General Terms and Conditions of Sale of LEHVOSS (Shanghai) Chemicals Trading Co., Ltd.

1. Exclusive Application

1.1 These terms and conditions as set out below (“GTC”) shall be valid from June 1st, 2016 and shall apply to the sales of products (“Goods”) by LEHVOSS (Shanghai) Chemicals Trading Co., Ltd. (“Seller”) to the buyer of the Goods (“Buyer”).

1.2 Seller and Buyer are hereinafter jointly referred to as "Parties" and individually referred to as "Party".

1.3 The GTC shall supersede any other terms appearing in the catalogues of Seller (or any other LEHVOSS Group Companies), Seller’s website or elsewhere in the communication between Seller and Buyer and shall override and exclude any other terms stipulated or incorporated or referred to by Buyer with regard to the sales of Goods, whether in an Order as defined in clause 2.1 below, in any negotiations or in any course of dealing established between Seller and Buyer, except as specifically agreed by Seller in written form by expressively excluding the application of this clause. Any terms and conditions proposed by Buyer shall only apply if Seller has expressly agreed upon in writing. Buyer acknowledges that there are no representations or warranties regarding the sales of Goods outside these GTC, which have induced him to accept these GTC. Except for terms expressly agreed by Seller pursuant to this clause, the Sales Contract and these GTC constitute the entire understanding between the Parties for the sale of the Goods and shall apply to the entire business relationship between the Parties including to all present and future Sales Contracts (as defined in Clause 2.1). Neither Party shall be bound by nor liable to the other Party for any representation, warranty, promise or inducement made by that other Party or any agent or person in that other Party’s employment and not embodied in these GTC or the Sales Contract, unless such other terms are expressly agreed upon pursuant to these GTC or the Sales Contract in writing.

2. Order Confirmation

2.1 Seller shall either send a written offer (“Offer”) for Goods to Buyer or Buyer shall send an order of Goods (“Order”) to Seller. Upon Buyer receiving a written confirmation of its Order (“Order Confirmation”) or Seller receiving an acceptance of its Offer by Buyer (“Acceptance”), the Parties are deemed to have concluded a binding sales contract (“Sales Contract”) for the Goods with the content of the accepted Order Confirmation or Offer governed by these GTC. Changes of Buyer to an Offer shall be invalid.

2.2 An Order Confirmation or an Offer shall only be valid in writing, whereas written form shall include emails and other forms of electronic communication. Otherwise, no Sales Contract shall be deemed to be concluded, except Seller delivers the Goods as orally or otherwise offered or confirmed to Buyer. However Seller may at its discretion accept an Order or an Acceptance of an Offer in any form including Buyer paying the price as stated in the Offer with the result that a Sales Contract is deemed to be concluded.

3. Invitation to Treat

3.1 Seller’s catalogues, advertisements, quotations or any price lists are not binding, unless explicitly agreed otherwise in writing.

3.2 All descriptions and illustrations contained in the catalogues, advertisements, quotations or price lists of Seller or otherwise communicated by Seller to Buyer or samples of Goods provided to, exhibited or inspected by Buyer are intended merely to present a general description of the Goods and nothing contained in any of them shall form any part of the Sales Contracts nor shall it constitute a sale by sample.

4. Price Adjustments and Changes to GTC

4.1 Prices for Goods (“Price”) are exclusive of VAT and/or other taxes or duties.

4.2 If Seller informs Buyer about new terms and conditions altering these GTC, increase or decrease of Prices or any other changes (“Changes”) to the Sales Contracts under which the delivery of Goods has not been due, such Changes shall apply to such Sales Contracts with immediate effect, unless Buyer objects within five (5) working days. However, all Changes shall be reasonable and any Price Changes shall be limited to a maximum of five (5) %, except that Seller requires Price Changes which are justified due to alterations in rates of exchange, variations in costs of materials, sub-suppliers’ price increase, changes in wages, state requisitions or similar conditions over which Seller has no or only limited control. In case Buyer objects Price Changes within five (5) working days, Seller shall be entitled to rescind from the Sales Contracts under which the delivery of Goods has not been due. 

