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CONTACT US
CONTACT US
EMBEST
TECHNOLOGY
0755-33190868
globalsales@embest-tech.com
Nanshan District, Shenzhen City Park Avenue, Lane 1183, Nanshan Valley Valley Innovation Industrial Park, 4th Floor, Building B
Embest’s Standard Terms and Conditions of Purchase


Embest’s Standard Terms and Conditions of Purchase


The following are Shenzhen Embest Technology Co., Ltd’s (hereinafter referred to as “Embest”) standard terms and conditions of purchase, which shall apply to all purchase orders and statements of work (hereinafter referred to as “Order” or “Orders”) issued by Embest, unless Embest has entered into a separate written agreement with the party that Embest issues the Order to (hereinafter referred to as “Seller”) that covers the same subject matter discussed herein.

1. ACCEPTANCE: These standard terms and conditions of purchase and the documents referred to herein govern all Orders issued by Embest, to the Seller identified on each Order. Fulfillment of any part of an Order, or any other conduct by Seller which recognizes the existence of a contract pertaining to the subject matter of such Order, shall constitute acceptance by Seller of such Order and all of the standard terms and conditions of purchase included or referenced herein (the "Contract Terms"). Embest objects to any terms proposed in Seller's proposal, quotes, sales note/order, acknowledgment or other form of acceptance of Embest’s offer which add to, vary from, or conflict with the Contract Terms. Any such proposed terms shall be void and the Contract Terms constitute the complete and exclusive statement of the terms and conditions between Seller and Embest. The Contract Terms may be modified at any time, without notice, by Embest. If this Order has been issued by Embest in response to Seller's offer and if any of the Contract Terms add to, vary from or conflict with any terms of Seller's offer, then the issuance of this Order by Embest shall constitute an acceptance of Seller's offer subject to the express condition that Seller assents to the additional, different and conflicting Contract Terms and acknowledges that the Order constitutes the entire agreement between Seller and Embest with respect to the subject matter hereof and the subject matter of Seller's offer. Seller shall be deemed to have so assented and acknowledged Embest’s Order unless Seller notifies Embest to the contrary in a writing signed by Seller within three (3) working days of receipt of the Order.

2. SERVICES & DELIVERABLES: Seller agrees to perform the services (“Services”) and/or provide the goods or service deliverables (collectively referred to hereafter as the "Goods") described in any Order to Embest, in accordance with the applicable Order and with these Contract Terms. Embest hereby reserves the right to reschedule any delivery or Order issued at any time prior to shipment of the Goods or prior to commencement of any Services. Embest shall not be subject to any charges or other fees as a result of such rescheduling unless otherwise agreed to in writing.

3. DELIVERY: Time is of the essence. Delivery of Goods shall be made pursuant to the relevant delivery date set out in the applicable order, via the carrier and to the place specified in the applicable Order. Embest reserves the right to return, shipping charges collect, all Goods received in advance of the delivery date. If no delivery date is specified, the Order shall be filled promptly and delivery will be made by the method of shipment specified. If no method of shipment is specified in the Order, Seller shall ship via the most expeditious service mode using the least expensive carrier. In the event Seller fails to deliver the Goods within the date specified, Embest may, at its option:1) decline to accept the Goods and terminate the Order; or 2) require the Seller to continue to perform and transport by air at the cost of the Seller. Seller shall package all Goods in suitable containers to permit safe transportation and handling in accordance with standard commercial practice. Seller must conform to the packaging and labeling requirements notified to it by Embest in each Order. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents and to be marked with wording of “For Embest”. Embest’s Order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.

4. RISK OF LOSS AND TRANSFER OF TITLE: Seller assumes all risk of loss until receipt by Embest of Goods. Title to the Goods shall pass to Embest upon receipt by it of the Goods at the designated destination.

5. INSPECTION: Seller shall deliver the Goods to Embest without any damage, and in packaging approved by Embest and in compliance with all the requirements of the Order and the Contract Terms. Embest shall have thirty (30) working days from the date of delivery of any Goods to the premises Embest appoints to inspect the Goods or have them inspected by any third party. If any Goods are found to be defective in material or workmanship or otherwise not in conformity with the requirements of the Order, Embest, in addition to any other rights which it may have under warranties or otherwise, shall have the right to reject and return such Goods at Seller’s expense, including all transportation charges. Payment for Services or Goods prior to inspection shall not constitute acceptance thereof. The inspection of Goods does not affect Seller’s obligation to indemnify Embest in respect of any issue that is not revealed by such inspection. Embest has the right, after considering the urgency of its requirement, to determine whether to accept any goods which is defective or otherwise not in conformity with the requirements of the Order. However, such acceptance will not exempt the Seller from its obligations such as quality and warranty, neither it will be deemed as the waiver of the rights or remedies Embest shall have hereunder or in the Order.

6. PAYMENT: Payment terms are as set forth in the Order. If no payment terms are specified, the net amount shall be payable within sixty (60) days after (i) delivery of the Goods/Services that conform to the Contract Terms and Order and (ii) receipt of a correct invoice. Except as otherwise provided in the Order, the price includes all applicable taxes and duties, assembly, packaging, and functional testing fee. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges shall be stated separately on Seller's invoice.

7. WARRANTIES:

 7.1 Services: Seller represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures. Further, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in the Order or statement of work. Seller represents and warrants that its performance of Services will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.

 7.2 Goods: Seller warrants that all Goods will be (i) new and will not be used or refurbished and (ii) genuine products manufactured by the entity whose name or logo appears on the Goods or their packaging. Additionally, Seller warrants that all Goods delivered hereunder shall be in full compliance with all applicable laws thereto, directives, standards, codes, regulations and safety approvals including, without limitation, the laws of the jurisdiction into which the Goods and/or products incorporating the Goods will be exported and/or sold (“Applicable Laws”), and are duly marked and labeled in accordance with Applicable Laws. Seller warrants that all Goods delivered hereunder shall be fit and sufficient for the purpose intended, merchantable, made of quality material and free from defects in design, material and workmanship and shall conform to all applicable specifications required by Embest for a period of at least eighteen (18) months from the date of delivery to Embest or for the period provided in Seller's standard warranty covering the Goods, whichever is longer. All Seller warranties and indemnities shall run both to Embest, and if applicable, to its end user customers. Inspection, testing, acceptance, or use of the Goods and Services by Embest shall not affect Seller's obligations under this warranty, and such warranty shall survive inspection, testing, acceptance, and use. Seller shall replace or correct promptly defective or nonconforming Goods and Services without expense to Embest, upon notification of such non-conformity or defect by Embest and Seller shall pay (or refund the amount of) all carriage charges for any defective or nonconforming Goods returned to Seller and cost of carriage charges for replacement Goods, or at Embest’s option, will issue a credit or refund of the original purchase price of the defective or nonconforming Goods and Services. In the event of Seller's failure to correct or replace non-conforming Goods and Services promptly, Embest, after reasonable notice to Seller, shall make such corrections or effect cover at Seller's expense. Replacement and corrected Goods and Services shall be warranted for the remainder of the standard warranty period or one (1) year, whichever is longer.

 7.3 Software: If applicable to any Order/Goods, Seller warrants that it will grant to Embest a perpetual non-exclusive, non-revocable, paid license to use any software and/or firmware integral to any Goods or Services.

 7.4 Certification of Conformance; Date and Lot Code: Seller certifies that all Goods and Services and its individual materials and processes delivered under any Order conform in all aspects to all requirements of the Order including all applicable drawings, samples, specifications and descriptions, including any pertinent military standards or military specifications. Seller further certifies that all required testing and inspection has been performed in strict accordance with applicable descriptions, specifications and standards. A certificate of conformance and date and lot code shall be included in every shipment to Embest.

