For the purpose of these terms and conditions (these “Terms”), the following definitions shall apply:
“Seller”: Shanghai Yuan Ting Technology Co., Ltd., NERA Smart Thermal Limited and/or any of its affiliates and/or subsidiaries;
“Buyer”: A buyer who purchases Products from any Seller;
“Products”: All tangible objects supplied or to be supplied by the Seller to the Buyer;
“Product Specifications”: The specifications of the Products provided to Buyer prior to or at the time of concluding these Terms, as set out in the Product’s fact sheet, packing instructions and other relevant documents (if applicable);
“Orde Confirmation”: The written confirmation issued by Seller to Buyer, setting out the details of the order for Products and/or (ancillary) services;
“People’s Republic of China Civil Code (CC)”: The Civil Code of the People’s Republic of China
APPLICATION AND ACCEPTANCE OF TERMS AND CONDITIONS
The quotation, Order Confirmation, or invoice attached hereto is subject to these Terms. Any deviation from these Terms shall not be binding unless acknowledged in writing by Seller's authorized representative.
These Terms constitute an offer by Seller to sell Products to Buyer and except otherwise expressly agreed in writing shall supersede any terms or conditions contained in Buyer’s purchase order placed by the Buyer to Seller. Acceptance by Seller of any order is limited to these Terms; and Seller objects to any additional or different terms which may be contained in any of Buyer’s purchase order, acknowledgment or other forms or correspondence, and any reservation proposed by the Buyer to any provision of these Terms from time to time shall be invalid, unless otherwise expressly agreed in writing by Seller.
A waiver of a breach of any term hereunder shall not be deemed a waiver of similar terms in the future.
BY PURCHASING PRODUCTS FROM SELLER, BUYER CONFIRMS THAT IT UNDERSTANDS, ACCEPTS AND AGREES TO BE BOUND BY THESE TERMS.
These Terms apply to all purchase orders or contract between any Seller and Buyer in the People’s Republic of China or abroad, regardless of the place of delivery. In the event of a separate written agreement currently in effect (a “Separate Agreement”) entered into by and between any Seller and Buyer, including but not limited to a distribution, dealer, sales, agency or supply agreement, then with respect to purchase orders governed by such Separate Agreement, its terms shall prevail over these Terms in case of any conflict. In all other respects not addressed by the Separate Agreement, these Terms shall apply as supplementary terms. In the event of any conflicts among these Terms, Separate Agreement (if any) and the Order Confirmation (if any), the following priority shall be determined: Order Confirmation, Separate Agreement, and finally these Terms.
These Terms are not a distribution, franchise, sale, agency or supply agreement and confer no rights to exclusivity on Buyer. Neither party is bound to make any purchase nor to sell any of Seller’s products except to the extent an order has been placed by Buyer and approved by Seller in accordance with these Terms.
Seller may amend these Terms at any time. Seller will notify Buyer of any amendments and provide the amended Terms, which shall take effect five (5) calendar days after being provided to Buyer.
Buyer may request Seller to hold a (rolling) safety stock of Products, for which the Parties shall enter into a separate written agreement specifying the stock quantity, storage fees, replenishment mechanism and other relevant matters.
PRICES, PAYMENT & CREDIT TERMS
All Terms are subject to credit approval.
All prices quoted by Seller exclude VAT, customs duties (if any) and any other statutory taxes or duties, which shall be borne by Buyer.
Unless otherwise agreed by Seller, payment shall be made in US dollars. Each order is a separate transaction, and Buyer shall not set-off payments from one order against another. If Buyer fails to make payments in accordance with Seller’s terms, Seller may, at its sole discretion, cancel the unshipped portion of any order and pursue other legal or equitable remedies.
If Buyer’s account is delinquent, no outstanding orders will be shipped until all overdue balances are paid. A late-payment charge of 0.05% per day will be added to all past-due amounts.
Buyer shall reimburse Seller for any costs incurred in collecting amounts owed, including reasonable attorneys’ fees and costs.
