GENERAL TERMS AND CONDITIONS – PURCHASE OF MATERIALS / EQUIPMENTS
In these General Terms and Conditions, “Purchaser” shall mean EFT-Craft Co., Ltd, listed on the face of the Purchase Order.
1. NO ALTERATION
The contract formed based upon this Purchase Order is expressly limited to the terms and conditions contained in this document. No alteration of any of the terms, conditions, delivery arrangements, unit rates, quality, or specifications of this Purchase Order will be effective without the express written consent of Purchaser. For clarity, only the terms and conditions of this document will be applicable to Purchase Orders issued by EFT-Craft Co., Ltd, and will supersede any terms and conditions offered in quotations or other such documentation submitted by the Supplier, even if a copy of the quotation or such documentation is attached to the Purchase Order or the quotation is referenced in the Purchase Order.
The Supplier undertakes to supply all the materials and or equipment listed in the Purchase Order placed by the Purchaser to fulfill the aforesaid Purchase Order according to these General Purchase Conditions and in accordance with any Technical or Performance Specification referenced in the Purchase Order.
3. PURCHASE ORDER ACCEPTANCE
This Purchase Order is Purchaser’s offer to Supplier. When Supplier accepts this Purchase Order, by signing back, acknowledgement, commencement of performance, or by delivery of any items ordered, it shall be a binding contract.
The quantities shown in this Purchase Order are based on information or drawings supplied and are estimates only, and the Purchaser shall make payment for the actual quantities supplied by the Supplier. However, should the supplied quantity exceed the Purchase Order quantity, the supplier shall inform the Purchaser in writing, otherwise, the Purchaser will not be responsible for the additional cost. For clarity, the Purchaser will not pay over the PO value; if it is agreed that there are additional quantities, only upon agreement will the Purchaser issue an amended PO or a new PO to cover.
Supplier shall submit to the Purchaser a properly executed "Bill Invoice" at the Purchaser's business office, in accordance with the payment terms of this Purchase Order. The Supplier agrees that the Purchaser will hold 7.5% of the PO sum until the Supplier has handed to the Purchaser his original warranty in the agreed format.
The Supplier shall be responsible for providing submittals/samples required by the Purchaser under the Main Contract to allow proper approval and/or review duration, so as to not hinder the delivery sequence.
The Purchaser reserves the right at any time to make changes as follows:
a) specifications, drawings, and data incorporated in this Purchase Order where the items to be furnished are to be specifically manufactured for Purchaser;
b) methods of shipment and packing;
c) place of delivery; and
d) time of delivery.
Any changes made by the Purchaser must be communicated to the Supplier in writing.
If any such change causes an increase or decrease in the cost or the time required for performance of this contract, an equitable adjustment shall be made to the price or delivery schedule, or both. Any claim by the Supplier for adjustment under this provision shall be deemed waived unless asserted in writing within five (5) days from receipt by Supplier of the change.
Time is of the essence in this Purchase Order, and if delivery of goods is not completed to the specified quality or within the specified time, the Purchaser reserves the right, without liability, and in addition to its other rights and remedies, to terminate this Purchase Order by notice effective when received by Supplier as to goods not yet shipped, and to purchase substitute goods elsewhere. Provision for partial delivery of goods, if any, shall not be construed as making the obligations of Supplier severable. The Purchaser will hold the Supplier responsible and liable for any and all losses, costs, and expenses caused by the Supplier and for any delayed receipt by Purchaser of goods, including any liquidated damages imposed on Purchaser. Supplier shall deliver goods according to Purchaser's project schedule. The Supplier shall coordinate all material deliveries with Purchaser's Project Manager.
Goods are subject to the inspection and approval at the Purchaser’s destination by the Purchaser and the Owner/Main Contractor of the project for which the goods are purchased, even though payment may have been made for the goods prior to their arrival. The Purchaser reserves the right to reject and refuse to accept goods which are not in accordance with the requirements of this Purchase Order. The Supplier is responsible for the Purchaser’s cost of inspecting goods that have been rejected. Payment for goods shall not be deemed acceptance of such goods. Materials condemned by the Purchaser, Architect/Engineer or Owner/Main Contractor as failing to conform to the Specification shall upon notice from the Purchaser, be immediately removed by the Supplier. Failure of the Purchaser to immediately condemn any materials as installed shall not in any way waive the Purchaser’s right to object at any subsequent time.