 7.5 RoHS warranty:

 7.5.1 In this clause 7 “RoHS Requirements” means the requirements of Directive 2011/65/EU of the European Union and all national laws of EU member states implementing such requirements and “Technical File” means the file of technical information regarding any Goods, their design, manufacture and composition (including, without limitation, reports of tests carried out on the Goods) that confirm the conformity of the Goods with the RoHS Requirements and that contains all of the information specified by the RoHS Requirements or any guidance produced by the bodies with responsibility for enforcement of the RoHS Requirements.

 7.5.2 The Seller warrants that all Goods sold to Embest are in full compliance with the RoHS Requirements.

 7.5.3 The Seller confirms that:

(i) it will provide to Embest declarations of conformity with the RoHS Requirements in the format specified in the RoHS Requirements or, where no format is specified, in the format reasonably required by Embest;
(ii) it will provide Embest with the Technical File for each of the Goods purchased by Embest and a copy of every update to such file made in accordance with sub-paragraph (iii) below; and
(iii) it will not alter the raw materials, components, design, specification or manufacturing process for any Goods without prior notification to Embest, such notification containing confirmation that any such change will not affect the compliance of the Goods with the RoHS Requirements or that testing has been carried out on the new version of the Goods and the Technical File has been updated to show that the Goods still meet the RoHS Requirements.

 7.6 Content of Goods: Seller further represents and warrants that all of the Goods comply in all respects with all legislation and regulation applicable to such Goods in every country, state or province in which Embest is authorized to sell the Goods including, without limitation, legislation or regulation restricting or prohibiting the presence of particular chemicals or substances in the Goods.

 7.7 Hazardous Goods: Seller warrants that all hazardous Goods will be marked with international danger symbols where they exist and the name of the material will be displayed in English and Chinese. Transport and other documents must include declaration of the hazard and name of the material in English and Chinese. Goods must be accompanied by emergency information in English and Chinese in the form of written instructions, labels or markings. Seller undertakes to observe the requirements of PRC legislation and any relevant international agreements relating to the packing, labeling and carriage of hazardous Goods. All information held by or reasonably available to Seller regarding any potential hazards known or believed to exist in the transport handling or use of the Goods supplied shall be promptly communicated to Embest prior to delivery.

8. INSURANCE: Seller shall be solely responsible for maintaining such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller's trade or business, whichever affords greater coverage. Upon request, Seller shall provide Embest with certificates of insurance or evidence of coverage before commencing performance under any Order. Seller shall provide adequate coverage for any Embest property under the care, custody, or control of Seller. If Embest is purchasing consulting services from Seller, Seller shall be responsible for maintaining adequate professional liability insurance in addition to the above mentioned insurance coverages.

9. INTELLECTUAL PROPERTY:

 9.1The Seller warrants that neither the sale nor the use of the Goods will infringe any patent, copyright, trademark, trade name, registered design, or other intellectual property right of any third party. To the extent that any of the Goods includes any intellectual property rights of the Seller or a third party including, but not limited to, any patent, copyright, trade mark, trade name, registered design or other intellectual property right, the Seller will indemnify Embest against all claims, losses, damages, liabilities or expenses (including legal costs) asserted against or incurred by Embest arising from any alleged or actual infringement of such rights in the manufacture or sale of such Goods. The Seller will, at its own expense, defend or assist in the defence of any proceedings which may be brought in that connection.

 9.2 The Seller grants to Embest and warrants that it has the right to grant to Embest a royalty-free licence to use any of its trade marks, logos and other intellectual property necessary for the sale of the Goods on a worldwide basis. Embest may advertise the Goods under any such intellectual property rights on its website and in its catalogue and other marketing materials.

 9.3 All patents, registered designs, copyright and other protective rights in or resulting from any design or development work carried out by the Seller at the request of Embest in the execution of this Order shall exclusively vest in Embest and the Seller shall take such action and execute all necessary documents, at its own expense, to vest all such rights in Embest.

10. INDEMNITY:

10.1Seller shall indemnify, hold harmless, and at Embest’s request, defend Embest, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and costs of suit arising out of or in any way connected with the Goods or Services provided under any Order, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, product liability, violation of any applicable laws and health or safety standards, or contamination of the environment and any associated clean up costs; or (ii) any claim based on the negligence, omissions, or willful misconduct of Seller; or (iii) breach of any warranties herein, including but not limited to the RoHS warranty and any and all warranties of the clause 7; or (iv) any claim by a third party against Embest alleging that the Goods or Services, the results of such Services, or any other products or processes provided under any Order, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Seller shall not settle any such suit or claim without Embest’s prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Embest in enforcing this indemnity, including attorneys' fees. Should Embest’s use, or use by its distributors, subcontractors and customers, of any Goods or Services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; or (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; or (c) obtain for Embest, its distributors, subcontractors and customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund to Embest all amounts paid by it for the infringing or alleged infringing Goods or Services.

10.2 In case of failure of the delivery in time under Article 3 of this Terms and Conditions or the Order, Embest is entitled to, without prejudice to any other rights it has, the delay delivery penalty up to 0.3% per day of the delay Goods value, the maximum of which will not exceed 30% of the total value of the Goods.

10.3 Should the Seller breach Article 21, Embest is entitled to charge the penalty of 20% of the value of impacted Goods and the Seller shall also bear the several liability of the quality of such Goods.

11. CONFIDENTIALITY: Seller may acquire knowledge of Embest Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Embest Confidential Information in confidence during and following termination or expiration of any Order/Contract Terms. "Embest Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to research, development, products, methods of distribution, trade secrets, business plans, customers, vendors, finances, personnel data, work product and other material or information considered proprietary by Embest relating to the current or anticipated business or affairs of Embest which is disclosed directly or indirectly to Seller. In addition, Embest Confidential Information means any third party's proprietary or confidential information disclosed to Seller in the course of providing Services or Goods to Embest. Embest Confidential Information does not include any information (i) which Seller lawfully knew without restriction on disclosure before Embest disclosed it to Seller; or (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller; or (iii) which Seller developed independently without use of the Embest Confidential Information, as evidenced by appropriate documentation; or (iv) which is hereafter lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Embest Confidential Information, which is required to be disclosed pursuant to a requirement of a government agency or law, so long as Seller provides prompt notice to Embest of such requirement and gives Embest adequate time to bar such disclosure prior to Seller making such disclosure. Seller agrees not to copy, alter or directly or indirectly disclose any Embest Confidential Information. Additionally, Seller agrees to limit its internal distribution of Embest Confidential Information to such individuals who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use or disclosure of Embest Confidential Information. Seller further agrees not to use the Embest Confidential Information except in the course of performing hereunder and will not use such Embest Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Embest Confidential Information with information of Seller shall not affect the confidential nature or ownership of the same. Seller agrees not to design, manufacture or provide any Goods or Services, which incorporate Embest Confidential Information. All Embest Confidential Information is and shall remain the property of Embest. At any time, upon Embest’s written request, Seller shall return to Embest all Embest Confidential Information, including all copies thereof.

