1. These Terms and Conditions of Sale (" GTS ") apply to the entire business relationship between Shenzhen KPSEN Technology Co., LTD. (hereinafter referred to as "KPSEN") and its respective customers (hereinafter referred to as "Customers"). These Terms and Conditions of Sale apply in particular to the sale and/or delivery of movable property (hereinafter referred to as "Goods") regardless of whether KPSEN manufactures the goods or purchases them from a sub-supplier. Insofar as the provisions of the terms and Conditions of Sale themselves apply to the services provided, the terms and conditions of Sale shall also apply to the corresponding service contract. This shall include, but is not limited to, contracts for customer-specific development services or feasibility studies that KPSEN undertakes to provide to the customer. If KPSEN's delivery obligations include the transfer or grant of the right to use the software, KPSEN's End User License Agreement shall apply in lieu of the terms and conditions of Sale.
2. The application of the terms and conditions of Sale is exclusive. If the Customer's terms and conditions conflict with the terms and conditions of sale, KPSEN does not recognise the application of the Customer's terms and conditions unless KPSEN has expressly agreed in writing to their applicability. The Terms and Conditions of Sale shall apply in all circumstances, which means that they will apply even if delivered without reservation at KPSEN and even if KPSEN knows that the general terms and conditions used by the Customer conflict with or differ from the terms and Conditions of Sale.
3. Separate agreements (including binding side agreements, contract modifications or amendments) may be entered into between KPSEN and the Customer from time to time and these agreements shall in any case prevail over the terms and conditions of Sale. Such agreements shall be binding on KPSEN only if they are reflected in a written document signed by or confirmed in writing by KPSEN, unless evidence can be produced to the contrary.
4. The relevant statutory declarations and notices made by the Customer in relation to the Contract (such as the setting of time limits, notices of defects, rescission of the contract or price reduction) must be made in writing (i.e. in writing or in text (e.g. letter, E-mail, fax, etc.)).
5. Unless otherwise agreed by the parties from time to time in exceptional circumstances, the version of the Terms and Conditions of Sale in force at the time the Customer places the order or the version of the Terms and Conditions of Sale most recently notified to the Customer in writing shall also apply as a framework agreement to each future contract of a similar nature with the Customer without the need for the Parties to refer to the Terms and Conditions of Sale again in each transaction. The terms of the law or regulation referred to in the terms and conditions of Sale are for clarification purposes only. However mentioned, statutory legal provisions shall apply, except where the terms and conditions of Sale expressly modify or exclude them.
6. The terms and conditions of Sale do not give rise to any rights in relation to the Customer as a result of the Customer's business relationship with any associated company of KPSEN (an associated relationship under Section 216 (4) of the Companies Act).
1. KPSEN's quotation is non-binding and subject to change at any time. If KPSEN provides the Customer with product catalogues, technical documents (including but not limited to drawings, plans, presentations, calculations, references to international standards, etc.) or other product presentations or documents in electronic or other forms, the offer of KPSEN's partners is also non-binding and subject to change at any time. KPSEN retains ownership and copyright. Quotations may not be provided to third parties without KPSEN's prior written consent.
2. The Customer's order shall constitute a binding contract offer. KPSEN has the right to accept the Contract Offer within four (4) weeks after receipt of the Contract Offer. KPSEN may declare acceptance of the offer in writing (for example, by sending a letter of acknowledgement or confirmation of the order), in text (for example, by email) or by delivery of the goods to the Customer.
1. Unless otherwise agreed, KPSEN shall deliver the goods on FOB (place specified as KPSEN's production base) basis under InCOterms 2010.
2. The delivery date shall be separately agreed or specified by KPSEN upon acceptance of the order. The deadlines and dates for delivery and performance announced by KPSEN are only approximate dates, and KPSEN shall not be liable for breach of contract due to late performance, unless a fixed period or due date for delivery and performance is expressly stipulated in the contract as an accurate and binding term.
