General Conditions of Sale and Deliveryof the private company with limited liability [RANK SHARP INDUSTRIES LIMITED 烈銳實業有限公司Rank Sharp Industries Limited./ ERIC BEARE ASSOCIATES LIMITED / UNIVERSAL EXPORTS GROUP LIMITED 史戴克全球出口集團有限公司], established and having its office at 11th Floor SML Tower 165 Hoi Bun Road Kwun Tong KowloonHong Kong +85239257466
EBA Terms and Conditions
Article 1 – Applicability.
- These General Conditions of Sale and Delivery apply to all our offers and to all contracts, including but not limited to purchase orders that we entered into with the customer and invoices that we sent to the customers. (“the customer” means the person/entity who/which placed a purchase order with us and we have confirmed the same in writing.) Deviations from or additions to the preceding and next sentence must be explicitly agreed upon in writing. These General Conditions of Sale and Delivery, together with the order confirmation and attached riders, if any, shall constitute the entire contract between the customer and us and shall supersede all other agreements and understandings with respect to the subject matter hereof. For the avoidance of doubt, if there is any inconsistency or ambiguity between these General Conditions of Sale and Delivery and any purchase order that we placed on the customers or any invoice that we sent to the customers, these General Conditions of Sale and Delivery shall prevail.
- References by the customer to its own purchasing conditions, contract terms or other conditions in any purchase order or other form of written confirmation sent by the customer, shall not bind us, notwithstanding our act of delivery of the products tothe customer in response thereto.The applicability of any conditions used by the customer is explicitly rejected.
- These General Conditions of Sale and Delivery also apply to any or all extra work requested by the customer, by which is understood all that is delivered or performed over and above what is recorded in the confirmation of the original order during the execution of such original order. In general, the previous additional order by the customer will be requested before the production and/or delivery of extra products, but if the activities make the immediate execution necessary, the additional order is to be considered in the original order and the confirmation of the original order, and on the basis thereof we can charge the customer the additional amount.
- Any provision of the order or these General Conditions of Sale and Delivery which is finally determined to be invalid or unenforceable in any jurisdiction shall be ineffective only to the extent of such invalidity or unenforceability, without invalidating or rendering unenforceable the remaining provisions (hence, such remaining provisions shall remain in full force and effect), and any invalidity or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provisions in any other jurisdiction. A legally invalid provision shall be replaced by an alternative valid provision which approximates as closely as possible in nature and scope to the legally invalid provision, on the terms of which parties shall consult further, if necessary.
Article 2 – Offers.
2.1 All our offers are without engagement. A contract is concluded as soon as we have confirmed an (individual) purchase order placed by the customer. In this connection, only members of our respective board of directors or such employee of ours being expressly appointed by our respective board of directors pursuant to our Articles of Association shall be considered as ourauthorised personnel. Only we can invoke the provisions in this paragraph. Further, we shall have the right to assume that all orders as made by any personnel of the customer shall be made by duly authorised employees of the customer and we are not required to make any enquiries to the same.
2.2 Orders and confirmation of the orders must be made in writing; confirmations might take place by means of pro forma invoices. Orders, confirmations and rejections transmitted electronically in our specified format under our specific protocol will be considered to be written or in writing. The provisions in this paragraph also apply to any amendments, additions or varying terms to orders already placed. Therefore, an amended order placed by the customer does not bind us, unless the customer has placed an amended order within five days of our written confirmation of the original order and until such amended order has itself been confirmed in writing by us. For orders where, because of their nature of size, no offer or order confirmation is sent, the contract is concluded at the moment we actually begin to carry it out; in such cases our invoice will be considered as the order confirmation and at the same time is deemed to correctly and completely represent the contract.
2.3 Samples, illustrations, sketches, drawings, specifications and similar details supplied by us to the customer at the quotation stage shall only serve as a rough indication for the products to be delivered by us and shall only be deemed binding on us if they have been confirmed in writing by us after an order has been placed. We shall not be bound by, or responsible for any damages caused or to be caused to the customer arising from, any obvious errors in printed material, drawings, sketches and other documents or any measurements, clerical or arithmetical errors.