5. Delivery

5.1 The agreed Goods delivery times and dates are always considered to be approximate, if no fixed date (“Fixed Delivery Date”) is expressively agreed.

5.2 EXW (Incoterms 2010) shall apply to the delivery of Goods, unless otherwise stipulated in the Sales Contracts or expressively agreed otherwise in writing by the Parties.

5.3 Seller shall only be liable for late delivery of Goods if such late delivery is caused directly through a willful or grossly negligent act of Seller. Seller shall not be liable for non-delivery of Goods if Seller is entitled to rescind from a Sales Contract or the risk of accidental loss has passed onto Buyer and Buyer did not receive the Goods.

5.4 If delivery is delayed due to the Buyer's reason, including but not limited to Buyer’s or Buyer’s agent failure to pick up the Goods on the Fixed Delivery Date or the moment Buyer is considered late according to the delivery times agreed in the Sales Contract, the risk of accidental loss or damage of the Goods shall pass to the Buyer once the Fixed Delivery Date or agreed delivery times has passed. In case Buyer fails to pick up the Goods within three (3) working days after any Fixed Delivery Date or agreed delivery time, Seller shall have the right to charge storage costs for the storage of the Goods at average market rates from the Fixed Delivery Date or agreed delivery time onwards.

5.5 Where Seller undertakes to deliver the Goods, delivery shall take place when Goods are loaded off Seller’s or a third party’s vehicle, ship or other transport at the station, port or address specified by Buyer. Where Buyer undertakes to collect the Goods, delivery shall take place when Goods are loaded on Buyer’s or a third party’s vehicle, ship or other transport at the address of Seller or the address of any storage or warehouse facility used by Seller for storage of Goods.

5.6 The place of fulfillment for Seller’s delivery obligation shall always be the place of dispatch. For the avoidance of doubt, the term “dispatch” shall mean completion of loading by Seller or when Seller hands over the Goods to Buyer or Buyer’s appointed third party for loading.

5.7 Packing and delivery costs as well as transportation costs shall be invoiced on top of the Prices to Buyer by Seller and Seller shall be entitled to add an amount equal to the applicable tax to such invoice.

5.8 Seller shall have the right to deliver Goods in partial deliveries.

6. Price and Payment conditions

6.1 Prices are exclusive of any taxes, transportation costs, cost of documents and other charges, whether of a general or of a special nature, which shall be charged to Buyer, unless otherwise explicitly indicated in respective Sales Contract.

6.2 Commercial invoices issued by Seller are payable by Buyer immediately after the date of the invoice and shall become overdue ten (10) calendar days after the date of the invoice, unless explicitly agreed otherwise in writing. Seller shall issue VAT invoice (“Fapiao”) to Buyer after payment arrives in Seller’s account. If the payment becomes overdue, Buyer shall, pay Seller interest (“Interest”) at a daily rate of 0.05% of the overdue amount in respect of the period commencing from the due date to the date of receipt of full payment. All Interest shall become payable at once Seller claims the same and under no circumstances shall Buyer withhold any amount of Interests or payment because of dispute claim of any nature.

7. Warranty and Liability

7.1 Seller warrants that the Goods are manufactured with all reasonable care and skill and, where applicable, comply with the standard specifications set out in Seller’s published catalogues, advertisements, quotations or any price lists in relation to the Goods current at the date of Buyer’s Order and made available to Buyer (“Conforming Goods”).

