REGENT FINE FURNITURE LIMITED
TERMS AND CONDITIONS OF SALE
1. SCOPE.
These Terms and Conditions of Sale (“Conditions of Sale”) shall apply to all business relations between Regent Fine Furniture Limited (“Seller”) and its customer as identified in each accepted Order (“Purchaser”) regarding the sale and supply of products as set out in the relevant Order (“Products”). Seller and Purchaser are referred herein individually as “Party” and collectively as “Parties.”
Seller’s offer to sell Products to Purchaser or acceptance of Purchaser’s purchase order (“Order”) is expressly conditioned upon Purchaser’s acceptance of these Conditions of Sale. By placing an Order with Seller for acceptance, Purchaser expressly agrees that these Conditions of Sale shall be incorporated in its Order. Seller expressly rejects and objects to all new, different or additional terms of sale submitted by Purchaser in Purchaser’s Order or other documents or communications. Any such new, different or additional terms will not be binding upon Seller unless expressly accepted in writing by Seller. Issuance of an Order shall not represent acceptance of any terms or conditions previously specified by Purchaser, except to the extent that the same shall be in accord with these Conditions of Sale.
Receipt of the Products constitutes Purchaser’s irrevocable acceptance of these Conditions and unconditional agreement to pay the full Sales Price without deduction or delay, regardless of prior objections.
In all communications, Seller and Purchaser may employ their standard forms, but nothing in those forms will be construed to modify or amend these Conditions of Sale, and, in the case of any conflict with the terms of these Conditions of Sale, these Conditions of Sale will control. Any other correspondence from Purchaser, that is in addition to, inconsistent with, or in conflict with these Conditions of Sale, will be of no force or effect unless specifically agreed to in a writing signed by Seller that expressly references such terms. Seller reserves the right to reject any Order. No Order placed with Seller shall be considered as accepted until confirmed by Seller. Once Seller confirms the applicable Order, Purchaser may not cancel all or any part of such Order, except with the prior written consent of Seller. No Order may be changed by Purchaser unless mutually agreed by the Parties in writing.
2. PRICES AND PAYMENT TERMS.
The prices for Products will be Seller’s list prices that are in effect on the date of Seller’s acceptance of the Order (the “Sales Price”); provided however, that the Sales Price for any Product prototype will be the applicable list price multiplied by two (2). All list prices are subject to change by Seller without notice. The Sales Price is exclusive of (i) any tax or other charge on the production, sale or shipment of the Products imposed by federal, state or local governmental authorities, (ii) any bank charges assessed in connection with any payment by Purchaser, (iii) any costs associated with any advance payment guarantee, letter of credit, or bond that is obtained on behalf of Purchaser, plus, in the case of a letter of credit, a two percent (2%) administrative fee (which shall be payable by Purchaser to Seller), and (iv) any bank fees or charges associated with the payment of the Sales Price, and Purchaser shall be responsible for the payment or reimbursement of the foregoing items (i) through (iv).
All sales are subject to approval of Seller’s credit department and in case of doubt arising at any time as to Purchaser’s financial viability, Seller may require payment in advance, or production may be stopped, and shipments suspended until satisfactory assurances are received by Seller. Seller shall be under no obligation to make any shipment when Purchaser is in default hereunder or under any Order.
Unless otherwise specified by Seller, payment terms for the sale of Products are: (i) fifty percent (50%) of the Sales Price and other costs payable by Purchaser shall be paid in advance, and following receipt of such payment, Seller shall identify the anticipated shipment date, and (ii) fifty percent (50%) of the Sales Price and other costs payable by Purchaser shall be paid 14 days before the anticipated shipment date. Seller reserves the right to withhold shipment and/or to delay the delivery date until such time as full payment has been received. Further, if payments are not made when due, Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1.5% per month or the highest applicable rate allowed by law on all such overdue amounts. At any time following Purchaser’s default in its payment obligations (whether or not the same is cured), upon Seller’s notice to Purchaser, all subsequent invoices shall be payable in full on the date of the invoice. Purchaser may not setoff any amounts owed to Seller against any amounts due or asserted to be due from Seller to Purchaser.
