PART I- GENERAL TERMS AND CONDITIONS
ACCEPTANCE, SCOPE AND STRUCTURE OF THESE TERMS
- These general terms and conditions of sale (“GTC”) apply to the sale of the Goods (as hereinafter defined) and Services (as hereinafter defined) as set out in the Quotation provided by the HUADA Pharma entity (“HUADA Pharma”), to which these terms are appended (the “Quotation”). The Quotation defines the Price, Delivery and any other special conditions which will apply. HUADA Pharma shall supply and the Customer (as hereinafter defined) agrees to purchase the Goods and (if applicable) the Services in accordance with and on the basis of these GTC which together with the Specifications (as hereinafter defined) and the Quotation constitutes “the Agreement”.
- The Agreement comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement prevails over any of Customer’s general terms and conditions of purchase regardless whether or when Customer has submitted such other terms. Fulfillment of Customer’s order does not constitute acceptance of Customer’s terms and conditions and does not serve to modify or amend this Agreement.
- These GTC contain three (3) parts (each, a “Part” and collectively the “Parts”). Part I contains “General Terms and Conditions,” which shall be applicable to all sales and purchases of Goods and Services. Part II of this Agreement contains “Terms and Conditions for Sale of Goods,” which shall be applicable to the purchases and sales of Goods, as the case may be, in addition to the provisions of Section I. Part III of this Agreement contains “Terms and Conditions Sale of Services,” which shall be applicable to purchases and sales of Services, as the case may be, in addition to the provisions of Section I.
- Any of the following shall constitute Customer’s unqualified acceptance of these GTC: (i) written acknowledgement of these GTC; (ii) issuance or assignment of a purchase order for the Good(s) or Services thereunder; (iii) acceptance of any shipment or delivery of Good(s) or provision of Services thereunder, including, in the case of Software, by downloading or installing the Software; (iv) payment for any of the Good(s) or Service(s); or (v) any other act or expression of acceptance by Customer. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods or Services covered by the Quotation, the terms and conditions in such contract shall prevail to the extent they are inconsistent with these GTC.
- No variation to these GTC shall be binding unless agreed in Writing between the authorized Representatives of the Customer and HUADA Pharma.
In these GTC:
“Affiliate” means any individual or entity directly or indirectly (i) controlling, (ii) controlled by, or (iii) under common control with the ultimate parent company of such Party. For purposes of this definition, “control” means the direct or indirect ownership of more than fifty percent (50%) of the outstanding voting rights, or the right to control the policy decisions of the respective entity.
“Business Day” means any day other than a Saturday, Sunday or any day which is a federal legal holiday or any day on which banking institutions are authorized or required by law or other governmental action to close.
“Confidential Information” means any information disclosed in writing, orally, electronically or in any other form (tangible or intangible) that is confidential or proprietary in nature concerning the other Party and/or its Affiliates, including, without limitation, any details of its business, affairs, customers, clients, suppliers, plans, strategy or products (either existing or under development).
“Consumables” mean the disposable supplies or consumable products which HUADA Pharma is to supply in accordance with this Agreement.
“Customer” means the person or entity who accepts the Quotation of HUADA Pharma for the sale of the Goods or Services, or whose order for the Goods or Services is accepted by HUADA Pharma.
“Delivery Location” means the location specified in the Quotation to which HUADA Pharma shall procure the delivery of the Goods.
“Equipment” shall means the equipment for the biopharmaceutical, chemical, food and beverage industries and/or academic sector, which HUADA Pharma is to supply and install in accordance with the Agreement.
“Force Majeure” means any event outside the reasonable control of either Party and shall include, without limitation, war, threat of war, revolution, terrorism, riot or civil commotion, strikes, lockout or other industrial action, blockage or embargo, acts of or restrictions imposed by Government or public authority (including but not limited to shelter-in-place orders), failure of supply of water, power, fuels, transport, equipment or other deliverables or services, explosion, fire, radiation, flood, natural disaster or adverse weather conditions, pandemic, epidemic, or Acts of God.
“Goods” means the goods (including any installment of the goods or any parts for them) which HUADA Pharma is to supply in accordance with this Agreement and shall include, where the context so requires, Consumables, Equipment, instrument System, and/or Software.
“Goods Warranty Period” shall mean the period which begins on the Goods delivery date to the Delivery Location and ends ninety (90) days after the delivery date; or, in the case of Consumable, ends the earlier of: (i) ninety (90) days after the delivery date; or (ii) the expiration of the shelf life of such Consumable. If the Goods delivered are devices HUADA Pharma or its contractors installs at the Customer site, the warranty period starts at the time of completion of installation, but in no event later than two (2) months after delivery.
“GTC” means the standard terms and conditions set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Customer and HUADA Pharma. “Intellectual Property” means patents, patent applications, designs, Inventions (as hereinafter defined), invention disclosures, trade secrets, knowhow, registered and unregistered copyrights, works of authorship, computer software programs, data bases, trademarks, service marks, trade names and trade dress and any similar proprietary rights and any licenses or user rights related to the foregoing.
“Invention” means any new device, design, product, computer program, article, method, process, or improvement or alteration thereon, whether or not patentable, copyrightable, and protectable under any applicable mask works law, protectable as a trade secret or protectable under any similar law.
“Object to Be Serviced” means any object on which the Services are to be performed, including, but not limited to, Goods.
“Price” means the price for the Goods determined in accordance with the Quotation and “Prices” shall be interpreted accordingly.
“Quotation” means the Quotation prepared by HUADA Pharma and issued to the Customer.
“Representatives” means HUADA Pharma and Customer’s respective employees, agents, consultants, officers, subcontractors and Affiliates.
“Services” means the repairs, preventative maintenance, relocations, retrofits, upgrades, installations, calibrations and validation services, together with any spare parts utilized in connection with the foregoing, in connection with Goods and other objects.
“Services Warranty Period” means the period which begins on the day of completion of performance the Services and ends ninety (90) days later or such longer period as may be specified by HUADA Pharma to Customer in Writing in the Quotation.
“Software” means any proprietary software developed by HUADA Pharma to implement the specified functionality but excludes operating systems, networking software, standard database packages, standard peripheral interface software and any third-party software. “Specification” means the description of the Goods and/or Services and attached to the Quotation or otherwise provided to the Customer by HUADA Pharma in Writing.
“System” means Goods which include the physical equipment HUADA Pharma is to supply in accordance with this Agreement together with (to the extent applicable) the Software and any other deliverables specified in the Quotation.
