General Terms and Conditions of Sale and Delivery of Nanchang Kindly(KDL) Medical Technology Co.,Ltd
1. Quotation and order confirmation
1.1 These Terms and Conditions of Sale and Delivery (hereinafter “General Terms”) apply to all offers and transactions from KDL. If the General Terms in combination with a framework agreement or an order confirmation apply, the stipulations in the framework agreement or order confirmation shall prevail over the General Terms.
1.2 Acceptance of the order confirmation by the purchaser shall be assumed if, within seven working days following receipt of the order confirmation, the purchaser has not registered a written objection. In present conditions, “written” shall also mean: by facsimile transmission, by e-mail or by other electronic means.
1.3 The product description included by the purchaser in his offer and/or his orders shall only be binding if that product description has clearly been specified by KDL in a framework agreement or in an order confirmation.
1.4 The quotations notified by KDL shall be valid for 1 month.
1.5 These General Terms have also been agreed upon for the benefit of all directors and shareholders of KDL, and for the benefit of all persons who work for KDL and third parties engaged by KDL . These parties have the right to invoke these General Terms as if they were KDL .
1.6 Deviations from these General Terms shall only be valid if approved by KDL in writing, at detail level.
1.7 Present General Terms shall take precedence over any terms and conditions of purchase of a purchaser.
1.8 KDL shall have the right to adapt these General Terms at any time without prior notification to the purchaser.
1.9 In these General Terms “Product” shall mean all goods from KDL.
2. Brochures, specifications, samples
2.1 Product descriptions on the website, in catalogues, brochures, price lists, etc. apply only as approximate descriptions of the Products and are entirely non-binding.
2.2 The quality and product description of product samples are indicative for the appearance of the Product. It is permitted that deviations may occur in the finished products.
2.3 The specifications as laid down in the framework agreement or order confirmation may vary from time to time, exclusively at the individual judgement of KDL. As part of product development by KDL, the specifications may undergo changes. Any changes to the specifications shall take precedence over the specifications as stated in the framework agreement or the order confirmation.
3. Use of the Products delivered / to be delivered
3.1 The purchaser and not KDL must determine whether the Products delivered and/or to be delivered is suitable for the use intended by (the customers of) the purchaser.
4. Prices
4.1 The prices specified in offers and order confirmations issued by KDL are excluding transport costs, packaging costs and excluding VAT. Deliveries shall be ex works unless otherwise agreed, in writing.
4.2 All prices specified by KDL are based on the purchase prices applicable for KDL at the time the offers or confirmations were issued, the exchange rate for the relevant foreign currency as stated in its offers and order confirmations, import duties and equivalent charges, insurance tariffs, carriage costs, taxes and margin schemes, etc. In the event of changes to one or more of the cost price determining factors referred to above, or other factors, KDL shall be entitled to pass on those changes to the purchaser in the relevant sales invoice.
4.3 The (potential) purchaser shall return the samples or models to KDL, at the first request of KDL.
4.4 The specified prices are based on the quantities indicated by the purchaser. If the actual quantity deviates from the quantity on which the prices were based, KDL reserves the right to adjust the prices.
5. Payment
5.1 Payment of the amounts payable by the purchaser to KDL must be made within 2 weeks following the invoice date, without settlement or suspension and without deduction of costs, to the bank account indicated by KDL. Payment in any other way is only valid following written declaration of approval from KDL.
5.2 All bank costs, arisen due to payment of the purchase price in the country of the purchaser or from the opening and confirmation of letters of credit shall be for the account of the purchaser.
5.3 In the event of late payment (payment later than specified in article 5.1) of the amounts payable to KDL, the purchaser shall be immediately in default, without any notice of default being required. Without prejudice to the authority in that case to declare dissolved all agreements/orders entered into with the purchaser in question, and to claim compensation against the purchaser for all damages suffered by KDL as a consequence thereof, KDL shall be entitled to charge interest on the remaining amount not yet paid, in the amount of 1.5% per month or part of a month. Following each of the first two reminders, reminder costs in the amount of €50 excluding VAT may also be charged, and €100 excluding VAT for the third and all subsequent reminders. The purchaser shall moreover be required to reimburse all extrajudical costs to KDL, with a minimum of 10 percent of the principal amount.
