Standard Terms and Conditions
1.1 In these Conditions, the following definitions apply:
Business Day: a day (other than Sunday or public holiday) when banks in Hong Kong are open for business.
Company: Pieroth Hong Kong Limited (company registration number: 0044054). Conditions: the terms and conditions set out in this document as amended from time to time in accordance with these Conditions and any Special Conditions.
Contract: the contract between the Company and the Customer for the sale and purchase of the Goods in accordance with these Conditions.
Customer: the person or firm who purchases the Goods from the Company.
Force Majeure Event: any event beyond a party's reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including strikes, lock-outs or other industrial disputes (whether involving its own or a third party's workforce), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or adverse weather conditions, or default of suppliers or subcontractors.
Goods: the goods (or any part of them) set out in the Order.
Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
Order: the Customer’s order for the Goods as set out in the Customer’s purchase order.
Special Conditions: any special conditions agreed by the Company and set out in the Order.
Specification: any specification for the Goods that is supplied to the Company by the Customer, or produced by the Company for the Customer.
1.2 Any reference in these Conditions to any provision of a statute or other law or regulations 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 Conditions are for convenience only and shall not affect their interpretation.
1.4 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality), and a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Any reference to the masculine include the feminine and the neuter and to the singular include the plural and vice versa as the context admits or requires.
1.6 Words in the singular shall include the plural and vice versa. A reference to one gender shall include a reference to the other genders.
2. BASIS OF CONTRACT
2.1 These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.2 The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions, and the Order shall only be deemed to be accepted when the Company confirms acceptance of the Order, at which point the Contract shall come into existence.
2.3 The Customer shall ensure that the terms of the Order and any relevant Specification are complete and accurate, and provide to the Company all necessary information relating to the Goods within a sufficient time to enable the Company to perform the Contract in accordance with its terms.
2.4 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in the Contract. Any samples, descriptive matter, or advertising issued by the Company and any descriptions or illustrations contained in the Company’s catalogues, brochures or website are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They shall not form part of the Contract or any other contract between the Company and the Customer for the sale of the Goods.
2.5 A quotation for the Goods given by the Company shall not constitute an offer. A quotation shall only be valid for a period of 10 Business Days from its date of issue.
2.6 The Company may amend these Conditions from time to time without notice.
2.7 If any process is to be applied to the Goods by the Company in accordance with a Specification submitted by the Customer, the Customer shall indemnify the Company against all loss, damages, costs and expenses awarded against or incurred by the Company in connection with or paid or agreed to be paid by the Company in settlement of any claim for infringement of any Intellectual Property Rights of any other person which results from the Company’s use of the Specification.
2.8 The Company reserves the right to make any changes in the Specification which are required to conform with any applicable laws or regulations.
2.9 All Orders accepted are subject to availability and the Company reserves the right to select and deliver to the Customer a substitute (of equal or higher value) to the Goods ordered by the Customer. If the Company is unable to supply a particular item, or does not supply a substitute, the Company will not be liable to the Customer except to the extent of the price already paid for the Goods that are not available and not supplied to the Customer.
2.10 No Order which has been accepted by the Company may be cancelled by the Customer except with the prior agreement of the Company and on terms that the Customer shall indemnify the Company 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 Company as a result of cancellation.
3.1 The Company shall ensure that each delivery of the Goods is accompanied by a delivery note which shows the type and quantity of the Goods.
3.2 Subject to payment in full of the price for the Goods and compliance by the Customer with these Terms, the Company shall deliver the Goods to the location set out in the Order or such other location as the parties may agree (“Delivery Location”) at the time specified in the Order for delivery or if not so specified then at any time after the Company notifies the Customer that the Goods are ready.
3.3 Delivery of the Goods shall be completed on the Goods’ arrival at the Delivery Location.
3.4 Any dates and times quoted for delivery are approximate only, and the time of delivery is not of the essence.
3.5 If the Company fails to deliver the Goods, its liability shall be limited to the price of the Goods not delivered.
3.6 The Company shall not be liable for any delay in delivery of, or failure to deliver, the Goods that is caused by a Force Majeure Event, or the Customer’s failure to provide the Company with adequate delivery instructions or any other instructions or information that are relevant to the supply of the Goods, or the Customer’s breach of any of these Conditions.
3.7 If the Customer fails to accept delivery of the Goods or if the Company is otherwise unable to effect delivery of the Goods to the Customer within 4 weeks of the time specified in the Order for delivery or, if not so specified, within 4 weeks of the Company notifying the Customer that the Goods are ready, then, except where such failure or delay is caused by a Force Majeure Event or the Company’s failure to comply with its obligations under the Contract, and without prejudice to the Company’s other rights under the Contract or the law:
(a) delivery of the Goods shall be deemed to have been completed at 9.00 am on the last day of such 4 week period; and
(b) the Company may store the Goods until delivery takes place, and charge the Customer for all related costs and expenses (including insurance).
