1. Agreement and Precedence of Terms
These sale terms and conditions (“Sale Terms”) apply to the performance of services detailed on the accompanying service contract, quotation, and/or sales order form (“Sales Order”), as well as any related ancillary services provided by White Horse Laboratories Ltd. as seller (“Seller”) to the purchaser identified in the Sales Order (“Purchaser”). Purchaser will be deemed to have accepted the Sales Order and these Sales Terms after receiving them in any form or format (mail, fax, electronic) by taking any of the following actions:
(a) responding with an express written acceptance or confirmation through any media of the Sales Order
(b) by any action that constitutes implied acceptance under the applicable contract law
(c) by issuing a purchase order to Seller referencing the Services, or
(d) accepting delivery of the Goods or provision of the services whether or not Purchaser has confirmed or acknowledged the Sales Order or taken any other actions with respect to the Sales Order.
The Sales Order and these Sales Terms together constitute one sales contract (“Sales Contract”) and the entire agreement between the parties with respect to the services. This Sales Contract supersedes all previous offers and agreements, whether oral or written, including any request for quotation or purchase order. Seller will not be bound by any terms of Purchaser’s purchase order that are inconsistent with the terms herein. No addition to, or other modification of, this Sales Contract shall be binding on Seller unless it is in writing and executed by a duly authorized representative of Seller. In the event of a conflict between any of the terms contained in the Sales Order and the Sales Terms, the Sales Order shall control. If Purchaser Purchase Order (PO) differs from the Sales Terms, Seller will notify the Purchaser of the discrepancy and request clarification and/or correction prior to entry of Sales Order.
2. Price and Taxes
The price of all services is specifically stated in the Sales Order and is exclusive of taxes, fees and expenses unless otherwise specified. Sales Order does not include shipping or other logistics, re-packaging, or packaging materials (if required) unless otherwise specified.
3. Payment Terms
Payment shall be made prior to shipment of the Goods, unless otherwise specified in the Sales Order. Seller reserves the right to extend or require alternative payment terms, including, without limitation, net terms, letter of credit, or payment in advance. All payments shall be made to Seller’s account in Hong Kong or such other place as may be from time to time designated. All payments made from outside of Hong Kong shall incur a $25 USD processing fee for international electronic funds transfer. Any amounts owed by Purchaser to Seller and not paid when due shall bear interest at the rate of one and one half percent (1,5%) per month, but not more than the amount allowed by law, on the unpaid balance from the original due date of the invoice until paid. Purchaser shall also be liable to Seller for Seller’s reasonable costs of collection incurred in collecting any amounts owed by Purchaser under this Sales Order, including reasonable attorneys’ fees.
4. Additional Services
In the event additional testing and/or other services are determined by Seller to be necessary and reasonable, Seller shall advise Purchaser of the requirement of additional services in writing and Purchaser shall advise in writing by email or other format of acceptance of the additional testing and/or other services.
5. Deliveries and Scheduling
Unless otherwise specified in the Sales Order, deliveries may be made by Seller, in whole or in part, before the scheduled delivery date without penalty. Seller may make partial shipments of Purchaser’s goods, to be separately invoiced and paid for when due. Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept the remaining deliveries. Accelerated deliveries at the request of Purchaser may be subject to an additional expediting charge. Seller will attempt to meet shipment schedules; however, any shipment quotation or forecast on an order acknowledgment is only an estimate of the time required to make shipment and Seller will not assume liability, consequential or otherwise, because of any delay or failure to deliver all or any part of any order for any reason, including its active or passive negligence.
6. Transportation and Risk of Loss
Unless otherwise specified in Sales Order, all deliveries are Exworks (IncoTerms 2000) Seller’s place of testing. All risk of loss of, or damage to the goods will pass to Purchaser upon delivery by Seller to the carrier, freight forwarder, Purchaser or their appointed agent, whichever first occurs. Purchaser will bear the-risk of loss or damage in transit. Unless otherwise agreed in writing, title shall pass from Seller to Purchaser at the location Goods are delivered to the carrier. Unless otherwise agreed to in writing by Seller, all shipping shall be at the expense of Purchaser. Accordingly, Purchaser will be responsible for selecting the mode of shipment and the carrier. Purchaser will be responsible for and pay all packing, shipping, duties, tariffs, agent fees, freight, and insurance charges, which charges Seller may require Purchaser to pay in advance. If Purchaser does not select mode of shipment and carrier, Seller reserves the right to ship Goods freight collect and to select the means of shipping and routing. Unless otherwise advised, Seller may insure to full value of the Goods or declare full value thereof to the transportation company at the time of delivery and all such freight, duties, and insurance costs shall be for Purchaser’s account. Seller may at its option obtain insurance for its Goods covering their delivery to Purchaser and Purchaser agrees to reimburse Seller for the cost of providing such insurance.
