. If there is any inconsistency between the Chinese and English versions of this Contract, the Chinese version shall prevail.
23. Governing Law and Jurisdiction.
Governing Law: This Order Acknowledgment and these Terms of Sale shall be governed by the laws of the People’s Republic of China.
Jurisdiction: Any dispute arising out of or in connection with this Order shall be subject to the exclusive jurisdiction of the People’s Court of Suzhou Industrial Park where the Seller is located.
