General Terms and Conditions of Sale and Delivery of the company B.E.A. Electronics (Beijing) Co., LTD
Article 1: Content, entering into agreement and interpretation of commercial terms
1.1. The present General Terms and Conditions of Sale and Delivery (“General Terms & Conditions”) govern any and all contractual and non-contractual relations (including without limitation agreements, arrangements, deliveries, orders, commitments, terms sheets, letters, memoranda, offers, proposals and quotations) (“Contracts”) between B.E.A. Electronics (Beijing) Co., LTD (比业电子（北京）有限公司) (“BEA”) and any person, firm, company or other legal entity purchasing, placing an order for, or making any enquiry regarding the purchase of, goods or services from BEA (“Buyer”) for the entire duration of their business relations (BEA and Buyer each, a “Party”, together, the “Parties”, and any goods delivered by BEA, the “Products”).
1.2. In its relationship with BEA, Buyer accepts the present General Terms and Conditions as a result of Buyer making an enquiry or placing an order with BEA, or due to Buyer accepting any goods from BEA. Buyer expressly waives the application of its own general terms and conditions, even in case these would be established subsequently to the present General Terms and Conditions. Any derogation from or revisions to these General Terms and Conditions shall, in order to be valid, be agreed upon expressly, in writing and signed by BEA. BEA’s General Terms and Conditions shall apply even in case BEA has delivered without reservation any Products to Buyer while knowing that Buyer applies general terms that are inconsistent with or different from these General Terms and Conditions.
1.3. Oral agreements or agreements by phone need at all times written confirmation by BEA in order to be valid. Any and all Contracts are only binding on BEA if they have been confirmed in writing by (a) an email sent from an official BEA email address by a duly authorized representative of BEA, or (b) an official document duly executed by BEA.
1.4. The interpretation of commercial clauses shall be done according to the commercial usage in Beijing and to the « Incoterms » of the International Chamber of Commerce in their present version.
1.5. In the event the terms of a written Contract between BEA and Buyer differ from these General Terms and Conditions, the terms of the Contract shall prevail.
Article 2: Offers and specifications
2.1. All offers made by BEA are free, non-binding and without commitment, unless BEA has provided explicit written confirmation that an order is binding and such confirmation specifies a validity period.
2.2. Unless explicitly otherwise provided in the Contract agreed upon by Parties, all information about weight, dimension, capacity, prices, efficiency and any other information to be contained in catalogues, brochures, newsletters, advertisements, price lists, and websites are indicative, non-binding and may not be relied upon.
2.3. BEA reserves the right to make modifications to any of the Products at every moment and without notice without, however, changing the specifications of the relevant Product. BEA also reserves the right to make modifications to any of the Products at any moment and without notice if these modifications are useful or necessary with respect to any laws and regulations that apply to such Products.
Article 3: Prices
3.1. All prices quoted by BEA are indicative, non-binding prices and without commitment. BEA reserves the right to amend any prices before acceptance of any order.
3.2. Unless otherwise provided in writing, all prices are considered « ex-works » Beijing and are established in RMB or in USD (excluding VAT).
3.3. BEA’s prices do neither include charges (including without limitation transportation and insurance charges) nor taxes (including without limitation VAT and import duties). The latter are to be paid by Buyer according to the legislation applicable at the moment of invoicing.
3.4. If the price of any purchase Contract is stated in a foreign currency (other than RMB or USD), a price review clause will be applied and BEA reserves the right to amend the prices in the Contract such that the RMB (for Buyers in China) or USD (for Buyers outside China) equivalent of the purchase price on the date of delivery, based on the official exchange rate, becomes equal to the RMB or USD equivalent that applied on the date of the purchase Contract.
3.5. Every special packaging requested by Buyer will be charged to Buyer.
Article 4: Payment procedures
4.1. All Products must be paid by Buyer to BEA in full prior to delivery and prior to BEA issuing a formal VAT invoice, unless otherwise provided in the Contract or on the invoice. Any V.A.T. legally due in connection with the delivery of any Products must be paid by Buyer in full at the time of paying for the Products.