12. LIMITATION OF LIABILITY: IN NO EVENT SHALL EMBEST BE LIABLE TO SELLER, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH ANY ORDER OR THESE CONTRACT TERMS, WHETHER OR NOT EMBEST WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

13. TERMINATION: Embest may terminate for convenience, at any time, by written notice any Order, or its obligation to purchase any Goods or Services from Seller. Embest shall pay for any Goods or Services that comply with these Contract Terms and the Order received prior to the date of the termination notice. In addition to any other remedies provided at law or equity, either party shall have the right to terminate or cancel an Order, and any obligation to purchase, sell, or provide Goods or Services, in the event the other party (i) fails to comply with any material condition of the Order or these Contract Terms, and such failure is not remedied within thirty (30) days after written notice thereof has been given to such other party; or (ii) becomes insolvent, makes an assignment for the benefit of creditors, suffers or permits the appointment of a receiver, trustee in bankruptcy or similar officer for all or parts of its business or assets; or (iii) avails itself of or becomes subject to any bankruptcy proceeding under the laws of any jurisdiction relating to insolvency or the protection of rights of creditors.

14. ON-SITE SERVICES: If Seller performs any Services at one of Embest’s facilities, Embest reserves the right to interview and accept or reject any personnel Seller provides prior to commencement of Services at Embest’s facility. Seller agrees to employ only competent and skilled personnel to perform the Services and shall use all reasonable means to ensure the continued employment of personnel performing Services pursuant to this Order. Upon Embest’s request, Seller will immediately remove and replace any personnel who are unsatisfactory to Embest for any reason. Seller warrants that all personnel Seller assigns to Embest’s facilities shall have a prior satisfactory work record in a responsible capacity; have no criminal record; be in good health without any physical or mental conditions which would prevent the performance of essential functions of theServices. If Seller is or becomes a party to any collaborative bargaining agreement regarding contracted personnel, no provision in that agreement shall be binding upon Embest, unless otherwise required by law. Seller further agrees, while Seller's personnel are on Embest’s premises, that they will abide by Embest’s normal rules of work and all safety, drug and alcohol policies.

15. ACCESS: The Seller shall allow Embest, its customers and their representatives to carry out during normal working hours such inspections of the tooling, goods, books and records at the Seller’s premises as Embest may reasonably require.

16. REMEDIES: If Seller breaches these Contract Terms or any Order, Embest’s remedies are cumulative and Embest shall have all remedies available by law and at equity.

17. FORCE MAJEURE: Neither Seller nor Embest shall be liable for a delay in the performance of its obligations and responsibilities under these Contract Terms/Order when the delay is due to causes beyond its control, such as but not limited to war, strikes or lockouts, embargo, national emergency, insurrection or riot, acts of the public enemy, fire, flood or other natural disaster, provided that the affected party has taken reasonable measures to notify the other, in writing, of the delay. Failure of subcontractors and inability to obtain materials or labor shall not be considered as a force majeure delay.

18. COMPLIANCE WITH LAWS: Seller warrants that Seller, and all Goods furnished by Seller under any Order, shall comply fully with all applicable laws including, but not limited to, all applicable employment, tax, import and export control, and environmental laws. If Goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials. Upon Embest’s request, Seller will promptly provide Embest with a statement of origin for all Goods.

19. IMPORT/EXPORT CONTROL:

 19.1 Seller agrees to comply with all applicable import and export laws, restrictions and regulations of the People’s Republic of China (the “PRC”), the United States, the United Kingdom or other foreign authorities and shall not participate in transactions involving an embargoed country or a denied, blocked, or designated party under the regulations of the PRC, the United States, the United Kingdom or other foreign law or regulation.

 19.2 Seller will provide Embest with all pertinent export information in relation to the Goods supplied from time to time under these Contract Terms including, but not limited to, country of origin, ECCN classification and Harmonized Tariff classification.

 19.3 Without prejudice to the generality of clause 19.2 above, Seller will confirm to Embest if any of the Goods are subject to export control and, if they are, will provide the applicable US ITAR or ECCN classification entries and UK export control entries.

 19.4 Seller will immediately inform Embest in writing if any information or classification disclosed under this Section 19 changes.

 19.5 Seller will indemnify Embest against all claims, losses, damages, liabilities or expenses (including legal costs) asserted against or incurred by Embest as a result of the Seller’s failure to comply with its obligations under this Section.

20. SEVERABILITY: If any provision of these Contract Terms/Order shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

21. ASSIGNMENT & WAIVER: Seller may not assign these Contract Terms or any Order or any of its rights or obligations under these Contract Terms or any Order, without the prior written consent of Embest. Any assignment or transfer without such written consent shall be null and void. These Contract Terms/Order shall insure to the benefit of, and be binding upon, the successors and assigns of Embest without restriction. A waiver of any default hereunder or of any term or condition of these Contract Terms/Order shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.

22. NONEXCLUSIVE AGREEMENT: This is not an exclusive agreement. Embest is free to engage others to perform Services or provide Goods the same as or similar to Seller's. Seller is free to advertise, offer and provide Seller's Services and/or Goods to others; provided however, that Seller does not breach these Contract Terms/Order.

23. SURVIVAL OF OBLIGATIONS: Any obligations, rights, and duties, which by their nature extend beyond the expiration or termination of these Contract Terms/Order, shall survive the expiration or termination of these Contract Terms/Order.

24. GOVERNING LAW: These Contract Terms/Order will be governed by and construed in all respects with the laws of PRC and each party submits to the non-exclusive jurisdiction of the PRC courts.

25. ENTIRE AGREEMENT; MODIFICATION: These Contract Terms/Order is the complete, final and exclusive statement of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. These Contract Terms, including an Order or change order issued by Embest, may not be varied, modified, altered, or amended except in writing signed and exeucted by the parties. Notwithstanding the foregoing, these Contract Terms/Order will not supersede, take precedence over, or take the place of any written agreement, which is signed by both parties and covers the same subject matter as these Contract Terms or its related Orders.

26. ETHICAL CONDUCT: The Seller confirms that it maintains and at all times complies with a code of conduct which sets out values and demands behavior of Seller which is no less demanding than those which Embest requires of its own directors, officers and employees as set out in the Premier Farnell Code of Conduct from time to time (a copy of which is available athttp://www.premierfarnell.com/investors/code-conduct). Without limiting the generality of the foregoing, the Seller confirms that in carrying on its business it: (i) will comply with all applicable laws; (ii) will not employ child labor; (iii) will employ and maintain good and safe working practices; (iv) is not subject to any duty or interest which could conflict or be seen to conflict with its relationship with Embest; (v) is not, and is not owned or controlled by anyone who is, a US or EU denied party, a resident or citizen of any country which is sanctioned by or on any watch list published by the US or EU administration; (vi) will respect the environment and, wherever possible, employ and maintain sustainable and environmentally responsible working practices; (vii) will not act or take steps to act anti-competitively; (viii) will respect the assets and interests of third parties in carrying on its business; (ix) will not permit any racial, sexual, religious, age, disability or other unfair discrimination in the course of its business; and (x) will not do anything which could bring the name or reputation of Embest into disrepute.

 The Seller further warrants and represents that it: (i) has not given, offered, been offered or received (or will at any time offer, give or receive) any bribes or other improper inducement or engaged in any corruption in connection with the Order; (ii) has not at any time been accused of or involved in any action, proceeding, investigation, allegation or claim that they (or any of them) have given, offered, been offered or received any bribe or other improper inducement or financial advantage or engaged in corrupt practices in the course of its business; and (iii) has not been debarred, suspended or made ineligible for participation in any government procurement program.

 The Seller will notify Embest immediately if any bribe, improper inducement or financial advantage or any form of corruption is offered, given, made or received by or to it in connection with the Order or if any allegation or claim is made that it has breached any law or regulation relating to bribery or corruption anywhere in the world in the course of its business. On being so notified Embest shall be entitled to terminate the Order immediately without liability or penalty.