“Term” means the period beginning on Customer’s unqualified acceptance of these GTC, through the earlier of: (i) the time period set forth in the Quotation or (ii) as set forth in the key code if HUADA Pharma is licensing a Software.
“Writing” means any written communication by letter or by e-mail.
Any reference in these GTC to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
The headings in these GTC are for convenience only and shall not affect their interpretation.
BASIS OF THE SALE
- HUADA Pharma shall sell and the Customer shall purchase the Goods or Services in accordance with any written Quotation of HUADA Pharma which is accepted by the Customer, or any written order of the Customer which is accepted in Writing by HUADA Pharma, subject in either case to these GTC, which shall govern the Agreement to the exclusion of any other terms and conditions subject to which any such Quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Customer. Oral agreements shall only become valid when HUADA Pharma confirms the same in Writing.
- HUADA Pharma employees or agents are not authorized to make any representations concerning the Goods or Services unless confirmed by HUADA Pharma in Writing. In entering into the Agreement, the Customer acknowledges that it does not rely on, and waives any claim for breach of any such representations which are not so confirmed.
- Any advice or recommendation given by HUADA Pharma or its employees or agents to the Customer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by HUADA Pharma is followed or acted upon entirely at the Customer’s own risk, and accordingly HUADA Pharma shall not be liable for any such advice or recommendation which is not so confirmed. Marketing and other promotional material relating to the Goods or Services are illustrative only and do not form part of the Agreement. The Customer agrees that, in submitting an order, it has not relied on any representation or statements by HUADA Pharma other than those expressly set out in the Agreement.
- Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, acceptance of offer, invoice or other document or information issued by HUADA Pharma, including HUADA Pharma’s website, shall be subject to correction without any liability on the part of HUADA Pharma.
- HUADA Pharma does not represent, warrant or undertake that all of the Goods will be available for order at all times, or until an order is accepted, that HUADA Pharma can supply the volumes requested.
- No order which has been accepted by HUADA Pharma may be canceled by the Customer except with the agreement in Writing by HUADA Pharma and on terms that the Customer shall indemnify HUADA Pharma in full against all loss (including loss of profit), costs (including the cost of all labor and materials used), damages, charges and expenses incurred by HUADA Pharma as a result of cancellation.
- HUADA Pharma’ Quotation that do not include any acceptance deadline may be revoked by HUADA Pharma unless HUADA Pharma receives written confirmation of acceptance by the Customer within three (3) weeks with effect from the Quotation date.
- The Price shall be as stipulated in the Quotation, or in the event of the Quotation being silent on the matter, in accordance with the then current list prices of HUADA Pharma.
- Except as otherwise stated under the terms of any Quotation and unless otherwise agreed in Writing between both the Customer and HUADA Pharma, all Prices are given by HUADA Pharma on a F.O.B. INCOTERMS 2020 basis.
- All Prices are exclusive of Value Added Tax (or equivalent sales tax) sales, withholding or other tax (other than income tax to which HUADA Pharma may be subject), which shall be payable in addition by the Customer. If any amount due under the Agreement is subject to such Value Added Tax, sales, withholding or any other tax which has the effect of reducing the amount of money which HUADA Pharma would have been entitled to receive or retain from the Customer under the Agreement but for such tax, the Customer will, at HUADA Pharma’s request, pay to HUADA Pharma such additional sum at the rate for the time being prescribed by law for that tax. Customers within the EU shall be obligated to indicate their Value Added Tax identification number.
- The Price set forth in the Quotation includes the cost of labor, travel and parts, provided that the Service is performed during the hours covered in these GTC. Charges for services or goods not covered by the Agreement will be invoiced separately at the time of occurrence or delivery and at the prevailing rates.
TERMS OF PAYMENT
- Subject to any additional or other terms agreed in Writing by the Customer and HUADA Pharma, HUADA Pharma shall be entitled to invoice the Customer for the Price of the Goods and Services on or at any time after delivery of the Goods or performance of the Services. Notwithstanding the foregoing, in the event the Goods are to be picked up by the Customer or the Customer does not accept delivery of the Goods in accordance with the Quotation, in addition to the Price outlined in the Quotation, HUADA Pharma shall be entitled to invoice the Customer for:
- a stocking fee, which may amount ten percent (10%) of the Price, per month and for a maximum of two (2) months, after HUADA Pharma has first notified the Customer that the Goods are ready for collection or (as the case may be) HUADA Pharma has tendered delivery of the Goods;
- the Price of the Goods if, two months after HUADA Pharma has first notified the Customer that the Goods are ready for collection or (as the case may be) HUADA Pharma has first tendered delivery of the Goods, the Goods are still stored by HUADA Pharma.
- The Customer shall pay the Price in the invoicing currency within 30 days of the date of HUADA Pharma’s invoice, subject to credit approval, TIME BEING OF THE ESSENCE, notwithstanding that delivery or performance may not have taken place and the property in the Goods has not passed to the Customer.
- If the Customer fails to make any payment on the due date then, without prejudice to any other right or remedy available to HUADA Pharma, HUADA Pharma shall be entitled to: (i) cancel the Agreement or suspend any further deliveries or performance to the Customer; and (ii) charge the Customer interest (both before and after any judgement) on the amount unpaid, at a varying rate of the lesser of (y) two percentage points per annum above the prime (sometimes called base) rate of interest announced by Bank of America., from time to time and (z) the maximum rate of interest allowed by law.
- All payments shall be paid in full and cleared funds without any deduction or set-off or counter claim in accordance with the payment terms on the Quotation.
- HUADA Pharma may require from the Customer that the latter provide as security for payment, two (2) weeks before the delivery date, an irrevocable and confirmed letter of credit, a banker’s bond or a bank guarantee. The assertion of any rights of retention or offsetting any Customer counterclaims that are not acknowledged by HUADA Pharma, have not been established by final court decision and/or are not yet ready for a decision in a legal dispute shall not be permitted.
- HUADA Pharma is not obliged to accept any checks or bills of exchange as method of payment. Acceptance of such payment methods must be agreed upon beforehand and shall occur in any case only on account of performance and will not be considered as performance in full discharge of an obligation. Any related costs will be borne by Customer. Credit notes from checks and bills of exchange will occur by deducting any costs and subject to receipt at the value on the day HUADA Pharma has access to the equivalent value.
- Except in respect of death or personal injury caused by HUADA Pharma’s negligence, HUADA Pharma shall not be liable to the Customer by reason of any representation, or any implied warranty, condition or other term or any duty, or under the express terms of the Agreement, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of HUADA Pharma, its employees, Affiliates or agents or otherwise) which arise out of or in connection with the execution of the Agreement, except as expressly provided in these GTC.
