No part of these general terms and conditions of sale may be altered, reproduced, stored in an automated data file, and/or made public in any shape or form, either electronically, mechanically, in the form of photocopies, recordings or in any other manner, without the prior written permission of Kewell Technology Co., LTD..
1. Definitions
Agreement: The contract between the Seller and the Buyer for the sale and purchase of goods.
Buyer: The entity purchasing goods from the Seller under the Agreement. “You” may also be used as a reference to the buyer in the following terms.
Goods: The items specified in the Agreement that the Seller agrees to supply to the Buyer. Services can also be considered as a form of goods.
Party: Either the Buyer or the Seller as the context requires.
Parties: The Buyer and the Seller collectively.
Seller: Kewell Technology Co., LTD, a China Corporation, incorporated under the laws of the Asia-pacific region. “We/Us/Our” may also be used as a reference to the seller in the following terms.
Purchase Order: A written confirmation document issued by the buyer to the seller requesting the purchase of a specific quantity and specification of goods or services.
Order Confirmation: A written confirmation by the Seller acknowledging the Buyer’s purchase order and detailing the agreement on goods, prices, and delivery terms.
Invoice: A formal document sent by the seller to the buyer requesting payment, detailing the goods or services, quantity, price, and total amount due for the transaction.
Incoterms: International commercial terms published by the International Chamber of Commerce (ICC), which define the responsibilities of buyers and sellers in the delivery of goods.
Confidential Information: Any information exchanged between the parties that is designated as confidential or can reasonably be considered confidential due to its nature.
Intellectual Property: All patents, trademarks, service marks, copyrights, designs, trade secrets, know-how, and other intellectual property rights, whether registered or unregistered.
Force Majeure: Any unforeseeable and unavoidable event beyond the control of the parties, including but not limited to war, natural disasters, strikes, and government regulations.
Warranty Period: The period during which the Seller warrants that the goods will conform to the specified standards and be free from defects.
Calendar Day: A time period that includes 24 hours, starting from midnight of one day and ending at midnight of the next day, regardless of whether it is a workday or a holiday.
Working Day: A day within a standard calendar week that is used for business activities, excluding weekends and the legal public holidays of both parties.
2. SCOPE OF APPLICABILITY
2.1. These General Terms and Conditions of Sale (hereinafter “GTCS”) apply to all sales of goods by us notwithstanding any conflicting, contrary or additional terms and conditions in any purchase order or other communication from you. No such conflicting, contrary or additional terms and conditions shall be deemed accepted by us unless and until we expressly confirm our acceptance in writing.
2.2. We reserve the right to change or update these GTCS at any time. We will give you thirty calendar days’ notice of any changes by posting notice on our website.
3. QUOTATIONS, PURCHASE ORDERS AND ORDER CONFIRMATIONS
3.1. All quotations made by us are open for acceptance within three working days from the date of issue, unless otherwise specifically stated therein, and are subject to the availability of the goods offered.
3.2. All purchase orders issued by you shall specify as a minimum the type and quantity of goods requested, applicable unit prices, delivery place, requested delivery dates and warranty period. No purchase order shall be binding on us unless and until confirmed by us in written order confirmation.
4. CONFIDENTIALITY
4.1. Both parties agree to keep confidential any proprietary information received from the other party and not to use such information for any purpose other than fulfilling their obligations under the Agreement.
4.2. Confidential information does not include information that is or becomes public knowledge through no fault of the receiving party, is lawfully received from a third party without breach of any confidentiality obligation or is independently developed by the receiving party without use of the other party's confidential information.
4.3. Upon termination of the Agreement, each party shall return or destroy all confidential information received from the other party.
5. PRICES AND TERMS OF PAYMENT
5.1. The prices for goods shall be those set forth in our Price List, if not specifically listed in our quotation. All prices are exclusive of taxes, impositions and other charges, including, but not limited to, sales, use, excise, value added, and similar taxes or charges imposed by any government authority.
