This ‘Trade Term’s & Conditions’ statement explains the terms and conditions of Mibet New Energy and its subsidiaries.
MIBET GENERAL TERMS AND CONDITIONS OF TRADE
1. Validity of General Terms and Conditions
1.1 Unless and until Xiamen Mibet New Energy Co., Ltd, or any other company within the Mibet Group (collectively and individually, Mibet) provides written notice of any replacement terms and conditions, these Terms and Conditions of Trade (Terms) apply to the sale of products (Products) by Mibet to any customer (Purchaser) placing a written purchase order with Mibet (Order) where no separate Supply Agreement is in place between Mibet and the Purchaser in respect of the Order.
1.2 In the event of any inconsistency between these Terms and any other agreement between Mibet and the Purchaser or any documentation of the Purchaser in connection with any Order, except where arising under a separate Supply Agreement, these Terms will prevail to the extent of the inconsistency.
2. Formation of Contract
2.1 A quotation is not an offer by Mibet to sell or supply and may be withdrawn or varied at any time prior to Mibet’s acceptance of an Order, and is void after thirty (30) days, unless extended in writing by Mibet. In addition, prices are subject to variation in accordance with clause 3 below. Mibet reserves the right to correct typographical or clerical errors. Any and all declarations of acceptance of Orders must be made in writing by Mibet to become legally effective. Mibet’s issue of an Order acknowledgment does not constitute acceptance of any terms or conditions in any Order form or other documentation of the Purchaser.
2.2 Mibet’s employees are not authorised to make any oral collateral agreements or oral confirmations which go beyond the content of the written contract and the Purchaser will not rely on any such oral collateral agreements or oral confirmations.
2.3 In the event that Mibet cannot perform or accept an Order for any reason, Mibet will notify the Purchaser and any funds paid by the Purchaser in respect of the Order will be refunded, unless otherwise agreed in writing.
2.4 Only those specifications which are clearly set out in the Order will apply to the Products supplied.
2.5 Any and all drawings, illustrations, measures, weights or other performance data related to a quotation by Mibet will only be binding where they are expressly agreed in writing in an Order.
3. Prices and Terms of Payment
3.1 The terms of payment are net cash before dispatch, unless the Purchaser has a current credit account with Mibet. The terms of payment for a Purchaser with a current credit account are net cash, free of exchange, thirty (30) days from the date of invoice in which the Products are delivered. Mibet reserves the right to invoice for Product deliveries delayed at the Purchaser’s request.
3.2 Prices quoted or accepted: (a) do not include taxes, imposts or duties. Mibet may recover from the Purchaser, and the Purchaser must pay the amount of any sale tax, customs tax, use tax, consumption tax, goods and services tax or any similar tax, impost or duty levied on any supplies made by Mibet to the Purchaser under or in connection with these Terms; and (b) are subject to any Incoterms stated in the Order.
3.3 Mibet reserves the right to modify its prices accordingly if there is any change in the costs of labour, materials, transport, essential services, tariffs, duties, exchange, and other costs and statutory obligations, between the date of quotation and the date of invoice. Mibet will provide proof of such cost changes at the Purchaser’s reasonable request.
3.4 Mibet must agree to any reduction of cash discounts separately in writing.
3.5 The Purchaser must pay Mibet default interest of 0.1% of the value of all amounts in arrears in the aggregate. Default interest will be compounded daily and calculated from the due date for payment until Mibet receives payment in full.
3.6 Mibet may use payments to satisfy older debts, and will inform the Purchaser of any such set-offs.
3.7 The Purchaser may not cancel or amend any Order accepted by Mibet without Mibet’s written approval, which it may grant or deny in its sole discretion.
4. Period of Delivery and Performance
4.1 Delivery will be deemed to occur when Mibet informs that the Purchaser that the Products are ready for collection from the delivery point set out in the relevant Order, or if none is set out, from Mibet’s nominated collection point.
4.2 Dates and periods of delivery may be subject to extension by Mibet to cover delays caused by Government actions, strikes, lockouts, breakdowns, delays in transport, fines, late delivery of raw materials or components, or other causes beyond Mibet’s control, and Mibet will not be liable under these Terms for consequence of any delays. Mibet will be entitled to postpone delivery by the equivalent period of the delay plus an appropriate restarting time, or to cancel or amend the relevant Order in full or in part.
4.3 If any delay referred to in clause 4.2 lasts more than three (3) continuous months, either party may cancel that part of the Order which has not already been performed by Mibet. In the event that the period of delivery or performance is extended or in the event that Mibet is released from its obligations:
(a) to the extent any Products have been delivered but are not yet paid for under an Order, the Purchaser will pay Mibet the value of the Products as determined by the price(s) stated in the relevant Order, or that cannot be reasonable ascertained, the value of the Products under Mibet’s then-current pricing list; and
(b) the Purchaser will not be entitled to make any claim against Mibet for any loss or damage suffered as a result of the cancellation.
