Terms and Conditions of Business
§ 1 CONCLUSION
These terms and conditions of commercial sale of ARCPROLED Limited (the “Terms and Conditions”) apply to and form an integral part of all quotations and offers made by ARCPROLED Limited (“ARCPROLED”), all acceptances, acknowledgements and confirmations by ARCPROLED of any orders by Buyer and any agreements (“Agreements”) regarding the sale by ARCPROLED and purchase by Buyer of goods and services (“Products”), unless and to the extent ARCPROLED explicitly agrees otherwise. Any terms and conditions set forth on any document or documents issued by Buyer either before or after issuance of any documents by ARCPROLED setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by ARCPROLED, and any such terms shall be wholly inapplicable to any sale made by ARCPROLED to Buyer and shall not be binding in any way for ARCPROLED. ARCPROLED offers are open for acceptance within the period stated by ARCPROLED in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by ARCPROLED at any time prior to the receipt by ARCPROLED of Buyer’s acceptance thereof. When an order placed by Buyer is cancelled after acceptance by ARCPROLED, the Buyer shall be liable for all loss and/or damage, including consequential loss caused to ARCPROLED by such cancellation.
§ 2 VALIDITY OF PRICING
Prices in any offer, confirmation or Agreement are in the currency stipulated in ARCPROLED´s quotation and/or invoice, based on delivery Ex-Works (INCOTERMS latest version) ARCPROLED’s manufacturing facility or any other facility designated by ARCPROLED, unless agreed otherwise in writing between Buyer and ARCPROLED and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products. ARCPROLED will add taxes, duties and similar levies to the sales price if ARCPROLED is required or enabled by law to pay or collect them and these will be paid by Buyer together with the price.
§ 3 TERMS OF PAYMENT
Unless agreed otherwise between ARCPROLED and Buyer in writing, ARCPROLED may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable INCOTERM. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due in accordance with the agreement signed with the Buyer. Payment Terms are 50% with order confirmation, 50% before delivery unless agreed otherwise between ARCPROLED and Buyer in writing. All payments shall be made by TT to the designated ARCPROLED bank account. Cheque payments must be cleared before payment confirmation. No discount is allowed for early payment unless agreed to in writing by ARCPROLED. In addition to any other rights and remedies ARCPROLED may have under applicable law, interest will accrue on all late payments at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full. Orders are considered FINAL upon receiving the confirmation and down payment. No return, no exchange for confirmed orders. If for any reason the Buyer is unable to settle the balance for the full payment and the additional storage fee incurred after the allowable storage period, the order will be cancelled and any payment made by the Buyer will be forfeited without any formality. In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, ARCPROLED shall have the right to refuse performance and/or delivery of any Products until payments are brought current and ARCPROLED may suspend, delay or cancel any credit, delivery or any other performance by ARCPROLED. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.
§ 4 TERMS OF DELIVERY
Products shall be delivered Ex-Works (INCOTERMS latest version) as designated by ARCPROLED, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by ARCPROLED are approximate only, and ARCPROLED shall not be liable for, nor shall ARCPROLED be in breach of its obligations to Buyer, for any delivery made within a reasonable time before or after the communicated delivery date. ARCPROLED agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to such delivery date. Buyer will give ARCPROLED written notice of failure to deliver and ninety (90) days within which to cure. If ARCPROLED does not deliver within such ninety (90) day period, Buyer’s sole and exclusive remedy is to cancel the affected and undelivered portions of the Agreement. Title in the Products shall pass to Buyer upon payment in full of the purchase price in respect thereof. Risk of loss in the Products shall pass to Buyer upon ARCPROLED´s delivery in accordance with the applicable INCOTERMS. If Buyer fails to take delivery of Products ordered, ARCPROLED will send a reminder and designate another time for Buyer to take delivery of Products ordered. If Buyer fails to take the delivery upon the aforesaid reminder, ARCPROLED, at its sole discretion, may dispose of the Products ordered without prejudice to its rights of the full payment on the Products ordered and Buyer shall indemnify and hold ARCPROLED harmless from any and all expenses, costs, damages, losses or third party claim arising out of or in connection with Buyer’s failure to take the delivery, including but not limited to warehousing costs, logistics fees.
