Terms and Conditions of Delivery
All orders for the sale of Products are accepted by Hunan HMC Metals Co., Ltd. on these Terms and Conditions which supersede any other terms appearing in this or any previous catalogue or elsewhere. These Terms and Conditions together with the Contracts concluded hereunder constitute the entire understanding between Hunan HMC Metals Co., Ltd. and the Customer.
In these Terms and Conditions:
“HMC” means Hunan HMC Metals Co., Ltd.;
“the Customer” means the person, firm or company with whom a Contract is concluded;
“the Catalogue” means the current HMC catalogue (international edition) and the current stock numbers and prices (international edition) of HMC;
“the Contract” means a contract for the supply of Products made between HMC and the Customer;
“the Products” means the goods supplied or to be supplied to the Customer by HMC; and
“the Terms and Conditions” means these terms and conditions for the sale of Products by HMC to the Customers.
3. Characteristics of the Products
Any information relating to the Products and their use, such as weights, dimensions, capacities, prices, colors and other data contained in the Catalogue or prospectuses, circulars, advertisements, illustrations, price-lists of HMC, shall not take effect as terms of the Contract.
Orders are initiated by the Customer’s purchase order received by HMC either in writing, by telephone, Internet, e-mail or fax. Purchase orders shall identify the Products, unit quantities, part numbers, descriptions, applicable prices and designate if delivery shall be made by
- – Postal parcel
- – DPD
- – Courier
Purchase orders are subject to HMC’s written acceptance and to these Terms and Conditions.
Irrespective of means of communication, it is the sole responsibility of the Customer to verify that HMC has received the purchase order or any other kind of message sent by the Customer to HMC. HMC does not assume any responsibility whatsoever for any loss or damages caused by breakdowns in communication beyond HMC’s reasonable control.
Delivery shall be “Ex Works” (EXW) (Incoterms 2000, International Chamber of Commerce). Selection of the carrier and delivery route will be made by HMC. On the Customer’s request HMC may provide the Customer with an estimated delivery date. The Customer acknowledges that any such delivery dates provided by HMC are estimates only and that HMC shall not be liable for failure to deliver on such dates.
The amount of all transportation charges from HMC’s facility shall be paid to HMC by the Customer in addition to the purchase price of the Products. Delivery to a carrier shall constitute delivery to the Customer, and risk of loss and delay shall thereupon pass to the Customer. Products invoiced and held by HMC at the Customer’s request shall be held at the Customer’s risk and expense.
6. Passing of Title
Notwithstanding that the Customer obtains possession of the Products, ownership of the Products shall remain with HMC until such time as HMC has received payment in full for all sums due to it from the Customer. If any sum is overdue for payment in whole or in part HMC may (without prejudice to any other rights or remedies available to it) recover and re-sell the Products or any of them.
The Customer may not sell the Products to a third party before HMC has received payment in full. If such a sale is made the Customer shall account to HMC for the proceeds of sale received up to the total amount outstanding in respect of the Products.
The Customer shall examine the Products as soon as possible after their arrival at destination. Claims for shortages and damage must immediately be made to carrier. The Customer shall be deemed to have accepted the Products unless written notice of rejection is received by HMC within ten (10) days after delivery.
All prices in the Catalogue or otherwise quoted by HMC are in USD or EUR. All prices are subject to alteration by HMC without notice. If the price for a specific order due to such alteration should exceed the corresponding price in the Catalogue or otherwise quoted by HMC, the Customer may, immediately upon receipt of HMC’s written confirmation of the order, by written notice to HMC, cancel the order whereupon neither party shall be under any further liability hereunder. If delivery (as defined in Article 5 above) has been made prior to HMC’s receipt of such cancellation, the Customer’s right to cancel shall be subject to the Customer’s return of the Products at his own risk and expense.
The amount of all taxes or other charges now or hereafter imposed by any government authority which may be paid by HMC or for which HMC may be liable shall be paid to HMC by Customer in addition to the price of the Products.
9. Terms of Payment
Payment for Products shall be received by HMC within thirty (30) days from date of invoice. Orders are subject to credit approval by HMC, which may in its sole discretion at any time change the terms of the Customer’s credit or require advance payment.
The amounts due shall be transferred, unless otherwise agreed, to HMC’s bank for the account of the HMC and the Customer shall be deemed to have performed his payment obligations when the respective sums due have been received by HMC’s bank in immediately available funds.
If HMC reasonably believes that the Customer’s ability to make payments is impaired, HMC may cancel any order or remaining balance thereof, and the Customer shall remain liable to pay HMC for Products already delivered (as defined in Article 5 above). The Customer shall, when requested by HMC, submit such financial information as HMC may reasonably require for determination of credit terms.