Complaints regarding invoices must be submitted in writing within fourteen (14) calendar days from the invoice date. After this period, Buyer shall be deemed to have accepted the invoice. Submission of a complaint does not suspend Buyer’s payment obligation. If the complaint is justified, Seller will promptly credit the relevant amount to Buyer.
Prices are subject to change. Seller reserves the right to adjust prices and price lists at any time due to changes in labor, raw material, transportation or other direct or indirect costs (including costs passed on by Seller’s suppliers) and to pass such adjustments on to Buyer. Seller's right to adjust prices under this Clause 3.7 shall prevail over the validity period stated in Clause 3.8.
Prices quoted are valid for thirty (30) calendar days from the date of quotation unless otherwise expressly stated, and Seller reserves the right to re-quote.
DELIVERY, SHIPPING & TRANSFER OF RISK
Delivery dates are quoted in good faith, but are not guaranteed. Agreed or indicated delivery periods are approximate and not strict deadlines. Failure to meet a delivery period shall not constitute a default by Seller, and Seller shall not be liable for any damages arising therefrom. Buyer shall not reject deliveries made prior to the indicated delivery date.
Seller cannot assume any risk or liability for delay or nonfulfillment of shipments due to acts of God, war, strikes, breakdown, fires, government orders, or other causes beyond Seller's control.
Unless otherwise agreed in writing, Product delivery shall be governed by the "Ex Works, (EXW Incoterms®2020)" rule, with the place of destination specified in the Order Confirmation. Freight costs shall be charged to Buyer separately.
All orders are shipped from the manufacturer’s location unless otherwise specified. All orders shall be shipped by the most economical method, with charges added to the invoice. Any claim for damaged freight or missing items must be made directly to the carrier.
Buyer should specify the freight carrier and any value declarations. In the absence of such instructions, Seller shall act at its discretion and shall be deemed to have fully discharged its delivery obligation, without incurring any liability for the choice of carrier or the consequences thereof.
Risk of loss of or damage to the Products shall pass to Buyer in accordance with the applicable Incoterm. If Buyer fails to take delivery of the Products when they are made available, Buyer shall be in default immediately, and Seller may store the Products at Buyer’s risk and expense.
Seller may deliver the Products in installments, which shall not constitute a breach of these Terms.
Buyer's purchase order is not subject to cancellation, change, reduction, suspension or deferment of deliveries without Seller's written consent and on terms which indemnify Seller against loss. Custom orders are not subject to cancellation or termination.
Seller has the right to suspend delivery until Buyer has fulfilled all its payment obligations under these Terms.
PRODUCT SPECIFICATIONS, CHANGES & COMPLIANCE
Except as the Parties may otherwise agree expressly, Seller may at any time furnish goods that include changes in design and construction of such goods as shall constitute an improvement in Seller's judgment. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers.
Seller reserves the right to correct clerical errors and omissions.
Manufacture, shipment, and delivery are subject to any prohibition, restriction, priority, allocation, regulation or condition imposed by any applicable governmental regulation.
Buyer agrees that it shall comply with all applicable import, export, customs, sanctions, safety, and anticorruption statutes and regulations. Buyer further undertakes to comply with all applicable cybersecurity and data protection laws, and not to transfer to Seller any data that is prohibited to be disclosed by law. For the personal information Buyer provide to Seller (including but not limited to business contact information, logistics recipient information, etc.), Buyer shall clearly inform the relevant data subject before providing it to Seller in accordance with the law, and obtain sufficient and necessary authorization from them, so that Seller can collect, process, store, and provide it to our overseas affiliates or service providers for purposes relevant to the orders between Seller and Buyer. Buyer agrees to indemnify and hold harmless Seller from all claims, damage, injury, cost, liability, expense (including attorneys’fees and costs) or other loss threatened, suffered, or incurred by Seller (collectively "Claims") as a result of or arising from Buyer's failure to comply with this provision and/or applicable export control and other laws and regulations.
RETENTION OF TITLE
Seller retains title to all Products delivered to Buyer until Buyer has fully paid the purchase price for all Products, including any accrued interest and costs. Buyer shall take reasonable care of the Products subject to retention of title, store them separately from similar products, and clearly mark them as Seller’s property.
