1. |
Definitions and
Interpretation |
1.1 |
In these terms and conditions, unless the
context otherwise requires:
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(a)
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“Carrier” means Carrier Hong Kong Limited;
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(b)
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“Customer” means the Person named in the
Quotation/Sales Contract/Sales Invoice;
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(c)
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“order” or “purchase order” means any order
for or any statement of intent to purchase
any goods or services placed by the Customer
with Carrier;
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(d)
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“Quotation/Sales Contract/Sales Invoice”
means the Quotation/Sales Contract/Sales
Invoice by Carrier to the Customer;
and
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(e)
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The expression “Person” includes an
individual, a body politic, a company
(limited or unlimited), a corporation, an
association (incorporated or
unincorporated), a statutory authority or
any other authority or persons identified as
the Customer.
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1.2 |
These terms and
conditions:
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(a)
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Replace all prior terms and conditions
issued by Carrier to Customer; All previous
communications between Carrier and the
Customer, either oral or written with
reference to the subject matter are hereby
superceded and any modification hereof must
be in writing signed by the Customer and
Carrier. The conditions so far as applicable
shall be incorporated in any Contract based
thereon.
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(b)
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Take precedence over any terms set out in
the Customer’s purchase order, credit
application forms, to the extent of any
inconsistency;
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(c)
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Any special conditions specified on the
Sales Invoice/Quotation/Sales Contract
shall, to the extent they are inconsistent
with these terms and conditions, take
precedence over these terms and conditions.
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2. |
Orders
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2.1 |
Once an order has been accepted by Carrier,
it cannot be cancelled by the Customer.
The supply of goods or services is
subject to availability.
Carrier reserves the right to suspend
or discontinue the supply of goods or
services to the Customer without penalty.
If Carrier is unable to supply all of
the Customer’s order, these terms and
conditions continue to apply to any part of
the order supplied.
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2.2 |
Customer may not cancel this Agreement in
whole or in part unless with Carrier’s prior
written consent and upon payment of
reasonable cancellation charges. Such
charges shall take into account costs and
expenses incurred, and purchases or contract
commitments made by Carrier and all other
losses due to the cancellation including a
reasonable profit. This cancellation charge
shall not be considered a penalty.
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3. |
Pricing
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3.1 |
The price quoted in this Quotation are based
on costs ruling at the
date
of Quotation. Unless otherwise stated
in the Quotation by Carrier,
Carrier reserves the right to amend the
quotation for any changes in these costs
between the date of quotation and the date
upon which the relevant cost is incurred.
This provision includes changes in the rate
of exchange, freight, insurance, duties,
taxes, materials and labour and factors
resulting from any change in Government
policy. Any variation of these conditions in
any documents of the customer is
inapplicable unless accepted in writing by
Carrier.
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(a)
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Should the cost of goods be increased by any
circumstances of any kind whatsoever beyond
the control of
Carrier
including (but not by way of limitation)
increased production cost of manufacturers
or suppliers, variations in rates of
exchange, devaluation of any relevant
currency or increase rates of freight or
insurance, such increase shall borne by the
Customers.
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(b)
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Where by any cause whatsoever beyond the
control of
Carrier, Carrier
shall be called upon to pay any additional
freight or incur any other charges and
expenses in respect of the carriage of the
goods covered by this contract, such
additional freight, charges or expenses
shall be payable by the Customers to
Carrier
in addition to the price quoted.
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3.2 |
In cases where Carrier intends to progress
bill the Customer for the supply of goods or
services, Carrier will do so on a percentage
(%) of completion of works basis and specify
the billing schedule in its written
quotation.
A separate Sales Invoices will be
raised for each progress payment in
accordance with the billing schedule.
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3.3 |
All prices are expressed net of any
applicable goods and services tax or value
added tax, SURTAX, freight charges, and
customs duty that shall be added to the
amount to be paid by the Customer unless
otherwise specified.
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3.4 |
Carrier will not be bound by any condition
attaching to the Customer’s purchase order
or acceptance of a sale unless Carrier in
writing expressly accepts such conditions.