7.2 Buyer shall examine the Goods within fourteen (14) days after delivery for any loss, deviations in quantity, obvious damage or incorrect deliveries and give notice to Seller within two (2) working days upon discovery. If Buyer does not claim loss, deviations in quantity, obvious damage or incorrect deliveries within fourteen (14) days after delivery or within two (2) days upon discovery, the Goods are deemed as delivered in correct quantity, quality and as Conforming Goods. For any latent non-contractual quality, Buyer shall examine the Goods within six (6) months after delivery and give notice to Seller of any non-contractual quality within two (2) days upon discovery; in case Buyer does not claim latent non-contractual quality within six (6) months after delivery or within two (2) working days upon discovery, the Goods shall be deemed as Conforming Goods.

7.3 Seller may deliver against a Sales Contract an excess or deficiency of up to 10% of weight or volume ordered, which shall be considered as contractual and the quantity actually delivered will be stated in the invoice and charged.

7.4 If Buyer can prove any of the Goods to be defective, including goods which are not Conforming Goods or are defective in the definition of the Product Quality Law of the PRC, (“Defects” or “Defective”) , Seller shall, at its discretion, either rectify or replace the Defective part of the Goods (the replaced part or the replaced Good shall become the property of Seller) at the place of fulfillment and in the condition originally specified or Seller shall credit Buyer with a corresponding proportion of the original invoice price, but shall not be under any other liability in respect of either the original or any replace Goods and in any case Seller may decide - at Seller’s own discretion - to take back the Defective Goods. If Seller decides not to take back Defective Goods Buyer shall properly and safely dispose of the Defective Goods in accordance with any applicable laws and regulations at Buyer´s own costs. Seller shall be under no liability in respect to alleged Defective Goods, if Buyer does not provide written notice and details of the Defect to Seller, Buyer does not give Seller’s representative adequate opportunity to inspect the Goods nor does Buyer extract samples for analysis by Seller or Buyer has not used, kept, maintained or dealt with the Goods properly nor has Buyer forthwith ceased processing the Goods.

7.5 The Seller shall not be liable for any kind of damage caused by the Goods. In particular the Seller shall not be liable for damage resulting from the violation of contractual obligations. This also includes any liability of Seller for recommendations, consultation and/or advice.

The above exclusions of liability shall not apply:

· in case of intent or gross negligence of one of Seller's directors/officers or employees;

· in case of intent or gross negligence of any person representing Seller by law or of any person used by Seller in performing an obligation of Seller;

· in case life, body or health of a person have been injured.

7.6 In any event Seller's liability shall be limited to 1,000,000 RMB or five (5) times the amount invoiced under the respective Sales Contract, whichever is lower. This liability restriction as to amount does not apply:

· in case of intent or gross negligence of one of Seller's directors/officers or employees;

· in case of intent or gross negligence of any person representing Seller by law or of any person used by Seller in performing an obligation of Seller;

· in case life, body or health of a person have been injured.

7.7 Damage claims against the Seller are limited to the typical damages foreseeable by Seller at the time of the entering into the Sales Contract. In this regard Seller's liability shall be excluded, in particular, for damages that are exclusively allocated to the risks borne by the Buyer. Seller shall in no case be liable for consequential loss, which shall include, without limitation, pure economic loss, loss of profit, loss of production, loss of business, loss of goodwill or like loss.

7.8 These GTC set out the entire liability of Seller in respect of the Goods, and the liability of Seller under these GTC shall be in lieu and to the exclusion of all other warranties, conditions and terms express or implied, statutory or otherwise in respect of quality or the fitness for any particular purpose of the Goods or otherwise howsoever, all liability in respective of which, howsoever arising, is expressly excluded except any stipulated by law or statute that cannot be excluded.

7.9 Should any third party suffer personal injury or property damage due to Goods and claim such damage from Seller, Buyer shall indemnify and hold harmless Seller from any claims of such third party and compensate Seller for any damage based on such claims of a third party, including but not limited legal costs, reparation of reputation, unless such damage was not the fault of Buyer.

