Standard Terms of Business for Sales
1. Definitions
- “Affiliate” means in relation to an entity, each and any affiliated, subsidiary or holding company of that entity and each and any subsidiary of a holding company of that entity or any business entity from time to time Controlling, Controlled by, or under common Control with, that entity. Affiliate shall also refer to any affiliates listed as such in the Commercial Terms.
- “Commercial Terms” means the Part I – Commercial Terms that forms part of the Agreement executed by Supplier and Customer.
- “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management, policies or activities of an entity, whether through the ownership of voting securities, by contract or otherwise; and without limiting the foregoing, an entity who owns, directly or indirectly, more than fifty percent (50%) of the voting securities of another entity shall be considered as possessing the power to control such entity
- “Credit Limit” means the credit limit allowed for the Credit Period set out in the Commercial Terms. Any amount beyond the Credit Limit shall be immediately due and payable by Customer upon receipt of the invoice from Supplier.
- “Credit Period” means the credit period allowed for Customer to pay the amounts due and payable as set out in the Commercial Terms.
- “Customer” means the Customer identified in the Purchase Order and where applicable, an Affiliate.
- “Customer Group” means Customer, its Affiliates, and any of its or their outlet(s), branch(es) or distribution venues.
- “Data Protection Legislation” means relevant provisions as outlined in Section 8 hereunder.
- “Delivery Date” means the date that products are to be delivered to Customer as set out in the Purchase Order or Delivery Note.
- “Delivery Location” means the location where the Products will be delivered as set out in the Purchase Order or Delivery Note.
- “Delivery Note” means the delivery note accompanying delivery of the Products delivered by Supplier to Customer evidencing delivery of the Products and includes details such as but not limited to description of Products delivered, quantity of such Products, delivery location
- “Products” means the products to be supplied by Supplier to Customer as set out in the Agreement or applicable Purchase Order.
- “Purchase Order” or “PO” means the Purchase Order (including any schedules or attachments thereto) issued by the Customer and accepted by Supplier, which shall automatically incorporate these Standards Terms of Business for Sale (subject to any specific amendments specified in the Purchase Order).
- “Supplier” means the supplier identified in the Purchase Order.
2. Purchase Order
- Customer may request for delivery of Products under the Agreement by issuing Purchase Order(s) specifying the quantities of the Products Customer wishes to purchase, the Delivery Date and Delivery Location.
- A Purchase Order is only binding upon written acceptance by the Supplier.
3. Price and Payment
- The price of the Products shall be as set out in the Commercial Terms or as otherwise agreed in writing.
- Unless specified otherwise in the invoice, Customer shall pay all amounts due, without set-off, within the Credit Period set out in the Commercial Terms.
- Supplier may charge interest on overdue amounts at a rate of 2% per annum, commencing from the date payment is due and continuing until full payment is made.
- If full payment is not received within the due date, Supplier reserves the right to (i) offset overdue Customer balance against security deposit at any time without notice, and/or (ii) suspend further deliveries until full payment is made.
- Customer acknowledges and agrees that it shall be solely responsible for settling all invoices issued by Supplier. This responsibility extends to subsidiaries, affiliates and outlets in Hong Kong, to whom Supplier delivers Products at the request of Customer. Supplier shall have the right to issue separate invoices to each subsidiary and affiliate as necessary and Customer shall ensure timely settlement of all such invoices within stated payment terms.
4. Delivery and Risk
- Risk of damage or loss of the Product shall pass to the Customer upon completion of delivery at the Delivery Location.
- For sales and accounting purposes, title to and ownership of the Product(s) shall be deemed to have passed to Customer upon completion of delivery. Notwithstanding the foregoing, Supplier shall retain the right to repossess the Products physically if Customer is in default or in breach of any term of this Agreement, including, but not limited to any breach of the payment obligations or credit terms set out. Customer agrees to provide Supplier with reasonable access to the Delivery Location for the purpose of exercising such right, and shall not do anything to obstruct, prevent or hinder Supplier’s exercise thereof.
- Notwithstanding the deemed passage of title under Clause 4(b), and until all amounts outstanding under this Agreement have been paid in full, Customer shall:
- store Products separately and clearly identify Products as Supplier’s property;
- not pledge or encumber the Products; and
- permit the Supplier to repossess the Products upon default.
