The “Capxon” hereinafter references the seller being the titled name set out on the quotation, proforma invoice and invoice.
As used herein, the “Capxon’s Products” shall mean the products, especially capacitors, manufactured and/or sold by Capxon.
3.BASIC TERMS AND CONDITIONS OF SALES
Except otherwise expressly agreed in writing duly executed by Capxon’s authorized representative, this GENERAL TERMS AND CONDITIONS OF SALES (hereinafter referred to as “GENERAL CONDITIONS”) shall be applied to any and all agreements that Capxon sells Capxon’s Products and shall constitute a part of the sales agreements.
Unless otherwise expressly agreed in writing duly executed by Capxon’s authorized representative, all agreement for sale of Capxon’s Products sold by Capxon shall be included and be governed exclusively by this GENERAL CONDITIONS.
Nothing in This GENERAL CONDITIONS shall bind Capxon to sell any minimum amount of Capxon’s Products or any products, unless otherwise agreed in writing.
In replying buyer’s purchase orders, Capxon may simply sign back (or by such communication measures applicable thereof) or issue a proforma invoice to buyer. Unless provided otherwise intentionally in writing by Capxon, this GENERAL CONDITIONS shall constitute a part of Capxon’s reply or such proforma invoice issued by Capxon, either fully or partly repeat the content of this GENERAL CONDITIONS or simply incorporated by reference, and any terms and conditions containing in buyer’s purchase order that different from this GENERAL CONDITIONS shall be deemed rejected by Capxon.
Capxon’s failure of express rejection to any terms and conditions containing in buyer’s orders that different from this GENERAL CONDITIONS, in signing back buyer’s purchase order or in such proforma invoice issued by Capxon shall not be deemed or construed as Capxon’s acceptance of such buyer’s terms and conditions.
Unless agreed otherwise by Capxon in writing, the sales agreement for Capxon’s Products shall not be deemed concluded until Capxon received buyer’s acceptance of this GENERAL CONDITIONS. If no notice issued by buyer refering to objections on this GENERAL CONDITIONS received by Capxon within seven (7) days after buyer receiving Capxon’s reply or such proforma invoice issued by Capxon, it shall be deemed as buyer’s acceptance of this GENERAL CONDITIONS.
Capxon’s failure of reply or late reply to buyer’s purchase orders shall not be deemed or construed as Capxon’s acceptance of buyer’s orders and/or terms and conditions offered by buyer thereof different from this GENERAL CONDITIONS.
Unless otherwise expressly indicated, the price of sales of Capxon’s Products is quoted:
- in USD,
- excluding tax(all applicable taxes, including, without limitation, goods and services tax and withholding tax, if any, and duties)
- includes the cost of packaging in accordance with applicable laws and regulations, as well as the expenses of good commercial practice in a manner suitable for shipment by the general ordinary method accepted by the relevant industries, sufficient measures to ensure arrival in an undamaged condition and to facilitate handling and storage.
Prices quotation is valid for the period of time set therewith. In case that there is not a period of time provided for the validity of quotation of price of Capxon’s Products, such quotation of price of Capxon’s Products is valid for thirty (30) days as from the date Capxon issues the quotation.
The total purchase prices of Capxon’s Products to be paid by buyer is subject to the trade terms agreed by Capxon and buyer. Unless otherwise agreed in writing by Capxon and buyer, the terms used in the sales of Capxon’s Products, in negotiation and/or written agreements, if identical to such of INCOTERMS, shall be interpreted and construed by INCOTERMS 2010.
5.PAYMENT OF PURCHASE PRICES
The purchase prices shall be made in USD and fully paid by buyer in accordance with terms as agreed.
Any bank charges shall be borne by buyer unless otherwise agreed by both parties. If a single purchasing amount does not exceed minimum order value, buyer shall pay the additional handling charge to Capxon.
Late payment of purchase prices will be charged an interest calculated by 1% annual rate on the unpaid amount for the overdue period.