October 2015

Embest Privacy Policy


Embest Privacy Policy


Embest is a trading name of Shenzhen Embest Technology Co., Ltd., one of the element14 group of companies. The element14 group of companies includes Premier Farnell Ltd (which operates the www.element14.com community), eluomeng electronics (China) Co.,Ltd.,(which operates element14 in China), Cadsoft Computer GmbH, element14 Pte Limited (which operates element14 in Singapore) and a number of sister companies that operate businesses similar to eluomeng and element14 in other countries. This privacy policy explains how we use any personal information we collect about you when you use this website.

What information do we collect about you?

We collect information about you when you register with us or place an order for products or services. You may browse our website without providing any information. However, if you wish to register with us or place an order for products or services, we will ask you for your personal information in order to process the registration and/or the order. We regret that we will not be able to complete your registration or process your order if you do not provide the information required. If you voluntarily complete customer surveys, provide feedback or participate in competitions run by companies in the element14 group we may also collect information about you. We also collect website usage information using cookies (see section below on Cookies). When you submit your information, you are deemed to be giving your consent to the collection, use and disclosure of that information as set out in this Privacy Policy.

How will we use the information about you?

We collect information about you to process your order and manage your account. With your consent, we will also contact you by phone, email, post or SMS/MMS about promotional offers and sending you newsletters, marketing and/or promotional materials in relation to electronic, technological and engineering products, services, systems and software offered by us and/or our related companies, and information regarding our activities, announcement, campaigns, events and survey relating to our goods and services.

We use your information collected from the website to personalise your repeat visits to our websites using cookies (see section below on Cookies). Each time you use the site we’ll also collect information including domain name/IP address, referring URL, browser and platform, time of visit, pages visited and any searches performed – this information may be used to help us improve the performance of our website and for assessing the suitability of or requirements for certain services.

We may monitor and record telephone conversations with you and use them for staff training, quality and security purposes.

Will we pass your information to anyone else?

We may share your information with the following:

· Other companies within the element14 group and certain third parties who provide us with services. These group companies and third parties will only use your information to provide these services or help us to improve our website or services. They will do so as our data processors and will handle your information on our behalf and in accordance with our instructions. Some of these processors may be based outside China and your information may therefore be transferred and handled outside China. Where this applies we will take steps to ensure adequate protection of your information. When you submit your information, you are deemed to be giving your consent to the possible transfer of your information outside China;

· credit reference agencies and other similar companies, in order to carry out credit reference searches (if you want to open a credit account), for fraud prevention and to pursue debtors, and we may also obtain information about you from such companies, if necessary in connection with your account or purchasing activity with us;

· any companies or people that we might in the future sell our business or part of our business to.

 If you allow us to, we may share your information with other companies in the element14 group for marketing purposes but we will not share your information with any third parties outside our group for their marketing purposes.

Marketing

 We and other element14 group companies would like to send you information about the products and services we offer which may interest you, if you have consented to the same. If you have allowed us to send marketing information to you, you may opt out at any time. If you no longer want us to contact you for marketing purposes please contact us by email at[master@embest-tech.com ] (letting us know what type of marketing you no longer wish to receive) or by telephone on [0755-2563562-859].

Cookies

 Cookies are tiny text files stored on your computer or other mobile or handheld device (such as smart ‘phones or ‘tablets’) when you visit certain web pages. Cookies are essential to the effective operation of our website and to enable you to shop with us online. Cookies are also used to tailor the products and services offered and advertised to our customers, both on this website and elsewhere. The information collected by cookies themselves cannot be used to identify you personally, except in limited circumstances if it is combined with other information as described below in relation to performance cookies.

 Cookies do lots of different things, like letting you navigate between pages effectively, storing your preferences, and generally improving your experience of a website. If our website did not use cookies, you would appear to be a new visitor every time you moved to a different webpage; for example, after entering your log in details and moving to another page the website wouldn’t recognise you and would ask you to log in again.

Some other examples of what cookies can do include:

saving the contents of your shopping basket as you proceed through the checkout process;

remembering your account log in details so you can see information relating to your orders and manage your account;

Recording the areas of our website that you have visited and for how long, as well as which products you viewed and purchased. We use this information to help us improve our website so that it is easy to use and so we can improve the services we provide to our customers. It also helps us to recommend relevant products and offers on our website.

 Cookies are 100% safe. Cookies do not harm your computer, they do not contain any information that itself could be used by others to identify you personally (although the information may be combined with other information to identify you in limited circumstances as described below in respect of performance cookies) and they do not contain any confidential information, such as your email address or payment details.

At element14 the cookies we use fall into three different types:

Strictly necessary Cookies -Some Cookies are strictly necessary to allow you to move about the website easily or to provide you with certain features you have requested, such as remembering your basket contents and identifying you as being logged onto the site.

Performance Cookies - these collect information about how you use our website e.g. which pages you visit and if you experience any errors. These cookies don’t collect information that itself identifies a visitor, although they may collect the IP address of the device used to access the site and some of the information collected may be used in conjunction with other data you’ve provided on registration if it appears you may have had problems with the site or an order. All information collected is used to help us understand how our visitors use our website, what interests our users, and to measure how effective our pages are so that we can improve how we present our content to you. These cookies help to improve the performance of the website, providing a better experience for you.

Functionality Cookies - these cookies are used to remember settings about choices you’ve made on the website such as the language preference you’ve chosen for the site and your marketing preferences and allow us to provide services you’ve asked to use and to improve your visit.

 Some of the cookies used on our website are set by third party organisations that we use for different services. For example, we use external analytics services by specialist suppliers and these suppliers may set cookies on our behalf in order to report back to us. We may also sometimes embed video or other content from websites such as YouTube and these sites may set their own cookies.

 We use cookies to make our website easier to use and so that we can provide the best possible service. Cookies are an essential part of how our website works, and to ensure it works properly for you, we recommend that they are enabled. If you disable cookies, some parts of the website will not work. However, if you would like to disable or block cookies from this website you can do so via your browser settings.

Security

 Access to stored data and information you provide is password protected and access to passwords is limited. Firewall technology is used to prevent unauthorised access and servers are backed up daily, with archives stored in a secure location.

 Our website uses SSL (“Secure Socket Layer” technology), the de facto standard for internet security. SSL is an open protocol for secure data communications across computer networks. Broad support for this protocol promotes interoperability between products from many organisations. It provides an environment in which e-commerce can be conducted and data can be safely encrypted and protected. SSL provides a straightforward method for adding strong security to existing applications and network infrastructures. SSL is application protocol independent and provides:

encryption, which creates a secure channel to prevent others from tapping into the network;

authentication, which uses certificates and digital signatures to verify the identity of parties in information exchanges and transactions, and

message integrity, which ensures that messages cannot be altered en route.

 Our website is authenticated for e-commerce by VeriSign, the world’s leading website authentication authority.

Other websites

 Our website may contain links to other websites. This privacy policy only applies to this website so when you link to other websites you should check the privacy policy on those sites.

How to contact us

 Please contact us if you have any questions about our privacy policy or information we hold about you or to request access to or correction of your personal information on a no charge basis. You can contact us by email at [master@embest-tech.com ] or by writing to us at [Tower B 4/F, Shanshui Building, Nanshan Yungu Innovation Industry Park, Liuxian Ave. No. 1183, Nanshan District, Shenzhen].


