Terms and Conditions of Sale
The Terms and Conditions of Sale (“Terms”) shall govern the sale of products and services (“Products”) by the Company and its subsidiaries and affiliates (“Vadas”) to customers (“Customer”), except as agreed by the parties in the form of purchase orders or otherwise agreed.
1. Products
1.1 Customer shall enter into specific purchase orders with Vadas based on its actual demands and place orders of products from Vadas through such purchase orders. Parties may confirm and accept a relevant purchase order through fax, e-mail or other forms agreed by Parties. Purchase orders shall become effective upon signature by Parties or upon express confirmation and acceptance by an authorized person of Parties in the foregoing manner.
2. Price
2.1 The price of the Products referred to in this Terms shall be based on the purchase order signed by and between the Parties
2.2 Customer shall make payment to Vadas in accordance with the agreed payment schedule of the products. The payment schedule of the products under any purchase order shall be based on the agreement in such purchase order.
2.3 Unless otherwise agreed by the Parties, Customer shall make payments to Vadas based on the sequence in which the purchase order is signed and the transaction is carried out. Vadas has the right to apply the payment received from Customer to offset any amounts due to be paid by Customer.
2.4 Customer shall make the payment in accordance with the agreed payment terms hereof. If Customer fails to make the payment hereunder, Customer shall bear the liquidated damages for delayed payment in accordance with the provisions hereof. Besides, Vadas shall have the right to suspend the delivery of subsequent products before the full payment of overdue amounts is made by the Customer, which shall not affect other rights entitled to Vadas in accordance with law and regulations.
2.5 Vadas shall prepare the statement of account on the 5th working day of each month and submit it to Customer for confirmation and countersignature. Upon Customer’s confirmation and countersignature, Vadas shall issue an invoice. The invoice issued by Vadas does not necessarily prove that Vadas has received the payment for products corresponding to the invoice. Customer shall provide Vadas with basic information required for invoice issuance in advance. In case of any change in the basic information of the invoice, Customer shall re-provide the changed information to Vadas before Vadas issues an invoice. In the event of any case that invoices cannot be normally obtained and used due to Customer’s failure to promptly and accurately provide invoice information or any change thereof, Customer agrees to bear the liability and losses incurred thereby by itself.
2.6 Customer shall make the payment to Vadas by bank transfer or other forms agreed by Vadas and shall properly indicate the corresponding purchase order number or other necessary information at the time of remittance.
2.7 In principle, Vadas shall not accept any payment made by any third party on behalf of Customer without the prior consent of Vadas. In the event that Vadas agrees to accept the payment from a third party, Customer shall provide a written certificate of entrusted payment, the certificate for relationship between Customer and the third Vadasnd handle relevant procedures in accordance with the requirements of Vadas.
2.8 Parties may reconcile the accounts and invoices between themselves regularly or occasionally. Either party shall confirm and reply within two business days upon receipt of the reconciliation documents provided by the other party. If either party confirms and approves the reconciliation documents provided by the other party, it shall confirm with the other Customery email, fax or other effective forms; if either party objects to the reconciliation documents provided by the other party, it shall raise its objection within the foregoing period and specify the reasons in detail and provide sufficient evidence.
3. Transportation and Delivery
3.1 Vadas shall deliver the products ordered by Customer to the address designated by Customer at the time specified on the purchase order or the other time agreed by Parties
3.2 In the event that the products involve transportation, Customer or the consignee designated by Customer shall receive the products upon arrival of the products in accordance with the provisions under the Terms or the purchase order. In the event that Vadas is responsible for express delivery, logistics or door-to-door delivery of products, the products shall be deemed as received and delivered upon the signature of the receipt document by Customer or the consignee designated by Customer; In the event that Customer or the third party designated by Customer picks up the products at the designated place, once Customer or the consignee designated by Customer signs the pickup order or receipt order or affix the receipt seal (which may indicate the receipt of products), the products shall be deemed as received and delivered. Upon the receipt and delivery of products, the property of products shall belong to Customer, and Customer shall be liable for the risks of destruction or loss of the products. Customer shall be liable for additional costs arising from Customer’s failure or delay in receiving and delivery and signing for the receipt of the products upon the arrival of the products at the delivery address.
3.3 In case of any change of the delivery address and consignee designated by Customer, Customer shall notify Vadas in advance by email or other effective forms prior to delivery of the products by Vadas and provide all other necessary information.
3.4 Customer shall guarantee that its consignee has effectively gone through reasonable product receiving formalities: (1) the designated receivers shall affix the authorized seal of Customer on the receiving document, or the consignee shall sign on the receipt document on behalf of Customer to confirm the receipt of the products; (2) the consignee shall present their identification certificates or work certificates for verification by Vadas.
3.5 After the purchase order is signed, during the pickup period or within the normal delivery period, Customer shall not reject or return the qualified products within contractual quantity to be delivered by Vadas; In the event that Customer has to suspend the pickup due to force majeure or business reason, it shall be permitted to suspend with Vadas’s consent.
