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"SELLER" means XGL Optoelectronics Co.,Ltd
"BUYER" means the person, firm or other entity which contracts with the SELLER for the purchase of Goods.
"The Goods" means products of any kind manufactured or sold by the SELLER
"Contract" means the contract for the purchase and sale of the Goods
1. QUALITY STANDARDS.
The standards of product specification and quality shall perform as per SELLER's samples confirmed by both parties in final and all the requirements proposed by the BUYER shall be confirmed by the SELLER in advance.
BUYER may make a change in ordered quantities by prior 30 days with written notice, subject to confirmation by the SELLER; otherwise BUYER shall bear the consequent loss and/or additional cost of the SELLER occurredduring this period. BUYER shall not cancel any order accepted by SELLER. Upon the breach of this clause, BUYER shall compensate all the losses, expenses incurred to SELLER, including but not limited to materials, pending Products and the Products before the delivery.
BUYER warrants any trademark, trade name, mark and drawing authorized will not infringe any right of thirdparty; and will indemnify Supplier and hold itharmless against any liability, expenses and losses incurred by the breach of this warranty.
All items sold hereunder shall be packed or crated and shipped in accordance with SELLER’s best judgment. Any special packing, crating, or shipping instructions of BUYER shall be noted on BUYER’s original order and acknowledged by SELLER.
Delivery to a common carrier shall constitute delivery to BUYER and all risk of loss and damage in transit shall be born by BUYER. If because of BUYER’s inability to take delivery, the Products are not shipped,SELLER may have them stored for BUYER at BUYER’s expense, risk and account, and for all other purposes they shall be considered “shipped”.
BUYER shall inspect the Products before shipment or upon arrival and shall give written notice to SELLER within fifteen (15) days of arrival of any claim for shortage or nonconformance with the terms hereof. If BUYER fails to give such notice, BUYER waives all claims for such shortage or nonconformance andBUYER shall be bound to accept and pay for all items in accordance with the terms hereof.
SELLER warrants that the Products will conform to the specifications set forth in SELLER’s Product literature or samples. SELLER shall have no obligation under this warranty with respect to the Products that have been incorrectly installed, improperly maintained, or modified or damaged through misuse, abuse, accident, neglect or mishandling by BUYER or end-user. In excess of the rate of 0.1 % within 1 year(s) upon the delivery of Products (rate=number of returned Product(s) or spare parts) / (number of sold Product(s) or spare parts), SELLER’s sole liability and BUYER’s sole remedy shall be, at SELLER’s option, for SELLER to either provide free spare parts or replace any Products or refund the purchase price paid by BUYER for such defective Products provided that BUYER shall furnish SELLER with a report with photos to clarify the amount and reasons of return, which is determined by SELLER to be defective. BUYER shall be liable for after sale services at its own cost for returns below the above rate.THE ABOVE WARRANTY IS IN LIEU OF ANY OTHER WARRANTY, AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED, WHETHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTY ARISING FROM A COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE.
8. RETENTION OF TITLE.
Title of the Products will be transferred to BUYER from SELLER while only the outstanding balance payment is settled by BUYER.
9. FORCE MAJEURE.
Neither Party’s delay in the fulfillment of or failure to fulfill any of their obligations hereunder as a result of any event, circumstance, or cause beyond their control, such as but not limited to Acts of God, war,threat of war, terrorism, hostilities, revolution, riots, epidemics, fire, flood, order or injunction from the government body under the condition that such external events are unforeseeable, unavoidable, irresistible and shall not be regarded as the breach of these general terms and conditions.
BUYER shall indemnify, protect and save harmless SELLER from and against any claims, actions, suits, liabilities (including liability for the breach of these general terms and conditions incurred by the delayor failure of Products delivery) ,costs and damages (including but not limited to attorney fees and costs of investigations, defense, or settlement) arising out of or from: alleged infringement of any third party's trademarks, trade names, patents, design, service mark, drawings, copyright or any other rights and know-how including discoveries, inventions, technical information, procedures, manufacturing or otherprocesses and software provided by BUYER; any customs or authorities’ proceedings including sealing up, distrainment, expropriation of the Products by the authority or any third party’s applications for the alleged infringement of trademarks, trade names, patents, design, service mark, drawings, copyright or any other rights and know-how of the Products hereto.
11. LIMITATION OF LIABILITIES.IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOSS OF USE, TIME OR DATA, INCONVENIENCE, COMMERCIAL LOSS, LOST PROFITS OR SAVINGS) WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY TO THE FULL EXTENT SUCH MAY BE DISCLAIMED BY LAW EVEN IF EITHER PARTY HAS BEEN APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
12. DISPUTE RESOLUTION.
These general terms and conditions shall be governed and interpreted in accordance with Laws of P. R. China. In case no settlement can be reached through friendly consultation, then such dispute shall be submitted to China International Economic and Trade Arbitration Commission South China Sub-Commission for arbitration. The arbitration shall take place of Shangyu,China. The arbitral award is final and binding upon both parties and may be entered in any Court of competent jurisdiction for enforcement.