Relating to the Supply of Goods and Services by EASY IMEX LTD (HONG KONG)
DEFINITIONS AND INTERPRETATION
- In this document the following parties shall be referred to as follows
- “Seller” is Easy Imex Ltd (Hong Kong), as well as its agents, assigns, and successors;
- “Buyer” is the person or entity purchasing goods or services from, or with the assistance of the Seller;
- “$” and all references to dollars are United States Dollars (USD).
- Where any dispute arises as to the meaning or interpretation of this document, the contra proferentem rule shall not apply.
GENERAL TERMS AND CONDITIONS
- Unless otherwise specifically and expressly agreed in writing by the Seller, all goods and services provided by the Seller are governed by these terms and conditions, which prevail over any other purchase terms and conditions, including without limitation, contractual terms and conditions.
- Subject to clause 3 above, both the Buyer and the Seller accept and agree to be governed by the Incoterms.
- Goods are supplied by the Seller on a FOB basis.
- Any services provided by the Seller will be carried out professionally and with appropriate care and diligence, but the provision of such services does not create a fiduciary relationship between the Seller and the Buyer.
CONFIRMATION OF SPECIFICATIONS
- Once production is complete, the Seller shall inspect the goods at the manufacturers to ensure agreed specifications and tolerances have been met according to the Specifications Checklist.
- The Buyer shall include the product specification on their Purchase Order and the Seller will advise of any deviations.
- The Seller will provide an inspection report before goods are shipped.
- Conformance Testing carried out by any Inspector depends on the instructions and details given in the ‘Specifications Checklist’ completed by the Buyer and utilizing random sampling techniques in accordance with the Acceptance Quality Level (AQL) for random sampling, and inspection standard (ISO2859-1). No responsibility or liability will be taken by the Inspector for the accuracy of information provided by the Buyer. It is the Buyer’s responsibility to request any compliance requirements or certifications prior to placing any orders.
IMPORT OF GOODS
- Unless expressly stated in writing, the Seller does not import goods on behalf of the Buyer.
- While all necessary care is taken, unless otherwise agreed in writing, the Seller is not liable for non-delivery, failure to meet time constraints, or failure to meet specifications.
SELLER’S OBLIGATIONS AND UNDERTAKINGS
- The Seller expressly reserves the right to accept or decline the Buyer’s request for goods or services, regardless of any previous conduct of the Seller.
- Without limiting the generality, reasons for the Seller declining to act could include:
- The request falling out of its scope of activity or specialization;
- The request presenting geographical accessibility problems, such as services to be rendered or products to be found in restricted or highly remote areas;
- The request requiring the Seller to obtain special permission to operate such as governmental permissions;
- The request being for illegal or for restricted goods or services;
- Changed foreign exchange or market conditions.
- The Seller undertakes to use its best endeavours to supply the goods and services in accordance with industry practice and in compliance with the Buyers special instructions.
- The Buyers special instructions or terms of reference must be provided to the Seller in writing and the Seller’s acceptance of the same must be communicated to the Buyer in writing. In the absence of such written and accepted instructions, the Seller shall endeavour to comply with any relevant professional standards, trade customs, usage or practices, or such methods as the Seller shall consider appropriate on technical, operational and/or financial grounds.
BUYER’S OBLIGATIONS AND UNDERTAKINGS
- The Buyer is to make all payments requested by the Seller as and when due.
- The Buyer is to take all reasonable steps to assure that the Seller has access to the site at which services are to be provided and that the Seller has unrestricted access to the goods which are to be inspected or otherwise dealt with by the Seller.
- To Buyer is to provide the Seller with all information and samples, as well as the documents necessary to complete the requested service, in a timely manner (and in any event not later than 48 hours prior to the event).
- The Buyer is to provide adequate instructions and notice in a timely manner to the Seller in order to facilitate proper performance of the services requested.
- The Buyer is to advise the Seller of the date on which the provision of goods or services is to commence, or to be resumed, and also of essential dates affecting the goods for which Services are being rendered.
- The Buyers is to render all reasonable assistance to the seller in providing necessary instructions, information, documents, safety and security information in connection with the working conditions, required equipment and access (as the case may be) with respect to the Buyer’s desired goods or services.
