1. Acceptance - ALL SALES ARE SUBJECT TO AND EXPRESSLY CONDITIONED UPON THESE TERMS AND CONDITIONS (AS THEY MAY BE AMENDED FROM TIME TO TIME) AND UPON CUSTOMER'S ACCEPTANCE OF THEM. THE TERMS AND CONDITIONS CONTAINED HEREIN WILL BE CONTROLLING, AND ANY ADDITIONAL AND/OR INCONSISTENT TERMS AND CONDITIONS SET FORTH IN ANY ACKNOWLEDGMENT, PURCHASE ORDER, OR ACCEPTANCE DOCUMENTS REQUESTED FROM AND/OR PROVIDED BY CUSTOMER ARE EXPRESSLY REJECTED. NO VARIATION OF THESE TERMS AND CONDITIONS WILL BE BINDING UPON Yunnan xlj UNLESS AGREED TO IN WRITING AND SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF Yunnan xlj.
2. Specifications - The specifications of products (“Products”) that Yunnan xlj Inc. (“Yunnan xlj”) offers for sale to the customer (“Customer”) are subject to change without prior notice by Yunnan xlj or the supplier of the Product (the “Supplier”).
3. Prices – All prices published or quoted by Yunnan xlj are subject to change without prior notice. All prices are subject to adjustment on account of specifications, quantities, raw materials, cost of productions, shipment arrangements, or other terms or conditions that are not part of Yunnan xlj’s original price quotation.
4. Delivery - Delivery of all orders will be FCA (INCOTERMS 2010) and title of all Products shall transfer to Customer upon Yunnan xlj 's delivery of such Products to the first carrier in the country where the shipment of the Product originates. If Customer and L Yunnan xlj have agreed that Yunnan xlj will provide or arrange for the provision of any of the following services related to the delivery of Product, then Customer shall be responsible for and shall pay or reimburse Yunnan xlj for the fees and charges set forth in an invoice from Yunnan xlj with respect to: (a) shipping and freight forwarding, loading and unloading, and handling, (b) special packaging materials (e.g., blue ice), (c) terminal charges and carrier surcharges (including fuel surcharges), (d) hazardous material, (e) import and customs fees, duties and taxes, (f) all fees imposed by government regulation, and (g) insurance; the applicable portion of the foregoing will be added separately to the invoice for the Product ordered by Customer. Customer acknowledges that Yunnan xlj may refer to the foregoing on Yunnan xlj 's invoices as "Freight." Freight costs and charges that Yunnan xlj charges may not be limited to Yunnan xlj 's actual direct costs and may include costs borne by Yunnan xlj associated with the foregoing.
Yunnan xlj will have the right, at its election, to make partial shipments of the Products and to invoice each shipment separately. Yunnan xlj 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 when due or otherwise fails to perform its obligations hereunder. All shipping dates are approximate only, and Yunnan xlj 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 Yunnan xlj 's reasonable control, as further detailed in Section 1. In the event of a delay due to any cause beyond Yunnan xlj 's reasonable control, Yunnan xlj 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. Products as to which delivery is delayed due to any cause within Customer's control may be placed in storage at Customer's risk and expense and for Customer's account. Orders in process may be canceled only with Yunnan xlj 's written consent and upon payment of cancellation charges.
5. Damaged Shipments – Customer will inspect Yunnan xlj shipment upon receipt. If any external damage is noticed, Customer should accept the shipment only after (i) Customer has requested an inspection by the carrier and (ii) the carrier has noted the damage on all copies of the delivery receipts for the shipment. Customer should keep all containers and packing material for inspection. If, upon opening a shipment, Customer finds a shortage or damage, Customer must request inspection by the carrier within 24 hours of delivery or Customer will relinquish the right to make a claim. Yunnan xlj reserves the right to repair a damaged Product, where applicable, before replacement or credit is determined.