Terms of Sale


Standard Terms & Conditions of Sale


Shenzhen Embest Technology Co., Ltd (“EMBEST”)
For the most updated Terms & Conditions of Sale, please visit [http://www.embest-tech.com/about.aspx?TypeId=151&FId=t1:151:1]

 These standard terms and conditions of sale (the “Conditions”) shall apply to goods (including without limitation, hardware, firmware and software products and parts, and design Services deliverables) (collectively, the “Products”) and services (including without limitation, services training, programming, design, consulting, maintenance, engineering, parts and repair Services) (collectively, the “Services”) purchased or received by any and all customers or recipients (collectively, the “Purchaser”) from EMBEST. No addition to or modification of the Conditions will be accepted by or binding upon EMBEST unless consented to in writing and signed by an authorized EMBEST representative (and such consent may be withheld by EMBEST for any reason or no reason). Any and all terms and conditions that may be proposed by the Purchaser or appear in any Purchase Order (“PO”) and/or any document or instrument from the Purchaser shall automatically be deemed to be objected to and not accepted by EMBEST unless consented to in writing and signed by an authorized EMBEST representative (and such consent may be withheld by EMBEST for any reason or no reason), and the Conditions shall take precedence, prevail, control and solely govern in all instances. The Conditions contain the entire understanding and agreement of EMBEST and the Purchaser concerning the subject matter thereof, and there are no promises, agreements, conditions, understandings, warranties or representations (oral or written, express or implied) regarding the subject matter of the Conditions other than as set forth in the Conditions. Any and all prior agreements with respect to the subject matter of the Conditions are hereby revoked and forever terminated. The Conditions are, and are intended by EMBEST and the Purchaser to be, an integration of any and all prior agreements or understandings (oral or written) with respect to the subject matter of the Conditions, and the Conditions shall not be amended or modified except upon the written agreement of EMBEST. The Conditions shall survive the delivery and/or completion of the Products and any Services described in the Conditions. THE PURCHASER acknowledges that it has read the Conditions, understands the Conditions, and agrees to be bound by the Conditions. EMBEST may change or modify The Conditions from time to time without notice. THE MOST UPDATED TERMS AND CONDITIONS WILL BE AVAILABLE AT THE ABOVE-LISTED WEBSITE.

 EMBEST is predominantly a business to business supplier. By ordering, the Purchaser confirms that he, she or it wishes to obtain the Products for the purposes of his, her or its business and not as a consumer. In the event that customers are consumers as defined by the Law of the People's Republic of China on the Protection of Consumer Rights and Interests (Revised in 2013) (the “Consumer Protection Law”), the Consumer Protection Law shall apply. Notwithstanding any other provisions in the Conditions, EMBEST does not exclude, restrict or modify any liability that cannot be excluded, restricted or modified by law including liability under the relevant PRC laws and regulations including but not limited to the Products Quality Law and its amendments.

1. DEFINTIONS

 “VAT” means Products and Services tax under the Provisional Regulations of the PRC on Value-Added Tax.
 “PRC” means the People’s Republic of China.
 “RMB” means PRC Dollars.
 "in writing" includes electronic communications.

 Reference in the Conditions to any legislation or regulation includes any re-enactment, amendment or substitution of such legislation or regulation.

2. PRICES

 All prices for Products and/or Services provided by EMBEST are in RMB or USD or GBP which shall be described in orders and are exclusive of VAT and other duties and taxes and any applicable transport and handling charges which will be added at the time of despatch and shall be payable by the Purchaser. EMBEST reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted. Where Products and/or Services are to be made in instalments (referred to in the Conditions as "Scheduled Delivery"), the prices of Products and/or Services to be delivered within ninety (90) days of the date of order will be those applicable at the time of despatch of the first batch of Products and/or Services. Where Scheduled Delivery may continue over a period of ninety (90) days or more from the date of order, EMBEST reserves the right to increase prices to those applicable at the date of despatch. Additional Services or any customisation of the Products requested by Purchaser shall be charged at the price quoted in writing by EMBEST.

 The purchase price and delivery cost charged by EMBEST to the Purchaser for the Products or Services ordered by the Purchaser, may be increased by EMBEST as a result of the Purchaser’s changes to the requirements, specifications, or assumptions set forth in EMBEST’s written specifications, quotation, or order acknowledgement, and the Purchaser shall pay such increased purchase price and costs within thirty (30) days of the date of EMBEST’s invoice therefor.

3. PAYMENT

 Before the Purchaser applies for credit terms and/or Embest approves application of credit terms in accordance with the clause 4 or Embest reduces, suspends or withdraw credit terms of the Purchaser, the Purchaser shall make full payment before delivery of the Products by Embest. When credit terms have been approved, payment is due not later than thirty (30) days of EMBEST's invoice, without any deduction, set off or withholding whatsoever. Time for payment shall be of the essence. If the Purchaser fails to make payment by the due date then, without prejudice to any other right or remedy, EMBEST shall be entitled to:

i. cancel the order or suspend any further deliveries or performance;
ii. appropriate any payment made by the Purchaser to such of the Products and/or Services (or the Products and/or Services made under any other contract) as EMBEST may think fit; and
iii. charge interest (both before and after any judgment) on the amount unpaid at the rate of two percent (2%) per annum above the official published interest rate of the reserve Bank of China from time to time until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest).

 EMBEST reserves the right to charge for copy invoices or where the original has been lost or misplaced by the Purchaser. If legal action is taken to recover monies due to EMBEST, the Purchaser shall reimburse to EMBEST for all legal and other costs and expenses incurred by EMBEST in such recovery.

4. NEW ACCOUNTS

 The Purchaser should complete the credit application form that is available upon request. Any credit limit granted to the Purchaser shall at all times be discretionary and may be reduced, suspended or withdrawn at the discretion of EMBEST at any time without prior notice.

 Commercial Credit Accounts are only available to corporate bodies and not to individuals.
Non-corporate bodies may purchase goods by cash, cheque, bank transfer, China Unionpay or Alipay on EMBEST’s website or by telephone.

 Please note that EMBEST will not be responsible for or bear any bank charges or commissions on transactions. All documentary credits must be marked that all such charges or commissions are for the Purchaser’s account.

5. ORDERS

 EMBEST reserves the right to decline to trade with any Purchaser or to accept orders, in whole or in part, for Products and/or Services. To avoid duplication, any written confirmation of telephone orders sent must be clearly marked "Confirmation only". EMBEST will not accept liability for orders not so marked and duplicate orders will be charged accordingly.

 If after EMBEST’s acceptance of the Purchaser’s PO or other order or request from the Purchaser for Products or Services, the Purchaser terminates or cancels such purchase or reduces the quantities or scope of Products or Services for such purchase, then in addition to (and not in limitation of) any and all rights and/or remedies provided in the Conditions or at law, the Purchaser shall be liable for and shall promptly pay and reimburse EMBEST for, all costs incurred by EMBEST associated with such purchase, including but not limited to: materials purchased that are non-returnable and non-cancellable, back-charges from vendors, labor expended including time spent in the process of terminating the project, liabilities and obligations incurred by EMBEST, plus cancellation charges equal to fifteen percent (15%) of the purchase price of the Products and/or Services cancelled, in relation to such purchase.

6. STANDARD DELIVERY

 Delivery shall be EXW Shenzhen in accordance with Incoterms 2010 unless agreed by Embest otherwise. Shipping dates are merely estimates, but every reasonable effort will be made to ship according to schedule. Delivery times do not include time for Purchaser to provide technical or requirements data or information necessary for EMBEST’s performance, nor time for Purchaser’s review and approval of interim milestone deliverables. Delivery times may vary depending on component availability. Purchaser agrees that EMBEST shall not be responsible or liable for any damages, cost, expenses, losses arising out of or related to any failure to deliver Products within the time prescribed therefor.