2.4 Drawings, technical documents or other technical information relating to a quotation shall not, without our prior consent in writing, be used for any other purpose than the sale of the products. They may not be otherwise used or copied, reproduced, transmitted and/or passed on to a third party; they have to be returned immediately at our request. All drawings and technical and commercial documents relating to the products, their manufacture or their use which have been passed on to the customer before or after an offer has been sent by us, including all intellectual property rights, shall remain our property. For the avoidance of doubt, all such goodwill and IP Rights (as defined below) in relation to all product designs, new product concepts, artwork, images, logo designs (the “Designs”) created or generated by us shall remain vested in us and that the customer shall not have any rights in respect of such IP Rights or of the goodwill associated with them.
2.5 The customer shall not be entitled to alter, modify or vary the Designs for the use or benefits of any goods or products (irrespective of whether such goods or products are sold by us to the customers) without obtaining our prior written consent, and that we shall have the absolute discretion to determine whether or not such prior written consent will be given to the customer.
2.6 In the event that: (a) the customer is required by the relevant legislation to obtain the necessary licence, including but not limited to the technology licence, in respect of its use or selling or utilization of our products; or (b) there is/are claim(s) taken out by a third party against the customer in respect of intellectual property infringement regarding the customer’s use, selling and/or utilization of our products, we shall not be held liable for making any compensation to the customer in relation to any costs, expenses, damages or losses incurred by the customer arising thereof, unless we have provided a prior written notice to the customer which expressly states that we shall be held responsible for the payment of the necessary licence to be obtained in respect of the use selling or utilization of our products by the customers or that there is/are licence agreement(s) made between us and the relevant intellectual property owner(s) regarding the subject products (as the case may be).
2.7 In case of a complex offer of prices there is no obligation for delivery of a part of the order for a corresponding part for the price stated for the entire order.
2.8 We shall reserve the sole right to make minor alterations in any product which is part of a confirmed purchase order at any time, without incurring any obligation towards the customer.
Article 3 – Date and place of delivery.
3.1 Delivery dates are approximations only and are stated in our written order confirmation. The delivery time is extended with the time during which the customer remains negligent to observe any obligation of payment or any other obligation resulting from the order or from any previous or subsequent order, and in those circumstances, we shall not be liable for any damage incurred by the customer. In case other circumstances than those known to us at the moment we determined the time of delivery arise, we are entitled to extend the delivery period needed to deliver the products under these circumstances.
3.2 Delivery f.o.b. (free on board), as defined in our order confirmation. If the products will be delivered by train or by truck: delivery f.c.a. (free carrier), as defined in our order confirmation, according to the latest version of the Incoterms. However, in case the products are transported by truck, the risk concerning the products shall always pass on to the customer at the time they have left our works or the works of one of our corporate affiliates, or at the moment that they are kept available in accordance with Article 3.4 below. The provisions in this paragraph shall apply without limitation, also in the event of damage to the products caused by destruction of the packing.
3.3 We have the right to deliver the invoice to the customer if we are able to deliver 90 per cent of the products mentioned in the relevant purchase order.
3.4 If the customer refuses to accept or collect any or all of the ordered products when delivered to the designated location by us in accordance with the terms and conditions as stipulated in the [relevant order confirmation], (irrespective of whether such products are delivered to the customer by the forwarder(s) arranged by the customer, LC and/or us), such acts by the customer shall be constituted as a default by the customer. In that case, we are entitled to store the products or to have them stored at the expense and at the risk solely borne by the customer, and if the customer does not meet its payment obligation regarding the relevant purchase order and order confirmation in time, we shall have the absolute discretion to cancel the relevant purchase order; and in that circumstances, the customer shall fully indemnify us against and hold us harmless from all costs, expenses, losses or damages incurred or suffered by us.
3.5 If the customer orders products to be delivered on call, they must actually be called and taken within the period of call agreed. If the customer does not meet said obligations within eight days after the end of the period of call, we shall be entitled to send an invoice, or to cancel the order, or any previous or after order and/or any other contract with the customer and in that circumstances, the customer shall fully indemnify us against and hold us harmless from all costs, expenses, losses or damages incurred or suffered by us.