DEFAULT IN PAYMENT
- If the Buyer defaults in payment of any part of the price or the charges due for the goods or services, the Buyer shall indemnify the Seller against all claims, costs, damages, demands, expenses, liabilities, or losses, whether incurred by the Buyer or by the Seller and howsoever described, on a full indemnity basis.
- The Buyer shall be liable for all the Seller’s collection expenses, commissions of mercantile agents, legal costs and disbursements, as well as any interest and penalties, in relation to any default in payment by the Buyer.
- If the Buyer does not confirm or agree to export goods that are deemed to have met correct specification and quality inspections within 30 days post-production, the Buyer forfeits any payments made in respect of those goods and services and accepts that the relevant goods may disposed of, destroyed, or sold to a different buyer (at the Seller’s sole discretion) and in such event the Buyer will forego any right to the goods and to any proceeds arising from the sale of the goods, and the Buyer shall remain liable to the Seller to the extent of any shortfall.
- Where payment terms are payment against the bill of lading, if the Buyer has not paid the Seller within 14 days of the vessel arriving at the destination port, the Buyer forfeits any payments made in respect of those goods and services and accepts that the relevant goods may disposed of, destroyed, or sold to a different buyer (at the Seller’s sole discretion) and in such event the Buyer will forego any right to the goods and to any proceeds arising from the sale of the goods, and the Buyer shall remain liable to the Seller to the extent of any shortfall.
RETENTION OF TITLE
- Where the Seller has provided goods on credit terms to the Buyer, the seller retains title to the goods until they have been paid for in full by the Buyer.
- Notwithstanding delivery of the goods to the Buyer, beneficial title to the goods shall remain with the Seller until the Seller has received payment in full and in cleared funds of:
- the price;
- the purchase price of all other goods and/or services (if any) supplied by or on behalf of the Seller to the Buyer, for which payment is then due; and
- any other monies owed and due by the Buyer to the Seller on any account whatsoever.
- All risk of damage, loss or destruction of goods shall pass to the Buyer at the time of delivery of the goods to the Buyer or if earlier, at the time the Seller tenders delivery of the goods to the Buyer.
- Unless and until title in the goods passes to the Buyer:
- The Seller may at any time in its absolute discretion inspect, move, retake possession of, sell, dispose of or otherwise deal with the goods;
- The Seller, its agents and other authorized representatives may at any time and without notice enter any premises at which the goods are situated or kept or at which the Seller believes the goods are situated or kept for the purpose of exercising its rights;
- the Buyer shall procure and provide to the Seller on demand all such access, facilities, resources and assistance as the Seller may require in order to exercise its rights and, at the request of the Seller, the Buyer shall at its own cost deliver the goods to the Seller or its nominee at such place or places as ther Seller shall specify;
- the Buyer shall insure the goods for their full replacement value with a reputable insurer and shall ensure that the interest of the Seller is noted on the policy of insurance and shall immediately upon demand by the Seller provide a copy of the relevant certificate of insurance;
- the Buyer shall not pledge, charge, encumber or create any security or any indebtedness over or in respect of the goods;
- the Buyer may sell the goods only in the ordinary course of its business and shall not otherwise alter, modify, manufacture, or otherwise deal with the goods in any like manner;
- the Buyer shall store the goods separately from all other goods whether supplied by the Seller or any other supplier of goods to the Buyer.
- The Buyer shall not remove or make unreadable any mark placed on the goods or the packaging of goods by the Seller and shall ensure that the goods are all times marked as the property of the Seller or stored in such a way as to make it obvious that the goods are the property of the Seller;
- the Buyer shall not affix, attach or incorporate the goods to or into any land, buildings, structure or premises or into any goods or products or use the goods to manufacture or produce any other goods or products.
LIMITATION OF LIABILITY
- The Seller is neither an insurer nor a guarantor and disclaims any such capacity. Clients seeking a guarantee against loss or damage should obtain appropriate insurance and legal advice.
- The Seller’s advice is given only in relation to documents and information provided by the Buyer or by other third parties, and the Seller cannot be held liable if it has received incomplete or erroneous information.
- The Seller is under no obligation to verify information provided to it by the Buyer, the manufacturer, or by any other third party. In the event of false, incorrect or misleading information being given to the Seller, the Seller accepts no liability to the Buyer or to any one else as a result.
- To the extent that is reasonably practicable to do so, the Seller shall use its best endeavours and exercise due care and skill in the performance of its services.
- The Buyer shall obtain its own insurance.
