ET2C Terms & Conditions
Terms & Conditions Of Sale
Terms & Conditions of Sale
1. Interpretation
1.1 In these Terms:
“Buyer” means the person who accepts the Seller’s written quotation for the sale of the Goods or whose written order for the Goods is accepted by the Seller;
“Confidential Information” means (i) all information or whatever nature relating to the purchase of Goods from the Seller and its activities, which is made available by the Seller or any of its employees, subsidiaries, agents or sub-contractors whether in writing, in disk or electronic form, orally or pursuant to visits to premises and in any form or medium in which such information may be recorded or kept, (ii) analyses, compilations, studies and other material prepared by the Seller or its employees, subsidiaries, agents or sub-contractors which contain, reflect or are otherwise generated from the information described in (i) above, and (iii) the existence and contents of these Terms and the existence and contents of the discussions between the Seller about the purchase of Goods.
“Contract” means the contract for the sale and purchase of the Goods which, for the avoidance of doubt, incorporates these Terms;
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms;
“HKSAR” means the Hong Kong Special Administrative Region of the PRC;
“INCOTERMS” means the international rules for the in¬terpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made;
“PRC” means The Peoples’ Republic of China;
“Seller” means ET2C International Limited whose registered office is Unit 02, 12/F, Greenfield Tower, Concordia Plaza, No.1 Science Museum Road, Kowloon, Hong Kong or, if another ET2C corporate entity is the contracting party with the Buyer (for example, is specified as such in the Order Confirmation or Invoice from the Seller), that ET2C corporate entity shall be the Seller.
“Terms” means the standard terms of sale set out in this document and (unless the context otherwise requires) in¬cludes any special terms agreed in Writing between the Buyer and the Seller. These Terms replace all prior unilateral terms sent by the Buyer to the Seller and, therefore, the Buyer must reject these Terms in writing within a reasonable time if the Buyer does not agree to be bound by them.
“Writing” and any similar expression, includes facsimile transmission and comparable means of communication, but not electronic mail.
1.2 A reference in these Terms to a provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms are for convenience only and shall not affect their interpretation.
2. Basis of the sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with the Seller’s Written quotation (if accepted by the Buyer), or the Buyer’s Written order (if accepted by the Seller), subject in either case to these Terms, which shall govern the Contract to the exclusion of any other terms subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer.
2.2 No variation to these Terms shall be binding unless agreed in Writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by the Seller in Writing. In entering into the Contract the Buyer acknowl¬edges that it does not rely on any such representations which are not so confirmed, but nothing in these Terms affects the liability of either party for fraudulent misrepresentation.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted on entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders and specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification and inspection standard) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of the Goods and any specification for them shall be as set out in the Seller’s quotation (if accepted by the Buyer) or the Buyer’s order (if accepted by the Seller).
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with, or paid or agreed to be paid by the Seller in settlement of, any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the Buyer’s specification.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or other regulatory requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of cancellation.
4. Price of the goods
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from the PRC, the Seller’s published export price list shall apply. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving Written notice to the Buyer at any time before payment, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated in the Seller’s Written quotation or in any price list of the Seller, and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on an FOB (Free on Board).
5. Terms of payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Buyer will pay 30 per cent. with the order and the balance paid in full prior to shipment, payment to be effected by interbank telegraphic transfer.
5.2 The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only on request.
5.3 If the Buyer fails to make any payment on the due date then, without limiting any other right or remedy available to the Seller, the Seller may:
(a) cancel the Contract or suspend any further deliveries to the Buyer;
(b) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other con¬tract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
(c) charge the Buyer interest (both before and after any judg¬ment) on the amount unpaid, at the rate of 10 per cent per annum until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
6. Delivery
6.1 Unless otherwise agreed by both parties, delivery of the Goods shall take place when the Seller releases the Goods to the freight forwarder of the Buyer at the port of origin or designated point of origin.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods however caused. Time for delivery shall not be of the essence of the Contract unless previously agreed by the Seller in Writing. The Goods may be delivered by the Seller in advance of the quoted delivery date on giving reasonable notice to the Buyer.
6.3 Where the Goods 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 or 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 repudiated.
6.4 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’s reason¬able control or by reason of the Seller’s fault) then, without limiting any other right or remedy available to the Seller, the Seller may:
(a) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
(b) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price under the Contract or charge the Buyer for any shortfall below the price under the Contract.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has tendered delivery of the Goods.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the title to the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the title to the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the title to the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third parry where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and liability
8.1 Subject to the following provisions, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in material and workmanship for a period of 15 days from the date of their initial use or 15 days from the arrival at the port of destination, whichever is the first to expire.
