1 Scope of Application and General
1.1 Any delivery of goods and provision of services (hereinafter collectively “Goods”) by Dräger Hong Kong Ltd. (“DHK”) shall be subject to these General Terms and Conditions (“GTC”) set forth herein. These GTC form a constituent part of all offers, orders, and agreement between DHK and the Customer (including but not limited to end-user, dealer and other sales channel partners).
1.2 Deviating terms and conditions - unless agreed to in writing – do not apply. Such Deviating terms and conditions with both parties’ written agreement shall then have priority over these GTC. These GTC apply even if DHK provides the Goods with knowledge but without actual acceptance of deviating terms and conditions to the Customer.
2 Description of Goods
2.1 DHK ensures that the Goods sold to Customer comply with the related regulations of the registration permit on the Chinese market.
2.2 The description of and illustrations in any brochure, price lists, product information listed in internet websites and other leaflets, or sales literature shall not form part of any agreement between DHK and the Customer. The description of Goods shall be subject to Sales Order, Configuration Lists, Technical Agreements confirmed by DHK in writing
3 Prices and Payment Terms
3.1 Prices are DDP delivered site HK (INCOTERMS 2020) including but not limited to road / rail or airworthy packing, and VAT at the rate prevailing at the time of agreement signature, unless otherwise agreed in writing.
The Prices shall only become binding after DHK’s written confirmation stamped with company seal, in any circumstances.
3.2 DHK reserves the right to without notice to alter the price of Goods whether or not a deposit or part payment has been received by DHK for such Goods and to invoice the Customer for such extra amount where the costs of the Goods to DHK has altered due to circumstances beyond its control, including but not limited to the following changes:
EURO/HKD exchange rate variations beyond the originally agreed price, duties, taxes, customs charges, miscellaneous third party fees, design change costs, error correction charges, and omissions.
3.3 Invoices shall be paid by bank transfer upon receipt without any deductions in the agreed currency. The Customer shall bear any cost associated with payment. No discount shall be allowed unless otherwise agreed by DHK in writing.
3.4 Payments for Goods provided by DHK outside of HK must be made by an irrevocable and confirmed commercial letter of credit issued by a major bank in favor of DHK against submission of the shipping documents.
3.5 Cheques and other means of payment shall be accepted only based on a separate agreement. In the case of such means of payment, the day on which DHK can dispose over the relevant amount shall be deemed the date of receipt of payment. The Customer shall bear any discount and collection charges.
3.6 DHK reserves the right to demand a down payment or security equivalent to the invoice amount and to suspend the execution of its obligations under all the effective agreements between DHK and the Customer, in case circumstances justify reasonable doubts to the Customer’s willingness or ability to fulfil his payment obligations.
3.7 The Customer agrees that it will pay DHK the liquidated damage for late payment, which is calculated based on overdue amounts (including all charges owing by the Customer) and at the rate of 0.02% per day, until Customer’s actual payment date.
This shall not apply if there’s sufficient evidence to prove DHK’s contractual non-performance(s) in advance, and Customer is entitled to the right to cease implementing its obligation for payment, until DHK performs its obligation first.
4 Retention of Title
4.1 Goods delivered or installed by DHK (“Retained Goods”) shall, unless otherwise agreed in written, remain the property of DHK until all payment of any and all receivables (including future receivables), whatever the legal basis therefor, even if payments are made on itemized receivables.
4.2 In case of breach of contract by the Customer, in particular, in the event of a default in payment, DHK may terminate the agreement upon due warning without remedy by the Customer and repossess the Retained Goods. The Customer shall be obliged to return the Retained Goods. Any application to commence insolvency proceedings over the Customer's assets shall entitle DHK to demand the immediate terminate the agreement and return of the Retained Goods.
4.3 The Customer shall provide DHK with extensive support in order to protect DHK's ownership rights in the Retained Goods in accordance with the domestic legal system of the delivery location and destination.