 EMBEST reserves the right to deliver or perform by instalments. Failure to meet a Scheduled Delivery or performance date shall not prevent or restrict EMBEST from making further deliveries or rendering subsequent performance under the relevant contract by instalment. Scheduled Deliveries can only be accepted for a maximum period of three (3) months from the date of order.

7. INTERNATIONAL ORDERS:

 Export orders requiring special handling, packaging, and documentation are subject to additional charges. Export orders are accepted on the basis of payment in advance of shipment by wire transfer, international money order or credit card. Prices are EXWShenzhen in accordance with Incoterms 2010 and do not include insurance, freight, brokerage, duty or taxes.

8. INSPECTION, DEFECTS AND NON DELIVERY

 The Purchaser must inspect the Products and/or Services as soon as is reasonably practicable after delivery, or in the case of Services, performance, and, except as otherwise set out in the Conditions, EMBEST shall not be liable for any defect in the Products and/or Services, incomplete or failed delivery, shortage of weight or quality of Products and/or Services unless written notice is given to EMBEST within seven (7) days of delivery. If the Purchaser receives a damaged parcel, the Purchaser should take photographs of the parcel to confirm the damage and notify EMBEST immediately prior to opening the parcel.

 The quantity of any consignment of Products as recorded by EMBEST upon despatch from EMBEST's place of business shall be conclusive evidence of the quantity received by the Purchaser on delivery, unless the Purchaser can provide conclusive evidence to the contrary. EMBEST will not be liable for any non-delivery of Products or non-performance of Services unless written notice is given to EMBEST within seven (7) days of the date when Products should have been delivered or the Services performed in the ordinary course of events.

 Any liability of EMBEST for non-delivery or non-performance or for Products notified as defective on delivery or Services notified as defective following performance in accordance with this clause will be limited to, at EMBEST’s option, replacing the Products or re-performing the Services within a reasonable time or refunding the price then paid in respect of such Products and/or Services.

9. DESCRIPTION

 All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together “Descriptions”) wherever they appear (including without limitation on despatch notes, invoices or packaging) are intended to give a general idea of the Products and/or Services, but will not form part of the contract. EMBEST shall take all reasonable steps to ensure the accuracy of Descriptions but relies on such information, if any, as may have been provided to it by its suppliers and to the fullest extent permitted by law excludes all liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by EMBEST's negligence or otherwise. EMBEST may make changes to the Products and/or Services as part of a continuous programme of improvement or to comply with legislation.

10. RISK AND OWNERSHIP

 The risk of damage to or loss of Products will pass to the Purchaser when the Products are unloaded from EMBEST's carriers at the Purchaser's premises or when Products are received by the Purchaser or its representative, whichever is earlier. Ownership of the Products shall not pass to the Purchaser until EMBEST has received in full (in cash or cleared funds) all sums due from the Purchaser to EMBEST on any account whatsoever.

 Until ownership passes to the Purchaser, the Purchaser must hold the Products on a fiduciary basis as EMBEST's bailee, insure the Products against all usual risks to full replacement value, not pledge or allow any lien, charge or other interest to arise over Products, and store each delivery of Products separately, clearly identified as EMBEST’s property and in a manner to enable them to be identified and cross referenced to particular invoices where reasonably possible. The Purchaser may use or sell Products in the ordinary course of business, provided that the Purchaser will be agent for EMBEST in any sale if Products are sold. However any such agency will only extend to the obligation to account for proceeds. EMBEST will not be bound by any contract between the Purchaser and the Purchaser’s customer. The Purchaser must account to EMBEST for that part of the proceeds of any such sale which equates to the price of the Products and shall hold that amount in a separate bank account on trust for EMBEST. The Purchaser will hold on trust for EMBEST in a separate bank account any insurance monies received by the Purchaser for Products owned by EMBEST.

 EMBEST’s rights as an unpaid seller will not be affected by EMBEST retaining title to Products under this clause.

 If payment is not received in full by the due date, or the Purchaser becomes bankrupt, passes a resolution for winding up or a court shall make an order to that effect, or a receiver is appointed over any assets or the undertaking of the Purchaser, EMBEST shall be entitled, without previous notice, to retake possession of the Products and for that purpose to enter upon any premises occupied or owned by the Purchaser.

 If the Products are mixed, processed or used so that they lose their identity or are irrevocably incorporated in, mixed with or applied to other Products to make another item, then ownership of the Products will pass to the Purchaser, however, a portion of proceeds of sale of any such item equivalent to the cost for the unpaid Products remains in trust for EMBEST until payment for the Products is made in full.

11. RETURNS

 No Products may be returned other than with the prior agreement in writing of EMBEST and such consent will not be unreasonably withheld or delayed under the circumstances as specified by related PRC laws and regulations. Prior to returning any Products to EMBEST for any reason, the Purchaser must contact EMBEST to obtain a return material authorisation number (“RMA”). All Products are returned at the Purchaser's risk and expense and should be undamaged by the Purchaser and in their original packaging. The Purchaser is responsible for returning Products to EMBEST and for providing proof of delivery of such return and invoices of Products or “Credit Note Certificate” issued by the tax authority where the Purchaser is located. Appropriate precautions must be taken in respect of Products classed and identified as 'static sensitive'.

 All Products accepted for return should be returned to Embest within seven (7) days of the date the RMA was issued. The Purchaser should return the Products to the place identified by EMBEST clearly quoting the Purchaser's account number, order number and RMA.

 Any Products returned as 'unwanted' or 'incorrectly ordered' may at the discretion of EMBEST be subject to a restocking fee of twenty percent (20%) of the invoice value of the Products (subject to a minimum charge of RMB100.00).

 EMBEST expressly reserves the right (without limiting its discretion under this clause) to refuse the cancellation of any order or return for credit of Products supplied by EMBEST, which consist of computer Products or software or contain any hazardous substances. Consumable items are non-returnable.

12. LIEN

 EMBEST shall have a general lien in respect of all sums due from the Purchaser upon all Products to be supplied to the Purchaser or upon which work has been done on the Purchaser's behalf and upon fourteen (14) days written notice to the Purchaser, EMBEST may sell such Products and apply the proceeds towards the satisfaction of any sums due to EMBEST.

13. PERFORMANCE AND FITNESS FOR PURPOSE

 Any advice or recommendation given by an employee of EMBEST which is not confirmed in writing by a director of EMBEST is acted on entirely at the Purchaser's risk and EMBEST shall not be liable for any such advice or recommendation which is not so confirmed. Except as otherwise set out in the Conditions, the liability of EMBEST to the Purchaser, should any warranty, statement, advice or recommendation confirmed in accordance with this clause prove to be incorrect, inaccurate or misleading, will be limited to the refund of the price paid for the Products and/or Services, or, at EMBEST's option, the supply of replacement Products which are sufficient and suitable.