Purchaser’s obligation to pay the Sales Price is absolute and unconditional. Under no circumstances may Purchaser withhold, offset, suspend, or reduce payment for any reason, including but not limited to actual or alleged defects, warranty claims, disputes, or third-party claims related to the Products.
In the event of Purchaser’s default in its payment obligations or under any other obligation pursuant to these Conditions of Sale, Purchaser agrees to pay all costs incurred by Seller, including without limitation, attorneys’ fees, in enforcing its rights or exercising its remedies.
Failure to pay any amount when due constitutes a material breach entitling Seller to suspend future shipments and accelerate all outstanding debts.
3. DELIVERY AND RISK OF LOSS.
Delivery of the Products will be made FOB Ho Chi Minh Port. Shipping and delivery dates are approximate and are based on receipt of complete information with the Order. In no event is Seller liable for any delivery delays. Purchaser is responsible for shipping and for payment directly to the carrier. In the event that Purchaser requests Seller to arrange shipping and Seller agrees to arrange shipping, then Seller will determine the method of transportation and the routing of shipment. In any event, Purchaser will be responsible for paying and/or reimbursing Seller for any shipping, insurance, as well as for any other related charges incurred by Seller, if any, consistent with the terms set out in Paragraph 2. Purchaser shall maintain and carry in full force and effect appropriate insurance coverage for the Products in transit, in accordance with industry standards and in an amount that is no less than the replacement value of the applicable Products. Purchaser shall provide Seller with a certificate of insurance evidencing the required coverage, which certificate of insurance shall name Seller as an additional insured.
Risk of loss of the Products shall pass to Purchaser at the time the Products are loaded onto the Purchaser’s nominated vessel or collected by Purchaser’s nominated forwarder, regardless of any shipping or insurance arrangements made by Seller on Purchaser’s behalf.
Seller is not responsible for storage of Products that are not accepted or paid for by Purchaser by the delivery date. All costs for storage, demurrage, and any related insurance shall be borne by Purchaser. Without limiting the foregoing, if Seller agrees to store the Products subsequent to the delivery date, and the Products are not fully paid for and also retrieved from storage by Purchaser within thirty days of the Products being placed in storage, then, at any time after such 30 day period, and without notice to Purchaser, Seller may sell the Products to any third party without any liability to Purchaser.
4. TITLE.
Title to the Products shall pass from Seller to Purchaser upon Seller’s receipt of payment in full for the Products.
5. NON-CONFORMING PRODUCTS.
Purchaser shall have an obligation to inspect all Products within seven (7) days of receipt of Products. Products that are visibly damaged or have visible defects at time of the foregoing inspection (collectively “Non-Conforming Products”) must be reported to Seller in a detailed written notice (including reference to the Order number) no later than fourteen (14) days of receipt of Products. Following Seller’s written confirmation of Non-Conforming Products, Purchaser may elect to have Seller either repair, replace, or return (for a refund) such Non-Conforming Products, at Seller’s expense. In the event that Purchaser elects repair or replacement of the Non-Conforming Products, then Seller shall complete such repair or replacement within four (4) months following the date of return of the Non-Conforming Products to Seller.
6. LIMITED WARRANTY.
All Products sold are subject to the following limited warranty: Seller warrants, for a period of twelve (12) months from the date of delivery (the “Warranty Period”), that the Products will be (i) free from defects in materials and workmanship; (ii) free from all liens or other encumbrances asserted by any creditor of Seller; and (iii) with respect to Products manufactured to Purchaser’s specifications only, will comport in all materials respects, with Purchaser’s specifications. (the “Limited Warranty”).
