General Terms and Conditions for Delivery and Installation
Version: First Edition, August 2020
I. Scope and Conclusion of Contract
These General Terms and Conditions for Delivery and Installation are the terms of Keller (Tianjin) Industrial Technology Co., Ltd. (hereinafter referred to as “we”, “us”, “our”). Our General Terms and Conditions for Delivery and Installation, in the version valid at the time of conclusion of each contract, shall apply to all our performances and deliveries (including but not limited to installation, commissioning, repair, maintenance and other services). In addition, services shall be subject to our fee schedule valid at the time of contract conclusion; in case of any conflict between the fee schedule and these General Terms and Conditions for Delivery and Installation, these General Terms and Conditions for Delivery and Installation shall prevail.
These General Terms and Conditions for Delivery and Installation are exclusively applicable terms. Terms of the Customer conflicting with or deviating from these Terms shall not be binding unless expressly confirmed by us in writing. These General Terms and Conditions for Delivery and Installation shall continue to apply even if we unconditionally execute a purchase order with knowledge of the Customer’s conflicting or deviating terms.
The products offered in our online store “Qlar Shop” (shop.qlar.com) are non‑binding offers only. The Customer’s click on the button “Order with payment obligation” constitutes a binding purchase offer for the products in the shopping cart and acceptance of these Terms. The automatic order confirmation sent by us upon receipt of the Customer’s order merely confirms the order details and receipt to the Customer and does not constitute acceptance of the Customer’s offer. The contract with us shall be formed only when we issue an acceptance in the form of a separate “Order Confirmation” email, or at the latest when we dispatch the ordered products. We shall accept the order by sending an Order Confirmation or dispatching the products within seven working days after receipt of the Customer’s order; if no acceptance is made within such period, the Customer’s order shall be deemed not accepted by us.
The contract shall take effect subject to the confirmation of cover under our commercial credit insurance.
Supplementary agreements and amendments shall take effect only upon our written confirmation; any waiver of this provision shall also be subject to this requirement.
Documents and information provided and produced by us (e.g., pictures, drawings, weight and dimension data) shall be binding only if expressly designated as part of the contract or specifically mentioned. Unless otherwise agreed, such documents are not guaranteed characterizations but merely descriptions and identifications of the subject matter of delivery or performance. Routine deviations, deviations required by law, deviations necessary for technical improvements, and replacement of original parts with equivalent parts shall be permitted provided that the purpose of the contract is not impaired.
We retain full ownership and copyright in samples, quotations, drawings, documents and other similar tangible or intangible information (including electronic form); the Customer shall not provide such information to third parties without our express written consent or in breach of the confidentiality agreement between the parties.
Unless otherwise agreed in individual contracts, written form as referred to in these Terms includes fax, electronic or text form.
These General Terms and Conditions for Delivery and Installation do not apply to consumers.
II. Prices and Payment
Unless otherwise agreed, our prices are EXW factory, including VAT at the applicable statutory rate, packaging and loading costs, in RMB.
a. For deliveries and services within China, the Customer shall promptly provide its VAT identification number before the contractual delivery date to prove its VAT exemption status; if the Customer fails to provide complete and timely information, we reserve the right to charge the applicable VAT.b. For deliveries and services outside China, we reserve the right to charge statutory VAT retroactively if the Customer fails to provide export certificates within one month after each shipment.Quotations shall be binding only if issued in text form.
Unless otherwise agreed, the Customer shall pay as follows: 30% upon order placement, 60% upon dispatch or confirmation of readiness for dispatch, and the balance upon transfer of risk.
Unless otherwise agreed, advance payment invoices, partial payment invoices and progress payment invoices shall be paid immediately, and the final invoice shall be paid within 10 days from the invoice date, without any discount.All payments shall be made directly to the account specified in the invoice without any deductions. Timeliness of payment shall be determined by the date of receipt in our bank account; cheques shall be deemed valid payment only upon clearance.