§ 5 INSTALLATION MANUAL
All recommendations and drawings by ARCPROLED for electrical work in connection with the installation of ARCPROLED’s equipment or Products should be regarded as information for the Buyer’s reference only. These may not necessarily agree with any local authority / regulatory or governmental rules and should under NO circumstances be used as final installation drawings nor should they be used to obtain approvals from various government or supply authorities concerned. Any electrical or commissioning works carried out by ARCPROLED’s engineers or technicians is done solely at the risk of Buyer and under the supervision of the Buyer’s electrical contractors or electrical engineers. ARCPROLED will not bear any responsibilities for any electrical work carried out by Buyer’s engineers or technician.
§ 6 FORCE MAJEURE
ARCPROLED shall not be liable for any failure or delay in performance if: (i) such failure or delay results from interruptions in the Product manufacturing process; or (ii) such failure or delay is caused by Force Majeure as defined below or by law. In case of such a failure as set forth above, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues, without ARCPROLED being responsible or liable to Buyer for any damage resulting therefrom. The expression “Force Majeure” shall mean and include any circumstances or occurrences beyond ARCPROLED’s reasonable control – whether or not foreseeable at the time of the Agreement – as a result of which ARCPROLED cannot reasonably be required to execute its obligations including force majeure and/or default by one of ARCPROLED’s suppliers. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by ARCPROLED to extend for a period of three (3) consecutive months), ARCPROLED shall be entitled to cancel all or any part of the Agreement without any liability towards Buyer.
§ 7 RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY
Subject to the provisions set forth herein, the sale by ARCPROLED of a Product implies the non-exclusive and non-transferable limited license to Buyer under any of ARCPROLED’s and / or its affiliates’ intellectual property rights in the territory to the extent necessary to use and resell Products as sold by ARCPROLED to Buyer. To the extent that software and / or documentation is embedded in or delivered with a Product, the sale of such Product shall not constitute the transfer of ownership rights or title, any rights in relation to the intellectual property in such software and / or documentation to Buyer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and non-transferable license to Buyer under ARCPROLED’s intellectual property rights to the extent necessary to use such software and / or documentation in conjunction with and as embedded in or delivered with the Products as supplied by ARCPROLED in the territory. Buyer shall not: (a) modify, adapt, alter, translate, or create derivative works from any software residing in or provided by ARCPROLED in conjunction with any Products; (b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software; (c) merge or incorporate such software with or into any other software; or (d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from ARCPROLED except as explicitly allowed under applicable law. Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of ARCPROLED and / or its affiliates or its third party suppliers in any software or documentation provided by ARCPROLED. License terms of third parties may apply.
§ 8 LIMITED WARRANTY AND DISCLAIMER
ARCPROLED warrants that under normal use in accordance with the applicable user manual the Products, shall, at the time of delivery to Buyer and for a period of twelve (12) months from the date of delivery (or such other period as may be agreed upon in writing by the parties), be free from defects in material or workmanship and shall substantially conform to ARCPROLED’s specifications for such Product, or such other specifications as ARCPROLED has agreed to in writing, as applicable. ARCPROLED’s sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at ARCPROLED’s option, either to the replacement or repair of a defective or non-conforming Product or to an appropriate credit for the purchase price thereof. ARCPROLED will have a reasonable time to repair, replace or credit. The non-conforming or defective Products shall become ARCPROLED’s property as soon as they have been replaced or credited. Buyer may ship Products returned under warranty to ARCPROLED’s designated facility only in conformance with ARCPROLED’s then-current return material authorization policy. Buyer has to send all products free from any charges for ARCPROLED. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith. Notwithstanding the foregoing, ARCPROLED shall have no obligations under warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, use other than as set forth in the user manual, neglect, improper installation or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling. The express warranty granted above shall extend directly to Buyer and not to Buyer’s customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by ARCPROLED. Subject to the exclusions and limitations set forth in Section 10 of the Terms and Conditions, the foregoing states the entire liability of ARCPROLED in connection with defective or non-conforming Products supplied hereunder.
