General Terms and Conditions

ancotel Hong Kong Ltd.

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Version 10.09

I. General Applicability

These conditions shall apply to all present and future business transactions between ancotel Hong Kong Limited (hereinafter “the Service Provider”) and the Customer and form part of the contract/s between them, (hereinafter in referred to as ‘the contract’).
Deviating, conflicting or supplementary general conditions, even if known, shall not form part of the contract, unless their validity is expressly agreed to in writing.
All terms between the parties are as set out in the contract

II. Order Relationship and Prices

Offers pending acceptance by the Customer are subject to change without notice unless a validity period for acceptance is expressly agreed to in writing.
If the Customer issues an order in electronic form, the Service Provider will confirm receipt of the order without delay. The receipt confirmation does not, per se, constitute the Service Provider’s binding acceptance of the order but may however be used as a part thereof.
Where the Service Provider’s ability to perform its obligations under the contract is dependent on the correct and timeous performance of its subsuppliers, then, in the event of incorrect, late or lack of performance by its subsuppliers, which is not attributable to the Service Provider, the Service Provider may rescind the contract without further obligation or costs, except that it shall, without delay, inform the Customer of its inability to perform its obligations and return any consideration already received from Customer upon which the Customer shall have no claims against the Service Provider.
Where the Customer places an order in electronic form, the Service Provider will save the contract document and send it by e-mail to the Customer at the latter’s request, together with the General Terms & Conditions.
The validity of the prices stated in the Service Provider’s offer is conditional on the data (e.g. specification, information provided by the Customer, technology, market prices), used at the time of making the offer and upon which the offer is based and calculated, remaining unchanged while the offer is open for acceptance. The prices do not include VAT and apply ex works. Packaging, freight, postage, insurance and other shipping costs are not included.

III. Payment

Payments (net price plus VAT if applicable) are due immediately and are to be effected without deduction set off, or counter claim and in any event at the latest within 30 days after the issuance of the invoice.
The Customer’s right to set-off to retain or to deduct amounts from any claim for payments otherwise due to the Service Provider, shall be limited, (even where defects have been reported) to set-off or deduction for counter-claims which:-
i) have been legally settled and are not in dispute and
ii) arise from the same individual contractual relationship (i.e. the same order and item of work or services or goods) as that pursuant to which the payment claim arose.

IV. Payment of Instalments, Payment Delay

The Service Provider may request payment from the Customer by way of instalments against performance of separable parts of the work for each part as and when completed.
In the event that the Service Provider considers that payment by the Customer is at risk in view of the Customer’s financial ability, liquidity or change in credit rating, the Service Provider may withhold further performance of the corresponding part of the work. In this event, the Service Provider is entitled to:
i) demand within a reasonable time, either a) the issue of a security from the Customer, or b) payment in advance of performance;
ii) immediate payment by the Customer of any outstanding invoice or invoices, even if the same is/are not yet due for payment;
iii) retention of any goods which have not yet been delivered; and
iv) cease working on other existing orders from the Customer.
The rights provided under (ii) – (iv) above shall also be available to the Service Provider in the event that the Customer does not effect payment following a written payment reminder of the payment due. If the Customer does not effect payment or issue a security (pursuant to (i) above) within a reasonable time upon demand, then the Service Provider may rescind the contract and claim for damages.

V. Delivery

Fixed delivery times or periods, which may be agreed to be binding or non-binding, shall be expressly confirmed in writing.
The Service Provider shall not be liable for delays in delivery and/or performance due to force majeure events which substantially impede the delivery and/or performance or render it impossible, even if occurring at the Service Provider’s suppliers’ or subsuppliers’ and notwithstanding that the delivery times or periods may have been agreed as binding. In such event, the Service Provider is entitled to extend the time for delivery or performance by the duration of the hindrance plus a reasonable remobilisation time, or to withdraw from the contract in whole or in part in respect of the unfulfilled and hindered part/s thereof.
If the hindrance lasts longer than three months, then the Customer is entitled, after granting a reasonable additional period for performance, to withdraw from the contract in respect of the unfulfilled part. If the delivery time is extended or if the Service Provider is released from its obligation, the Customer will not be entitled to make and shall not make claims for damages or other form of compensation thereunder provided that the Service Provider has notified the Customer of the hindrance at the first opportunity without delay.
If the Service Provider fails to meet periods and deadlines confirmed as binding, or is in delay, then the Customer is entitled to claim damages for the delay amounting to half of one percent (0.5%) of the invoice value of the delayed delivery and services for each full week of delay, subject to a maximum aggregate total of five percent (5%), of the invoice value of the delayed delivery and services. Further compensation shall be excluded unless the delay is due to the Service Provider’s gross negligence.
The Service Provider is at all times entitled to effect partial deliveries and performance of services, unless the Customer has expressly in writing stated that partial delivery or performance is not acceptable.

VI. Transfer of Risk

Risk shall pass to the Customer upon the consignment being handed over to the party carrying out the transport, or leaves the Service Provider’s premises for shipping, whichever is the earlier. If handover or departure is delayed at the request of the Customer, then the risk shall pass on notification to the Customer of readiness for shipment.

