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  Terms & Conditions

Terms & Conditions

1. General Terms


1.1 The Contract
This agreement constitutes the entire Contract signed by OT SYSTEMS LTD. and Buyer and thus no oral representation shall prevail, notwithstanding any other terms and conditions of any order submitted by Buyer. Any changes, modifications, or additions to this agreement are binding and enforceable only if made in writing and signed by OT SYSTEMS LTD. and Buyer.

1.2 Offer and Acceptance
The issue of proforma invoice by letter, email, or any other written form of messages; or quotation and any other messages conveyed the supply of goods by OT SYSTEMS LTD. (seller) to the prospect buyer is considered as an offer, and the signing and returning of a signed proforma invoice or any other acknowledgements to OT SYSTEMS LTD. or Buyer is taken as an acceptance to the offer as said. It is effectually the same as the purchase order, an invoice or any acknowledgement accepted by OT SYSTEMS LTD. or Buyer; notwithstanding the ordinarily interpretation in the laws of contract.

1.3 Constitution and Validity of Contract
The conclusion of agreement by OT SYSTEMS LTD. and Buyer constitutes the Contract. It can be a signed written agreement, purchase order, proforma invoice, invoice or an acknowledgement and will be furnished by consideration and/or specific performance.
The Contract shall, upon signatures of both parties, remain in force for the period as agreed. For extensions of the Contract, such party (either OT SYSTEMS LTD. or Buyer) shall notice the other party (Buyer or OT SYSTEMS LTD.) in writing two weeks prior to its expiration.
The validity period of the Contract should be mentioned in within; otherwise through effective communication made by OT SYSTEMS LTD. and Buyer is a must.

1.4 Confirmation of Order
The quantities, prices and shipments of the goods stated in the Contract shall be confirmed in each transaction, and the particulars of which are to be specified in the Contract and/or signed or specific performance by the two parties or either party hereto.

1.5 Privity of Contract
Parties to the Contract include OT SYSTEMS LTD. and Buyer, assignees, agents or other authorized representatives, that make the contract can be performed. In case of any breach or violation, the parties sue or to be sued should be the parties to the contract.

1.6 Terms and Conditions of the Contract and Variation
The terms and conditions are stipulated in the Contract. All the terms and conditions which are contained in other documents apart from the Contract itself, such as memorandum and any other notes, and verbal agreement, should be superseded by the Contract. Unless and until those terms are input to the Contract or the appendixes to Contract, they will be voided for practical purpose and their literal meanings.
Variations are subject to the consensuses of OT SYSTEMS LTD. and Buyer to be inserted into Contract or appendix to Contract.
The terms of Contract shall prevail in all circumstances. Implied terms are, which are of common trade practice unless expressed the contrary to circumvent their imposition, or by legislation subject to their overriding objectives, such as Sales of Goods Ordinance (ss14-17), Control of Exemption Clauses Ordinance (‘CECO’), etc., implied and incorporated in the Contract.

1.7 Severability and Termination of the Contract
If any portion or part of the Contract is held to be unenforceable, the unenforceable portion or part must be construed as close as possible to reflect the original intent of the parties, the remaining portions remain in full force and effect.
Should either party (OT SYSTEMS LTD. or Buyer) fails to implement the terms and conditions, the other party (Buyer or OT SYSTEMS LTD.) is entitled to terminate or rescind the Contract.


2. Prices


2.1 Consideration and Currency Accepted
The agreed price is the consideration of the purchase and has to be stipulated in the Contract accurately and precisely. Price is subject to change at any time before the Contract is accepted unless fixed price have been agreed by OT SYSTEMS LTD. and Buyer.
The currency accepted by both parities should be clearly quoted in the contract.

2.2 Price Variation and Discount Structure
The Total Contract Price is included with the price of products set forth in this agreement. This will include all the sales commission, export tax and other applicable charges. Other taxes, assessments, certificate fees or royalties may also be required to be collected by OT SYSTEMS LTD.. The rates and charges of such taxes, assessments, certificates fees or royalties set forth herein are subject to change by the proper authorities and such rates and charges in effect on the delivery date shall be paid by Buyer to OT SYSTEMS LTD., with appropriate adjustments to Total Contract Price.
Discount structures should be discussed and negotiated on an individual basis and stipulated in the Contract.

2.3 Costs of Freights and Stevedore
The Contract is quoted in ex-factory price and FOB terms with the exclusion of any import charges to the Buyer’s country. Stevedore’s charges will be borne by Buyer. Local delivery may be made by Buyer in OT SYSTEMS LTD.’s origin.

2.4 Tax Issues
Unless otherwise indicated, the price does not include any sales, use, excise, or similar taxes, and Buyer shall be responsible for all such taxes, whether or not invoiced by Supplier.