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3.5 |
A quotation is not to be constructed as an
obligation to sell but merely an invitation
to treat and no contractual relationship
will arise.
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3.6 |
Unless stated specifically to the contrary,
the Customer is at his own cost to prepare
the premises and provide proper size
openings in the walls, floors and ceilings
for all air ducts and pipes, and install
where required and in accordance with local
codes and regulations the following: -
lighting, water, sewer and drain
connections, cutting and patching,
foundations and structural supports,
electric wiring and obtain all permits,
certificates of inspection and pay the fees
therefor. Carrier shall have free use of
clean fresh water and electricity and shall
also have access to hoists and scaffolding
if erected by the main contractor.
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3.7 |
Any material and work in addition to that
required under the Quotation/Sales Contract
will be furnished only on the basis of
written authorization of the Customer and
the cost of them will be paid by the
Customer to Carrier as extras.
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4. |
Payment
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4.1 |
The Customer must make immediate payment
upon receipt of the Sales Invoice.
If the Customer has an approved
credit account with Carrier, payment by the
Customer for goods and services supplied
must be paid for within 30 calendar days
from the date of the Sales Invoice unless
otherwise agreed in writing.
Time is of the essence in respect of
the Customer’s obligation to make payment
for goods or services supplied by Carrier to
the Customer.
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4.2 |
If any part of a Sales Invoice is in
dispute, the balance will remain payable and
must be paid when due.
The Customer has no right to set-off
any claim against Carrier from moneys owing
to Carrier.
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4.3 |
The Customer must settle the deposits as per
agreed before Carrier commence of any
service or delivery of goods.
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4.4 |
Unless otherwise stated, payment shall be
made against Sales Invoice issued for the
progress claims as the work proceeds and/or
delivery of equipments.
In the event of default in payment of
progress claims, Carrier reserves the right
to stop all work at the site.
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5. |
Delivery
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5.1 |
If requested by the Customer, and agreed by
Carrier, Carrier will deliver the goods to
an address specified by the Customer.
In such cases:
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(a)
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the Customer will pay all charges associated
with the delivery of the goods;
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(b)
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the Customer, or a representative of the
Customer must be present at the agreed place
and time for delivery and must sign the
delivery note as acknowledgement that the
goods and quantities described on the
delivery note have been delivered and comply
with the Customer’s order;
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(c)
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if the Customer or a representative of the
Customer is not present, Carrier may unload
the goods at the agreed place for delivery,
in which case, Carrier is no longer
responsible in any way for the goods;
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(d)
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Carrier’s responsibility for delivery ceases
at the delivery dock of the delivery address
at which point title (subject to clause
11(f)) and risk in the goods will pass to
the Customer.
The Customer is responsible for:
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(i)
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providing safe and adequate access to and
from the delivery dock;
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(ii)
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the loading or unloading of goods, and will
pay for all damage and injury to any person
and to any public or private property which
may result.
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5.2 |
If Customer nominates their own vessel or
vehicle to deliver the goods to the
Customer, risk will pass when the goods are
loaded onto the Customer’s nominated vessel
or vehicle and Customer shall be responsible
for arranging the insurance of the goods.
Where Customer has nominated its own vessel
or vehicle for delivery, Carrier will not be
liable to Customer for any loss in the event
of any failure in delivery or to arrange
insurance.
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5.3 |
Carrier reserves the right to deliver in
installments and all such installments,
where separately invoiced, must be paid for
without regard to the delivery of subsequent
installments.
A part delivery of an order will not
invalidate the balance of the order.
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5.4 |
While Carrier will use all reasonable
endeavors to meet agreed delivery dates,
Carrier shall not be liable to Customer for
any direct, indirect or consequential loss
or damage whatsoever should it be delayed or
prevented from delivering goods, supplying
services, or otherwise performing any of its
contractual obligations due to any cause or
circumstances beyond Carrier’s reasonable
control.
Time is not of the essence in
relation to delivery.