The Customer may only set off or deduct payments if the grounds and amount of such set‑off or deduction are undisputed, or if the counterclaim has been legally established or arises from the contract between the parties.
The Customer shall pay upon receipt of the invoice; failure to pay within 30 days after receipt of the invoice shall constitute late payment.
The prices stated in our offer shall apply only if the Customer orders the full scope of services offered.
Payment terms shall take effect only if the Customer has fulfilled its payment obligations for previous deliveries and services; otherwise, all invoice amounts shall become due and payable immediately.
III. Performance, Transfer of Risk and Acceptance
Partial deliveries and partial services may only be made if reasonable for the Customer.
The parties shall be deemed to have agreed to the application of Incoterms 2020. Unless otherwise agreed in writing, delivery shall be CPT: place of delivery Xiqing District, Tianjin; destination the Customer’s business premises. In case of any interpretive conflict between Incoterms 2020 and these Contract Terms, these Contract Terms shall prevail.
Risk shall pass to the Customer upon the subject matter of delivery leaving our premises, including in cases of partial delivery, where we bear transport costs or provide other services such as delivery and installation. If a formal acceptance procedure is required, risk shall pass upon completion of acceptance; acceptance shall take place promptly on the acceptance date or after we issue a notice of readiness for acceptance. The Customer may not refuse acceptance due to insignificant defects.
If dispatch or acceptance is delayed or fails to occur for reasons not attributable to us, risk shall pass upon our issuance of a notice of readiness for dispatch or readiness for acceptance. At the Customer’s request, we shall effect the relevant insurance at the Customer’s cost.
IV. Customer’s Obligation to Assist
The Customer shall, at its own expense, provide support for our personnel (e.g., installation, commissioning, repair, maintenance and service personnel) in performing the services.
The Customer shall take necessary personnel and property protection measures at the performance site and provide protective equipment if required.
The Customer shall inform our personnel of health and safety regulations relevant to our personnel and performance, and notify us of any breaches of such regulations by our personnel; for serious breaches, the Customer may prohibit the offending personnel from entering the performance site after consultation with us.
If services are to be performed abroad and our personnel require residence and/or work permits, the Customer shall assist us in applying for, extending or amending such permits with the local authorities as agreed in the individual contract.
V. Customer’s Technical Assistance Obligation
The Customer shall provide technical assistance at its own expense, in particular:
a. Provide qualified auxiliary personnel in the required quantity and for the required duration, who shall follow our instructions; we shall not be liable for auxiliary personnel, except that Chapter XI shall apply if defects or damage are caused by the auxiliary personnel following the instructions of our supervisory staff.b. Carry out all preparatory work, safety work and scaffolding, including procuring all necessary materials.c. Provide all necessary functional equipment, tools, lifting equipment and required supplies and materials.d. Provide heating, lighting, electricity, compressed air, water, operating power and required operating connections.e. Provide a dry and lockable room for our personnel to store tools.f. Transport spare parts to the performance site, protect the relevant premises and materials from damage of any kind, and clear the relevant premises.g. Provide materials required for calibrating the subject matter of delivery and performing contractually agreed tests, and carry out all necessary operations.The Customer’s technical assistance shall ensure that our personnel can commence services immediately upon arrival and proceed smoothly until acceptance by the Customer. We shall promptly provide the Customer with any special plans or instructions required by us.
If the Customer fails to perform this obligation, we reserve the right (but not the obligation) to perform the Customer’s relevant obligations on its behalf after notifying the Customer, at the Customer’s cost.
VI. Retention of Title
Title to the subject matter of delivery shall not pass until the Customer has paid in full. If the destination country imposes special conditions or formal requirements for the validity of retention of title, the Customer shall ensure that such requirements are met.
Before transfer of title, the Customer may not pledge, sell or charge the subject matter of delivery. If a third party distrains, seizes or otherwise disposes of the subject matter of delivery, the Customer shall inform the third party of our title and notify us in writing immediately.
