The terms and conditions set out below (“Terms and Conditions”) shall apply to the Sale and Shipment of Goods by the “SELLER” to the “BUYER” (as respectively appear in our sales order, sales contract or proforma invoice as the case may be, “Sales Contract”), save where the parties have executed a written master distribution agreement substantially on SELLER’s terms, in which event the terms of the distribution agreement shall apply.
These Terms and Conditions are subject to change without prior notice. The prevailing Terms and Conditions at the time of SELLER’s acceptance of the BUYER’s offer shall apply.
1. Acceptance. The BUYER’s offer constituted by its order(s) (whether by way of Purchase Order(s) or otherwise) is accepted by the Seller upon issuance of the Sales Contract subject always to these Terms and Conditions and particulars of the Sales Contract. The Buyer agrees that notwithstanding the offeree stated in its offer, an affiliate of the offeree (including but not restricted to Universal Products Solutions Limited) may accept its offer as Seller, in which event the Sales Contract shall be deemed to have been entered into between the Buyer and the said affiliate as Seller. Orders must be submitted by email or such online system as may be provided. Each order shall specify the quantity of each product that the Buyer wishes to purchase, including the spare parts (if any) to be supplied as part of the limited warranty offered by the Seller as set out herein (“Spare Parts”), and the date(s) requested for delivery. No order shall be binding on Seller until it has been accepted by email or by other written communication from Seller in the form of the Sales Contract. The price, payment terms, quantity of the goods to be supplied under the Sales Contract (“Goods”) and shipping date(s) and terms shall be as stated in the Sales Contract. Any terms and conditions put forth by the BUYER whether as stated in, annexed to or accompanying the BUYER’s Purchase Order(s), Acceptance papers to Sales Contract or otherwise and whether prior to or subsequent to the SELLER’s acceptance of the BUYER’s offer, shall have no effect whatsoever or are otherwise superseded in the entirety.
The Buyer acknowledges and agrees that the Goods are made to its order and, therefore, the Sales Contract may not be cancelled except as specifically set forth in this provision. Notwithstanding the entering into of a Sales Contract as aforesaid, the Buyer may give written notice of cancellation of the Sales Contract within forty-eight (48) business hours following Seller’s issuance of the Sales Contract. Such cancellation notice shall be transmitted by facsimile or electronic mail or electronic data exchange and shall only be effective upon the Seller’s written confirmation to the Buyer of acceptance of the cancellation notice. For avoiding doubt, it shall be the Buyer’s sole responsibility to ensure that the cancellation notice is successfully received by the Seller.
2. Prices. The prices set out in any price list provided to Buyer or otherwise published are for reference only and may be adjusted by Seller without notice from time to time. Prices specified in the Sales Contract are conclusive and are not subject to change, and shall supersede the prices on the respective Purchase Order(s) past or subsequent or future.
3. Payment Terms.
(1) Unless otherwise agreed in writing, all payments by Buyer hereunder shall be made in [USD] or such other currency as the parties may mutually agree upon from time to time, without any deduction, withholding or set-off of any kind on the date, or within the period, specified for payment in the Sales Contract. Payments shall be made by electronic bank transfer into such bank account as Seller may from time to time nominate. Seller may alter the payment terms at any time on at least fifteen (15) days’ notice. In the event that Buyer pays Seller via a Letter of Credit, the terms of the Letter of Credit must be approved in advance by Seller and any bank charges which would otherwise be incurred by Seller shall be paid, or reimbursed, by Buyer. If Buyer does not make payment in full against the Sales Contract within ten (10) Working Days, Seller shall be entitled to immediately terminate this Sales Contract and other Sales Contracts by written notice.
(2) All payments are exclusive of any value added tax, and any other tax, duty or impost, which shall be payable by Buyer at the rate and in the manner from time to time prescribed by law. Specifically but without limitation, Buyer shall pay all excise, transfer, duties and other taxes if FOB Interco term is stipulated in the Sales Contract.