4.2. Payments shall be done in the currency stated on the invoice and by transfer into one of the following bank accounts:
Account No: 348056011027
Beneficiary: B.E.A. Electronics (Beijing) Co., Ltd.
Bank: HSBC Beijing Brach, G/F. Block A, Beijing COFCO Plaza, No.8 Jianguomen Nei Da Jie Beijing, 100005
Account No: 006-011134-056
SWIFT code: HSBCCNSHBJG
4.3. BEA is not obliged to accept checks or bills of exchanges. If BEA exceptionally accepts bills of exchanges or (certified) bank checks, this acceptance is at all times subject to the condition that BEA will be credited with the total amount.
4.4. The payments by instalments made by Buyer are to be charged against the price of the order and constitute in no circumstances a deposit the surrender of which would authorize the Buyer to free itself from the Contract.
4.5. Payments made to representatives or employees of BEA do not in any way discharge a Buyer from its payment obligations to BEA, unless BEA has provided its prior express agreement and written confirmation.
4.6. Any claim with regard to an invoice shall be done by registered mail within eight days after receipt of the invoice. Upon expiration, no claim will be accepted and the invoice will be considered as accepted by Buyer. A claim or a call of warranty does not affect Buyer’s obligation to pay the other invoices due at the time of claim and does not entitle Buyer to suspend or set-off any payment whatsoever to BEA or to suspend any obligation whatsoever towards BEA.
4.7. Any compensation or retention whatsoever of payments by Buyer is only permitted if and to the extent Buyer’s claim is uncontested by BEA or legally established by means of a judgment which has acquired the authority of a final judgment.
Article 5: Non-payment, right of termination and cancellation of an order
5.1. In case of breach by Buyer of one of its obligations under any Contract or under these General Terms and Conditions, BEA is entitled to terminate the relevant Contract by registered mail, without any prior notice or formal notice. In this case, BEA is entitled to retain any of Buyer’s prepayments or payments by instalments in order to cover possible loss on the resale of Products.
5.2. In case of non-payment at the due date for payment under any Contract, Buyer shall pay automatically and without any prior notice interest on the overdue payments at a rate of 0.035% per day. This non-payment at the due date also gives rise, under the same conditions, to the obligation by Buyer to pay BEA liquidated damages of 15% of the amount of the unpaid invoice, with a minimum amount of RMB 1,000. BEA is also entitled to suspend, without any prior notice only by taking notice of the non-payment, the performance of all the obligations it may have towards Buyer who leaves any invoice unpaid, or partly unpaid.
The non-payment, or partial non-payment, at the due date of an invoice leads, in addition, to an immediate enforceability of all sums payable by Buyer to BEA, even if those sums are not due yet.
5.3. In case of non-payment, non-collection of bills of exchanges or (certified) bank checks, suspension of a payment or insufficient solvency, BEA is entitled to demand immediate payment by the Buyer or to demand the Buyer to provide a bank guarantee concerning all performed deliveries, and to demand full prepayment for any future deliveries.
5.4. Unless otherwise agreed in the Contract or BEA’s order confirmation, in case of cancellation of an order by Buyer, 25% of the agreed price will be due and payable by Buyer to BEA as liquidated damages.
The liquidated damages foreseen in this Article 5.4. do not affect BEA’s right to claim additional damages from Buyer, if the damage sustained by BEA exceeds the said liquidated damages.
Article 6: Delivery
6.1. Partial deliveries are permitted. According to the specificity and/or the extent of the order, BEA reserves the right to perform partial deliveries as its availabilities go along.
6.2. If Buyer does not take delivery at the moment agreed upon by Parties, Buyer has nevertheless to pay the Product. The stocking of such Product takes place on behalf and at the risk of Buyer.
