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Saint-Gobain SolarGard Specialty Films LLC
General Terms Of Sale
For the purpose of the General Terms of Sale (the “Terms”), the term "Seller" shall mean Saint-Gobain Solar Gard Specialty Film (Qingdao) Co. Ltd.
The Terms shall apply to any sale of goods by the Seller to the Buyer, notwithstanding different or contrary terms or/and conditions mentioned on the orders or other documents provided by the Buyer. In the event of any conflict or inconsistency between the Terms and any terms and conditions contained in the Buyer’s orders or in any other documents issued by the Buyer, whether or not any such documents have been acknowledged or accepted by the Seller, the Terms shall prevail.
2. Offer and Acceptance/要约与接受
a) The order of the Buyer shall constitute the offer.
b) All orders issued by the Buyer to the Seller, including those received or accepted by representatives or agents of the Seller, shall bind the Seller and the Buyer after the Seller issues a written acceptance of the order, in the form of an order confirmation.
a) Unless otherwise agreed in writing, all goods shall be delivered Ex-Works (INCOTERMS latest version) as designated by the Seller.
b) Unless otherwise agreed in writing by the Seller and the Buyer, date of delivery (the “Delivery Date”) communicated or acknowledged by the Seller are approximate and given for information purposes only and are not binding. The Seller shall not be liable for, nor shall the Seller be in breach of its obligations to the Buyer, for any delivery made at a time before or after the communicated or acknowledged Delivery Date. The Seller agrees to use commercially reasonable efforts to meet the Delivery Date communicated or acknowledged by it on the condition that the Buyer provides all necessary order and delivery information sufficiently prior to the Delivery Date.
c) In case of non-delivery of the goods within three (3) months after the Delivery Date, the Buyer shall have the right to give the Seller written notice of failure to deliver and thirty (30) days within which to cure. If the Seller does not deliver within such thirty (30) day period, the Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the related agreement/order.
d) The Seller reserves the right to make a partial delivery and to deliver the ordered goods with a ten percent (10 %) tolerance due to technical reasons. For clarity, in case of any of the foregoing situations, if the quantity of the delivered goods exceeds the quantity of the ordered goods, Buyer shall accept the entire delivered goods and pay the price of the entire delivered goods; if the quantity of the delivered goods is less than the quantity of the ordered goods, Buyer shall accept the entire delivered goods and pay the price of the entire delivered goods.
卖方保留部分交付以及因技术原因在 10% 的误差范围内交付预定货物的权利。玆澄清，发生前述情形，若卖方交付的货物超过买方订购的货物，则买方应当接受所交付的全部货物，同时支付所交付的全部货物的价款；若卖方交付的货物少于买方订购的货物，则买方仍应当接受所交付的全部货物， 并支付所交付的货物的价款。
e) If the Buyer fails to take delivery of goods ordered, then the Seller may deliver the goods in consignment at Buyer’s cost.
f) Unless otherwise agreed in writing by the Buyer and the Seller, in case of partial delivery, partial payment shall become due.
a) Conformity to the relevant contract/order of the delivered goods is determined according to the state of the goods at the time of delivery.
b) The Buyer shall inspect the delivered goods upon the delivery. The Buyer shall inform the Seller of any shortage in quantity or any visible defects within three days after the goods are delivered. The goods will be deemed to be accepted by the Buyer, should the Buyer fail to send any written notification within three days after the delivery.
c) Unless otherwise specified in the mandatory laws, claims for failure of goods to reach the performance criteria published by the Seller can be considered and accepted only within a period of six (6) months following delivery, and shall be notified to the Seller in writing within three (3) days following their discovery. In case of any disputes between the Buyer and the Seller relevant to such claim, whether or not the goods fail to reach the performance criteria published by the Seller shall be tested and judged based on China’s State Standar GA /T 744-2013 Automotive Solar Control Window Films. For clarity, the Buyer shall not refuse to fulfill its obligations of payment by the Due Date based on its claims for failure of goods to reach the performance criteria published by the Seller.