5.4 Payments made by the purchaser shall first reduce the costs payable, subsequently the interest payable and finally the oldest outstanding invoices, irrespective of instructions from the purchaser, stating otherwise.
5.5 KDL at all times reserves the right to demand security for timely payment in respect of deliveries already made and still to be made, which security at the discretion of KDL may take the form of prepayment, bank guarantee, mortgage, pledge or contract of suretyship. If insufficient surety is stood in response to KDL request, KDL shall be authorised to suspend further implementation of agreements entered into with KDL, without being required to pay compensation for any disadvantage resulting therefrom. KDL shall also be authorised, in cases relevant in its (KDL) judgement to deliver cash on delivery, in as much as necessary contrary to the agreements entered into.
5.6 In the event of non, late or incorrect compliance by the purchaser with any obligation which may arise for the purchaser from any agreements entered into with KDL, and in the event an application has been made for the purchaser’s bankruptcy or suspension of payments, attachment is levied on purchaser’s goods or claims, allowance to participate in a debt rescheduling scheme for natural persons or placing under guardianship of the purchaser, change of control over the purchaser or cessation or winding up of his business, KDL shall at all times be authorised – without any obligation to pay compensation, without prejudice to other rights accruing to KDL and without any reminder or notice of default being required – to declare the agreement in question dissolved, without prejudice to its entitlements to compensation, while at that time, KDL shall further be entitled, subject to the same conditions, to dissolve any other current orders with the purchaser in question, in as much as not yet (fully) implemented. Each dissolution shall at all times result in the immediate demandability of all amounts payable to KDL.
6. Property rights
6.1 KDL will retain ownership of any Products supplied as long as the purchaser has not paid all amounts payable to KDL in respect of each delivery of Products by KDL to purchaser . (which shall not only be taken to mean the purchase price including the surcharges, increases and payments payable in respect of present terms and conditions, but also any interest and costs and damages due to attributable breaches). The risk for the Products to be delivered shall be transferred if and as soon as these Products have left the warehouse and/or the factory.
6.2 The products from KDL are trademark protected and the purchaser is not authorised to register or allocate rights in whatever form if and in as much as such action infringes the intellectual property rights of KDL , if those rights are violated in any way, or if the enforcement of those rights is frustrated or impeded.
6.3 KDL retains the intellectual property rights to each product, including in cases in which products are developed in collaboration with the purchaser, unless otherwise agreed in writing.
7. Delivery
7.1 Unless otherwise specified in the framework agreement or the order confirmation, delivery will be made ex works.
7.2 Delivery times will be agreed after the placement of an order. Unless otherwise agreed in writing, an agreed delivery time shall not be a deadline but shall only be an approximation, and shall otherwise be entirely non-binding.
8. Transport packaging
8.1 The delivery shall be packaged in accordance with the general packaging methods of KDL. If a purchaser requires other packaging, KDL must be duly notified in writing at the moment of placement of the order. The additional costs for the nonstandard packaging agreement shall be for the account of the purchaser.
8.2 The packaging from KDL shall comply with the legal requirements as applicable in the Netherlands. Prior to acceptance of the order by the purchaser, the purchaser must inform KDL in writing of any additional and/or other requirements.
9. Products for resale
9.1 The purchaser shall not export, re-export or otherwise transfer, directly or indirectly, any Products supplied by KDL to the United States or any other non-EU country without prior approval from KDL.
9.2 Offering the Products for resale outside the EU without prior approval will automatically result in a suspension of the purchaser customer account and a hold on any future shipments.