5.2. The payment terms are specified in the quotation. You are required to submit corresponding payment proof information promptly, reasonably requested by us, as may be for the establishment or continuation of these payment terms. We reserve the right to modify the agreed payment terms at any time with written notice via email, If you fail to provide the necessary payment proof information within ten working days.
5.3. If you fail to pay any invoice by the due date of payment specified on our invoice, we may suspend delivery of any purchase order or any remaining balance thereof until payment is made or terminate delivery of any purchase order or any remaining balance thereof by providing written notice of termination to you within seven working days of the expiration of the grace period. The grace period shall be decided by both parties through consultation. In addition, we will charge a penalty of 1% of the total purchase order amount for each day overdue, up to a maximum of 20% of the total purchase order amount. This shall be in addition to, and not in limitation of, any other rights or remedies to which we are or may be entitled by law or in equity.
5.4. Title to goods delivered shall remain vested in us and shall not pass to you until the goods have been paid for in full. If you fail to pay any invoice within thirty calendar days of the due date of payment or within any other payment period specified on the invoice, we may retake the goods covered by the invoice. You must ensure all goods are delivered to their full replacement value until title to the goods has been passed to you.
6. TERMS OF DELIVERY AND LATE DELIVERY
6.1. Unless expressly stated otherwise in our order confirmation, all deliveries of goods shall be in accordance with Incoterms 2020. The risk of loss of or damage to goods shall pass to you in accordance with the agreed delivery term.
6.2. The delivery dates of goods shall be those set forth in our order confirmation. If we fail to deliver goods by the date specified on the order confirmation, and the parties have not agreed on a new delivery date, you may terminate the applicable purchase order in whole or in part (as to those goods affected by the delay) by providing written notice of termination to us within seven working days of the expiration of the grace period. The grace period shall be decided by both parties through consultation.
6.3. If you fail to pick up, accept or reject the goods on time, you shall bear the losses caused therefrom. If the pick up time exceeds one week (including one week), you shall pay 1% of the total purchase order amount to us for each week exceeding the agreed delivery time, up to a maximum of 20% of the total purchase order amount.
6.4. We reserve the right to make delivery in installments.
7. ACCEPTANCE OF GOODS
7.1. You are required to take photographs of the goods to verify the receipt date and send them to us via email. Failing to do so, the delivery date indicated by the logistics company at the destination as per the order confirmation will be considered as the official receipt date of the goods.
7.2. You are required to submit a claim for compensation regarding discrepancies in quantity, damaged outer packaging, or model differences within fourteen calendar days from the receipt date. Simultaneously, you should provide the product name, quantity, price as per the agreement, and photographs that include the damaged outer packaging and any equipment related to model differences. If you fail to make a claim within the aforementioned deadline, we will consider that you have waived any rights to such claims and shall be deemed to have passed the appearance inspection of the goods.
7.3. Acceptance and quality claims must be submitted by you within thirty calendar days from the receipt date. Simultaneously, you should provide details regarding the non-conforming product model, quantity, price, and a description of the quality issues. If any significant quality issues arise, you are required to furnish us with a test report from a third party. Should you fail to submit your claim within the aforementioned deadline, we will consider that you have waived any rights to such claims and shall be deemed to have passed the quality acceptance inspection of the goods.
8. WARRANTY
8.1. We warrant that upon delivery and for a period of twelve months from the date of delivery, or for such other warranty period as may be specified in the order confirmation, goods purchased hereunder will conform in all material respects to the applicable manufacturer’s specifications for such goods and will be free from material defects in workmanship, material and design under normal use. The warranty does not cover damage resulting from misuse, negligent handling, lack of reasonable maintenance and care, accident or abuse by anyone other than us.
8.2. With respect to goods which do not conform to the warranty, our liability shall be limited, at our election, to (i) refund of the purchase price for such goods less a reasonable amount for usage, (ii) repair of such goods, or (iii) replacement of such goods; provided, however, that such goods must be returned to us, along with acceptable evidence of purchase, within thirty calendar days after you discovered the lack of conformity or ought to have discovered it. For any specific requirements related to usage, repair, or replacement, we will provide a separate quotation for the corresponding services.
