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TERMS AND CONDITIONS

CONDITIONS OF SALE

AGENCY

1. (a) Unless the contract documents contain an express indication to the contrary we act in all respects as the agent of the seller, as such our obligation to a buyer shall be to communicate his order to the seller and no more;

(b) Goods are supplied subject to the conditions of sale of the seller or in the absence of such conditions and to the extent that the context admits, to the following conditions;

(c) Orders placed with us as the agent of the seller are subject to acceptance by the seller;

(d) The following conditions of sale apply where we act as principals.

LIMITATION OF LIABILITY

2. (a) We shall not be liable for any loss or damage whatsoever arising from failure by us to perform the contract, whether wholly or in part, which is caused by:

(i) default by our suppliers, or

(ii) any cause whatsoever beyond our control.

(b) Our liability whether in contract or in tort shall in all cases be limited to the amount of the invoice to which the claim relates.

(c) In no circumstances whatsoever shall we be liable for indirect or consequential loss or loss of profits.

DATES FOR DELIVERY

3. Dates for shipment or delivery of goods to be sold or delivered shall not be and must not be relied on or treated by the buyer as terms of contract unless they are specified as such in the contract documents. Where dates for shipment or delivery are so specified we shall not be under any absolute obligation to ship or deliver by the dates specified, but our obligation shall be to ship or deliver (as the case may be) within a reasonable time of the date specified. Any contractual obligation on our part to ship or deliver as aforesaid shall not be a condition of the contract and accordingly any breach of such obligation shall be and is to be treated as a breach of warranty only.

GOODS OFFERED EX-STOCK

4. When delivery of goods is offered ex-stock the offer is subject to the goods being available and unsold at the time of receipt by us of an order.

PRICES

5. (a) The price referred to in the contract documents shall prevail unless before the date of despatch of goods or part thereof:

(i) in the case of goods included in any of our current price lists there is an increase in the list price for such goods above the list price therefore in force when the order was accepted or;

(ii) in the case of goods not included in any of our current price lists there is an increase in the list price for comparable goods above those in force when the order was accepted;

(iii) there is an increase in the landed price of goods which is attributable to the fluctuation of exchange rates.

In which case, the goods or the undelivered balance thereof shall be invoiced and paid for at the agreed price plus the amount of the relevant increase. Provided that sub-clauses (i), (ii) and (iii) above shall not apply where the price referred to in the contract documents is stated to be fixed.

(b) All duties, charges, insurances and other expenses whatsoever of shipment or delivery shall be for the buyers account unless goods have been sold on free delivery terms. Any increase to us in the cost of shipment or delivery over the cost thereof calculated by us at the date of the contract shall be for the buyer’s account whether the goods are sold on free delivery terms or not.

(c) If by reason of any war hostilities or warlike operations the cost to us of fulfilling the contract or any part thereof would exceed the cost calculated by us at the date of the contract we shall give the buyer notice thereof and the buyer shall have the option (to be exercised in writing within seven days of receipt of the notice) of paying such excess in addition to the price payable under the contract or of cancelling the contract or any unfulfilled part thereof without prejudice to the accrued rights of either party.

RISK AND TITLE

6. (a) The risk in goods shall pass immediately they are delivered into the physical custody of the buyer his agents or his assigns, or they otherwise begin to be held to his order. We shall retain sole and absolute property in such goods as legal and beneficial owner until the buyer has paid the full invoice price and until that time the buyer shall be in possession of the goods as bailee for us and shall be deemed to have so acknowledged. Until the full invoice price has been paid the buyer shall store the goods separately from other goods and in a manner which makes them readily identifiable as goods delivered by us.

(b) The buyers right to possession of any goods for which the full invoice price has not been paid shall cease if, being an individual, he commits an available act of bankruptcy or, being a company, a receiver becomes entitled to take possession of any of its assets or any person becomes entitled to present a petition for its winding up or it is resolved that it be wound up. We shall be entitled in these events to enter at any time and with or without vehicles upon any premises of the buyer at which we reasonably believe such goods to be stored and to repossess them.

(c) The buyer shall be at liberty in the ordinary course of business to process and make products from and, as our agent, to sell goods for which the full invoice price has not been paid. The proceeds of any such sale shall be for our account and shall be held in trust for us to the extent of the full invoice price for the goods.

