General Terms and Conditions
SECT. 1 – GENERAL PROVISIONS
1.1. Parties. These general conditions of sale (hereinafter, the “GCS”) apply to any contract entered into between Guangzhou Komaspec Mechanical and Electrical Products Manufacturing Co. Ltd., with registered office at Clifford (Huashan) Industrial City, No. 288, A1 Ju Huashi Boulevard, Huashan Town, Huadu District, Guangzhou, China 510880 (hereinafter, “Komacut”) and any person or entity that purchases products manufactured and supplied by Komacut (hereinafter, the said entity will be referred to as the “Customer”, while the purchased products will be referred to as the “Products”).
1.2. Acceptance of the GCS. The Customer accepts that any provision herein prevails over any Customer’s general or specific purchasing conditions.Therefore, the Products’ purchase shall be governed both by these GCS and by any further terms in the related quote or order form (hereinafter, the “Quote”).
SECT. 2 – DELIVERY
2.1. Delivery. The terms of delivery of the Products are specified in the Quote, provided that in any case Komacut will inform the Customer weekly regarding the delivery status. All risks pass to Customer on the agreed delivery date according to the applicable Incoterm® (2020 version by the International Chamber of Commerce), and Komacut shall not be responsible for any damages or expenses incurred by Customer and due to: (i) late shipment by fault of the same Customer (provided however that any delay due to the latter may result in incurring additional storage costs invoiced by Komacut to the Customer); (ii) any event of force majeure (such as, without limitation, war, insurrection, act of terrorism, sabotage or piracy, currency and trade restriction, embargo, sanction, epidemic, pandemic, natural disaster or extreme natural event, etc.).
2.2. Packaging. Komacut shall ship the Products using proper packaging, with identification and fumigated pallets.
2.3. Insured delivery. For transactions concluded on CIF (Cost, Insurance and Freight, Incoterms® 2020 version by the International Chamber of Commerce) basis, deliveries shall be insured with an “All Risks - Institute Cargo Clauses (A)” coverage, for 110% of the Products’ purchasing price. Komacut shall invoice separately the Customer for any costs and expenses due to the preceding insurance coverage.
SECT. 3 – PURCHASING PRICE AND PAYMENT TERMS
3.1. Purchasing price. Unless otherwise agreed upon in writing, the purchasing price of the Products is specified in the Quote and it does not include any cost or expense not therein specified.
3.2. Payment terms. Payment terms of the purchased Products are specified in the Quote. Any delay in the agreed payment terms will be considered a breach and, therefore, Komacut will be entitled to charge the Customer for: (i) interests on the outstanding amounts, as provided by the applicable law; (ii) any credit recovery costs. Furthermore, Komacut reserves the right to suspend its warranty obligations herein as long as the Customer is in breach with payment terms, and without the latter can raise any claim towards Komacut in such respect.
SECT. 4 – WARRANTY
4.1. Warranty period and Defects. Komacut warrants that – as of the Products’ delivery until the lapse of 3 (three) months therefrom (hereinafter, the “Warranty Period”) – all Products supplied to Customer shall be: (i) compliant with the drawings provided to Komacut by the Customer to such purpose; (ii) manufactured with the material approved by Customer; (iii) tested as per the testing method agreed upon by the Customer and Komacut; (iv) free from defects, faulty materials, manufacturing defects or other similar faults which cause the Products’ productivity deficiency during their proper and normal use (hereinafter any non-compliance with the preceding will be collectively and indistinctly referred to as “Defects”).
4.2. Quantity discrepancies. In case of Products’ quantity discrepancies: (i) only those discrepancies exceeding the tolerances specified in the Quote shall be deemed as “Defects” for the purpose of these GCS; (ii) the related Warranty Period shall be thirty (30) calendar days from the affected Products’ delivery.
4.3. Defects complaint. In case any Defects appear during the Warranty Period, Customer shall provide Komacut with a written complaint via e-mail, attaching explanatory pictures/videos and the affected Products. The said complaint shall be sent to Komacut – subject to forfeiture – within 60 (sixty) calendar days from the shipping date. The Customer is not entitled to return any Product without the Komacut’s prior written approval.
4.4. Remedies. Within 30 (thirty) calendar days from the receipt of the Customer’s complaint as per Sect. 4.3), if the Customer’s complaint is well founded, Komacut may choose – at its sole discretion – either to: (i) supply free of charge the spare/replacing part(s) of those with Defects, provided that any other related costs (such as, installation, commissioning, etc.) are at sole Customer’s charge; (ii) issue a credit note for a price reduction of the affected Products. The said remedies are the Komacut’s sole remedies and liabilities to Customer with respect to any Defects, and are provided in lieu of any and all warranties, terms, conditions, undertakings, representations and obligations implied by statute, common law, trade usage, course of dealing or otherwise, all of which are hereby excluded to the fullest extent permitted by any applicable international, federal, national, state, provincial or local law, statute, ordinance, rule, regulation, code, judgment or other requirement (hereinafter, collectively, the “Law”).
