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.
“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.
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.
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.
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.
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.
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.
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.
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.
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
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.
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.