- HUADA Pharma shall not be liable for the correct choice of Goods for the purpose intended in the individual case and for the correct linkage of such Goods to one another or to items of the Customer. This shall be the sole responsibility of the Customer or of such person who links and installs the Goods on behalf of Customer. HUADA Pharma disclaims any and all liability for faulty and/or false connections of Goods and for any use that is non- compliant to applicable law in the country of use.
- HUADA Pharma shall not be liable to the Customer or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of HUADA Pharma’s obligations under the Agreement, if the delay or failure was due to any Force Majeure event.
- To the fullest extent permitted by law, and notwithstanding anything contained in the agreement to the contrary, HUADA Pharma total aggregate liability under, or in connection with this agreement, whether arising in tort (including negligence), contract (including obligations of indemnity) or in any other manner will not exceed, in total, the lesser of: i) customer actual direct damages; or ii) the price which customer has paid HUADA Pharma for the goods or services giving rise to such claim.
- Without prejudice to clause 7(i) HUADA Pharma shall not be liable to the customer for any loss of profit or revenues; (ii) loss of or damage to data or information systems; (iii) loss of contract or business opportunities; (iv) loss of anticipated savings; (v) loss of goodwill; or (vi) any indirect, special or consequential loss or damage.
- Neither Party will be liable to the other for any breach of this Agreement to the extent that such breach is caused by a breach of this Agreement by the other Party.
- HUADA Pharma shall have no liability whatsoever for any damages suffered, directly or indirectly, by any person as a result of (i) the operation or the use of Goods in combination with any other hardware or software not supplied by HUADA Pharma; (ii) any modification to the Goods or any of its components, including without limitation, the Software, made by the Customer or any third party; (iii) use of any third party software provided by HUADA Pharma hereunder; and/or (iv) any words, description, trademarks, devices and other matters printed on the Goods at the Customer’s request or in accordance with the Customer Specification.
- n the event that the Goods supplied under this Agreement are Goods which form a System, the Customer shall indemnify and hold HUADA Pharma harmless from and against any claim or threatened claim for damages, penalties, costs and expenses (including reasonably attorneys’ fees) arising, directly or indirectly from (i) the manufacture, use, sale, distribution, marketing or commercial exploitation of any pharmaceutical product or other substance or derivation by the Customer using the System; or (ii) modification of the System by the Customer or any third party.
- Save where HUADA Pharma or its Representatives are negligent, the Customer shall hold HUADA Pharma and it Representatives harmless from all claims against HUADA Pharma brought by the Customer’s own representatives resulting from personal injury or death or loss of property which arise whilst at HUADA Pharma’ premises or while the Customer’s Representatives are interfacing with, or assisting HUADA Pharma in its work (if any) at the Customer’s site.
- This Agreement may be terminated immediately by either Party serving notice in Writing to the other Party where the other Party: (i) commits a material breach of this Agreement and such breach, if remediable, is not remedied within twenty (20) Business Days of receiving written notice to do so; or (ii) becomes insolvent or becomes the subject of any proceeding under any bankruptcy, insolvency or liquidation law, or is otherwise unable to pay its debts as they generally become due; or (iii) becomes subject to property attachment, court injunction or court order which has a material adverse effect on its operations; or (iv) makes an assignment for the benefit of its creditors otherwise than pursuant to the provision of finance or credit in the ordinary course conduct of its ongoing business or is petitioned into bankruptcy; or (v) conducts a material change in its management or control.
- If this clause applies then, without prejudice to any other right or remedy available to HUADA Pharma, HUADA Pharma shall be entitled to cancel the Agreement or suspend any further deliveries or performances under the Agreement without any liability to the Customer, and if the Goods have been delivered and/or the Services performed but not paid for, the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
- Customer agrees to indemnify, defend and hold harmless HUADA Pharma from and against any and all costs, losses, expenses, damages, claims, liabilities or fines, including, but not limited to, reasonable attorneys’ fees and court costs, resulting from or arising in connection with (i) any claim of infringement of any patent or other proprietary rights of any person or party to the extent that the Goods were manufactured pursuant to Specifications supplied or required by Customer; or (ii) any and all actual or alleged injuries to, or deaths of, persons and any and all damage to, or destruction of, property arising directly or indirectly from or relating to the Goods sold pursuant to the Agreement, or any products or items manufactured using such Goods, or relating to the products items or equipment serviced under the Agreement, except for such costs, losses, expenses, damages, claims, liabilities or fines which directly are caused by or result from HUADA Pharma’ willful misconduct or negligence; or (iii) the negligence and/or willful misconduct of Customer, its employees or agents.
- HUADA Pharma agrees to defend and indemnify Customer and hold Customer harmless from and against any and all costs, losses, expenses, damages, claims, liabilities or fines, including, but not limited to, reasonable attorneys’ fees and court costs, resulting from or arising in connection with the negligence and/or willful misconduct of HUADA Pharma, its employees or agents.
The Customer shall maintain, at its own cost and expense, comprehensive general liability insurance, including product liability insurance, property damage insurance, public liability insurance, completed operations insurance and contractual liability insurance, designating HUADA Pharma an additional insured, and maintain such coverage and limits in commercially reasonable amounts. Customer shall further maintain, at its own cost an expense, workmen’s compensation insurance and any other insurance required by law, in commercially reasonable amounts. Customer shall, promptly upon HUADA Pharma’ written request, furnish to HUADA Pharma certificates of insurance evidencing the coverages, limits and expiration dates of the respective insurance policies.
The Customer and HUADA Pharma shall comply with all applicable national and international laws and regulations, in particular the applicable export control regulations and sanction programs. The Customer also agrees not to export, re-export or transfer any software or technology developed with or using information, Software or technology offered by HUADA Pharma, in violation of any applicable laws or regulations of the competent authorities. Further, the Customer shall neither use any Goods, Service, information, Software and technology offered by HUADA Pharma in or in connection with nuclear technology or weapons of mass destruction (nuclear, biological or chemical) and carriers thereof nor supply military consignees.
Goods may be subject to international and national export restrictions. Acceptance and delivery of the order will be done in strict compliance with the appropriate legal provisions and embargo regulations. Acceptance and execution of orders for Goods requiring approval is subject to the issue of applicable export licenses by the relevant country authorities . In case Goods require approval, HUADA Pharma requires an appropriate End-User-Declaration from the end user stating the precise use of the Goods and including an informative company profile. Goods will be supplied exclusively for civil and peaceful purposes. With the purchase order, the Customer agrees to comply with all applicable laws and to provide all requested information and data in a timely manner to obtain the necessary documents.
