德马格塑料机械(宁波)有限公司的一般性销售,交货和保修条件 General Conditions of Sales, Delivery and Warranty by Demag Plastics Machinery (Ningbo) Co., Ltd.

I)定义 Definitions

在本条件中:In these conditions

“供方”指德马格塑料机械(宁波)有限公司

“The supplier ” means Demag Plastics Machinery (Ningbo) Co., Ltd.

“需方”指已经购买或同意购买本合同项下货物的公司、企业或者个人;

“The purchaser” means the company, firm or individual who has bought, or agreed to buy the goods under the contract;

“报价单”是指供方向需方提供的报价;

“The quotation” means an information addressed to the purchaser by the supplier;

“货物”是指供方向需方出售的任何性质的产品和服务;

“The goods” means any item of goods or services of whatsoever nature which is to be sold by the supplier to the purchaser;

“出口合同”是指需方为国外或台湾,香港,澳门的公司,企业或者个人,货物将被移至国外或台湾,香港,澳门的销售合同;

“The export contract” means a contract for the sale of goods of which the purchaser is a company, firm of individual from abroad as well as Taiwan, HongKong and Macao, and the goods are shipped to Taiwan, Hongkong, Macao or any other locations outside the P.R.C.

“违约责任”是指违约方对守约方应承担的法律责任,包括:支付违约金、支付赔偿金(直接损失和间接损失)、被解除合同、被定金制裁和被强制实际履行;

“Liability for the breach of contract” means the delinquent party shall be responsible for any breach of contract including: to pay penalty, to indemnify the other party against all direct and indirect losses, damages, costs and expenses suffered or incurred, be forfeited the deposit, be terminated the contract, or be enforced to execute the contract.

“不可抗力”是指不可预见、对其发生不能避免并不能克服的客观情况,包括:1. 地震、台风、洪水等及其它自然灾害;2. 火灾、爆炸等及其它意外事件;3. 战争、暴乱、禁运、罢工等及其它重大事件;4. 法律、法规和政府的政策、命令等造成的后果。

“Force Majeure” means objective facts which could not be expected, and their occurrence could not be avoided or overcome, including: 1. natural calamities such as earthquake, flood, typhoon and others; 2. accidents such as fire, explosion and others; 3. major events such as war, riot, embargo, strike and others; 4. results suffered form legislation, any act, other or policy of any governmental or other duly constituted authority.

II)交易条件的适用 Application of General Conditions

i 本文中的销售与交货条件是以销售注塑机为基础的,除供需双方另有明文的书面约定外,供方所有注塑机的销售、交货及保修均适用以下条款。

The general conditions in this file are on the basis of injection moulding machine sales. Additional agreements become only effective when specified in written form by both parties.

ii 如本文中的某单项条款作为无效条款处理,其余部分仍然有效。 In case a certain condition in this file becomes void, it shall not affect the validity of any other conditions.

III)报价、需方订单、合同签订 Quotation, Purchase Order and Signing Contract

i 供方的任何单方报价以及与报价相关的资料如图片、图样、重量、尺寸及技术数据等均仅为一般参考用,除经双方以合同形式或在本合同中加以确认外,对供方没有约束力。

The supplier’s quotations and written materials related to the quotations such as: pictures, charts, weights, dimensions and technical data are only on an information basis without any legal binding to the supplier, unless they are confirmed by the supplier and the purchaser through the form of a contract or under this contract.

ii 供方提供的产品介绍和产品技术数据资料并不构成合同的一部分,对供方没有约束力。供方有权在未事先通知需方的情况下随时更改前述介绍和数据。

Any data and other information shown in the supplier’s brochures and data sheets doesn’t form part of the contract and has no legal binding for the supplier, and may be changed by the supplier, if necessary, at any time without prior notice.

iii 供方提供的宣传品、产品目录、价格表、报价以及其它相关的资料未经供方的许可,需方不得提供给与合同交易无关的第三方。

None of the catalogues, brochures, price lists, quotations and other published material shall be passed to a third party not in relation with the contract without the supplier’s consent in writing.

iv 在保证交付货物品质不低于所订货物品质的前提下,供方保留对产品进行技术改造和革新的权利。

The supplier reserves the right to carry out technical modifications and renovations on the goods, while assuring the quality of delivered goods are not worse than that of the ordered injection moulding machines.

v 需方订单只有通过供方书面确认才能被接受。订单的补充、更改和口头约定须通过供方的书面确认才有效。

The purchase order can only be accepted when confirmed by the supplier in written form. Any amendment, modification and oral agreement of the purchase order becomes valid only with supplier’s written consent.

vi 报价与订单要以合同缔结方式进行确认,合同经双方签字盖章方可生效。

The quotations and purchase orders shall be confirmed in the form of contracts. The contracts are effective only with the signatures and stamps of the two parties.