8.2 The above warranty is given by the Seller subject to the following conditions:
(a) the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer;
(b) the Seller shall be under no liability in respect of any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in Writing), misuse or alteration or repair of the Goods without the Seller’s approval;
(c) the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods is not paid by the due date for payment;
(d) the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manu¬facturer to the Seller.
8.3 Subject as expressly provided in these Terms, all warranties, conditions or other terms implied by statute, legislation, common law and other applicable law and rules are excluded to the fullest extent permitted by each of them.
8.4 A claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within three days from the date of delivery or (where the defect or failure was not apparent on reasonable inspec¬tion) within a reasonable time after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.5 Where a valid claim in respect of any of the Goods which is based on a defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Terms, the Seller may replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), in which case the Seller shall have no further liability to the Buyer.
8.6 Except in respect of death or personal injury caused by the Seller’s negligence, the entire liability of the Seller under or in connection with the Contract by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for loss of profit or for any indirect, special or consequential loss or damage, costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods (including any delay in supplying or any failure to supply the Goods in accord¬ance with the Contract or at all) or their use or resale by the Buyer shall be limited to the lesser of:
8.6.1 the amount which the Seller is able to recover from the manufacturer of the Goods; or
8.6.2 the cost of the Goods.
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without limiting the foregoing, the following shall be regarded as causes beyond the Seller’s reasonable control:
(a) Act of God, explosion, flood, tempest, fire or accident;
(b) war or threat of war, sabotage, insurrection, civil disturb¬ance or requisition;
(c) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(d) import or export regulations or embargoes;
(e) strikes, lock-outs or other industrial actions or trade dis¬putes (whether involving employees of the Seller or of a third party);
(f) difficulties in obtaining raw materials, labour, fuel, parts or machinery; and
(g) power failure or breakdown in machinery.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms, the title to the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the title to the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Buyer may resell or use the Goods in the ordinary course of its business.
7.4 Until such time as the title to the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller may at any time require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, enter on any premises of the Buyer or any third parry where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without limiting any other right or remedy of the Seller) forthwith become due and payable.
9. Insolvency of Buyer
9.1 This clause 9 applies if:
(a) the Buyer makes a voluntary arrangement with its cred¬itors or (being an individual or firm) becomes bankrupt or (being a company) becomes subject to an administration order or goes into liquidation (otherwise than for the purposes of amalgamation or reconstruction); or
(b) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
(c) the Buyer ceases, or threatens to cease, to carry on business; or
(d) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this Clause 9 applies, then without limiting any other right or remedy available to the Seller, the Seller may cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable not¬withstanding any previous agreement or arrangement to the contrary.
10. Export Terms
10.1 The Buyer shall be responsible for complying with any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
10.2 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered FOB to the airport or seaport of shipment.
10.3 The Buyer shall be responsible for arranging for the testing and inspection of the Goods immediately prior to delivery. The Seller shall have no liability for any claim in respect of any defect in the Goods which would have been apparent on inspection and which is made after shipment, or in respect of any damage during transit.
10.4 The Buyer shall not offer the Goods for resale in or any other country notified by the Seller to the Buyer at or before the time the Buyer’s order is placed, or sell the Goods to any person if the Buyer knows or has reason to believe that that person intends to resell the Goods in any such country.
11. Confidentiality
11.1 Each of the parties shall, whether during the continuance or after termination of the Contract, keep the content of the Contract and any Confidential Information passing between the parties confidential and shall not make any disclose thereof to any person. The obligation of the parties shall not extend to any information which:
(a) was or becomes generally available to the public other than as a result of disclosure by the receiving party in breach of this Clause 12;
(b) was rightfully in the receiving party’s possession prior to receipt from the disclosing party;
(c) is independently developed by the receiving party without using the disclosing party’s information; or
(d) is required to be disclosed by the receiving party by any competent authority or pursuant to any applicable law or regulation, so long as the receiving party provides the disclosing party with Written notice of the required disclosure promptly upon receipt of the relevant disclosure request.
12. Non-solicitation
12.1 Except with the Written consent of the Seller, the Buyer covenants with the Seller that he will not, directly or indirectly, until the expiration of 18 months from the receipt by the Seller of cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer for which payment is then due:
12.1.1 solicit or entice away or endeavour to solicit or entice away or cause to be solicited or enticed away from the Seller (or any of its subsidiaries or associates) any person who is, and, where payment has been received in full and final payment of the Goods, was at that date, employed or directly or indirectly engaged by the Seller (or any of its subisidaries or associates) in any capacity, with a view to inducing that person to leave such employment or engagement (whether or not such person would commit a breach of his contract of employment or engagement by reason of leaving); or
12.1.2 directly or indirectly solicit, canvass or approach or endeavour to solicit, canvass or approach or cause to be solicited, canvassed or approached for the purpose of obtaining the supply of goods or services of the same type as or similar to any goods or services supplied to the Buyer any person (which, for the avoidance of doubt, includes any manufacturer, factory manager or factory owner) who supplied the Seller with such goods or services and with whom the Seller dealt on behalf of the Buyer pursuant to the Contract.