3.6 We will use our reasonable efforts to deliver the products on the agreed delivery date, which is not an absolute deadline. Failure to meet the relevant delivery dates by us shall not however constitute grounds for the customer to make any claim for any compensation, or non-payment of previous orders, or cancellation of the affected order or previous or after order(s). However, if the delay exceeds one month, the customer is entitled to cancel the delayed order in writing if we – after written demand hereof by the customer – are unable to deliver within a reasonable time-limit hereafter. Cancellation of a delayed order does not entitle the customer to cancel other orders, unless delays have occurred repeatedly over a substantial period of time.
3.7 Before or during the performance of the order we, if we have a good reason to fear that the customer will not be able to fulfil its obligations of payment in time to us, shall be entitled to suspend the fulfilment of our obligations until the customer has given sufficient security that payment will take place. If an order is accepted by us without an irrevocable letter of credit, the customer is always obliged to give additional security at our request. If the other party fails to give such security we shall be entitled to cancel the affected order(s) and/or any other order; the customer is liable for any damage we suffered. The above requirement does not release the customer from any previous obligation.
Article 4 – Prices and packing.
4.1 In so far as it has not been agreed otherwise with the customer in writing, our prices will be EX Works f.o.b. or f.c.a. as mentioned in Article 3.2, in Euro or USD, as mentioned in our invoice, and do not include possible value-added tax.
4.2 The prices shall be without engagement in respect of any repeat orders and/or follow-up orders. All price-increases occurring after the written confirmation of the order as a result of an increase in costs of (ancillary or raw) materials, parts, freight rates, wages, social security contributions, customs import or export expenses, taxes, and also price-increases as a result of currency price changes or change in the interest rate, or any change of the currency of the prices, may be passed to the customer. Next, we are entitled to raise the agreed price by price-increases occurring in the meantime, if more than six months have elapsed between the written confirmation of the order and the delivery.
4.3 We also have the right to adjust the prices or to change the currency of the prices with immediate effect, also regarding orders placed. In that case, the customer has the right to cancel the relevant parts of the purchase order if the price adjustment is more than five per cent and the delivery of the relevant products would normally take place within three months after our order confirmation.
4.4 Unless agreed otherwise in writing, we shall – if necessary and at our sole discretion – provide the products with our standard packing, on pallets. Unless otherwise agreed with the customer in writing, the customer shall not be required to return the packing materials to us.
Article 5 – Terms of payment.
5.1 Payment will only take place in Euro or USD, as stated in our invoice, and shall be effected, if it has not been agreed otherwise in writing, in advance or with an irrevocable letter of credit issued or confirmed by a leading Hong Kong licensed bank which has its office in Hong Kong. Time is of the essence regarding the payment of our invoices; the customer is in default by operation of law if it has allowed the agreed payment term to expire.
5.2 Without limiting the provisions of Article 2.2, no invoice shall be submitted by us prior to the shipping of the products unless otherwise expressly agreed with our customer in order to comply with the applicable banking or customs import regulations, as defined in our order confirmation; or if the products are transported by train, prior to the delivery f.c.a. accordingly to Incoterms; or if the products are transported by truck, prior to the moment the products have left our works or the works of one of our corporate affiliates.
5.3 Unless agreed in writing otherwise, if payment will not be effected in advance or with an irrevocable letter of credit, payment is to be made within 30 days after invoice date or prior to release of the goods whichever may come first, without any right to discount or set-off. Each payment by the customer will be used first for the settlement of any collection and internal (administration) costs, then for the interest due, and after that, for the settlement of any outstanding claims in order of age beginning with the oldest. NO Offset- customers shall not be entitled to offset claims or counter claims returns against any invoices issued by us unless it has been agreed by us in writing.
5.4 The claim for payment of the purchase price shall be due and payable at once if the customer is, amongst other circumstances, declared bankrupt or being subject to winding-up petition whether on its own application or instigated by a third party, files a petition for an official moratorium, if the appointment of a guardian over it has been applied for, or any products or claims of the customer are attached, and also if an administrator or receiver has been appointed over (part of) its property or the customer is in liquidation or has been wound up.