Extension of time shall be granted
for the delay by the reason of force majeure
including, but not limited, to act of god,
civil commotion and strike affecting any of
the trades employed upon the works of any of
the trades engaged in the preparation,
manufacture or transportation of any of the
goods or materials required for the works.
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5.5 |
Subject to clause 5.4, delivery dates must
not be varied once they have been agreed,
without Carrier’s prior written approval.
Should Carrier agree to postpone
delivery, the goods in question will be
stored at the Customer’s risk and Carrier
reserves the right to impose a weekly
storage charge.
Where delivery is postponed for more
than 3 months, Carrier may increase any
fixed contract prices to reflect Carrier’s
then current list price.
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5.6 |
Carrier may at its discretion sell any goods
still in its possession 3 months after the
mutually agreed deferred delivery date and
seek damages for any loss incurred by
Carrier as a result of the deferment in the
delivery date.
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5.7 |
The erection of the equipment and services
provided shall be carried out only during
normal working hours unless otherwise stated
herein.
Should the Customer insist on urgency
outside the period allowed for in this
contract such overtime incurred shall be for
the account of the Customer.
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5.8 |
Where specifications are to be supplied, the
Customer shall supply such specifications in
reasonable time to enable Carrier to
complete delivery within the specified
period.
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6. |
Installation
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6.1 |
Carrier’s Sales Invoice is made on a supply
only basis.
Installation, treatment of water,
testing and commissioning (if any) is at the
expense of the Customer unless otherwise
specified in writing by Carrier.
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6.2 |
If installation is required, Carrier shall
have the right to deliver any portion of the
materials included under this Agreement when
ready for delivery.
Storage space in safe and dry areas
near or adjacent to the job site is to be
provided free by the Customer.
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6.3 |
Unless otherwise agreed by Carrier and the
Customer in writing, as
the treatment of water is a specialized
business, Carrier will not be held
responsible, under any circumstances, for
water treatment to prevent or control algae,
corrosion or sealing of any air-conditioning
equipment installed. Carrier will however on
request, furnish the Buyer with a list of
Water Treatment Specialists.
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7. |
Dimensions, Performance Data and Other
Descriptive Details
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7.1 |
Photographs, drawings, illustrations,
weights, dimensions and any other
particulars accompanying, associated with or
given in a quotation, the descriptive
literature or a catalogue may be subject to
alteration without notice.
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7.2 |
Carrier reserves the right to make changes
in the construction and/or design of goods
and not withstanding any such changes the
Customer shall accept in performance of any
order of Carrier’s current corresponding
standard models.
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7.3 |
All drawings, memoranda, ideas and
information furnished by Carrier shall
remain its property and shall be considered
its business and trade secrets, received in
trust and confidence for the sole purpose of
erecting and operating the equipment.
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8. |
Claims and
Returns
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8.1 |
All complaints, requests for return of
goods, claims, or notification of lost,
incomplete, damaged, defective or
non-compliant goods must be submitted by the
Customer to Carrier in writing within 2 days
of the date of delivery of the goods.
Otherwise, the Customer shall be
deemed to have accepted the goods and shall
not refuse to pay for the goods on the basis
that they were lost, incomplete, damaged,
defective or do not comply with the
Customer’s purchase order.
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8.2 |
While Carrier will use all reasonable
endeavors to deliver goods as specified in
the Quotation/Sales Contract, Customer
acknowledges and agrees that it is the
Customer’s sole responsibility to ensure
that goods delivered align with the
Quotation/Sales Contract.
Carrier is not liable to Customer or
any end user for any goods purchased and or
subsequently installed that are different to
that specified in original Quotation/Sales
Contract.
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8.3 |
Carrier will not accept the return of goods
unless the following conditions are
satisfied:
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(a)
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Carrier’s approval has first been obtained;
and
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(b)
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the goods are returned within 7 days of the
issue of the authorization number under
clause 8.3(a); and
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(c)
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a copy of the relevant invoice is enclosed
with the returned goods; and
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(d)
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the goods are returned in merchantable
quality (as determined solely by Carrier)
with the original packaging and without
damage or marks to the original packaging;
and
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(e)
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the Customer pays shipping costs for the
return of goods to a warehouse or other
premises nominated by Carrier and
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(f)
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the Customer pays to Carrier a handling
charge equal to 15% of the price paid for
the goods. Unauthorized returns will not be
accepted.