If the Customer is in breach (including but not limited to late payment), we reserve the right to reclaim the subject matter of delivery after issuing a notice of breach, and the Customer shall return it. Our exercise of retention of title or seizure of the subject matter of delivery shall not constitute rescission of the contract.
If insolvency proceedings are applied for against the Customer’s assets, we reserve the right to rescind the contract and demand immediate return of the subject matter of delivery.
If the Customer’s domicile is in China, the following provisions shall also apply in addition to the above:
a. Notwithstanding Section VI.1, we retain title to the subject matter of delivery until the Customer has discharged all debts owed to us arising from the ongoing business relationship.b. Notwithstanding Section VI.2, the Customer shall be entitled to resell or process the subject matter of delivery under retention of title in the ordinary course of business, provided that: if the third‑party purchaser fails to pay the purchase price in full and on time, the Customer shall resell the subject matter of delivery under retention of title; the resale right shall lapse if the Customer is late in payment. Upon conclusion of the contract, the Customer assigns to us all claims arising from such resale or other legal grounds; in case of co‑ownership, the assignment shall be limited to the portion corresponding to our co‑ownership share.c. The Customer shall be entitled to collect the claims assigned to us during the term of its contractual payment obligations; we may at any time demand information about such claims and their debtors, and the Customer shall provide all information necessary for collection, submit relevant documents and notify the debtor of the assignment.d. Any processing of the subject matter under retention of title by the Customer shall be deemed to be carried out on our behalf. If the subject matter under retention of title is mixed, fused, combined or processed with other goods not owned by us, we shall acquire co‑ownership of the new goods in proportion to the invoice value of the subject matter under retention of title and the value of the other processed goods at the time of processing. If the subject matter under retention of title is mixed, fused, combined or processed with other movable property to form a single item and such other property is the principal item, the Customer shall be deemed to have agreed to transfer its title to the principal item to us in proportion; the Customer shall hold such title or co‑ownership in trust for us, and the new item formed by mixing, fusion, combination or processing shall be subject to the provisions applicable to the subject matter under retention of title.e. We agree to release the collateral in excess if the invoice value of the collateral securing our claims continuously exceeds our outstanding (remaining) claims by more than 10%.f. If our delivered items are attached to the ground or embedded in buildings, such attachment or embedding shall be for temporary purposes only.
VII. Delivery Date
Compliance with the agreed delivery and performance periods (collectively the “Performance Periods”) shall be subject to the resolution of all commercial and technical disputes and full performance of all the Customer’s obligations; otherwise the Performance Periods shall be extended accordingly, except where we are liable for the delay.
Compliance with the Performance Periods shall depend on the timely and correct supply by our suppliers; we shall notify the Customer of foreseeable delays.
Issuance of a notice of readiness for delivery before the expiry of the Performance Period shall constitute compliance with the Performance Period; if acceptance is required, the acceptance date or the date of our notice of readiness for acceptance shall apply.
If compliance with the Performance Period is prevented by force majeure, labor disputes, delays in governmental permits, travel warnings by the Ministry of Foreign Affairs or other events beyond our control, the Performance Periods shall be extended accordingly; the same shall apply to our delayed performance of services. We shall notify the Customer of foreseeable delays.
If dispatch or acceptance of the subject matter of delivery is delayed due to the Customer’s fault, the Customer shall bear all costs incurred thereby, and we reserve the right to claim further damages.
If the Customer fails to perform its obligations upon expiry of a reasonable period set for dispatch or acceptance, we reserve the right to dispose of the subject matter of delivery otherwise and supply the Customer within a reasonably extended period.
VIII. Delayed Delivery and Impossibility of Performance
In case of partial impossibility of performance, the Customer may only rescind the contract if it proves that partial performance is of no benefit to it; otherwise the Customer shall pay the contract price corresponding to the partial delivery, and Chapter XI shall apply in other respects. If impossibility results from the Customer’s delayed acceptance or fault, the Customer’s payment obligation shall remain.