3.8 If the Customer has not accepted delivery of the Goods or if the Company is otherwise unable to effect delivery of the Goods to the Customer within 4 weeks of the time specified in the Order for delivery or, if not so specified, within 4 weeks of the Company notifying the Customer that the Goods are ready for delivery, the Company may resell or otherwise dispose of part or all of the Goods and, after deducting all storage, delivery and selling costs, account to the Customer for any excess over the price of the Goods if the price has already been paid by the Customer or charge the Customer for any shortfall below the price of the Goods. Any monies payable to the Customer may be held by the Company on behalf of the Customer, and the Company shall not be bound to earn or pay interest on any money so held and shall not pay such money to the Customer until all of the Company’s costs and expenses and other monies owed by the Customer to the Company have been paid in full.
3.9 The Company may deliver the Goods by instalments, and any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
3.10 The Customer shall inspect the Goods on delivery and shall notify the Company immediately of breakages or shortages in the delivery, or if the Goods delivered do not conform with the Order, failing which the Company shall have no liability whatsoever.
4.1 The Company warrants that on delivery the Goods shall:
(a) conform in all material respects with their description and any applicable Specification; and
(b) be of merchantable quality (within the meaning of the Sale of Goods Ordinance (Cap 26).
4.2 Subject to clause 4.3, if:
(a) the Customer gives notice in writing to the Company within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 4.1; and
(b) the Company is given a reasonable opportunity of examining such Goods;
(c) the Customer (if asked to do so by the Company) returns such Goods to the Company’s place of business at the Customer’s cost within 10 days of the delivery of the Goods to the Customer; and
(d) the Company accepts that the Goods do not comply with the warranty set out in clause 4.1,
the Company may, at its option, replace the defective Goods, or refund the price of the defective Goods.
4.3 The Company shall not be liable for the Goods’ failure to comply with the warranty set out in clause 4.1 if:
(a) the Customer makes any further use of or consumes such Goods, or does not or cannot otherwise return such Goods to the Company’s place of business after giving notice in accordance with clause 4.2; or
(b) the defect arises because the Customer failed to follow the Company’s instructions as to the storage, use and/or consumption of the Goods or (if there are none) good trade or industry practice; or
(c) the defect arises as a result of the Company following any specification supplied by the Customer; or
(d) the Customer alters such Goods; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
4.4 Except as provided in this clause 4, the Company shall have no liability to the Customer in respect of the Goods' failure to comply with the warranty set out in clause 4.1.
4.5 Except as set out in these Conditions, all warranties, conditions and other terms implied by law are, to the fullest extent permitted by law, excluded from the Contract.
4.6 These Conditions shall apply to any replacement Goods supplied by the Company.
5. TITLE AND RISK
5.1 The risk in the Goods shall pass to the Customer on completion of delivery.
5.2 Title to the Goods shall not pass to the Customer until the Company has received payment in full (in cash or cleared funds) for:
(a) the Goods; and
(b) all other sums which are or which become due to the Company for sales of the Goods or any other products or services to the Customer.
5.3 Until title to the Goods has passed to the Customer, the Customer shall:
(a) hold the Goods on a fiduciary basis as the Company’s bailee;
(b) store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as the Company’s property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
(d) maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify the Company immediately if the Customer becomes subject to any of the events listed in clause 7.2; and
(f) give the Company such information relating to the Goods as the Company may require from time to time,
but the Customer may consume or use the Goods, or resell the Goods in the ordinary course of its business.
5.4 If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 7.2, or the Company reasonably believes that any such event is about to happen and notifies the Customer accordingly, then, provided that the Goods have not been consumed, used or resold, and without limiting any other right or remedy the Company may have, the Company may at any time require the Customer to deliver up the Goods and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored in order to recover them.
6. PRICE AND PAYMENT
6.1 The price of the Goods shall be the price set out in the Order, or, if no price is quoted, the price set out in the Company's published price list in force from time to time.
6.2 The Company may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
(a) any factor beyond the Company’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
(b) any request by the Customer to change the delivery date(s), Delivery Location, quantities or types of Goods ordered, or the Specification; or
(c) any delay caused by any instructions of the Customer or failure of the Customer to give the Company adequate or accurate information or instructions.
6.3 The price of the Goods is exclusive of the costs and charges of packaging, insurance and transport and delivery of the Goods, which shall be paid by the Customer when it pays for the Goods.