Pharmaceuticals, Cosmetics, Food: For Customers in pharmaceutical, cosmetic and/or food industries, it is expressly understood and agreed that Customer shall be solely responsible for complying with laws, regulations and practices applicable to its industry, including but not limited to medical requirements, general manufacturing practice guidelines and applicable laws, orders and other provisions
Data protection: HUADA Pharma will request, process and use personal data from Customer to manage Customer’s requests, claims, orders or repairs and for the continuing relationship management to Customer. For all cases involving a transfer of personal data, HUADA Pharma will ensure compliance with data protection regulations. Furthermore, HUADA Pharma will transfer these data to authorities, if there is an existing legal obligation for HUADA Pharma to do so. Individuals have the right to access their data processed by HUADA Pharma and have such data updated. Subject to the legal requirements of data protection laws, individuals may also require that their data be deleted or blocked.
Anti Corruption Laws, U.S. Foreign Corrupt Practices Act and UK Bribery Act: Customer acknowledges that: HUADA Pharma may be subject to the provisions of the Foreign Corrupt Practices Act of 1977 of the United States of America, 91 Statutes at Large, Sections 1495 et seq. (the “FCPA”); and, (b) HUADA Pharma may be subject to other bribery and corruption laws, including without limitation the UK Bribery Act and local laws for the jurisdictions covered thereunder. Customer further acknowledges that it is familiar with the provisions of the FCPA, the UK Bribery Act and applicable local bribery and corruption laws, and shall not take or permit any action that will either constitute a violation under, or cause HUADA Pharma to be in violation of, the provisions of the FCPA, the UK Bribery Act or applicable local bribery and corruption law.
- Any notice required or permitted to be given by either party to the other under these GTC shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
- No waiver by HUADA Pharma of any breach of the Agreement by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
- If individual provisions of these GTC are or become fully or partially ineffective, the remaining provisions of the GTC shall not be affected thereby. This also applies if an unintended omission is found in the Agreement. A fully or partially ineffective provision shall be replaced or an unintended omission in the GTC shall be filled by an appropriate provision which, as far as is legally possible, most closely approximates to the original intention of the contractual parties or to what they would have intended according to the meaning and purpose of these GTC had they been aware of the ineffectiveness or omission of the provision(s) in question.
- The Agreement shall be governed by the laws of New York excluding its provisions governing conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of April 11, 1980 shall not apply. Customer and HUADA Pharma hereby unconditionally and irrevocably submit to (and waive any objection on the grounds of inconvenient forum or otherwise) the jurisdiction of the Supreme Court of the State of New York, County of Suffolk or the United States District Court for the Eastern District of New York, which courts shall have exclusive jurisdiction to adjudicate and determine any suit, action or proceeding regarding or relating to this Agreement.
- Each party undertakes that it will keep any Confidential Information confidential and it will not use or disclose the other Party’s Confidential Information to any persons except that it may (i) disclose such Confidential Information to any of its Representatives who need to know the same for the purposes of performing any obligation under this Agreement, provided that such party must ensure that each Representative to whom Confidential Information is disclosed is aware of its confidential nature and agrees to comply with this clause as if it were a party; (ii)disclose any Confidential Information as may be required by law, any court or governmental regulatory or supervisor authority or any other authority of competent jurisdiction. Each party acknowledges that damages alone will not be an adequate remedy for any breach or violation of its obligations of this section and that, in addition to all other remedies to which the other party may be entitled under the Agreement or otherwise, such other party will be entitled to seek injunctive relief, including specific performance with respect to said obligations.
- Orders are not assignable or transferable, in whole or in part, without the express written consent of HUADA Pharma.
- Any marketing, promotion or other publicity material, whether written or in electronic form, that refers to HUADA Pharma, its Affiliates, its products, or to these GTC must be approved by HUADA Pharma prior to its use or release.
- HUADA Pharma, or its Affiliates, is the owner of certain proprietary brand names, trademarks, trade names, logos and other intellectual property. Except as otherwise expressly permitted by HUADA Pharma, no use of HUADA Pharma’s or its Affiliates’ brand names, trademarks, trade names, logos or other intellectual property is permitted, nor the adoption, use or registration of any words, phrases or symbols so closely resembling any of HUADA Pharma’ or its Affiliates’ brand names, trademarks, trade names, logos or other intellectual property as to be apt to lead to confusion or uncertainty, or to impair or infringe the same in any manner, or to imply any endorsement by HUADA Pharma of another entity’s products or services allowed.
- Nothing in this Agreement shall be deemed to constitute a partnership between the parties or to make either party the agent of the other party for any purpose. Furthermore, each of the parties shall remain solely responsible for its own acts, statements, engagements, performances, products (in the case of HUADA Pharma subject to the other terms of these GTC in relation to the Goods and Services), and personnel.
- Nothing in this document is intended to create any rights in third parties against HUADA Pharma.
- No jury trial: customer and HUADA Pharma each hereby irrevocably waives all right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this agreement.
PART II- TERMS AND CONDITIONS FOR SALE OF GOODS
If Customer is purchasing Goods from HUADA Pharma, the following provisions shall exclusively apply in relation to the purchase and sale of Goods, and Goods only, in addition to the provisions of Part I of these GTC:
- The Customer shall be responsible to HUADA Pharma for ensuring the accuracy of the terms of any order (including any applicable Specification) submitted by the Customer (“Customer Specification”), and for giving HUADA Pharma any necessary information relating to the Goods within a sufficient time to enable HUADA Pharma to perform the Agreement in accordance with its terms
- The quantity, quality and description of and any Specification for the Goods shall be those set out in HUADA Pharma’ Quotation.
- HUADA Pharma reserves the right to make any changes (i) in the Specification or, if applicable Customer Specification of the Goods which are required to conform with any applicable safety or other statutory requirements; and/or (ii) where the Goods are to be supplied to HUADA Pharma’s Specification, to the components, functionality or performance characteristics of the Goods supplied under an order already in place, provided that the Goods continue to conform in all material respects with the Specification or Customer Specification in force at the time of the order.