7. Inspection and Acceptance
The Purchaser shall have the right to inspect the Goods upon delivery. If an immediate visual inspection reveals damage to the Goods, Purchaser may refuse acceptance from the carrier at the time of delivery. After delivery, the Goods shall be deemed accepted by Purchaser unless Purchaser provides Seller with written notice of its rejection of all or part of the Goods, such notice specifying the defect underlying the rejection, within five (5) business days after initial receipt of the Goods. If Purchaser, its agents, employees or licensees, use the Goods after delivery for any reason other than for inspection thereof, such use shall constitute acceptance of the Goods by Purchaser.
8. Limited Warranty
The Seller’s liability shall extend only to the physical and electrical parameters specified for testing in the Sales Order and shall be limited to the purchase value of the service provided per the Sales Order. Seller shall have no liability whatsoever for the suitability of any Goods selected by Purchaser or any design defects of Goods, or in the event the Goods ordered are unsuitable for Purchaser’s intended use. The foregoing warranty replaces all other warranties, expressed or implied, including the implied warranties of merchantability and fitness for a particular purpose, title and non-infringement.
9. Indemnification Obligations
Purchaser shall indemnify, hold harmless, and defend Seller, and its directors, officers, employees, agents, and affiliates from and against any and all costs, claims, actions, demands, suits, liabilities, settlements, damages, and expenses of any kind whatsoever (including, but not limited to, court costs and reasonable attorney and accounting fees), not covered by Seller’s indemnity and resulting from or alleged to result from Purchaser’s use of any Good, including products liability arising from Purchaser’s products, misuse or alteration of the Goods, or design of Goods selected by Purchaser. In all events, the indemnified party must:
(a) promptly notify the indemnifying party in writing of the claim; and
(b) allow the indemnifying party to control, and cooperate in the defense and any related settlement negotiations.
The foregoing provisions state the entire liability and obligation of seller, and the exclusive remedy of purchaser and its customers with respect to the alleged infringement of patent, copyright, trade secret or other intellectual property of a third party by any and all goods sold to purchaser.
10. Disclaimer and Limitation of Liability
Seller’s liability for warranty claims will be limited to replacement of any Goods damaged unnecessarily during testing by Seller or a refund of the purchase price of the Goods, at Seller’s sole option, as set forth in paragraph 9 above. In no event will Seller be liable for costs of procurement of substituted Goods by Purchaser. As between seller and purchaser generally, it is the intent of seller to limit its liability to purchaser to direct contract damages to the fullest extent of the law. Seller shall not be liable for any special, consequential, incidental, or other damages, loss, expenses, or personal injury directly or indirectly arising from the use of seller’s goods separately or in combination with any other equipment or materials, including without limitation loss of profit, whether or not seller has been advised of the possibility of such loss however caused, whether for breach or repudiation of contract, breach of warranty, negligence or otherwise. As between purchaser and seller for breaches of any part of this Sales Contract other than Seller’s indemnity for infringement, Seller’s aggregate liability to purchaser hereunder shall be limited to the aggregate price paid by purchaser to the date of the claim hereunder. In no event will the damage liability of seller for such breaches exceed in the aggregate the amounts paid hereunder. The aggregate liability limitations of this section shall apply to all causes of action (including without limitation tort, contract and administrative actions or claims) and notwithstanding any failure of essential purpose of any limited remedy. As to third-party indemnification obligation by Seller under Section 11 hereof, Seller’s liability to Purchaser shall not exceed the invoiced value of the service provided in the aggregate for infringement of Goods delivered under this Sales Contract.
11. Liability Exclusions
Under no circumstances is Seller liable for any of the following:
a) Third-party claims against Purchaser for losses or damages other than those in set forth herein
b) Loss of, or damage to Purchaser’s or another’s records or data
c) Personal injury or death resulting from Seller’s products
d) Use of a good for purposes expressly excluded by Seller, or
e) Economic consequential damages (including lost profits or savings) or incidental damages, even if Seller is informed of their possibility.