14. LIMITATION OF LIABILITY

 EMBEST’S LIABILITY ON ANY ACTIONS, CLAIMS, OR CAUSES OF ACTION ARISING FROM OR RELATED TO THE CONDITIONS, THE PERFORMANCE OR BREACH OF THE CONDITIONS OR CONNECTED IN ANY MANNER WITH THE SUPPLYING OF ANY PRODUCTS OR SERVICES HEREUNDER, THE DESIGN, THE SALE, RESALE, OPERATION OR USE ALLOCABLE TO SUCH PRODUCTS, PART OR SERVICES THEREOF INVOLVED IN THE CLAIM, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NELIGENCE AND FOR PROPERTY DAMAGE, PERSONAL INJURY AND DEATH) OR OTHER GROUNDS, SHALL NOT IN ANY EVENT EXCEED THE PURCHASE PRICE OF THE PRODUCTS, PARTS OR SERVICES INVOLVED IN THE CLAIM, REGARDLESS OF CAUSE OR FAULT. IN NO EVENT SHALL EMBEST BE LIABLE FOR CLAIMS BASED UPON BREACH OF CONTRACT, BREACH OF EXPRESS OR IMPLIED WARRANTY, OR NELIGENCE FOR ANY DAMAGES, WHETHER DIRECT, IMMEDIATE, OR FORESEEABLE FOR ANY EXPENSES INCURRED BY REASON OF THE USE OR MISUSE, DESIGN, SALE OR PRODUCTION OF THE PRODUCTS, THE COMPONENTS THEREFOR, OTHER PRODUCTS OR SERVICES, WHICH DO OR DO NOT COMFORM TO THE CONDITIONS. EMBEST SHALL NOT BE RESPONSIBLE TO PURCHASER OR ANY THIRD PARTY FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUES, SALES, DATA, BUSINESS, GOODWILL OR USE, EVEN IF EMBEST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THESE DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION IN ANY OTHER AGREEMENT OR DOCUMENT. Any cause of action against EMBEST must be instituted within twelve (12) months from the date of purchase or provision of the Products or Services.

 EMBEST shall not be liable for any damage, loss, cost, claim or expense resulting from the failure to give advice or information or the giving of incorrect advice or information whether or not due to the negligence of EMBEST, its employees, agents or subcontractors.

 EMBEST does not exclude or restrict its liability for any matter for which it would be illegal for EMBEST to exclude or attempt to exclude its liability. Nothing in the Conditions excludes or limits the liability of EMBEST for death or personal injury caused by EMBEST's negligence or fraudulent misrepresentation.

15. WARRANTY

Subject to clause 14, EMBEST provides the following warranties:

i. Component portions of the Products that were purchased by EMBEST and re-sold to Purchaser may be covered by warranties originating with the original manufacturer. Such warranties, in whatever form they may exist, shall be transferred (to the extent transferable) by EMBEST to the Purchaser upon the Purchaser’s full payment to EMBEST of the purchase price invoiced by EMBEST to the Purchaser for or related to the Products. Copies of any applicable warranties will be supplied upon written request by the Purchaser.
ii. EMBEST shall carry out the Services in a workmanlike and professional manner. If the Purchaser notifies EMBEST in writing, within twelve (12) months from the date of EMBEST’s shipment of the Products to the Purchaser, of any claimed defect in the Services, and such claim by Purchaser is verified by EMBEST after EMBEST’s appropriate inspection, Purchaser’s sole and exclusive remedy shall be limited to EMBEST’s correction of the claimed defect at the design and documentation level, excluding repair or replacement of materials or purchased parts.
iii. Production of Products beyond the engineering prototype level shall be free from defects in workmanship for a period of twelve (12) months from the date of EMBEST’s shipment of the Products to the Purchaser, excluding defects in the design or engineering of the Products. Purchaser's sole and exclusive remedy shall, at the sole discretion of EMBEST, be limited to either: a) repair or replacement of the defective Products, or b) refund of the purchase price in exchange for return of the defective Products.

 EXCEPT AS EXPRESSLY PROVIDED HEREIN, EMBEST MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESSLY OR IMPLIEDLY, CONCERNING THE PRODUCTS, ANY COMPONENTS RESOLD BY EMBEST TO THE PURCHASER, ANY DOCUMENTATION FOR THE FOREGOING, ANY MAINTENANCE SERVICES OR OTHER SERVICES TO THE FOREGOING. EMBEST SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE AND FITNESS FOR A PARTICULAR PURPOSE. EMBEST DOES NOT WARRANT THAT THE PRODUCTS WILL MEET THE REQUIREMENTS OF THE PURCHASER OR WILL OPERATE IN THE MANNER THAT MAY BE SELECTED FOR USE BY THE PURCHASER OR THAT THE OPERATION OF THE PRODUCTS AND/OR COMPONENTS WILL BE UNINTERRUPTED.

No warranty will apply:

· if the Products are in any way altered or modified after delivery by EMBEST
· if the Purchaser did not follow EMBEST's instructions for storage, usage, installation, use or maintenance of the Products;
· if the Purchaser has failed to notify EMBEST of any defect in accordance with the clause 8 where the defect should have been reasonably apparent upon reasonable inspection; or
· if the Purchaser fails to notify EMBEST of the defect within twelve (12) months (or such other period as EMBEST shall specify at the time of acceptance of the order for the Products and/or Services) of the date of despatch of the Products or performance of the Services.

 Any replacement Products made or Products repaired under this clause will be warranted on these terms for any unexpired portion of the period of warranty given on the original Products and/or Services. Any Products which have been replaced will belong to EMBEST.

 The Purchaser grants to EMBEST and its employees, agents and representatives a right to enter onto its premises to effect any repair or replacement under this clause. The Purchaser shall ensure that EMBEST's employees, agents and representatives are provided with a safe and secure working environment while at its premises and the Purchaser shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making back-up copies of any information on such computers or processors before EMBEST's arrival on site.

16. INTELLECTUAL PROPERTY RIGHTS

 i) Unless otherwise expressly agreed between the parties, all ownership, rights, title and interest to or in all rights, title or interest for or associated with the Products or Services (including but not limited to intellectual property therefor; collectively, the “IP Rights”) shall be the sole and exclusive property of EMBEST. Upon the Purchaser’s payment in full to EMBEST of the total purchase price and related project costs incurred by EMBEST, EMBEST will assign all such IP Rights non-exclusively and royalty-free to the Purchaser. Notwithstanding the foregoing, EMBEST shall retain its rights, title and interest to the underlying engineering knowledge, design practices, technology, processes, and other intellectual property rights that were utilized by EMBEST in creating the Products per the specifications of Purchaser. The Products offered for sale by EMBEST may be subject to patent, trademark, copyright, design and other rights of third parties. EMBEST shall in no event whatsoever be responsible or liable in the event of any claim of infringement of any such rights.

 ii) Purchaser will indemnify, defend and hold EMBEST and its affiliates, agents, officers, directors, employees and subcontractors harmless from and against all claims, damages, losses and reasonable expenses (including but not limited to reasonable attorneys’ fees), to the extent arising out of or resulting in whole or in part from a) any claim that the design of the Products provided by Purchaser infringe a third party patent, copyright, trademark, trade secret or other intellectual property right, or b) any claims arising out of the design of the Products provided by Purchaser for death, personal injury, property damage, products liability or violation of environmental, health or safety standards.

17. USE OF PRODUCTS; INDEMNIFICATION

 The parties understand and agree that the Purchaser is solely responsible to determine the suitability of the Products for the Purchaser’s intended use. The Purchaser shall indemnify, defend and hold EMBEST and its affiliates, agents, officers, directors, employees and subcontractors harmless from and against any claims, damages or costs arising from or related to i) any breach of the Conditions by Purchaser, ii) any and all uses of the Products, including claims arising from the Products for death, personal injury, property damage, product liability or violation of environmental, health or safety standards, iii) the Products failure to comply with any applicable rules, laws or regulations (except as otherwise expressly agreed to by EMBEST), or iv) any wilful misconduct or negligent act or omission of Purchaser, its employees or agents.