In case that purchase prices is not dully received by Capxon as the terms agreed by buyer, Capxon is entitled to revoke the relevant sales agreement and/or hold relevant delivery, including the delivery of another sales, until purchase prices dully received.
For partial payment and the revoked relevant sales agreement cases, the partial payment will be returned to buyer, after deducting certain amount required for the returning.
Delivery of Capxon’s Products that buyer ordered will be made on the agreed delivery date. Subject to the circumstances required, Capxon is entitled to make partial deliveries.
Capxon’s responsibility of delivery is limited to deliver Capxon’s Products purchased/ordered by Buyer, together with required accompanying documents, such as title in respect of such Capxon’s Products, to the carrier/forwarder or its agent specified by buyer for transportation of such Capxon’s Products.
Unless otherwise agreed in writing, titles of, risks of loss of and damage to Capxon’s Product purchased/ordered by buyer shall pass to buyer upon being delivered to the carrier/forwarder or its agent.
In case that buyer did not indicate a certain method of shipment or carrier/forwarder, Capxon, on behalf of buyer, is entitled, but not obliged, using the transportation charges that buyer prepaid, if any, to make the delivery of the Capxon’s Products purchased/ordered by buyer in a the manner by a carrier/forwarder Capxon deems suitable. Under such circumstance, the obligations of the transportation of Capxon’s Products purchased/ordered by buyer, responsibilities of the dangers and risks of loss to such Capxon’s Products in transportation shall remain on buyer.
Buyer may reschedule deliveries for the Capxon’s Products purchased by serving a written Reschedule Notice to Capxon prior to the dispatch of relevant delivery and shall bear any and all cost and expenses caused by such reschedule. In no event, the rescheduled delivery date shall be postponed more than two months as from the original delivery date.
Unless agreed by Capxon and all cost and expenses arisen from reschedule borne by buyer, no earlier reschedule is allowed.
7.INSPECTION UPON RECEIVE
Buyer shall inspect Capxon’s Products purchased, at least, examining the external of packaging, products, the items and quantities, as soon as possible after having received such above.
If Capxon’s Products received in a damaged state, or is found broken or bearing any defects, shortage in quantity or discrepancy in items of relevant sales agreement or specified in the relevant shipping documents, buyer shall immediately notice the carrier/forwarder and Capxon, in a convenient and fast measure first followed by a formal report in writing with relevant proof such as pictures, statements certified by notary public.
If any Capxon’s Products are damaged, lost in transit operated by carrier/forwarder, including any damage arising in connection with the loading and unloading of products, or otherwise received in a damaged state, Capxon shall not be responsible for such damages, but buyer shall, itself at its own expenses, seek remedy from carrier/forwarder.
If the causes of the damages, shortage, discrepancies of Capxon’s Products lies on Capxon, Capxon’s liabilities are limited to replace the damaged products, make up the short quantity, exchange the discrepancies with correct products only.
If no notice issued by buyer alleging Capxon’s Products received in a damaged state, shortage or discrepancy received by Capxon within two (2) days after buyer received the relevant Capxon’s Products. it shall be deemed that the relevant Capxon’s Products have been duly, safely and completely received by buyer.
If no notice issued by buyer refering to objections on quality of Capxon’s Products received by Capxon within seven (7) days after buyer receiving the relevant Capxon’s Products, it shall be deemed that the relevant Capxon’s Products received by buyer have completely met the quality requirements as agreed upon by both parties.
8.QUALITY AND WARRANTY:
Capxon warrants that all Capxon’s Products, materials or articles thereof will conform to general quality standards, specifications and (if any) drawings and will be free from defects, workmanship and materials and be with normal function as designed.
Capxon further warrants that Capxon’s Products and (if any or applicable) services furnished under the relevant sales agreements shall conform to all representations, affirmations, promises, descriptions, samples or models which having been approved by Buyer.