Except in the normal course of business, Buyer shall not sell the Products subject to retention of title or create any limited rights (such as mortgage or pledge) thereon. Upon Seller’s first request, Buyer shall cooperate in establishing in Seller’s favor a pledge right over the claims obtained or to be obtained by Buyer from reselling the Products to its own customers.
Buyer’s right to sell the Products subject to retention of title in the normal course of business shall automatically terminate if: (i) Buyer’s assets are attached; (ii) Buyer applies for a moratorium on payment or insolvency (bankruptcy); (iii) insolvency (bankruptcy) proceedings are initiated against Buyer; or (iv) Buyer enters into a payment arrangement with one or more creditors.
Buyer shall immediately notify Seller if it encounters payment difficulties in respect of obligations to Seller, is unable to fulfill its financial obligations or payment agreements, is at risk of being granted a moratorium on payment, or if any third party claims rights to, seeks to create rights over, or attach the Products subject to retention of title.
If Buyer fails to fulfill its financial obligations under these Terms, or if Seller reasonably anticipates such failure, Seller has the right to retrieve, remove or have removed the Products subject to retention of title from Buyer or any third party, without being liable for any compensation, reimbursement or damages. Buyer shall fully cooperate, including granting Seller or third parties designated by Seller access to the premises where the Products are located, and shall compensate Seller for all costs incurred in this regard.
Notwithstanding the retention of title, during the period between the transfer of risk pursuant to Clause 4 and transfer of title, the risks of loss and damage to the goods sold, theft or destruction, and any damage which may be caused by the Products, are the sole responsibility of the Buyer.
Seller acknowledge that all intellectual property rights relating to the Products and (ancillary) services, as between Seller and Buyer, are solely and exclusively owned by Seller. Nothing herein is intended to grant any rights to Buyer under any patent, trademark, trade secret, or copyright of Seller. Buyer shall acquire no rights or interests in any of Seller's products, property, or intellectual property.
These Terms, prices, and data contained in a quotation or describing Seller's Products or processes are considered proprietary and shall only be disclosed to members of Buyer's organization who have a need to know. Upon request, Buyer shall return any printed or software-based proprietary data to Seller.
If Seller manufactures an item to specifications furnished by Buyer, and/or containing a trademark, trade name, logo, or other marking furnished by Buyer, then Buyer shall indemnify and hold Seller harmless from and against any and all Claims resulting from or arising out of (a) any claims that any such items, the use or sale thereof, infringe upon, misappropriate or violate any patents, copyrights, trade secret rights or other proprietary rights of any person, firm or entity; or (b) any claim by a third party, whether for warranty, breach of contract, product liability or any other claim or cause of action, arising from or related to such Buyer specifications.
Compliance with all statutory or regulatory requirements regarding labeling, transport, worker safety, training, or hazardous materials, including but not limited to radioactive materials, are the sole responsibility of Buyer and not Seller. No warranty as to compliance with any such statutory or regulatory requirements is intended or implied. Buyer is solely responsible for the following in connection with the use of all Products purchased pursuant to these Terms: (a) ensuring that the Products are not used to store or transport any materials identified by Seller as not suitable for use with the Products, including: infectious substances, cultures, patient specimens (including animal) or medical and clinical waste, industrial waste, live animals, corrosive materials, explosives, toxic materials and food products or any other substance or material identified by Seller; and (b) testing the Products in Buyer's environment to confirm that the intended use of the Products has been independently verified by Buyer. Buyer waives and agrees to hold Seller and its directors, officers, agents and employees harmless against any Claims incurred by Buyer or its employees, officers, representatives or agents arising from their use of the Products. Buyer further agrees to indemnify, defend and hold harmless Seller and its directors, officers, agents and employees from and against any Claims by Buyer or any third party resulting from Buyer's negligence or misconduct in the use of the Products.