 

18. COMPLIANCE

 i)Laws & Regulations. Each party shall comply with all rules, laws and regulations applicable to it. Purchaser assumes all responsibility that the Products manufactured under instructions of the Purchaser are in compliance with all applicable laws, rules and regulations of the jurisdiction in which the Product may be sold and distributed, including, without limitation, RoHS, REACH and all other regulations affecting the use or operation of the Products.

 ii)Anti-Bribery and Corruption. In this Section, “Representatives” refers to the directors, officers, employees of the relevant party; “Bribery” means any act or thing which is or could be bribery or corruption under any AB&C Laws; “AB&C Laws” means any law or regulation relating to bribery and/or corruption including, without limitation, the Bribery Act 2010 in the UK; and “Foreign Public Official” will have the meaning given it in the UK Bribery Act 2010. Each party undertakes that it will: a) foster a culture of zero tolerance to Bribery and maintain a code of conduct no less rigorous than that required of its own employees under its own code of ethics; b) notify the other party immediately if any allegation or offer of Bribery is made to, or by, it or any of its Representatives with the requirements of this Section; c) maintain adequate processes and procedures designed to ensure its and its Representatives’ compliance, with this Section; and d) indemnify the other party from all direct, indirect, and consequential losses, damages, claims, proceedings and legal costs, judgments, and expenses arising as a result of any breach by the party or its Representatives of this Section, which breach will entitle the other party to immediately terminate any pending order with written notice to the breaching party.

 iii)Export. The Products and technology purchased or received under the Conditions are subject to export control laws, restrictions, regulations and orders of the PRC and the United States. The Purchaser shall adhere to all export laws, rules and regulations of the PRC, the United Kingdom, the United States and other foreign agencies or authorities, including without limitation the United States Export Administration Regulations and International Traffic in Arms Regulations. Purchaser shall not export or re-export any Products or technology received from EMBEST without the appropriate licenses from the PRC, or other foreign agencies or authorities and shall be responsible to obtain any license to export, re-export or import as may be required. Purchaser shall not export or re-export Products or technology to any blocked or embargoed country under the regulations of the PRC, the United Kingdom, or the United States and/or to any company, individual or government entity listed on the United States Denied Persons, Specially Designated Nationals, Entity, Unverified, or Debarred Parties Lists, or similar lists promulgated by the United States or United Kingdom. Purchaser represents and warrants that it is not on the Denied Persons, Specially Designated Nationals, Entity, Unverified, or Debarred Persons Lists and is not otherwise prohibited by law from purchasing the Products and technology hereunder. Purchaser shall inform EMBEST in writing if the Products or technology being contracted is subject to control under the United States Export Administration Regulations or International Traffic in Arms Regulations.

 EMBEST reserves the right not to supply to certain Purchasers or to certain countries and to require from the Purchaser full details of the end use and final destination of the Products.

19. AGE REQUIREMENT FOR CERTAIN PRODUCTS

 Where the law requires a minimum age for the purchase of certain Products, the Purchaser confirms that he or she is over the required age and that delivery of the Products will be accepted by a person over the relevant age limit.

20. PROHIBITED APPLICATIONS

 The Products are not designed, authorised or warranted to be suitable for use in anti-personnel landmines, nuclear facilities or weapons, chemical or biological weapons, missile technology, space or aircraft or air traffic applications, life support or life sustaining equipment, surgical implantation equipment or for any other purpose where the failure or malfunction of the Products could reasonably be expected to result in personal injury, death, severe property or environmental damage. Use or inclusion of the Products in any such equipment, system or applications is strictly prohibited (unless EMBEST agrees in writing that such prohibition does not apply to a particular Product) and any such use will be at the Purchaser’s own risk. The Purchaser will indemnify, defend and hold EMBEST and its suppliers harmless against any and all liability and expense (including costs) resulting from any such inclusion, even if damage is attributed to defective design or manufacture.

21. USE OF PERSONAL DATA

 EMBEST handles personal data in accordance with applicable personal data laws, the terms of its privacy policy and the consents it has received from each personal data owner. EMBEST’s privacy policy, a current version of which is located at [http://www.embest-tech.com/terms-and-regulations/privacy-policy/], outlines how and the purposes for which EMBEST manages, collects, uses and transfers personal data.

22. CONFIDENTIALITY

 The Purchaser may acquire knowledge of Embest Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Embest Confidential Information in confidence during and following termination or expiration of the Conditions. "Embest Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to research, development, products, methods of distribution, trade secrets, business plans, customers, vendors, finances, personnel data, work product and other material or information considered proprietary by EMBEST relating to the current or anticipated business or affairs of EMBEST which is disclosed directly or indirectly to the Purchaser. In addition, Embest Confidential Information means any third party's proprietary or confidential information disclosed to the Purchaser in the course of purchasing Services or Products from EMBEST. Embest Confidential Information does not include any information (i) which the Purchaser lawfully knew without restriction on disclosure before Embest disclosed it to the Purchaser; or (ii) which is now or becomes publicly known through no wrongful act or failure to act of the Purchaser; or (iii) which the Purchaser developed independently without use of the Embest Confidential Information, as evidenced by appropriate documentation; or (iv) which is hereafter lawfully furnished to the Purchaser by a third party as a matter of right and without restriction on disclosure. In addition, the Purchaser may disclose Embest Confidential Information, which is required to be disclosed pursuant to a requirement of a government agency or law, so long as the Purchaser provides prompt notice to Embest of such requirement and gives Embest adequate time to bar such disclosure prior to the Purchaser making such disclosure. The Purchaser agrees not to copy, alter or directly or indirectly disclose any Embest Confidential Information. Additionally, the Purchaser agrees to limit its internal distribution of Embest Confidential Information to such individuals who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will the Purchaser use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use or disclosure of Embest Confidential Information. The Purchaser will not use such Embest Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Embest Confidential Information with information of the Purchaser shall not affect the confidential nature or ownership of the same. The Purchaser agrees not to design, manufacture or provide any goods or services, which incorporate Embest Confidential Information. All Embest Confidential Information is and shall remain the property of EMBEST. At any time, upon EMBEST’s written request, the Purchaser shall return to EMBEST all Embest Confidential Information, including all copies thereof.

23. FORCE MAJEURE

 EMBEST shall not be liable to the Purchaser in any manner or be deemed to be in breach of the Conditions because of any delay in performing or any failure to perform any of EMBEST's obligations under The Conditions if the delay or failure was due to any cause beyond EMBEST's reasonable control (which shall include, but not be limited to government actions, war, terrorist attacks, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Products or labour) (each a “Force Majeure Event”). On the occurrence of a Force Majeure Event, EMBEST may, at its option, delay the performance of, or cancel the whole or any part of a contract.

24. LEGAL CONSTRUCTION

 All contracts shall be governed by the laws of PRC. The Courts of PRC shall have jurisdiction to settle any disputes which may arise out of or in connection with the Conditions or any contract. The jurisdiction agreement contained in this clause is made for the benefit of EMBEST only and EMBEST shall retain the right to bring proceedings in any other Court of competent jurisdiction. The parties agree to submit to the said jurisdiction of PRC.

25. GENERAL

 Any provision of the Conditions which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of the Conditions and the remainder of such provision shall not be affected.

 Failure by EMBEST to enforce or partial enforcement by EMBEST of any provision of the Conditions shall not be construed as a waiver by EMBEST of any of its rights under the Conditions.

 EMBEST shall be entitled, without the consent of or notice to the Purchaser, to assign the benefit, subject to the burden, of the Conditions and/or any contract to any affiliate in its group at any time. For the purposes of the Conditions, "group" shall mean, in relation to EMBEST, EMBEST, any other corporate body which is EMBEST's holding companies or subsidiary and any other corporate body which is a subsidiary of that holding company.


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