All Products that are not Non-Conforming Products but that otherwise violate the foregoing Limited Warranty (the “Noncompliant Products”) are eligible for repair or replacement Products which comply with the Limited Warranty. The decision whether to repair or to replace the Noncompliant Products rests solely with the Seller’s discretion. Seller has no obligation or responsibility for any of Purchaser’s products into which Purchaser installs or assembles the Products, and Seller’s obligation to repair or replace the Noncompliant Product expressly excludes removal, disassembly, and/or reassembly from or into Purchaser’s products, facility, or other end configuration. Any Product repaired or replaced by Seller under this warranty will be subject to the Warranty Period remaining under the originally delivered Product.
SELLER DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
Every claim under the Limited Warranty brought by Purchaser in connection with the Products shall be deemed waived unless it is made in writing and received by Seller during the Warranty Period and within thirty (30) days after the defect is discovered or reasonably could have been discovered.
Furthermore, Seller shall not be liable to Purchaser for the failure of any Products and the Limited Warranty shall be void and of no effect in any of the following circumstances:
(a) Purchaser makes any further use of or resells the Products after giving notice to Seller that the Products do not comply with the terms of the Limited Warranty;
(b) The defect arises as a result of Purchaser failing to follow Seller’s instructions and/or recommendations, or good trade practices as to the handling, transport, storage, use, installation and/or maintenance of the Products;
(c) Purchaser (or a third party at Purchaser’s instruction) alters, repairs or modifies the Products without the written consent of Seller; or
(d) The defect arises from ordinary wear and tear, or from willful damage, negligence, or any abnormal storage or working conditions.
The Limited Warranty set forth in this Section 6 is made only to Purchaser and shall not be assigned or inure to the benefit of any customer, assignee or successor in interest of Purchaser.
Notwithstanding any other provision, Purchaser’s payment obligations are independent of any warranty claims. Pursuing warranty remedies does not relieve Purchaser of the duty to pay the Sales Price.
7. LIMITATION OF REMEDY.
PURCHASER’S EXCLUSIVE REMEDY AND THE LIMIT OF SELLER’S LIABILITY FOR ANY BREACH OF SECTIONS 5 OR 6, WHETHER BASED ON NEGLIGENCE, BREACH OF WARRANTY, STRICT LIABILITY, OR ANY OTHER THEORY, SHALL BE THE REMEDIES EXPRESSLY STATED IN SUCH SECTIONS, RESPECTIVELY.
8. EXCLUSION OF CERTAIN DAMAGES.
SELLER SHALL IN NO EVENT BE LIABLE, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR ON ANY OTHER BASIS, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, TREBLE OR PUNITIVE DAMAGES OF ANY KIND, FOR DAMAGES FOR PERSONAL INJURY, WRONGFUL DEATH, OR DAMAGE TO PROPERTY, OR FOR LOSS OF INVESTMENT, INDEBTEDNESS, LOSS OF FINANCING, LOSS OF SALES OR PROFITS, OR BUSINESS INTERRUPTION, DISCONTINUATION, OR TERMINATION SUSTAINED BY PURCHASER, OR BY ANY PERSON DEALING WITH PURCHASER, IN CONNECTION WITH THE PRODUCTS, EVEN IF SELLER WAS MADE AWARE OF SUCH REASONABLY FORESEEABLE DAMAGES. FURTHER, PURCHASER SPECIFICALLY WAIVES ANY SUCH CLAIMS OR CAUSES OF ACTION PURCHASER MAY PURPORT TO HAVE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING UNDER OR RELATED TO THIS AGREEMENT EXCEED THE AMOUNT OF PAYMENTS RECEIVED BY SELLER FROM PURCHASER IN THE PRECEDING TWELVE (12) MONTH PERIOD OR USD 1 MILLION, WHICHEVER IS LOWER.