3. If KPSEN is unable to comply with the binding delivery schedule due to reasons beyond its control (including those of sub-suppliers or other third parties), KPSEN shall not notify the Customer of the failure without undue delay and shall inform the customer of the new expected delivery schedule. KPSEN reserves the right to terminate the contract in whole or in part if the contract cannot be performed within the new delivery period; In such case, KPSEN shall immediately reimburse any advance payment made by the customer to KPSEN without further liability for breach of contract. This provision applies in particular to the case of a delay in delivery by a sub-supplier of KPSEN in the event that KPSEN has entered into a purchase agreement for the goods with the sub-supplier, provided that neither KPSEN nor its sub-supplier is at fault, or that KPSEN is not obliged to purchase in the particular circumstances.
4. If KPSEN delays delivery, it shall be dealt with in accordance with the law. However, KPSEN should inform the customer. In the event of a breach, the Customer is entitled to rescind the Contract only after the four (4) weeks grace period has expired.
5. In the event of circumstances beyond reasonable control, including but not limited to the occurrence of force majeure, KPSEN shall not be obliged to deliver. Force majeure applies to all unforeseen events beyond KPSEN's control or influence, such as strikes, lockouts, wars, uprisings or natural disasters (floods, fires, storms, etc.). The above provisions also apply if the above happens to a sub-supplier of KPSEN. Similarly, KPSEN is not liable if a late delivery has occurred and the above has occurred at the same time. If KPSEN is unable to comply with a binding delivery schedule for reasons beyond its control, KPSEN shall not notify the Customer without undue delay of the non-performance and shall also inform the customer of the new expected delivery schedule.
6. In the event of a breach of delivery by KPSEN, the Customer may seek compensation for late delivery, but no further claims may be made. A penalty for delay shall be paid at 0.5% of the price of the delayed goods for each full week of delay, but the total amount shall not exceed 5% of the price of the delayed goods. KPSEN reserves the right to prove that no loss or damage has occurred to the Customer, or that the loss or damage has occurred is far less than the amount of the above-mentioned penalty for delay.
7. If the Customer requests a delay in delivery, a storage charge shall be charged to the Customer, which shall commence one (1) month after the date of notification of the availability of the goods. If stored on KPSEN premises, the Customer shall pay a weekly storage fee at 0.5% of the price of the goods to be delivered. However, KPSEN shall have the right (a) to fix a reasonable period for the supply of the stored goods, (b) to dispose of the stored goods in any manner after the expiry of such period, and (c) to deliver the goods to the customer within an appropriately extended period. However, the Customer's rights under Article 7 of the Terms and Conditions of Sale, as well as KPSEN's applicable statutory rights, are not affected, in particular where performance of the obligations is impossible (e.g. impossible, unreasonable and/or supplementary performance).
8. KPSEN's compliance with the delivery schedule is conditional on the customer's fulfilment of contractual obligations under each contract or transaction.
1. Unless otherwise stated in KPSEN's order confirmation, the price list of KPSEN in force at the time of signing the contract shall apply, excluding the cost of transport to the agreed place of delivery. Unless otherwise agreed, KPSEN has the right to determine the type of shipment (in particular the type of carrier, shipping route, packaging, etc.).
2. KPSEN shall have the right to increase the price of the goods if the Customer subsequently requests a change in the specifications of the goods, the terms of delivery, or if the Customer fails to provide or subsequently provides the relevant instructions to enable KPSEN to properly perform the contract.
3. Taxes and duties are not included in the price of KPSEN, but will be charged to the customer in accordance with applicable laws and regulations (except for the agreed purchase price). Customs duties can only be charged if KPSEN does not undertake to clear customs at its own expense.
4. If the Customer fails to remit the amount due within thirty (30) days of receipt of the invoice or equivalent payment request, the Customer shall be deemed to be in default. Notwithstanding the provisions of the first sentence of paragraph 4 of Article 4, the Customer shall also be deemed to be in default if the payment of the payment is agreed on a specified calendar date and the Customer fails to remit the payment by that date at the latest. Payment shall be arranged when the invoice is due, without discount payment or other deductions. KPSEN reserves the right to deliver only the goods for which payment has been made in advance (especially in the event of a first order or payment default).
5. Payment shall only be deemed to have been received if KPSEN can actually obtain the relevant payment.
6. The Client shall only be entitled to set off KPSEN's monetary claims with uncontested or final counterclaims. Furthermore, in such cases, the Customer is entitled to exercise the right to withhold payment, provided that the Customer's counterclaim arises out of the same contractual relationship or transaction.