IV)价格与支付 Price and Payment

i 价格原则上为出厂价(宁波),不含包装材料费用。

On principle, the prices are on ex-work basis. (Ningbo), packing material excluded.

ii 如合同无另外规定,需方应在合同签订后十天内支付货款(包括预付款)或开出以供方为受益人的不可撤销的信用证。

Without a specified date agreed between both parties, the buyer should effect the payment in cash (including a payment in advance) or issue an irrevocable L/C in favour of the seller as beneficiary within 10 days after signing the contract.

iii 如有分期付款<及>或定金条款,需方应在约定期限内支付,否则供方无法保证其应承担的责任和义务。

In case of payment by installments (and) or deposit, the purchaser shall pay off within the time limit, otherwise the supplier is released form all his responsibilities.

iv 货款只有汇入供方的帐户后方可视为支付。

The payment of the goods is considered acceptable only when it is remitted and credited to the supplier’s account.

V)定金 Deposit

如果需方对注塑机有特殊加工要求, 应向供方给付定金, 作为合同的担保。需方履行合同义务后, 定金抵作价款。定金应当以书面形式约定。当事人在定金合同中应当约定交付定金的期限, 如未约定交付期限则必须在合同签订后十天内支付, 定金合同从实际给付定金之日起生效。

In case the purchaser demands a non-standard goods specification, he should pay a deposit to the seller as a guarantee. After the purchaser performs the obligations under the contract, the deposit will be balanced against the total contract amount. The deposit should be agreed in writing. The parties shall agree the time limit to pay the deposit. However, in case no time limit is stated in the contract, deposit must be paid within 10 days after signing the contract. The deposit contract shall be effective on the date of actual payment of the deposit.

VI)交货时间,不可抗力 Delivery Time, Force Majeure

i 除非合同中双方另有规定,允许供方分批分期交货。如卖方分批交货,则视每批交货均为独立的合同。需方按供方实际交货承担合同规定的相应义务。

Unless otherwise stated in writing, the supplier shall be entitled to make partial deliveries or delivery by installments. If delivery of the goods is made partially or in installments, each delivery or installment shall be construed as constituting a separate agreement to which all the provisions of these conditions apply.

ii 供方应尽一切可能按时交货。如因故不能如期交货,供方可适当延期,但最长不得超过40天。

The supplier endeavors to deliver on time. Delayed deliveries, however not more than 40 days at the most, are considered as the goods are delivered on time.

iii 如果发生了不可抗力,交货期限可予以适当地延长。供方应此类事件发生和结束时尽快通知需方。

The delivery time will be extended in case of force majeure and the supplier should inform the purchaser immediately when the event happens and ends.

iv 因生产、运输或其它原因供方未在合同许可的最后期限内交货,如需方在超期之日起3天内未以书面形式表示异议,则供方提出的交货期将视作双方已协议通过。

Should the seller fail to deliver the goods on time due to production, transportation or any other reasons, and the purchaser has not expressed his disapproval to the supplier in written form within 3 days after delivery date of contract, it is deemed that delivery dates as proposed by the Seller will have been agreed upon by both Parties.

VII)收货 Receiving Goods

i 需方接受货物时,有义务在供方的送货通知书上盖章确认。否则,供方有权拒绝将货物移交需方,由此产生的有关费用和逾期交货的责任由需方承担。

The purchaser is obliged to confirm the acceptance of the goods by stamping the delivery note. In case the purchaser refuses to do so, the seller has the right to refuse hand over of the goods. The purchaser shall be responsible for delayed delivery and any expenses occurring.

ii 对货物数量的异议需方必须在接受货物时当即向供方书面提出,对货物质量问题的任何异议,则必须以书面方式在到货后十日内向卖方提出。如需方未在期限内提出,则视货物数量、质量符合合同规定要求。只有经供方书面答复肯定的,方视为供方认可了需方的异议。

Any objections to the quantity must be raised in writing by the purchaser to the supplier at the time of receipt of the goods, any claims to the quality of the goods shall be put to the supplier in writing by the purchaser within 10 days after the goods have been received. The quantity and quality of the goods is deemed to be in accordance with the contract, if no objections or claims are arisen within the period mentioned. The agreement to any objections and claims has to be confirmed in writing by the supplier.