7.10 Upon resale of Goods, in case a third party suffers property damage or personal injury caused by such Goods (“Incident”) and claims compensation against the Buyer, Buyer shall inform Seller of such claim and Incident without undue delay and allow Seller to attend in the settlement or to be summoned in the legal action so that Seller may participate and have the opportunity to determine the nature, cause, the fault of cause or any other factors of the Incident; otherwise, Buyer shall not be entitled to take recourse from Seller based on any promises, offers, concessions, agreement, payment or compensation made by the Buyer to the damaged party, and where the Buyer takes recourse from Seller, Seller’s liability toward the Buyer shall be limited to the damage, of which the limitation Seller could have achieved, if Seller would have been included in the legal actions or negotiations.

8. Force Majeure

8.1 Seller shall not be liable for any breach of contract in the event of force majeure, such as natural disaster, war, riots, strike, boycott, fire, explosions, lack of workforce, energy or raw materials, interruptions to production or business operation, decisions or omissions of public authorities as well as any other events which are beyond the control of Seller. Seller shall be temporarily relieved from its obligations during the period of such events being present and to the extent Seller’s obligations are affected. Seller is obliged to provide Buyer without undue delay with the necessary information that may reasonably be expected, and to adjust Seller’s obligations by consulting with Buyer in good faith to the changed circumstances.

8.2 If the Parties cannot agree on a solution acceptable for Seller within fifteen (15) days from the date of occurrence of the event, Seller has the right to terminate affected Sales Contract with a written notice to Buyer.

9. User Recommendation

9.1 Recommendations of Seller about the use and processing of the Goods are of a general nature only, and do not exempt Buyer from its duty to carry out appropriate testing regarding the fitness of the Goods for Buyer’s particular purposes and conditions. Seller does not make any warranty with regard to the fitness of the Goods to Buyer’s particular use or application and its particular processing conditions. Buyer shall indemnify Seller in respect of all damage, injury or loss occurring to any person or property and against all actions, suits, claims, demands, charges or expenses in connection therewith arising from the condition or use of the Goods in the event and to the extent that the damage, injury or loss shall have been occasioned partly or wholly by the carelessness of Buyer or its servants or agents or by any breach by Buyer of its obligations to Seller hereunder or not complying with any instructions by Seller.

10. Limitations on Use

10.1 Seller’s Goods are produced for civilian use. Buyer is not allowed to use or resell the Goods for purposes which have any connection to chemical, biological or nuclear weapons or for missiles which are capable of delivering such weapons. Buyer is not allowed to sell the Goods to persons, companies or any other kind of organizations if Buyer has knowledge of or suspects that said person or entities are related to any kind or terrorist or narcotics activities. The Goods maybe subject to legal regulations and restrictions and may therefore be subject to restrictions in case of sale to countries/customers covered by export and import ban. These restrictions shall be observed in case of resale of the Goods to such countries/customers. Buyer is not allowed to resell Goods if there is doubt or suspicions that the Goods can be used for the purposes mentioned in this clause. If Buyer receives knowledge of or suspects that the conditions in this clause have been violated, Buyer shall immediately inform Seller.

11. Packing

11.1 Unless otherwise agreed, Buyer shall dispose of all packages at his own cost and in accordance with any applicable regulation. In so far as packing is reused by Buyer, any indication on the packing as to the Goods and to Seller’s identification (e.g. name, logo, trademark and etc.) must be entirely removed. Special conditions as notified by Seller to Buyer in writing apply to returnable packaging and such returnable packaging shall be owned by Seller.

12. Safety

12.1 The requirement set out on the safety data sheet of each specific Good must be complied with by Buyer when storing, processing, and transporting the Goods. Seller shall not store, process, transport, treat or use the Goods beyond the defined areas of application. Buyer shall be liable and indemnify Seller from any damages arising from storing, processing, transporting, treating or using of the Goods beyond the defined areas of application. If delivered Goods are classified as hazardous, such Goods may only be stored and transported by Buyer in the required form of packaging and by required means of transport according their hazard classification. Buyer shall ensure that the Good are at all-time labeled as required by any applicable regulations and Buyer is solely liable and responsible for complying with any applicable regulation, including: obtaining all required licenses and approvals, for the storage and transportation of the Goods. Buyer shall indemnify Seller upon demand for any loss, damage or injury to person or property and all actions, suits, claims, demands charges or expense suffered by Seller for any failure by Buyer to comply with such regulations.