7. In case of payment default, a penalty for delay shall be paid at 0.5% of the price of the goods delayed for each full week of delay, up to a maximum of 5% of the contract value. KPSEN also has the right to suspend performance if the customer defaults on payment; If no payment is made before the expiry of the grace period set by KPSEN, the business relationship with the customer may be terminated immediately.
8. If the customer fails to pay the claimed amount in time, including but not limited to liquidated damages, KPSEN has the right to decide whether to continue to deliver the goods to the Customer. If, after the contract has been signed, KPSEN finds that the customer's credit rating has decreased (for example, by filing for insolvency proceedings, etc.), leading KPSEN to believe that the Customer may not be able to meet its commitments, or that the customer has deliberately misrepresented its credit rating, KPSEN has the right to refuse to perform the contract; If necessary, KPSEN has the right to rescind the contract if, after the fixed deadline, the customer has not recovered its ability to perform and has not provided appropriate guarantees. In this case, KPSEN has the right to demand an advance payment regardless of the previously agreed payment method and terms.
1. The risk shall be transferred to the customer at the latest when the goods are actually delivered to the customer. However, if it is necessary to ship the goods, the risk of accidental loss and deterioration of the goods has passed to the customer when the goods are delivered to the carrier, freight forwarder or any other person or institution designated to handle the shipment. This also applies in the case of partial delivery, or where KPSEN agrees to assume additional obligations, such as paying for transportation costs or supplying the customer for site and installation purposes. At the customer's request, KPSEN will, at the Customer's request, insure the goods against theft, breakage, transport, fire or Marine and other insurable risks at the Customer's expense.
2. If the shipment is delayed because the customer is responsible for the shipment, the risk shall pass to the Customer on the date on which the shipment instruction is ready; However, KPSEN is obliged to take out the insurance requested by the customer at the customer's request and at the customer's expense. In such case, KPSEN shall be entitled to require the Customer to pay a penalty for delay amounting to 0.5% of the price of the goods delivered late for each full week of delay, but not exceeding 5% of the price of the goods delivered late in total. KPSEN still has the right to produce evidence of higher damages and other statutory claims (in particular reimbursement of additional costs, reasonable compensation, termination of the contract); However, the penalty for delay shall be deducted or set off from further monetary claims. The Customer has the right to prove that KPSEN has not incurred any loss or has only incurred losses in amounts significantly lower than the above-mentioned penalty for delay.
3. The goods delivered shall be received by the customer personally, even if there is a slight defect, without prejudice to the customer's rights under Article 7.
4. The parties will allow partial delivery unless the customer can prove that partial delivery is unacceptable.
5. KPSEN is not obliged to take back transport packaging and other packaging. The Customer is obliged to dispose of any such packaging at his own expense.
1. KPSEN retains ownership and possession of the goods sold (" Retention of Title ") until the Customer has paid in full all current and future receivables arising from the various procurement contracts with KPSEN and throughout the ongoing business relationship with KPSEN and KPSEN's affiliates (" Secured receivables ").
2. The Customer is obliged, at his own expense, to insure the goods subject to retention of title against adequate insurance against theft, fire, WPA and other damage at the replacement value. If the customer does not provide the corresponding proof that the corresponding insurance has been purchased, KPSEN is entitled to insure the goods at the customer's expense.
3. Subject to withdrawal by KPSEN, the Customer has the right to resell and/or process the goods subject to retention of title in the normal course of its business.
4. The Customer has no right to pledge, pledge the goods subject to retention of title, transfer its title to third parties as security or otherwise dispose of such goods to the detriment of KPSEN until the security receivables have been paid in full.
5. If maintenance and inspection of the goods subject to retention of title are required, the Customer must carry out such work in a timely manner at the Customer's own expense.
6. The Customer must notify KPSEN immediately in writing in the event of any of the following events: initiation of seizure or seizure proceedings; Apply for commencement of insolvency proceedings or other creditor protection measures; And any other third party attempting to acquire ownership or possession of the goods owned by KPSEN.