The warranties stated herein shall survive for certain period of time after buyer’s acceptance of Capxon’s Products; i.e. the function of Capxon’s Products, under normal use without any violation to instructions of users’ guide and confront with no external natural or artificial accidents, will work and last for a period of six months as from the date of manufacture.
Under no circumstance, Capxon warrants that any Capxon’s Products is suitable for the purposes intended by buyer, even Capxon knows buyer’s purposes. It is buyer’s duty and obligation to check and make sure that Capxon’s Products are suitable for purposes intended and select correct and proper Capxon’s Products.
Except the express warrants set forth herein, Capxon DO NOT, impliedly, by assumption or whatever else, warrant, undertake, promise any other warranty or guaranty for Capxon’s Products.
9.EXAMINATION BEFORE USE
It shall be noted the nature, the application of Capxon’s Products, are to be used as parts in carrying out another subject, just an element thereof.
Also because of its materials, manufacture, etc., the price of Capxon’s Products cannot compare with the value of the subject it adhered to.
Capxon DO NOT guaranty that Capxon’s Products are 100% free of defect. To make sure Capxon’s Products is in good condition prior to applying it is absolutely necessary.
In case that buyer found the volume of the defective Capxon’s Products is more than 1% of the same batch/item of Capxon’s Products received, buyer shall cease using or applying all the Capxon’s Products under such delivery and notice Capxon immediately. For such situation, Capxon will make another delivery to replace the former.
Capxon warrants that, in the territory where Capxon locates and where Capxon’s Products manufactured:
- Capxon’s Products and their components thereof are original and genuine goods, and are not counterfeit or imitation goods;
- Capxon’s Products and their components thereof do not infringe any third party’s intellectual property rights; and
- Capxon’s Products and their components thereof are not manufactured in a manner which would infringe any third party’s intellectual property rights.
It is buyer’s duty and obligation to make sure that its purchase, use, application and sales of Capxon’s Products will not infringe any third party’s intellectual property rights in the territory:
- where Capxon’s Products to be imported by buyer;
- where Capxon’s Products to be sold, respectively or combined with other subject, by buyer;
- where Capxon’s Products to be used and applied.
11.INFORMATION DISCLOSED TO BUYER
All specifications, drawings, technical and/or business information, data, designs and samples furnished by Capxon to buyer in connection with the sales of Capxon’s Products or services covered by the relevant sales agreements (hereinafter collectively called “Capxon’s Property”), whether before or after the date of the relevant sales agreements, shall remain the property of Capxon and will be maintained in confidence by the buyer. Buyer shall not disclose or release to any third party any Capxon’s Property received or obtained in the course of relevant sales agreements nor use any Capxon’s Property for any purpose other than the performance of its obligations under relevant sales agreements and the use of Capxon’s Products, without obtaining the prior written consent of Capxon, except for:
- information which was at the time of disclosure, or thereafter falls, in the public domain without willfulness or misconduct of Buyer; and
- information which buyer is required to disclose by law, order of court, or by the rules or regulations of any relevant regulatory or governing body with jurisdiction over buyer.
Buyer’s obligations in this Clause shall survive the completion of the performance of the relevant sales agreements.
12.INFORMATION DISCLOSED TO CAPXON:
Any knowledge or information which buyer has disclosed or may hereafter be disclosed to Capxon, in connection with sales of Capxon’s Products hereunder, shall not be deemed to be confidential or proprietary information, and shall be acquired free from any restrictions as to use thereof as part of the consideration for the relevant sales agreements of Capxon’s Products.
Unless expressed, agreed, acknowledged, accepted in writing, Capxon makes no representations and extends no warranties of any kind, or assumes no responsibility whatever with respect to the manufacture, sale, use or transportation of Capxon’s Products other than the warranties expressly herein.
Nothing contained herein shall be construed as offering by implication, estoppel or otherwise any rights or license under relevant sales agreements of Capxon’s products, except as expressly granted herein.