(3) Where credit has been granted, and Buyer is overdue with any payment hereunder:
(a) Buyer shall be liable to pay interest to Seller on the overdue amount at the rate of one per cent (1%) per month, which interest shall accrue on a daily basis from the date payment becomes overdue until Seller has received payment of the overdue amount together with all interest that has accrued; and
(b) Seller shall have the right, at its option, to suspend supply of the Goods until Seller has received payment of the overdue amount together with all interest that has accrued or, if payment is not made within ninety (90) days of the due date, to terminate this Sales Contract and other Sales Contracts immediately by written notice.
(c) Seller shall have the right to offset against any amounts Seller may owe, or otherwise be liable, to Buyer.
4. Shipping. Seller shall properly pack and ship the Goods in accordance industry standards prevailing at the place of origin of the Goods (which shall be at Seller’s sole discretion). Seller shall be responsible for all charges relating to handling, packaging and transportation up to the port of origin for orders quoted with FOB interco term in the Sales Contract, unless otherwise agreed in writing by the parties. Buyer is solely responsible for all other costs beyond the point of Seller’s responsibility.
(1) Unless otherwise agreed in writing, supply of the Goods shall be conditional upon the full amount and condition stated on the Sales Contract having been received by Seller into the account specified by the Seller. Subject to such receipt, Seller shall use reasonable endeavours to deliver the Goods in accordance with its standard delivery times. Seller will provide a draft shipment plan in the Sales Contract and advise Buyer of the estimated shipping schedule including shipping / delivery dates subsequently from time to time (the “Shipping Schedule”). Buyer acknowledges and agrees that the Shipping Schedule is non-binding and subject to reasonable revision by the Seller from time to time. Without limitation, Buyer acknowledges and agrees that manufacture of the Goods shall commence only upon payment of the deposit, if required by the payment terms, and the Shipping Schedule shall be revised according to circumstances prevailing after payment of the deposit. Seller may advise Buyer of the Shipping Schedule in writing, verbally, facsimile transmission or through electronic mail or electronic data exchange.
(2) Buyer or its designated carrier on Buyer’s behalf shall take delivery of the Goods on the actual delivery date. If Buyer fails to take delivery of the Goods within five (5) Working Days thereof, Seller shall be entitled to store such Goods at Buyer’s cost. If Buyer does not accept the Goods within a further sixty (60) Working Days, Seller shall be entitled to immediately terminate this Sale Contract and other Sale Contracts by written notice and dispose of the Goods as it sees fit.
(3) Buyer shall designate its carrier within 5 Working Days after notification of the Shipping Schedule. If the Buyer fails to do so, Seller at its option may designate its forwarder or carrier at Buyer’s cost.
(4) Buyer shall, within seven (7) calendar days of delivery, inspect all Goods and give written notice to Seller and the carrier of any damage to the Goods, shortfall in quantity or otherwise non-conformity with its order, together with particulars thereof. If Buyer fails to give such notice, the Goods shall be deemed to have been accepted by Buyer for all purposes of the Sales Contract. Any defect identified by the Buyer upon inspection shall be dealt with in accordance with and subject to the limited warranty set out in clause 12 below.
6. Force Majeure. Without prejudice to paragraph 5 above, Seller may delay shipping or delivery of the Goods and for that purpose shall be entitled not to adhere to the Shipping Schedule, if necessitated due to reasons beyond its control. In such circumstances (i) Seller will update the Shipping Schedule when the force majeure event occasioning the delay has been removed; and (ii) Seller has additional right to terminate the Sales Contract without any remedy or compensation to the Buyer. Buyer, except in the case of Force Majeure provided herewith, cannot cancel any Sales Contract once its offer is accepted by the Seller. Force majeure events include fire, flood, hurricane, tornado, earthquake, war, acts of terrorism, embargo, riot or an unforeseeable intervention of any government authority.
7. Risk of Loss. Seller is responsible for risk of loss under the Sales Contract up to the port of origin for orders quoted with FOB interco term in Sales Contract. Regardless of who designates the carrier, Buyer shall bear the risk of loss beyond the point of Seller’s responsibility set out herein.