6.3. Unless otherwise provided in the Contract, the transfer of the risk of loss, of theft or of any other damage of the Product takes place at the time the Products leave the premises or any other depository of BEA in order to be carried to Buyer or its transporter. Unless otherwise provided in the Contract, Buyer has to bear the freight costs, customs duties and insurance fees.
6.4. Products are carried on behalf and at the risk of Buyer. BEA reserves the right to choose the itinerary, the packaging and other transport security procedures. Unless otherwise provided in writing, the transport contracts and transport insurance contracts are negotiated by BEA.
6.5. All Products are sold « ex-works » Beijing, unless the Contract or BEA’s order confirmation specifies another place of business for pickup of the goods or another Incoterm.
6.6. In case of sale for export, Buyer is responsible for obtaining any necessary licenses including but not limited to the import licenses and exchange licenses.
6.7. Delivered Products may under no circumstances be returned to BEA without BEA’s prior written consent.
6.8. Delivery periods in Contracts are non-binding and always approximate. The delivery period begins at the date BEA sends the relevant order confirmation and is complied with if the Product has left BEA’s premises by the end of the delivery period. Delay in delivery of the Products, for whatsoever reason, does not carry the right for Buyer to demand compensation for damages or indemnity, nor a cancellation of the order or of the Contract agreed upon by Parties.
6.9. In case of force majeure, BEA has the right, either to reasonably extend the delivery period – even in case of late delivery – or to suspend the performance of the contractual relationship with Buyer for the duration of the force majeure, or to terminate all or part of the relevant Contract at any time with immediate effect, without payment of damages from BEA to Buyer.
Force majeure means any event beyond the reasonable control of BEA, including without limitation: wars, rebellion, strikes, lock-out, contagious diseases, natural disasters, flooding, fires, accidents of exploration, unforeseeable perturbations in the manufacturing conditions, administrative measures, difficulties in power supply, and delays in delivery of raw materials or components.
6.10. In case of an alteration whatsoever of Buyer’s financial situation, BEA reserves the right to demand bank guarantees and to stay the performance of the order until such guarantees for payment have been provided to the satisfaction of BEA.
6.11. In case of seizure, bankruptcy or other collective procedures such as the judicial reorganization, composition with creditors or similar procedures, BEA has the right to suspend its obligations or to terminate the Contract and to claim liquidated damages of 40% of the agreed price. The damages set forth in this Article 6.11. do not affect in any way BEA’s right to claim additional damages from Buyer, if the damage sustained by BEA exceeds said liquidated damages.
6.12. BEA may demand at any time from Buyer the return, at Buyer’s expense and risk, of any Products that have not been paid in full prior to the relevant due date for payment.
Article 7: Retention of title
7.1. BEA reserves and retains title to all delivered Products. The ownership title of any and all Products delivered to Buyer under a certain Contract shall remain with BEA, and such title shall only pass to Buyer once Buyer has performed each of its obligations towards BEA under such Contract in full, including receipt by BEA of the full payment of all existing claims (invoices, interests, expenses, etc.) it has on Buyer under the relevant Contract.
7.2. During the period between delivery of any Products and the transfer of the ownership title thereof under Article 7.1. above, Buyer must not dispose of, pledge, encumber, nor assign (not even as guarantee) such Products. The resale of such Products by Buyer is only permitted if this resale corresponds to Buyer’s usual business course or if Buyer gets immediate and full payment by its contracting partner or sells the Product subject to retention of title.
7.3. In case of disposal by Buyer of any Product that is subject to BEA’s retention of title, Buyer hereby assigns all rights resulting from this disposal (including the right to claim the purchase price including V.A.T. from the third party purchaser of the Products) to BEA which accepts the assignment. For valid reasons, in particular in case of non-payment by Buyer, Buyer is obliged, on BEA’s request, to inform its third party contracting partner about the assignment, and to transfer to BEA all necessary information and documents in order to allow BEA to be able to claim all its rights.