6. Payment Terms – Payment will be due thirty (30) days from date of invoice, unless otherwise set forth on the applicable individual or summary invoice. Payments are to be made in freely available United States dollars unless another currency is specified on the invoice. Customer will be responsible for applicable taxes, and other charges such as government imposed surcharges which Yunnan xlj may be required to pay or collect with respect to the sale or transportation of the Products, or the provision of Services. Payment is considered late when it is received into lockbox or bank account specified in the invoice after the due date, which may result in additional service charges as described further in this section. Any payments received by 2.00 PM Eastern Standard Time at Yunnan xlj s lockbox or bank account will be credited to Customer's account as of the business day received, while payments received after 2.00 PM Eastern Standard Time will be credited to Customer's account the following business day. Delinquent accounts will be subject to a service charge on past due amounts of one and one-half percent (1 1/2%) per month (or, if less, the maximum amount permitted by law). Yunnan xlj recommends payments be made by ACH method to ensure timely receipt by Yunnan xlj. Payment by credit card may only be used as a prepayment method when placing orders, to pay past due collections, and to pay down account balances with Yunnan xlj.
Customer agrees to complete, sign and submit a standard Yunnan xlj credit application to Yunnan xlj's Treasury Department. If a credit application is not submitted by Customer, or not accepted by Yunnan xlj, payments must be made in advance or by credit card. Customer will provide, or make available to Yunnan xlj upon request, its latest audited financial statements (or unaudited financial statements, if audits are not performed). Yunnan xlj agrees to keep such information confidential and to use it exclusively to evaluate and apply a credit score or rating to Customer for extension of credit purposes or pending transactions. Furthermore, Customer agrees to inform Yunnan xlj of any material adverse change in its business that would reasonably be expected (by an independent 3rd party) to negatively impact its outstanding or future payment obligations and the terms or conditions contained herein. A change shall include, but not be limited to, any change in Customer's credit rating as determined by any single major rating agency, including Standard & Poor's, Moody's, Fitch or Dominion Bond Rating Service.
7. Sales Tax - All sums payable in connection with an invoice are exclusive of all transaction taxes, such as (i) value added taxes, goods and services taxes or other similar indirect taxes, and (ii) sales taxes, which will be reflected in the invoice. If you are exempt from any such taxes, please be sure to provide the proper documentation at the time of ordering.
8. Product Return Policy/Cancellation - Some materials are not returnable to Yunnan xlj, including, but not limited to, custom or special order materials, leaking or damaged chemicals, reagents past expiration date, items with missing or obliterated labels, parts or instructions, refrigerated or frozen materials and opened materials. Returned shipments will not be accepted by Yunnan xlj unless prior arrangements have been made. If it is necessary to return any materials, contact Yunnan xlj's Customer Service Department to obtain a return authorization number. REQUESTS FOR RETURN AUTHORIZATION NUMBERS MUST BE MADE WITHIN 30 DAYS OF CUSTOMER RECEIVING THE MATERIALS. Only items authorized by Yunnan xlj for return will be accepted. Final disposition of returned goods will be made only after receipt and inspection of goods. Collect shipments will not be accepted unless previously authorized. Hazardous goods must be shipped in compliance with all applicable Department of Transportation regulations. Material must be received on or before the Return Authorization expiration date. Material returned requiring disposal may incur additional charges. A 20% restocking fee is charged on catalog items returned and will be charged at the discretion of Yunnan xlj, subject to a minimum charge of $35.00 and a maximum charge of $250.00.
1. Products Authorized for Return: To ensure proper credit, each Product return must include the following information:
§ Customer Name and Address
§ Purchase Order Number
§ Yunnan xlj Shipping Order Number
§ Date of Invoice
§ Catalog Number of Returned Item(s)
§ Yunnan xlj Return Authorization Number
§ Reason for Return
2. Product Not Authorized for Return: Products not authorized for return include the following:
§ Products not in completely resalable condition (including Products with damaged, missing or defaced labeling or packaging)
§ Chemicals, reagents, diagnostics, sterile or any controlled products (unless products do not meet specification)
§ Laboratory apparatus or instruments that have been used or are without the original packaging, labeling and operating manuals
§ Refrigerated products, live specimens or other perishables
§ Products which are not inventoried by Yunnan xlj and are not able to be returned to the manufacturer
§ Products purchased on a Special Order Basis
§ Products not purchased from Yunnan xlj
§ Products with an expired shelf life or an expiration date too short for resale
§ Discontinued products
3. Return Shipping: Each return shipment of hazardous materials must be packed and labeled in accordance with applicable regulations applying to transportation of hazardous materials. Shipping documents must also meet applicable transportation regulations. The product should be shipped to the indicated service center and the transportation charges prepaid. To ensure prompt handling, the return authorization number should be placed on the outside of the package.
