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General Sales Terms and Conditions

 

1. General:

These Conditions of Sale (the “Conditions” or “Contract”) and any special conditions specified otherwise and agreed by both parties in writing constitute the only conditions upon which the Seller named on the invoice (the “Seller") is willing to supply the goods specified to the Buyer named on the invoice (the “Buyer"). All orders are accepted only upon and subject to the terms set out in these Conditions, which shall prevail over any terms and conditions put forward by the Buyer.

2. The Contract:

2.1     Statements in the Seller's price lists, catalogues and advertisements shall not constitute an offer to sell.

2.2     No contract of sale shall exist unless and until the Seller delivers either a written acknowledgement of order or an advice note to the Buyer.

3. Delivery:

3.1     Except where the Seller agrees otherwise in writing, all sales shall be delivered in accordance with the incoterm (Incoterm 2020) specified under the purchase order as well as clause 6 hereunder.

3.2     Any time or date quoted by the Seller for delivery is given and intended as an estimate only and the Seller shall not be liable in any circumstances for any loss or damage of any kind caused by a failure to deliver within such time.

3.3     The Seller shall be entitled to make deliveries by instalments or by partial deliveries.

4. The Price:

4.1     The price term shall be according to the Incoterms as specified in the order confirmed by PHINIA ("Confirmed Order”). The price shall be denominated in the currency as specified in the Confirmed Order. Price includes packaging, VAT, consumption tax and any other tax and customs duty that Seller is required to pay under the applicable law and Incoterms for delivery. The Price does not include, and the Buyer shall be responsible for, any VAT, consumption tax or any other tax and customs duty that the Buyer is required to pay under the applicable law or Incoterms for delivery.

4.2     The goods shall be supplied at the price in force at the time when the order is accepted by the Seller. The Seller reserves the right to vary its published prices at any time.

4.3     Notwithstanding the provisions of clause 4.2 above, the Seller shall have the right at any time before the goods are dispatched to vary the prices contained in any quotation or acknowledgement of order to:

a. make the price conform with the Seller's price list ruling at the date of dispatch of the goods; or

b. reflect increases in the cost of labour, materials, packing or transport or to take account of exchange rate fluctuations or other factors not under the control of the Seller which may occur between the date of any quotation or acknowledgement of order and the date of dispatch; or

c. take account of the cost of implementing any request by the Buyer for changes in delivery schedules, completion dates, quantities, design or specification and/or delays caused by any other instruction of the Buyer or by any failure of the Buyer to give adequate information or instructions.

4.4     Unless it is otherwise agreed in writing by both Buyer and Seller, Buyer shall pay Sell the full purchase price before the agreed delivery date, if:

Buyer is delay in payment for less than one (1) working day, Seller should arrange the delivery as soon as practical after it receives full payment from the Buyer;

Buyer is delay in payment for more than one (1) working day, then Seller has the right to choose to 1) cancel the Order and Order Confirmation; or 2) arrange the delivery as soon as practical after it receives full payment from the Buyer. For both choices, Seller has right to charge Buyer the late interest and to further ask Buyer to compensate for Seller’s loss according to this Agreement and the applicable law.

4.5     Owing to the high costs of dispatching small orders, the Seller reserves the right to impose minimal order quantities (MOQ).

5. Payment:

5.1     Unless otherwise agreed in writing by both Parties payment of the price of the goods shall be made in cash prior to dispatch.

Buyer is delay in payment for less than one (1) working day, Seller should arrange the delivery as soon as practical after it receives full payment from the Buyer;

Buyer is delay in payment for more than one (1) working day, then Seller has the right to choose to 1) cancel the Order and Order Confirmation; or 2) arrange the delivery as soon as practical after it receives full payment from the Buyer. For both choices, Seller has right to charge Buyer the late interest and to further ask Buyer to compensate for Seller’s loss according to this Agreement and the applicable law.

5.2     Time for payment is of the essence. In case the Buyer is late in payment, in addition to any other remedies the Seller might be entitled to, the Buyer shall pay to the Seller interest equal to 0.5% of total amount due for each full calendar week of the delay, plus interest the amount is 0.04% of * total delay payment * overdue days. This clause shall not be in prejudice of other remedies and rights that Seller is entitled to have according to these Conditions or applicable laws, such as any exchange loss between the payment currency and US dollar as suffered by the Seller.

