General Terms for Sales Contract Rev 2, 29th September 2016
General Terms Number：通用条款编号：
BUYER买方： (HEREINAFTER CALLED BUYER，以下称为买方)
SELLER卖方:(HEREINAFTER CALLED SELLER，以下称为卖方)
With the spirit of equality, voluntariness, fairness and good faith, compliance with the law and not endangering the principles of social and public interests, both parties jointly enter into these general terms. These general terms shall apply to all the sales contracts signed by the above two parties. If there are any conflicts between this general terms and sales contract signed by both parties, this general terms shall govern. The general terms will take effect signed by both parties and remain valid permanently. Each party can require modifying the general terms. The general terms will become invalid after the modified general terms signed by both parties.
Article One Sales Contract Price
The contract price will include import duties and value-added tax while RMB is adopted as price unit; the contract price shall not include import duties and value-added tax if U.S. dollar is adopted as price unit and BUYER shall be responsible for all custom declaration and the corresponding duties and value-added tax charges. If BUYER authorized SELLER to deal with the custom declaration and other procedures, BUYER shall pay service fees to SELLER, which can be otherwise agreed by both parties.
Article Two Transfer of title and transfer of risk
Transfer of title shall occur upon delivery to the sales contract delivery address.
Transfer of risk shall occur according to the delivery terms ( Incoterms 2010) specified in the sales contract.
Article Three Delivery
1. Package: The seller provides the standard package on Swagelok Products.
2 The seller shall be responsible for delivering the goods to the delivery location agreed in the sales contract and to the consignee or a third-party forwarder designated by the buyer within weeks after validation of the contract and receipt of the advance payment by the buyer through telegraphic transfer; If the buyer changes the place of delivery or the consignee, it shall notify the seller in writing before receiving the “Notice of Delivery”in written form provided by the seller, or any liability resulting from non-notification shall be borne by the buyer. At the same time, any additional freight or any other expenses resulting from the change of the delivery location or consignee shall be borne by the buyer; where the buyer demands addition of the batches of delivery of goods after the confirmation in written form of the batches of delivery of goods by both parties, it shall assume expenses such as freight and packaging expenses on the basis of the expenses for split delivery, and installment shall be adopted for all the delivery in batches.
The buyer may choose to take goods by itself at the place where the seller’s goods are stored, and assume the freight and other expenses incurred therefore. The customer taking products by itself shall take products in accordance with the “Notice of the Checkpoint Inspection and Release Form” provided by the seller. If customs investigation and punishment is caused by the buyer’s failure in operation pursuant to the Notice, the buyer shall be liable for the fine imposed on both parties and all relevant losses including the expenses incurred by rectification, and it shall additionally pay an equivalent sum to the price of the goods investigated to the seller as compensation for its bad record of ever being investigated by the customs.
Article Four Quality Assurance and Product Acceptance Period
1. The specifications and technical standard of the products under this contract can be referred to the related Swagelok Product Catalog provided by the seller.
2. The quality, performance, specification are in conformity with the seller’s warranty as follows.
2.1THE SWAGELOK LIMITED LIFETIME WARRANTY
Swagelok and its authorized distributors hereby warrant to the purchaser of their Products that the non-electrical components shall be free from defects in material and workmanship for the life of the Products. All electrical components installed in or on the Product are warranted to be free from defects in material and workmanship for twelve months from the documented date of purchase.
The purchaser’s remedies shall be limited to replacement and, in non–ground vehicle applications, installation of any parts that fail through a defect in material or workmanship. Liability for installation is limited to reasonable costs that have been approved in advance and in writing by Swagelok.
All customer-specified components carry the applicable manufacturer’s warranty. The warranty for any firmware or software Products that contain programmable logic or a microprocessor is governed by a separate Swagelok Embedded System End User License Agreement, MS-13-330 accessible from the www.swagelok.com website.
Warranty coverage hereunder only applies to Products purchased directly from either Swagelok or its authorized distributors and representatives. All other purchases are specifically excluded from any warranty coverage.
All other express and implied representations and warranties, and all other liabilities, relating to the condition or use of the product are specifically disavowed, and in no event shall Swagelok and its authorized distributors be liable to purchaser, or any third party, for any direct or indirect consequential, liquidated or incidental damages.
3 .The Exclusions of Quality Warranty:
(1) The installation, operation, usage, maintenance and examination and repair of the products are not applied to the technical requirements of the products or the requirements of the Products Manual;
(2) The damages are made by the buyer or any third party intentionally or carelessly;.
(3) The normal damages of the products;
(4) The damage resulting from improper recast;
(5) The damage resulting from force majeure;
(6) The damage caused by an occurrence of an out of control.
