Delivery and Payment Terms for DK GROUP (International) Limited
For the delivery of components (including lamps, luminaires, electronic control gears and spare parts)
1.For deliveries of DK Group International Limited (hereinafter referred to as “DK” the following terms appl , unless there is an applicable agreement in place between the parties. Deviating terms of the purchaser are not accepted by DK unless DK would have expressly agreed to their applicability in writing. The Delivery and Payment Terms also apply if DK undertakes delivery to the purchaser without reservation being aware of adverse terms or purchaser’s terms deviating from these Delivery and Payment terms. These Delivery and Payment Terms exclusively apply vis-à-vis entrepreneurs.
2. DK’s offers are subject to alteration unless otherwise agreed in writing in individual cases.
3. For DK’s delivery obligations, only the written order conformation provided by DK shall apply.
4. Delivery shall be made free carrier(FCA) in accordance with Incoterms 2010
5. Delivery delays or limitations which are through no fault of DK or which can verifiably be attributed to military mobilization, war, uprising, strike, legitimate lockout or the emergence of unforeseen obstacles outside of DK’s control, will result in a reasonable prolongation of the delivery deadline by the duration of the hindrance. If the hindrance last longer than three months each party is entitled to withdraw from the contract. Potential consideration already provided will be refunded by DK to the purchaser without delay in such case.
6. Shoud DK be in delay regarding the delivery due to negligence, liability for damages arising from the delay (compensation in addition to performance) is limited to 5% of the purchase price of the late delivery. Liability for injuries to the body, life and health remain unaffected.
7. DK warrants that its products represent the state of the art and are free from defects in materials and workmanship. Expiration of standard life time during the warranty period does not constitute a defect. For items which are worked on and modified without DK’s express approval or exposed to improper conditions of use, DK shall not be obliged to pay any compensation, insofar as a query concerning the item can be respectively attributed.
8. DK’s product descriptions do not contain any guarantee of quality.
9. Claims for defects are subject to the purchaser’s statutory obligation to give notice of defects and follow the rule of AQL standards. The notice of defects has to be provided in writing. Rejected goods must be returned to DK for inspection. In the event of a wrongful notice of defects, DK is entitled to request compensation from the purchaser for expenditures incurred in this regard, unless it was not possible for the purchaser to detect that there was no defect. If the inspection reveals a construction or material or other defect, DK shall make a replacement delivery or issue a credit note in the amount of the purchase price, at DK’s option. If DK does not fulfill this duty, supplementary performance fails or is unacceptable to the purchaser; the purchaser may withdraw from the contract or reduce payment. Damage claims only exists as per the preconditions set out in lit11.
10. In cases pursuant to §438 Para1no.2 and §479 Para 1 BGB (German Civil Code), claims for defects shall lapse after the periods set out therein. Claims arising from damage to health, physical injury or death and claims arising from willful or grossly negligent breach of duty shall also lapse in accordance with the legal provisions. All other claims for defects shall expire 12 months after delivery.
11. Damages claims of the purchaser are excluded unless the damage was caused willfully or grossly negligently by DK or its legal representative or agent (§278 BGB) or insofar as the damage does not result from violation of a material contractual obligation. Substantive contractual obligations in the sense are such obligations which need to be fulfill in order to allow for the proper implementation of the contract and compliance with the purchaser may generally rely on.
Insofar as DK is liable according to the previous provision, liability is limited to an amount of EUR 2 million per damage event, as long as DK did not act willfully. This does not apply if, as an exception, the damage which can typically be foreseen is higher for the contract concluded. In this case, liability is limited to the higher foreseeable damage. The aforementioned provision do not imply change to the burden of proof to the purchaser’s detriment.
Liability arising from culpable damage to life, the body or health, liability based on the Product Liability Act, remain unaffected.
Apart therefrom, liability claims against DK are excluded. The aforementioned liability limitations apply respectively if the purchaser asserts reimbursement of expenses instead of a damage claim.For damages caused by delay, the liability provision in lit 6 additionally applies.