7.4. The transformation or treatment by Buyer of a delivered Product subject to BEA’s retention of title is made on behalf of BEA. If the Product is transformed with other movables which do not belong to BEA, BEA acquires undivided (common) ownership of the new movable on a pro rata basis of the value of the delivered Product with regard to the other transformed movables at the time of transformation. Articles 7.1., 7.2. and 7.3. apply to the new so transformed movable.
7.5. If the delivered Product subject to BEA’s retention of title is combined or mixed in an inseparable manner with other movables which do not belong to BEA, BEA acquires the undivided (common) ownership of the new movable on a pro rata basis of the value of the delivered Product with regard to the other combined or mixed movables at the time of combining or mixing. If, after combining or mixing, Buyer’s new good has to be considered as main good, Buyer hereby assigns from the present date the part of the undivided (common) ownership to BEA which accepts the assignment. Buyer retains the ownership of the (common) ownership on behalf of BEA.
7.6. Buyer has to inform BEA immediately about any possible seizures, distraints or other acts of disposal or intervention by third Parties on any Product subject to BEA’s retention of title.
7.7. In case of any breach of any provision in a Contract, in particular in case of late payment, BEA is entitled to terminate the Contract and to immediately take back all Products subject to BEA’s retention of title. Buyer is obliged to return such Products immediately upon BEA’s first demand.
Article 8: Warranty and liability for defects
8.1. BEA grants no warranties whatsoever, except in case BEA agrees thereto in an express written agreement.
8.2. Unless otherwise agreed upon in writing, each Product that contains a valid serial number is guaranteed against any hidden defect due to a manufacturing defect or to a defect of the material for a period of two years after the date of delivery of such Product by BEA to Buyer. Products that do not contain a valid serial number do not benefit from such guarantee, nor from any other guarantee or warranty.
8.3. If a product is repaired after the warranty period set forth in Article 8.2., such repaired Product will benefit from a specific warranty of six months starting from the delivery date of the repaired Product to Buyer. If a Product is repaired within the warranty period set forth in Article 8.2., it will benefit from an extended warranty of six months upon expiry of the original 2-year warranty period.
8.4. All products no longer under warranty, but returned to BEA within five years after the date of delivery to Buyer, will be repaired by BEA in accordance with the then prevailing pricing regulations set by BEA. BEA is under no obligation to repair Products after this five-year period, except if BEA agrees thereto in writing in special cases. BEA’s detailed after-sales rules and policies can be found on BEA’s website, provided that in case of any conflict between those after-sales rules and these General Terms and Conditions, these General Terms and Conditions shall prevail (https://asia.beasensors.com/en/legal-sales-services/).
8.5. Any claim concerning defects of the delivered Product has to be notified immediately by registered mail to BEA and is excluded if BEA has not received it within eight days after receipt of the delivery. Failing this, the delivery will be considered as definitely received and accepted by Buyer. Those defects that could not have been detected within this time period but only after subsequent verification of the Products have to be notified immediately by registered mail to BEA, within eight days of their detection. No later claim will be accepted and the delivery will be considered as approved by Buyer.
8.6. In case of defects that are duly accepted by BEA, BEA may remedy such defects at its choice within a reasonable time limit, either by repair, or by delivery of a non-defective Product. Buyer has to grant to BEA the possibility and the time necessary to remedy the defects. In case any Products have not been used strictly in compliance with BEA’s advice for use, or if any transformation, modification, overhaul, dismantling or repair of any Product has been performed by Buyer or any third party, the product warranty no longer applies and BEA is automatically released from all its liabilities with respect to such Products. The product warranty does also not apply, and BEA shall not be liable, for any and all damages that are not caused due to the faulty manufacturing of the Product, including without limitation:
8.7. If the repair or replacement of a defective Product fails or is not performed within the reasonable time limit, Buyer may ask for a reduction of the selling price or terminate the relevant portion of the Contract. If Buyer has already used the Product, Buyer is obliged to pay a part of the purchase price as reasonably determined by BEA.
8.8. Damages resulting from usual wear and tear of the Product, from non-compliance with any advice for use as provided by BEA, inappropriate use or negligence by Buyer or a third party, in particular the inappropriate storage of Products, are not regarded as defects.