The Supplier warrants that the goods furnished will fully conform with the specifications, drawings, and performance data provided by the Purchaser, the Supplier’s samples approved by the Purchaser, and all other requirements specified by the terms and conditions of this Purchase Order, including such terms and conditions as are incorporated by reference in this Purchase Order, and that the goods furnished will be of merchantable quality and fit for the uses intended by the Purchaser. The Supplier further grants to the Purchaser the identical guarantees and warranties which the Purchaser is required to provide to the Owner/Main Contractor of the project for which the goods are purchased, and if the Purchaser’s contract is not directly with the Owner/Main Contractor, also grants to the Purchaser the identical guarantees and warranties which the Purchaser is required to provide to the contractor with whom the Purchaser contracts and the Owner/Main Contractor of the project. The Supplier’s warranties and guarantees hereunder shall be in addition to any additional warranties and guarantees provided to the Purchaser by the Supplier.
11. RISK OF LOSS
Supplier assumes the risk of loss of all goods until tendered to Purchaser’s possession at the destination specified in this Purchase Order.
12. MATERIALS RETURNS
Supplier will ensure that the goods will be delivered in good condition, and in accordance with the specification and/or drawings. The Supplier agrees to exchange all goods that do not conform and are returned to the Supplier.
13. LANGUAGE AND LAW
a) Unless otherwise expressly stated, the ruling language of the Purchase Order and language for communications shall be the English language. For the avoidance of doubt, in the event there are versions of any part of the documents forming this agreement which are written in more than one language, the English language version shall prevail.
b) This Purchase Order shall be governed by and construed in accordance with the laws and jurisdictions of the Hong Kong Special Administrative Region.
14. DISPUTE RESOLUTION
a) If any dispute, difference or claim (“Dispute”) arises out of or in connection with this agreement, the party which requires the Dispute to be resolved must notify the other party in writing giving details of the nature of the Dispute.
b) Both parties shall endeavor to settle the Dispute amicably and the managing directors of each of the parties (or such other person(s) who may be notified to the other party) shall meet in an attempt to resolve the matter(s) in dispute.
c) If attempts at amicable settlement fail or no attempt at amicable settlement is made within 28 (twenty eight) days of a notice of Dispute having been served, and unless otherwise agreed between the parties, the dispute shall be referred to arbitration in accordance with the Arbitration Rules of The Hong Kong International Arbitration Centre.
d) The place of arbitration shall be Hong Kong.
e) The arbitration shall be conducted in English.
f) The parties shall agree on the appointment of a single arbitrator. If the parties are unable to agree on the appointment of an arbitrator, the arbitrator shall be appointed by the Chairman of The Hong Kong International Arbitration Centre.
g) Notwithstanding the submission of any issue to dispute or arbitration, the parties will continue to perform their obligations under the Purchase Order in accordance with its terms.
h) Notwithstanding the above provision, any arbitration proceedings initiated by the Supplier or the Purchaser may at the request of the Purchaser be held jointly or consolidated with other proceedings connected with the Purchase Order.
Supplier shall not make or offer gifts or gratuities of any kind to Purchaser’s employees, agents or members of their families to secure or influence any business transaction. Violations shall be a material breach of this Contract.
16. TOOLING AND DOCUMENTS
All specifications, drawings or other documents and data furnished by Purchaser and all tools, dies, molds, jigs, fixtures, patterns, machinery, special test equipment, special taps and gauges which have been furnished, paid for, or charged against Purchaser, or which have and their cost amortized shall be deemed Purchaser’s property, treated as Purchaser’s Confidential Information.
Before commencement of any work on Purchaser’s premises, Supplier represents that it has and shall maintain and shall furnish Supplier with certificates of insurance evidencing worker’s compensation insurance, state disability insurance, and such other insurance as Purchaser may reasonably request, and at Purchaser’s request Supplier shall make Purchaser an additional insured on any such policy (other than worker’s compensation or state disability). Supplier shall furnish to Purchaser at Purchaser’s request, a certificate of insurance documenting any of the above-mentioned coverage. All such insurance certificates shall provide that they shall not be cancelled or amended without thirty days prior written notice to Purchaser and shall be with insurance companies reasonably satisfactory to Purchaser. Insurance shall be maintained for the period specified by Purchaser or so long as work on the premises is ongoing. If no period is specified.
18. RIGHT TO SET-OFF
The Purchaser may deduct, set-off or contra charge any debt due or monies payable from the Supplier to the Purchaser from any:
a) monies due or to become due to the Supplier; and
b) Retention monies held by the Purchaser, if any; or
c) monies otherwise due to the Supplier under any other contract or purchase agreement entered into between the Purchaser and Supplier.
The Purchaser may, if the Supplier is in breach of this agreement, employ and pay others to remedy that breach and recover or set-off the loss or cost as a debt due from the Supplier.