The Customer will be responsible for
all damage incurred during return shipment.
The Customer shall not deduct the
amount or any anticipated credit from any
payment due to Carrier.
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8.4 |
Goods represented by the Customer to
be
defective shall not form the subject of any
claim for work performed by Carrier or for
any loss, damages or expense whatsoever
arising directly or indirectly from such
defects, but such goods, if returned to
Carrier and accepted as defective, will at
the request of the Customer and if
practicable be replaced as originally
ordered. Defects in quality or dimensions in
any delivery shall not be grounds for
cancellation of the remainder
of the order or contract.
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9. |
Warranty
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9.1 |
The equipment manufactured by Carrier and
sold is warranted to be free from defects in
material and workmanship under normal use
and service.
Carrier
will within one year from date of original
installation or within 15 months from date
of delivery, whichever is earlier, repair or
replace any part, assembly, or portion,
thereof which shall be returned to
Carrier
and which
Carrier’s
inspection shall show to be thus defective.
Unless specified, this warranty does
not cover any labor cost involved in the
removal of defective part or installation of
new part and any costs relating to loss of
refrigerant and lubricating oil, or any
service charges.
Carrier
warranty policy also requires that all
centrifugal chillers must be commissioned
by
a Carrier certified specialist.
For workmanship, the warranty period should
be six months. Service provided under this
Agreement shall be warranted for
Six (6)
months
from completion of such service.
Carrier shall at its option repair,
replace, or issue a credit, for any such
defective service, provided they were not
damaged, abused, altered by a third-party or
affected by chemical properties.
Any warranty claim must be provided
to Carrier in writing prior to the end of
the applicable warranty period.
Carrier’s
obligation to repair or replace any
defective equipment or components during the
warranty period shall be Customer’s
exclusive remedy.
THIS WARRANTY IS GIVEN IN LIEU OF ALL OTHER
WARRANTIES, EXPRESS, IMPLIED OR STATUTORY
INCLUDING WITHOUT LIMIGATION TO THE WARRANTY
OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
Notwithstanding anything else, Carrier makes
no warranty, express or implied, with
respect to the parts sold hereunder.
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9.2 |
For
all goods supplied by Carrier that have a
written “Warranty Card” supplied with the
goods when sold to the Customer, to the
extent permitted by law, the warranty is in
substitution for all other terms,
conditions, warranties and representations,
express or implied by statute or otherwise.
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9.3 |
The Customer expressly acknowledges and
agrees that it has not relied upon and
Carrier is not liable for any advice given
by Carrier, its agents or employees in
relation to the suitability for any purpose
of goods or materials supplied by Carrier.
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9.4 |
Carrier shall not be liable for the
corrosive or erosive action of liquids or
gases upon the equipment and no part shall
be deemed defective by reason of its failure
to resist physical or chemical action of
such elements upon said equipment.
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10. |
Liability
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10.1 |
Notwithstanding anything else to the
contrary, Carrier shall not be liable for
any indirect and/or consequential loss or
damage. Carrier shall not be liable for any
loss of profit, loss of use, loss of
contracts, loss of production etc.
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10.2 |
Carrier will pay Employees’ Compensation
Insurance covering Carrier’s employees only
and public liability and property damage
insurance subject to the maximum stated in
the policies held by Carrier.
Any
additional insurance required by the other
party to any contract will be paid for by
that party, and no claim shall be made upon
Carrier by the Customer for any sum in
excess of Carrier insured maximum.
