Please be sure to read and understand the details listed in this agreement. These terms and conditions (also referred to as this “Agreement”) apply to all sales of products and services by Xi’An MPM Import And Export Trading Co.Ltd.(“MPM”) to its customers. These terms are designed to protect you, and ourselves.
NOTICE: Sale of any Products or Services is expressly conditioned on Customer’s assent to these Terms and Conditions. Any acceptance of MPM’s offer is expressly limited to acceptance of these Terms and Conditions and MPM expressly objects to any additional or different terms proposed by Customer. No Customer form shall modify these Terms and Conditions, nor shall any course of performance, course of dealing, or usage of trade operate as a modification or waiver of these Terms and Conditions. Any order to purchase products or receive services shall constitute Customer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation, MPM’s quotation shall expire fifteen(15) days from its date and may be modified or withdrawn by MPM before receipt of Customer’s conforming acceptance.
1. Definitions.
“Contract” means either the contract agreement signed by both parties, or the purchase order signed by Customer and accepted by MPM in writing, for the sale of Products or Services, together with these Terms and Conditions, MPM’s final quotation, the agreed scope(s) of work, and MPM’s order acknowledgement. In the event of any conflict, the Terms and Conditions shall take precedence over other documents included in the Contract.
“Contract Price” means the agreed price stated in the Contract for the sale of Products and Services, including adjustments (if any) in accordance with the Contract.
“Products” means the equipment, parts, materials, supplies, and other goods MPM has agreed to supply to Customer under the Contract.
“MPM” means the entity providing Products or performing Services under the Contract.
“Services”means the services MPM has agreed to perform for Customer under the Contract.
“Terms and Conditions” means these “General Terms and Conditions for the Sale of Products or Services”, together with any modifications or additional provisions specifically stated in MPM’s final quotation or specifically agreed upon by MPM in writing.
2. Delivery and Shipping Terms.
(a) For shipment method, it depends on which trade terms and customers’ choice.
For export shipments, MPM shall deliver Products to Customer EXW MPM’s facility or warehouse (Incoterms 2010). Customer shall pay all delivery costs and charges or pay MPM’s standard shipping charges plus handling. Partial deliveries are permitted. MPM may deliver Products in advance of the delivery schedule. Delivery times are approximate and are dependent upon prompt receipt by MPM of all information necessary to proceed with the work without interruption. If Products delivered do not correspond in quantity, type or price to those itemized in the shipping invoice or documentation, Customer shall so notify MPM within ten (10) days after receipt.
(b) When Customer arranges the export shipment, MPM will provide Customer some needed files
(c) Risk of loss shall pass to Customer upon delivery pursuant to Section 2(a).
3. Cancellation of Purchase Order.
Customer may cancel its order only with the prior written consent of MPM, which MPM may withhold in its sole discretion. All cancelations will be subject to payment to MPM of reasonable and proper cancelation charges. Customer may return Products only at its sole cost and only with the prior written authorization of MPM, subject to a restocking fee as agreed by the parties. No returns of special, custom, or made-to-order Products will be permitted. Can’t be canceled if the order started.
4. Title and Risk of Loss.
If FOB trade term, title and risk of loss passes to Customer pursuant to the terms of Article 2.
As collateral security for the full payment of the purchase price of the Products, Customer hereby grants to MPM a lien on and security interest in and to all of the right, title and interest of Customer in, to and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing.
5. Contract Price.
(a) Customer shall purchase the Products and, if applicable, shall pay for the services provided, from MPM at the Contract Price. Prices are subject to change without prior notice and MPM shall thereafter notify Customer of any price increases. In the event of a price increase, Customer may cancel any undelivered portion of any order by written notice to MPM, provided such notice is received by MPM not more than ten (10) days after Customer’s receipt of MPM’s notice of price increase. Upon cancellation, Customer shall pay MPM: (1) the Contract Price for all Products which have been completed or are in the process of completion, (2) components or goods secured by MPM from outside sources for the performance of the Contract, and (3) special tooling and equipment procured for the performance of the Contract. All prices shall be confidential and Customer shall not disclose such prices to any unrelated party.
(b) All Contract Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs and taxes; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, MPM’s income, revenues, gross receipts, personnel or real or personal property or other assets.
6. Payment Terms.
Terms of payment are 30% as as deposit, 70% before shipment. Customer shall arrangement the payment on time.