8.9. All rights of Buyer concerning defects beyond the present General Terms and Conditions are excluded. Except as expressly provided in these General Terms and Conditions or any Contract, all warranties, conditions or other terms implied by statute or law are excluded to the fullest extent permitted by law.
Article 9: Limitation of Liability
9.1. In this Article 9. BEA does not exclude or limits its liability for any matter for which it would be unlawful to exclude liability.
9.2. For damages that do not concern the delivered Product in itself, BEA is only liable in case of fraud or gross negligence and for bodily injuries.
9.3. BEA shall under no circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any indirect or consequential loss, nor for any loss (whether direct or indirect) of profits, production, contract, business, business opportunities, revenue, turnover, reputation, goodwill, anticipated savings or wasted expenditure (including management time).
9.4. BEA’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of any Contract shall be limited to twice the amount of the purchase price actually paid by Buyer to BEA with respect to the Products involved in the claim.
9.5. BEA’s liability (including without limitation due to fraud or gross negligence) is at all times limited to reasonable damages that were foreseeable at the time of the conclusion of the Contract.
9.6. The Buyer shall indemnify BEA and each of its affiliated companies and its and their directors, officers, employees, agents, subcontractors and related persons against any and all claims from third parties of whatever nature in relation to any Products.
9.7. In the event of a sale by BEA of equipment for export, it is the responsibility of the Buyer, which is importing the Product into its country to ensure that any and all obligations are met, declarations are made and taxes paid in relation to this type of Products (including without limitation WEEE/Batteries/ Packaging).
9.8. Since BEA equipment is deemed to be electronic equipment and intended to be installed by professionals, it is the responsibility of said professionals to dispose of the equipment after its use via the appropriate reprocessing and recycling channels, and in accordance with the regulations in force in the relevant country.
9.9. The abovementioned provisions are as well applicable concerning BEA’s agents or performing agents.
9.9. Buyer is prohibited from making any claim under or in connection with any Contract or Product against any of BEA’s affiliated companies and against BEA’s and its affiliated companies’ directors, officers, employees, agents, subcontractors and related persons.
Article 10: HALMA Code of Conduct, Export Controls, Anti-Bribery, Anti-Slavery and Tax Compliance
10.1. The Buyer must comply, and must procure that each of its affiliated companies and its and their officers, directors, employees, agents and subcontractors comply, with all provisions stipulated in the HALMA Code of Conduct, available to download from the website http://www.halma.com/~/media/Files/H/Halma-V4/about-us/code-of-conduct/e01-1-code-of-conduct-uk-english.pdf. The Code of Conduct applicable at the date hereof is attached hereto as Appendix A.
10.2. This Code is designed to guide BEA and BEA’s business partners in their professional activities. It indicates how to steer business activities with regard to ethics, ethical rules, and the law. It also obliges the Parties to respect the law and national and international regulations, particularly regarding fraud and corruption, conflicts of interest, insider dealing, and whistle-blowing.
10.3. The Buyer hereby acknowledges and agrees that the supply of the Products may be subject to Trade Restrictions. BEA reserves the right to carry out screening and background checks on the Buyer prior to the supply of Products and at any time during the performance of the Contract. The Buyer shall provide all assistance to BEA that BEA reasonably requires in relation to such checks.
10.4. The Buyer is solely responsible for complying with and shall not do anything which would cause BEA to be in breach of, Trade Restrictions. In particular, the Buyer warrants and represents that it:
10.5. In addition to any other remedy available to BEA, the Buyer shall indemnify, keep indemnified and hold harmless (on a full indemnity basis) BEA and its affiliates, officers and personnel against any and all direct or indirect liabilities, claims, demands, damages, losses or expenses (including legal and other professional advisers’ fees and disbursements), interest and penalties suffered or incurred as a result of any breach of this Article 10. BEA reserves the right to terminate the Contract(s) immediately upon written notice and without penalty in the event of such breach.