9.3 The purchaser who contrary to article 9.1 exports, re-exports of otherwise transfers any goods to the United States or any other non-EU country without prior approval from KDL shall become liable to KDL for an immediately payable penalty of € 10,000.00 for each breach and of € 2,500.00 for every day of any continued breach, without prejudice to KDL’s right to claim damages in full.
9.4 Furthermore the purchaser who contrary to article 9.1 exports, re-exports of otherwise transfers any Products to the United States or any other non-EU country without prior approval from KDL will be considered liable for any damages that may occur due to the forbidden distribution of any Products. The purchaser will indemnify KDL for any damages that occur and for any claims issued against KDL with respect to such damages.
10. Shortcomings
10.1 Colour deviations from the samples which remain within the margins and which in trade are considered as reasonable and customary, shall not be considered shortcomings.
10.2 A deviation in quantity of 4 percent or less per delivery shall not be an error/fault and for that reason shall not grant any right to a pro rata adjustment of the invoice amount.
11. Liability of KDL
11.1 If more than 4% of a delivery contains Products with shortcomings, at its own discretion, KDL may decide to reimburse the invoice amount or to redeliver the Products. Below this limit, KDL shall not be liable.
11.2 KDL can only be held liable after sending a notice of default in which KDL is set a reasonable term to fulfil its contractual obligations and KDL has failed to remedy its default within the reasonable term set in the notice of default.
11.3 Products recognised by KDL as faulty may be returned to KDL according to the instructions and for the account of KDL.
11.4 If incidents occur which could not be foreseen by KDL or incidents arise over which KDL has no influence, which impede KDL in implementing the agreed delivery, KDL shall not be liable, due to force majeure (Overmacht, article 6:75 of the Dutch Civil Code). Force majeure is understood to mean, inter alia, the circumstance of weather conditions, earthquakes, fire, power failure, loss, theft or destruction of tools or materials, late delivery and/or shortcomings by suppliers of KDL, road blocks, strikes or work stoppages and import or trade restrictions.
11.5 Unless otherwise agreed in writing, an agreed delivery time shall not be a deadline but shall only be an approximation, and shall otherwise be entirely non-binding. KDL is however never liable for delays which KDL could not have foreseen or could not have guaranteed
11.6 Under no circumstances KDL shall be liable for loss of production, loss of production time, loss of profit or other indirect losses.
11.7 If KDL is liable for the Products supplied by KDL with shortcomings, the purchaser may demand compensation for any demonstrable direct losses suffered by the purchaser.
11.8 If KDL is liable for the delay, the purchaser may demand compensation for any demonstrable direct losses suffered by the purchaser.
11.9 The compensation mentioned in article 11.7 and 11.8 shall under no circumstances exceed the total price of the order for the Products in question with shortcomings or for the non-delivered Products in question, however in all cases with a maximum of €10,000, except in the case of deliberate action or gross negligence on the part of the directors of KDL.
11.7 Any liability for faulty Products and liability for replacement deliveries shall expire at the latest 6 months following delivery.
12. Obligation upon the purchaser to inspect the delivered Products
12.1 The purchaser is required to inspect the delivery immediately following receipt or at the latest following arrival of the delivered Products at the business address of the purchaser.
12.2 Complaints relating to errors or shortcomings must have been submitted to KDL in writing, within 1 week following the delivery.
13. Product liability
13.1 The purchaser guarantees KDL that the illustrations and/or additional documentation for the Products contain all warnings and preventive measures required in the countries to which the goods will be delivered on, by the purchaser. The purchaser shall indemnify KDL against claims from third parties against KDL directly or indirectly relating to and/or arising from insufficient information provision in respect of the correct treatment and/or use of the Products.
14. Confidentiality
14.1 KDL and the purchaser shall undertake to pass on no information to third parties obtained in connection with the offers and/or orders, if containing confidential information, except for KDL’s suppliers.
15. Applicable law, competent court
15.1 Present General Terms and Conditions of Sale and Delivery are subject to China law, and to the exclusion of the Vienna Sales Convention (CISG).
15.2 The court in Shanghai is exclusively competent in the event of any disputes.