The Goods will be delivered to the Delivery Location on or before the dates specified in the Quotation. HUADA Pharma shall notify the Customer in Writing as soon as reasonably practicable on becoming aware that a delay in delivery is likely and will provide a revised estimate, if possible. The Goods may be delivered by installments. Any delay in delivery or defect in an installment will not entitle the Customer to cancel any other installment or the Agreement. Unless the Parties otherwise agree, packaging material is to be disposed of by the Customer at the Customer’s expense.The Products will be shipped to the destination specified by Customer, F.O.B. Seller’s shipping point. Seller will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Delivery of all orders will be FCA (INCOTERMS 2000). Shipping and handling fees, special packaging materials (e.g., blue ice), carrier surcharges and hazardous material fees imposed by government regulation will be added separately to the invoice. Seller reserves the right to stop delivery of Products in transit and to withhold shipments in whole or in part if Customer fails to make any payment to Seller when due or otherwise fails to perform its obligations hereunder. All shipping and delivery dates are approximate only, and Seller will not be liable for any loss or damage resulting from any delay in delivery or failure to deliver which is due to any cause beyond Seller’s reasonable control. In the event of a delay due to any cause beyond Seller’s reasonable control, Seller reserves the right to terminate the order or to reschedule the shipment within a reasonable period of time, and Customer will not be entitled to refuse delivery or otherwise be relieved of any obligations as the result of such delay.
RISK AND PROPERTY
- Risk of damage to or loss of the Goods shall pass to the Customer: (i) in the case of Goods to be delivered at HUADA Pharma’s premises, at the time when HUADA Pharma notifies the Customer that the Goods are available for collection; or (ii) in the case of Goods to be delivered otherwise than at HUADA Pharma’s premises, at the time of delivery or, if the Customer wrongfully fails to take delivery of the Goods, the time when HUADA Pharma has tendered delivery of the Goods.
- Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until HUADA Pharma has received in cash or cleared funds payment in full of the Price of the Goods.
- Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Customer until HUADA Pharma has received in cash or cleared funds payment in full of the Price of the Goods.
- Until such time as the property in the Goods passes to the Customer, the Customer shall hold the Goods as HUADA Pharma’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Customer and third parties and properly stored, protected and insured and identified as HUADA Pharma’s property and take all reasonable care of the Goods and keep them in the condition in which they were delivered and inform HUADA Pharma immediately if it becomes subject to any insolvency type event and permit, upon reasonable notice, HUADA Pharma to inspect the Goods during the Customer’s normal business hours and provide HUADA Pharma with such information concerning the Goods as HUADA Pharma may request from time to time. Until such time as the Customer becomes aware or ought reasonably to have become aware that an insolvency type event has occurred or is likely to occur, the Customer shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to HUADA Pharma for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Customer and third parties and, in the case of tangible proceeds, properly stored, protected and insured. If the Customer resells the Goods in accordance with the foregoing, title shall pass to the Customer immediately prior to the resale. If, at any time before title to the Goods has passed to the Customer, the Customer informs HUADA Pharma, or HUADA Pharma reasonably believes, that the Customer has or is likely to become subject to an insolvency type event, HUADA Pharma may (i) require the Customer to re-deliver the Goods to HUADA Pharma (at the expense of the Customer if so requested by HUADA Pharma); and/or (ii) if the Customer fails to do so promptly, enter any premises where the Goods are stored and repossess them.
- Until such time as the property in the Goods passes to the Customer (and provided the Goods are still in existence and have not been resold), HUADA Pharma shall be entitled at any time to require the Customer to deliver up the Goods to HUADA Pharma and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
- The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of HUADA Pharma, but if the Customer does so all moneys owing by the Customer to HUADA Pharma shall (without prejudice to any other right or remedy of HUADA Pharma) forthwith become due and payable.
WARRANTIES AND REMEDIES
- Subject to the conditions set out herein, HUADA Pharma warrants that the Goods, under normal usage and with regular recommended Service will be free from defects in material and workmanship and that, at the time of delivery, the Goods will perform substantially in accordance with the Specifications issued by HUADA Pharma for the applicable Goods. HUADA Pharma’s entire liability for a breach of this warranty shall be for HUADA Pharma, at its option and cost, to repair the affected Good(s). Customer shall serve written notice to HUADA Pharma (i) in the case of defects discoverable by a physical inspection, not later than five (5) Business Days from the arrival of the Goods at the Delivery Location; or in the case of latent defects, within a reasonable period of time from arrival of the Goods at the Delivery Location, that some or all of the Goods do not comply with this clause 16(a) and shall identify in sufficient detail the nature and extent of the defects and comply with any returns policy of HUADA Pharma as may be provided to the Customer from time to time. The Customer will be deemed to accept the Goods if it does not notify HUADA Pharma of any failure of the Goods to comply with this clause 16(a) within the time periods set out above. This warranty shall be void if (i) the Goods are used after Customer notifies HUADA Pharma that such Goods do not comply with this clause 16(a), or (ii) Customer fails to pay the total Price for the Goods by the due date for payment.
- The above warranty does not cover claims that arise from: (i) any drawing, design, arrangement or Specification supplied by the Customer; (ii) normal wear and tear, accident, repair, neglect, or willful damage by Customer or any third party or use of the Goods outside the Specifications; (iii) the use, modification or combination of the Goods with any third party items or services or other causes beyond HUADA Pharma’s control; (iv). Supplier shall have no obligation for (1) Software installed or used beyond the licensed use, or (2) Equipment whose original identification marks have been altered or removed. The above warranty does not extend to parts or materials not manufactured by HUADA Pharma, in respect of which the Customer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to HUADA Pharma. HUADA Pharma shall be under no liability under the above warranty (or any other warranty, condition or guarantee) where such failure arises as a result of damage or loss which occurs after risk in the Goods has passed to the Customer.
- Other than the warranties set forth this clause 16, and to the maximum extent permitted by applicable law, HUADA Pharma: (i) makes no other express warranties; (ii) disclaims all implied warranties, including merchantability and fitness for a particular purpose; and disclaims any warranty arising by statute, operation of law, course of dealing, or performance or usage of trade.
- Notwithstanding any other provision of this Agreement or termination or expiration of this Agreement, HUADA Pharma shall own all right, title, and interest in and to all Intellectual Property related to the Goods owned or controlled by HUADA Pharma as of the Quotation date, and all Intellectual Property that is developed by HUADA Pharma thereafter, provided, that it does not exclusively rely upon or materially utilize: (i) the Confidential Information of Customer; or (ii) Intellectual Property owned by Customer. Except as otherwise expressly provided herein to the contrary, these GTC do not transfer, assign, lease or license to Customer, or otherwise provide Customer with any rights or interests in or to any Intellectual Property owned by HUADA Pharma. Procurement and maintenance of copyright or Intellectual Property related to the Goods or any other proprietary rights relating to any technology, including any Invention owned by HUADA Pharma shall be carried out or pursued at the discretion and expense of HUADA Pharma.