5.3     The Buyer shall not in any circumstances or for any reason whatsoever be entitled to make any deduction or withhold any sum from the price of the goods by way of set-off or cross-claim or otherwise.

5.4     If Buyer orders goods specifically made for Buyer or standard products of special types, Seller may require the Buyer to pay a deposit at the amount of no less than 20% of the total purchase price prior to commencement of the Seller’s production, and Seller’s receipt of the deposit in full is one of the necessary conditions precedent for the Order to be confirmed or become effective. If the Buyer cancels the Order or fails to pay the remainder of the purchase price when due, then in addition to Seller’s other available remedies under applicable law, Buyer shall forfeit the deposit and any rights thereon completely.

6. Risk and Title

6.1     All goods shall be at the Buyer's risk from the time of the delivery to the Buyer, and thereafter and for so long as the goods remain in the Buyer's possession the Buyer shall insure the goods against all risks for at least their invoiced value.

6.2     Notwithstanding the provisions of clause 6.1 above, the goods shall remain the sole and absolute property of the Seller as legal and equitable owner until payment in full (including any interest), in accordance with clause 5, has been received by the Seller.

7. Warranty 

7.1     The Seller guarantees the goods against any defect which can be proved to the Seller's satisfaction to have been caused by faulty materials or workmanship, under the conditions set out in this clause 7.

7.2     The Seller shall not be liable for defects that appear more than 12 (twelve) months after the manufacturing date of the goods (excluding products within a warranty period less than 12 months that are clearly stated in the quotation form).

7.3     Any assumed defect must be notified in writing to the Seller within 30 (thirty) days after it has become apparent, quoting the serial number, if any, and the date of purchase.

7.4     The Seller shall not be liable for defects that have been caused by or arise from fair wear and tear, and in case the defective goods were submitted to any of the following:

a. unsuitable storage treatment or handling prior to us,

b. abnormal use or use under abnormal conditions,

c. use contrary to the Seller's or to a vehicle manufacturer's instructions or recommendations,

d. use in conjunction with parts not approved by a vehicle manufacturer or the Seller,

e. unauthorised reconditioning or repair,

f. use in any hydraulic component of any fluid other than that approved by the Seller,

g. faulty installation, servicing or repair of the goods by any person other than a correctly qualified installer.

7.5     The decision of the Seller shall be final as to whether or not the defect is due to faulty workmanship or materials.

7.6     Should such a defect appear the Seller’s liability will be limited solely to, at its option:

credit to Buyer the original purchase price of those goods; or

repairing or replacing the defective goods free of charge provided that the Seller shall not be liable for the recovery of the cost of those goods and that if the Seller exercises its option to replace defective goods, the replacement goods shall be supplied subject to these Conditions.

7.7     Any repair or examination of defective goods shall be carried out at the Seller's premises or other mutually acceptable location and the Buyer shall at his own expense and risk adequately pack the goods and deliver them to the Seller or to the agreed location as the case may be. The Seller shall in no circumstances be liable for any cost of stripping or reassembling any article into which any of the Seller's goods may have been fitted.

7.8     All other conditions or warranties (whether express or implied by common law statute or otherwise) as to qualify, fitness for purpose, description, correspondence with sample or (in the case of components supplied for competition or equivalent purposes) life in service are hereby excluded except insofar as such exclusion is prevented by law.

7.9     Except as expressly provided in clauses 7.1 to 7.7, and except where an absolute prohibition against exclusion and restriction of liability applies, the Seller shall in no circumstances be liable to the Buyer in respect of any loss, including consequential loss, damage or injury of any kind, whether suffered by the Buyer or by any other party and whether such liability be in contract, tort, breach of statutory duty or otherwise howsoever (including for the avoidance of doubt liability for any defect in failure or unsuitability for any purposes of the goods or for any negligence whether in relation to the design or manufacture of the goods at all). All conditions, warranties or other terms whether express or implied by common law, statute or otherwise, inconsistent with the provisions of this term are hereby excluded.

7.10  The Seller shall not be liable for any loss, including consequential loss or damage, of any kind arising from any representations, statements, warranties, recommendations, opinions or advice made or given before the making of the Contract, whether the same be made negligently or otherwise.