(7) Other conditions irrelevant with the manufacturer and the seller.
4 .The buyer shall conduct the check and inspection of the quantity, weight and package of the products upon receipt of the products on the spot and specifies clearly in the relevant proof of delivery. The buyer shall inspect the products in 3 days after receipt, and notify the seller those products which are not consistent with the agreement by both parties or Product Manual in 5 days after receipt. The products will be deemed as consistent with the agreement by both parties if the buyer fails to do so in the above-mentioned examination and acceptance period.
5. Both Parties agree that, the products will be under the examination of the American Swagelok company under the relevant standards specified in the Product Manual if the buyer has any objections on the quality of the products. The process of the raising of such objections and the examination of the products can be referred to the appendix of this contract “Product Return Process “. The examination result is legally binding on both parties but both parties can enter into agreement on the return of the products according to the examination result.
Article FiveForce Majeure
1.Force majeure refers to the incidents that are out of the control of both parties, or both parties cannot anticipate, avoid or conquer, thus any party of this general term totally or partially unable to carry out the contract. These incidents include but not limited to earthquakes, typhoon, floods, fires, wars, strikes, rebellions, changes of government behaviors and the rule of the law and its application, and any other unpredictable and uncontrollable incidents, including those been recognized as force majeure in international business practice.
2. Upon the happening of force majeure, both parties shall instantly consult with each other and seek for a proper and right solution, and minimize the impact of the force majeure as much as possible.
3. Under all the conditions of force majeure, the seller will not responsible for the delay and failure of delivery or any problems of the quality of the Products.
Article Six Breach of Contract
1. After the signature of the sales contract, if the buyer return all the ordered products (or part of the ordered products) or the seller terminates the sales contract for the buyer’s reason, the seller is entitled to take 30% of the returned goods selling value or contract value as the compensation for breach of contract, and the expenses incurred by return of goods shall be assumed by the buyer. Products signaled with * are specially made for the buyer, and the seller will take full amount of product selling value as the compensation for the returned products; returned goods shall bear original packages, and the seller shall reject return of the goods which have no original packages or suffer severe damage in the original packages.
2 .If the buyer delay in the payments, it shall pay the compensation for the delayed payment to the seller, which shall be: the sum of non-paid amount×the days postponed/365×10%. The seller has the right to terminate this contract if the buyer delays in payment for 30 days after it is due and owing.
3．According to the agreed delivery date of the sales contract, if the seller cannot deliver the products on schedule for the buyer’s reasons or the buyer fails to take the products according to the agreed delivery date, the seller can require the storage charges as 0.2%/per day on the value of goods not delivered. The seller can cancel this sales contract if the ordered goods cannot be delivered more than 30 days after agreed delivery date due to the buyer’s responsibility.
Article Seven Intellectual Property Rights and Confidentiality
1.All intellectual property rights of the products purchased by the buyer and all documents related with the products, include but not limited to drawings, technical standards, product specifications, etc., shall belong to the manufacture, if there is any act of intellectual property infringement, the rights holder will claim for compensation through relevant ways.
2 .Both parties have the obligation to keep the contents of this general term and all the sales contracts confidential, any party shall not disclose the contents to any third party without consent of the other party.
Article Eight Commitments and Guarantees Made by the Buyer
1 .The manufacture of the products under this contract is Swagelok Company; therefore the sales of the products shall be in full compliance with the regulations on export sales required by U.S. Department of Commerce. All commodities, technology, or software supplied under this general term are supplied in accordance with the Export Regulations of the United States of America. Export, re-export, sale, re-sale, transfer or diversion of these commodities contrary to U.S. law is strictly prohibited. In Addition, buyer is under an independent obligation to comply with U.S. export laws and the import/export laws of their own countries. The buyer hereby warrants that it has fully understood such regulations before signature and the signing shall be regarded as the acknowledgement of such regulations and shall bear any legal responsibilities for the violation of such regulations.
2. There are strict regulations on anti-commercial bribery in Swagelok Company; therefore, the buyer commits to abide by such relevant provisions together with the seller, which can be referred to the appendix 1 of this contract “Declaration for Integrity”.
Article Eleven Effectiveness and Notice
1. This general term shall come into force from the signature date by both parties, and this term shall be made in two copies, each party holds one copy.
2. The address of both parties in this general term will be each party’s mailing address for sending or receiving documents related with this general term, the party whose address will be changed shall notify the other party; and if the party fails to do so, all legal liability shall be borne by the party. If the contact address in sales contract is different with the general term, the address in sales contract will prevail.
3. The general term and the sales contract based on this general term are subject to interpretation in Chinese language. Inconsistent with both Chinese and English, Chinese shall prevail.