5.5 Any amounts due and payable to us for products supplied to the customer which have not been received in time, shall accrue an interest rate of 12 per cent, unless the Hong Kong legal rate of interest in commercial transactions according to the Hong Kong Law regarding arrears in commercial transactions exceeds the above mentioned interest rate. In that case the highest interest rate as recognised under the then prevailing laws of Hong Kong is applicable. The date on our bank or giro statement when payment is recorded as received applies as the date on which payment has occurred.
5.6 If we find it necessary to institute measures to recover sums due, the customer shall be obliged to reimburse any internal administration costs incurred. Internal cost shall be set at five per cent of the invoice amount. Neither we nor the customer are permitted to demand either a reduction or an increase in these internal costs in any legal proceedings. It shall be assumed that we are obliged to institute collection measures when payment by the customer is outstanding to a greater number of days than agreed upon. If the customer shall default in any of the conditions of any order or any other contract, obliging us to commence extrajudicial, legal or arbitration proceedings against him, the customer shall bear all reasonable expenses of any extrajudicial collection or of any litigation, including court costs and all attorney’s fees incurred by us. The customer recognises that he shall bear all our attorney’s fees on a full indemnity basis.
5.7 Any credit entries can only be made by our Board of Directors or authorised personnel as mentioned in Article 2.1; rights can only be derived from a credit entry if the credit note is provided with a signature of any one of them together with our company chop.
5.8 If the invoices by way of exception are in foreign currencies we shall nevertheless have the right to claim payment in USD or Euro as we deem fit, and this according to the exchange price of the day as promulgated by HSBC on which the agreement came out, or at our choice, according to that of the invoice date.
5.9 Complaints and/or questions regarding our invoices must be notified to us in writing and with the statement of the full reasons and supporting documents and must be received by us within 14 days of the invoice date or the delivery date of the products mentioned in the above invoice, failing which the customer shall be deemed to have approved the invoice and shall raise no further objections.
Article 6 – Inspection of the products and complaints.
6.1 All deliveries are considered to have been approved unless the customer, within eight days after the moment the products arrived at the warehouse where the products have been stored by order of the customer, notifies us in writing t why he does not agree with the delivery (defects, damages, or shortage).
6.2 Defects of the products that cannot reasonably be discovered within the above- mentioned period must be reported by written notice immediately upon being discovered by the customer and such reporting should adopt the GQI procedure and be in standard GQI format
6.3 Customer expressly acknowledges and agrees that minor variations within our customary tolerances shall not entitle the customer to file a complaint, or demand compensation, or request that the order be cancelled.
6.4 In the event of the customer’s failure to give us notice within the period specified in Articles 6.1 and 6.2, the customer’s claim concerning defects as aforesaid shall be refused by us without further explanation.
6.5 Upon discovery of any defect to a substantial number of the same product delivered by us, the customer shall immediately cease the marketing of the products concerned and shall give us all such assistance as we may require and demand for the purpose of examining the complaint. Details of Recall and Accidents are described in Article 9.1 below.
6.6 Complaints regarding the products will only be considered by us, provided we are given the opportunity and reasonable timeframe to verify that the complaint is valid and genuine.
6.7 Any defects regarding part of the products that relate to one purchase order do not give rise to an allowable claim by the customer to reject (i) all of these products which form part of this purchase order or other purchase order or (ii) any other products within the same purchase order; or (iii) any of the other purchase orders as placed.
Article 7 – Retention of title.
7.1 After delivery of a specific order, the products shall remain our property until such time as we have received full payment:
- a) for the products supplied concerning this specific order, or previous or after orders, and
- b) of claims arising from the non-performance by the customer of any orders, such as damages, penalties, interest and costs.
The mere fact that we do not have, or do not have anymore, any claim to the customer at a certain date shall not bar the validity of the continuation of our retention of title if we will have a claim against the customer at a later date. However, the risk of such products shall pass onto the customer upon the products having left our premises regardless of whether such products were paid or not.