Neither Party may disclose to any third party, or use for purposes outside the scope of these Terms, any confidential information obtained in connection with these Terms or the contemplated transactions, including but not limited to the other Party’s business operations, products, services, suppliers or customer information. This confidentiality obligation shall not apply to information that is publicly available, required to be disclosed by law, or disclosed in defense of legal proceedings, or with the other Party’s prior written consent. Without Seller’s prior written consent, Buyer shall not publicly refer to its business relationship with Seller on its website, in advertising materials, brochures or similar documents.
All documents and materials provided by Seller to Buyer in connection with these Terms (other than Products), including but not limited to calculations, drawings, material lists, catalogues, designs, samples, models, tools, Product instructions and other operating resources, remain the property of Seller. Without Seller’s prior written permission, Buyer shall not use, copy, display or disclose such documents and materials to any third party, and must return them to Seller upon Seller’s first request.
FORCE MAJEURE
In the event of force majeure, Seller may, at its discretion, suspend performance of its obligations under the affected purchase order(s) in whole or in part (including extending the delivery period) or terminate the affected purchase order(s) in whole or in part. Seller shall not be liable for any compensation, reimbursement or damages arising from force majeure or from the suspension or termination of these Terms due to force majeure.
For the purpose of these Terms, "force majeure" means any event beyond Seller’s control (even if foreseeable at the time of entering into these Terms) that prevents the performance of all or part of the purchase order(s), including but not limited to: epidemics and veterinary diseases, strikes or illnesses of Seller’s employees, failures of suppliers or other third parties engaged by Seller, government measures or prohibitions, import/export restrictions, traffic disruptions, accidents involving transportation means used by Seller or its engaged third parties, technical defects of such transportation means, shortage or limited capacity of transportation means, lack of required permits or exemptions, unavailability or limited availability of raw materials and parts, and theft.
WARRANTIES, INSPECTION & RETURNS
Seller warrants to Buyer that the Products shall conform to the Product Specifications provided by Buyer and be free from defects in materials and workmanship at the time of delivery and for a period of six (6) months following delivery.
Seller makes no other representatives or warranties of any kind whatsoever, express or implied, including but not limited to warranties of merchantability or fitness for a particular purpose, or regarding results obtained through the use of any Products.
Buyer shall inspect the Products upon delivery. Complaints regarding visible defects (in quantity or quality) must be notified to Seller in writing within five (5) calendar days of delivery. Complaints regarding non-visible defects must be notified to Seller in writing immediately upon discovery, but in any event within six(6) months of delivery. Failure to notify Seller within the aforementioned periods shall result in the automatic lapse of Buyer’s right to claim for non-conformity or other defects.
Any complaint shall be accompanied by a detailed description of the nature and scope of the alleged defects and sufficient evidence (e.g., photographs). Buyer shall cooperate fully with Seller’s inspection of the alleged non-conformity, including providing access to the Products or sending the Products to Seller for inspection at Seller’s expense if requested.
If a complaint is deemed valid by Seller, Seller’s sole obligation shall be, at its discretion, to either replace the defective Product or part thereof, or issue a credit for part or all of the purchase price of the defective Product. If Seller deems the complaint invalid, it may charge Buyer for the costs incurred in investigating the complaint.
Buyer shall not be entitled to claim under this section if it fails to fully comply with the Product instructions provided by Seller. The burden of proof that the Products were used in full compliance with the applicable instructions rests with Buyer.
Returned goods will not be accepted unless they are new, unused and in original packaging, and only with Seller's authorization. A 15% restocking fee shall apply. Custom goods may not be returned.