In the event that Capxon’s Products received by buyer:
- were insufficient in quantities correspond to relevant sales agreements ;
- were not in good condition, with defects, not conform to general quality standards, specifications and (if any) drawings;
- malfunction, under normal use without external or artificial accidents, with the time period of six months as from the date of manufacture;
others, if applicable;
and provided that such arise out of or are caused by a defect in Capxon’s Products, a fault in Capxon’s selling, neglect or negligence Capxon shall be responsible for, Capxon will bear the relevant necessary freight charges, in Capxon’s sole and absolute discretion deemed suitable, and adopt either measures set forth below, to make up such nonconforming:
deliver Capxon’s Products in the quantities short to buyer;
replace the defective or otherwise nonconforming with warranty Capxon’s Products with such in good condition; or
return the price Capxon received from buyer paying for such.
In the event that any third party alleging infringement of Intellectual Property Rights and/or that Capxon’s Products and/or their components thereof are counterfeit or imitation goods, and, such proceedings are instituted against buyer, provided that Capxon shall be fully responsible for, Capxon will bear the relevant necessary expense and charges, in Capxon’s sole and absolute discretion deemed suitable, and adopt either or more of the measures set forth below, to solve the disputes:
- at the Capxon’s own expense, conduct the defense of such a claim by a third party or negotiate for settlement of the claim;
- procure for buyer the right to continue the use and/or possession of Capxon’s Products;
- replace such Capxon’s Products with non infringing products;
- alter or modify such Capxon’s Products in order to avoid continuing infringement without reducing or adversely affecting the functions or performance thereof.
- return the price Capxon received from buyer for purchase of such Capxon’s Products and request buyer to cease using such Capxon’s Products.
Under no circumstances, shall Capxon be responsible for, other than provided than, damages suffered by buyer (including, without limitation officers, employees, workers, servants, subcontractors, customers and users of Capxon’s Products), including costs (including legal/attorney fees on a full indemnity basis), expenses, charges, loss of profits, or demands of whatsoever nature, whether direct or indirect and howsoever incurred arising from any Capxon’s breach of the provisions of sales agreements that buyer purchased Capxon’s Products from Capxon.
14.COMPLIANCE WITH LAWS:
Capxon hereby declares that Capxon does, will and shall comply with, all applicable laws, orders, rules, regulations, ordinances and conventions of where Capxon locates and where Capxon’s Products are manufactured and relevant industry standards relating to and governing Capxon’s Products, business.
Unless buyer notices and requests Capxon in advance and Capxon agrees to comply with such certain specific laws, orders, rules and regulations of a jurisdiction(s) other than where Capxon locates and where Capxon’s Products are manufactured and specific industry standards, it is buyer’s duty and obligation to examine whether Capxon’s Products to be purchased satisfy the requirement of laws, orders, rules and regulations of a jurisdiction(s) where buyer intends to import or use Capxon’s Products.
All matters connected with each sales agreement that buyer purchases Capxon’s Products from Capxon and performance thereof shall be construed, interpreted, applied and governed in all respects by the laws of the People’s Republic of China.
Any dispute, controversy or claim arising out of or in connection with any sales agreement that buyer purchases Capxon’s Products from Capxon, including any question regarding its existence, validity, breach or termination, shall be submitted to South China International Economic and Trade Arbitration Commission (SCIA) for arbitration in accordance with the SCIA's arbitration rules in effect at the time of applying for arbitration. The decision and award resulting from such arbitration shall be final and binding upon both parties.
The language of the arbitration shall be Chinese.
The parties thereto undertake to keep the arbitration proceedings and all information, pleadings, documents, evidence and all matters relating thereto confidential.
Judgment upon the arbitration award may be rendered by any court of competent jurisdiction, or application may be made to such court for a judicial acceptance of the award and an order for enforcement and the parties agree to submit to the jurisdiction of such courts and to service of process for such purpose.