7.2 If the products are actually in the customer’s possession before they are paid for, they shall be deemed to have shipped/transported on a consignment basis and we shall be entitled at any time to recover these products (entering on to the customer’s properties for this purpose, if necessary) or demand their return forthwith.
7.3 Prior to the date of acquiring the property and title of the products, the customer shall not be entitled to dispose of the products or to use the same as collateral for any loan or to pledge the same as security for any debt or mortgage the same or otherwise transfer or assign the same to any third party. However, the products may be used by the customer in the normal course of its business.
7.4 In case of any amounts due and payable, the customer shall enable us forthwith to regain possession of the products supplied by us, without any prior notice of default or judicial intervention being required for that purpose. In anticipation of the event that the customer should fail to fulfil any of its obligations (of payment or otherwise) to us, and without prejudice of any of our rights, we are hereby given irrevocable authorisation by the customer to recover possession of the products forthwith upon our demand, without any prior notice or judicial intervention being required for that purpose.
7.5 It shall be the customer’s duty to give us immediate written notice in the event that third parties (may) enforce any claims upon any of the products which are subject to our retention of title.
7.6 Every payment we receive from the customer shall be free from bank charges and applicable tax and shall be applied first of all towards the discharge of the debts owed to us by the customer in respect of which no reservation of ownership in the terms of Article 7.1 is in force.
7.7 The customer will inform us regarding any additional local requirement applicable in the region where the products he bought from us are stored, so as to establish and exercise our retention of title. Further, the customer will cooperate to fill in, sign and file any additional forms, if necessary to establish and/or exercise our retention of title.
Article 8 – Warranty and liability.
8.1 We only warrant to the customer that the products shall be free from defects in material and workmanship, under normal use and service, at the time of delivery f.o.b. Chinese port (shipment) or f.c.a. [Rank Sharp Industries Limited Distribution Centre]and for a period of three years thereafter, unless stated otherwise in our price list, order confirmation, invoice, brochures, website, or in the separate documentation which is delivered with every individual product. Any modification in our warranty will take effect forthwith. There are no warranties on non-durable accessories that will be delivered by us.
8..2 The customer shall not offer any manufacturer’s warranty, nor make any representations regarding the products, in addition to or different from those contained in our warranty.
8.3 We will, at our discretion, either replace any product we determine was defective at the time of delivery f.o.b. (shipment) or f.c.a. (train or truck), or credit the customer with the value of the product. Defective products will be kept available for inspection by us until a credit note has been issued. At our request, the defective products shall be returned to us once per quarter. Any products returned to us shall become our property. The costs of transportation shall be borne by us and the customer in equal shares. The amount equivalent to the relevant portion of the costs of transportation borne by us will be deducted in our next invoice to be issued to the customer, if any, or reflected in a separate credit note.
8.4 To the extent permitted under applicable law, the warranties set forth in Article 8.1 are exclusive and in lieu of any and all other warranties, conditions, undertakings or other terms expressly or implied (whether by statute, common law, collaterally or otherwise) with respect to the delivery of the products, the non-delivery of the products, and/or the delivery of inferior products, including but not limited to implied terms of satisfactory quality, correspondence with description and fitness for particular purpose, merchantability or absence of hidden defects.
8.5 Warranty claims shall not be entertained, where:
- a)we have not been notified in writing by the customer about the inferiority of the products delivered within eight days after establishing this fact, unless we have agreed in writing with the customer to send us reports at regular predefined intervals; and/or
- b) the products have been used in a way which is not mentioned in the directions for using the products, and/or
- c) the products have been repaired or there has been an attempt to repair the products by anyone other than one of our authorised representatives; and/or
- d) the damage or defect is the result of an extraneous cause or has been caused by the fact that the products are subject to obvious normal wear and tear; and/or
- e) the total price for any product has not been paid
8.6 Limitation of warranties.
- a) Our liability for any breach of our warranty is limited as set forth in our warranty.