7. The retention of title of KPSEN also applies to new products resulting from the processing, mixing, blending or combination of goods, which are subject to the retention of title according to their full value. KPSEN will be considered the manufacturer of these new products. If the goods subject to retention of title are processed, mixed, blended or combined with the goods of a third party and the third party's title remains valid after processing, mixing, blending or combining, KPSEN shall acquire co-ownership of the new product in proportion to the invoice value of the goods and the invoice value of other processed goods at the time of processing, mixing, blending or combining. The terms and conditions of sale of goods subject to retention of title shall apply mutatis mutandis to these new products.
8. In the event of resale of goods subject to retention of title or sale of products produced therefrom, the Customer hereby assigns to KPSEN, without the need for any further agreement, its future requests for payment of the price due and procurement claims against the Customer or other third parties, whether or not such goods or products have been treated prior to resale, The amount is the final invoice amount (including VAT) paid by KPSEN to the customer. KPSEN hereby now accepts such transfers. Such transfers do not affect the Client's right to receive such receivables or claims, provided that KPSEN's right to receive such claims and receivables directly is not excluded. However, KPSEN undertakes not to collect claims or receivables as long as the customer has fulfilled its payment obligations collected from the proceeds received and has not defaulted on payments (in particular, has not applied for the commencement of insolvency proceedings or stopped payments). However, in the event of any such event, KPSEN may require the Customer to confirm to KPSEN the transferred claims or receivables and the corresponding debtors, to submit to KPSEN all information necessary to collect the claims or receivables, to disclose all relevant and corresponding documents and to notify the debtor (third party) of such transfers. In addition, KPSEN reserves the right to require the customer not to further sell and dispose of goods subject to retention of title.
9. If the total value of the security existing for the benefit of KPSEN exceeds the secured receivables by more than 10%, part of the security will be released by KPSEN at the customer's request, at KPSEN's sole discretion.
10. In the event of any breach by the Customer, especially in the case of non-payment or partial payment of the due amount, KPSEN shall have the right to terminate the contract in accordance with the provisions of the law and/or return the goods to KPSEN in accordance with the basis of retention of title. Customer shall bear any and all expenses incurred in the process of such return. KPSEN argued that retention of title should not be regarded as a declaration of termination of the contract; Instead, KPSEN has the right to demand the return of the goods and reserves the right to rescind the contract. If the customer fails to pay the payment when due, KPSEN can only claim these rights if a reasonable payment period is set for the customer and the customer still fails to pay within that period, or if such a period is not necessary under the applicable law.
1. Unless otherwise provided below, the rights of the Customer shall be subject to the applicable legal provisions in the event of defects in the goods (including incorrect or incomplete delivery, improper installation or incorrect installation instructions).
2. The Customer can only claim damages or reimbursement of invalid expenses for defects in accordance with Article 8; Any other claims shall be excluded.
3. KPSEN's liability for defects is mainly based on the agreement on the condition of the goods. The data and information contained in KPSEN's data sheets, brochures and other promotional and informational materials are for reference only and will only become a binding part of the contract with KPSEN's express written consent.
4. If there is no agreement on the condition of the goods, it shall be determined by the applicable laws and regulations whether the goods are defective. However, KPSEN assumes no responsibility for the public statements of third parties.
5. Within twenty-four (24) months after the transfer of risk, any parts or components of the goods already delivered prove to be unusable or their availability seriously impaired due to conditions that existed before the transfer of risk (in particular due to design errors, quality problems or defects of raw materials or poor workmanship, etc.) shall be at KPSEN's reasonable option, Free repair or replacement.
6. The Customer is entitled to a warranty claim for defective goods on the condition that the Customer promptly inspects the goods in the normal course of its business after delivery and notifies KPSEN immediately of any defects discovered by the Customer. Notice must be in writing. To ensure warranty rights, the customer must notify the KPSEN Partner in writing within 10 days of receipt of the goods of any apparent defects and any defects discovered during the post-delivery inspection, and also within 10 days of discovery of any other defects not detected during the inspection.
7. The rules of paragraphs 5 and 6 apply equally to partial deliveries. Minor deviations in manufacturing, construction or coloring common in commercial trade shall not constitute defects. If the customer fails to carry out a proper inspection of the goods delivered and/or to notify the defects found, KPSEN is not liable by law for defects that the customer fails to notify or that are only notified in an intimely or inappropriate manner.