除非强制性法律另有规定，有关货物未达到卖方公布的性能指标的请求仅在交付后六（6）个月内有效并予以考虑，买方应于其发现该等问题之日起三（3）日内通过书面方式向卖方发出通知。如果买卖双方对货物是否达到卖方公布的性能指标存在争议，则应当按照中国国家标准GA /T 744-2013 《汽车车窗玻璃遮阳膜》给予测验和确认。兹澄清，买方不得以声称货物未达到卖方公布的性能指标而拒绝履行按时付款的义务。
d) Goods failing to reach the performance criteria published by the Seller can be returned by the Buyer to the Seller only after such failure is confirmed by both Parties based on China’s State Standar GA /T 744-2013 Automotive Solar Control Window Films. Related expenses of shipment shall be borne by Seller.
卖方同意买方退换经买、卖双方基于中国国家标准GA /T 744-2013 《汽车车窗玻璃遮阳膜》共同认定未达到卖方公布的性能指标的货物。运费由卖方负担。
e) Unless explicitly agreed in writing, the Seller does not guarantee that the goods meet the requirements of a specific use or process. 除非书面明确同意，卖方不保证货物满足特殊使用或流程的要求。
a) Under no circumstances shall the Seller be liable for defects caused by bad storage, handling by the Buyer, abnormal use of the goods, or transformation of the material due to climatological conditions.
b) Without prejudice to the above, the Seller's liability for damages arising from the delivered goods is in any case limited to the price of the goods.
c) In case of resale of the goods, processed or not, the Buyer shall, with respect to his own purchasers, restrict his liability for damages arising from the delivered goods to the value of this delivery.
d) The Buyer agrees to inform the Seller immediately whenever he becomes aware of a patent or any other intellectual property right, which is infringed by the delivered goods.
e) If a patent or any other intellectual property right infringement claim is brought against the Buyer due to the offer, import, export, storage, sale and/or use of the Seller's goods, the Buyer shall immediately inform the Seller in writing thereof, and allow the Seller to take over the defence in the proceedings.
f) If a final judgment holds the Buyer liable for patent or any other intellectual property right infringement by the delivered goods, the damages which the Seller may owe to the Buyer shall not exceed an amount equal to the sales price paid by the Buyer for the infringing goods, delivered to him during the last six (6) months preceding the summons.
g) Under no circumstances does the Seller assume any liability or responsibility for any extraordinary use or special application which the Buyer or a third person makes of the delivered goods and which may infringe patent rights or any other intellectual property rights of third parties.
h) Moreover, the Seller cannot be held liable for infringements by his goods of a patent or any other intellectual property rights, which is unknown to him but of which the Buyer was aware.
6. Payment and Security/支付和保证
a) Payment terms such as invoice issuance date, payment schedule, and amount are subject to the additional written consensus reached by the Buyer and the Seller though negotiations.
b) In addition to any other rights and remedies available to the Seller, any invoice or part thereof which is not paid on its Due Date shall bear interest, automatically and without prior notice, at the rate of eleven percent (11%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the Due Date until payment in full.
Furthermore, in case of any late payments by the Buyer, all other outstanding invoices of the Buyer shall become due immediately.
c) Moreover, in addition to any other rights and remedies (e.g. requesting the Buyer to return, at the Buyer’s cost, the goods in which the title has not yet passed) available to the Seller, the Buyer shall pay the Seller 0.1% of the unpaid price per day for each day of delay as liquidated damages. For clarity, if the Seller requests the Buyer to return the goods according to the Terms, the Buyer is obliged to pay the liquidated damages according to this article from the Due Date until the requested goods are returned to the place designated by the Seller. If the liquidated damages fail to cover the actual losses of the Seller (including but not limited to expected profit, attorney fees, legal cost, etc.), the Seller is entitled to request the Buyer to make full compensation.
此 外 ，除了卖方依据适用法律而可能获得的其他权利和救济(如：要求买方自付费用返还所有权尚未转移给买方的货物)之外，买方每逾期付款一日，买方还应向卖方支付未付金额的0.1%作为违约金。兹澄清，若卖方根据本段规定，要求买方立即返还尚未付款的货物，则卖方仍应当根据本条规定承担违约金，计算期限自逾期付款开始之日至买方将返还的货物交付至卖方指定的地点之日为止。若违约金不足以弥补卖方的实际损失(包括但不限于预期利润、律师费、诉讼费等)，卖方有权要求买方赔偿实际损失。
d) The Seller is entitled to require security for payment, at his own discretion and to his satisfaction. If the Seller has serious doubts about the solvency of the Buyer, or if the Buyer does not provide satisfactory security, the Seller is entitled:
(i) to suspend any further deliveries to the Buyer, either under the same contract/order or under any other contracts/orders;
(ii) to take, with regard to the goods already shipped, any measures required to prevent the goods from coming into the possession of the Buyer and to secure the Seller's rights.