- b) In no event shall our liability towards the customer in contract arising from or relating to a breach of our warranty, including without limitation any and all claims combined, exceed the price the customer paid for the specific products giving rise to the alleged liability. In no event will we be liable for the costs of procurement of substitute goods by the customer, the customers of the latter or any other persons or entity.
- c) In no event shall our liability towards the customer in tort (including negligence or breach of statutory duty), misrepresentation or otherwise exceed the price the customer paid for the specific products giving rise to the alleged liability.
- d) Without limiting the remaining provisions of this Article 8.6, we shall not be liable for any loss, damages and/or expenses that occur as a direct or indirect result of:
(i) fraud, gross negligence and malicious intent of personnel and third parties that we make use of; and/or
(ii) a defect in the products supplied, if, on the basis of the scientific and technical knowledge at the moment upon which we released the products, it was not reasonably possible to discover the existence of the defect; and/or
(iii) violation of patents, licences or other rights of third parties as a result of use by or on account of the data given by the customer; and/or
(iv) damages that may result from packing, invoicing or shipping documents not being in accordance with the requirements of the country to which shipment is made or the products will be transported.
(e) With observation of the applicable laws, under no circumstances shall we have any obligation or liability to the customer or any third party for loss of profits, loss of business, depletion of goodwill or otherwise, and/or loss or use or for any consequential, incidental, indirect or contingent damages whatsoever, even if we have been advised of the possibility thereof, arising out of or in connection with the sale, delivery, use, repair or performance of any product that we or our corporate affiliate delivered to the customer or third parties (whether for loss of profit, loss of business, depletion of goodwill or otherwise). The customer is bound to indemnify us against claims of third parties as a result of any loss, damage or expenses occurred in connection with products delivered by us or our corporate affiliate, unless there is a matter of product liability.
(f) Without limiting the remaining provisions of Article 8.6, we accept liability for direct loss, direct damages and direct expenses that occur as a direct result of fraud, gross negligence and malicious intent by a member of our Board of Directors, mentioned in the extract of the Commercial Register of the Hong Kong General Chamber of Commerce HKGCC.
(g) The customer shall be bound to indemnify us against claims of third parties as a result of any loss, damage or expenses occurred in connection with products delivered by us, unless there is a matter of product liability.
(h) In case of a product liability matter, regardless of the grounds of any claim, we are only liable for damage to the customer’s or third parties’ property and/or for injury or decease of persons if and in so far as we will be compensated by our product liability insurer, to be increased by our own risk as mentioned in this insurance policy.
Article 9 – Recall and accidents.
9.1 Should we decide to a recall of any of the products, the customer shall use its best efforts to cooperate fully with us in effecting such recall, including without limitation, promptly contacting any purchasers we desire to be contacted during the course of such recall, and promptly communicating to such purchasers such information or instructions as we may desire to be transmitted to such purchasers. We will compensate 50% of customer’s direct costs involved, if these costs have been made after our previous written permit.
9.2 Where an accident involving one of the products occurs in the region where the customer has resold our products, the customer must notify us by fax or e-mail without delay and be prepared to cooperate fully with us to carry out a damage analysis and appraisal. This is to fulfil a legal liability and to defend any legal claim of the parties in their respective areas of responsibility. This obligation shall remain in force until final settlement of the claim; it shall be observed in all cases to prevent (further) damages.
Article 10 – Intellectual property rights.