12.2 The Buyer shall ensure that any subsequent buyer or user of Goods will be instructed sufficiently by means of, including but not limited to, putting further buyer and user of Goods under the same contractual obligation towards Buyer as those the Buyer has. The Buyer shall be liable for any damages and indemnify Seller from the claims of any third parties if Buyer fails to observe this clause.

13. Trademarks

13.1 Buyer must not use any trademarks or copyrights in connection with the Goods manufactured or supplied by Seller unless and except to the extent that Buyer has obtained prior explicit written consent from the owner of the trademark or copyright.

14. Non-Analyse

14.1 Buyer shall not analyze or have any third party analyze the Goods, reacted materials or material samples of the initial components, in terms of their chemical composition and manufacturing process (including but not limited to divulging samples of the Goods to any third party, which either competes with Seller or might be suspected to hand the samples of the Goods to Seller’s competitors or to any analyzing institutes). Buyer shall be aware that the chemical composition and manufacturing process of the Goods, are essential business know-how of Seller and hence are strictly confidential, and that any breach of its non-analyze obligation provided herein might lead to considerable damages to Seller. Buyer acknowledges and agrees that any economic compensation may not be an adequate remedy for any breach of Buyer’s non-analyze obligation provided herein and that accordingly Seller shall be entitled (but not limited) to seek from Buyer a contractual penalty of 1,000,000 RMB and no proof of special damages shall be necessary for the enforcement of this penalty. If the actual damage exceeds the previously mentioned penalty, Seller has the right to claim any damage exceeding the penalty. In the interest of both Parties, Buyer shall always make agreements with the same non-analyze obligations as Buyer has herein for the Goods with all its customers.

15. Applicable Law and Arbitration

15.1 These GTC and all Sales Contracts governed by these GTC shall be governed by the laws and regulations of the People’s Republic of China unless any agreement in writing has been made to the contrary. United Nations Convention on Contracts for the International Sale of Goods are excluded.

15.2 All disputes arising out of or in connection with the business relationship between the Parties shall be settled by negotiations or conciliations. Should these negotiations or conciliations not lead to any result acceptable to both Parties within two (2) months, these disputes shall be submitted to the Shanghai International Economic and Trade Arbitration Commission (“SHIAC”) for arbitration, in exclusion of the competent court jurisdiction, by an arbitral tribunal consisting of three (3) arbitrators in accordance with SHIAC Rules as then in force. The arbitration shall be held in Shanghai. The arbitral procedure shall be conducted in the English language. The losing Party shall bear the legal costs, unless awarded otherwise by the arbitration tribunal. The arbitral award shall be final and binding. In case in any individual agreement another arbitration commission is agreed upon between the Parties, such agreement on other arbitration commission shall prevail.

16. Property and Risk

16.1 The ownership and property in the Goods delivered by Seller to Buyer shall remain in Seller until Buyer has paid the full Price or until the property is vested in some other person by the operation of any law. Notwithstanding the aforesaid, the Goods shall be at the risk of Buyer from the time when they are delivered in accordance with clause 5.4 herein. So long as the property in the Goods remains in Seller and Buyer is in default of any of the obligations hereunder or is insolvent, Seller shall have the right, with or without prior notice to Buyer, to retake possession of the Goods (and for that purpose to go upon any premises occupied by Buyer).

16.2 If Goods, which are the property of Seller (“Conditional Goods”) are mixed, blended or combined with other items, the Buyer already herewith assigns his ownership rights or co-ownership rights to the new item to Seller and shall hold the item in safe custody for Seller with due care.