8. Notwithstanding the foregoing clause, title to the Goods shall not pass to the Buyer until the Seller receives payment in full for the Goods. In respect of any Goods that the Seller has supplied to the Buyer for which payment has become due, title to the Goods shall pass at the time of payment of all sums due. Seller reserves the immediate right of repossession of any Goods which have not been paid for to which Seller has retained title exercisable at any time after the due date for payment. Seller shall be entitled to use or dispose of such Goods as it wishes. Buyer hereby grants, and shall use all reasonable endeavours to procure that any third party which holds such Goods shall grant, an irrevocable right and license to the Seller’s employees, agents and contractors to enter upon all or any premises where Goods are stored without prior notice for the purpose of exercising its rights under this Clause. Buyer shall in respect of any Goods which have been supplied but for which title has not passed:
(1) hold the Goods securely on Seller’s behalf and as bailee, and segregate the Goods from non-Seller goods, follow any instructions received from Seller relating to the Goods, and not part with the Goods other than in the ordinary course of sale pursuant to these Terms and Conditions;
(2) keep the Goods adequately insured against risk of theft, loss or damage at its own expense;
(3) not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and
(4) make the Goods available for inspection by Seller upon request, and additionally, Buyer further hereby grants Seller, including any of its designated agents or contractors the right to enter the Buyer’s premises within customary business hours, without notice, to inspect the Goods.
9. Right to distribute. Buyer acknowledges that the Goods are manufactured and/or supplied by Seller either under its own brand name (such as “Quilo” and “Airtek”) or under license granted by a third-party licensor such as Honeywell (“third party licensor”) and are purchased by the Buyer for the purpose of sale and distribution in the place of delivery of the Goods only (“Territory”). Seller hereby grants to Buyer, and Buyer hereby accepts, the following right:
(1) the non-exclusive right to import, commercialize, market, promote, sell and distribute the Goods in the Territory; and
(2) a non-exclusive, revocable right to use the name, brand name and trademark of the Seller or the third-party licensor (as the case may be) relevant to the Goods (collectively, the “Trade Mark”) within the Territory solely for the purposes of marketing, promoting, selling and distributing the Goods in the Territory, subject always to the restrictions and Buyer’s obligations set out in clause 14 below and any restriction set out in any license between Seller and the third-party licensor notified by Seller from time to time.
10. Buyer’s obligations as distributor.
(1) Buyer acknowledges that it has no right in or to the Trademark other than the limited license as provided in the aforesaid Clause, and Buyer shall not use the Trademark in any manner other than for the purpose set out in the aforesaid Clause. Buyer hereby agrees and acknowledges that at no time, now and into the future, and under no circumstances and in no manner whatsoever, can any rights in, or to use, the Trademark arise on its part, or that of its principals, or associated companies other than as provided herein. For avoidance of any doubt, this provision is not subject to waiver by Seller, or modification by conduct or otherwise, at any time. If Buyer breaches this provision, Seller shall be entitled to terminate this Sales Contract and other Sales Contracts entered into with the Buyer immediately (including the right to sell or distribute the Goods).
(2) Buyer shall not make any warranty, representation or other promise concerning the Goods except as approved in writing by Seller. Buyer shall ensure that any Goods sold shall be fully in accordance with Seller’s specifications and quality standards.
(3) Buyer (including its principals) represents and warrants that it is legally qualified in the Territory to perform its rights and obligations as contemplated herein.
11. Buyer’s right to appoint retailers. Buyer may appoint sub-distributors and retailers (collectively “Retailers”) within the Territory to supply the Goods to end consumers (“End User”) within the Territory on terms that conform to these Terms and Conditions. Buyer shall remain fully responsible for the acts or omissions of the Retailers as if they were the Buyer’s acts or omissions hereunder. Without limitation, in the event of an act or omission by a Retailer which could adversely affect the Seller’s and/or third-party licensor’s Intellectual Property Rights, or otherwise conflicts with the restrictions contained in the Sales Contract as to the Trademark, Buyer shall use best endeavours to cause the Retailer to cease the act or omission and shall provide reassurance, satisfactory to the Seller, that the act or omission will not recur. If Buyer fails to comply with these requirements promptly, or in the event of a recurrence of non-compliance by the same Retailer, or a pattern of non-observance of these requirements by one or more Retailers, Buyer shall upon the Seller’s request immediately terminate its business relationship with the Retailer or Retailers in question. If Buyer fails to do so, Seller shall be entitled to terminate this Sales Contract and other Sales Contracts entered into with the Buyer immediately (including the right to distribute the Goods).