3 Payment Terms


3.1 Deposits, Instalments, Partial and Final Payments
Deposits, Installments, Partial and Final Payments are negotiated between OT SYSTEMS LTD. and Buyer on an individual basis and quoted explicitly in the quotation, invoice, proforma invoice, etc.
Any adjustments to the Total Contract Price due to changes in taxes, assessments, certificates fees or royalties pursuant to Section 2 above shall be reflected in the final payment due hereunder.

3.2 Time to Collect Payment and Method
All transactions are to be fully settled upon the delivery of goods to Buyer or they are handed over to the freight forwarder or carrier ordered by Buyer, except instalments or partial payments have been concluded in the Contract, unless credit policy is implemented to individual customers.

3.3 Credits and Credit Period
Credits are offered by OT SYSTEMS LTD. to those long-term customers and have their accounts held by OT SYSTEMS LTD. Any credit transfers may only be made to accounts held by OT SYSTEMS LTD. and the sales personnel of OT SYSTEMS LTD. are not authorized to collect any payment.
Credit period is offered by OT SYSTEMS LTD. and extension is not allowed. OT SYSTEMS LTD. reserves the right to cancel the credit arrangement.

3.4 Deferred Payment
Deferred payment is disallowed unless under exceptional circumstances and subject to OT SYSTEMS LTD.’s discretion. Such circumstances may give rise to interest and surcharge and may be added on top of the Total Contract Price.

3.5 Default of Buyer and Consequences
Default of Buyer on all or part of his payment will result in all the claims brought by OT SYSTEMS LTD. immediately. All requisite payments which arise from the business relationship will become due for immediate payment or an application in insolvency proceedings will be instituted against the Buyer’s assets without prior notice.


4 Delivery


4.1 Delivery upon Request
Delivery will normally be made in the dates as stipulated in the Contract. Under special circumstances, delivery may be made upon request by Buyer with the payments settled in advance, provided OT SYSTEMS LTD. can meet all the requisites and no change will be entertained.

4.2 Partial Delivery
Partial delivery made by OT SYSTEMS LTD. is permissible as long as they can be reasonably expected of Buyer. OT SYSTEMS LTD. reserves the right to tender delivery of the stock in instalments or separately.

4.3 Delivery Method
In the interest of the parties, delivery times and mode of delivery are agreed in the Contract. Usually, OT SYSTEMS LTD. promises to deliver the goods to Hong Kong.
Unless otherwise specified herein, the delivery will be OT SYSTEMS LTD.’s ex-factory or storage facility, or F.O.B. Hong Kong

4.4 Late Delivery of OT SYSTEMS LTD. and Consequences
The Buyer is entitled to damages to compensate for the loss suffered as a result of late delivery of OT SYSTEMS LTD.. Late delivery may not be regarded as a breach of Contract unless time is the essence of the Contract and has been stipulated in Contract, and Buyer may be entitled to reject the delivery and claim for damages. Buyer who accepts late delivery of the goods waives any right to reject for late delivery but does not waive the right for damages.


5 Insurance


5.1 Insurance Covered
OT SYSTEMS LTD. shall do its utmost to protect the goods from loss and damage during the transit of goods and comprehensive insurance will be covered as applicable. The insurance coverage if applicable will extend to the port of export. OT SYSTEMS LTD. is under a duty to remind Buyer to arrange insurance of goods during transit and provides all the necessary information to enable Buyer to obtain the necessary cover.

5.2 Force Majeure and Unexpected Events
Force majeure means any event beyond a party’s control, which could not be reasonably foreseen at the time this Contract was executed. Given its unforeseeable and unavoidable nature, any failure or delay in the performance by the party hereto of its obligations hereunder shall not be a breach of Contract if such failure or delay arises out of or results from war, riot., acts of God, terrorism, strike, compliance with or other actions taken to carry out the intent and purpose of any law, regulation or any other cause beyond the party’s reasonable control (“Unexpected Events’).
If an event of force majeure should occur and prevents one of the parties from performing its obligations under this Contract, the party invoking this event shall provide the other party with:

a) full evidence of the said event as promptly as possible and in any event within SEVEN days of its occurrence.
b) any additional information that the other party may reasonably require to ascertain the force majeure nature of the concerned event, and
c) an appropriate report on the evolution of the situation.
If an event of force majeure sustains for a period of three months or more, the party can initiate proceedings to terminate or suspend the Contract and any other continuing process may be halted. The termination or suspension of the Contract should be informed in writing of its decision with immediate effect.


6 Title


6.1 Time and Right of Transfer of Good Title
When OT SYSTEMS LTD. delivers the goods to Buyer, forwarder, or the transportation company designated by Buyer within the territory of Hong Kong, the title and property of the goods thereof pass immediately to Buyer who then assumes all risk of loss and damage of such goods.

6.2 Retention of Title
Property does not pass simply on delivery but only when full payment is made. Buyer’s default in payment constitutes a repudiation of the Contract. If reserved goods have been installed or connected with other objects that makes the expiration of the OT SYSTEMS LTD.’s ownership of the reserved goods, it is agreed that the ownership share in the mixed item or uniform object will be passed to OT SYSTEMS LTD. to the extent of the invoice value of the reserved goods until payment has been made.