VIII)风险和保险 Risk and Insurance

i 内销合同,货物风险自货物移交给需方时起转移至需方;

For domestic contract, the risk of the goods passes onto the purchaser when the goods are handed over to the purchaser.

出口合同,自货物按照销售合同规定被交付第一承运人以转交给需方时起,风险就转移到需方。 供方有权保留控制货物处置权的单据,并不影响风险的转移。对于在运输途中销售的货物,从订立合同时起,风险就转移到需方。

For export contract, in accordance with the contract, the risk passes onto the purchaser when the goods are handed over to the first carrier for transportation to the purchaser. The fact that the supplier is authorized to retain documents controlling the disposition of the goods does not affect the transfer of the risk. The risk in respect of goods sold in transit is passed to the purchaser from the time of the conclusion of the contract.

ii 如果需方有义务在供方营业地或供方营业地以外的某一地点接收货物而未按约定接受,则视为需方违约,货物风险从需方应接收货物时起转移给需方。

If the purchaser has to take over the goods at a place of business of the supplier or at a particular place other than a place of business of the supplier, the risk is passed to the purchaser from the time when the goods are placed at his disposal and it is considered a breach of contract by failing to take delivery, if he does not do so in due time.

iii 货物在风险转移到需方承担后遗失或损坏,需方支付价款的义务并不因此解除。

Losses or damages of the goods after the risk has passed to the purchaser do not relieve him from his obligation to pay the price.

iv 是否签订运输保险合同由需方决定。需方在货物发运前有义务及时向供方以书面的形式告知已签订运输保险合同,否则供方有权利但没有义务代其签订运输保险合同,其所有相关费用则由需方承担。

It is in the purchaser’s discretion to have transport insurance. The purchaser is obliged to inform the supplier prior to delivery in writing whether he has bought the transport insurance. In case that the purchaser dose not inform the supplier on time, the supplier is entitled but not obliged to buy transport insurance at the cost of the purchaser.

IX)所有权的转移 Transfer of Property

i 货物的所有权在需方按合同规定如期支付全部货款时, 才转移至需方。

The property of the goods shall pass from the supplier to the buyer only after the purchaser has made full payment for the goods on time as stipulated in the contract.

ii 供方在需方没有按合同约定支付全部货款时,仍有权重新占有货物。

Without prejudice, the supplier is entitled to retake the goods when the purchaser fails to pay any amount on time for the goods as stipulated in the contract.

iii 供方如收回货物并不能免除需方的违约责任。供方收回货物后,仍有权就需方违约而造成的损失要求赔偿。

Retaking the goods does not relieve the purchaser of breach of contract liability. The supplier still has the right to claim for any damages caused by the purchaser’s breach of the contract.

iv 在需方未取得货物所有权之前,需方不得对货物进行改装或改变其结构,不得将货物进行抵押,也不得将货物以任何形式转让给第三方。

As long as the property of the goods remains with the supplier, the purchaser shall keep the goods any lien and is not entitled to make any changes to goods or pass the goods to a third party.

X)合同的转让 Assignment of the contract

合同一方将合同的权力、义务全部或部分转让给第三人的,应当取得合同另一方的同意。

Only after it is agreed in writing between the contract parties, one party can assign all or part of rights or obligations of the contract to a third party.

XI)宣告合同无效 Cancellation of Contract

i 对于内贸合同,如果需方没有在合同约定的期限内履行合同义务,供方有权解除合同。

For domestic contract, the supplier is entitled to cancel the contract, in case the purchaser fails to perform its obligations on time.

对于出口合同,如果需方没有在合同约定的期限内履行支付货款(或只支付了其中的一部份)、收取货物或在合同中的其它义务,供方可以规定一段合理的额外时间,让需方履行义务,若需方在所规定的额外时间内仍未支付价款或收取货物,或申明它将不在所规定的时间内这样做,卖方有权宣告合无效。

For export contract, if the purchaser fails to pay the price (or part thereof), take delivery or perform any other obligations within the time limit under the contract, the supplier may fix an additional period of time of reasonable length for performance by the purchaser of his obligations; If the purchaser does not, within the additional period of time fixed by the supplier, perform his obligation to pay the price or take delivery of the goods, or if he declares that he will not do so within the fixed period, the supplier has the right to declare the contract invalid.

ii 宣告合同无效解除了双方在合同中的义务,但并不妨碍供方行使要求所应得的损害赔偿的权力。

Cancellation of the contract releases both parties from their obligations, but the supplier remains entitled to claim damages which may be due.