4.4 Unless expressly agreed otherwise in an Order, Mibet may deliver Products in partial deliveries.
4.5 Time is of the essence in respect of the Purchaser’s payment obligations under each Order and these Terms.
4.6 If the Purchaser requests Mibet to delay delivery, or fails to give Mibet adequate instructions for delivery, or delays acceptance of delivery, Mibet may claim from the Purchaser any costs incurred as a result of the delay, including Product storage costs.
5. Passing of risk
5.1 Risk in the Products passes to the Purchaser upon delivery of the Products in accordance with clause 4.1. Mibet will not be responsible for any loss or damage occurring after the point of delivery.
6. Liability for Defects or Shortfall
6.1 If there is any shortfall of Products delivered from the quantities set out in the relevant Order, or if Products are damaged during delivery, the Purchaser must inform Mibet within three (3) days from the date of delivery. If the Purchaser does not, then Mibet will not be responsible for any loss or damage by the Purchaser as a result of the shortfall or damage.
6.2 If there is a shortfall in the number of Products or if the Products are damaged during delivery, Mibet’s liability will in any case be limited to the price of the Products not delivered or damaged.
6.3 If any new Product is found to be defective in materials or workmanship within the applicable warranty period under Mibet’s Standard Limited Warranty, or does not conform to any applicable drawings and specifications accepted by Mibet in an Order, then Mibet will, at its option, either repair or provide a replacement part or Product, provided that:
(a) the Purchaser has given written notice to Mibet of any alleged defect within a reasonable period from the date of discovery of the defect;
(b) the Purchaser has provided Mibet a reasonable opportunity to perform all appropriate tests on the Product; and
(c) the defective part or Product is promptly returned to a Mibet’s nominated address. Any defective Product replaced will become Mibet property (at its election) and the replaced Product will be delivered free to the Purchaser. The Purchaser acknowledges and agrees that Mibet’s liability in respect of defective Products is limited to the remedies set out in this clause 6.3.
6.4 The warranties in clauses 6.2 and 6.3 above do not cover failure or damage resulting from:
(a) fair “wear and tear” or occurring outside the warranty period;
(b) misapplication, abuse, improper installation or abnormal conditions of operation;
(c) operation, either intentional or otherwise, above or below rated capacities or in an otherwise improper manner;
(d) tampering with or altering a Product by anyone other than an authorised representative of Mibet; and
(e) the incorporation of, or failure of, parts or components not authorised by Mibet.
6.5 To the maximum extent permitted by law, all conditions, warranties, terms, undertakings, representations and obligations, whether expressed or implied, and whether arising under statute, common law, equity, custom, trade usage or otherwise (including any implied condition, warranty, term or representation as to the use of the Products, their weight, dimensions, capacities, colours or the correspondence of the Products with any contract description or as to merchantable quality, fitness for any purpose or safety of the products, or operating performance where such performance is conditional on empirical factors or on the whole installation or on the skills of an operator), whether made known or not, are expressly negated and excluded.
6.6 Subject to clause
6.7 below, Mibet shall not be liable for any losses, costs, expenses, liabilities and damages of whatsoever (including loss of profits, liabilities of the Purchaser to its customers or third persons, and any other consequential damages), whether direct or indirect and whether or not resulting from or contributed to by the default or negligence of Mibet, its agents, employees and sub-contractors, which might be claimed as the result of the use or failure of the Product use or failure of the Product sold or the Services supplied.
7.1 The Purchaser indemnifies and holds Mibet harmless from and against all liabilities, losses, damages, costs or expenses incurred or suffered by Mibet from and against all actions, proceedings, claims or demands made against Mibet, arising in either case as a result of:
(a) the Purchaser’s failure to comply with any laws, rules, standards or regulations applicable in relation to the Products or the use of the Products;
(b) subject to clause 13 below, any use of the Products contrary to any instructions or warnings given by Mibet;
(c) any other negligence or any breach by the Purchaser of clauses 8.2 or 9.1 below;
(d) any compliance or adherence by Mibet with any instructions by the Purchaser in relation to the Products; or
(e) any Product failure resulting from incorporation of, or failure of, parts or components not authorised by Mibet.
8. Intellectual Property Rights
8.1 Mibet is the owner of certain patents and registered designs as well as other intellectual property rights, including copyright, and other technical, business or similar information (including all designs, documents and other materials relating to the Products) (Intellectual Property Rights).
8.2 The Purchaser must not directly or indirectly infringe, or permit any third party to infringe, any of Mibet’s Intellectual Property Rights subsisting or created in connection with any Order.
