This ‘Trade Term’s & Conditions’ statement explains the terms and conditions of Clenergy Xiamen Technology and its subsidiaries.
CLENERGY GENERAL TERMS AND CONDITIONS OF TRADE
1. Validity of General Terms and Conditions
1.1 Unless and until Clenergy International (HK) Limited, Clenergy (Xiamen) Technology Co., Ltd, or any other company within the Clenergy Group (collectively and individually, Clenergy) provides written notice of any replacement terms and conditions, these Terms and Conditions of Trade (Terms) apply to the sale of products (Products) by Clenergy to any customer (Purchaser) placing a written purchase order with Clenergy (Order) where no separate Supply Agreement is in place between Clenergy and the Purchaser in respect of the Order.
1.2 In the event of any inconsistency between these Terms and any other agreement between Clenergy and the Purchaser or any documentation of the Purchaser in connection with any Order, except where arising under a separate Supply Agreement, these Terms will prevail to the extent of the inconsistency.
2. Formation of Contract
2.1 A quotation is not an offer by Clenergy to sell or supply and may be withdrawn or varied at any time prior to Clenergy’s acceptance of an Order, and is void after thirty (30) days, unless extended in writing by Clenergy. In addition, prices are subject to variation in accordance with clause 3 below. Clenergy reserves the right to correct typographical or clerical errors. Any and all declarations of acceptance of Orders must be made in writing by Clenergy to become legally effective. Clenergy’s issue of an Order acknowledgment does not constitute acceptance of any terms or conditions in any Order form or other documentation of the Purchaser.
2.2 Clenergy’s employees are not authorised to make any oral collateral agreements or oral confirmations which go beyond the content of the written contract and the Purchaser will not rely on any such oral collateral agreements or oral confirmations.
2.3 In the event that Clenergy cannot perform or accept an Order for any reason, Clenergy will notify the Purchaser and any funds paid by the Purchaser in respect of the Order will be refunded, unless otherwise agreed in writing.
2.4 Only those specifications which are clearly set out in the Order will apply to the Products supplied.
2.5 Any and all drawings, illustrations, measures, weights or other performance data related to a quotation by Clenergy will only be binding where they are expressly agreed in writing in an Order.
3. Prices and Terms of Payment
3.1 The terms of payment are net cash before dispatch, unless the Purchaser has a current credit account with Clenergy. The terms of payment for a Purchaser with a current credit account are net cash, free of exchange, thirty (30) days from the date of invoice in which the Products are delivered. Clenergy reserves the right to invoice for Product deliveries delayed at the Purchaser’s request.
3.2 Prices quoted or accepted: (a) do not include taxes, imposts or duties. Clenergy may recover from the Purchaser, and the Purchaser must pay the amount of any sale tax, customs tax, use tax, consumption tax, goods and services tax or any similar tax, impost or duty levied on any supplies made by Clenergy to the Purchaser under or in connection with these Terms; and (b) are subject to any Incoterms stated in the Order.
3.3 Clenergy reserves the right to modify its prices accordingly if there is any change in the costs of labour, materials, transport, essential services, tariffs, duties, exchange, and other costs and statutory obligations, between the date of quotation and the date of invoice. Clenergy will provide proof of such cost changes at the Purchaser’s reasonable request.
3.4 Clenergy must agree to any reduction of cash discounts separately in writing.
3.5 The Purchaser must pay Clenergy default interest of 0.1% of the value of all amounts in arrears in the aggregate. Default interest will be compounded daily and calculated from the due date for payment until Clenergy receives payment in full.
3.6 Clenergy may use payments to satisfy older debts, and will inform the Purchaser of any such set-offs.
3.7 The Purchaser may not cancel or amend any Order accepted by Clenergy without Clenergy’s written approval, which it may grant or deny in its sole discretion.
4. Period of Delivery and Performance
4.1 Delivery will be deemed to occur when Clenergy informs that the Purchaser that the Products are ready for collection from the delivery point set out in the relevant Order, or if none is set out, from Clenergy’s nominated collection point.
4.2 Dates and periods of delivery may be subject to extension by Clenergy to cover delays caused by Government actions, strikes, lockouts, breakdowns, delays in transport, fines, late delivery of raw materials or components, or other causes beyond Clenergy’s control, and Clenergy will not be liable under these Terms for consequence of any delays. Clenergy will be entitled to postpone delivery by the equivalent period of the delay plus an appropriate restarting time, or to cancel or amend the relevant Order in full or in part.
4.3 If any delay referred to in clause 4.2 lasts more than three (3) continuous months, either party may cancel that part of the Order which has not already been performed by Clenergy. In the event that the period of delivery or performance is extended or in the event that Clenergy is released from its obligations:
(a) to the extent any Products have been delivered but are not yet paid for under an Order, the Purchaser will pay Clenergy the value of the Products as determined by the price(s) stated in the relevant Order, or that cannot be reasonable ascertained, the value of the Products under Clenergy’s then-current pricing list; and
(b) the Purchaser will not be entitled to make any claim against Clenergy for any loss or damage suffered as a result of the cancellation.