7. Retention of Title/所有权保留
a) The delivered goods shall remain the Seller's property until payment in full by the Buyer of the purchase price, including any interest and/or any expenses, liquidated damages, etc in respect thereof. The same applies in case of partial deliveries and partial payments. The Buyer shall at all times grant the Seller (or its representative) free access to the location where the Buyer has stored the goods. In the event the Buyer does not fulfill its payment obligations towards the Seller, or gives reason to believe that it will not fulfill any or part of its payment obligations, the Buyer is obliged at the Seller’s request to return to the Seller, at the Buyer’s cost, the goods in which the title has not yet passed and the Buyer agrees to fully cooperate with the Seller in order to enable the Seller (or its representative) to collect its goods.
b) Notwithstanding the above, the risks of goods sold pass to the Buyer at the time of delivery.
c) As far as possible under the applicable law, the retention of title also applies for delivered goods that are transferred to third parties.
d) If according to the law, the retention of title disappears with the transfer of the goods to third parties, the Buyer shall, at the simple request of the Seller, transmit to the Seller all claims which the Buyer has on the acquirer of the goods.
若 根 据 法 律 规 定 ， 所有权保留的约定于货物转让给第三方时失效，则在卖方的简单要求下，买方应向卖方转移其对于货物购买方的所有请求权。
The Seller commits himself not to collect these claims to the extent that the Buyer correctly meets his commitment to pay.
e) As far as possible under the applicable law, the retention of title also applies for delivered goods which are transformed into other goods. 在适用法律允许的最大程度，所有权保留条款也适用于转变为其他物品的交付货物。
The transformation of the goods, to which the retention of title applies, is carried out for the account of the Seller.
f) If the goods with retention of title are transformed with other goods not belonging to the Seller, the Seller acquires the co-ownership of the new goods in the proportion of his share in the goods with retention of title, calculated on the total value of the new goods.
若保留所有权的货物被转变为其他不属于卖方的物品，卖方取得对该等新物品与其保留所 有 权 部 分 的 价 值 相对 应比 例 的 共 有 所 有 权 ，该 等比 例 的 计 算 以 新 物 品的 总价 值 为 基 础。
8. Embargo clause 贸易禁运条款
“The buyer is prohibited from doing business, either directly or indirectly, with any and all countries/region that are subject to embargo & sanctions imposed by the United Nations, European Union and/or the United States of America (collectively the “Sanctioned Countries”). The seller confirms to have discharged its obligation to inform the buyer that engaging into business transaction with the Sanctioned Countries is prohibited, the buyer confirms to be aware of the aforementioned obligations and agrees to support the seller in the compliance with related regulations as such.”
9 Jurisdiction and Applicable Law/ 管辖与适用法律
a) All orders, acceptances, the Terms and any relevant agreements are governed by and construed in accordance with the laws of the People’s Republic of China. All disputes arising out of or in connection with orders, acceptances, the Terms and any relevant agreements shall first be attempted by the Buyer and the Seller to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the competent court where these General Terms of Sale are signed.
b) The United Nations Convention on Contracts for the International Sale of Goods (1980) is not applicable to any orders, acceptances, the Terms and any relevant agreements between the Buyer and the Seller.
a) Confidentiality. The Buyer acknowledges that all technical, commercial and financial data disclosed to the Buyer by the Seller is the confidential information of the Seller. The Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the Buyer and the Seller and in conformance with the purchase transaction contemplated herein
b) No Implied Rights. Except as explicitly set forth herein, the Seller has not granted and nothing in the Terms shall be construed as granting the Buyer any ownership interest, license, or any other rights under any patents, copyrights, trademarks or any other intellectual property rights or other trade secrets of the Seller.
c) Language. The Terms are made in both English and Chinese versions. In case of any discrepancies between the English version and the Chinese version, the Chinese version shall prevail.