7. Disclaimer of Warranty.
(a) MPM warrants that all products manufactured by MPM shall, at the time of sale, comply with applicable MPM specifications. All products not manufactured by MPM are sold only with the warranties provided by the manufacturer of products, if any. MPM MAKES NO OTHER WARRANTY WITH RESPECT TO THE PRODUCTS, AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. MPM personnel are not authorized to alter this disclaimer of warranty.
(b) All Products are sold for commercial use only and are not intended for use by consumers. Any inspection services provided by MPM at Customer’s request shall be provided as a customer service only and shall not be deemed to act as a warranty or approval of Customer’s installation, use, or maintenance of the Products, nor shall MPM be liable for failure to detect improper use, installation or maintenance of the Products by Customer.
8. Limitation of Liability.
(a) IN NO EVENT SHALL MPM BE LIABLE TO Customer OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT MPM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL MPM’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO MPM FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO MPM FOR SERVICES PERFORMED HEREUNDER.
(c) This limitation of liability is a material basis for the parties’ bargain and reflects the bargained-for allocation of risks between MPM and Customer, without which MPM would not have agreed to provide the Products or services at the price charged.
9. Indemnification.
Each of Customer and MPM (as an “Indemnifying Party”) shall indemnify the other party (as an “Indemnified Party”) from and against claims brought by a third party, on account of personal injury or damage to the third party’s tangible property, to the extent caused by the negligence of the Indemnifying Party in connection with this Contract. In the event the injury or damage is caused by joint or concurrent negligence of Customer and MPM, the loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of MPM’s indemnity obligation, no part of the Products is considered third party property.
If it is because of the unqualified products, we will help you to return and maintain them, or produce new ones.
10. Adequate Assurance.
MPM reserves the right by written notice to cancel any order or require full or partial payment or adequate assurance of performance from Customer without liability to MPM in the event of: (i) Customer’s insolvency, (ii) Customer’s filing of a voluntary petition in bankruptcy, (iii) the appointment of a receiver or trustee for Customer or (iv) the execution by Customer of an assignment for the benefit of creditors. MPM reserves its right to suspend its performance until payment or adequate assurance of performance is received and also reserves its right to cancel Customer’s credit at any time for any reason.
11. Intellectual Property Rights.
(a) MPM is unable to guarantee that no patent rights, copyrights, trademarks, (user) rights, trade models or any other rights of third-parties are infringed by goods received from suppliers and/or Customers via MPM or third-parties via them, including but not limited to goods, models and drawings for the manufacture and/or delivery of certain Products.
(b) In the absence of written agreement to the contrary, MPM holds the copyrights and all rights of (industrial) property to the offers it has made and the designs, images, drawings (test) models, software, templates and other goods that it has issued. The MPM shall also keep confidential the drawings and other product information provided by the MPM
12. Compliance with Laws.
- MPM shall take reasonable steps to ensure the Products are in conformity with applicable laws and regulations; however, Customer acknowledges that Products may be used in various jurisdictions for various applications subject to disparate regulations and therefore that MPM cannot warrant compliance with all applicable laws and regulations. MPM disclaims any representation or warranty that the Products conform to federal, state or local laws, regulations, ordinances, codes or standards, except as expressly set forth by MPM in writing. Customer shall comply with all applicable laws, regulations and ordinances. MPM may terminate this Contract if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
(b) The products, items, technology or software covered by a quotation/order may be subject to various laws including U.S. and foreign export controls. Customer shall not trans-ship, re-export, divert or direct Products other than in and to the ultimate country of destination declared by Customer and specified as the country of ultimate destination on MPM’s invoice. Customer agrees to indemnify and hold MPM harmless from any and all costs, liabilities, penalties, sanctions and fines related to non-compliance with applicable export laws and regulations.
13. Confidential Information.
All non-public, confidential or proprietary information of MPM, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by MPM to Customer, 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 this Contract is confidential, solely for the use of performing this Contract and may not be disclosed or copied unless authorized in advance by MPM in writing. Upon MPM’s request, Customer shall promptly return all documents and other materials received from MPM. MPM shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third party. MPM should also comply the rule.
14. Force Majeure.
MPM shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached this Contract, for any failure or delay in fulfilling or performing any term of this Contract when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of MPM including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
15. Notices.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing.
16. Survival.
Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Indemnification, Submission to Jurisdiction/Arbitration and Survival.