4.4 Unless expressly agreed otherwise in an Order, Clenergy may deliver Products in partial deliveries.
4.5 Time is of the essence in respect of the Purchaser’s payment obligations under each Order and these Terms.
4.6 If the Purchaser requests Clenergy to delay delivery, or fails to give Clenergy adequate instructions for delivery, or delays acceptance of delivery, Clenergy may claim from the Purchaser any costs incurred as a result of the delay, including Product storage costs.
5. Passing of risk
5.1 Risk in the Products passes to the Purchaser upon delivery of the Products in accordance with clause 4.1. Clenergy will not be responsible for any loss or damage occurring after the point of delivery.
6. Liability for Defects or Shortfall
6.1 If there is any shortfall of Products delivered from the quantities set out in the relevant Order, or if Products are damaged during delivery, the Purchaser must inform Clenergy within three (3) days from the date of delivery. If the Purchaser does not, then Clenergy will not be responsible for any loss or damage by the Purchaser as a result of the shortfall or damage.
6.2 If there is a shortfall in the number of Products or if the Products are damaged during delivery, Clenergy’s liability will in any case be limited to the price of the Products not delivered or damaged.
6.3 If any new Product is found to be defective in materials or workmanship within the applicable warranty period under Clenergy’s Standard Limited Warranty, or does not conform to any applicable drawings and specifications accepted by Clenergy in an Order, then Clenergy will, at its option, either repair or provide a replacement part or Product, provided that:
(a) the Purchaser has given written notice to Clenergy of any alleged defect within a reasonable period from the date of discovery of the defect;
(b) the Purchaser has provided Clenergy a reasonable opportunity to perform all appropriate tests on the Product; and
(c) the defective part or Product is promptly returned to a Clenergy’s nominated address. Any defective Product replaced will become Clenergy property (at its election) and the replaced Product will be delivered free to the Purchaser. The Purchaser acknowledges and agrees that Clenergy’s liability in respect of defective Products is limited to the remedies set out in this clause 6.3.
6.4 The warranties in clauses 6.2 and 6.3 above do not cover failure or damage resulting from:
(a) fair “wear and tear” or occurring outside the warranty period;
(b) misapplication, abuse, improper installation or abnormal conditions of operation;
(c) operation, either intentional or otherwise, above or below rated capacities or in an otherwise improper manner;
(d) tampering with or altering a Product by anyone other than an authorised representative of Clenergy; and
(e) the incorporation of, or failure of, parts or components not authorised by Clenergy.
6.5 To the maximum extent permitted by law, all conditions, warranties, terms, undertakings, representations and obligations, whether expressed or implied, and whether arising under statute, common law, equity, custom, trade usage or otherwise (including any implied condition, warranty, term or representation as to the use of the Products, their weight, dimensions, capacities, colours or the correspondence of the Products with any contract description or as to merchantable quality, fitness for any purpose or safety of the products, or operating performance where such performance is conditional on empirical factors or on the whole installation or on the skills of an operator), whether made known or not, are expressly negated and excluded.
6.6 Subject to clause
6.7 below, Clenergy shall not be liable for any losses, costs, expenses, liabilities and damages of whatsoever (including loss of profits, liabilities of the Purchaser to its customers or third persons, and any other consequential damages), whether direct or indirect and whether or not resulting from or contributed to by the default or negligence of Clenergy, its agents, employees and sub-contractors, which might be claimed as the result of the use or failure of the Product use or failure of the Product sold or the Services supplied.
7.1 The Purchaser indemnifies and holds Clenergy harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Clenergy from and against all actions, proceedings, claims or demands made against Clenergy, arising in either case as a result of:
(a) the Purchaser’s failure to comply with any laws, rules, standards or regulations applicable in relation to the Products or the use of the Products;
(b) subject to clause 13 below, any use of the Products contrary to any instructions or warnings given by Clenergy;
(c) any other negligence or any breach by the Purchaser of clauses 8.2 or 9.1 below;
(d) any compliance or adherence by Clenergy with any instructions by the Purchaser in relation to the Products; or
(e) any Product failure resulting from incorporation of, or failure of, parts or components not authorised by Clenergy.
8. Intellectual Property Rights
8.1 Clenergy is the owner of certain patents and registered designs as well as other intellectual property rights, including copyright, and other technical, business or similar information (including all designs, documents and other materials relating to the Products) (Intellectual Property Rights).
8.2 The Purchaser must not directly or indirectly infringe, or permit any third party to infringe, any of Clenergy’s Intellectual Property Rights subsisting or created in connection with any Order.