LIMITATION OF LIABILITY & REMEDIES
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY OF THE FOLLOWING LOSTS THAT BUYER MIGHT INCUR UNDER THESE TERMS, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR (ANCILLARY) SERVICES: LOST PROFITS; LOSS OF GOODWILL; LOSS OF REVENUE; LOST, DAMAGED OR DESTROYED PAYLOAD; OR INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES. THE LIMITATIONS OF LIABILITY AND DAMAGES SET FORTH IN THIS SECTION SHALL APPLY WITHOUT REGARD TO OTHER PROVISIONS OF THESE TERMS AND CONDITIONS AND SHALL APPLY TO ALL CLAIMS, DAMAGES, AND LIABILITIES OF ANY NATURE. IN ADDITION, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, SEPARATE AGREEMENT (IF ANY) AND THE ORDER CONFIMRMATION (IF ANY), OR ANY PRODUCTS OR ANCILLARY SERVICE, IS LIMITED TO THE AMOUNT BUYER PAID TO SELLER FOR THE PRODUCTS OR (ANCILLARY) SERVICE PURCHASED. HOWEVER, THESE PROVISIONS DO NOT LIMIT OUR LIABILITY FOR DEATH OR PERSONAL INJURY CAUSED BY OUR MATERIAL NEGLIGENCE OR FRAUD, FRAUDULENT MISREPRESENTATION OR ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED BY LAW.
Except for claims arising from Buyer's non-payment or underpayment of amounts owed to Seller, any and all claims arising out of or related to these Terms, or any purchase order or transaction governed by these Terms, or the relationship of the Parties shall be barred unless a judicial proceeding is commenced within one (1) year from the date the complaining party knew or should have known of the facts giving rise to such claim, or the statute of limitations applicable to that claim under the People’s Republic of China Civil Code, whichever is shorter.
TERMINATION
Default Termination: If Buyer fails to comply with any obligation under these Terms or applicable law, Buyer shall be in default immediately without any prior notice. Seller may, at its discretion, suspend performance of its obligations under the affected purchase order(s) or terminate all or part of the purchase order(s) in writing, without being liable for any compensation, damages or costs. This shall not prejudice any other rights of Seller under these Terms or applicable law, including the right to claim damages or performance, or to rescind or terminate the affected purchase order(s).
Events of Automatic Termination: Seller may immediately terminate all purchase orders if Buyer (i) has a (provisional) suspension of payment, (ii) is declared bankrupt, (iii) ceases or liquidates its business, or (iv) is placed under guardianship. Seller shall not be liable for any loss, damage, costs or interest arising therefrom, and shall retain all other rights under these Terms.
All claims of Seller against Buyer shall become immediately due and payable upon the occurrence of the events specified in Clause 11.1 (Default Termination) or Clause 11.2 (Events of Automatic Termination).
Buyer’s right to fully or partially terminate any purchase order or suspend its performance are limited to circumstances of Seller's material breach which is not remedied within a reasonable period after written notice from Buyer specifying the breach. For the avoidance of doubt, Seller's delay in delivery shall not be considered a material breach entitling Buyer to terminate or suspend, unless otherwise expressly agreed in writing.
MISCELLANEOUS
These Terms shall be governed by and interpreted in accordance with the laws of the People’s Republic of China, without giving effect to principles of conflict of laws, and excluding the United Nations Convention on Contracts for the International Sale of Goods.
Any action or proceeding seeking to enforce any provision of, or based on any right arising out of, these Terms and Conditions shall be submitted to the Shanghai International Economic and Trade Arbitration Commission (SHIAC) for arbitration, which shall be conducted in accordance with the SHIAC arbitration rules in effect at the time of applying for arbitration.
If one or more provisions of these Terms or any purchase order governed by them are deemed invalid, unenforceable or contrary to mandatory applicable law, the remaining provisions shall remain in full force and effect. For the invalid or unenforceable provisions, Seller and Buyer shall consult to formulate new provisions that best reflect the original intent of the invalid provisions.
Seller may assign its rights and obligations under these Terms or any purchase order governed by them to a third party. Buyer shall not transfer its rights and obligations hereunder without Seller’s prior written consent.
All notices under these Terms shall be in writing and deemed effectively given: (a) upon personal delivery; (b) when sent by confirmed email to the email addresses specified by each Party in the Order Confirmation or otherwise in writing; or (c) five (5) calendar days after being sent by registered mail.
THESE TERMS AND CONDITIONS ARE AVAILABLE ON WWW.YTCOLDCHAIN.COM AND MAY BE AMENDED BY SELLER FROM TIME TO TIME.
