General Terms & Conditions of Business
1. APPLICATION AND INTERPRETATION
These general terms and conditions alone govern all contractual relations between A Squared Ltd. (hereafter referred to as “A²”) and the purchaser, as well as A² and it suppliers. The general and special conditions of the purchaser/supplier are not enforceable with respect to A². Conclusion of any contract between the parties shall automatically mean acceptance of these general terms and conditions. Only the special conditions specified in the contract or agreed in writing between the parties may depart from them.
Depending on the context and except in the event of a stipulation to the contrary, (i) the term “purchaser” in these general conditions shall be interpreted as also meaning any prospect, buyer, customer, importer, distributor, licensee or any party entering into an agreement with A² ; (ii) the term “contract” as also any offer, proposal, order form, sales, delivery, distribution contract or any agreement between the parties; (iii) the term “product(s)” also as any medical or cosmetic device, equipment, tool, product, item, packaging, box and other accessories manufactured and/or supplied/purchased by A²; (iv) the term “supplier” as also any company, individual or entity from whom A² procures goods or services either for re-sale or not. These terms shall be interpreted as being either plural or singular.
2. OFFERS, SALES ORDERS AND CONFIRMATIONS
All offers are made without engagement. Offers are valid for a maximum period of 30 days from the date of the offer, unless otherwise explicitly agreed. Any specification or data contained in A² 's product information, material, price lists or any other documents are given for information only. Product specification and prices can be modified at any time without prior notice.
All orders made in writing or orally shall be confirmed by A² in writing (letter, fax or mail). No order will be registered without complete references of the purchaser (name of the company, address, phone number, fax number, V.A.T. number, delivery address, name of a contact person).
3. SALES PRICE, PAYMENT AND BILLING
Prices are computed ex works (EXW – Incoterm CCI 2000), excluding VAT, taxes, special packaging and any cost that are not expressly specified in the contract.
Except otherwise agreed by the Parties, payments shall be made in Hong Kong Dollars (HKD) by IBAN and/or BIC / SWIFT wire transfer to such account specified on the invoices, within 30 days from the dates of the invoices, and before shipment of any goods. Cheques are not accepted as means of payment, unless expressly agreed in writing by A².
Any payment - which is not paid on the due date, or in accordance with the conditions specified in the contract or invoices - shall accrue interest at a rate of 1 % per month, with a minimum of HKD2,000.00 per breach, without prejudice to the right to reimbursement of the costs or compensation for any higher actual damage. In case of no payment on the due dates, A² reserves the right to suspend any of its own obligations until all payment due to A² is made by the purchaser; or to terminate the contract, and keep all instalments or payments already made by the purchaser to A², without prejudice to the right to reimbursement of the costs or compensation for any actual direct or indirect damage resulting from a delay of payment suffered by A², its customers, or by a third party.
Title of the product(s) shall pass from A² to the purchaser once the purchaser has paid the price in full, although the product(s) may have been already delivered. The purchaser shall not dispose of, nor transform, nor sell, nor use them as caution, nor transfer the product(s) to a third party as long as all sums due have not been paid in full to A².
Except otherwise agreed by the parties, the product(s) shall be delivered to and received by the purchaser at A²’s premises in Causeway Bay (EXW – Incoterm CCI 2000), or at the premises of A²’s supplier(s).
A² shall deliver the product(s) on the dates and according to the conditions agreed by the parties. These delivery dates are not strictly the rule. A² shall be liable only if the delay is the exclusive and direct consequence of a gross and wilful misconduct by A². The purchaser has no right to refuse the product(s), to claim for damages or to terminate the contract because of a delivery delay which is not unreasonably long considering the circumstances.
In the event that the purchaser refuses or delays loading or receiving the product(s), it shall make the payment(s) in accordance with the terms and conditions initially agreed by the parties, and reimburse to A² all costs caused by the refusal or delay of loading or reception (storage, transport costs,...).
A² has the right to suspend its own obligation to deliver the Products or to make them available, in the event there is any evidence of insolvency problem of the purchaser.
6. CONFORMITY AND WARRANTY
Except otherwise specified in the contract, the product(s) is/are manufactured only to the specifications agreed in the contract or in any written agreements made afterwards by the Parties (and not according to European, U.S. or any other specific country’s local rules and regulations). Any additional costs related to changes required by the purchaser, including compliance to local rules and regulations of the purchaser’s country, shall be borne by the purchaser and may extend the delivery terms.
A² reserves the right to make changes in specifications of the product(s) without prior notice or agreement as long as such changes do not affect the quality or performance of the product(s).