9. FORCE MAJEURE.
Neither Party shall be liable, nor deemed in default hereunder, for any failure or delay in the performance of its obligations to hereunder, caused by or arising out of a Force Majeure Event. “Force Majeure Events” are circumstances or events beyond the affected Party’s control and that could not have been reasonably avoided. Force Majeure Events include, without limitation, strikes involving all or part of a Party’s personnel or its customary carriers, fire, flood, war (declared or not), riot, insurrection, acts of terrorism, pandemic, epidemic, public health emergency, acts (including, without limitation, suspensions, closures, and delays) of any governmental authority, priorities granted at the request or for the benefit, directly or indirectly, of any government or agency thereof, shortages of raw material, acts of God, production stoppages due to unintended breakdowns, impossibility of receiving supplies of raw materials, road blocks, strikes or breakdowns in electricity supplies, or supply breakdowns attributable to rebellion, revolution, insurrection, military or usurped power, civil war and other hostilities, invasion, act of foreign enemies, mobilization, requisition or embargo, and regardless of whether the cause or condition now exists or arises hereafter, and whether or not such condition is foreseeable. The affected Party shall determine in good faith the extent to which it can reasonably control a cause, contingency, or circumstance affecting its performance obligations. In the event of a Force Majeure Event, the applicable date of delivery or time for performance will be extended by a period of time necessary to overcome the effect of such delay; provided however, that if the delay continues for more than sixty (60) days, then either Party may cancel the impacted Order(s) by giving written notice to the other Party.
10. INTELLECTUAL PROPERTY.
Seller’s logos, trademarks and trade names may not be used by Purchaser without Seller’s prior written consent. The information, know how, designs, specifications and other information provided by or on behalf of Seller and/or its agents or contractors shall be and remain, as between Seller and Purchaser, the property of Seller. Seller does not grant to Customer any right, title or interest in or to any of Seller’s intellectual property rights or other proprietary information (collectively, “Seller Intellectual Property”), and Purchaser will not use any Seller Intellectual Property in any manner except as expressly authorized by Seller in writing. Upon written request by Seller, Purchaser will execute all documentation confirming Seller’s ownership of the Seller Intellectual Property and assigning to Seller any interest therein that may have accrued to Purchaser. Purchaser shall be and remain the owner of all specifications provided by Purchaser to Seller. Purchaser agrees to indemnify, defend, and hold Seller harmless from and against any damages, losses, claims, costs and expenses (including without limitation, attorneys fees) arising out of or related to any claim that (i) Purchaser’s specifications infringe on the rights of any third party. Purchaser shall not refer to Seller or its affiliates or their respective customers in any marketing materials or other publications without the prior written consent of Seller.
Purchaser agrees and undertakes to notify Seller without undue delay should it breach or discover any breaches of Section 10.
Seller will be entitled to cancel Purchaser’s Order immediately at any time in the event of an actual or suspected breach of Section 10.
11. EXPORT CONTROL.
Purchaser shall comply with, and at Seller’s request shall demonstrate compliance with, all import and export laws, restrictions, and regulations of any United States or foreign agency or authority. Purchaser shall not export, or re-export, or allow the export or re-export of any Product in violation of any such laws, embargoes, restrictions or regulations. Purchaser shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export or re-export from the United States to Purchaser or customers of Purchaser in compliance with all applicable laws and regulations prior to shipment thereof. Purchaser shall defend, indemnify and hold Seller harmless from any claim, damage, liability or expense (including without limitation, attorneys’ fees) arising out of or in connection with any violation of the foregoing.
12. INDEMNIFICATION.
Purchaser hereby agrees to indemnify and to defend and hold Seller harmless from any damages, losses, claims, costs and expenses (including without limitation, attorneys fees) arising out of or related to (a) the acts and omissions of Purchaser (or its employees, contractors, or agents), or (b) the breach by Purchaser (or its employees, contractors, or agents) of its obligations hereunder. In the event Purchaser transfers to a third party any Products supplied hereunder or any right or interest therein, Purchaser agrees to indemnify, defend and hold Seller harmless from any and all liability to such transferee or any subsequent transferee.
13. SEVERABILITY.
If any of these provisions are determined to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of these Conditions of Sale shall be unaffected.