12. Notice Procedure and Address
Any notice, request, demand or other communication required or permitted hereunder shall be deemed sufficiently given and effective when sent if set forth in writing and sent by e-mail transmission and an email reply or acknowledgement (automated or otherwise) is returned from the addressee, a nationally recognized overnight courier with shipment tracking capability, registered mail or certified mail with return receipt requested, provided that postage shall be prepaid, or facsimile transmission, if evidence of the receipt of such facsimile transmission by the addressee is received by the sender, addressed as follows: The address for notices required hereunder shall be, in the case of Purchaser, the “ship to” address or “billing” address on the Sales Order and in the case of Purchaser, the Purchaser’s address specified in the Sales Order or the following address: White Horse Laboratories, Limited, Unit 905, 9/F Tsuen Wan Industrial Center, 220- 248 Texaco Road, Tsuen Wan, N.T. Hong Kong.
13. Force Majeure
Seller shall not be responsible for delays in producing, procuring, or delivering the Goods caused by: acts of God, fires, war, terrorism, riot or insurrection, strikes or differences with or among workmen, government interference, inability to secure transportation, weather conditions, timing of deliveries from Seller’s vendors or suppliers, or other contingencies beyond Seller’s control. Should any of the foregoing conditions continue for a period of thirty (30) days after its first occurrence, Seller may cancel the Sales Order without incurring any liability to Purchaser.
14. Remedies and Waiver
All rights and remedies of Seller under this Sales Contract shall be cumulative and in addition to any other rights and remedies available to Seller under any other valid agreement with Purchaser or any applicable law. Any concession or indulgence made by the Seller or Seller’s failure to insist on performance of any of the terms and conditions hereto shall not be considered a waiver of any other term, whether the same or similar. No waiver by Seller of any default or provision hereof shall be deemed a waiver of any subsequent default or provision. No waiver or any breach of any of the provisions of this Sales Contract shall be deemed a waiver of any other sales order, contract or further breach of this Sales Contract.
If any provision of this Sales Contract shall be found invalid, illegal, or unenforceable to any extent, the remainder of this Sales Contract and its application shall not be affected, and shall remain enforceable to the fullest extent permitted by law.
16. Disputes – Governing Law and Venue
This Sales Contract is to be construed and interpreted according to the laws of the Hong Kong Special Administrative Region of the Peoples Republic of China, excluding its conflict of laws provisions. The provisions of the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Sales Contract. The parties agree that any claim asserted in any legal proceeding by one party against the other shall be commenced and maintained in the courts of Hong Kong. Both parties hereby submit to the jurisdiction of such courts over each of them personally in connection with such litigation, and waive any objection to venue in such courts and any claim that such forum is an inconvenient forum. The English language version of this Sales Contract controls when interpreting its terms. The parties agree that any or all of them may file a copy of this Section with any court as written evidence of the knowing, voluntary, and bargained agreement between the parties to irrevocably waive any objections to venue or to convenience of forum. Process in any proceeding referred to in this Section may be served on any party anywhere in the world. Reasonable attorney fees and costs will be awarded to the prevailing party in the event of litigation involving the enforcement or interpretation of this Sales Contract.
It may be necessary during the performance of this Sales Contract for the parties to exchange proprietary or confidential information (“Confidential Information”). Each party agrees to use the same degree of care to protect the confidentiality of the Confidential Information and to prevent its unauthorized use or dissemination as it uses to protect its own confidential information of a similar nature, provided that the information is marked in writing as “confidential” or, if disclosed by means other than writing, the information is summarized in writing, marked “confidential”, and delivered to the other party within thirty (30) days of the disclosure. Each party agrees to use the Confidential Information only for purposes related to the performance of this Sales Contract. Purchaser agrees that Goods pricing, specifications, and other information are confidential information of Seller, regardless of whether such information is marked or otherwise identified as confidential. All Confidential Information remains the property of the party disclosing the information and, except as otherwise provided herein, no license or other rights to Confidential Information is granted or implied hereby.
18. Counterparts and Facsimile Signatures
This Sales Contract may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument. Transmission of a signed copy of this Sales Contract by facsimile or email will have the same effect as delivery of a signed original.
10 May 2011