8. The Customer shall immediately notify KPSEN of all defect claims made by its own customers in relation to KPSEN's goods. Otherwise, the customer may not file a claim against KPSEN for the defect. In addition, the client shall keep the evidence in the necessary form and provide such evidence to KPSEN.
9. If the goods delivered are defective, KPSEN may first choose to remedy the defect by repairing the defective goods or replacing the defective goods with non-defective goods (hereinafter referred to as "supplementary performance"). KPSEN still has the right to refuse additional performance in accordance with the law.
10. KPSEN shall be entitled to demand payment of the due purchase price as a precondition for supplementary performance. And the customer may withhold the appropriate purchase price in proportion to the defect.
11. The Customer has the option of requesting a reduction in the purchase price or rescission of the contract if KPSEN fails to supplement performance more than twice, or if the reasonable period set by the Customer for the remedy of the defect has expired or expired and the defect has not been remedied, or if such a period is not necessarily required under mandatory legal provisions; However, if the defect of the goods is small or not obvious, the customer has no right to rescind the contract.
12. Replacement parts shall become the property of KPSEN.
13. KPSEN shall not be liable for any loss caused by: (i) inappropriate or improper use, (ii) improper or incorrect installation or initial operation by the customer or a third party, (iii) natural wear and tear, (iv) incorrect or negligent operation, (v) improper handling of materials or spare parts/tools, (vi) errors or poor results in construction work, or improper construction of the foundation, And (vii) chemical, electrochemical or electrical factors, except as a result of KPSEN's fault or inaction.
14. The Customer must give KPSEN the necessary time and opportunity to carry out supplementary performance, in particular by providing the goods referred to in the Customer's complaint for inspection by KPSEN, so that KPSEN can carry out all repair and replacement activities that it deems necessary in its reasonable judgment. Supplementary performance does not include the removal or reinstallation of defective goods if KPSEN did not initially have an installation obligation.
15. KPSEN shall bear the costs necessary for inspection and supplementary performance, in particular those relating to transport, travel, Labour and materials (but excluding the costs of disassembly or installation to which paragraph 14 applies), provided that there is an actual defect. It is at KPSEN's discretion to determine the most cost-effective solution for each case. Unless the circumstances at the time do not allow the customer to realize that the defect does not exist, KPSEN may seek compensation from the Customer for costs (in particular inspection and transportation costs) arising from unreasonable or arbitrary requests to remedy the defect. Any additional costs arising from the Customer's transfer of the goods to a place other than the agreed place of delivery upon receipt of the goods shall be borne by the Customer.
16. For replacement parts and repairs, the warranty period shall end after the expiration of the original warranty of the goods delivered. However, if the business is interrupted due to maintenance work, the warranty period shall be extended accordingly.
17. KPSEN shall not be liable for the consequences of any improper modification or repair work carried out by the customer or third parties without KPSEN's prior consent.
18. The warranty does not cover consumables such as lamps, fuses and batteries. Special terms apply to laptops, photometers, special purpose tubes and equipment which, due to their technical design, are subject to a shorter warranty period provided by the manufacturer; In these cases, the warranty period provided by the manufacturer also applies to the contract between the customer and KPSEN.
19. If the delivered goods are returned to KPSEN within the warranty period and KPSEN finds during the inspection that the defects are due to improper handling by the Customer, the costs incurred by KPSEN in this regard shall be borne by the Customer.
1. Unless otherwise provided in the Terms and Conditions of Sale (including the following), KPSEN shall be liable in the event of breach of contractual and non-contractual obligations in accordance with the relevant legal provisions.
2. KPSEN shall be liable for damages in the event of intentional misconduct and/or gross negligence in accordance with the terms and conditions of this Agreement. In the case of minor or general negligence, liability is limited to: (a) loss caused by injury to life, body or health; Or (b) losses resulting from a serious breach of an essential contractual obligation. If the performance of an obligation is essential for the formalization of the contract, and if the client regularly relies on and is able to rely on KPSEN to perform the contractual obligation, the failure to perform the obligation would result in the failure of the purpose of the contract, the obligation shall be considered as an essential obligation of the contract. In such cases, however, KPSEN's liability shall be limited to the typical damages foreseen at the time the contract was signed.