In the event of any delay in performance by either party due to any cause arising from or attributable to acts, events, non happenings, omissions, accidents or Acts of God beyond the reasonable control of the party to perform (including but not limited to strikes, lock outs, shortage of labor; civil commotion, riots war, threat of or preparation for war, breaking off of diplomatic relations; fire, explosion, sabotage, storm, flood, earthquake, fog, subsidence, pestilence or epidemics; machinery breakdown, failure of plant or collapse of structures; voluntary or mandatory compliance with any direction, request or order of any person having or appearing to have authority, whether for defense or other governmental or national purpose, or any requisition for materials or services apparently or stated to be for purposes of defense; inability to obtain suitable raw material, equipment, fuel, power, components or transportation), the party so delayed or prevented shall be under no liability for loss or injury suffered by the other party thereby and affected performance of the relevant sales agreements shall be suspended during such delay and upon cessation of the cause of the delay, the relevant sales agreements shall again become fully operative; provided that, if as the result of such delay any modification of the terms of the relevant sales agreements or a cancellation of any part thereof is requested by one party and it is reasonable that such modification or cancellation should be made, the relevant sales agreements shall be so modified or cancelled; and provided that if such delay shall exceed twelve (12) months, either party may give written notice of termination of such relevant sales agreements and thereupon such relevant sales agreements thereof shall terminate.
Any notice or warning required or permitted to be given under the relevant sales agreements shall be in writing and shall be addressed to Capxon or to buyer at the address of their respective registered principal place of business, or to another address or person as each party thereto may specify by written notification given in accordance with this provision.
Any notice or warning transmitted by way of electronic data interchange, e mail, facsimile, or similar electronic method, unless receipt is acknowledged and confirmed by the other Party, shall be invalid and unenforceable.
19.WAIVERS, RIGHTS AND REMEDIES:
No failure or delay by Capxon in exercising any right or remedy provided by law or under or pursuant to the relevant sales agreements shall impair such right or remedy or operation or be construed as a waiver or variation of it or preclude its exercise at any subsequent time, and no single or partial exercise of any such right or remedy shall preclude any further exercise of it or the exercise of any other remedy.
20.INDEPENDENT CONTRACTING PARTIES:
The relationship between the buyer and Capxon shall be that of independent contracting parties. Nothing contained in this GERNAL CONDITIONS or the relevant sales agreements shall be construed as providing for the sharing of any costs, expenses, risks, or liabilities arising out of the other party’s activities related to relevant sales agreements. Buyer shall not in any manner represent that it or its employees or agents are employees or agents of Capxon, and nothing contained in this GERNAL CONDITIONS or the relevant sales agreements shall be construed as authorizing buyer to create or assume any obligation or liability in the name of Capxon or subject Capxon to any obligation or liability. This GERNAL CONDITIONS or the relevant sales agreements shall not constitute, create, give effect to or otherwise imply a joint venture, pooling arrangement, partnership or formal business organization of any kind.
Without Capxon’s prior written consent, buyer shall not assign the benefits of a sales agreement entered with Capxon in relation to sales of Capxon’s Products, or any rights/responsibilities granted/undertaken or to be granted/ to undertake thereunder.
22.HEADINGS/SINGULAR AND PLURAL:
The headings of parts/sections/articles hereunder are inserted only for the purpose of convenient reference and it is recognized that they may not adequately or accurately describe the contents of the paragraphs which they head. Such headings shall not be deemed to govern, limit, modify, or in any other manner affect the scope, meaning, or intent of the provisions of the Agreement or any part or portion thereof, nor shall they otherwise govern any legal effect.
Where appropriate in this GENERAL CONDITIONS and the sales agreements this GENERAL CONDITIONS to be incorporated to, usage of the singular shall include the plural and vice versa.
If any term or portion of this GENERAL CONDITIONS or the relevant sales agreements is held to be invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term or portion shall be deemed reformed or deleted as the case may be.
But only to the extent necessary to comply with such statute, regulation, ordinance, order or rule and the remaining provisions of this GENERAL CONDITIONS or the relevant sales agreements shall remain in full force and effect.