13. General
13.1 The Seller may perform any of its obligations or exercise any of its rights under the Contract by itself or through any other member of the group of companies to which it is a member, an agent or any other third parties, provided that any act or omission of any such other entities shall be deemed to be the act or omission of the Seller.
13.2 A notice required or permitted to be given by either party to the other under these Terms shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
13.3 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 If any provision of the Contract is held by a court or other competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of the Contract and the remainder of the provision in question shall not be affected.
13.5 The Contract shall be governed by, and construed in accordance with, Hong Kong law.
13.6 In relation to any legal action or proceedings arising out of or in connection with these Terms (“Proceedings”), each of the Parties irrevocably submits to the non-exclusive jurisdiction of the Hong Kong courts and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that Proceedings have been brought in an inappropriate forum.
GENERAL CONDITIONS OF SERVICE FOR QUALITY CONTROL INSPECTIONS
1. General
(a) Except where they are at variance with the mandatory provisions of local law, all offers or services and all resulting contractual relationship(s) between ET2C International Inc, any of the affiliated companies of ET2C International Inc or any of their agents (each a “Company”) and the Client (the “Contractual Relationship(s)”) shall be governed by these general conditions of service (hereinafter the “General Conditions”).
(b) The Company may perform services for persons or entities (private, public or governmental) issuing instructions (hereinafter, the “Client”).
(c) Unless the Company receives prior written instructions to the contrary from Client, no other party is entitled to give instructions, particularly on the scope of the services or the delivery of reports or certificates resulting therefrom (the “Reports of Findings”). The Client hereby irrevocably authorises the Company to deliver Reports of Findings to a third party where so instructed by Client or, at its discretion, where it implicitly follows from circumstances, trade custom, usage or practice.
2. Provision of Services
(a) The Company will provide services using reasonable care and skill and in accordance with Client’s specific instructions as confirmed by the Company or, in the absence of such instructions:
(1) the terms of any standard order form or standard specification sheet of the Company; and/or
(2) any relevant trade custom, usage or practice; and/or
(3) such methods as the Company shall consider appropriate on technical, operational and/or financial grounds.
(b) Information stated in Reports of Findings is derived from the results of inspection or testing procedures carried out in accordance with the instructions of the Client, and/or our assessment of such results on the basis of any technical standards, trade custom or practice, or other circumstances which should in our professional opinion be taken into account.
(c) Reports of Findings issued further to the testing of samples contain the Company’s opinion on those samples only and do not express any opinion upon the lot from which the samples were drawn.
(d) Should the Client request that the Company witness any third party intervention, the Client agrees that the Company’s sole responsibility is to be present at the time of the third party’s intervention and to forward the results, or confirm the occurrence, of the intervention. The Client agrees that the Company is not responsible for the condition or calibration of apparatus, instruments and measuring devices used, the analysis methods applied, the qualifications, actions or omissions of third party personnel or the analysis results.
(e) Reports of Findings issued by the Company will reflect the facts as recorded by it at the time of its intervention only and within the limits of the instructions received or, in the absence of such instructions, within the limits of the alternative parameters applied as provided for in clause 2(a). The Company is under no obligation to refer to, or report upon, any facts or circumstances which are outside the specific instructions received or alternative parameters applied.
(f) The Company may delegate the performance of all or part of the services to an agent or subcontractor and Client authorises Company to disclose all information necessary for such performance to the agent or subcontractor.
(g) Should the Company receive documents reflecting engagements contracted between the Client and third parties or third party documents, such as copies of sale contracts, letters of credit, bills of lading, etc., they are considered to be for information only, and do not extend or restrict the scope of the services or the obligations accepted by the Company.
(h) The Client acknowledges that the Company, by providing the services, neither takes the place of Client or any third party, nor releases them from any of their obligations, nor otherwise assumes, abridges, abrogates or undertakes to discharge any duty of Client to any third party or that of any third party to the Client.
3. Obligations of Client
The Client will:
(a) ensure that sufficient information, instructions and documents are given in due time (and, in any event not later than 48 hours prior to the desired intervention) to enable the required services to be performed;
(b) procure all necessary access for the Company’s representatives to the premises where the services are to be performed and take all necessary steps to eliminate or remedy any obstacles to, or interruptions in, the performance of the services;
(c) Supply, if required, any special equipment and personnel necessary for the performance of the services;
(d) ensure that all necessary measures are taken for safety and security of working conditions, sites and installations during the performance of services and will not rely, in this respect, on the Company’s advice whether required or not;
(e) inform Company in advance of any known hazards or dangers, actual or potential, associated with any order or samples or testing including, for example, presence or risk of radiation, toxic or noxious or explosive elements or materials, environmental pollution or poisons;
(f) Fully exercise all its rights and discharge all its liabilities under any relevant sales or other contract with a third party and at law.