7.11  Clause 7 of these Conditions sets forth the entire and sole remedy of the Buyer, and the entire and sole liability of the Seller arising from the quantity, quality, use and/or purposes of the Goods delivered. If, notwithstanding the other provisions hereof, Seller shall be held to be under any liability of any kind, without prejudice to the other provisions hereof, such liability shall not exceed a maximum amount of the total price of the corresponding purchase order of the defected products, save where an absolute prohibition against exclusion or restriction of liability applies. In clauses 7.9 and 7.10above, the expression "consequential loss" shall include loss of profits, loss of business revenue, loss of use or loss of goodwill whether of the Buyer or of any other party.

8.Indemnity: The Buyer shall indemnify the Seller against all costs, claims, demands and liabilities whatsoever made by third parties, caused in whole or in part or arising out of any act or omission of the Buyer in connection with the use, storage or sale of the goods.

9. Force Majeure: If the Seller is prevented, hindered or delayed (directly or indirectly) from delivering the goods or from otherwise performing the Contract or part thereof by reason of act of god, war, embargo, riot, strike, lockout, trade dispute, fire, flood, breakdown, government action, interruption of transport or delay in cessation of delivery to the Seller of any goods or materials by any cause whatsoever outside its control, the Seller shall be entitled to cancel the Contract without any liability of any kind or without liability of any kind to extend the time for performance of the Contract by a period at least equivalent to that which performance has been prevented or delayed by any of the causes referred to above.

10. Intellectual Property:

10.1  The Buyer shall fully and effectively indemnify the Seller against all losses, damages, claims, demands, costs and expenses (including legal costs on an indemnity basis) suffered by the Seller or for which the Seller may become liable and which arise from or are incurred by reason of any infringement or alleged infringement of any patent, registered design, copyright, trademark, tradename or other intellectual property right which results from work carried out in accordance with the Buyer’s specification design or instruction. If the Buyer uses or sells the goods in such a manner as to infringe any such rights, the Seller shall not be responsible for such infringement and the Buyer agrees to indemnify the Seller from and against all liability arising there from.

10.2  The Parties agree that Seller shall remain the owner of all intellectual property rights in the goods, the PHINIA brands, logos, tradename or trademarks, including Delphi and other brands owned by PHINIA (the “PHINIA IP”).

10.3  Unless otherwise agreed so in writing by the Parties, nothing in the Contract shall be construed as providing a license of any kind to the Buyer on the PHINIA IP.

11. Anti-bribery:

11.1  For purposes of this clause 11, the expressions and associated adequate procedures shall be construed in accordance with the FCPA,  UK Bribery Act 2010 and the legislation or guidance published under it (the “Bribery Laws”) and the Seller’s Code of Conduct requirements on its Buyers which may be amended from time to time.

11.2  Each party shall comply with applicable Bribery Laws including ensuring that it has in place adequate procedures to prevent bribery and ensure that all of its personnel, subcontractors and other parties associated with it, involved in performing the Contract so comply.

11.3  Without limitation to this clause 11, neither party shall make or receive any bribe (as defined in the Bribery Law) or other improper payment or allow any such to be made or received on its behalf, and shall implement and maintain adequate procedures to ensure that such bribes or payments are not made or received directly or indirectly on its behalf.

11.4  Each party shall immediately notify the other as soon as it becomes aware of a breach or possible breach of any of the requirements in this clause 11.

12. Termination:

12.1  The Seller may terminate the Contract at any time by giving notice in writing to the Buyer if:

a. the Buyer commits a material breach of these Conditions which is not remediable, or not remedied within 14 (fourteen) days of receiving written notice of such breach; or

b. the Buyer has failed to pay any amount due under the Contract on the due date and such amount remains unpaid within 30 (thirty) days after the Seller has given notification that the payment is overdue; or

c. any consent, licence or authorisation held by the Buyer is revoked or modified such that the Buyer is no longer able to comply with its obligations under the Contract or receive any benefit to which it is entitled; or

d. the Buyer stops carrying on all or a significant part of its business, or indicates in any way that it intends to do so; or

e. the Buyer is unable to pay its debts either within the meaning of section 123 of the Insolvency Act 1986 or if the Supplier reasonably believes that to be the case; or

f. the Buyer becomes the subject of a company voluntary arrangement under the Insolvency Act 1986; or