12. Limited Warranty.
(1) The limited warranty herein is given by Seller to Buyer only and not to the End User, Retailer or any other person or entity, and only in respect of Goods sold and/or distributed outside the United States. The warranty given herein applies only to manufacturing defects, subject to the terms herein. Buyer acknowledges and agrees that in respect of Goods sold and/or distributed in the United States, the warranty (if any) shall be given by Seller to the End User directly subject to the terms and conditions thereof.
(2) Seller warrants only that the Goods which it sells to Buyer shall be free from material manufacturing defects and shall be fit for the purposes intended as specified on packaging for the individual Goods (“Warranty”) for the period of 12 months (or the minimum period required under mandatory laws of the jurisdiction where the Products were sold to Buyer, whichever is longer) from the date of shipment of such Goods according to the Sales Contract (“Warranty Period”). ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE HEREBY EXPRESSLY WAIVED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(3) Buyer must make and report all claims under the Warranty (“Claims”) to Seller using the report template or format and containing such information and materials as agreed with or acceptable to Seller. Buyer shall, on request, provide a description of the defect, photographs or a sketch, details of the End User, Retailer and the Batch Number from the product label. Buyer shall safely store any Goods subject to the Claims until Seller inspects the Goods in person or gives further instructions to Buyer. On request, Buyer must (at Seller’s expense) return to Seller all such Goods and/or (at Buyer’s own expense) dispose of such Goods and provide a certificate of destruction.
(4) In the event that the Goods subject to the Claim is/are proven to be defective and falling within the Warranty (“Defective Product”), Seller’s sole responsibility is to provide such spare parts (including the Spare Parts) for the repairs, subject always to the availability of such spare parts in its inventory or third party suppliers of the same. Notwitstanding the foregoing, Seller may at its option and at its own cost, in its absolute discretion, provide unit(s) to replace the Defective Product (whether an identical model or, where a particular product is no longer in production, a substitute model of equivalent or similar quality and value as the Defective Product).
(5) The foregoing sub-clause (4) constitutes Buyer’s sole and exclusive remedy for any Defective Products. BUYER HEREBY WAIVES ANY OTHER CLAIM OR REMEDY, AND SELLER SHALL NOT BE LIABLE FOR, ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED SALES OR PROFITS OR OTHERWISE WHETHER SUCH CLAIM IS STATED IN CONTRACT, TORT, OR OTHERWISE, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE SELLER BE LIABLE FOR ANY REASON OR CAUSE WHATSOEVER (WHETHER BASED ON BREACH OF CONTRACT, TORT OR OTHERWISE) IN EXCESS OF THE AMOUNT PAID FOR THE PRODUCT CAUSING THE ALLEGED DAMAGE.
(6) Seller’s obligations under the Warranty do not apply to any Goods that have been (i) subjected to misuse, neglect or accident, including causes external to the Goods, (ii) altered (other than by Seller) in such a manner as to affect adversely its performance, stability or reliability, (iii) subjected to environmental stress beyond design specifications, (iv) used for any purpose other than for what it was designed or (v) used with equipment, supplies or materials not meeting specifications. The foregoing liability limitations shall apply to Goods shipped and invoiced directly to Buyer’s customers, Retailers or End Users as well, and Buyer shall indemnify and hold Seller harmless from any claim by any such customer, Retailer or End User contrary to the foregoing liability limitations. An essential purpose of the limited exclusive liabilities and remedies in this Sales Contract is allocation of risks between Seller and Buyer, which allocation of risks is reflected in the purchase price for the Goods.
(7) Buyer is solely and fully responsible for fulfilling any and all warranties it gives to the End Users and/or Retailers and/or other contractual or statutory obligations owing to them, and for the compliance of such Goods with statutory or other legal standards in the Territory.