If impossibility of performance is not attributable to either party, we shall be entitled to remuneration corresponding to the work already performed.
If we delay performance and cause damage to the Customer, the Customer shall be entitled to liquidated damages for delay. From the date we receive written notice of claim, liquidated damages shall be 0.5% of the contract price of the delayed part per week of delay, up to a maximum of 5% of such part.
If we delay performance, the Customer shall be entitled to rescind the contract in accordance with statutory provisions after granting a reasonable grace period which expires without performance (taking into account statutory exceptions). We may demand that the Customer state within a reasonable period whether it exercises the right of rescission.
Other claims relating to delay shall be governed exclusively by Chapter X.
IX. Acceptance
The work results provided by us shall be deemed accepted two weeks after we issue the notice of readiness for acceptance, unless the Customer notifies us in writing of material defects within such period.
The Customer may only refuse acceptance if the defects render the normal and/or contractually agreed use of the work results impossible or substantially reduce their value; acceptance shall be made subject to the reservation of defect rectification if the defects do not justify refusal of acceptance.
Refusal of acceptance or reservation of acceptance shall be made in writing in a timely manner, stating and describing the alleged defects.
Use of the subject matter of delivery by the Customer for production purposes shall constitute acceptance.
X. Defect Claims
Assertion of defect claims shall be subject to proper performance by the Customer of its inspection and defect notification obligations.
The Customer shall have the following claims for material and title defects:
a. If the subject matter of delivery is manifestly defective at the time of transfer of risk under Chapter III, we reserve the right to choose between supplying a defect‑free item or rectifying the defect.b. The Customer shall have no defect claims for defects caused by factors beyond our control, including but not limited to natural wear and tear, unsuitable construction sites, harmful environmental conditions unknown to us, chemical, electrochemical or electrical influences, and alterations to the subject matter of delivery without our consent.c. The Customer shall grant us the time and opportunity necessary for supplementary performance; we shall not be liable for consequences arising from failure to grant such opportunity. The Customer shall only be entitled to rectify defects itself or entrust a third party to do so and claim reimbursement of necessary costs from us in cases of imminent danger to operational safety or to prevent serious damage (and the Customer shall notify us immediately).d. If the claim is justified, we shall bear the costs of supplementary performance unless such costs would impose an unreasonable burden on us.e. If the Customer is at fault for the defect (in particular failure to fulfill obligations to prevent and mitigate damage), we shall be entitled to claim compensation from the Customer for damages corresponding to its fault after rectifying the defect.f. If a reasonable grace period for supplementary performance granted to us expires without performance (taking into account statutory exceptions), the Customer shall be entitled to rescind the contract; however, the Customer shall only be entitled to a reduction of the contract price in case of insignificant defects, and no price reduction shall be granted in other cases.g. For services (installation, commissioning, repair, maintenance and other services), Section XV.7 shall replace Section X.2(f).h. If use of the subject matter of delivery within the period specified in Chapter XIV infringes intellectual property rights or copyrights attributable to us, we shall use reasonable efforts to obtain for the Customer the right to continue use or modify the subject matter of delivery to eliminate the infringement; if this cannot be achieved under commercially reasonable conditions or within a reasonable time, both parties shall be entitled to rescind the contract. In the meantime, we shall compensate the Customer for losses incurred as a result of the intellectual property right holder asserting undisputed or legally established rights.i. Unless otherwise agreed in Chapter XI, our obligations under Section X.2(h) shall be the entire obligation in case of intellectual property right or copyright infringement.j. Supplementary performance for claims based on intellectual property right or copyright infringement attributable to us shall be justified only if: the Customer promptly notifies us in writing of the facts and details of the alleged infringement; all defensive measures (including out‑of‑court settlements) are reserved to us; the infringement is not caused by instructions or specifications provided by the Customer; and the infringement is not caused by unauthorized modification of the subject matter of delivery or use contrary to the contract by the Customer.Other defect claims (including but not limited to damages other than to the subject matter of delivery itself) shall be governed exclusively by Chapter XI.