4. The sales contracts based on this general term shall come into force from the signature date by both parties, and the sales contracts shall be made in two copies, each party holds one copy.
Article Twelve General indemnification
The interpretation, effectiveness and compliance of this General term shall be in accordance with the laws of the People’s Republic of China. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Contract. Any dispute, controversy, or claim arising out of or relating to this contract shall be settled by the court located in the domicile of the seller
Article Fourteen Supplemental Agreements
If there is any issue not included in this general term, both parties can entered into another written supplemental agreements.
1. Product Return Process产品退检流程
2. Declaration for Integrity诚信承诺书
3. Mutual Non-Disclosure Agreement
Product Return Process
1.Swagelok installation and usage instructions should be obeyed to use Swagelok products. If the customer found problems during the usage, please communicate with Swagelok Sales Engineers.
2.If the customer wanted to return Swagelok products to have an evaluation, please communicate with Swagelok Sales Engineers. Swagelok Sales Engineers will help the customer do product return process. There are several important points which should be confirmed or finished before product return.
- The products were not damaged by person.
b. The customer must provide true, necessary product usage information.
c. If the products were ever exposed to non-inert material, an English MSDS or Product Safety Data of this material must be provided.
d. The returned products must be decontaminated, an English decontamination instruction must be provided. The customer must assure there is no contamination or residual material in the returned products.
3. After receiving the necessary documents and returned products, Swagelok will release the Returned Product Evaluation Report in one or two months. Swagelok Sales Engineers will transmit the report to the customer and solve the problem according to result of the report.
4. If there is no defects in workmanship or material according to Returned Product Evaluation Report, Swagelok will not repair or replace the products.
Declaration for Integrity
As the cooperative supplier/customer of Swagelok (Shanghai) Fluid Systems Technologies Co., Ltd. (hereinafter referred to as “Company”), the undersigned Would like to eliminate illegal actions together with Company, including but not limited to commercial bribery; and the undersigned warrants that:
1. The undersigned prohibits itself and/or its relevant employees, officers or principals to provide any presents, money or any tangible or intangible interests through any other methods (other than reasonable and customary business souvenir, meal and entertaining proven acceptable under Chinese law. For souvenir, any souvenir that is priced over 200RMB is deemed inappropriate and unacceptable).
2. If the undersigned authorizes itself and/or its relevant employees, officers or principals to engage in any of the aforesaid actions, Company is entitled to terminate the cooperation with the undersigned and cancel the agreement entered into by the parties. At the same time, the undersigned agrees to pay the fine for breach of this Declaration, which shall be all losses, damages, costs, legal fees, penalties and all damages caused to Swagelok or Company from such acts and any other restitution provided by law.
3. If the undersigned and/or its relevant employees, officers or principals treat Company’s employees and/or their families secretly, or provide any interests to Company’s employees and/or their families, the undersigned shall immediately notify Company; if the undersigned fails to do so, the above Article 2 may be applied.
4. If Company’s employees ask for any tangible or intangible interests from the undersigned and/or its employees, the undersigned will notify Company immediately and coordinate with Company to deal with such employees according to the laws. Company may terminate the cooperation with the undersigned permanently if the undersigned conceals such acts of asking for bribes.
Report E-mail (举报邮箱) : JuBao@swagelok.com
Report Hotline（举报电话）: (+86)21.6182.6270 或(+86)21.6182.6278
Appendix 3. Mutual Non-Disclosure Agreement
This Non-Disclosure Agreement (hereinafter “Agreement”) is made by and between the two parties.
During the course of dealings between the Parties, it may be necessary for a Party to disclose
certain confidential and proprietary data, the disclosure of which to, or use by, third parties could be damaging (“Confidential Information”). Confidential Information includes, but is not limited to, trade secrets, design documents, drawings, prints, know-how specifications, flowcharts, worksheets, data, personal data, reports, software, whether in humanly-readable or machine-readable form, documentation, correspondence, and information concerning its products, designs and manufacturing processes, distribution, finances, sales and purchasing practices, and personnel, in any form, originated by, licensed to, or prepared for a Party. The term “personal data” means any information relating (i) to an identifiable natural person or (ii) directly or indirectly to an identifiable natural person.