16.3 As long as the Buyer meets its obligations to Seller in due form, the Buyer is authorized to further usage of the Conditional Goods in the ordinary course of business, provided that its claims resulting from resale as stipulated in the subsequent clause are assigned to Seller.

16.4 As security for all Seller’s claims, the Buyer herewith assigns to Seller any claims arising from reselling Conditional Goods to third parties. If the Buyer sells Goods of which Seller only has partial ownership, the Buyer assigns to Seller its claims against third parties in the corresponding partial amount. Should the Buyer use Conditional Goods within the scope of a contract of work (or similar contract), the Buyer assigns to Seller corresponding (wage) claims in the amount of the invoice value of Seller’s Goods used for this purpose.

16.5 In the normal course of business, the Buyer is authorized to collect claims from the further use of Conditional Goods. Should Seller have specific reasons for concern that the Buyer does not or will not properly meet his obligations to Seller, the Buyer shall upon Seller’s request disclose the assignment to its customers, refrain from any disposition regarding the claims, give Seller all required information about the stock of Goods owned by Seller and the claims which have been assigned to Seller and deliver the documents for the assertion of the claims assigned to Seller. Seller shall be informed immediately about any third-party's access to the Conditional Goods and the assigned claims.

16.6 Processing or conversion of the Conditional Goods is carried out on Seller’s behalf as if Seller is the manufacturer without putting Seller under any obligation.  Seller shall acquire the co-ownership of the intermediate and end products in case there are goods to which the title belongs to a third party by a ratio of the invoice value of Seller’s Conditional Goods to the invoice value of the third-party's goods; in this respect, the Buyer shall keep the intermediate and end products of Conditional Goods safe in trust and free of charge for Seller. The same applies to combination or mixing of conditional goods with third-party's goods.

16.7 If Buyer pays in full for the Goods as well as other sums due to Seller, then Buyer shall become the owner of the Goods even the Goods are still in place of Seller.

16.8 No matter which Party undertakes to deliver the Goods, the risk of accidental loss or damage of the Goods shall pass on to Buyer once Seller hands over the Goods to Buyer or any third party who is responsible for transit regardless by which Party such third party is appointed.

17. Miscellaneous

17.1 Neither of the Parties shall terminate any Sales Contract one-sided, unless otherwise stipulated in respective Sales Contract.

17.2 Either of the Party may terminate a Sales Contract, if the other Party breaches any of its contractual obligation under such particular Sales Contract and such breach is not cured by the breaching Party within fifteen (15) working days after being given a written notice.

17.3 If after conclusion of the Sales Contract Seller learns that the financial situation of the Buyer has been seriously deteriorating or that insolvency proceedings have been initiated or have not been initiated for lack of assets or that proper fulfillment of the Sales Contract is not secured, Seller may demand advance payment or collateral security equal to the value of the delivery. If the Buyer fails to fulfill this request, Seller shall be entitled to rescind all Sales Contract with immediate effect.

17.4 Buyer shall not assign any credit under any Sales Contract without the consent in writing of Seller. In case Buyer assigns a benefit under a Sales Contract to any third party without the consent in writing of Seller, Seller shall be entitled to determine to terminate or continue to perform the Sales Contract under which a credit has been assigned by Buyer, without prejudice to any other claim or right Seller might make or exercise.

17.5 Failure by Seller to insist upon strict performance of any of the terms and conditions under these GTC or the Sales Contract, or delay in exercising any of its remedies, shall not constitute a waiver of such terms and conditions or a waiver of any default, nor of any remedy.

17.6 In case any discrepancies between these GTC and any Sales Contracts, the terms and conditions stipulated in the Sales Contracts shall prevail.

17.7 If there is any inconsistency between the English Version and the Chinese version of these GTC, the English version shall prevail.