(d) In addition to any right of lien to which we may be entitled by operation of law we shall be entitled to a general lien on all goods of the buyer in our possession (although such goods or some of them may have been paid for) for the unpaid price of any other goods sold and delivered to the buyer or for any other monies owing to us from the buyer.

BUYERS OBLIGATIONS IN REGARD TO DELIVERY

7. (a) Deliveries made under the contract shall be deemed to have been made in respect of separate sales of each weight description or quality of goods which each such delivery may comprise. Unless otherwise specifically agreed in writing payment for each delivery is due on the date thereof and payment on that date or upon the date(s) otherwise so agreed shall be a condition precedent to any further deliveries.

(b) Delivery of each instalment of the goods must be accepted within seven days of despatch of a delivery order or advice of arrival in default of which we shall be entitled to charge for storage. Failure of the buyer to accept delivery of goods within 7 days of despatch of a delivery order or advice of arrival shall entitle us to dispose of the goods by whatever means may appear expeditious, to treat the net proceeds (if any) of such disposal as part payment of any monies owing to us from the buyer and without prejudice to any of our other rights to claim the balance of the invoice price from the buyer.

(c) For the purposes of condition 7(a) above goods shall be deemed to be held to the order of the buyer from the moment of despatch of a delivery order or advice of arrival.

(d) The failure of the buyer to pay our invoice in full on the due date shall entitle the sellers to charge interest on the overdue account at a rate of 10% monthly interest, provided that the sellers shall not be entitled to recover interest under an invoice where a negotiable instrument which has been tendered in payment also carries interest.

LOSS OR DAMAGE

8. In the event of any loss or damage or delay to any goods delivered at our risk to the buyer or to his agent or otherwise to his order notice of the same shall be given to us in writing by the buyer forthwith upon delivery (or, in the case of the loss of any goods, at the time when the goods should have been delivered) and the buyer shall at the same time take all necessary steps to notify the carrier in writing of any such loss damage or delay and shall in all cases where possible enter a note of the same upon the carriers receipt. If by reason of the failure of the buyer to give any such notice we are precluded from making a recovery from the carrier in respect of the loss or damage or delay complained of then we shall not be liable for any claim by the buyer in respect thereof and the buyer shall be liable to pay for the goods as though no such loss damage or delay had occurred.

GOODS CLAIM

9. (a) Any 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 or non or incorrect delivery shall (whether or not delivery is refused by the buyer) be notified to the seller within 7 days from the date of delivery or (where there is non or incorrect delivery or the defect or failure was not apparent on reasonable inspection) 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.

(b) Where any valid claim is notified to the seller, the seller shall be entitled to repair or replace the goods (or the part in question) free of charge or, at the seller’s sole discretion, grant credit to or refund to the buyer the price of the goods (or a proportionate part of the price), but the seller shall have no further liability to the buyer.

APPLICABLE CONDITIONS

10. (a) Orders are accepted subject to the incorporation in the contract of these conditions of sale and any special conditions of sale, which shall override and exclude any terms and conditions proposed by the buyer, except insofar as acceptance of the same has been communicated by us to the buyer in writing.

(b) Terms and conditions proposed by the buyer cannot be accepted by our staff without express written sanction; it is the buyer’s responsibility to ensure that such sanction has been given.

CONSTRUCTION

11. Where the context admits:

(i) the singular shall include the plural and vice versa;

(ii) the male gender shall include the female gender and vice versa;

(iii) the term ‘person’ shall include a corporate as well as an unincorporate person.

GOVERNING LAW

12. The validity construction and performance of the contract shall be governed by the laws of Hong Kong and both parties shall submit to the non-exclusive jurisdiction of the Courts of Hong Kong.

ANTALIS GENERAL CONDITIONS OF PURCHASE – February 2013

Article 1: Scope of Application and Priority
These general conditions of purchase together with the relevant purchase order shall set forth the binding terms for supplies, equipment, facilities and services (hereinafter the “Goods”) placed by the Antalis Company, whose contact details appear on the purchase order form (hereinafter “ANTALIS”). ANTALIS is not bound by the Supplier’s general conditions of sale and any additional or different terms or provisions that may appear on any proposal, quotation, price list, acknowledgement, invoice, packing slip or the like by the Supplier, or Course of performance, course of dealing, and usage of trade shall not be applied to modify these General Conditions of Purchase unless ANTALIS expressly agrees in writing.