4.4 On termination of the agreement for any reason, the Customer shall pay for the Goods provided by DHK
DHK agrees to provide the Goods with its standard packaging, unless otherwise agreed in written, and the standard packaging is included in the Price and will not be charged for extra by DHK.
6 Delivery and Passing of Risk
6.1 DHK may make partial deliveries, unless this would be unreasonable for the Customer or prohibited in written.
The delivery cost, including transit insurance (only applicable when additionally required by Customer & agreed by DHK in written), and collateral risks of potential loss or damage before the Goods arrives at named place shall be borne by DHK, unless otherwise agreed in written.
6.2 Compliance with agreed deadlines for the provision of Goods shall require prior clarification of all commercial and technical questions between DHK and the Customer and that the Customer has met any and all obligations incumbent upon it, e.g. provision of documents, other materials, permits or releases, or payment of a down payment. Should this not be the case, the delivery time shall be reasonably extended.
6.3 The deadline for provision of Goods shall be reasonably extended in the event of Force Majeure, in particular, in the case of natural events, epidemics, mechanical damage and other unforeseeable operational disruptions, measures within the context of industrial disputes, in particular, strike and lockout, and in the event of unforeseeable hindrances, provided such incorrect or late delivery is not within the responsibility of DHK therefor. Should the relevant delivery or service become impossible or a hardship due to the aforementioned circumstances, DHK may terminate the agreement fully or partially.
6.4 In case DHK fails to deliver the Goods before the lead time as agreed due to the reason other than the Customer, DHK shall immediately inform the Customer and negotiate a new lead time in written with the Customer.
6.5 Risks of accidental loss or deterioration shall pass to the Customer upon arrival of Goods at named place, even if partial deliveries are made or DHK has agreed to provide other services such as commissioning or installation, unless otherwise agreed in written.
7 End Customer Notification
7.1 In the event the Customer sells the Goods to third parties, the Customer shall keep written record of the name, contract details and address of the third party to whom the Goods are ultimately sold for a period of 15 years following sale of the Goods to the Customer. The Customer shall immediately upon request by DHK provide such details without delay. This is required in order to assist DHK with any field actions or recalls which may relate to the Goods in the future.
7.2 This Section 7 shall survive termination of these GTC’s or any other agreement relating to the provision of Goods, for any reason.
8 Order cancellations
To the full extent permitted by law, orders for Goods shall not be cancelled by the Customer without DHK’s written consent in advance. The cancellation of any order shall be made on terms which indemnify DHK against all loss, including but not limited to order cancellation charge for at least 10% of order value.
9 Notice of Defects and Acceptance
9.1 The Customer shall inspect deliveries without undue delay following receipt, in order to ascertain any quantitative errors and transport damage. In the event of transport damage, a damage record shall be prepared in order to secure any compensatory damage claims against the forwarder (post, rail, shipping agent, etc.). Such damage record shall be sent to DHK without undue delay.
9.2 Defects can be asserted in writing only within thirty (30) days of receipt of the Goods, unless the relevant defect is latent. Latent defects and defective performance of other services shall be notified to DHK in writing without undue delay following discovery thereof.
9.3 If a formal acceptance is required or expressly agreed upon, DHK shall notify the Customer in writing about readiness for acceptance. Should acceptance not take place within thirty (30) days following the written notification, the Goods shall be deemed accepted by the Customer upon expiry of such period, unless DHK is responsible for the non-acceptance. In this event, DHK shall notify the Customer that the Goods are deemed accepted. The same shall apply to partial acceptance.
10.1 The standard warranty term shall commence from the date of delivery of the Goods. In the event of agreement involving start-up service or other work performance by DHK, the warranty shall commence following start up of the delivered item or acceptance of performance (“Commencement Date of Warranty Term”).
(1) The standard warranty term for finished Goods is 12 months from Commencement Date of Warranty Term;
(2) The standard warranty term for service parts is 3 months from Commencement Date of Warranty Term;
(3) The standard warranty term for other types of product like consumable products shall be 3 months from Commencement Date of Warranty Term unless otherwise agreed in writing by both parties.