9. Product and Service Warranties and Limitation of Liability
1. Yunnan xlj makes no warranty about Products. All warranties come from Suppliers of Products.
2. Supplier warrants title as provided in the Uniform Commercial Code. UNLESS SPECIFIED IN INVOICES OR PRODUCT DESCRIPTIONS FOR A PRODUCT, A SUPPLIER OF A PRODUCT MAKES NO OTHER REPRESENTATIONS OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR ANY OTHER MATTER WITH RESPECT TO SUPPLIER’S PRODUCTS, WHETHER USED ALONE OR IN CONNECTION WITH ANY OTHER SUBSTANCE.
3. Claims for rejected, nonconforming product, or any other claim against Yunnan xlj or a Supplier, must be made in writing and must be received and acknowledged by Yunnan xlj in writing within thirty (30) days of Customer's receipt of the product in question. Any claims not satisfying this condition shall be deemed waived. Upon the approved return of any such product, Yunnan xlj shall have the option, at its sole discretion, to replace such product with conforming product or to return the purchase price to Customer. CUSTOMER'S EXCLUSIVE REMEDY AGAINST Yunnan xlj OR A SUPPLIER, FOR ANY CAUSE OR CLAIM WHATSOEVER, INCLUDING BUT NOT LIMITED TO ALLEGED BREACH OF WARRANTY, PRODUCT LIABILITY, NEGLIGENCE, OR OTHERWISE, SHALL BE FOR MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT IN RESPECT TO WHICH THE CLAIM IS MADE. IN NO EVENT SHALL Yunnan xlj OR A SUPPLIER BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR LOST PROFITS, WHETHER CUSTOMER'S CLAIM IS IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF Yunnan xlj OR THE SUPPLIER HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
4. Customer represents and warrants to Yunnan xlj and the applicable Supplier that its use products ordered will not violate any law or regulation. IN CONSIDERATION OF THE SALE OF PRODUCT TO CUSTOMER, WHICH SALES Yunnan xlj WOULD NOT OTHERWISE HAVE ARRANGED AND SUPPLIER WOULD NOT OTHERWISE HAVE MADE, CUSTOMER AGREES TO INDEMNIFY AND HOLD Yunnan xlj AND THE APPLICABLE SUPPLIER OF A PRODUCT HARMLESS FROM ALL CLAIMS, EXPENSES, LOSSES AND LIABILITY OF ANY NATURE WHATSOEVER ARISING OUT OF CUSTOMER'S HANDLING AND/OR USE OF PRODUCT, WHETHER USED ALONE OR IN COMBINATION WITH ANY OTHER SUBSTANCE OR CUSTOMER’S FAILURE TO PERFORM ITS OBLIGATIONS HEREUNDER, INCLUDING WITH RESPECT TO ANY CLAIMS BROUGHT BY CUSTOMERS OFFICERS, EMPLOYEES, CUSTOMERS, AGENTS, REPRESENTATIVES, SUCCESSORS OR ASSIGNS, OR ANY THIRD PARTY (INCLUDING WITHOUT LIMITATION, END USERS OR FREIGHT CARRIERS).
10. Export Controls - Products purchased or received under this Agreement are subject to export control laws, restrictions, regulations and orders of the United States and other countries. Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not export, or transfer for the purpose of re-export, any Product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign laws or regulation. Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by law from purchasing the Products or services hereunder. Customer shall be responsible to obtain any license to export, re-export or import as may be required.