4.5. Disclaimer of warranty. Under no circumstances the Komacut’s warranty shall be applicable to: (i) Defects arose after the Warranty Period set out in Sects. 4.1) or 4.2) and/or not timely notified under the terms provided in Sect. 4.3); (ii) Defects not existing at the date of Products’ transfer of risk to the Customer; (iii) Products’ natural wear and tear or exposure to atmospheric agents; (iv) Products neglected, modified, altered, misused, damaged, or badly transported, handled, manipulated, assembled or repaired; (v) Defects due to the deficiencies in any Customer’s instructions, drawing and specifications.
4.6. Limitation of liability. To the fullest and maximum extent permitted by the applicable Law and except for claims arising from Komacut’s wilful misconduct or gross negligence, in no event any Komacut’s liability resulting from any act, omission or negligence – either in connection with the performance of these GCS or not covered herein – shall in the aggregate exceed the Products’ purchasing price paid by the Customer for the Products which originated the Komacut’s liability.
4.7. Disclaimer of liability. In no event Komacut shall be liable for any indirect, incidental, special, exemplary, punitive, or consequential damages (including, but not limited to, procurement of substitute goods or services, computer failure or malfunction, loss of data or profits, business interruption, indirect loss, loss of use, loss of revenue, loss of goodwill, etc.) however caused and on any theory of liability, whether in contract, strict liability, or tort (including negligence or otherwise) or by reason of breach of statutory duty or otherwise, in respect of any Defects, any use of the Products, or any advice rendered in connection therewith, even if the same Komacut is aware or have been advised of the possibility of such damage. The foregoing disclaimers are an essential part of these GCS.
SECT. 5 – CUSTOMER’S LIABILITIES
5.1. Customer’s warranties. As Products are manufactured by Komacut under Customer’s instructions, drawings and specifications, the Customer warrants and represents that: (i) the Products are strictly compliant with any and all the Law applicable to the same Products; (ii) the Products do not infringe any third party’s intellectual property or other similar proprietary rights in any jurisdiction (such as, without limitation, trademarks, patents, design registrations, trade secrets, etc.); (iii) the Customer shall procure, at its own charge, any and all the licenses, permits, authorizations or certifications requested by the applicable Law in order to allow Komacut to manufacture the Products.
5.2. Indemnification. The Customer will defend, indemnify, and hold harmless Komacut (and its officers, directors, shareholders, successors, and assigns) from and against all losses, liabilities, and costs (including, without limitation, reasonable attorneys’ fees, expenses, penalties, judgments, claims and demands of every kind and character) that the same Komacut (and its officers, directors, shareholders, successors, and assigns) may incur, suffer, or be required to pay arising out of, or based upon, the breach by the Customer of its obligations, warranties and representations under these GCS.
SECT. 6 – FINAL PROVISIONS
6.1. Governing law and exclusive jurisdiction. These GCS are governed by the substantive and procedural Laws of the People’s Republic of China, without application of the “United Nations Convention on Contracts for the International Sale of Goods”. Any dispute arising out of, or relating to, these GCS shall be settled amicably by negotiation. In case no settlement can be reached, the case under dispute shall then be submitted to the China Guangzhou Arbitration Commission and settled by 1 (one) arbitrator appointed in accordance with the said Commission’s rules in effect at the time of applying for arbitration. The arbitral award will be final and binding upon both parties, who consents to such exclusive jurisdiction and venue and waives any objection thereto.
6.2. Prevailing language. In case these GCS are made available in other languages, the English version thereof shall prevail.
6.3. Modifications. No modification of (or amendment to) these GCS, nor any waiver of any rights thereunder, will be effective unless in a writing signed by both parties, detailing the modified, replaced, waived or integrated part(s).
6.4. Counterparts. These GCS may be executed in two or more counterparts and by different parties on separate counterparts. Each set of counterparts showing execution by all parties shall be deemed an original and shall constitute one and the same instrument; in particular, signatures delivered via electronic delivery (e.g., in PDF format) shall be deemed original signatures.
6.5. Severability. Should any part of these GCS be declared illegal or unenforceable, the parties will cooperate in all ways open to them to obtain substantially the same result or as much thereof as may be possible, including taking appropriate steps to amend, modify or alter this agreement in full compliance with the Law.