Defect claims are excluded in sales of second‑hand goods, except as required by statutory liability.
XI. Limitation of Liability
If the Customer is unable to use the subject matter of delivery in accordance with the contract due to our negligent advice or consulting provided before or after conclusion of the contract, or due to our breach of other contractual ancillary obligations (in particular obligations relating to operating and maintenance manuals), Chapters X and XI.2–4 shall apply and all other claims of the Customer are excluded.
We shall only be liable for damages other than to the subject matter of delivery itself, regardless of legal basis, in the following cases: willful or gross negligence; negligence causing personal injury; fraudulent concealment of defects; breach of warranty; defects in the subject matter of delivery for which liability arises under the Product Quality Law for personal injury or property damage to items for private use.
We shall also be liable for negligent breach of material contractual obligations, but compensation shall be limited to typical and reasonably foreseeable damages under the contract.
All other claims are excluded.
XII. Export Control
Performance of contractual obligations (including supply of goods, software, technology and services) shall be subject to compliance with foreign trade rules of China, Europe or supranational organizations (UN/WTO), including export control regulations, embargoes, sanctions, customs regulations or similar restrictions.
The Customer acknowledges that the supplies and/or services may include hardware and software subject to customs and export control laws and regulations of the United States (regardless of location) and the country of manufacture and/or receipt of the goods.
The Customer warrants compliance with all applicable national, European or supranational (UN/WTO) foreign trade laws, including US export or re‑export control regulations, in particular when transferring the subject matter of delivery (including but not limited to software, technology and accompanying documents) or services to third parties.
If required licenses are not granted or competent authorities do not approve the contractual services, we reserve the right to rescind the contract without any claims for damages of any kind (including damages for delay or non‑performance) or other rights by the Customer.
The Customer shall defend, indemnify and hold us harmless from all fines, penalties, claims, actions, demands, liabilities, losses or costs (including legal fees) arising from actual or alleged breach of any national, European or supranational (UN/WTO) foreign trade laws in connection with the sale, delivery (including supply of software and technology) or performance of services.
XIII. Software
Software products of other suppliers included in the scope of delivery shall be governed primarily by such suppliers’ general terms; we shall provide such terms to the Customer upon request if not made available.
Our general terms supplement the software suppliers’ general terms, and Sections XIII.3–5 shall apply accordingly; if the software suppliers’ general terms are held invalid, only our general terms shall apply.
The Customer obtains a permanent, non‑exclusive, non‑sublicensable ordinary right to use our software products and related documentation.
We are generally not obliged to provide the source code on which the software products are based.
The Customer may only use our software products to the extent permitted by law; it may not remove or modify manufacturer’s product information (including but not limited to copyright notices) without our written consent.
XIV. Limitation Period
The Customer’s warranty period (right to claim defects) (regardless of legal basis) shall expire 12 months from the date the right arises, as shall recourse claims in the supply chain (except where the final contract in the supply chain is a consumer purchase contract), without prejudice to statutory provisions on suspension of limitation periods for recourse claims.
Statutory limitation periods shall apply to defects in buildings or subject matter of delivery normally used in buildings and causing defects in buildings.
Statutory limitation periods shall apply to claims for personal injury, claims related to gross negligence by senior executives or key managers, willful or fraudulent acts, and claims under the Product Quality Law.
XV. Provision of Services
The following provisions shall apply supplementarily to the provision of services (e.g., installation, commissioning, repair and other services):
If services cannot be provided for reasons not attributable to us, the Customer shall compensate us for services already provided and for time and costs incurred.