10.1 The customer acknowledges that the relevant affiliated companies of our company are the sole owner of the respective patents, know-how, copyrights, trade names, domain names, slogans, labels affixed by us to the products, trademarks licensed by Brabantia, service marks, neighbouring rights, logos, word marks and design marks that we use in connection with our business, products and services or that our relevant corporate affiliates otherwise claim (the “IP Rights”). The customer acknowledges that our above-mentioned relevant corporate affiliates shall retain sole ownership of the IP Rights throughout the world and that we are authorised to enforce these IP rights in and outside the region where the customer resells the products, which authorisation is based on the internal licence agreement with our relevant corporate affiliates. The customer shall not do anything inconsistent with such ownership. In particular, but without limitation:
- a) the customer shall not attack the validity of any of the IP Rights or the ownership rights of our relevant corporate affiliates in and to the IP Rights, and
- b) the customer shall not use the IP Rights or any variation thereof, in connection with any product which has not been supplied by us to the customer; and
- c) the customer shall not be permitted to issue sub-licences or to allow unlicensed manufacture of our products; and
- d) the customer shall not use, under whatever circumstance, any of the IP Rights as part of its business name and is not allowed to remove or to change any of our brand names or symbols on the products; however, the customer shall be empowered to affix on the products which are sold by it a plate bearing its trade name; this plate shall not detract from or dominate our markings; and
- e) the customer shall neither register, nor have registered, any of the IP Rights (or which IP Rights are similar to those of ours or which creates the danger of association for the end-user), in the region where it resells the products or elsewhere; and
- f) the customer shall not be permitted to alter or modify the products, its packaging (unless there is a matter of an agreed mail order-system between the customer and us) and the instructions how to use the products; and
- g) the customer shall not remove, cover, change, or add to the labels affixed by us to the products; and
- h) the customer shall not use drawings, technical documents or other technical information for any other purpose than the sale of the products; they may not be otherwise used or copied, reproduced, transmitted and/or passed to a third party; they have to be returned immediately at our request; we shall retain sole ownership of all drawings and technical and commercial documents relating to the products, their manufacture or their use which have been passed by us or our corporate affiliate to the customer, including all IP Rights related to it; and
- i) the customer shall not do or omit to do or authorise any person to do or omit to do anything which would or might invalidate or be inconsistent with any of the IP Rights; and
- g) the customer shall not, without obtaining our prior written consent, whether by itself or through any third party, copy, reproduce or manufacture all or any parts of the appearance and/or contents and/or structures of our products.
10.2 The customer acknowledges that our corporate affiliates are the sole owner of the internet domain names that our corporate affiliates and we use in connection with our business, products and services.
10.3 Unless expressly otherwise agreed in writing, the customer is only permitted to sell the products exclusively under our current and future brand names and/or logo’s, and must use only our symbols such as codes and type descriptions.
10.4 If the customer has instructed us to manufacture the products from drawings, models, samples or other indications coming from the customer, the latter takes on the full guarantee that as a result of this manufacture or delivery of these products no trademark, trade model or any other right of third parties is harmed.
10.5 We shall decide alone whether to object to possible infringements. Expenses borne in connection with such objection and any steps taken to protect the IP Rights shall be borne by us and any sums recovered shall correspondingly be due to us. However, the customer shall be obliged, in cooperation with us and following our instruction, to object to the infringement by the third party and/or to take steps to protect the IP Rights, and to render all assistance in connection herewith.
10.6 If an IP Right infringement action is commenced or threatened against us or our corporate affiliate so as to any products and we, as a result, choose to discontinue the sale of any particular product in any region where the customer resells this product, the customer shall discontinue the sales of said product in this region immediately upon receipt of a written notice from us.
Article 11 – Force majeure.
11.1 Neither party shall be held liable for any breach of any order which can be attributed to force majeure, such as (e.g.) labour disputes, the unavailability of transportation, products (e.g. raw or subsidiary materials) or services, governmental restrictions and/or actions, regulations issued by the EEA authorities or to a war (whether declared or not), any such event being called “a Force Majeure Event”.
11.2 If either party is affected by a Force Majeure Event it shall promptly notify the other party of the nature and extent of the circumstances in question.
11.3 In the event of non-performance or delay attributable to any Force Majeure Event, the period for the performance of the applicable obligation under the specific order shall be extended for a period equal to the period of delay, with a maximum of two months. Where the obstacle lasts for more than two months, the other party shall be entitled to cancel the order in writing, if we – after written demand hereof from the customer – are unable to deliver within a reasonable time-limit hereafter.
11.4 However, the customer is obliged to fulfil its payment obligations in time in respect of orders already completed by us. The party affected by the delay shall nevertheless use its best efforts – with no obligation to spend substantial sums which would not otherwise be required under the conditions of the specific order – to circumvent or overcome the cause of the delay.
Article 12 – Suspension and cancellation.