Article 2: Acceptance of Purchase Order
The Supplier shall return to ANTALIS the acceptance of the purchase order, within one (1) working day from the date of receipt of the order (except when another lead time is expressly agreed). Moreover, if the Supplier does not reject a purchase order in writing within the aforementioned time limit, and start to perform the order, such order shall be deemed to have been accepted based on the present general conditions of purchase (the “Agreement”); the performance of an order shall be evidence of the acceptance thereof on the terms of the Agreement.

Article 3: Compliance with Laws
The Supplier shall at all times comply with all laws, regulations and ordinances applicable to this Agreement including but not limited to all labour and environmental laws The Goods must be delivered with relevant guidelines and instructions for use, storage and maintenance under safe and optimal conditions, as well as the documents stipulated under the standards, laws and regulations of the country of delivery. Failing this upon delivery, ANTALIS reserves the right to refuse the Goods.

Article 4: Delivery, Reception Time
Time is of the essence and all dates referred to in this Agreement shall be firm. In the event that the Supplier anticipates any difficulty in complying with any delivery date or any of its other obligations under this Agreement, the Supplier shall promptly notify ANTALIS thereon in writing.

Article 5: Delivery of Goods
5.1: Conditions and content of deliveries
The Supplier shall abide by the access and unloading conditions in force on the delivery site. In absence of express stipulation, the Goods shall be delivered DDP (Incoterms® 2010) with a delivery slip attached, stating the purchase order number, the Goods’ reference and quantity. In its absence, solely weight and quantity noted by ANTALIS are taken into account for payment of the invoices.
5.2: Packaging and transport
The Supplier shall pack, mark, and ship the Goods with sound commercial practices and ANTALIS’ specifications in such manner as to prevent damage during transportation and to facilitate efficient unloading, handling and storage, and all Goods shall be clearly marked as destined for ANTALIS. The Supplier shall be liable for any loss or damage due to its failure thereto. ANTALIS shall not be required to assert any claims for such loss or damage against the common carrier involved.
5.3: Delivery times
The dates of delivery of Goods to the final destination are binding and may only be modified with ANTALIS’ express written consent. The Supplier shall make no partial delivery or delivery prior or posterior to the agreed delivery date(s) unless ANTALIS has agreed otherwise in writing. If an advance delivery is accepted, only the contractual delivery date shall be taken into account to calculate the due payment date of the invoice. However, ANTALIS reserves the right to refuse any untimely delivery of Goods and return same at the Supplier’s risk and expense.
5.4: Consequences of late delivery
In the event of late delivery, ANTALIS may (i) request express delivery at the Supplier’s expense; (ii) apply a penalty for late performance equal to 1% per week of delay of the price of the Goods concerned, inclusive of tax, and limited to 5% (except when other figures are expressly agreed); (iii) offset these penalties against the amounts payable to the Supplier providing the Supplier does not raise an objection within 4 days of receipt by ANTALIS of this notice; and (iv) terminate or cancel ipso jure, in whole or in part, any order that is not delivered timely by written notice without prejudice to any other rights and remedies.
5.5: Acknowledgment of receipt of Goods
Delivery shall be deemed completed when its receipt has been acknowledged in writing by ANTALIS. The acknowledgment of receipt of consumables or ready-to-use Goods shall be evidenced by the signature of the delivery slip by ANTALIS, without any reservations; the acknowledgment of receipt of services shall be evidenced by the actual, definitive performance of the services in full for ANTALIS, without any reservations. However, both shall not constitute acceptance of Goods in terms of free of defect and in conformity. The acknowledgment of receipt of equipment or facilities requiring installation, setting and/or putting into service shall be evidenced by ANTALIS signature of a handover protocol without reservations.

Article 6: Prices and Payment
6.1: Price
All prices shall be fixed prices for properly packed and delivered Goods and/or for installation of equipment/facilities, including setting and putting into service, transported to and unloaded at the place indicated by ANTALIS. Transportation of goods shall be carried out at the risk and expense of the Supplier. The fixed prices include insurance, customs formalities, duties and taxes.
6.2: Payment
Payment invoices must be sent for each purchase order to ANTALIS’ accounts department indicating at least the purchase order number, the quantity of Goods as well as the date and number of the delivery slip. Subject to the acceptance of the Goods by ANTALIS and the invoice in proper form, full payment shall be made by wire, edi transactions, or any other means agreed in writing by ANTALIS in compliance with the time for payment stipulated in the purchase order. If the Supplier fails to fulfil any of its obligations under this Agreement, ANTALIS may suspend payment. ANTALIS may at all times have the right to set off and deduct from any amounts owed by ANTALIS to the Supplier any amount owed by the Supplier to ANTALIS, irrespective of the nature of any such claim. The Supplier acknowledges and agrees that any debt due by ANTALIS to the Supplier may be paid on ANTALIS’ behalf by any other legal entity belonging to the Antalis Group and/or a third party designated by ANTALIS, such payment discharging ANTALIS from such debt.
6.3: Title
Title of the Goods shall pass to ANTALIS on delivery except for Goods untimely delivered (Article 5.3) even if part of the price is not yet payable or is outstanding. If advance payments are made on these Goods prior to delivery, title of the Goods shall pass on payment.