13. Indemnification. Buyer shall indemnify and hold harmless Seller, its successors and assigns, officers, directors, shareholders, customers, and third-party licensors (the “Indemnified Parties”) from and against all claims, losses, damages (including consequential, punitive and/or exemplary damages), liabilities, costs and other expenses of every kind (including, but not limited to, reasonable legal fees and expenses) (all of the foregoing collectively hereinafter referred to as “Indemnified Expenses”) incurred by any of the Indemnified Parties arising from or in connection with (1) the Buyer’s performance, non-performance or breach of the Sales Contract, (2) any misstatements, misrepresentations, inaccuracies and/or wilful omissions by the Buyer to the Seller, the Buyer’s Retailers, End Users and/or other persons or entities, in respect of the Buyer’s company, the Goods and/or the specifications, features and functions thereof (other than statements made based on written specifications of the Goods provided by or with written approval of Seller), (3) any acts of its Retailers, sub-distributors, dealers, stores or any other entity acquiring the Goods from the Buyer for resale relating to the marketing promotion, online sales, distribution and sale of the Goods, (4) any warranty given by the Buyer to the Retailers and/or End Users, (5) any infringement or unauthorized used of the Trademark, (6) any breach of contractual or statutory obligations owing by the Buyer to the Retailers and/or End Users and/or (7) non-compliance of the Goods with statutory or other legal standards in the Territory. Buyer shall further ensure that its use (including distribution and sales) in the country(ies) of import shall not infringe any patent, trademark, copyright, or other intellectual property right and shall also defend, indemnify and hold the Indemnified Parties harmless from and against all Indemnified Expenses arising from any allegation or action for direct or contributory infringement of any patent, trademark, copyright, or other intellectual property right arising from or in connection with such use. The indemnification set forth above shall not be deemed in any way to limit any other rights of indemnity to which the Indemnified Parties may be entitled by operation of law or otherwise.
14. Intellectual Property Rights.
(1) Buyer acknowledges that all intellectual property rights in and relating to the Goods belong to and shall remain with Seller and/or its third-party licensors (“Intellectual Property Rights”) and Buyer shall acquire no right, title or interest in or to the same, other than a limited license as provided herein. Buyer undertakes immediately to bring to the notice of Seller any threatened or actual infringement of or challenge to such Intellectual Property Rights which may come to Buyer’s notice and, at Seller’s expense, to give every assistance reasonably requested by Seller in taking action of whatever nature to defend such Intellectual Property Rights.
(2) Buyer shall not copy or otherwise reproduce the Goods or any related materials supplied, or use any of the Intellectual Property Rights, except as expressly permitted hereunder, without Seller’s prior written consent and, without prejudice to the foregoing, any reproductions of the Intellectual Property Rights shall be in accordance with Seller’s requirements, as the same may be changed from time to time. At no time may Buyer use the Trademark save as set out in clause 9(2) above.
(3) Buyer shall not create, apply for or register or attempt to register as a trade mark, service mark, internet domain name, company name, business name or otherwise, anything containing any Trademark or any other trade mark which is, in Seller’s opinion, identical or confusingly similar to the Trademark without Seller’s written consent. Without prejudice to the foregoing, in the event that an internet domain name registered by Buyer contains any Trademark, Buyer shall, upon the request of Seller, and without reimbursement, transfer all ownership rights in the internet domain name to Seller within fifteen (15) Working Days of said request, and Buyer acknowledges that, until such ownership rights are transferred to Seller, Buyer shall hold the rights in the internet domain name on trust for Seller.
(4) Buyer shall not use or apply any trademarks, trade or business names, indicia or logos belonging to Seller or third parties (including, without limitation, the Trademark), or make any reference to Seller, third-party licensors or brands by name in any publicity or other material, except in accordance with Seller’s requirements, as the same may be changed from time to time in writing. Upon Seller’s request at any time, Buyer shall cease to use or apply any such trademarks, etc.
(5) All marketing or promotional materials or statements, in any format or media whatsoever (including business cards), which identify or feature the goods marketed or supplied by Seller and/or bear the Trademark must be approved by Seller before use. Upon Seller’s request at any time, Buyer shall cease to display, disseminate, distribute or make available to the public any such marketing or promotional materials or statements.