- In consideration of and as a prerequisite to any Party’s disclosure of Confidential Information, each receiving Party agrees to protect the secrecy and unauthorized use of the Confidential Information.Without limiting the foregoing, each Party agrees to treat and to safeguard any Confidential Information received from the disclosing Party whether oral or written with at least the same degree of care as each receiving Party exercises to protect its own confidential information, which shall be at least a reasonable standard of care, unless such information:
- is or becomes part of the public domain by publication or otherwise through no fault of the receiving Party or its employees and without breach of this Agreement;
- is, at the time of disclosure, known to the receiving Party or its employees as established by written records of the receiving Party;
- is or has been lawfully disclosed to the receiving Party by a third Party without an obligation of confidentiality upon the receiving Party;
- is independently developed by the receiving Party without reference to the Confidential Information; or
- is required to comply with a court or administrative order provided that the receiving Party gives the disclosing Party timely notice of the contemplated disclosure in order to provide the disclosing Party the opportunity to intervene to preserve confidentiality.
- The receiving Party shall not in any way use the Confidential Information disclosed hereunder for any purpose other than its dealings with the disclosing Party.
- The receiving Party will not distribute, disclose, or disseminate Confidential Information in any way, to any third party, and will disclose the Confidential Information only to those of its employees, subcontractors, attorneys, accountants, and auditors who are required to receive such information for the purpose set forth above, provided that disclosure of the Confidential Information to employees, subcontractors, attorneys, accountants, and auditors of the receiving Party will be limited in any event to employees, subcontractors, attorneys, accountants, and auditors who have agreed in writing or have a fiduciary obligation to maintain such information in strict confidence at the same level as the Parties are bound to herein and limited to what the employees, subcontractors, attorneys, accountants, and auditors need to know.The receiving Party shall be responsible for any breach of this Agreement by any of its employees, subcontractors, attorneys, accountants or auditors.
- All Confidential Information provided to the receiving Party in tangible form under this Agreement shall remain the property of the originating Party, and all such documents, together with any copies or other material shall be returned immediately to the disclosing Party or destroyed upon request provided that, subject to continuing obligations of confidentiality, neither Party shall be obligated to return or destroy any copies of Confidential Information stored in such Party’s data backup or recovery system. Except for correspondence strictly between the Parties, The Parties will not use the name of the other Party or any other name, trademark, service mark of the other Party or any photo, drawing or other representation of the other Party’s product in any document, or communication, including an advertisement, without the written consent of the other Party.
- Nothing in this Agreement shall be construed to (i) obligate a Party to enter into any agreement or transact business with the other party; or (ii) convey any rights to present or future patents, patent applications, trademarks, copyrights, trade secrets, or other intellectual property rights of either Party.However, the Parties acknowledge that they may desire to explore such rights by way of separate agreement. In addition, neither Party may disclose that it is, or may be, transacting business with the other Party.
- Each Party represents that it does not have an obligation to any third Party, whether express or implied that would interfere, hamper or otherwise limit its ability to comply with the terms of this Agreement.
- This Agreement shall become effective upon the date of the last Party to sign this Agreement, and shall continue until terminated by either Party giving 30 days advanced written notice of termination, provided however, that termination of this Agreement shall not relieve the receiving Party of its confidentiality obligations hereunder, which shall continue indefinitely.
- If a Party should become aware of the fact that any Confidential Information has been used for any unauthorized purposes or revealed to any unauthorized person, that Party shall inform the other Party immediately giving particular details of the information revealed and the date of such revelation.
- This Agreement shall be governed and construed under the laws of the State of Ohio, U.S.A. without regard to any conflicts of law provisions.The Parties acknowledge and agree that in the event of a breach or threatened breach of the foregoing provisions, damages suffered by the disclosing Party shall not be fully compensable in money damages alone, and accordingly, a disclosing Party shall, in addition to other available or equitable remedies, be entitled to an injunction against such breach or threatened breach without any requirement to post bond as a condition of such relief.The parties hereby irrevocably and unconditionally waive the right to a jury trial in connection with any claim arising out of or related to this agreement.
- The Parties shall take such measures as may be necessary to ensure that the disclosure of Confidential Information complies with any export control laws which may govern such disclosure.
- This Agreement constitutes the entire agreement between the Parties with respect to the subject matter herein, and may not be amended, modified, or waived, except pursuant to a writing signed by the duly authorized representatives of the parties.
In witness whereof, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above. This Agreement is acceptable.
Seller 卖方: Swagelok (Shanghai) Fluid System Technologies Co., Ltd.世伟洛克（上海）流体系统科技有限公司
Registered Address 注册地址：RM B11, Floor 2, Bldg.1, No.28 Fenju Road, Shanghai Pilot Free Trade Zone, China
Registered Address 注册地址：
Business Address地址：Room 202, Bldg. 9,No. 690, Bibo Road, Pudong,Shanghai, 上海碧波路690号9号楼202
Business Address 地址：
Legal representative法定代表人: 邱昶
Date日期: 年 月 日
Date日期： 年 月 日