10.2 Should there be a defect in any Goods provided by DHK and should notice thereof have been given in a timely manner, DHK shall remedy the defects free of charge ("Warranty Service"), provided the defect was already present upon the passing of risk, and the Goods are proven to have been defective in material or workmanship.
10.3 The Warranty Service does not apply if:
(1) the Goods are suitable for normal use and manifest the quality that is normal for items of the same kind and that could be expected by the Customer.
(2) the ability to use one-off products is limited to the first use;
(3) inappropriate or improper use, incorrect storage, improper maintenance which is not accordance with instructions for used issued by DHK and which accompany the Goods;
(4) erroneous assembly or start-up by the Customer or third parties, erroneous or negligent handling, use of inappropriate operating resources, defective construction work, or chemical, electro-chemical or electrical influences for which DHK is not responsible;
(5) Customer or a third party perform improper repairs, and any modifications to the delivered Goods performed without DHK’s prior consent;
(6) The indicated shelf life of the Goods has expired;
(7) natural wear and tear, including corrosion;
(8) 12 months from the date of the invoice of the Goods.
10.4 The Customer shall provide DHK with the necessary time and opportunity to perform any and all Warranty Service. In particular, upon DHK request, the Customer shall send the delivered Goods to DHK or a workshop to be specified by DHK. Otherwise DHK shall be discharged from liability for any consequences.
10.5 The Customer shall notify DHK in writing in advance if the Customer moves the delivered Goods to a different destination than the agreed delivery destination. Any extra costs associated with Warranty Service shall be charged to the Customer, in particular, transport, travel, work and material costs, if such expenses occur because the Customer change the agreed delivery destination. Please see Article 17 if the delivery destination is outside of HK.
10.6 Any parts replaced by DHK under warranty shall become the property of DHK and shall be returned to DHK if requested at no cost to the Customer.
10.7 The Customer may not assert any claims for defect-related liability if it is aware of the defect upon execution of the agreement or is unaware thereof as a result of gross negligence, unless the defect was maliciously concealed by DHK or DHK provided a guarantee as to quality and said guarantee concerns the defect.
10.8 In all circumstances DHK’s prior written consent must be obtained before return of the Goods.
10.9 Provided that it is a valid warranty claim, freight / transport costs incurred for Warranty Service shall be borne by DHK.
In the event that Goods are returned by Customer for DHK’s checking, but turned out to be NOT covered by Warranty Service pursuant to this GTC, the Customer shall bear any concerning freight / transport cost by its own.
11 Intellectual Property Rights
11.1 DHK shall supply the Goods free and clear of intellectual property rights and third party copyrights ("Intellectual Property Rights") existing at the agreed destination of the Goods.
11.2 Should a third party assert legitimate claims against the Customer based on the infringement of Intellectual Property Rights by the Goods delivered by DHK as used in accordance with the agreement, the Customer shall notify DHK in writing and without undue delay. Furthermore the Customer shall not acknowledge any infringement to the third party, and DHK retains a discretion in relation to any and all measures in mounting a defense and settlement negotiation. Should the Customer cease use of the DHK’s Goods and services, it shall notify the third party that cessation of use does not constitute an acknowledgement of any infringement of an Intellectual Property Right.
11.3 DHK shall, at its choice and at its expense, either arrange a license for the relevant Goods, modify them such that the relevant Intellectual Property Right is not infringed, or exchange them.
11.4 Claims on the part of the Customer shall be excluded if the Customer is responsible for the infringement of an Intellectual Property Right, and/or if the infringement of an Intellectual Property Right is caused by stipulations by the Customer, and/or by an application not foreseeable by DHK, and/or by a modification by the Custom, and/or or by use of service in conjunction with products no delivered by DHK.