(6) All research, designs, products, improvements, enhancements, developments, models, prototypes, samples, packaging, labeling, drawings, schematics, inventions, technology, specifications, studies, reports, testing, software, programs, systems, literature, brochures, advertising, promotional and marketing materials, and other intellectual property, trade secrets, and proprietary materials developed by or for Buyer, or by its employees, consultants, agents, representatives, distributors, sub-distributors, retailers or others under its authorization and/or control, shall be deemed for the benefit of, and shall be owned by, and become the intellectual property and proprietary rights of Seller, and Buyer shall execute, deliver and file all necessary assignments of rights and authorship and other documents and instruments as requested by Seller as reasonably necessary or desirable to obtain, perfect, and maintain such intellectual property and proprietary rights in the name of Seller and at the expense of Seller.
(7) Buyer shall not develop, produce, sell, market, advertise or utilize any trademark, brand name, for any products that are competitive with, or the functional equivalents of, any products marketed under the Intellectual Property Rights or the Trademark.
15. Confidential Information. Buyer shall consider all information furnished by Seller (including without limitation price, specifications and intellectual property information) to be confidential and shall not without written permission from Seller disclose any such information to any other person or use such information for any purpose other than fulfilling an order, unless compelled by law to make such disclosure.
(1) Without prejudice to any express right of termination provided elsewhere in these Terms and Conditions (including Clauses 10(1) and 11 above), Seller may terminate this Sales Contract and other Sales Contracts entered into with the Buyer in respect of the Goods (including any right to distribute) immediately by written notice to the Buyer if:
(a) the Buyer commits a breach of the Sales Contract which it does not remedy (if remediable) within thirty (30) days of receiving written notice of the breach; or
(b) the Buyer ceases to do business or is unable to pay its debts when due, becomes or is deemed insolvent, has a receiver, manager, administrator or administrative receiver appointed in respect of the whole or any part of its assets or business, makes any composition or arrangement with its creditors, or takes or suffers any similar action in consequence of debt, or an order or resolution is made for its dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction) or suffers or undergoes any analogous proceedings or procedures in any jurisdiction in which it carries on business or maintains an entity or branch; or
(c) if Seller is no longer authorized to license out the Trademark to Buyer as contemplated under the Sales Contract for any reason.
(d) Buyer undergoes any change of controlling shareholder and/or board of directors and/or person (as the case may be). Buyer is obliged to give written notice to Seller in advance of such change;
(e) Buyer or any associated company produces or distributes products which in Seller’s reasonable opinion compete with or copy in whole or in part, any of the Goods;
(2) Upon termination of the Sales Contract for any reason:
(a) Buyer shall immediately cease to represent itself as having any right to distribute the Goods and shall return to Seller or destroy (at Seller’s option but at Buyer’s expense) all marketing and promotional materials or property of Seller then in its possession or control.
(b) Seller may, at its option:
(i) cancel any unfulfilled order for the Goods or reassign any unfulfilled order to another buyer, and/or
(ii) buy back any Goods that have not been sold by Buyer at the invoice price of those Goods or Seller’s then current net price to Buyer, whichever is lower, such option to be exercised by Seller within thirty (30) days of the date of termination of the Sales Contract. Credit for the repurchased Goods shall be subject to a 20% restocking charges. For avoiding doubt, such option is exercisable in Seller’s absolute discretion and Seller shall have no obligation whatsoever to repurchase any Goods from Buyer under any Sales Contract.
(3) If, upon termination of the Sales Contract, a stock of the Goods which were previously sold to Buyer pursuant to the Sales Contract remains with Buyer (the “Unsold Products”) and Seller has not elected to repurchase such Unsold Products, Buyer may continue to market, sell and distribute the Unsold Products during a period of twelve (12) months following the termination of the Sales Contract.
(4) Termination shall be without prejudice to the accrued rights of either party at the termination date.
17. Governing Law. The construction, validity and performance of the Sales Contract and all non-contractual obligations arising from or connected with this Sales Contract shall be governed by and construed in accordance with Hong Kong law and shall be referred to and finally resolved by arbitration in Hong Kong in accordance with the Administered Arbitration Rules of the Hong Kong International Arbitration Centre (“HKIAC Rules”) in force at the time a request for arbitration is made. The Tribunal shall consist of one (1) arbitrator, to be selected and appointed by the HKIAC. The language of the arbitration shall be English. Buyer agrees that Seller shall be entitled to seek injunctive and/or equitable relief in any court of competent jurisdiction, without the need to post a bond, security, or other collateral or prove special damages. Such shall include without limitation seeking injunctive relief to restrain any such breach or violation by Buyer or its associated companies with respect to any actual or potential infringement of Intellectual Property Rights and Trademark.
