1. Applicability.
These terms and conditions of sale (these “Terms”) are the only terms which govern the sale of the products (“Products”) by COVNA Automation Industry Co.,Ltd. And its subsidiaries, branches and divisions (as applicable, “COVNA” or “Seller”) to a purchaser of Products (“Buyer”) from COVNA. Notwithstanding anything herein to the contrary, if a written contract signed by COVNA and a Buyer covers the sale of Products covered hereby, the terms and conditions of such contract shall prevail to the extent they are inconsistent with these Terms.
References to (i) “COVNA factory” are to the applicable COVNA national or regional headquarters of Seller in the country where the order is received and (ii) “dollars” or “$” are to United States dollars unless specified otherwise.
2. Entire Agreement.
These Terms and the quotation (the “Quotation”) which they accompany (collectively, the “Agreement”) comprise the entire agreement between COVNA and Buyer relating to the Products that are the subject of such Quotation, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties and communications, both written and oral. These Terms prevail over any of Buyer‘s general terms and conditions of purchase regardless of whether or when Buyer submitted its purchase order or such terms. Buyer’s acceptance of the Quotation is expressly limited to these Terms, and COVNA objects to, and is not bound by, any terms or conditions that differ from, add to, or modify these Terms. Fulfillment of Buyer‘s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
3. Quotations.
The offer contains a general and correct description of the products and/or services. Errors and/or mistakes in the offer do not bind COVNA. Unless otherwise agreed in writing by Seller, all Quotations made by Seller are for immediate acceptance. Seller reserves the right to withdraw and/or revise any Quotation at any time prior to final acceptance by Buyer.
4. Validity.
Unless otherwise agreed and expressly written, offers made by Seller are valid for 30 days.
5. Price.
Buyer shall purchase the Products from Seller at the prices (the “Prices”) set forth in Seller’s published price list in force as of the date Buyer’s order is received by COVNA. All carriage charges, payment fees or other service charges are excepted from prices quoted unless agreed in writing by Seller. Possible extra costs within the framework of the contract, such as import costs, are not covered by the listed Prices. These extra costs are agreed in advance. All Prices (and any applicable discounts) for Products are subject to change without notice. Any order that is delayed for delivery at Buyer’s request or is otherwise scheduled to be made in excess of one hundred twenty (120) days from the order date will be invoiced at published list prices and discounts effective at the time of shipment unless otherwise specifically agreed at the time of Seller’s order acceptance. Any extra expenses incurred by Seller, such as engineering, tagging, taxes, service calls, export crating or other expenses, will be added to the invoice after notification to Buyer of the extra costs.
6. Taxes.
Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties, fees and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes, and if payable or paid by Seller, then added to the Price.
7. Packing
All goods are to be packed in seaworthy export standard packages according to international standards.
8. Delivery.
A. The Products will be delivered within a reasonable time after the receipt of Buyer’s order. Stated delivery dates are approximate and may never be considered to be firm deadlines. They are dependent upon prompt receipt of all necessary Buyer-furnished information and materials (if applicable).
B. Unless otherwise agreed in writing by the parties, Seller shall make the Products available at the COVNA factory (the “Delivery Point”). The title to and risk of loss for Products passes to Buyer upon signing of the bill of lading by the transportation company or the designated carrier (which signifies the delivery of the Products to the transportation company or the designated carrier for shipment to Buyer). Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Products at the Delivery Point.
C. All Prices are quoted Ex Works (EXW) COVNA factory or such other place that Seller shall designate on the Quotation. Seller does not insure shipments beyond the Delivery Point and, therefore, all claims of lost or damaged Products in transit must be filed directly with the transportation company by Buyer. Seller shall select the method of shipment and the carrier for the Products. Seller may ship via the Buyer’s choice if routing is satisfactory and rates equal to or less than Seller’s normal choice. In the case of higher than normal special shipping requirements, Seller will ship the Products at Buyer’s expense (including a handling fee or collect basis).
D. If for any reason Buyer fails to accept delivery of Products on the date fixed pursuant to Seller’s delivery notice to Buyer that the Products are being made available for delivery at the Delivery Point: (i) risk of loss to the Products shall pass to Buyer, (ii) the Products shall be deemed to have been delivered and accepted by Buyer and (iii) Seller, at its option, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). Any failure of Buyer to provide appropriate instructions, documents, licenses or authorizations in connection with delivery of Products shall be deemed to be a failure of Buyer to accept delivery of Products at such time as such Products are otherwise available for delivery. Any orders held by Seller more than sixty (90) days may be treated as a cancelled and the Products deemed returned.