Prices and Payment Terms
12. Prices are given in the agreed currency, net (exclusive of any fees and taxes) and without deduction, on basis ex works in accordance with Incoterms 2010. If there is statutory VAT, the prices indicated by DK are exclusive VAT in the respective statutory amount.
13. If order amounts deviate from DK’s respective applicable standard shipping units (MOQ), DK will charge a surcharge per partial quantity position the amount will be offered in writing.
14. Payment shall be effected in the agreed currency at the payment location indicated by DK. The authoritative date for timely payment shall be the date of receipt of the payment by DK. Unless other - wise agreed, invoices are to be paid within 14 days after the goods arrival.
15. In case of default of payment, interest on arrears amounting to 8 percentage points p. a. above the applicable basic interest rate shall be charged. The option of enforcement of a higher damage remains unaffected.
16. In case of default of payment, the purchaser shall bear the risk for currency exchange losses incurred against the claim in Euro on the due date.
Retention of Title
17. Until all claims which are due to DK arising from the current business relationship with the purchaser have be fulfilled, DK shall retain title to the goods delivered.
Title shall not transfer to the purchaser until DK is able to dispose freely of the purchase price. Provision of a letter of credit shall not constitute payment.
18. The purchaser is only entitled to resale in accordance with orderly business operations against immediate payment or subject to retention of title. The receivables due to him from his purchasers as a result of the resale including the balance claims which result from the termination of a current account, as well as the rights to cancellation of such current account and to determination of balance claims are purchaser remains authorized to collect such claims. However, DK is entitled to revoke this authorization and to collect the claim themselves if the purchaser goes not meet his payment obligations or has filed for insolvency. In such cases, DK may demand that the purchaser notifies DK of the claims that where assigned and the debtors, provides all information necessary for collection, hands over the associated documentation and inform the debtors (third parties) of the assignment.
19. Insofar as the title to goods subject to retention of title is lost in processing, blending or fusion with other objects, the purchaser shall transfer the title to the new goods to DK for surety, up to the amount that corresponds to the sales price charged to the purchaser (including VAT, if any). The purchaser shall store the goods for DK free of charge. If DK products are sold together with other goods (not belonging to DK) at a total price, the transfer is only done in the amount invoiced by DK for the DK products. The same applies to the extent of the transfer of a potential current account claim of the purchaser vis-à-vis his purchaser.
20. The purchaser is not allowed to pledge or transfer by way of security any goods subject retention of title. The purchaser is obliged to inform DK without delay in the event of the third party interference with goods in retention or with claims transferred to DK as a security. Insofar as the third is not in a position to refund the judicial cost of lawsuit as per (Civil Process Code) the purchaser is liable for the losses incurred by DK
21. If the purchaser is in delay with payment, DK is entitled to withdraw from the contract and request the goods to be returned. 22.Dk shall release securities if and insofar as the as the realizable value of the securities exceeds the secured claims due to DK by more than 10%, whereas DK reserves the right to determine which goods or claims are to be released.
23. If retention of title is not valid according to the jurisdiction of the place in which the goods are located, the security corresponding to the retention of title in this jurisdiction is considered agreed. If the purchaser’s participation is necessary for the establishment and retention of such rights, insofar as is deemed reasonable.
Choice of Law and Jurisdiction
24. The law of Hong Kong shall apply. The application of the UN Convention on Contracts for the International Sale of Goods dated 11 April 1980 (GISG) and of Private International law is excluded.
25. If the purchaser is a merchant, the place of jurisdiction shall be Hong Kong for all disputes arising from or in connection with the contract concluded with the purchaser. However, DK is also entitled to file an action against the purchaser at the purchaser’s place of general jurisdiction.
26. Insofar as individual provisions of these Delivery and Payment Terms should be invalid, this does not affect the validity of the remaining provisions. In place of the invalid regulation, statutory regulations shall apply.
Hong Kong 2015