§ 9 INTELLECTUAL PROPERTY RIGHTS INDEMNITY
(a) ARCPROLED, at its sole expense, shall: (i) defend any legal proceeding brought by a third party against Buyer to the extent that the proceeding includes a claim that any Product as furnished by ARCPROLED under an Agreement directly infringes the claimant’s patent, copyright, trademark, or trade secret; and (ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding to the extent directly and solely attributable to such infringement. (b) ARCPROLED shall have no obligation or liability to Buyer under Section (a) (1) if ARCPROLED is not: (i) promptly notified in writing of any such claim; (ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and (iii) given full reasonable assistance and cooperation by Buyer in such investigation, preparation, settlement and defense; (2) if the claim is made after a period of two (2) years from the date of delivery of the Product. If any Product is, or in ARCPROLED’s opinion is likely to become, the subject of a claim of infringement as referred to under Section 8 above, ARCPROLED shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell the Product; (ii) provide replacement Product, or (iii) modify the Product in such a way as to make the modified Product non-infringing; or (iv) terminate any Agreement to the extent related to such Product. Subject to the exclusions and limitations set forth in Section 10 of the Terms and Conditions, the foregoing states ARCPROLED’s entire liability and obligation to Buyer and Buyer’s sole remedy with respect to any actual or alleged infringement of any intellectual property rights or any other proprietary rights of any kind.
§ 10 LIMITATION OF LIABILITY
ARCPROLED SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SALE OF ANY PRODUCTS OR SERVICES BY ARCPROLED OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY – EVEN IF ARCPROLED HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES. ARCPROLED’S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS BUYER UNDER ANY AGREEMENT SHALL NOT EXCEED AN AMOUNT OF TEN PERCENT (10%) OF THE RELATED AGREEMENT. Any Buyer’s claim for damages must be brought by Buyer within sixty (60) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
The limitations and exclusions set forth above in this Section 10 shall apply only to the extent permitted by applicable mandatory law.
§ 11 CONFIDENTIALITY
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by ARCPROLED and / or its affiliates is the confidential information of ARCPROLED and / or its affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
§ 12 EXPORT / IMPORT CONTROLS
If the delivery of Products under the Agreement is subject to the granting of an export or import license by a government and / or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, ARCPROLED may suspend its obligations and Buyer’s rights regarding such delivery until such license is granted or for the duration of such restriction and / or prohibition, respectively, and ARCPROLED may even terminate the Agreement, without incurring any liability towards Buyer. Furthermore, if an end-user statement is required, ARCPROLED shall inform Buyer immediately thereof and Buyer shall provide ARCPROLED with such document upon ARCPROLED’s first written request; if an import license is required, Buyer shall inform ARCPROLED immediately thereof and Buyer shall provide ARCPROLED with such document as soon as it is available. By accepting ARCPROLED’s offer, entering into any Agreement and / or accepting any Products, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations. The Buyer alone bears responsibility for the bringing of our goods outside of Hong Kong. The Buyer is to take care that the respective technical and statutory guidelines of his country are fulfilled. He bears the cost burden of implementing them.
§ 13 ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of ARCPROLED. Buyer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer may have with ARCPROLED or any of its affiliates may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
§ 14 GOVERNING LAW AND FORUM
All offers, confirmations and Agreements are governed by and construed in accordance with the laws of Hong Kong. All disputes arising out of or in connection with any Agreement shall first be attempted by Buyer and ARCPROLED to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts of Hong Kong, provided that ARCPROLED shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Agreement. Nothing in this Section 14 shall be construed or interpreted as a limitation on either ARCPROLED or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
§ 15 BREACH AND TERMINATION
Without prejudice to any rights or remedies ARCPROLED may have under the Agreement or at law, ARCPROLED may, by written notice to Buyer, terminate with immediate effect the Agreement or any part thereof without any liability whatsoever, if:
– Buyer violates or breaches any of the provisions of the Agreement;
– any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer. Upon occurrence of any of the events referred to above, all payments to be made by Buyer under the Agreement shall become immediately due and payable. In the event of cancellation, termination or expiration of an Agreement the terms and conditions destined to survive such cancellation, termination or expiration shall so survive.
§ 16 MISCELLANEOUS
(a) In the event that any provision(s) of these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof. In the event that any provision of these Terms and Conditions shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from these Terms and Conditions, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law. (b) The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from the Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the Agreement or from any related document or by law.
VALID from 1st December 2019