XII)整机保修期 Prime Product Warranty

i 供方整机产品的保修期为1年或2000小时的工作时间(以先到的为准)。期间因设计、材料和工艺缺陷造成的故障,将由供方维修。该保修期自用户收货日起算。

The supplier guarantees the prime product quality in regards to defects of design, material and/or workmanship for a period of one (1) year or two thousand (2000) operating hours, whichever comes first, following the delivery date to the end user.

ii 保修范围不包括由于正常损耗,也不包括由于事故、误用、超载、使用不当或超越该产品工作条件所造成的故障。

The warranty, however, does not cover normal wear, nor does it cover any defects that may result from accidents, misuse, overload, improper use or utilization or in conditions which are not suitable for the product.

XIII)违约责任 Liability for Breach of Contract

i 需方逾期付款,按逾期支付货款部分计算,每逾期一天应向供方支付万分之五的逾期付款违约金。

If the purchaser fails to pay on time, the supplier is entitled to demand the interest of the amount in arrears, which is 0.05% of the unpaid amount for each delayed day.

ii 需方违约,应向供方支付货款总值5%的违约金。如果货物有特殊加工的部分,违约金为货物总值的30%。

In case the purchaser breaks the contract, he should pay the supplier a penalty of 5% of total contract value. When parts or componets with special specification are involved, the penalty amounts to 30% of the total value.

iii 有下列情形之一时,由需方承担延期交货的责任,供方有权选择延期交货或解除合同。解除合同并不影响供方追究需方的违约责任。

1) 需方未按时给付定金或预付款; 2) 需方未提供由其负责办理的有关文件或批文; 3) 需方未履行其它应在交货前履行的合同义务;

In case of the below mentioned, the purchaser should be responsible for the late delivery. The supplier has the right to choose delaying the date of delivery or cancelling the contract. However, if the supplier chooses to cancel the contract, nothing shall prevent the supplier to investigate and fix the purchaser’s liabilites:

 1) The purchaser failed to pay off the advanced payment or deposit on time;

 2) The purchaser failed to provide the complete necessary documents and related official approval in time;

 3) The purchaser failed to carry out other obligations which shall be done before delivery.

XIV)争议的解决 Ways of Setting Disputes

i 如果本合同的全部或部分因一方违约无法履行,则违约方应向对方赔偿由违约直接引起的且在订立合同时应该合理预见到的损失。除了本合同中的规定,任何一方无须对另一方的任何附带或间接损失承担责任,包括但不限于利润损失,失去合同的损失,生产损失,无论是否有索赔的法律依据。

Should all or part of the Contract be incapable of fulfillment owing to the fault of one Party, the Party in breach shall be liable to compensate the other Party for losses it ought reasonably to have foreseen at the time of the conclusion of the contract and which are direct consequence of the breach. Notwithstanding anything contained in this Contract, neither Party shall be liable to the other Party with regard to any kind of incidental, indirect or consequential damages of any kind such as but not limited to loss of profit, loss of contract, loss of production, irrespective of the legal basis for any claim.

ii 因履行合同而发生的任何纠纷,应通过友好协商解决,如果双方无法达成一致意见,则提交供方所在地法院解决.

Any disputes arisen from or in connection of implementation of the contract should be settled through amicable negotiation. In case no settlement can be reached between the two parties, the cases shall be submitted to the court at the supplier’s place of business.

XV)法律的适用 Law Application

若供方是与外国的企业和其它经济组织或个人订立购销合同,处理合同争议适用中华人民共和国法律。

The law of the People’s Republic of China shall be applicable to the contracts signed between the seller and foreign enterprises, other economic organizations or individuals as the purchaser.

XVI)文本语言 Language

本合同和一般条件用中文和英文写成,两种文字具有同等效力。上述两种文字如有不符,以中文为准。

The contract and the conditions are written in Chinese and in English. Both languages are equally authentic. In the event of any discrepancy between the two versions, the Chinese version shall prevail.