9.1 The Purchaser agrees not to copy or disclose to any third party any drawings, price details, any other technical papers or any documents supplied by Mibet under these Terms without Mibet’s express prior approval.
10. Drawings and Specifications
10.1 All drawings and specifications, descriptions and other documents attached to any quotation are for tendering purposes only, and will not form the basis nor be part of any agreement between Mibet and the Purchaser unless expressly set out in an Order or unless otherwise agreed by the parties in writing. Mibet retains ownership of the copyright and all other intellectual and industrial property rights in all drawings, specifications, manuals and other documentation provided to the Purchaser, and all such documents must be returned to Mibet on demand.
11. Reservation of Title
11.1 All Products will remain the sole and absolute property of Mibet as legal and equitable owner, and the property in and title to the Products will not pass from Mibet to the Purchaser until the Purchaser has paid Mibet in full for the Products.
11.2 Until title in the Products has passed under clause 11.1, the Purchaser:
(a) holds the Products as bailee in the capacity of a fiduciary of Mibet;
(b) must keep the Products supplied to it by Mibet in its possession and must take proper care of them and store them and mark them in a manner that identifies the Products supplied and clearly shows that they belong to Mibet;
(c) must sufficiently insure the Products at the Purchaser’s own expense against fire and water damage and theft;
(d) must carry out any necessary maintenance and inspection work at its own expense; and
(e) must immediately inform Mibet if any third party seizes or attempts to seize any Product or any part thereof. 11.3 If the Products (or any objects to which the Products are attached or of which the Products form a constituent part) are on-sold by the Purchaser, then the Purchaser does so as agent for Mibet and the Purchaser unconditionally agrees to keep the proceeds of such on-sale in a separate bank account on trust for Mibet to be paid to Mibet on demand and, if applicable, to assign to Mibet any debt owed to the Purchaser in relation to the on-sale (which for the avoidance of doubt will not constitute any release of the Purchaser from liability to pay for the Products). Notwithstanding this clause
11.3, the Purchaser must not represent to any third party that it is acting as agent for Mibet, and Mibet will not be bound by any legal obligation to any third party agreed to by the Purchaser unless it expressly agrees in writing to be so bound.
11.4 If any payment due by the Purchaser to Mibet is overdue, in whole or in part, or the Purchaser is otherwise in default under any contract with Mibet, or the Purchaser becomes bankrupt or commits any act of bankruptcy or compounds with its creditors or has judgment entered against it in any court or, being a company, has a provisional liquidator, receiver or manager appointed or otherwise suffers some form of insolvency administration, all sums then owing by the Purchaser to Mibet in relation to the Products will become immediately due and payable and Mibet may (without prejudice to any of its other rights) recover and resell the Products and, for that purpose, enter upon the Purchaser’s premises by its servants or agents, and the Purchaser irrevocably authorises Mibet or its nominated representative to effect such entry, including the use of such reasonable force as is necessary to effect such entry, and to use the name of the Purchaser and to act on behalf of the Purchaser, if necessary, to recover possession of the Products and any other goods supplied by Mibet and to detach the Products any such other goods from any other object to which they have been attached or of which they form a constituent part. The Purchaser must provide Mibet all the information and documents necessary, and otherwise assist Mibet to recover possession of the Products in these circumstances.
11.5 If Mibet recovers the Products or any other goods, it may resell the Products and any other goods recovered. If the proceeds of sale are more than the amount due to Mibet from the Purchaser. Mibet may use the balance to pay the costs of taking possession and selling the Products or any other goods. If any proceeds of resale are less than the amount due to Mibet, Mibet may recover the shortfall from the Purchaser.
12. Construction Modifications
12.1 Mibet reserves the right to modify the manufacturing specifications of Products at any time, however, Mibet is not obliged to carry out such modifications to products already delivered.
13.1 If any of these Terms is held by any competent authority to be unlawful, invalid or unenforceable in whole or in part then the validity of the other provisions of these Terms and the remainder of the provisions in question will not be affected and will continue to be valid and enforceable to the fullest extent permitted by law.
13.2 The Purchaser must not transfer, assign or sub-contract its obligations under these Terms without Mibet’s prior written consent.
13.3 Failure or neglect by Mibet to enforce any of these Terms will not be a waiver of Mibet’s rights and will not affect the validity of the whole or any part of these Terms or prejudice Mibet’s right to take subsequent action.
13.4 Any notice required under these Terms must be in writing addressed to the other party at its registered office or principal place of business or any other address notified by the receiving party to the party giving notice.
13.5 Mibet reserves the right to make any changes to these Terms at any time in its sole discretion by notice to the Purchaser.
13.6 The law of China governs these Terms and the Vienna Convention of Sales of Goods does not apply to these Terms. The Purchaser agrees to submit the non-exclusive jurisdiction of the courts of China.