9. Retention Of Title.
A. All goods delivered to Buyer, also including parts and other materials, remain the property of COVNA until everything Buyer owes to COVNA (including interest and costs) is met.
B. Until ownership of the delivered goods has not passed to Buyer, Buyer is not authorized to dispose of the goods or use them in any other way than in accordance with the normal use of the products.
C. If Buyer did not precisely fulfill any obligation to COVNA and in the event of termination of the agreement for any reason whatsoever, COVNA will be entitled to take back all the goods that are property of COVNA, without prior notice or judicial intervention. Buyer is obliged to return the goods on first demand free of charge to COVNA, all without prejudice to the right of COVNA to full compensation under these conditions and legal provisions.
10. Inspection And Rejection Of Nonconforming Products.
A. Buyer shall inspect the Products after delivery for defects and damages (including shipping damage) within seven (7) days of receipt (“Inspection Period”), by exceeding this term Buyer will loose his right to complain. Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means that the Products shipped are different than those identified in Buyer’s purchase order.
B. If Buyer timely notifies Seller of any Nonconforming Products during the Inspection Period and Seller has determined that the complaint is valid, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) repair such Nonconforming Products without costs, or (iii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to the COVNA factory or such other place that Seller shall designate on the Quotation. Upon Seller’s confirmation of the nonconforming nature of the Nonconforming Products, Seller shall credit the Buyer’s expense for such shipment against the Buyer’s payment obligations to Seller. If Seller exercises its option to replace such Nonconforming Products, Seller shall, after receiving Buyer’s shipment of returned Nonconforming Products, ship to Buyer the replaced Products and the terms of Section 8(B) shall apply for such replaced Products, except that Seller shall be responsible for the costs and expenses for such shipment.
C. Buyer acknowledges and agrees that the remedies set forth in Section 9(B) (exercised in accordance with these Terms) are Buyer’s exclusive remedies for the delivery of Nonconforming Products.
11. Limited Warranty.
A. Seller warrants to Buyer that for a period of eighteen (18) months from the shipment date (as applicable, the “Warranty Period”), Products manufactured by Seller will be free from defects in materials and workmanship when used for the purposes for which they were designed and manufactured. Seller does not warrant the Products against chemical or stress corrosion or against any other failure other than from defects in materials or workmanship. For inoperative products beyond the warranty period, we assume no liability for replacement of valves due to service conditions beyond our control.
B. THE EXPRESS WARRANTY SET FORTH IN SECTION 1.11(A) IS EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED. NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IS INTENDED OR GIVEN.
C. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Products. Third Party Products are not covered by the warranty in Section 11(A). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT.
D. The Seller shall not be liable for a breach of the warranty set forth in Section 11(A) unless: (i) Buyer gives written notice to Seller of the defect during the Warranty Period; (ii) Seller acknowledge receipt of the notice and Buyer returns such Products to COVNA’s factory or such other place that Seller shall designate on the Quotation for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Products are defective. Buyer shall return (freight prepaid) the defective Product to COVNA at COVNA’s factory or such other place that Seller shall designate on the Quotation no later than seven (7) days of Buyer’s initial written notice to Seller of the defect. Buyer shall first re-order the products with same design, structure, specifications and materials for continuous operation before returning the defective Product. Upon Seller’s confirmation of Products in breach of the warranty provided under Section 11(A), Seller shall credit the Buyer’s expense for shipment against the Buyer’s payment obligations to Seller and, if Seller exercises its option to replace such defective Products, Seller shall ship to Buyer the replaced Products and the terms of Section 8(B) shall apply for such replaced Products, except that Seller shall be responsible for the costs and expenses for such shipment.
E. The Seller shall not be liable for a breach of the warranty set forth in Section 11(A) if: (i) Buyer makes any further use of such Products after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Products; or (iii) Buyer, or a third party, alters or repairs such Products without the prior written consent of Seller.
F. Subject to Section 11(D) and Section 11(E) above, with respect to any such Products during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Products (or the defective part) or (ii) credit or refund the price of such Products at the pro rata contract rate provided (max. 50%) that, if Seller so requests, Buyer shall, at Seller’s expense, return such Products to Seller. THE REMEDIES SET FORTH IN THIS SECTION 11(F) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S SOLE AND ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(A).
