Unless otherwise expressly agreed in writing, these terms of sale and delivery apply to all agreements with and deliveries from ENGINE PARTS SUPPLY (Hereafter called EPS), regardless of any provisions to the contrary in the order or acceptance given by the buyer.
1. Quote, order and acceptance
Any order placed by the buyer is only binding on EPS once the buyer has received a written order confirmation from EPS. Quotes from EPS which do not include a specific deadline for acceptance will become void if the buyer's acceptance has not reached EPS within four weeks of the submission of the quote. Amendments or addenda to an original agreement are not binding on EPS without EPS's written confirmation.
2. EPS's services
The services provided by EPS comprise only those stated in EPS's quote/order confirmation, and EPS undertakes to deliver high-quality products in terms of materials and workmanship.
Information given in catalogues, pricelists and other product information provided by EPS is only binding on EPS to the extent that the agreement with the buyer expressly refers to such information. EPS reserves the right to change the information contained in the above material without notice.
All drawings and technical documentation given to the buyer by EPS will remain the property of EPS. The material may thus only be used in connection with the use and maintenance of the products delivered by EPS and may not be copied, reproduced, assigned or otherwise entrusted to an EPS third party by the buyer.
3. Delivery
Unless otherwise expressly agreed, delivery is ex works EPS (Incoterms 2010), with the buyer bearing the risk of any fortuitous events befalling the products after they have left the warehouse.
4. Prices
Unless otherwise expressly agreed, prices are ex works, excl. transport, packaging, VAT and other charges.
5. Terms of Payment
Unless otherwise expressly agreed, payment must be made according to the payment terms stated on the invoice or net cash, unless otherwise agreed. If payment is not made on time, default interest will be charged at a rate of 2% per month. The buyer is not entitled to set off any counterclaims which have not been acknowledged by EPS in writing, and the buyer is also not entitled to withhold any part of the purchase sum with reference to such counterclaims.
6. Delays
Unless otherwise specified in writing in EPS's quote or order confirmation or agreed between the parties, the delivery date specified by EPS is EPS's best estimate. If the delivery date specified is exceeded, the buyer may submit a written request to EPS for delivery within a reasonable deadline which cannot be shorter than three weeks. The deadline is six weeks, however, for products manufactured specifically for the buyer or products which are normally not held in stock by EPS. If EPS does not deliver within this extended deadline, and this is not due to circumstances for which the buyer is responsible, the buyer may cancel the agreement by written notification to EPS as far as the part of the delivery not delivered is concerned. As for products manufactured specifically for the buyer or products not normally held in stock by EPS, the buyer's right to cancel the agreement is furthermore conditional upon the buyer proving that the material purpose of the purchase no longer exists as a consequence of the delay. The buyer cannot raise any other claims against EPS as a result of delays.
7. Creditor's default
If, after the delivery date, the buyer fails to collect the purchased products after having been asked to do so in writing by EPS, EPS is entitled to sell the products to a third party and to use the proceeds from the sale to reduce EPS's amount receivable from the buyer.
8. Deficiencies
EPS undertakes to repair any documented deficiencies in the service delivered by EPS which are the result of material and/or manufacturing defects or to make a replacement delivery if the buyer has submitted a valid and timely complaint in accordance with the provisions in Clause 11 before the expiry of a 12-month deadline from the date of EPS's delivery to the buyer. EPS is entitled to choose between repair or replacement delivery. The buyer must allow EPS access to carry out the repairs at an agreed time and date at which the purchased products must be made available to EPS. EPS's liability for deficiencies lapses if repairs are made to the purchased products without EPS's written approval, or if the delivered products are otherwise subjected to improper treatment and repair has begun without prior written agreement with EPS.
9. Disclaimer
EPS cannot be held liable for delays and deficiencies other than those stated in Clauses 6 and 8. If EPS incurs liability in damages as a result of the buyer's use of the delivered service, including in a resale, which exceeds EPS's liability under this provision, the buyer is obliged to indemnify EPS for such liability and the buyer is also obliged to accept a lawsuit against him at the court dealing with the claim against EPS.
EPS can under no circumstances be held liable for operating losses, loss of earnings or other indirect losses and consequential losses, including costs incurred to ascertain or locate deficient products or damage.
10. Product liability
EPS can only be held liable for damage to persons or property caused by deficiencies and defects in delivered products (product liability) to the extent that such liability follows from mandatory rules of law. EPS cannot be held liable for damage to the buyer's property or any other property intended for commercial use (commercial property damage).
The disclaimer stated in Clause 9, second paragraph, also applies to EPS's liability for product damage.
11. Complaints and inspection obligation
No later than on the date of EPS's delivery of the service, the buyer must thoroughly inspect the service to establish whether it is consistent with the purchase agreement. The buyer must promptly complain about any deficiencies discovered during such inspection, and the buyer cannot at a later date claim deficiencies which could have been discovered during the inspection. If the service delivered has any hidden defects, the buyer must complain as soon as the defect is discovered or should have been discovered. If the buyer fails to do so, he cannot claim the defect. All complaints must be made in writing, and the buyer must state the invoice number and delivery date as well as the type and serial number (if any) on the defective product. The complaint must also include a description of the scope and nature of the defect. EPS is entitled to check damage on the damage site and to examine the defective parts before considering the complaint, including whether the complaint is comprised by EPS's repair or replacement delivery obligation. If the buyer fails to comply with this provision, his remedies for breach of contract cease to exist.
12. Returns
Returns are only accepted by prior written agreement with EPS and only against payment of a return charge corresponding to at least 15% of the product's invoice price. Products which have been manufactured specifically for the buyer or which are normally not held in stock by EPS can under no circumstances be returned.
13. Force majeure
EPS is entitled to cancel orders or postpone any agreed delivery of services and is otherwise not liable for any non-delivery, defective or delayed delivery which is wholly or partly beyond EPS's reasonable control, such as riot, war, uprising, civil unrest, acts of terrorism, government intervention or intervention by local authorities, fire, strike, lockout, export and/or import bans, non-delivery by or insufficient deliveries from subsuppliers, shortage of labour, fuel, power, scarcity of goods, illness, accidents during manufacturing or testing or lack of power supply. All the buyer's remedies will be suspended or cancelled in the above circumstances. The buyer is not entitled to damages or to raise any other claim against EPS in the case of cancellation or postponement.
14. Ownership reservation
EPS retains ownership of the products sold until the purchase sum, including interest and costs, has been paid in full. The buyer may not engage in transactions which prejudice EPS’s ownership reservation.
15. Venue and governing law
Any dispute between the parties must be settled according to Chinese law at EPS's home court.
However, EPS is entitled to demand that the dispute instead be settled by arbitration according to the regulations of Shanghai International Economic and Trade Arbitration Commission.