- Should the Goods, or any part thereof, become, or in HUADA Pharma’s opinion be likely to become, the subject of any claim of infringement, the Customer shall permit HUADA Pharma, at HUADA Pharma’s option and expense, to either (i) procure for the Customer the right to continue using the same; or (ii) replace or modify the Goods (or the affected parts or elements thereof) to render it or them non-infringing, provided that such replacement and/or modification do not materially affect the functionality or efficiency of the Goods. HUADA Pharma’s obligations under this clause will not apply to Goods modified or used by the Customer other than in accordance with the Agreement or HUADA Pharma’ instructions. The Customer will indemnify HUADA Pharma from and against all losses, damages, liability, costs and expenses incurred by HUADA Pharma in connection with any claim arising from such modification or use.
- In relation to trademarks affixed to or incorporated within the Goods, use of the trademarks will be in accordance with this Agreement and with HUADA Pharma’s (or licensor’s) brand guidelines (if any) supplied to the Customer from time to time and all goodwill associated with the use of trade marks will accrue to the benefit of HUADA Pharma (or its licensor) and at the request of HUADA Pharma, the Customer will at its own cost, sign all documents and do all things necessary to assign such goodwill to HUADA Pharma or HUADA Pharma’s licensor as the case may be. The Customer undertakes not to apply to register or register the same trademark or any confusingly similar mark or procure or assist someone else to do so and except to the extent authorized by HUADA Pharma in writing, the Customer will not alter or remove such trademark from the Goods.
SYSTEMS AND SOFTWARE
If Customer is licensing Software from HUADA Pharma, including software licensed in connection with the purchase of any Goods and any and all other software or firmware embedded in, loaded on, or otherwise associated with the purchased Goods, the following additional provisions shall apply:
- HUADA Pharma grants Customer the non-exclusive right and license to use the copy of the Software in object form that is on the readable computer media provided to Customer by HUADA Pharma.
- The Software and related copyrights are owned by HUADA Pharma, by an Affiliate of HUADA Pharma, and/or by certain suppliers of HUADA Pharma and its Affiliates, and title to the Software in general or respective copyrights shall not pass to Customer as a result of Customer’s use of the Software. The license rights granted herein may not be transferred to another party without the written permission of HUADA Pharma.
- The Software is protected by the respective national copyright laws and international treaties and Customer shall not copy it or allow it to be copied except that Customer has the right to (i) make such copies that are necessary for the use of the Software by Customer in accordance with its intended purpose, including for error correction, or (ii) to duplicate the Software for backup or archival purposes and to transfer the Software to a backup computer in the event of computer malfunction.
- Customer shall (i) not use the Software and associated documentation for human in-vitro diagnostic applications, (ii) not use the Software other than with the purchased Goods or for any purpose outside the scope of the application for which it is being provided, and (iii) not cause or permit the reverse engineering, disassembly, decompilation, modification or adaptation of the Software or the combination of the Software with any other software unless, but only to the extent, indispensable to obtain the information necessary to achieve the interoperability of the Software with other programs provided the information necessary to achieve interoperability has not previously been readily available to Customer, and (iv) not move the Software to any country in violation of any applicable import or export control regulations. The Customer undertakes to refrain from removing the manufacturer’s markings and in particular, copyright notices or to change these without the prior written consent of HUADA Pharma. All other rights in and to the Software and the documentation, including copies thereof shall remain with HUADA Pharma. The Customer is not entitled to sublicense the Software.
- Customer further understands that its use of the Software shall be subject to the terms of any third party license agreements or notices that are provided to Customer by HUADA Pharma and to the rights of any other third-party owners or providers of software or firmware included in the Software, and Customer shall comply with the terms of such third-party license agreements and rights provided by HUADA Pharma in advance.The Software is covered by the limited warranties applicable for the System set forth in Section 16 and by no other warranties, express or implied.
- HUADA Pharma makes no representation or warranty, express or implied that the operation of the Software or firmware will be uninterrupted or error free or that the functions contained in the Software or firmware will meet or satisfy use outside the agreed Specification. Software or firmware corrections, made during the Warranty Period, are warranted for a period of three (3) months from the date shipped by HUADA Pharma or until expiry of the Warranty Period, whichever is longer
- Failure to comply with any of the terms of this subsection terminates Customer’s right to use the Software. Upon termination of such right, Customer must return the disk provided by HUADA Pharma, and any and all copies thereof or of any other Software to HUADA Pharma.
- Any replacements, fixes or upgrades of the Software which Customer may hereafter receive from HUADA Pharma or an Affiliate of HUADA Pharma, shall be provided subject to the same restrictions and other provisions contained in this subsection, regardless of whether subsection or these GTC are specifically referenced when Customer receives such replacement, fix or upgrade, unless such replacement, fix or upgrade is provided with a separate license agreement which by its terms specifically supersedes these GTC. The warranty term for any upgrades shall be one (1) year from the date of its delivery to Customer. Any such replacements, fixes or upgrades shall be provided at prices and payment terms as agreed at the time they are provided.
- HUADA Pharma shall have no liability for, or any obligations under warranty if any Software or firmware modifications are undertaken by anyone other than HUADA Pharma or its nominees. In addition, HUADA Pharma shall charge for any costs and expenses incurred up to the point of discovery of any such modification, and for all subsequent rectification work necessary to return the Software or firmware to its warranted condition.
- The Customer acknowledges that only by reference to and by reason of the aforesaid limitations is HUADA Pharma able or willing to offer Software, System and installations at the Prices.
If Customer is purchasing an Equipment from HUADA Pharma which is to be installed by HUADA Pharma, the following additional provisions shall apply:
- Factory Acceptance Tests (“FAT”): HUADA Pharma will notify the Customer in Writing when the Equipment will be ready for testing at HUADA Pharma’ premises. Following such notification, representatives of each party will, at their own expense, attend the HUADA Pharma’ premises on a mutually agreed date for the purpose of testing the equipment in accordance with the applicable Specifications and FAT protocol to be issued by HUADA Pharma and approved by Customer. HUADA Pharma will provide Customer with a certified report of the results of any test. Once the Equipment have been tested pursuant to this clause 19 a), Carrier designated by HUADA Pharma or Customer will deliver the Equipment on Customer’s Delivery Location, on a mutually agreed date.