5. Inspection and Acceptance
- Customer shall inspect the Products upon delivery.
- Any visible defects, shortage or damage shall be notified to Supplier within 7 days of delivery of the Products.
- Failure to notify Supplier within the stipulated timeline shall constitute acceptance of the Products.
6. Product Specifications and Shelf Life
- Supplier warrants that the Products:
- comply with the specifications set out in the Commercial Terms;
- are of satisfactory quality and fit for their ordinary purpose; and
- comply with all applicable laws and regulations in Hong Kong relating to food safety and labelling.
- Except as expressly stated, all other warranties are excluded to the fullest extent permitted by law.
7. Limitation of Liability
- Supplier’s maximum aggregate liability (whether in tort, contract or otherwise) to the Customer under this Agreement or any Purchase Order shall not exceed the payment payable by the Customer to Supplier for the Products supplied in the preceding 12 months under the Agreement.
- Neither party shall be under any liability (whether in tort, contract or otherwise) to the other for any damages for (i) loss of revenue, business or profit or anticipated profit (if any) and/or (ii) consequential, contingent or indirect damages or loss arising from or in connection with any breach of the Agreement or any Purchase Order.
- Nothing in this Agreement excludes or limits liability for death or personal injury caused by negligence, fraud or any other liability that cannot be excluded under Hong Kong law.
8. Data Protection
Should the Customer provide personal data to the Supplier, the Customer will ensure to obtain and share such personal data received in compliance with relevant local Data Protection Legislation, including: ensuring its accuracy (if required), providing information to data subjects about the sharing of their personal data, and obtaining consents (if required).
9. Term and Termination
- The term of the Agreement shall be the contract period set out in the Commercial Terms.
- Either Customer or Supplier may terminate the Agreement:
- at any time without cause by providing at least 30 days’ written notice to the other party;
- for material breach if such breach is not remedied within 30 days of a written notice from the non-defaulting party to the defaulting party of such breach;
- if the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due, admits inability to pay its debts, or enters into any composition or arrangement with its creditors.
- Upon expiry or termination of the Agreement for any reason:
- the Customer shall immediately pay for all Products supplied by Supplier to Customer under the Agreement;
- termination of the Agreement shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination.
10. Force Majeure
Neither party shall be liable for any delay or non-performance under this Agreement where such delay or non-performance is due to causes beyond its reasonable control, including, but not limited to, war, the threat of imminent war, riots or other acts of civil disobedience, insurrection, acts of God, any strikes, lock-outs or other industrial, trade or labour disputes, extreme weather, fires, explosions, storms, floods, lightning, earthquakes, typhoons, epidemics, pandemics, terrorist attacks, or any law, order, rule or regulation of any government or governmental authority.
Notwithstanding the foregoing, the provisions of this clause 10 shall not apply to any obligation of Customer to make any payment due under this Agreement.
11. Confidentiality
- Each party undertakes that it shall not at any time during the term of this Agreement, and for a period of 3 years thereafter, disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party, except as permitted by this clause.
- Each party may disclose the other party’s confidential information:
- to its employees, officers, representatives or advisors on a need-to-know basis for the purpose of exercising the party’s rights or carrying out its obligations under this Agreement, provided that the disclosing party ensures that such persons comply with this clause; or
- as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
- No party shall use any other party’s confidential information for any purpose other than to perform its obligations under this Agreement.
12. Governing law and jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region and the parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of the Hong Kong Special Administrative Region.
13. Acceptance by Conduct
Notwithstanding any failure to execute this Agreement in writing, Customer acknowledges and agrees that placing a sales order from the Supplier during the effective contract period and following receipt of this agreement shall constitute an acceptance of all terms and conditions contained herein. Such conduct by Customer shall be deemed to form a legally binding contract between Customer and Supplier, subject to the terms and conditions of this Agreement.
14. Miscellaneous
- Severability. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
- Waiver. A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default.
- Variation. No variation of this Agreement shall be effective unless it is in writing and signed by or on behalf of each party.
- Counterparts. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement. A counterpart transmitted by electronic means (including email in PDF format) shall be deemed to be an original and shall be effective for all purposes.