11.5 All rights in know-how and Goods that merit intellectual property right protection (including but not limited to inventions and copyrights for example) are retained by DHK.
11.6 Should software be included in the scope of delivery, DHK grants to the Customer a nonexclusive and, non-transferable and non-sublicense right of use for the purpose of the agreement.
11.7 The Customer may not modify, engage in reverse engineering, translate, extract or otherwise link the software to other programs. The Customer may not remove from the data carriers alphanumerical and other labels and manufacturer information - in particular, copyright notices - and shall transfer same without modification to any backup copy.
12.1 DHK shall be liable to the Customer for the direct losses resulting from or arising out of, in accordance with the relevant statutory provisions, in the event of willful conduct, gross negligence on the part of governing bodies or executive employees, culpable injury to life, limb or health, defects maliciously concealed by DHK or the absence of which was guaranteed by DHK, as well as in the case of defects in delivered Goods to the extent that liability lies for personal and property damage .
12.2 The Customer shall take any and all necessary and reasonable steps in order to prevent or limit damages. In particular, the Customer shall ensure the regular backing up of programs and data.
12.3 To the extent permitted by law, all liability attributable to DHK shall be limited to the invoice value of the defective Goods provided.
13 Compliance with Laws, Anti-Corruption
13.1 The Customer warrants that he is acting in accordance with applicable laws, including antitrust laws and regulations on corruption and money laundering and other criminal law provisions.
13.2 If there is reason to suspect that the Customer is in breach of above obligations, DHK is entitled to terminate the agreement if it would be unreasonable to DHK to continue the agreement.
In the event of such termination,
- DHK is released from any obligation to execute the agreement,
- The Customer shall indemnify and keep harmless DHK and its employees against any and all damages to the extent such damages are based on the Customer’s violation of its obligations under this Section 13.
13.3 The Parties agree to comply with any personal information and data protection laws, including without limitation the Personal Data (Privacy) Ordinance (PDPO), to the extent relevant to the exchange of data between the Parties or storage or exchange of data in connection with Goods provided hereunder.
14. Confidential Information
All non-public, confidential, or proprietary
information of DHK disclosed by DHK to Customer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by DHK in writing. This Section
does not apply to information that is: (a) in the public domain; (b) known to Customer at the time of disclosure; or (c) rightfully obtained by Customer on a non-confidential basis from a third-party.
15 Safety Provisions
The Customer shall be responsible for compliance with applicable domestic statutes, regulations and safety provisions, in particular, in relation to admission, installation, operation, maintenance and repair of the delivered Goods and agrees to comply therewith. The Customer shall indemnify DHK against any and all claims deriving from noncompliance with such provisions by the Customer.
16 Jurisdiction and Applicable Law
16.1 Any dispute arising out of or in connection with this GTC and the agreement shall be resolved through friendly negotiation between the parties. In case no consensus can be reached through negotiation, the disputes shall be determined by the competent Court where DHK resides.
16.2 This GTC and the agreement, its interpretation and execution shall be governed by the laws of HK.
17 Export Control Regulations
17.1 DHK and Customer undertake to comply with all applicable export control regulations of international and national authorities, including without limitation the requirements of the laws and regulations from the countries where the Parties or the Goods manufacture is located. This may include screening End Customer with regard to current sanctions lists by the UNO or other organizations.
In order to conduct the export control checks, upon request by DHK, Customer shall provide DHK with End Customer’s full name and the country where the end use of Goods, as well as any existing export control restriction regarding Goods.
Unless received prior written approval from DHK, Customer is not authorized to change the final destination of Goods to the areas outside HK. If the final destination of use has been changed by Customer without any written approval by DHK, DHK reserves the right to reject to provide any after-sale service and claim damages for such Goods.
17.2 DHK is not obliged to perform deliveries, orders and other obligations under this GTC, if that performance is hindered by the applicable export laws and regulations of international and national authorities. Customer may not claim damages or compensation if DHK refrains from deliveries for above reasons.