TERMS AND CONDITIONS

PLEASE READ THIS DOCUMENT CAREFULLY, ESPECIALLY THE BOLD AND ALL CAPITALIZED CLAUSES.  IT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU.  IF YOU HAVE ANY QUESTIONS REGARDING THE TERMS AND CONDITIONS, PLEASE CONTACT SHINING GEM SALES REPRESENTATIVE.

This Agreement contains the terms and conditions that apply to your purchase from the Shining Gem entity named on the invoice (“Shining Gem ”) that will be provided to you (“Customer”) on orders for software and services sold to you.  By accepting delivery of the products and/or services, Customer agrees to be bound by and accepts these terms and conditions.  THESE TERMS AND CONDITIONS APPLY UNLESS (i) THE CUSTOMER HAS SIGNED A SEPARATE FORMAL PURCHASE AGREEMENT WITH SHINING GEM , IN WHICH CASE THE SEPARATE AGREEMENT SHALL GOVERN; OR (ii) OTHER SHINING GEM STANDARD TERMS APPLY TO THE TRANSACTION.  Customer acknowledges and agrees that these terms and conditions are subject to change without prior notice at any time, in Shining Gem’s sole discretion.

1. Other Documents.  These terms and conditions may NOT be altered, supplemented, or amended by the use of any other document(s).  Any attempt to alter, supplement or amend this document or to enter an order for product(s) and/or services which is subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a writing signed by Customer and Shining Gem.

2. Law; Not for Resale and/or Sublicense.  THIS AGREEMENT AND ANY SALES HEREUNDER SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF PEOPLE’S REPUBLIC OF CHINA.  The United Nations Convention on Contracts for the International Sale of Goods will  not govern this Agreement.  It is irrevocably agreed that any disputes which may arise out of or in connection with these terms and conditions shall be submitted to the China International Economic and Trade Arbitration Commission Guangzhou Commission for arbitration and that accordingly any suit, action or proceeding arising out of or in connection with these terms and conditions shall be brought in such arbitration tribunal.   Customer agrees and represents that it is buying for its own internal use only and not for resale to any third party.

3. Payment Terms; Orders; Quotes; Interest.  Terms of payment are within Shining Gem’s sole discretion.  Payment for the products will be made by check, wire transfer, or some other payment method acceptable to Shining Gem, unless credit terms have been agreed to by Shining Gem. Shining Gem may invoice parts of an order separately.  Orders are not binding upon Shining Gem until accepted by Shining Gem.  Any quotations given by Shining Gem will be valid for the period stated on the quotation.  Customer shall submit any errors or mistakes on any invoice to Shining Gem in writing within 30 days after receipt of such invoice.  In the event that Customer fails to notify Shining Gem of any such errors within such 30-day period, Customer will be deemed to have accepted the invoice as accurate and complete.  Payment is due 30 days from date of invoice, to be received by Shining Gem on or before the due date, unless advance payment is required according to the terms of Customer’s purchase.  Customer will pay to Shining Gem interest on overdue payments on the day-to-day balance at a rate of calculated at the lesser of 18% per annum or the highest rate permitted by applicable law.  Customer agrees to pay all collection and other costs incurred by Shining Gem, including but not limited to, reasonable attorney’s fees.

4. Shining Gem Retention of Title; Risk of Loss.  The property in the goods will remain in Shining Gem until Shining Gem has received payment in full for all sums due and owing on any account by Customer.  If Customer sells or otherwise disposes of the products before payment in full as aforesaid has been made, Customer will in such case hold all monies received by it from such sale or disposal in trust for Shining Gem and will on request furnish Shining Gem with the names and addresses of the persons to whom such disposals have been made together with all necessary particulars to enable Shining Gem to recover any outstanding sums due from such persons.  So long as the property in the products remains in Shining Gem, Customer will hold the products as bailee for Shining Gem and will store the products so as to clearly show them to be the products of Shining Gem, and Shining Gem will have the right, without prejudice to the obligations of Customer to purchase the products, to retake possession of the products (and for that purpose to go upon any premises occupied by Customer).  Nothing in this clause will confer any right upon Customer to return the products. Shining Gem may maintain an action for the price, notwithstanding that property in the products has not vested in Customer.  Notwithstanding that the property in the products may not have passed to Customer, Customer will carry all risk of loss of and damage to the products from the time when the products are delivered to a carrier for transmission to Customer or the prior delivery of the products to the stipulated place of delivery, either of which events will constitute delivery to Customer.

5. Disclaimer of Warranties. TO THE EXTENT PERMITTED BY LAW, ALL TERMS, CONDITIONS, WARRANTIES AND REPRESENTATIONS, IMPLIED BY STATUTE OR OTHERWISE, ARE EXCLUDED. DESPITE ANY OTHER TERMS AND CONDITIONS, IF ANY PRODUCT OR SERVICE SUPPLIED BY SHINING GEM IS SUBJECT TO THE MANDATORY WARRANTIES AND CONDITIONS OF THE APPLICABLE LAW (THE “LAW”), AND IF THE LAW PROHIBITS THE EXTENT TO WHICH SHINING GEM CAN EXCLUDE, RESTRICT OR MODIFY THE APPLICATION OF THE LAW OR ITS LIABILITY FOR BREACH OF THESE WARRANTIES OR CONDITIONS, SHINING GEM ‘S LIABILITY FOR BREACH OF ANY SUCH CONDITION OR WARRANTY WILL BE LIMITED AT SHINING GEM ‘S OPTION TO:  (I) IN THE CASE OF GOODS, THE REPLACEMENT OF THE GOODS OR RESUPPLY OF EQUIVALENT GOODS; THE REPAIR OF THE GOODS; THE PAYMENT OF THE COST OF REPLACING THE GOODS OR ACQUIRING EQUIVALENT GOODS; OR THE PAYMENT OF THE COST OF HAVING THE GOODS REPAIRED; AND (II) IN THE CASE OF SERVICES, THE SUPPLY OF THE SERVICES AGAIN; OR THE PAYMENT OF THE COST OF HAVING THE SERVICES SUPPLIED AGAIN.  ALL SOFTWARE IS PROVIDED SUBJECT TO, AND CUSTOMER AGREES THAT IT WILL BE BOUND BY, THE LICENSE AGREEMENT THAT IS PART OF THE PACKAGE.  ONCE THE PACKAGE IS OPENED OR THE SEAL IS BROKEN, CUSTOMER IS BOUND BY THE LICENSE AGREEMENT.  SUBJECT TO THE FOREGOING, SHINING GEM DOES NOT WARRANT ANY SOFTWARE UNDER THIS AGREEMENT; WARRANTIES, IF ANY, FOR THE SOFTWARE ARE CONTAINED IN THE LICENSE AGREEMENT THAT GOVERNS ITS PURCHASE AND USE.