Except in case any imperative law concerning consumers’ rights imposes a longer warranty period, A² warrants, for a period of twelve (12) months from the date the product(s) are at the purchaser’s disposal, that the product(s) will be free from hidden defects due entirely and exclusively to a fault of A², provided however that such defects are not due to external cause, wear and tear, alteration, abuse, negligence, misuse, non-reasonable use, transport, loading/downloading, abnormal conditions of temperature or humidity, dirt, or in an otherwise improper manner, either intentional or otherwise, caused by the purchaser or by a third party.
As soon as the product(s) is/are ready and available, the purchaser shall inspect carefully and test the product(s) and shall immediately raise, in writing and within eight (8) calendar days following the availability of the product(s), any relevant and precise complaint in case of lack of conformity (notifying the number and date of the invoice). After such period of eight days, any apparent defect that were not notified to A² will be considered as being definitively accepted by the purchaser. In any case, the purchaser may not refuse the product(s) for minor or futile reasons.
In case of claim of the purchaser, the fulfilment of A²’s obligation of warranty shall be limited, at A²’s option, to replacing the defective parts or product(s) or to crediting the purchaser for these defective product(s) within a reasonable delay.
The replacing product(s) will be sent back to the purchaser within a reasonable period of time. In case the purchaser is a distributor, a importer or a recurrent buyer, the replacing product(s) will be delivered to the purchaser together with the next order of products made by him, except otherwise agreed by the parties.
A² may suspend its obligation of warranty as long as the purchaser does not execute entirely its own obligations. Such suspension does not extend the initial warranty period.
7. USE AND HANDLING OF THE PRODUCT(S)
The purchaser acknowledges that the product(s) :- are medical device(s) that shall not be placed in another area, nor be used for a longer daily period of time, nor used for any other purposes than what is strictly specified in the manual; - are fragile items that must be handled carefully and must stored in their cover, in a dry and clean area.
8. DISCLAIMER OF LIABILITY
If any liability is implied for whatever reason, A²’s liability shall be strictly limited to direct and foreseeable damages suffered by the purchaser, that are the exclusive and direct consequences of a gross and wilful misconduct of A², excluding any loss of earnings, of profit, of savings or of clientele, increase of costs and expenses or any indirect damage and loss. No compensation due by A² shall ever exceed 10% of the value of the contract.Nevertheless, this provision does not limit mandatory A²’s product liability imposed by the applicable law.
9. PURCHASE ORDERS ISSUED BY A²
Purchase orders issued by A² are deemed as accepted, by any means of communication, electronic or otherwise, in which the purchase order is confirmed expressly or implicitly, e.g. by issuing of corresponding Pro Forma Invoice, by acceptance of partial or full prepayment, or references to it or its execution, in emails, faxes, letters, telephone conversations, meetings, or any other type of written or verbal means of communication. Once accepted, the purchase order constitutes a binding legal contract, governed by A²’s Terms & Conditions of business, as detailed in this document.
10. INDEMNITY - HOLD HARMLESS
In case of late delivery, partial delivery, faulty delivery, for reasons other than Force Majeure, supplier agrees to take full responsibility, at his own expense, take all and every steps necessary to either remedy such late, partial, or faulty delivery and compensate A² for any damages, costs, charges, penalties etc.. which A² may itself suffer for not being able to meet its own commitments to its customers as a direct or indirect consequence of aforementioned late, partial or faulty delivery or the products and services covered these purchase orders.
Supplier and/or purchaser will protect, defend and indemnify A², its parent company, divisions, subsidiaries and affiliated business entities and their respective employees, agents, officers, and directors (together, the “Indemnified Parties”) from and hold them harmless against all liability, losses, damages, costs or expenses of any nature, including without limitation, reasonable attorney’s fees, which they may at any time suffer, incur, or be required to pay resulting from or arising out of (i) any claim that the products are defective, negligently designed or manufactured in any manner, or otherwise determined to be the cause of injury or death to persons, or damage to property, or both; (ii) any claim that the products or the manufacture, sale or labelling of the Products fails to comply with any governmental requirement, or the labelling on any products, or on or within the packaging for any products (including any instructions or warnings thereon), is inadequate in any manner; (iii) any claim that the products should have been recalled pursuant to any governmental requirement; (iv) supplier’s negligence or wilful misconduct in supplying the products; or (v) any claim, action, suit or proceeding by any person, firm, governmental agency or corporation resulting from or arising out of (i) through (iv) above.
Supplier and/or purchaser will protect, indemnify, defend and hold the Indemnified Parties harmless from and against all liability, losses, damages, costs or expenses which they may at any time suffer, incur or be required to pay by reason of any claim, action, suit, or proceeding that may be brought for damages or injunctive relief based upon any actual or alleged violation or infringement of any patent, trademark, copyright or other intellectual property right by any product sold by supplier to A² or any product sold by A² to purchaser. Should any products become the subject of such a claim of infringement, A² shall permit supplier, at its option and expense, either to procure for A² the right to continue selling products, to replace or modify products so that they become non-infringing, or to require return of products in exchange for full credit.