VII. Warranty and Notification of Defects

The Customer shall examine the delivered goods to ensure compliance with the contract, without delay.
Notifications of defects must be issued and provided to the Service Provider within 2 weeks after receipt of the goods.
i) Defects which cannot be ascertained in the course of a normal examination on receipt, shall be reported by the Customer as soon as possible, and in any event within 2 weeks, after discovery.
ii) The warranty period in all cases is limited to a maximum of 12 months after acceptance of the goods or services.
The warranty for defects is limited to either repair or replacement, (or part thereof) at the Service Provider’s sole discretion.
In the event the Service Provider refuses ,to rectify the defect and/or carry out supplementary performance due to disproportionate costs, or the supplementary performance fails or is unreasonable for the Service Provider to fulfill, then the Customer may, at his option, either claim a reduction of the price or rescind the contract and claim for damages within the limits of liability as referred to in Article VIII below, (which limitation shall apply so far as permitted by law), in place of the performance or replacement.
In the event of a minor breach of the contract, in particular, in the case of insignificant defects, the Customer shall not be entitled to rescind the contract. Minor breaches are defined as breaches of terms which do not deny the Customer of enjoyment of the main subject or purpose of the contract. Insignificant defects are defined as those which do not fundamentally impair the function of the goods, i.e. they can be used even if useage may be limited.
If the breach of an obligation, ensuing from a defect, is not attributable to the Service Provider, then the Customer shall not be entitled to rescind the contract.
The Customer’s statutory rights in respect of fraudulent concealment of defects remain unaffected.
No warranties or guarantees are made by the Service Provider to the Customer other than those expressly stated herein.

VIII. Limits of Liability

The Service Provider’s liability for breaches of its obligations hereunder is limited to remedies expressly set out herein for foreseeable and direct damage caused by the breach.
The Service Provider is not liable for damage resulting from breach of inessential terms due to minor negligence.
Liability of the Service Provider is limited in the aggregate to a maximum amount of 10% of the contract price paid by the Customer to the Service Provider.
The Service Provider shall not be liable, for whatever reason pursuant to this contract or at law, for indirect, special or consequential damages, such as loss of profit, economic or financial loss or loss of business, etc.
For the avoidance of doubt, nothing in this contract is intended to exclude or limit the Service Provider’s liability in respect of:-
i) death or personal injury resulting from the Service Provider’s negligence;
ii) breach of obligations to transfer title or possession of goods sold or supplied hereunder;
iii) breach of obligations for the quality of goods sold or supplied where the Customer has entered into this contract as a consumer.
This contract is based on the understanding that the Customer has not entered into this contract as a consumer.

IX. Retention of Title

The Service Provider shall retain title in the goods delivered and services rendered until payment of all outstanding invoiced sums. In the event of breach of contract by the Customer, the Service Provider shall be entitled to recover and call back the goods subject to the retention of title upon reasonable notice being given to the Customer of the Service Provider’s intention to do so. The recovery and call back of goods in this manner shall constitute withdrawal from the contract.
The Customer is entitled to sell and/or use the goods subject to retention of title in the normal course of his business, provided he is not in default of payment to the Service Provider. The Customer shall not however pledge or grant a lien over such goods to third parties.
It is anticipated that the Customer will have payment claims against third parties involving goods subject to retention of title. The Customer agrees and hereby transfers to the Service Provider by way of security all third-party claims and payments (due to the Customer from time to time) (“the Security”). The Customer shall provide details of all third party payments due to the Customer from time to time upon request by the Service Provider. The Service Provider hereby accepts the transfer of such third party payments rights and claims and hereby authorises the Customer to collect payments from the third parties for the account of the Customer. The Service Provider may revoke its authorisation at any time, upon which all third party payments shall be collected either by the Service Provider directly or if collected by the Customer, shall be immediately transferred/remitted to the Service Provider. The Service Provider may at any time release the Security hereunder, (in whole or in part as the case may be) at the Service Provider’s sole discretion if the liquidated value of the Security exceeds the third parties payment due to the Customer by more than 10%.

X. Customer’s Obligations

The Customer is obliged to make security back-ups of all data relevant for, or relating to, the contract and its execution, in a form and manner appropriate for the data and format. He shall ensure that the up-to-date data from databases is readily kept in machine-readable format and can be reproduced at a reasonable expense.

XI. Copyright

The Customer is solely liable for its infringements of third party rights, in particular copyright, occurring through execution of the contract. The Customer shall fully indemnify the Service Provider from all third-party claims due to said infringements, unless such infringements are directly attributable to a breach, or breaches, of copyright by the Service Provider.

XII. Reference

The Service Provider may make reference to this contract and its business relationship with the Customer in appropriate form in its external communications.

XIII. Place of Performance, Place of Jurisdiction, Effectiveness

Hong Kong Law applies.
The place of performance and place of jurisdiction for all disputes is Hong Kong.
Any provision herein that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction and the provision that is prohibited or unenforceable shall be reformed or modified to reflect the parties' intent to the maximum extent permitted by applicable legal requirements.