- The Seller may maintain logistics insurance covering damage or loss during transit with an excess of $1,000 USD which is payable by the Seller, however the Buyer should not rely solely on the Seller’s insurance and should obtain its own insurance if required.
- It is the Buyer’s responsibility to obtain and fully comply with all licenses, permits, authorizations and approvals needed under any relevant legislation, regulation, proclamation, ordinance, by-law, industrial award and other statutory instrument or rules and provide such details to the Seller.
- In the event of the Seller being held liable in respect of any claim for loss, damage or expense of whatsoever nature and however arising, its liability to the Buyer shall in no circumstances exceed the total aggregate sum of fees paid for the specific services for which a claim is made.
- In addition, in case of the Pre-Shipment Inspections: Where less than 100% of the production is complete, the Seller’s responsibility will only extend to those items completed at the time of inspection and the report does not evidence shipment.
- The Buyer shall guarantee and indemnify the Seller and its servants, agents or subcontractors against all claims made by third parties for loss, damage or expense of whatsoever nature arising, relating to the performance or non-performance of any service, to the extent that the total sum of such claims exceed the limitation of liability in clause 37 above.
- In the event of any claim, notice must be given to the Seller at: Easy Imex Global Headquarters (located at Suite 3501, 325 Tian Yao Qiao Rd, Xujahui, Shanghai 200030, PR China, Phone +86 21 33632422) within seven days following discovery of the facts, or three months from the completion of the Seller’s Service. The Seller reserves the right to reject any claim which is not submitted within this timeframe.
TERMINATION OF SERVICES
- The Seller shall be entitled to terminate and/or suspend provision of services without notice in the event that:
- The Buyer commits any material breach of its obligations under these terms and conditions and/or the terms of reference and (if such breach shall be capable of remedy) fails to make good such breach within ten (10) days of receipt of notice served by the Non-Defaulting Party (the Seller) requiring it to do so. Material breaches include, without limitation any wilful and deliberate breach by the Buyer of its obligations under this clause;
- The Buyer is insolvent or unable to pay its debts, in suspension of payments, or convenes a meeting of or compounds with its creditors or has a receiving order made against it or (other than for the purposes of bona fide amalgamation or reconstruction) has an order made or a resolution passed for its winding up or for the appointment of an administrator to manage its affairs, business and property or has a receiver or administrative receiver appointed over any of its assets or undertaking or if the Seller takes or suffers any similar or analogous action in consequence of debt.
- The Buyer should fully complete the Specifications Checklist which details specific information relating to their packaging requirements prior to any quality inspection services to be undertaken by the Seller’s inspectors.
- If any goods require specialised handling, this should be communicated in detail to the Seller prior to any quality inspection. Responsibility for any broken goods will not be accepted by the Seller for goods inappropriately handled if such prior advice has not been received in writing.
FINAL ARTICLE INSPECTION
- Once the manufacturer has indicated that the goods are ready for shipment, the Seller’s inspector will conduct the inspection at either the factory, a designated warehouse , or at the freight forwarder’s warehouse.
- The Buyer should complete the Specifications Checklist which details specific information relating to their product specifications, including a jpeg attachment of product/s. Product samples should be provided where possible, which will remain the property of the Seller for reference purposes.
- Inspection does not include checking the internal mechanics of technical/mechanical products, chemical testing, or tests that require specialised qualifications and equipment. Such work is not included under the standard agreement and must be requested and agreed to additionally and in writing.
- Fees charged for the provision of services as outlined in the Service Agreement are calculated as per the Seller’s Fee Schedule.
- All banking transfer fees, logistics, customs & quarantine and other incidental will be met by the Buyer.
- The Buyer must pay for the Services within the time period for payment specified in the relevant invoice issued by the Seller.
- Payment must be in the agreed format. Payment by cheque will not be treated as having been made until that cheque is cleared. Payment will be made in favour of Easy Imex by cash on delivery, or by cheque, or by bank cheque, or by any other method as agreed to between the Buyer and the Seller. The Seller may charge a processing fee of $50 on all dishonoured cheques.
- The Buyer and the Seller submit to the non-exclusive jurisdiction of the Courts of Hong Kong in relation to any dispute which may arise between them.
- Notwithstanding clause 52 above, the Seller at its sole discretion, may nominate another jurisdiction as being the most appropriate jurisdiction in relation to any such dispute.