12.1 Without limiting the provisions of Article 11, if the customer fails to fulfil any of its obligations under the confirmed purchase order, or fails to do so within the agreed time, such failure shall constitute an event or default by the customer and we shall be entitled, without prior notice or judicial intervention being required for that purpose:
– to suspend further deliveries under the affected order(s) and/or any other order with the customer until payment has taken place, or
– to cancel the affected order(s) and/or any other order in whole or in part entirely without prejudice to any of our other rights and without liability to us for any compensation whatsoever.
12.2 Notwithstanding other provisions in these General Conditions of Sale and Delivery regarding suspension, each party shall be entitled to suspend performance of its obligations under the relevant purchase order where it is clear from the circumstances that the other party will not be able to perform its obligations. The party suspending the performance of its contractual obligations shall forthwith notify the other party thereof in writing, giving reasons (both by fax or by e-mail).
12.3 If the customer is declared bankrupt or files a petition for winding-up, is in liquidation, is wound up, if the appointment of a guardian over him has been applied for, and also if an administrator or receiver has been appointed over (part of) its property, subject to criminal sanctions, all orders which have not been executed shall be cancelled by operation of law, unless we inform the customer upon a reasonable term of notice that we demand specific performance regarding one or more orders. In that case we shall be entitled, without further notice being required for that purpose:
- a) to suspend further deliveries or work under the order(s) concerned until payment has been sufficiently secured, and/or
- b) to suspend all our payment obligations to the customer (if any), entirely without prejudice to any of our other rights towards the customer.
12.4 No wavier by us in respect of strict compliance with all conditions mentioned in the order(s), any other contract between us and the customer or in these General Conditions of Sale and Delivery shall constitute a waiver in respect of any subsequent failure of the customer to comply strictly with all conditions hereof.
Article 13 – Applicable law, severability.
13.1 All purchase orders have been/will be made according to the laws of Hong Kong and they shall be governed and construed according to the substantive laws of Hong Kong. The Convention on the International Sale of Goods (1980) is not applicable, just as other international substantive rules that are not mandatory.
13.2 The laws of Hong Kong shall govern this General Condition of Sale and Delivery and all the purchase orders in relation to us in all respects as to the enforcement and the modes and conditions of the application of remedies of violated rights of the one to the other.
13.3 The terms and conditions in these General Conditions of Sale and Delivery and in the purchase orders express and describe Hong Kong legal concepts in English consequently; words, terms and expressions used in the General Conditions of Sale and Delivery and in the purchase order shall be construed and interpreted in accordance with the laws of Hong Kong.
13.4 Should the customer be considered as one of our distributors in a certain country, region and/or city by any arbitration committee or court, the following applies, if we did not enter into a separate written distribution agreement with this customer: the parties agree that all relevant Hong Kong rules and legislations regarding the unilateral termination of concessions of indefinite duration does not apply to any contractual relationship we entered into with the customer, in so far as the distribution and marketing of the products by the customer taking place outside the territory of Hong Kong.
Article 14 – Jurisdiction and venue.
14.1 Any dispute arising under or in connection with the order shall be finally settled under the [UNCITRAL Arbitration Rules at the Hong Kong International Arbitration Centre (“HKIAC”)] by one arbitrator appointed in accordance with those rules. Such arbitration shall be conducted in the English language. The arbitral award shall be the exclusive remedy of the parties for all claims, counterclaims, issues or accountings presented or pled to the arbitrators. The [HKIAC] shall apply the provisions of the purchase order and these General Conditions of Sale and Delivery, and when these provisions are silent, by the rules of Hong Kong law (substantive law and law of procedure). The parties expressly exclude any application for setting aside the arbitral award.
14.2 For the avoidance of doubt, nothing in this Article 14 shall restrict us in urgent cases to issue court proceedings against the customer to obtain a court order regulating questions of conduct by the customer pursuant to the specific order, or to obtain a speedy settlement by way of a court order to disputes requiring instantaneous resolution.
14.3 Notwithstanding the foregoing, we reserve the right to bring suit against the customer for any amounts due and owed by the customer to us, pursuant to the specific order, in the courts of Hong Kong.