9.1 The Purchaser agrees not to copy or disclose to any third party any drawings, price details, any other technical papers or any documents supplied by Clenergy under these Terms without Clenergy’s express prior approval.
10. Drawings and Specifications
10.1 All drawings and specifications, descriptions and other documents attached to any quotation are for tendering purposes only, and will not form the basis nor be part of any agreement between Clenergy and the Purchaser unless expressly set out in an Order or unless otherwise agreed by the parties in writing. Clenergy retains ownership of the copyright and all other intellectual and industrial property rights in all drawings, specifications, manuals and other documentation provided to the Purchaser, and all such documents must be returned to Clenergy on demand.
11. Reservation of Title
11.1 All Products will remain the sole and absolute property of Clenergy as legal and equitable owner, and the property in and title to the Products will not pass from Clenergy to the Purchaser until the Purchaser has paid Clenergy in full for the Products.
11.2 Until title in the Products has passed under clause 11.1, the Purchaser:
(a) holds the Products as bailee in the capacity of a fiduciary of Clenergy;
(b) must keep the Products supplied to it by Clenergy in its possession and must take proper care of them and store them and mark them in a manner that identifies the Products supplied and clearly shows that they belong to Clenergy;
(c) must sufficiently insure the Products at the Purchaser’s own expense against fire and water damage and theft;
(d) must carry out any necessary maintenance and inspection work at its own expense; and
(e) must immediately inform Clenergy if any third party seizes or attempts to seize any Product or any part thereof. 11.3 If the Products (or any objects to which the Products are attached or of which the Products form a constituent part) are on-sold by the Purchaser, then the Purchaser does so as agent for Clenergy and the Purchaser unconditionally agrees to keep the proceeds of such on-sale in a separate bank account on trust for Clenergy to be paid to Clenergy on demand and, if applicable, to assign to Clenergy any debt owed to the Purchaser in relation to the on-sale (which for the avoidance of doubt will not constitute any release of the Purchaser from liability to pay for the Products). Notwithstanding this clause
11.3, the Purchaser must not represent to any third party that it is acting as agent for Clenergy, and Clenergy will not be bound by any legal obligation to any third party agreed to by the Purchaser unless it expressly agrees in writing to be so bound.
11.4 If any payment due by the Purchaser to Clenergy is overdue, in whole or in part, or the Purchaser is otherwise in default under any contract with Clenergy, or the Purchaser becomes bankrupt or commits any act of bankruptcy or compounds with its creditors or has judgment entered against it in any court or, being a company, has a provisional liquidator, receiver or manager appointed or otherwise suffers some form of insolvency administration, all sums then owing by the Purchaser to Clenergy in relation to the Products will become immediately due and payable and Clenergy may (without prejudice to any of its other rights) recover and resell the Products and, for that purpose, enter upon the Purchaser’s premises by its servants or agents, and the Purchaser irrevocably authorises Clenergy or its nominated representative to effect such entry, including the use of such reasonable force as is necessary to effect such entry, and to use the name of the Purchaser and to act on behalf of the Purchaser, if necessary, to recover possession of the Products and any other goods supplied by Clenergy and to detach the Products any such other goods from any other object to which they have been attached or of which they form a constituent part. The Purchaser must provide Clenergy all the information and documents necessary, and otherwise assist Clenergy to recover possession of the Products in these circumstances.
11.5 If Clenergy recovers the Products or any other goods, it may resell the Products and any other goods recovered. If the proceeds of sale are more than the amount due to Clenergy from the Purchaser. Clenergy may use the balance to pay the costs of taking possession and selling the Products or any other goods. If any proceeds of resale are less than the amount due to Clenergy, Clenergy may recover the shortfall from the Purchaser.
12. Construction Modifications
12.1 Clenergy reserves the right to modify the manufacturing specifications of Products at any time, however, Clenergy is not obliged to carry out such modifications to products already delivered.
13.1 If any of these Terms is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.
13.2 The Purchaser must not transfer, assign or sub-contract its obligations under these Terms without Clenergy’s prior written consent.
13.3 Failure or neglect by Clenergy to enforce any of these Terms will not be a waiver of Clenergy’s rights and will not affect the validity of the whole or any part of these Terms or prejudice Clenergy’s right to take subsequent action.
13.4 Any notice required under these Terms must be in writing addressed to the other party at its registered office or principal place of business or any other address notified by the receiving party to the party giving notice.
13.5 Clenergy reserves the right to make any changes to these Terms at any time in its sole discretion by notice to the Purchaser.
13.6 The law of China governs these Terms and the Vienna Convention of Sales of Goods does not apply to these Terms. The Purchaser agrees to submit the non-exclusive jurisdiction of the courts of China.