The Customer shall pay the entire net amount of each invoice from HMC pursuant to the terms of such invoice without offset or deduction. Invoices not paid when due shall bear interest to date of payment at the annual rate of 18 percent or such lower rate as may be the maximum permitted by law.
HMC shall be entitled to terminate the Contract without prior notification if a payment from the Customer is delayed.
10. Warranty and Limitation of Liabilities
Subject to clause 7 above, HMC warrants that it will replace or repair any faulty Products if the fault occurs within 30days from the date of delivery (as defined in clause 5 above), provided that the fault is caused by defects in the manufacturing or material of the Products. HMC warrants that it will replace or repair the faulty Products at no expense for the Customer. HMC is entitled to decide whether faulty Products shall be replaced or repaired and if repair is necessary and were such repair shall take place. By replacing or repairing a faulty Product HMC shall have fulfilled its warranty. HMC is liable according to this warranty only when the Customer has not used the Products or has used the Products in a normal way. This warranty does not cover, and HMC is not responsible for, any fault in Products which is a consequence of normal wear and tear. HMC makes no other warranty, express or implied, with respect to the Products. In particular, HMC makes no warranty respecting the merchantability of the products or their suitability or fitness for any particular purpose or use or respecting infringement. HMC makes no warranty that the products meet requirements for authorization, approvals or certifications applicable in the country of the customer or the otherwise intended final destination of the product. HMC makes no warranty that the products or the use thereof does not violate statutes or regulations in such countries. The customer shall verify dimensions, ratings and other characteristics of the products prior to their use or incorporation with other products.
The customer shall not in any event be entitled to, and HMC shall not be liable for indirect, special, incidental or consequential damages of any nature including, without being limited to, loss of profit, promotional or manufacturing expenses, overhead, injury to reputation or loss of customers. The customer’s recovery from HMC for any claim shall not exceed the customer’s purchase price for the products irrespective of the nature of the claim whether in contract, tort, product liability, warranty, or otherwise. The customer is obliged to take any possible measures to avoid loss.
11. Import and Export Licenses
The Customer shall not directly or indirectly import, export, re-export, sell or transfer any Product to any country for which an export license or other governmental approval is required without first – at the Customer’s own behalf and expense – having obtained all such licenses and other approvals.
HMC may at any time choose to refuse to deliver any Products that are, or reasonably can be believed to be, subject to government prohibitions or other restrictions in the country of the Customer.
12. Statements and Advice
If statements or advice, technical or otherwise, is offered or given to the Customer by HMC, such statements or advice shall be deemed to be given as an accommodation to the Customer and without charge and HMC shall have no responsibilities or liabilities whatsoever for the content or use of such statements or advice.
The Customer shall promptly inform HMC of any claim made against the Customer by his customers or third parties concerning the Products or intellectual property rights related thereto.
The sale of Products hereunder shall be governed by the Terms and Conditions, notwithstanding contrary or additional terms and conditions in any purchase order, planning schedule, acknowledgement, confirmation or any other form or document issued by either party effecting the purchase and/or sale of Products. These Terms and Conditions may not be modified or cancelled except through a written agreement signed by the Customer and the Managing director of HMC.
15. Transfer of Rights
No rights, duties, agreements or obligations hereunder may be assigned or transferred by either party without the prior written consent of the other. The Terms and Conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns.
The waiver of any breach of any term, condition or covenant hereof or default under any provision hereof shall not be deemed to constitute a waiver of any other term, condition, or covenant contained herein or of any subsequent breach or default of any kind or nature.
17. Invalid Provision
Any provision hereof which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof in that jurisdiction or affecting the validity or enforceability of such provision in any other jurisdiction.
18. Force Majeure
HMC is not liable for a failure to perform any of these obligations in so far as:
(a) the failure was due to an impediment beyond HMC’s control, and
(b) HMC could not reasonably be expected to have taken into account the impediment and its effects upon HMC’s ability to perform at the time of the conclusion of the Contract, and
(c) HMC could not reasonably have avoided or overcome it or its effects.
A ground of relief under this clause relieves HMC from liability in damages, from any and all contractual sanctions. HMC shall inform the Customer when a ground of relief occurs.
If the grounds of relief subsist for more than sixty (60) days, either party shall be entitled to terminate the Contract by written notice.
19. Applicable Law
These Terms and Conditions and the Contracts concluded hereunder shall be governed by and construed in accordance with the laws of China.
20. Resolution of Disputes
Any dispute, controversy or claim arising out of or in connection with these Terms and Conditions and the Contracts concluded hereunder, or the breach, termination or invalidity thereof, shall be settled by arbitration at the China International Economic and Trade Arbitration Commission for arbitration in accordance with its rules of arbitration. The arbitral award is final and binding upon both parties. The language to be used in the arbitral proceedings shall be English.