3. The limitation of liability in paragraph 2 of this Article shall also apply in the event of a breach of contractual obligations resulting from the fault or negligence of persons falling within the scope of KPSEN's responsibility in accordance with the law. If KPSEN has maliciously or fraudulently concealed a product defect, the limitation of liability does not apply.
4. Unless the Customer has the right to rescind or terminate the Contract as prescribed by law, the Customer shall not rescind or terminate the Contract without authorization. If the client rescinds or terminates the contract without authorization, it shall bear the corresponding liability for breach of contract.
1. The general limitation for claims arising from defects is one year from the date of delivery. If acceptance is agreed as the starting point, the limitation of action shall be calculated from the date of acceptance.
2. The said limitation of action shall also apply to contractual and non-contractual damages claimed by the customer in respect of defective goods; However, if the applicable statutory limitation period would result in a shorter limitation period for individual cases, a shorter period should be applied.
1. In order to comply with national and international foreign trade regulations and laws, KPSEN and the client shall support each other and provide all necessary documents and information upon request. KPSEN is not obliged to provide services or delivery if the necessary permits are not available, or if the provision of services or delivery is prohibited.
2. In case of delays due to export inspection or approval procedures, deadlines and delivery schedules shall be extended accordingly. No claim shall be made for any damages related to or resulting from the failure to comply with the deadlines and delivery schedules described above.
3. If (a) the customer has not or has not fully informed KPSEN of the destination and end-use of the goods (even if KPSEN has asked), or (b)KPSEN has been made aware of the end-use of the business and/or persons involved which was not identified at the time of making the offer, In the event that KPSEN is unable to deliver the goods or provide the services in accordance with the applicable laws of China, the United States or other relevant countries or EU foreign trade regulations, KPSEN may terminate the Contract at any time, provided that the Customer does not claim damages in this respect.
4. By placing an order, the Customer represents a declaration of compliance with applicable national and international export control regulations when exporting or reselling the goods. The Customer shall indemnify KPSEN for all losses incurred by KPSEN as a result of the breach of the above obligations.
1. The general limitation for claims arising from defects is one year from the date of delivery. If acceptance is agreed as the starting point, the limitation of action shall be calculated from the date of acceptance.
2. The said limitation of action shall also apply to contractual and non-contractual damages claimed by the customer in respect of defective goods; However, if the applicable statutory limitation period would result in a shorter limitation period for individual cases, a shorter period should be applied.
1. In order to comply with national and international foreign trade regulations and laws, KPSEN and the client shall support each other and provide all necessary documents and information upon request. KPSEN is not obliged to provide services or delivery if the necessary permits are not available, or if the provision of services or delivery is prohibited.
2. In case of delays due to export inspection or approval procedures, deadlines and delivery schedules shall be extended accordingly. No claim shall be made for any damages related to or resulting from the failure to comply with the deadlines and delivery schedules described above.
3. If (a) the customer has not or has not fully informed KPSEN of the destination and end-use of the goods (even if KPSEN has asked), or (b)KPSEN has been made aware of the end-use of the business and/or persons involved which was not identified at the time of making the offer, If KPSEN is unable to deliver the goods or provide the services in accordance with applicable German, US, Chinese or other national laws or EU foreign trade regulations, KPSEN may terminate the contract at any time, provided that the Customer does not claim damages in this respect.
4. By placing an order, the Customer represents a declaration of compliance with applicable national and international export control regulations when exporting or reselling the goods. The Customer shall indemnify KPSEN for all losses incurred by KPSEN as a result of the breach of the above obligations.
The Terms and Conditions of Sale shall take effect on [12] [1] [2023] and shall apply to new contracts entered into from that date.
1. The place of performance of KPSEN and the Customer shall be the registered place of business of KPSEN.
2. The place of jurisdiction for all disputes arising directly or indirectly from the contractual relationship between the parties, including legal proceedings on cheques and bills of exchange, shall be the place of registration of KPSEN. Both parties have the right to file a lawsuit with the people's court of the place where KPSEN is registered.
3. The terms and conditions of sale and any agreement between KPSEN and the Customer shall be governed by and construed in accordance with the laws of the People's Republic of China, without prejudice to its conflict of Laws rules. The United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 shall not apply.
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