4. Acceptance and Product Warranty
4.1 Vadas shall properly pack the products according to the characteristics of the products and the specific requirements of Customer. Vadas shall take other necessary protective measures for the products which are not suitable for package
4.2 Customer shall inspect the products in accordance with the inspection standards agreed by Parties; In the event of any functional defect of the products found by Customer in the inspection, Customer shall raise an objection, provide relevant documents and explain the situation to Vadas’s staff within 7 business days upon the delivery of the products. In the event of a quality defect of the products confirmed by Vadas, Vadas shall replace the defective products as agreed. In case of replacing products, Customer shall return original products together with their original packages and attachments to Vadas.
4.3 Unless otherwise expressly stipulated in the purchase order signed by Parties, Vadas warrants that the products provided shall conform to the compulsory standards stipulated by the country and relevant requirements set forth in the laws and regulations concerning products. Guarantee made by Vadas on the products delivered shall be performed in accordance with the Terms.
4.4 Vadas warrants that Vadas has complete ownership of the products delivered to Customer and that the products shall be free and clear of any mortgage, guarantee, lease and other defects of ownership. Customer acknowledges and confirms that, the raw materials, devices, software, systems, components or other auxiliary parts related to Vadas’s products may be purchased by Vadas from its suppliers. Vadas undertakes to make every effort to coordinate with such suppliers to warrant that such products will not infringe upon any legal rights and interests of any third Vadasnd will be performed in accordance with the relevant warranty terms of such suppliers.
4.5 Unless otherwise agreed by Parties,the quality warranty period of Vadas’s products shall be 6 months from the date of delivery by Vadas.
4.6 In case of return or replacement of products, the quality warranty period of the new products replaced shall be calculated separately from the date of redelivery by Vadas.
4.7 Within the quality warranty period, Vadas shall guarantee the quality of the products and bear the responsibility for the product not meeting the quality requirements. If there are quality defects with products supplied by Vadas, Vadas shall accept the claims of return or replacement of products by Customer. Unless otherwise agreed by Parties, Vadas shall not be liable for the claims of return or replacement of products other than with the quality defects of the products.
4.8 Vadas shall not be liable for any adjustment, repair or replacement of the products required due to Customer’s negligence, wrong use, improper maintenance, self-modification, tampering, or other abnormal use.
5. Confidentiality
5.1 Parties undertake that it shall keep confidential all documents and materials (including but not limited to commercial secrets, corporate plans, operating activities , financial information, technology information, operation information and other commercial secrets) which belong to the other Vadasnd are unavailable for public access and obtained by it during the discussion, signing and performance of the Terms. Without the consent from the party who originally provide such materials and documents, Parties shall not disclose to any third Vadasbout all or part of such materials and documents.
5.2 Unless otherwise agreed by the Parties, the confidentiality obligations set forth in this Terms shall be implemented on a continuous basis.
6. Anti-Commercial Bribery
Neither party shall demand, accept, offer or give any benefits other than the agreed benefits in the Terms, including but not limited to any expressed rebates, secret rebates, cash, shopping cards, physical goods, securities, tourism or other immaterial benefits, from the other party or the operators, staff or other relevant persons of the other party, otherwise it shall constitute a material breach of contract. If such benefits belong to the trade custom or common practices, they shall be expressly stated in the Terms, otherwise it shall also constitute a material breach of contract.
7. Trade Compliance
7.1 Customer understands and acknowledges that some of Vadas’s Products are subject to applicable export control laws and may not be transferred to certain end users, countries/regions, or for certain end uses without required license and Vadas’s written consent. Therefore, Customer represents and warrants as follows:
7.1.1 Customer undertakes that, in the performance of the Terms and/or related purchase orders, Customer and each of its affiliates, agents and sub-contractors involved in the performance of the Terms and/or related purchase orders, and the end user of Products shall comply with all export controls, economic sanctions and other related laws and regulations that are applicable to the Terms, the Parties and the Products of the Terms, including but not limited to China, the United States and European Union (hereinafter referred to as “Trade Controls Laws”).
7.1.2 Customer warrants that itself, all its direct or indirect shareholders, affiliates or management, and the end user of Products have not been designated onto any restricted lists under economic sanctions or export controls of any country (hereinafter referred to as “Restricted List”), including but not limited to Entity List and Military End-User List administered by the U.S. Department of Commerce Industry and Security Bureau, Specially Designated Nationals (“SDN”) administered by U.S. Treasury Department Office of Foreign Assets Control, and applicable sanctions lists of European Union and China.
7.1.3 Customer and its affiliate, agent or sub-contractors shall not export, reexport, transfer, or otherwise supply, any Products, directly or indirectly, to any embargoed or comprehensively restricted countries/regions, such as Iran, Syria, Cuba, Iraq, North Korea, the Crimea Region, Donetsk People’s Republic, Luhansk People’s Republic, Russia, Belarus, Burma, Cambodia and Venezuela.
7.1.4 Customer undertakes and warrants that neither Customer nor the end user of Products will directly or indirectly use Products for Supercomputer End Uses as defined under U.S. Export Administration Regulations (“EAR”).
