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
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
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
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
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.
2.1 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
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,
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
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.
4.1 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
4.4 Late Delivery of OT SYSTEMS LTD.
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.
5.1 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.
6.1 Time and Right of Transfer of
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
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
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
7.3 The Control of Exemption Clauses
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
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
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
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
10 Limitation of Liability
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.
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
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
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.