14. ENTIRE AGREEMENT; MODIFICATION; THIRD PARTY BENEFICIARIES; ASSIGNMENT.
These Conditions of Sale and the specific Order provisions contained on the Order accepted by Seller and excluding any term or condition that is contrary to or in addition to these Conditions of Sale (together, this “Agreement”) are the entire contract between the Parties with respect to each Order. This Agreement cancels and supersedes all previous agreements, confirmations, and terms of sale, oral or written. No waiver or modification of this Agreement shall be binding upon either Party unless made in writing and signed by both Parties. No consent to or waiver of any right or to a breach of this Agreement by either Party will constitute a consent to or waiver of any other right or subsequent breach of this Agreement. This Agreement is not intended to confer upon any person other than the Parties hereto any rights or remedies hereunder. Seller may, at any time, assign, subcontract, and/or delegate some or all of its rights and/or obligations under this Agreement or any Order. Purchaser shall not assign, subcontract, and/or delegate any of its rights and/or obligations under this Agreement or any Order without the prior written consent of Seller.
15. NOTICES
All notices, demands and other communications made hereunder shall be in writing and shall be given either by personal delivery, by nationally or internationally recognized overnight courier (with charges prepaid) or by certified first class mail (return receipt requested), and shall be deemed to have been given or made when personally delivered, the day following the date deposited with such overnight courier service, or the day of actual or refused delivery if by certified mail, addressed to the applicable Party at the address set forth for such Party in the applicable Order or invoice.
16. GOVERNING LAW; JURISDICTION.
For any sale of Products to a Purchaser who is located in the United States of America or for any sale of Product to be delivered to a location within the United States of America, all matters arising out of or relating to this Agreement shall be governed by, and interpreted according to, the internal laws of the State of Delaware, without regard to any choice of law provisions that would obtain a different result. As to any sale to a Purchaser who is located outside of the United States of America or for any sale of Product to be delivered to a location outside the United States of America, all matters arising out of or relating to this Agreement shall be governed by, and interpreted according to the internal laws of Hong Kong. THE PARTIES EXPRESSLY EXCLUDE THE APPLICABILITY OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. In the event of a dispute arising from or relating to this Agreement or any breach thereof, the Parties agree to endeavor first to settle the dispute by mediation administered by the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration. The Parties further agree that any unresolved dispute shall be determined solely by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules. Any award rendered by the arbitrators may be entered as a judgment in any court having jurisdiction thereof. Notwithstanding the foregoing, either Party may at any time, without inconsistency with this Section, seek from a court of competent jurisdiction any equitable, interim, or provisional relief necessary to avoid irreparable harm or injury. For any sale of Products to a Purchaser who is located in the United States of America or for any sale of Product to be delivered to a location within the United States of America the number of arbitrators shall be three (3), the place of the arbitration shall be Wilmington, Delaware, and the language of the arbitration shall be English. As to any sale to a Purchaser who is located outside of the United States of America or for any sale of Product to be delivered to a location outside the United States of America, the number of arbitrators shall be three (3), the place of the arbitration shall be Hong Kong, and the language of the arbitration shall be English.
17. CONFIDENTIALITY.
During the term of this Agreement and for a period ending five (5) years following the termination of this Agreement, Purchaser shall keep, and shall cause its respective affiliates, officers, directors, employees and agents to keep, confidential all Confidential Information of Seller that has been acquired by Purchaser through its participation in the negotiation hereof and in the performance of this Agreement, and shall use such information solely for purposes of performing its obligations or exercising its rights hereunder, provided that the foregoing restrictions shall not apply to the extent that such Confidential Information is required to be disclosed in compliance with applicable laws or regulations or order by a court or other governmental or regulatory agency or body having competent jurisdiction, provided that reasonable measures shall be taken to assure confidential treatment of such Confidential Information. “Confidential Information” means all information, data, documents, files and other materials (whether written, oral or in electronic format and whether or not marked as “confidential”) that are previously or hereafter disclosed by Seller to Purchaser, and includes without limitation, all pricing or any other financial information, fee