8.3. We make no other warranty, express or implied, with respect to goods delivered hereunder, and the warranty constitutes our sole obligation in respect of any lack of conformity of goods delivered hereunder (except title). In particular, we make no warranty with respect to the merchantability of goods delivered or their suitability or fitness for any particular purpose.
9. INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT
If any goods delivered hereunder are held to infringe a third party’s patent, utility model, design, trademark or other intellectual property right and you are enjoined from using same, we will, at our option and expense, (i) procure for you the right to continue using the goods; (b) replace the goods with non-infringing substitutes provided that such substitutes do not entail a material diminution in performance or function; (c) modify the goods to make them non-infringing; or (d) refund the purchase price of the goods less a reasonable amount for usage. The foregoing states our sole liability for intellectual property rights infringement.
10. LIMITATION OF LIABILITY
10.1. Neither of us will be entitled to, and neither of us shall be liable for, indirect, special, incidental, consequential or punitive damages of any nature, including, but not limited to, business interruption costs, loss of profit, removal and/or reinstallation costs, reprocurement costs, loss of data, injury to reputation or loss of customers. Your recovery from us for any claim shall not exceed the purchase price for the goods giving rise to such claim irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
10.2. We shall not be liable for any claims based on our compliance with your designs, specifications or instructions or repair, modification or alteration of any goods by parties other than us or use in combination with other goods.
11. FORCE MAJEURE
11.1. Either party shall be excused from any delay or failure in performance if caused by reason of any occurrence or contingency beyond its reasonable control, including, but not limited to acts of war, fire, insurrection, strikes, lockouts or other serious labor disputes, riots, earthquakes, floods, explosions or other acts of nature. The obligations and rights of the party so excused shall be extended on a day-to-day basis for the time period equal to the period of such excusable interruption. When such events have abated, the parties’ respective obligations shall resume. In the event the interruption of the excused party’s obligations continues for a period in excess of thirty calendar days, either party shall have the right to terminate the applicable contract(s) of sale, without liability, upon sixty calendar days’ prior written notice to the other party.
12. AMENDMENT TO GTCS OR TERMINATION
12.1. Any modifications to this Agreement shall be valid only if made in writing. Upon mutual consent to a particular modification, we shall provide you with written confirmation of such modification. This confirmation will explicitly outline the substantive, financial, and/or temporal impacts resulting from the modification.
12.2. Should an amendment to the Agreement be mutually agreed upon, we shall have the right to adjust the previously agreed-upon delivery and completion schedules as deemed necessary to fulfill the revised terms of the Agreement.
12.3. The Agreement may only be terminated prematurely by mutual consent of the parties, along with the specific conditions under which such termination shall occur.
13. MISCELLANEOUS
13.1. The United Nations Convention for the International Sale of Goods shall not apply to these GTCS or to any contracts of sale entered into between us.
13.2. No waiver of any provision of these GTCS shall constitute a waiver of any other provision(s) or of the same provision on another occasion. Failure of either party to enforce any provision of these GTCS shall not constitute a waiver of such provision or any other provision(s) of these GTCS.
13.3. Should any provision of these GTCS be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision may be modified by such court in compliance with the law giving effect to the intent of the parties and enforced as modified. All other terms and conditions of these GTCS shall remain in full force and effect and shall be construed in accordance with the modified provision.
13.4. GTCS and all sales contracts entered into between us shall be governed by and construed in accordance with the laws of The People's Republic of China but no choice of law or conflict of law provisions shall apply. Any action or proceeding brought by either of us against the other shall be brought only in a court of competent jurisdiction in The People's Republic of China without prejudice to our right to bring such action or proceeding in any other court of competent jurisdiction in the event that this GTCS does not incorporate these Terms.