6.3 Chase of Title
A sale by a party with a voidable title of the goods cannot transfer any better rights than the party has. OT SYSTEMS LTD. reserves the right to claim the seller the proceeds of sale or the goods back from the purchaser and subject to the exceptions in the Sales of Goods Ordinance (Cap 284).

6.4 Defects of Title
OT SYSTEMS LTD. must guarantee their good titles to the sold products. An implied term as to title is a condition once breached Buyer is entitled to repudiate the Contract.


7 Exemption Clauses


7.1 Incorporation of Exemption Clauses into the Contract
Awareness of OT SYSTEMS LTD. and Buyer is essential and vital for an exemption clause to be incorporated into the Contract as a term. OT SYSTEMS LTD. and Buyer must draw their attention to the clause incorporated or have previous course of dealing or raise the awareness of that term in an unsigned agreement in order to be bound by that clause.
A term which appears to be non-contractual in nature but is later found its contractual properties will not be incorporated into the agreement by an unsigned exemption clause unless the awareness of that term is raised during the course of concluding the agreement.

7.2 Invalid or Inoperative Exemption Clauses
OT SYSTEMS LTD.’s implied undertaking as to title prescribed by S14 of the Sales of Goods Ordinance (Cap 26) or its relevant provision can never be excluded. The extent to which liability for breach of other terms implied by the Sales of Goods Ordinance (Cap 26) can ever be excluded or restricted depends on the consumer status of Buyer. Otherwise, the exemption clause will be effective only if it satisfies the ‘reasonableness test’.

7.3 The Control of Exemption Clauses Ordinance (CECO)
It is the essence of controlling the exemption clauses in Hong Kong through the legislation of Control of Exemption Clauses Ordinance (Cap 71) (CECO). The exemption clauses observe this legislation for curtailing their effects and even rendering ineffective.


8 Misrepresentation Ordinance


Buyer acknowledges and agrees that by this Contract to waive all rights to any incidental or consequential damage caused by misdescription, unless any kind of fraudulent misrepresentation is proved subject to the Misrepresentation Ordinance (Cap 284).


9 Warranty


OT SYSTEMS LTD. shall warrant that the products shall be free of defects in material and workmanship. OT SYSTEMS LTD. shall provide RMA service (parts and labor) with respect to valid warranty claims at no cost or expense during the warranty period.

OT SYSTEMS LTD. makes NO ADDITIONAL WARRANTIES, express or implied, as to any products sold under this Contract and in particular OT SYSTEMS LTD. makes NO WARRANTIES of merchantability or fitness for any particular purposes except those provided by OT SYSTEMS LTD.

It is expressly agreed and understood that OT SYSTEMS LTD.'s liability under this Contract shall in no event exceed the purchase price paid for the products and that OT SYSTEMS LTD.'s sole obligation and Buyer's exclusive remedy shall be limited to OT SYSTEMS LTD.'s replacing said products or, at OT SYSTEMS LTD.'s option, refunding the purchase price paid for such products.


10 Limitation of Liability


10.1 Scope
This Limitation of Liability provision applies in the aggregate and not on a per claim basis, whether any damages are characterized in Tort, Negligence, Contract, or other theory of liability regardless of whether a party has been advised of the possibility of or could have foreseen any damage, and irrespective of any failure of essential purpose of a limit remedy.
Any liability claims against OT SYSTEMS LTD. relating to the loss of human life, physical injury, or health is damaged may be asserted provided that solid evidence should be provided.

10.2 Exceptions
This Limitation of Liability provision does not limit a party’s liability for gross negligence, indemnification obligations, breach of confidentiality requirements, intentional misconduct, intentional torts and intentional violations of laws.

10.3 Liability to a Third Party
OT SYSTEMS LTD. shall not be liable for any loss or damage to a third party related to the products sold hereunder. Buyer shall defend, indemnify, and hold harmless OT SYSTEMS LTD. from and against any loss, damage, claim, liability, and expense, including without any limitation, reasonable litigation charges and costs, directly or indirectly arising from the use or resale of the products


11 Jurisdiction of Contract and Dispute Settlement


11.1 Laws and Jurisdiction
This Contract shall be governed by, interpreted, construed and enforced in accordance with and all disputes hereunder shall be governed by the laws of the Hong Kong Special Administrative Region (HKSAR), China without regard to the principles of conflicts of law thereof.
The Hong Kong Special Administrative Region (HKSAR), China shall be the appropriate place of jurisdiction.

11.2 Dispute Settlement – Alternate Dispute Resolution.
Prior to litigations, all disputes arising from or in connection with the execution of this Contract shall be settled through mutual consultations and/or mediations. In case no settlement can be reached, the difference shall be submitted to Hong Kong for arbitration in accordance with its provisional rules of procedure. The decision made by Hong Kong Arbitrator(s) shall be regarded as final and binding upon both parties.