18. Limitation on Seller’s Liability. In no event shall Seller be liable for loss of profits (whether as direct or special damages), or for any incidental, indirect or consequential losses or damages. Seller’s liability on any claim founded upon any cause of action whatsoever (whether in contract, tort, negligence or otherwise) for loss or damage arising out of or in connection with any and all Sales Contracts entered into between Seller and Buyer or from the performance, non-performance or breach thereof shall in no case exceed US$200,000 in aggregate. Seller shall not be liable for penalties of any description.
19. Setoff. Unless Seller’s approved Credit Note is issued to the Buyer and unapplied, Seller does not allow any legal or equitable set-off of claims against Buyer against money or liability due or becoming due to Buyer by reason of any counterclaim or cause of action arising out of this or any other transaction with Seller.
20. Severability. If any term of this Sales Contract is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law (“Governing Law”), such term shall be deemed reformed or deleted but only to the extent necessary to comply with such Governing Law and the remaining provisions of this order shall remain in full force and effect.
21. No Waiver. Seller’s failure to insist on performance of or remedy of any breach of any of these terms or conditions or to exercise any right or privilege, or Seller’s waiver (which shall be in writing) of any breach hereunder, shall not constitute a waiver thereafter of any continuing non-performance or breach of the same terms or of any other term, condition or privilege, whether of the same or similar type.
22. Seller reserves the right to transfer, novate, assign, sub contract or sub-license the Sales Contract or any of its rights or obligations hereunder. Except as provided in these Terms and Conditions, Buyer may not transfer, novate, assign, sub-contract or sub-license the Sales Contract or any of its rights or obligations hereunder without the prior written consent of Seller.
23. Provisions of these Terms and Conditions which either are expressed to survive its expiry or termination or from their nature or context it is contemplated that they are to survive such termination, shall remain in full force and effect notwithstanding such expiry or termination. Specifically but without limitation, the provisions of Clauses 7, 8, 12, 13, 14, 15 and 18 shall survive termination of the Sales Contract.
24. The relationship of the parties is that of independent contractors dealing at arm’s length. Except as otherwise stated in these Terms and Conditions, nothing in the Sales Contract shall constitute the parties as partners, joint venturers or co-owners, or constitute either party as the agent, employee or representative of the other, or empower either party to act for, bind or otherwise create or assume any obligation on behalf of the other, and neither party shall hold itself out as having authority to do the same. For avoiding doubt, unless expressly stated in the Sales Contract, the Seller enters into contract on behalf of itself only and not as agent of another.
25. Entire Agreement. These Terms and Conditions, together with the particulars (description, quantity, price, terms, Shipping Schedule) contained in the Sales Contract, constitute the final, complete and exclusive agreement between the parties and supersede all prior and contemporaneous oral representations and agreements. THE SALES CONTRACT SETS FORTH THE FULL EXTENT OF SELLER’S OBLIGATIONS AND LIABILITIES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY COLLATERAL CONTRACT AND THERE ARE NO CONDITIONS, WARRANTIES, REPRESENTATIONS OR TERMS, EXPRESS OR IMPLIED THAT ARE BINDING ON SELLER EXCEPT AS SPECIFICALLY STATED IN THIS SALES CONTRACT. ANY CONDITION, WARRANTY, REPRESENTATION OR TERM WHICH MIGHT OTHERWISE BE IMPLIED INTO OR INCORPORATED IN THIS AGREEMENT OR ANY COLLATERAL CONTRACT, WHETHER BY STATUTE, COMMON LAW OR OTHERWISE, IS HEREBY EXPRESSLY EXCLUDED. The terms of the Sales Contract (including these Terms and Conditions) may not be varied or amended unless specifically agreed by both parties in writing. No course of dealings between the parties and no usage of trade shall be relevant or admissible to determine the meaning of Seller’s Sales Contract or these terms, even though the accepting or acquiescing party has knowledge of the nature of the performance and opportunity for objection.