11. Anti-corruption - Customer represents and warrants that: (a) it is familiar with and understands the terms of the U.S. Foreign Corrupt Practices Act of 1977, as amended ("U.S. FCPA"), and that Customer will comply with the U.S. FCPA and all other applicable anti-bribery or anti-corruption laws or regulations of any other country or jurisdiction which are applicable to the parties' business activities hereunder; (b) no principal, partner, officer, director or employee of Customer is or will become an official of any governmental body of any country or jurisdiction (other than the U.S.) that is applicable to the parties' business activities hereunder; and (c) Customer has not and shall not offer, pay, give, or promise to pay or give, directly or indirectly (including through a third party or intermediary) any payment or gift of any money or thing of value to any government official, government employee (or employee of any company owned in part by a government), political party, political party official, or candidate for any government or political office (each, a "Government Official") to influence any acts or decisions of such Government Official or to induce such official to use his or her influence with the local government to effect or influence the decision of such government in order to assist either Yunnan xlj or Customer in its performance of their obligations under this Agreement or to benefit the other party. Failure by Customer to comply with this section shall be deemed a material breach of a material provision of this Agreement and Yunnan xlj will have the right to immediately terminate this Agreement and its performance without any liability to Customer.
1. Termination - This Agreement may be terminated by either party at any time and for any reason upon reasonable written notice delivered to the other party. In the event of any termination or expiration of this Agreement, Customer shall be billed immediately for Products shipped through the effective date of such termination or expiration and all custom Products purchased for Customer in Yunnan xlj's inventories at such date, and Customer shall pay the invoiced amount immediately upon receipt of such invoice. The provisions of Sections 6-7 and 10-13 shall survive termination of this Agreement.
2. Force Majeure - In the event either party is prevented in whole or in material part from performing its obligations under this Agreement as a result of force majeure event, the obligations of the party so prevented shall be excused during such period of delay. The party affected by the force majeure event shall take commercially reasonable steps to mitigate the effect of the force majeure event and shall notify the other party of such event and such mitigating steps as soon as practicable. For purposes hereof, a “force majeure event” shall include any event or circumstance beyond the reasonable control of the affected party, including, without limitation, any act of God, war, terrorism, fire, natural disaster, accident, riot, failure or a communications or payments system beyond the control of the affected Party, or act of government.
3. Merger, Modification, Waiver - No amendment, modification or waiver of these terms shall be binding on either party unless reduced to writing and signed by an authorized officer of the party to be bound, and in the case of a waiver, shall be effective only in the specific instance and for the specific purpose for which given, and shall not be construed as a waiver of any subsequent breach. The failure of either party to enforce at any time or for any period of time any of the provisions of this Agreement shall not be construed as a waiver of such provisions or of the right of such party thereafter to enforce each and every such provision. No course of dealing, usage of trade or course of performance shall supplement, explain or amend any term, condition or instruction of this Agreement, or any shipment of Products hereunder.
4. Applicable Law - This Agreement is made pursuant to, and shall be construed and enforced exclusively in accordance with, the internal laws of the State of Delaware (and United States federal law, to the extent applicable), without giving effect to otherwise applicable principles of conflicts of law. The United Nations Convention on Contracts for the International Sales of Goods expressly shall not apply. Any dispute, controversy or claim arising out of or relating to this Agreement will be discussed and settled between the senior executive officers of the Parties. In the event a settlement is not reached, then such dispute, controversy or claim will be finally and confidentially settled in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such Rules. The place of arbitration shall be in New York, New York. The language of the arbitration shall be English.
5. Authority to Enter Into Agreement - Each party represents and warrants that it is authorized to enter into this Agreement and that in so doing it is not in violation of the terms or conditions of any contract or other agreement to which it may be a party.
6. Assignment - This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns and designees; provided, however, neither party shall have the right to transfer, assign or delegate its rights or obligations under this Agreement or any portion thereof without the prior written consent of the other party (except that either party may assign this Agreement to a parent, subsidiary or successor corporation without such consent).
7. Nature of Relationship - Neither party, its employees or permitted subcontractors or agents shall, under any circumstances, be considered to be an agent, partner, joint venture or representative of the other party.