g. the Buyer has a receiver, manager, administrator or administrative receiver appointed over all or any part of its undertaking, assets or income; or

h. the Buyer has a resolution passed for its winding up; or

i. has a petition presented to any court for its winding up or an application is made for an administration order, or any winding-up or administration order is made against it; or

j. the Buyer is subject to any procedure for the taking control of its goods that is not withdrawn or discharged within [seven] days of that procedure being commenced; or

k. the Buyer has a freezing order made against it; or

l. the Buyer is subject to any recovery or attempted recovery of items supplied to it by a supplier retaining title to those items; or

m. the Buyer is subject to any events or circumstances analogous to those in clauses 12.1 (f) to 12.1(l) in any jurisdiction.

12.2  If the Buyer becomes aware that any event has occurred, or circumstances exist, which may entitle the Seller to terminate the Contract under this clause 12, it shall immediately notify the Seller in writing.

12.3  Either party may terminate the Contract with the other party by serving three (3) months advance written notice without cause.

12.4  Termination or expiry of these Conditions shall not affect any accrued rights and liabilities of the Buyer at any time up to the date of termination.

13. Supremacy Clause: All documents that comprise this Contract will be construed, to the extent possible, as consistent and as cumulative; provided, however, that if such construction is unreasonable, then the terms of any purchase or supply agreement signed by Seller will control, followed by the terms of the applicable purchase order, followed by these Conditions.

14. Assignment: The Buyer may not assign, subcontract or encumber any right or obligation under the Contract, in whole or in part, without the Seller’s prior written consent.

15. Miscellaneous:

15.1  No variation, waiver or addition to these conditions shall be binding on the parties unless agreed in writing.

15.2  Nothing in these Conditions purports to limit or exclude any liability for fraud.

15.3  If any of the provisions of these Conditions are invalid, this shall not affect the validity of the remainder of these Conditions.

15.4  Seller has specifically reminded Buyer of those provisions hereunder limiting or exempting Seller’s liability and/or in-creasing Buyer’s liabilities and has explained to the Buyer such provisions as required by Buyer.  Buyer has carefully read, sufficiently understood and voluntarily accepted such provisions.

16. Law and Jurisdiction: These Conditions and any dispute related hereto or to any Individual Supply Contract shall be construed and governed by the laws of the country and place where the Buyer or its Affiliate issuing a Release has its seat, however, without regard to its conflicts of Laws provisions. Venue shall be with the court having jurisdiction over the Buyer or its Affiliate issuing a Release. Should in accordance herewith Chinese Law apply, the parties agree to arbitration in accordance with the then applicable rules of Shanghai International Economic and Trade Arbitration Commission in Shanghai; in accordance herewith Indian Law apply, any dispute related hereto that arises in India will be subject to arbitration in accordance with the rules contained in the Arbitration and Conciliation Act, 1996 and amendments thereto.

17. Export Control

17.1 If Buyer transfers items (goods, software, technology) delivered by Seller or works and services performed by Seller to a third party Buyer shall comply with all applicable national and international (re-) export control regulations (e.g., regulations of the European Union, regulations of the United States).

17.2 Buyer shall in particular check and guarantee by appropriate measures that:

-    There will be no infringement of an applicable embargo (in particular imposed by the United States of America) by such transfer, by brokering of contracts concerning those goods, works and services or by provision of other economic resources in connection with those goods, works and services, also considering the limitations of domestic business and prohibitions of by-passing those embargos;

-    Such goods, works and services are not intended for use in connection with armaments, nuclear technology or weapons, if and to the extent such use is subject to prohibition or authorization, unless required authorization is provided;

-    The regulations of all applicable Sanctioned Party Lists concerning the trading with entities, persons and organizations listed therein are considered.

17.3 If required to enable authorities or Seller to conduct export control checks, Buyer, upon request by Seller, shall promptly provide Seller with all information pertaining to the particular end customer, the particular destination and the particular intended use of goods, works and services provided by Seller, as well as any export control restrictions existing.   

17.4 Buyer shall indemnify and hold harmless Seller from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by Buyer, and Buyer shall compensate Seller for all losses and expenses resulting thereof.

17.5 Both parties shall not be obliged to fulfil these Conditions or any order placed hereunder if such fulfilment is prevented by any impediments arising out of national or international foreign trade or Customs requirements or any embargoes or other sanctions. 


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