10.6. BEA shall not be obliged to perform any obligation under any Contract and shall have the right to terminate each Contract, without being liable for any damages or costs of any kind, if in its sole discretion it reasonably believes that such performance in full or in part would place it in violation of any Trade Restrictions (including, for the avoidance of doubt, if such violation would be the result of any delay to, or refusal of, the grant of any licence required under Trade Restrictions).
10.7. Nothing in this Article 10 shall require either party to act in any way contrary to any blocking or antiboycott laws with jurisdiction over such party’s operations, including (if applicable) the Anti-Foreign Sanctions Law of the People’s Republic of China.
10.8. The Buyer shall (and shall procure that its Associated Persons shall):
10.9. The Buyer shall comply with all applicable anti-slavery and human trafficking laws, statutes, regulations and codes from time to time in force including but not limited to the UK Modern Slavery Act 2015 and will not engage in any activity, practice or conduct that would constitute an offence under sections 1, 2 or 4, of the Modern Slavery Act 2015.
10.10. The Buyer shall (and shall procure that its Associated Persons shall) comply with all applicable taxation laws and shall not commit an offence consisting of the evasion of tax, or the facilitation of tax evasion by another person.
10.11. BEA may terminate each Contract immediately upon written notice to the Buyer where it reasonably believes that the Buyer has breached this Article 10 and the Buyer shall indemnify BEA from all damages, penalties, fines and/or costs of any kind arising from, or relating to, any breach of this Article 10.
10.12. In this Article 10 the following definitions apply:
Article 11: Place of performance of the obligation, intellectual property rights, jurisdiction, applicable law and miscellaneous
11.1. The place of performance of the obligations under each Contract is the registered office of BEA located at: A-B Area, 3rd Floor, No.1 Building, No.5 Xinghai Road, Beijing Economic Technological Development Area, 100176 BEIJING, People’s Republic of China
11.2. Any design, plan, offer, project, list of material and any other document transmitted to Buyer remains BEA’s property. They must in no circumstances be copied completely or even partially, nor shown or transmitted in whatever way to third parties without prior written consent given by BEA. These documents must only be used for the purpose for which BEA transmitted them. The transmission of these documents must in no circumstances be construed in such a way that a license whatsoever would have been granted to Buyer.
11.3. All intellectual property rights in the Products shall remain at all times the sole property of BEA, and Buyer shall acquire no intellectual property rights in the Products whatsoever. Buyer guarantees and undertakes towards BEA that it shall not, and Buyer shall procure that each of its affiliated companies and its and their respective officers, directors, employees, agents, subcontractors and related persons shall not: reproduce, replicate, duplicate, make adaptations or variations of, modify, repair, disassemble, decompile, reverse engineer, nor in any other manner copy any of BEA’s Products.
11.4. Unless otherwise provided in BEA’s order confirmation, PRC law applies to these General Terms and Conditions and to all Contracts between the Parties. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
11.5. Any dispute arising from or in connection with these General Terms and Conditions or any Contract between the Parties shall be submitted to the China International Economic and Trade Arbitration Commission (“CIETAC”) for arbitration, which shall be conducted in accordance with the CIETAC’s arbitration rules in effect at the time of applying for arbitration. The number of arbitrators shall be one and the arbitration proceedings shall be conducted in English language only. The arbitral award is final and binding upon both parties.
11.6. If one provision of the present General Terms and Conditions or a provision whatsoever in relation to a Contract entered into between BEA and Buyer is null and void or becomes null, the other provisions or agreement are not affected and stay into force. This Article 11.6. is not applicable if the enforcement of the terms of the agreement constitutes an intolerable disproportionate burden for one of the Parties.
11.7. These General Terms and Conditions are, and any Contract may be, made out in English and Chinese. Should any conflict between the English version and the Chinese version arise, the English version shall prevail.
11.8. The present General Terms and Conditions enter into force on November 11, 2021. They cancel and replace all previous general Terms and Conditions of BEA.