7.1.5 Customer and its affiliate, agent or sub-contractors shall not export, reexport, transfer, or otherwise supply, any Products, directly or indirectly, to any entities designated on Restricted Lists, or use the Products for any Military End Uses or Military-Intelligence End Uses as defined under EAR.
7.1.6 Customer and its affiliate, agent or sub-contractors shall not export, reexport, transfer, or otherwise supply, any Products without necessary prior authorizations from competent government agencies.
7.1.7 Customer undertakes that the Products shall not be used for any support for terrorism, nuclear technology, biological and chemical weapons, missiles, weapons of mass destruction, etc.
7.2 Without prejudice to any other rights or remedies which may be available under the Terms or applicable laws, if, at any time, Customer violates the provisions in Article 7, Customer shall assume liabilities under this Terms, and Vadas reserves the right to cease or suspend further delivery of Products up to termination of the Terms and/or related purchase orders. Additionally, in the case where Vadas reasonably believes that continuing dealings with Customer may result in compliance risks or adverse effects, Vadas shall have the right to suspend performance up to termination of the Terms and/or related purchase orders. Customer acknowledges and agrees that Vadas shall not be liable for any losses or liabilities (regardless whether based on contract or tort) arising therefrom.
8. Breach of Contract
8.1 In case of delay of the delivery by Vadas, Parties may negotiate friendly to extend the delivery period to a reasonable extent or determine a new delivery period.
8.2 In case of delay of payment by Customer, Parties may negotiate friendly to extend the payment period to a reasonable extent, or determine a new payment period. If Parties fail to reach an agreement, then the payment period shall be extended by seven business days. In case Customer fails to complete the payment within the extended payment period, for each delayed day, Customer shall pay liquidated damages to Vadas at the rate of 0.5‱ of the unpaid price. Before Customer pays off all overdue payments, Vadas shall have the right to suspend the delivery of the follow-up products. Such suspension shall not prejudice Vadas’s other rights in accordance with law.
8.3 If either Party breaches other obligations or commitments under the Terms, the breaching party shall indemnify the non-breaching party for all claims, losses, damages, costs and expenses directly or indirectly suffered by the non-breaching Party as a result of the breach of contract.
9. Termination of Contract
9.1 The purchase order may be amended or terminated in writing after Parties reach a consensus through consultations. No amendment to purchase order shall be valid unless the amendment is made in writing and agreed by Parties.
9.2 Without prejudice to any other remedies available to the non-breaching party, the non-breaching party has the right to terminate the Terms and/or purchase order in whole or in part by the written notification to the breaching party if the breaching party has conducted any of the following behaviors:
(1) Fails to make delivery or payment within the period agreed by Parties, and fails to remedy such failure within the extended delivery or payment period provided herein;
(2) Fails to perform other obligations stipulated in the Terms, causing the purpose of the contract to be unable to be achieved;
(3) Exists any other breach of contract which could completely or partially terminate the Terms according to the laws and regulations.
9.3 Termination of the Terms shall not affect any provision hereof regarding dispute settlement and any other provisions hereof regarding the rights and obligations of Parties after termination of the Terms.
10. Force Majeure
10.1 Force Majeure means any event occurring after the signature of the Terms and impeding full or partial performance of the Terms by any party which is unforeseeable upon the signature of the Terms and the occurrence and consequences of which cannot be avoided or overcome. The events mentioned above include earthquake, typhoon, flood, fire, war, international or domestic transport interruption, epidemic, strike and other events which are accepted as force majeure under the PRC laws or general international business practice. The lack of funds of any party will not be considered as force majeure.
10.2 Consequences of Force Majeure:
(1) Upon the occurrence of an event of force majeure that affects the performance by a party of its obligations hereunder, such party may suspend its performance during the period of delay caused by such force majeure without being considered to have breached the Terms.
(2) The party claiming the occurrence of an event of force majeure shall promptly notify the other party in writing and provide sufficient evidence of the occurrence and duration of such event within 15 business days thereafter.
(3) If an event of force majeure occurs, the parties shall immediately consult with each other in order to find an equitable solution and shall make every reasonable effort to minimize the consequences of such force majeure.
(4) The liability for delay in payment of a monetary obligation shall not be excused by force majeure.
(5) Force majeure occurring during the period of delayed performance shall have no exonerating effect.
11. Dispute Resolution
11.1 The conclusion and interpretation of this agreement and disputes in connection with the Terms shall be governed by the laws of the PRC currently in force.
11.2 Any dispute arising from or in connection with the Terms shall be settled through friendly consultation between Parties or submitted to relative department for mediation. In case no settlement can be reached through consultation or mediation, the dispute shall be submitted the dispute to Shanghai Arbitration Commission for arbitration in Shanghai and the arbitration shall be conducted in accordance with its arbitration rules in force at the time; The arbitral award is final and binding upon Parties.
12. Others
12.1 For the Customer’ ease of understanding, Vadas may translate these Terms into any language and, in the event of any conflict or inconsistency between the Terms and the translated version, the Chinese version of theTerms shall prevail.