- Site Acceptance Test (”SAT”): Following completion of the installation and commissioning of the Equipment, representatives of HUADA Pharma and Customer shall at their own expense, attend Customer’s Delivery Location on a mutually agreed date for the purpose of commissioning and acceptance testing the Equipment in accordance with the applicable Specifications and the SAT protocol to be issued by HUADA Pharma and approved by Customer. HUADA Pharma will provide Customer with a certified report of the results of any test. In addition to any remedies that may be provided under these GTC, HUADA Pharma may terminate this Agreement with immediate effect upon written notice to Customer in case the Customer fails to accept the Equipment as per the provisions of the SAT protocol and such delay continues for ten (10) days after HUADA Pharma’ receipt of written notice.
PART III- TERMS AND CONDITIONS FOR SALE OF SERVICES
If Customer is purchasing Services from HUADA Pharma, the following provisions shall exclusively apply in relation to the purchase and sale of Services, and Services only, in addition to the provisions of Part I of these GTC.
OBJECT TO BE SERVICED
- When the Object to be Serviced has not been purchased from HUADA Pharma, Customer shall inform HUADA Pharma of any existing intellectual property rights concerning the Object to Be Serviced prior to performance of the Services, and Customer shall indemnify HUADA Pharma from any third-party claims concerning such intellectual property rights.
- Customer shall assure that any Objects to Be Serviced within the scope of any Service hereunder do not pose any health hazard to HUADA Pharma agents or employees.
- Unless otherwise set forth in the HUADA Pharma’ Quotation, the standard service hours under the Agreement shall be Monday to Friday, 08:00 to 17:00 EST, excluding public holidays.
- If agreed between HUADA Pharma and the Customer in good time to enable the installation to commence and detailed in the Quotation, HUADA Pharma shall install the Goods, provided all necessary information relative to the installation of the Goods, in particular the location of installation and any other relevant details, including all software interfaces. The schedule of necessary information to be provided by each Party shall be agreed by the respective project leaders of each Party within one (1) month of the date upon which HUADA Pharma accepts the Customer’s order.
- HUADA Pharma shall be entitled to vary the Price to cover any special transport, handling, hoisting costs or other costs of installation and to cover storage or other charges arising from delays by the Customer in preparing the installation site or in providing correct and complete information, instructions, licenses, consents and other times necessary for manufacture, modification, supply, dispatch, delivery or installation of the Goods.
- In the event the Goods could not be installed to the location of installation within two (2) months after delivery, due to delays in preparing the installation site, HUADA Pharma shall be entitled to invoice the Customer for the Price of the Goods and installation Services.
- In those cases where it has been agreed that HUADA Pharma shall install the Goods, the Customer shall, at its own expense (i) prepare the site; (ii) ensure reasonable working conditions; (iii) provide HUADA Pharma with secure areas for storing materials and installation equipment; provide proper access to the site; (v) ensure the site is safe and certify the site to be free of chemical and biological hazards; (vi) provide all facilities specified by HUADA Pharma prior to installation, including, without prejudice to the generality of the foregoing, supplying electricity, water, gas, compressed air, data networks, environmental controls, ventilation systems, adequate lifting gear and lighting.
- When requested by HUADA Pharma, the Customer will complete and provide permits to work and use best endeavors to facilitate access to the site for HUADA Pharma Representatives outsides normal working hours where necessary. HUADA Pharma will use reasonable endeavors, to the extent permissible under applicable law to comply with any special site requirements of which it has prior written notice.
- HUADA Pharma reserves the right to refuse to install the Goods where in its opinion the site and/or access has not been prepared or provide as above and shall not be liable for any loss, damage, or additional expense arising from such non-compliance.
- Except where HUADA Pharma or its Representatives are negligent, the Customer shall hold HUADA Pharma and its Representatives harmless form and against all claims, losses, damages, penalties and others brought against HUADA Pharma resulting from personal injury or death which arise during installation.
SERVICES PERFORMED AT HUADA PHARMA’ FACILITIES
The following shall be applicable with respect to all Objects to Be Serviced at HUADA Pharma’ facilities:
- Objects to Be Serviced shall be packed and shipped to HUADA Pharma’ facilities by Customer at Customer’s sole expense, and Customer shall bear the risk of loss in regard to such shipment to and from HUADA Pharma’ facilities. At Customer’s request, transportation to and, if necessary, from HUADA Pharma’ facilities will be insured against insurable transport risks, e.g., theft, breakage, fire, at Customer’s expense. During the time that Service is performed at HUADA Pharma’ facilities, no insurance protection is provided by HUADA Pharma. Customer shall ensure that existing insurance coverage is maintained for the Object to Be Serviced, and only upon Customer’s express request and at Customer’s expense will HUADA Pharma obtain insurance to cover such risks.
- Services hereunder shall be considered performed and completed if the Object to Be Serviced has been tested as provided by the Agreement.
- In the event that HUADA Pharma is delayed in the performance of any Services as a result of the acts or omissions of Customer and/or its employees, agents or contractors, or if Customer delays the return of the Object to be Serviced following performance and completion of the Services, HUADA Pharma may charge Customer warehouse rent for storage at HUADA Pharma’ facilities, or, at HUADA Pharma’ discretion, the Object to Be Serviced may be stored elsewhere, and Customer shall bear the costs and the risk of storage at such other location.
SERVICES PERFORMED AT CUSTOMER’S FACILITIES
The following shall be applicable with respect to all Objects to Be Serviced at Customer’s facilities, or such other non-HUADA Pharma facilities as Customer may indicate:
- Customer, at its own expense, shall support HUADA Pharma service personnel in performing the Services hereunder, including ensuring that the Objects to Be Serviced are available for servicing at the time of each scheduled preventive maintenance or emergency service call. HUADA Pharma’ service personnel will contact Customer to set a mutually agreeable date and time for each such service visit.
- Customer shall take all required measures to protect people and objects on the site where the Services are to be performed, and shall also inform HUADA Pharma’ service personnel of any special safety rules and regulations. HUADA Pharma may charge Customer, at its customary rates, for time incurred by HUADA Pharma’ service personnel related to any facilities, policies, safety or training required by Customer, unless the foregoing is expressly included in the Price set forth in the Agreement.Customer undertakes, at its own expense, to: (i) provide the necessary auxiliary staff in the number and for the time required to perform the Services hereunder, if necessary, and HUADA Pharma shall not assume any liability for said auxiliary staff; (ii) perform all construction, foundation and all scaffolding work, including procurement of the building materials required therefor; (iii) provide the required devices and heavy machinery and/or tools as well as the required materials and items for said equipment; (iv) provide heating, lighting, utilities, water, including the required connections and outlets; (v) provide the necessary dry and lockable rooms for storing the service personnel’s tools; (vi) protect the site at which the Services are to be performed and the materials located there from damaging effects of any type, and clean the site at which the Services are to be performed; (vii) provide HUADA Pharma’ service personnel with suitable and secure lounge and work areas (with heating, lighting, wash facilities, sanitary facilities) and first aid; and (viii) provide materials and take all action that is necessary to adjust the Object to Be Serviced and to perform contractually agreed testing.