Upon conclusion of the contract, we shall inform the Customer of the estimated service price if possible; otherwise the Customer may set a cost limit.
Our consent shall be obtained if service costs exceed the agreed amount or we need to perform additional work during service provision, and the excess exceeds 15% of the agreed fee.
If the Customer requests a fixed‑price quotation before provision of services, such request shall be made explicitly; unless otherwise agreed, the quotation shall be binding only if issued in text form and quotation services shall be remunerated.
Replaced old parts shall become our property.
If the work results are lost or damaged before acceptance for reasons not attributable to us, the Customer shall pay the contract price minus our saved costs.
Service durations are estimates and non‑binding; only after the scope of work is clearly defined may the Customer request a binding service period to be agreed in writing (clearly marked). Compliance with the period shall be deemed achieved if the goods or services are ready for acceptance by the Customer or contractually agreed tests can be performed before the expiry of the binding service period.
In case of delayed performance, the Customer shall be entitled to demand a price reduction in accordance with statutory provisions after granting us a reasonable grace period which expires without defect rectification (taking into account statutory exceptions); the same shall apply to other cases of failed rectification. The Customer may only rescind the contract if it proves that rectification is still of no benefit to it after the price reduction.
If equipment or tools provided by us are damaged or lost at the repair/installation site for reasons not attributable to us during services provided outside our premises, the Customer shall compensate us, except for normal wear and tear.
Compliance with the service period shall be deemed achieved if installation work is ready for acceptance by the Customer or contractually agreed trial runs can be performed before the expiry of the service period. The Customer shall perform its acceptance obligation upon receipt of notice of completion of installation/services and completion of contractually agreed tests on the installation subject matter.
XVI. Recovery and Disposal of Electrical Equipment
The Customer shall bear the disposal obligation for products used for its commercial purposes, releasing us from recovery obligations and any claims by third parties in this regard.
The Customer’s right to demand that we assume disposal obligations and compensation shall expire one year after the equipment is finally taken out of use.
If the Customer transfers electrical equipment purchased from us to commercial third parties (regardless of legal basis), it shall ensure that the new user assumes the Customer’s disposal obligations under this contract.
If the Customer fails to impose and transfer the disposal obligation to commercial third parties to whom the subject matter is transferred, it shall, at its own cost, take back the electrical equipment after it is taken out of use and dispose of it properly in accordance with statutory provisions.
XVII. General Provisions
All taxes, fees and levies related to services provided outside China shall be borne by the Customer and reimbursed to us.
Storage of personal data complies with statutory provisions; details are set out in our privacy policy.
We do not refund return transport costs for packaging.
A handling fee of RMB 4,000 per model (product) shall be charged for verification and, if possible, issuance of preferential origin statements or certificates; no preferential origin statements or certificates shall be issued for spare part orders not exceeding RMB 30,000.00; if the Customer still requests verification and, if possible, issuance, a handling fee of RMB 1,800.00 shall be charged for spare part orders not exceeding RMB 30,000.00, and RMB 800.00 to RMB 1,800.00 for spare part orders exceeding RMB 30,000.00 according to workload (number of items).
The place of performance for the Customer’s obligations to us is our registered office.
Invalidity of individual provisions of these general terms shall not affect the validity of the remaining provisions.
XVIII. Applicable Law and Jurisdiction
If the Customer’s registered office is in China and the Customer is a merchant, a legal person under public law or a special fund under public law, the exclusive place of jurisdiction for all disputes relating to the contractual relationship (including disputes relating to deeds and bills of exchange) shall be our registered office.
If the Customer’s registered office is outside China, disputes shall be submitted to the China International Economic and Trade Arbitration Commission (CIETAC) for arbitration in accordance with its arbitration rules in force at the time, and the arbitral award shall be final and binding. Our insurer shall be entitled to participate in the arbitration in accordance with the rules applicable to court proceedings.
The laws of the People’s Republic of China shall apply.