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11. |
Termination, Repossession of Goods &
Recovery of Debt
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11.1 |
If
the Customer does not make any payment by
the due date, exceeds its credit limit at
any time, commits any other material breach
of these terms and conditions or an
insolvency event in respect of the Customer
arises or is reasonably suspected by Carrier
(“Default Event”), Carrier may (without
limiting any other right or claim it may
have against the Customer) do any or all of
the following:
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(a)
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charge the Customer interest calculated on a
daily basis on any portion of the Customer’s
account that is overdue at the reference
rate for business loans available to
commercial customers from the financial
institution that Carrier banks with plus 5%
calculated from the date the payment was due
until the date payment is made (both dates
inclusive);
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(b)
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vary or withdraw any approved credit limit
and/or terms of trade;
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(c)
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cancel or suspend any unfilled orders or
cease providing the services;
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(d)
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terminate any contracts between Carrier and
the Customer and demand immediate payment of
any monies due/outstanding and the remaining
amounts of the contracts for services to be
fulfilled;
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(e)
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cancel any rebate, discount or allowance due
or payable by Carrier as at the date of the
Default Event;
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(f)
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enter (at any time) any premises in which
Carrier’s goods are stored, to enable
Carrier to reclaim possession of the goods
without liability for the tort of trespass,
negligence or payment of any compensation to
the Customer or any Receiver Manager or
Administrator appointed over all or any part
of its assets.
For the avoidance of doubt, title in
the goods immediately re-vest in Carrier
upon Carrier asserting its right of entry
under this clause 11(f); or
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(g)
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institute any recovery process as Carrier in
its discretion decides at the Customer’s
cost and expense.
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11.2 |
Carrier might terminate this agreement by
sending writing notice to customer [1]
month’s in advance.
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12. |
Alternation to Terms and Conditions
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Carrier may amend or vary these terms and
conditions at any time by written notice to
the Customer’s place of business or by
posting an amended copy on Carrier’s website
http://www.carrier.com.hk
and that the Customer will be bound by any
such amendments.
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13. |
Governing Law
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These terms and conditions and any contract
including them shall be governed by the laws
of Hong Kong Special Administrative Region.
The parties irrevocably submit to the
courts
of
Hong Kong
in respect of any claims, proceedings and
matters arising out of or in respect of
these terms and conditions.
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14. |
General
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14.1 |
All clerical errors are subject to
corrections and shall not bind Carrier.
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14.2 |
Carrier’s failure to enforce, at any time or
any period of time, any term of any contract
incorporating these terms and conditions
shall not constitute waiver of such term and
shall in no way affect its right to enforce
it.
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14.3 |
Headings are included for ease of reference
and do not form parts of or affect the
interpretation of these Terms & Conditions
of
Sale.
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14.4 |
These terms and conditions bind Carrier,
Customer and their respective successors and
assigns.
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14.5 |
Customer should provide a safe working
environment to Carrier staff and Carrier
will refuse to work if the working
environment cannot meet our safety
requirements.
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14.6 |
Should an individual provision hereto be
held invalid or unenforceable, the remaining
provisions of these terms and conditions
shall remain in force and effect.
The Parties shall use their best
efforts to arrive at a new provision
consistent with the overall intent and
objectives of these terms and conditions and
which in terms of its economic result
corresponds to the invalid provision
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14.7 |
Customer consents and agrees that Carrier
may, from time to time, publicize Carrier
related projects with Customer, including
the value of such projects, in all forms and
media for advertising, trade, and any other
lawful purposes.
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14.8 |
Carrier disclaims any liability whatsoever
if the material and/or equipment provided
hereunder is used in any nuclear facility or
weapons production application of any kind
without Carrier’s prior written consent.
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14.9 |
With respect to the goods which include
materials or technology originating from the
United States of American, to the extent
required by the applicable laws and
regulations, Customer agrees that it will
comply with applicable laws and regulations
of the
United States of America.
Customer shall fully indemnify and hold
Carrier harmless from and against any
claims, damages, liabilities and expenses
arising out of or in relation to any
non-compliance with the applicable export
laws or regulations by the Customer.
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15 . |
Force Majeure
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Under no circumstances shall Carrier be
liable for any loss, damage or delay due to
any cause beyond its reasonable control,
including but not limited to acts of
government, strikes, lockouts, labor
disputes, fire, explosion, theft, weather
damage, flood, earthquake, riot, civil
commotion, war, mischief or act of God.
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