Viessmann Heating Technology Beijing Co., Ltd
销售 及 服 务通 用 条 款
General Terms and Conditions for Sales and Services
1. 定义 Definitions
In these General Terms Scope of Applicationand Conditions, unless the context provides otherwise, the following terms shall bear the meanings assigned thereto:
"Viessmann" means Viessmann Heating Technology Beijing Co., Ltd.
"Buyer" means the party who accepts the written or oral quotation for the Products provided by Viessmann or the party whose order for the Products is accepted by
"Sales Contract" means the contract, standard quotation form, or order from the
Buyer to Viessmann for the purpose of Viessmann’s supply of the Products to the
"Products" means such product that constitutes the subject matter of the Sales Contract,
including accessories or spare parts of such product and relevant services.
"Contract Price" means the price of the Product (and any service to be provided
under the Sales Contract).
2. 适用范围 Scope of application
The Sales Contract applies to the boilers, storage-type electric water heaters, accessories, spare parts and relevant services which the Buyer purchases from Viessmann.
3. 税款 Taxes
The Buyer shall defray all taxes and other fees incurred by the supply of the Products. In the event that subject to special arrangement Viessmann pays the said taxes and fees on behalf of the Buyer, the Buyer shall refund Viessmann the taxes and fees defrayed within the agreed time limit
4. 检验及测试 Inspection and Testing
During manufacture and on completion, the Products shall be inspected and tested by Viessmann in accordance with its relevant internal guidelines.
According to the inspection and testing requirements that may be stipulated by the Chinese laws and regulations and governmental policies, Viessmann will make reasonable efforts to ensure that the Products satisfy the said requirements. Prior to accepting the Products delivered by Viessmann, the Buyer may request to review the relevant documents evidencing that the Products satisfy the aforementioned inspection and testing requirements. If the Buyer fails to raise such request, it shall be deemed as having waived its right to raise any claims in this respect.
5. 合同款项的支付 Payment of Contract Price
The payment of the Contract Price shall be made in accordance with the manner and schedule provided in the Sales Contract. The Buyer shall defray any bank charges levied on payment, financing expenses, or others. In the event that the Buyer delays in payment, interest will be charged on overdue payment at the rate of 2% per commenced month.
6. 交付与验收 Delivery and Acceptance
Subject to the Buyer’s due fulfillment of all the conditions agreed upon under the Sales Contract, Viessmann shall deliver the Products in accordance with the period and place stipulated in the Sales Contract. In the event that the fulfillment of one or more of the said conditions is delayed on the part of the Buyer, the specified period of delivery shall be extended correspondingly. Viessmann is entitled to deliver the Products by installments within the said period of delivery. When the Products are delivered by installments, Viessmann’s failure to deliver one or more installments or the Buyer’s failure or refusal to accept one or more installments shall not void the parts of the Sales Contract according to which certain installments of Products have been delivered or are to be delivered.
When Viessmann delivers the Products to the place of delivery stipulated in the Sales Contract and the Buyer signs to acknowledge receipt of the Products, the Products shall be deemed having been delivered. The Buyer shall designate a person to sign to acknowledge receipt of the Products, and shall provide the sample of signature of the designated person, as well as original sample of the authorized seal prior to the delivery of Products; otherwise Viessmann shall have right to correspondingly postpone the time of delivery.
The Buyer is obligated to promptly inspect and accept the Products after delivery by Viessmann. Where Viessmann is responsible for installation, upon the completion of installation and commissioning and the Buyer’s confirmation by signing the Confirmation Letter and Installation Report, the Products shall be deemed qualified and duly accepted. Where Viessmann is not responsible for installation, if the Buyer does not notify Viessmann to the effect of a contrary meaning within three months after delivery, the Products shall be deemed qualified and duly accepted.
7. 所有权及风险的转移 Transfer of Ownership and Risk
Ownership of the Products and the risks of damage and loss thereof shall pass to the Buyer upon Viessmann’s delivery of the Products. However, ownership of the Products does not pass to the Buyer if the Buyer fails to pay the Contract Price or perform its other major obligations.
If the Products cannot be delivered by Viessmann according to the stipulated time due to reasons attributable to the Buyer, the risks of damage and loss of the Products shall be borne by the buyer as from the date of the Buyer’s such breach. If the Buyer breaches the relevant stipulation by refusing to take delivery or failing to take delivery on time, the risks of damage and loss of the Products shall be borne by the Buyer as from the Buyer’s such breach. If the Products require carriage, the risks of damage and loss of Products shall be borne by the Buyer as from the time when Viessmann delivers the Products to the Carrier. If the Products are sold to the Buyer in transit, the risks of damage and loss of the Products shall be borne by the Buyer as from the time of formation of the Sales Contract.
8. 保险 Insurance
At the Buyer’s request and expense, insurance can be effected to cover any loss or damage to the Products that may occur after the risk has passed to the Buyer in accordance with the terms of sale agreed upon. In such case, should any loss or damage occur after the risk of the Products has passed to the Buyer, Viessmann shall at the Buyer’s request, promptly after ascertainment of the incident and, on the Buyer’s behalf make necessary arrangements to recover the losses and damages for which the insurance company is liable under the aforesaid insurance contract.