4. Fees and Payment
(a) Fees not established between the Company and the Client at the time the order is placed or a contract is negotiated shall be at the Company’s standard rates (which are subject to change) and all applicable taxes shall be payable by the Client.
(b) The Client will promptly pay in accordance with the relevant invoice (the “Due Date”) all fees due to the Company failing which interest will become due at a rate of 1.5% per month (or such other rate as may be established in the invoice) from the Due Date up to and including the date payment is actually received.
(c) The Client shall not be entitled to retain or defer payment of any sums due to the Company on account of any dispute, counter claim or set off which it may allege against the Company.
(d) The Company may elect to bring action for the collection of unpaid fees in any court having competent jurisdiction.
(e) The Client shall pay all of the Company’s collection costs, including attorney’s fees and related costs.
(f) In the event any unforeseen problems or expenses arise in the course of carrying out the services the Company shall endeavour to inform the Client and shall be entitled to charge additional fees to cover extra time and cost necessarily incurred to complete the services.
(g) If the Company is unable to perform all or part of the services for any cause whatsoever outside the Company’s control including failure by the Client to comply with any of its obligations provided for in clause 3 above the Company shall nevertheless be entitled to payment of:
(1) the amount of all non-refundable expenses incurred by the Company; and
(2) a proportion of the agreed fee equal to the proportion of the services actually carried out.
5.Suspension or Termination of Services
The Company shall be entitled to immediately and without liability either suspend or terminate provision of the services in the event of:
(a) failure by the Client to comply with any of its obligations hereunder and such failure is not remedied within 10 days that notice of such failure has been notified to Client; or
(b) any suspension of payment, arrangement with creditors, bankruptcy, insolvency, receivership or cessation of business by Client.
6. Liability and Indemnification
(a) Limitation of Liability:
(1) The Company is neither an insurer nor a guarantor and disclaims all liability in such capacity. Clients seeking a guarantee against loss or damage should obtain appropriate insurance.
(2) Reports of Findings are issued on the basis of information, documents and/or samples provided by, or on behalf of, the Client and solely for the benefit of the Client who is responsible for acting as it sees fit on the basis of such Reports of Findings. Neither the Company nor any of its officers, employees, agents or subcontractors shall be liable to the Client nor any third party for any actions taken or not taken on the basis of such Reports of Findings nor for any incorrect results arising from unclear, erroneous, incomplete, misleading or false information provided to the Company.
(3) The Company shall not be liable for any delayed, partial or total non-performance of the services arising directly or indirectly from any event outside the Company’s control including failure by the Client to comply with any of its obligations hereunder.
(4) The liability of the Company in respect of any claim for loss, damage or expense of any nature and howsoever arising shall in no circumstances exceed a total aggregate sum equal to 10 times the amount of the fee paid in respect of the specific service which gives rise to such claim or US$2000 (or its equivalent in local currency), whichever is the lesser.
(5) The Company shall have no liability for any indirect or consequential loss including without limitation loss of profits, loss of business, loss of opportunity, loss of goodwill and cost of product recall. It shall further have no liability for any loss, damage or expenses arising from the claims of any third party (including, without limitation, product liability claims) that may be incurred by the Client.
(6) In the event of any claim, the Client must give written notice to the Company within 30 days of discovery of the facts alleged to justify such claim and, in any case, the Company shall be discharged from all liability for all claims for loss, damage or expense unless suit is brought within one year from:
(i) the date of performance by the Company of the service which gives rise to the claim; or
(ii) the date when the service should have been completed in the event of any alleged nonperformance.
(b) Indemnification: the Client shall guarantee, hold harmless and indemnify the Company and its officers, employees, agents or subcontractors against all claims (actual or threatened) by any third party for loss, damage or expense of whatsoever nature including all legal expenses and related costs and howsoever arising relating to the performance, purported performance or non-performance, of any services.
7. Miscellaneous
(a) If any one or more provisions of these General Conditions are found to be illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
(b) During the course of providing the services and for a period of one year thereafter the Client shall not directly or indirectly entice, encourage or make any offer to the Company’s employees to leave their employment with the Company.
(c) Use of the Company’s corporate name or registered marks for advertising purposes is not permitted without the Company’s prior written authorisation.
8. Governing Law, Jurisdiction and Dispute Resolution
The Contract shall be governed by, and construed in accordance with, Hong Kong law.
In relation to any legal action or proceedings arising out of or in connection with these Terms (“Proceedings”), each of the Parties irrevocably submits to the non-exclusive jurisdiction of the Hong Kong courts and waives any objection to Proceedings in such courts on the grounds of venue or on the grounds that Proceedings have been brought in an inappropriate forum.
