The following words and phrases shall unless the context otherwise requires have the following meanings :-
1.1 “Buyer” shall mean the buyer of the products as named in this Document.
1.2 “Seller” shall mean the seller of the products as named in this Document.
1.3 “Products” shall mean all items of goods as specified in this Document.
1.4 Unless the context otherwise requires:
(a) words importing the singular number shall include the plural and vice versa; word importing any gender shall include all other genders;
(b) person shall include bodies corporate, unincorporated, associations and partnerships; and
(c) headings are inserted for convenience purpose only and shall not be referred to in the construction and interpretation of this Terms and Conditions of Sale.
2.1 The sale price shall be the total amount of prices for all the products as listed in this Document.
2.2 The sale price shall be paid by the Buyer to the Seller in the manner set out in this Document. The time of payment of the sale price shall be of the essence of this Document.
2.3 If the Buyer fails to make any payment on the due date, then without prejudice to any other right or remedy, available to the Seller, the Seller shall be entitled to :-
(a) charge interest on overdue payments at the rate of 2.5 per cent per month until the sum due is paid. Such interest shall accrue on a day to day basis on a 365 day year;
(b) cancel the contract of sale or suspend any further deliveries to Buyer; and/or
(c) forfeit the deposit and other part payments as liquidated damages (and not as penalty), if any, as the Seller may think fit; and/or
(d) claim damages against the Buyer for breach of the Terms and Conditions of sale.
2.4 The Buyer shall not be entitled to refuse payment in accordance with this Document or any instalment thereof by reason of any claim it may have against the Seller in respect of any other contracts, agreements, dispute whatsoever etc. between the Buyer and the Seller.
3.1 Delivery of the products specified in this Document shall be made by the Seller unless it is specified the otherwise.
3.2 Any days quoted for delivery if the products are approximate only and the Seller shall not be liable for any delay in delivery of the products howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing.
3.3 Where the products are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these terms and conditions of sale. Any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the contract as a whole as repudiate.
3.4 The Buyer shall be treated as having accepted the any of the products if the Buyer retains it for longer than seven days after its delivery. Thereafter the Buyer shall not be entitled to reject such product and the Buyer shall be bound to pay the price.
The risk shall pass to the Buyer when the products are delivered to the Buyer or onto the Buyer’s vehicle or onto the vehicle of its carrier or other agent or at such time as they are available for loading onto that vehicle and would have been loaded onto it had the Buyer duly collected them.
5. RESERVATION OF TITLE
The title to all the products shall remain vested in the Seller until the full sale price thereof shall have been paid to the Seller.
6.1 The Seller warrants that the product will meet with the sample supplied (subject as provided in the technical report - as the case may be).
6.2 Save as provided herein and in Section 14 of the Sale of Goods Ordinance :-
(a) all conditions and warranties, expressed or implied, statutory or otherwise as to the quality or fitness for any purpose of the products are hereby expressly excluded;
(b) The Seller’s warranty is in force if and only if full payment has been made, and received by the Seller, for that product. The Seller shall be under no liability for any loss or damage resulting from misuse, neglect, omission or corrosion due to abnormal exposure to chemicals, adverse environment, accident to the product, force majeure, improper installation or failure to follow the instruction, whether direct, indirect or consequential however arising from the use of the product.
It is hereby expressly declared that any statements as to quality or otherwise made by the Seller do not form part of the description of the products.
6.3 In the event that the Seller is found liable in relation to any product as specified in this Document for any defect in such product or for any other loss or damage suffered by the Buyer, that liability shall in no event exceed the unit price of that product as specified in this Document.
6.4 Where any valid claim is made hereunder, the Seller shall be entitled to replace the product in question free of charge or, at the Seller’s sole discretion, to issue the credit to the Buyer for the price of the product but the Seller shall not be under any further liability to the Buyer. Any defects that could not have been discovered by inspection shall be reported to the Seller upon the earlier of ten days after the discovery thereof or the date that is one hundred and eighty (180) days after the date of the product’s arrival, whichever first occurs. The Seller shall have no obligation to repair or replace any defective product or issue credit as a result of breach of warranty or otherwise unless the Seller receives notice of the defective product on or before the date that is one hundred and eighty (180) days after the date of the product’s arrival. All products return must be authorized by the Seller and documentation regarding the products failure must accompanied all products returned.
6.5 No claim whatsoever hereunder shall be brought against the Seller after the expiry of six month from the date hereof. Any shortages or damage not so discovered shall be deemed to have been discovered and waived.
6.6 For the avoidance of doubt, the Buyer hereby confirms and declares that it is fully aware that the Seller makes no other warranties, express or implied, with respect to the products; all other warranties, express or implied, including without limitation, the implied warranties of merchantability and fitness for a particular purpose, are hereby disclaimed by the Seller. The remedies set forth herein shall be the only remedies available and in no event shall the Seller be liable for indirect, special, incidental or consequential damages, including without limitation lost revenues or profits, whether a claim for such damages is based upon warranty, contract, tort, common law, statute or otherwise. No warranties extend beyond this clause. In no event shall the liability of the Seller with respect to any products sold under this Document (whether such liability arises from a claim based upon contract, warranty, tort or otherwise) exceed the actual amount paid by the Buyer to the Seller for the particular products with respect to which the liability arises.
7. PRODUCT CHANGE, PACKAGING TRADE MARK
The Buyer shall not change any product or trademark in any manner without the Seller’s express prior written approval and shall sell and distribute the products only under the original labels packaging design and trademark, which have been delivered by the Seller.
8. PREVIOUS AGREEMENT SUPERSEDED
This Terms and Conditions of Sale comprises the whole of the Document between the parties hereto in relation to the products and supersedes all the previous negotiations, quotations, representations and agreements in respect of the same and no other terms or conditions shall be included or implied.
In the event that any provision of this Terms and Conditions of Sale is held invalid by a court of competent jurisdiction, the remaining provisions shall nonetheless be enforceable according to their terms. Further, in the event that any provision is held to be overbroad as written, such provision shall be deemed amended to narrow its application to the extent necessary to make the provision enforceable according to applicable law.
10. GOVERNING LAW AND JURISDICTION
This Document shall be governed by and construed in accordance with the laws of Hong Kong of the Special Administrative Region (Hong Kong) and the parties hereto submit to the non-exclusive jurisdiction of the courts of Hong Kong thereof.