9. 设计、工艺及材质保证 Design, Workmanship and Materials Warranty
Viessmann guarantees that the Products are of such design, workmanship and materials as demonstrated by Viessmann or agreed upon by the parties. Buyer understands and acknowledges that due to the nature and characteristics of the Products, they may consist of, other than the equipments or spare parts manufactured by Viessmann itself, certain equipments or spare parts manufactured by relevant third parties that Viessmann may select where it deems necessary. For the said equipments manufactured by Viessmann, Viessmann offers a warranty period of 24 months after the installation and commissioning of the Products, but such warranty period shall in any event not exceed 36 months after the date of the shipment from Viessmann’s plants or external warehouses or any other applicable place as the case may be; besides, for the said equipments or spare parts manufactured by third parties and spare parts manufactured by Viessmann, Viessmann offers a warranty period of 12 months after the installation and commissioning of the Products, but such warranty period shall in any event not exceed 24 months after the date of the shipment from Viessmann’s plants or external warehouses or any other applicable place as the case may be. During the warranty period, Viessmann will repair or at its option replace free of charge, the parts that are proved to be defective to an essential degree owing to wrong design, faulty construction or inferior materials. In case the malfunction is not caused by quality related problems, Viessmann will provide repairing or replacement services as the situation may require, but the cost associated with such repairing or replacement shall be borne by the Buyer.
10. 不可抗力 Force Majeure
If, after the execution of the Sales Contract, any Force Majeure events occur that affect Viessmann’s due performance of the Sales Contract, any responsibilities and liabilities of Viessmann shall be released accordingly. For the purpose of these General Terms and Conditions, the said "Force Majeure" means any objective circumstance which is unforeseeable, unavoidable and insurmountable, including but not limited act of war, flood, fire, embargo, requisition, distress, currency restrictions, turmoil, rally, scarcity of goods, energy restrictions and deficiencies or delays in deliveries from suppliers due to any of the aforesaid events.
11. 责任限制 Limitation of Liability
As a general principle, in the event of any personal injury caused by the Products, Viessmann only accepts the respective liability for such injury provided the injury is proved to be due to fault on Viessmann’s part or on the part of others for whom Viessmann is responsible. Similarly, in the event of any damage to goods, Viessmann only accepts the respective liability for such damage to the extent that the said damage is proved to be due to fault on Viessmann’s part or on the part of others for whom Viessmann is responsible. The said liability for damage to goods does not include products designed, manufactured or purchased by the Buyer or other third party, either or any other products in which such products are included.
Viessmann accepts no liability for any production loss or loss of profit in connection with the supply or any other consequential loss, and Viessmann’s liability shall not exceed what is expressly specified. If Viessmann becomes liable under the terms stated above, its liability shall be limited to the value of the specified parts/ equipment plus any freight and similar costs which are to be defrayed by Viessmann in accordance with the submitted proposal or the order confirmation. The obligations accepted by Viessmann are only binding provided the Buyer duly fulfils all the obligations undertaken by it.
Notwithstanding the above, Viessmann shall not be liable under any of the following circumstances:
Due to any Force Majeure events, the Products cause any damages/ injury to the property or body of the Buyer or any third party;
Any defects of the Products cause any damages/ injury to the property or body of the Buyer or any third party, but such defects were non-existent when the Products were put into circulation, or the defects cannot be found at the time of circulation due to the scientific and technological level at that time. The term "defects" means the unreasonable danger existing in the Products that threatens the safety of human body or properties of others, or, means inconformity with the respective national standards or industry standards safeguarding human health and safety of human body and property (provided there are such applicable standards);
The Products cannot be normally used, or damages/ injury occur due to defects of the Products caused by the fault of the Buyer or any third party, including but not limited to:
Failing to transport, accept, keep or otherwise dispose of the Products in accordance with their nature;
Using the Products exceeding the appropriate scope of use;
Inappropriately operating, maintaining, managing or otherwise disposing of the Products in violation of the respective instructions;
Unilaterally altering or changing the Products without the prior written consent of Viessmann;
Accepting the installation, repair or other services provided by any third party other than Viessmann or the Viessmann designated installing/ repairing entity, which causes malfunction of the Products;
The natural attrition, depletion and so on due to the nature of the Products; and using the Products in violation of the requirements of the relevant laws and regulations.
12. 管辖法律及争议解决 Governing Law and Dispute Resolution
These General Terms and Conditions and any agreements (including but not limited to the Sales Contract) executed based on these General Terms and Conditions are governed and shall be construed in accordance with the laws of the People’s Republic of China.
In the event of any disputes arising from or in connection with these General Terms and Conditions and any agreements (including but not limited to the Sales Contract) executed based on these General Terms and Conditions, the parties shall firstly try to resolve such disputes through friendly negotiation; if the disputes cannot be resolved through friendly negotiation, the disputes shall be submitted to the China International Economic and Trade Arbitration Commission (CIETAC) for arbitration in accordance with CIETAC’s arbitration rules in effect at the time of applying for arbitration. The arbitral award is final and binding upon both parties.
13. 其他 Miscellaneous
These General Terms and Conditions are prepared by Viessmann for the purpose of standardizing its sales activities in China on the basis of the currently effective laws of China and the business practice.
As for each transaction between Viessmann and its clients (the Buyer), the Buyer is advised to carefully review these General Terms and Conditions prior to the execution of the Sales Contract, and to communicate with Viessmann with respect to any queries. Should the Buyer fail to raise any questions or objections to these General Terms and Conditions prior to the execution of the Sales Contract, the Buyer shall be deemed as having accepted these General Terms and Conditions and the respective legal consequences.
If any part of these General Terms and Conditions becomes invalid due to any reason, the remaining parts thereof shall remain effective and binding upon the parties. In case of any discrepancies between these General Terms and Conditions and other special agreements between the parties, the latter shall prevail.
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This is to confirm that we, as Buyer, have reviewed the above General Terms and Conditions, we agree with and accept all the provisions thereof, and are willing to be bound by them and to assume the respective legal obligations.