12. Limited Liability.
If the liability for loss for Buyer is to be adopted by COVNA, then the liability is limited to the amount of the price stipulated in the agreement with a maximum of €1000, or the part of the agreement to which the loss is related to.
13. Design Changes.
Seller reserves the right to change, discontinue or alter the design, construction, specifications, or materials of Products without prior notice and without incurring any obligation to make such changes and modifications on COVNA Products previously or subsequently sold. For precise measurements, please contact COVNA Technical Service.
14 Termination.
In addition to any remedies that may be provided under the Agreement, Seller may terminate the Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due; (ii) has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Confidential Information.
All Confidential Information (as defined below) of Seller disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with these Terms or the Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all Confidential Information received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. For purposes of this Agreement, “Confidential Information” means all non-public, confidential or proprietary information of Seller including, but not limited to, business affairs, business plans, trade secrets, intellectual property, specifications, samples, patterns, designs, client information, customer information, supplier information, technical data, developments, properties, systems, procedures, services, processes, methods, drawings, know-how, equipment, development plans, documents, manuals, strategies, training materials, costs, pricing, discounts or rebates, inventions, discoveries or any other confidential matters acquired in respect of the Seller or the Products.
16. Force Majeure.
A. Neither Seller nor Buyer shall be in breach of contract nor liable to the other party for any delay or damages if prevented from performance of these Terms and the Agreement (other than the payment of money) by any condition of force majeure which is beyond the control and not caused by the negligence of the party so affected (“Force Majeure”). Force Majeure includes, but shall not be limited to, earthquakes, floods, hurricanes, named tropical storms, lightning strikes, ice storms, blizzards, icebergs, pack ice, air and sea disasters, explosions and fire, epidemics, acts of God, acts of public enemy, war, terrorism, national emergency, invasion, insurrection, riot, strike, lockout, blockade or other industrial disputes, any laws, rules, regulations, orders, directives or requirements of or interference by any government or government agency, inability or delay in obtaining supplies of adequate or suitable materials, power outage or other circumstances not within the control of the party and which, by the exercise of reasonable diligence, the party is unable to prevent or remedy, whether similar or dissimilar, foreseen or unforeseen. Seller shall have such additional time as may be reasonably necessary to perform its obligations upon the occurrence of any Force Majeure event.
B. COVNA is not obliged to perform any obligation to Buyer in case of force majeure as defined in paragraph 1. COVNA may suspend its obligations under the agreement during the period of force majeure. If this period lasts longer than two months, each party is entitled to terminate the agreement without any obligation to pay damages to the other party. If the above situation occurs when the agreement is partly executed, Buyer is held to its obligations to COVNA for that part of the agreement. COVNA is entitled to separately invoice Buyer for the part of the agreement that is executed and Buyer is obliged to pay as if it were a separate agreement.
17. Assignment.
Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
18. Amendment And Modification.
Seller reserves the right to change these terms and conditions at all times. If Buyer does not want to accept a change, he/she can, until the date on which the new conditions take effect, terminate the agreement by this date. Returning Buyers should reconsider the terms and conditions when starting new orders and/or enter into a new agreement.
19. Dispute Resolution.
All disputes arising form the execution of or in connection with this Contract shall be settled amicably through friendly negotiation. In case no settlement can be reached through negotiation, the case shall then be submitted to China International Economic and Trade Arbitration Commission for arbitration which shall be trialed in Guangzhou and conducted in accordance with the Commission’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties. The arbitration fee shall be borne by the losing party unless otherwise awarded by the arbitration organization.
20. Notices.
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Quotation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), email or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (i) upon receipt of the receiving party (and confirmation of such receipt in respect of facsimile or email transmissions), and (ii) if the party giving the Notice has complied with the requirements of this Section.
21. Severability.
If any of these Terms or other terms or provision of the Agreement are determined to be invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Clerical Errors.
Seller reserves the right to correct all stenographic or clerical errors or omissions in any documents (whether Quotations, invoices or other documents).
23. Published Data.
All published dimensions, weights, temperatures, pressure ratings and other Product data are approximate.
If there is something unclear, both parties may conclude a supplement clause and the clause shall be deemed equally authentic as this Agreement.