Article 7: Acceptance and Transfer of Risk
Acceptance and transfer of risk of Goods shall take place on ANTALIS’ site after due checking irrespective of the payment and delivery terms.

Article 8: Quality
8.1: Free of defects and conformity
The Supplier certifies the Goods are free of defects and conform to the requirements of this Agreement. Inspection of or payment for the Goods by ANTALIS shall neither constitute acceptance nor release Supplier from any of its obligations, representations or warranties under this Agreement. ANTALIS reserves the right to inspect the Goods on Supplier’s sites during the execution of the order. If any inspection or test by ANTALIS is made on the premises of the Supplier, the Supplier shall provide reasonable facilities and assistance for the safety and convenience of ANTALIS’ inspection personnel. The Supplier undertakes to inform ANTALIS immediately of any suspected non-conformity of the Goods delivered ANTALIS.
8.2: ISO Certifications
In the event the Supplier has ISO certifications, these conditions shall constitute confirmation by the Supplier of the implementation of all obligations resulting thereof, thus reducing the quality control checks required upon delivery to the premises of ANTALIS. Moreover, the Supplier must inform ANTALIS immediately of any material events related to these ISO certifications (renewal, cancellation).
8.3: Changes to Goods
The Supplier shall not, without the prior written consent of ANTALIS, make any changes to the Goods, manufacturing process, place of manufacture, raw material….In case of an agreed change, any cost incurred for qualification, trials….will be borne by the Supplier. The Supplier shall buy back Goods in the Antalis’ inventory in case of discontinuance of the Goods, at the purchase price.
8.4: Performance of Services, Good Faith
Any design, manufacturing, installation or delivery or other obligation to be performed by or on behalf of the Supplier under this Agreement shall be executed with due skill and care and in good faith. The Supplier shall be fully liable for such performance.

Article 9: Warranty
Contractual warranties shall begin to run for a period of 24 months, on the day on which ANTALIS acknowledges receipt of the Goods (Art. 5.5), in addition to all statutory warranties.
9.1: Goods
The Supplier represents and warrants to ANTALIS that the Goods are: (i) suitable for the intended purpose and shall be new, merchantable, of good quality and free from all defects in design, materials, construction and workmanship; (ii) comply with the specifications and any other requirements under this Agreement; (iii) shall be free from any and all liens and encumbrances; (iv) are provided with and accompanied by all information/instructions necessary for proper and safe use; (v) accompanied by all required licenses for their intended use including the right to transfer and the right to grant sublicenses; (vi) do not violate or infringe any third party domestic or foreign patent, copyright, trade secret, trademark or other intellectual property rights; and (vii) manufactured, stored and transported in accordance with all laws and regulations applicable in the country of manufacture, storage and transit, in particular those regarding health, safety, the environment and labour law.
9.2: Remedies
If any Goods are defective or not in conformity with the requirements of this Agreement, ANTALIS shall notify promptly the Supplier thereon and may without prejudice to any other right or remedy under this Agreement or applicable law, at its sole discretion and at the cost and risk of the Supplier: (i) claim a full refund of the price paid under this Agreement and return the Goods concerned; or (ii) require Supplier promptly to remedy the defect or non-conformity or replace the nonconforming Goods with Goods meeting the specifications. Rejected Goods shall be deemed undelivered. The Supplier shall collect the Goods within 15 days of the notice of nonconformity or defect. Acceptance of, or payment for, all or any part of the Goods under this Agreement shall not be deemed to be a waiver of ANTALIS’ right to cancel or return or reject all or any part thereof by reason of non conformity or defects, latent or patent, or other breach of warranties, or to make any claim for damages, including manufacturing costs and loss of profits or other special damages occasioned to ANTALIS.