6.4 The price of the Goods is exclusive of amounts in respect of value added tax, goods and services tax and similar taxes and duties that may apply (“VAT”). The Customer shall pay to the Company such additional amounts in respect of VAT as are chargeable on the supply of the Goods.
6.5 The Company may invoice the Customer for the Goods on or at any time after the Order has been accepted by the Company.
6.6 The Customer shall pay the Company’s invoice in full and in cleared funds within 5 Business Days of the date of the invoice or as otherwise stipulated by the Company. Payment shall be made to the bank account nominated in writing by the Company or in such other manner as the Company may agree. Time of payment is of the essence.
6.7 If the Customer fails to make any payment due to the Company under the Contract by the due date for payment (“due date”) the Company may:
(a) terminate the Contract;
(b) suspend any deliveries or further deliveries of Goods until the Customer has paid all amounts due and payable; and/or
(c) charge the Client interest (both before and after any judgment) on the amount unpaid at the rate of 10% per annum until payment in full, and such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
6.8 The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Company in order to justify withholding payment of any such amount in whole or in part. The Company may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by the Company to the Customer.
7. CUSTOMER’S INSOLVENCY OR INCAPACITY
7.1 If the Customer becomes subject to any of the events listed in clause 7.2, or the Company reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy available to the Company, the Company may cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and the Company without incurring any liability to the Customer, and all outstanding sums in respect of Goods delivered to the Customer shall become immediately due.
7.2 For the purposes of clause 7.1, the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts (within the meaning of the Companies (Winding Up and Miscellaneous Provisions) Ordinance); or
(b) the Customer is the subject of a bankruptcy or winding up petition or order; or
(c) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(d) an application is made to court, or an order is made, for the appointment of an administrator, provisional liquidator or trustee or if a notice of intention to appoint an administrator, provisional liquidator or trustee is given or if an administrator, provisional liquidator or trustee is appointed over the Customer; or
(e) a person becomes entitled to appoint a receiver and/or manager, or administrative receiver over the assets of the Customer or a receiver and/or manager or administrative receiver is appointed over the assets of the Customer; or
(f) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned above; or
(g) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business.
8.1 The Company shall be entitled to terminate the Contract with immediate effect by giving written notice to the Customer if:
(a) the Customer fails to pay any amount due to the Company under the Contract on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment; or
(b) the Customer commits a material breach of its obligations under the Contract (if such breach is remediable) fails to remedy that breach within a period of 7 days after receipt of notice in writing requiring it to do so; or
(c) it is or becomes illegal for the Company to supply the Goods to the Customer.
9. LIMITATION OF LIABILITY
9.1 Nothing in these Conditions shall limit or exclude the Company’s liability for death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable).
9.2 Subject to clause 9.1:
(a) the Company shall not be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit or indirect or consequential loss arising under or in connection with the Contract (including any losses that may result from a deliberate breach of the Contract by the Company, its employees, agents or subcontractors); and
(b) the Company’s total liability to the Customer in respect of all other losses (including negligence), breach of statutory duty, or otherwise, including losses caused by a deliberate breach of the Contract by the Company, its employees, agents or subcontractors shall not exceed the price of the Goods.
10. FORCE MAJEURE
Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.
11. INTELLECTUAL PROPERTY RIGHTS
All Intellectual Property Rights in or arising out of or in connection with the Goods and Services including in all Specifications produced by the Company shall belong to and vest in the Company.
12. PERSONAL DATA
12.1 The Customer acknowledges and agrees that the Company is entitled to:
(a) conduct credit checks on the Customer and to validate the name, address and other personal information supplied by the Customer against appropriate third party databases;
(b) disclose information provided by the Customer to a registered credit reference agency which may keep a record of that information;
(c) disclose and transfer personal information collected from the Customer to and jointly use such personal information with the Company’s subsidiaries, holding companies, or associated companies and other persons (including WIV Wein International AG) who need the information to perform a specific job (whether within in or outside of Hong Kong).
13.1 The Company may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract. The Customer may not assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract without the prior written consent of the Company.
13.2 Any notice or other communication:
(a) given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid post, recorded delivery, commercial courier, fax or e-mail; and
(b) shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.2(a); if sent by pre-paid post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by fax or e-mail, one Business Day after transmission.
13.3 If any court or competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected, and if any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
13.4 A waiver of any right or remedy under the Contract is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
13.5 A person who is not a party to the Contract shall not have any rights under or in connection with it.
13.6 Any variation to the Contract, including the introduction of any additional terms and conditions, shall only be binding on the Company when agreed in writing and signed by the Company.
13.7 The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Hong Kong law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Hong Kong.