Supplier will remain fully responsible for quality and after sales issues, of the products purchased by A² from supplier for resale to third parties. Supplier’s manufacturer's product liabilities and product warranties remain fully in force, regardless of whether goods were inspected by A², by a third party inspector, or not inspected at all. By accepting a purchase order from A², supplier acknowledges a duty to support A²’s customers with technical advice and assistance for its products, and a duty to repair or replace the goods within the shortest possible delay, when said goods are found to be defective within the terms of the agreed product warranty. In case of epidemic failure (for the purposes of these terms, epidemic failure will be considered when one or more hidden defects cause a significant percentage of 10% or more products to fail or to perform below reasonably accepted quality expectations so as to be returned by the end-user or to be considered not fit for purpose to sell to end-user. If it is reasonably determined, based on the root cause analysis, that supplier is fully at fault, the costs and expenses of the Epidemic Failure shall be borne fully by supplier.
11. FORCE MAJEURE
The parties are not liable for the non-performance of any one of their contractual obligations when this non-performance is due to a force majeure event, beyond their control and when it cannot reasonably be expected of them to take it into consideration at the time of making the Contract or to prevent or overcome it, even when this event does not make the performance of the contract totally impossible but only substantially more difficult or more onerous, particularly in the event of fire, strike, accident, illness, natural disaster, destruction of installations or equipment, general lack of supplies or of means of transport, delay with or non-performance of the obligations of A² ’s suppliers or sub-contractors, computer bugs, any technical problems whatsoever and a legal or administrative procedure which delays the fulfilment of A² ’s obligations.
The defaulting party in these circumstances must warn the other party of this as soon as possible, in writing, including proof of the case of force majeure. The obligations of the parties whose performance has become impossible due to a case of force majeure can be suspended provisionally or renegotiated. In the event that the force majeure lasts for more than 6 months, the contract will automatically be terminated, without indemnity, save for agreement to the contrary by the parties.
Any documentation or technical information provided by A² in any form including without limitation, information manuals, drawings, specifications, designs of the products or parts thereof, software, operating procedures shall remain the sole property of A².
The purchaser shall keep strictly confidential and not disclose to any third party(ies) nor use any business or manufacturing information, technique, process, experimental work, trade secret or other confidential matter that was disclosed or shown by A² or found in the product(s), except to the extent required to ensure the appropriate performance of the contract. This obligation shall survive cancellation, termination or nullity of the contract and shall continue to apply for an unlimited period of time.
A² reserves the right to terminate the contract or suspend its own obligations and to recuperate the products, anytime, without prior notice nor damages for the purchaser, and without prejudice to the right to reimbursement of the costs or compensation for any actual direct or indirect damage resulting from it, including loss of earnings, suffered by A², its customers, or by a third party, for the following reasons :
- in the event of late or non performance of the purchaser’s obligations, or if it becomes reasonably certain that one or more obligations of the purchaser will not be performed on time or according the terms of the contract;
- in the event of the incapacity, bankruptcy, insolvency, protest, seizure, death, cessation of payments, application for a payment moratorium, amicable or compulsory composition, or any other event demonstrating financial difficulties on the part of the purchaser.
- in the event of A² ceasing or changing its professional activities;
- in the event of force majeure lasting more than 6 months.
In case of termination by the purchaser not caused by a gross and wilful misconduct of A², all instalments already paid by the purchaser shall be considered to be definitively acquired by A². The remaining instalments shall be paid by the purchaser, but their amounts shall be reduced by the projected costs and expenses not incurred by A² and reasonably evaluated by A², without prejudice to the right to compensation in the event that actual damage is more important for A².
If a provision of the contract or these general terms and conditions is to be held illegal, invalid or unenforceable, in whole or in part, such provision shall be modified to the minimum extent necessary to make it legal, valid, enforceable and economically equivalent to the said provision for both parties. The legality, validity and enforceability of the remaining provisions shall not be affected thereby.
15. APPLICABLE LAW AND COMPETENT JURISDICTION
This contract shall be governed by and construed in all respects in accordance with the laws of Hong Kong.
Any dispute, controversy or claim arising out of or relating to this contract and these general terms and conditions, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the UNCITRAL Arbitration Rules as at present in force and as may be amended by the rest of this clause. The appointing authority shall be Hong Kong International Arbitration Centre (HKIAC). The place of arbitration shall be in Hong Kong at HKIAC. There shall only be one arbitrator. The languages to be used in the arbitral proceedings shall be either English or Cantonese, at A²’s own choosing.
Nevertheless, in case the purchaser is a non-professional consumer, the proceedings may be adapted in accordance with the applicable imperative laws protecting the consumer right.