Article 10: Liability
The Supplier shall be liable for all damages directly or indirectly caused to ANTALIS as a result of the breach of its obligation including but not limited to, delay in delivery, result of non-conformity, breach of warranty. The Supplier shall indemnify and hold harmless ANTALIS, its agents and employees from and against any third parties’ suits, legal actions or administrative proceedings, claims for damages, judgements, liabilities, interest, attorneys fees, costs and expenses whatsoever (including but not limited to special, indirect, incidental, consequential damages) whether arising before or after the completion of delivery of Goods under this Agreement, in any manner caused or claimed to be caused by the acts, omissions, faults, breach of express or implied warranty, duties under this Agreement, or negligence of the Supplier (or of anyone acting under its direction or control or on its behalf). ANTALIS shall not be liable to the Supplier for any lost revenue, lost profits or other incidental or consequential damages even if ANTALIS has been advised of the possibility of such damages. In no event shall ANTALIS be liable to the Supplier, its successors or assigns for damages in excess of the amount due to the Supplier for complete performance under this Agreement, less any amounts already paid to the Supplier by ANTALIS.

Article 11: Suspension and Termination
Without any prejudice to any other right or remedy available to ANTALIS under this Agreement or at law, ANTALIS shall be entitled at its discretion to suspend or terminate ipso jure and with immediate effect its obligations under this Agreement in whole or in part by means of written notice in the event that: (i) the Supplier breaches any of its obligations under this Agreement; the Supplier becomes subject of bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceedings within filing or petition proceedings, and/or (ii) ANTALIS shall not be liable to the Supplier by virtue of such termination. In the event of termination, any obligation entered into prior to termination, shall be performed under the terms and conditions of this Agreement.

Article 12: Intellectual Property and Confidentiality
The Supplier shall treat all information provided by ANTALIS or on behalf of ANTALIS or exchanged under this Agreement as confidential including but not limited to specifications, plans, drawings, formulae, documents, tools, moulds, provided or created with a view to producing the Goods ordered by ANTALIS (the “Information”). All such Information shall be used by the Supplier only for the purposes of this Agreement and under at least reasonable care while protecting such Information. All such Information shall remain the full and exclusive property of ANTALIS and the Supplier shall, upon ANTALIS’ demand, promptly return it to ANTALIS without retaining any copy thereof. The Supplier undertakes to assign all intellectual property rights that may be generated by the execution of the order, and recognises that the price paid for the Good includes consideration for the transfer of intellectual property right.

Article 13: Miscellaneous
This Agreement shall be governed by and construed in accordance with the law applicable in ANTALIS’ country of establishment, or the Swiss Federal laws if the Supplier is out of this country, under exclusion of conflicts of law rules and of the UN CISG. (II) Failing amicable settlement between the Parties, all dispute arising out or in connection with this Agreement, (a) shall be subject to the exclusive jurisdiction of the competent courts at ANTALIS’ registered office or, at the option of ANTALIS, (b) the jurisdiction of the entity of the Supplier to which the order was placed or (c) arbitration under the ICC (Paris) Rules of arbitration or (d) the courts of Geneva ; the Supplier hereby waives all defenses of lack of personal jurisdiction and forum non-convenience. (III) The Supplier shall perform hereunder as an independent contractor and nothing contained in this Agreement is intended to create a partnership, joint venture or employment relationship between the parties. The Supplier shall not subcontract, transfer, pledge or assign any of its rights or obligations under this Agreement without the prior written consent of ANTALIS. (IV) If any term of the present conditions is held to be void, unlawful or unenforceable, the remaining terms shall remain valid and the affected term(s) shall be substituted validly in such a manner as to achieve its (their) original purposes. (V) Neither the failure nor the delay of ANTALIS to enforce any provision of this Agreement shall constitute a waiver of its rights mentioned therein. No waiver, consent or modification shall be binding upon the parties unless made in writing and signed by both parties. (VI) The rights and remedies reserved to ANTALIS are cumulative and in addition to any other or future rights and remedies available under this Agreement, at law or in equity. (VII) The Supplier closely cooperates with Antalis in the implementation of a Corporate Social Responsibility Programme, such commitment being essential. (VIII) Subject to reasonable courtesy, the Supplier accepts to be audited and to respond to any assessment request for the purpose of checking its compliance with its obligations.