- Customer shall ensure that the Services can be started without undue delay upon arrival of HUADA Pharma’ service personnel and performed without delay. Insofar as special diagrams or instruction manuals are required for the Object to Be Serviced, Customer shall provide these in due time to HUADA Pharma.
- For Services to be performed within the scope of commissioning, Customer shall ensure, in particular, that electrical and mechanical installation of the Object to Be Serviced has been completed as a prerequisite to HUADA Pharma’ beginning the Services hereunder, with Customer providing the support set forth herein above.
- If Customer fails to fulfill any of its obligations in this Section 23, and as a result of such failure, completion of the Services is delayed or HUADA Pharma otherwise is prohibited from performing the Services, then HUADA Pharma shall be entitled to charge Customer, at its customary rates, the costs incurred by HUADA Pharma related to such failure.
DEADLINE FOR SERVICES PERFORMANCE
- The times indicated as deadlines for the particular Service to be performed under the Agreement are based on estimates and, for this reason, shall not be binding. The Customer may request that HUADA Pharma agree to a binding deadline for performance of the Service(s) hereunder only if the scope of the work and|or Service is exactly defined.
- A binding deadline for performance of a Service hereunder shall be considered met if upon expiration thereof the particular Object to Be Serviced is ready to be transferred to the Customer for retrieval, if said Object is to be tested as provided by the Agreement, and|or if the corresponding Service to be performed hereunder has been completed and|or the desired objective of said Service has been achieved.
- If additional or extended orders are placed or if Services are additionally required, the agreed deadline for performing the originally ordered Service hereunder shall be extended accordingly.
- If any Service to be performed hereunder is delayed in the context of events relating to industrial disputes, in particular strikes and lockouts, or occurrence of circumstances for which the Contractor is not liable, the deadline for performing said Service shall be reasonably extended, insofar as such obstacles are proven to exert significant influence on performance of any Service hereunder; this shall also apply if such circumstances occur after HUADA Pharma has already defaulted on said performance.
- If the Customer specifies a reasonable deadline, taking into account the legal exceptions, for subsequent performance of Service after said delay has occurred and if this new deadline is not met, the Customer shall be entitled within the scope of the legal provisions, to withdraw from the Agreement. Further claims on account of a delay in performance shall be governed exclusively as defined in Clause 24 c) hereof.
- The Customer undertakes to accept the Service performed hereunder, whether in the form of repair, maintenance, commissioning service or other defined Service hereunder. If the Service performed does not conform to this Agreement, HUADA Pharma undertakes to eliminate the defect as defined by Section 26 hereunder, provided that this is possible for the particular Service to be performed. This shall not apply if the defect is minor when assessed in the interest of the Customer or is based on a circumstance for which the Customer is responsible. If there is a minor defect, the Customer may not refuse acceptance.
- If acceptance is delayed through no fault of HUADA Pharma, acceptance shall be deemed as having taken place two (2) weeks after HUADA Pharma has notified the Customer of completion of the Service performed hereunder.
- Upon acceptance, HUADA Pharma’ liability for discernible defects shall lapse, insofar as the Customer does not reserve the right to enforce a claim for a certain defect.
WARRANTIES AND REMEDIES
- HUADA Pharma warrants that the Services shall be conducted in a good and workmanlike manner in conformity with industry standards, and any parts supplied as part of the Services shall be in accordance with HUADA Pharma’ Specifications. Should the Customer request more extensive tests, this shall be agreed in writing and the costs for said extensive tests shall be borne by the Customer.
- If any failure to conform to the warranty is reported to HUADA Pharma in writing within the Services Warranty Period, HUADA Pharma, upon being satisfied of the existence of such non-conformity, will correct the same by reperforming the Services. If HUADA Pharma is unable to correct such non- conformity by re-performing the Services, HUADA Pharma may return the Price thereof, or, where appropriate, the portion of the Price of the nonconforming Services that HUADA Pharma is unable to correct. The foregoing shall be Customer’s sole and exclusive remedies, and the liability of HUADA Pharma hereunder is expressly limited to re- performance of nonconforming Services or the return of the Price thereof, as the case may be. The warranty set forth in this paragraph shall apply also to parts and to any replacement parts.
- This warranty shall be in lieu of all other warranties, express or implied, statutory or otherwise, including without limitation the warranties of merchantability and fitness for a particular purpose, are excluded.
- This warranty shall also exclude used goods, used spare parts, damage incurred as a consequence of natural wear and tear, inadequate maintenance by anyone other than HUADA Pharma, failure to follow equipment operating instructions, excessive or unsuitable use and improper construction and/or assembly work performed by third parties, and any other external effects and causes over which HUADA Pharma had no control or for which HUADA Pharma was not responsible.This warranty shall become null and void if Customer or a third party makes changes or repairs to the Object to Be Serviced hereunder, without obtaining the prior written consent to do so from HUADA Pharma.
- If parts of the Object to Be Serviced are damaged through the fault of HUADA Pharma, HUADA Pharma may elect to repair said damage at its own expense or to deliver new replacements. HUADA Pharma’ obligation to replace said damaged parts shall be limited to the price at which the particular Service was agreed. As for the remaining provisions, Clause 27 c) shall apply accordingly.
- If, through HUADA Pharma’ fault, the Customer cannot use the Object to Be Serviced as provided by the Agreement, and this non-use results from failure to provide or the provision of deficient suggestions and or advice, either before or after said Agreement is signed, and other collateral obligations of the Agreement – in particular instructions for operation and maintenance of the Object to Be Serviced, the provisions of Clauses 25 and 26 shall apply accordingly, excluding further customer claims.
- In the event of damage that is not sustained by the Object to Be Serviced itself, HUADA Pharma shall be liable, irrespective of the legal reason, only a) in the event of willful intent; b) in the event of gross negligence on the part of the legal representative | entities, directors or executive-level employees; c) in the event of culpable physical injury death and hazards to life and health; d) in the event of defects that it has fraudulently concealed or the absence of which it has guaranteed; e) to the extent that liability is prescribed by applicable law. In the event of culpable breach of material contractual duties, HUADA Pharma shall also be liable in the event of gross negligence by its non-executive employees and in the event of slight negligence, where the latter case shall be limited to losses that are typically associated with this type of contract and that are reasonably foreseeable. Any further claims shall be excluded.