Standard Terms & Conditions of Sale
Issue date of Conditions: November 2010
"Catalogue" means the catalogue (in whatever form, whether paper or electronic) in which these Conditions are set out;
“CIF” means cost, insurance and freight;
"Company" means eluomeng Limited and its successors and assigns;
"Conditions" means these terms and conditions;
"Contract" means any contract between the Company and the Customer for the sale and purchase of Supplies;
"Customer" means the person(s) or company(ies) whose order for the Supplies is accepted by the Company;
“FOB” means free on board;
"Goods" means any goods supplied or to be supplied by the Company to the Customer;
“Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China;
"in writing" includes electronic communications;
"Services" means any services supplied or to be supplied by the Company to the Customer;
“Shipping Documents” means (i) the bill of lading, representing the contract of carriage by sea; (ii) the insurance policy or certificate, representing the contract of marine insurance; and (iii) the Contract;
"Supplies" means any Goods or Services;
“United States” means United States of America.
Reference in these Conditions to any legislation or regulation includes any re-enactment, amendment or substitution of such legislation or regulation.
All orders are accepted by the Company subject to and in accordance with these Conditions. These Conditions override and exclude any terms or conditions in or referred to in any negotiations or course of dealing between the Company and the Customer or set out in the Customer's standard terms and conditions. If there is any conflict between
- the other provisions of the Catalogue and these Conditions; or
- the provisions of the order and these Conditions
these Conditions will prevail unless the Company agrees otherwise in writing. Together with any terms accepted by the Company in connection with an order, these Conditions constitute the entire agreement between the Company and the Customer in relation to the Supplies ordered. No variation to these Conditions is permitted unless expressly authorised in writing by a director of the Company.
The Company has used all reasonable endeavours to ensure that prices for the Supplies are accurately set out in the Catalogue but reserves the right to change its prices without notice at any time. Prices charged will be those prevailing when an order is accepted. Where Supplies are to be made in instalments (referred to in these Conditions as 'Scheduled Delivery'), the prices of Supplies to be delivered within 90 days of the date of order will be those applicable at the time of despatch of the first batch of Supplies. Where Scheduled Delivery may continue over a period of 90 days or more from the date of order, the Company reserves the right to increase prices to those applicable at the date of despatch. Special services or custom requirements applied to Goods at the Customer's request shall be charged at the price quoted in writing.
Payment is due not later than 30 days of the Company's invoice, without any deduction, set off or withholding whatsoever. Time for payment shall be of the essence. If the Customer fails to make payment by the due date then, without prejudice to any other right or remedy, the Company shall be entitled to:
i. cancel the order or suspend any further deliveries or performance;
ii. appropriate any payment made by the Customer to such of the Supplies (or the Supplies made under any other contract) as the Company may think fit; and
iii. charge interest (both before and after any judgment) on the amount unpaid at the rate of 5% per annum above the Hong Kong and Shanghai Banking Corporation prime rate, from time to time until payment is made in full (a part of a month being treated as a full month for the purpose of calculating interest).
The Company reserves the right to charge for copy invoices or where the original has been lost or misplaced by the Customer. If legal action is taken to recover monies due to the Company, the Customer shall reimburse to the Company all legal and other costs and expenses incurred by the Company in such recovery and the Company reserves the right to charge the Customer an administrative fee to cover its internal costs.
5. NEW ACCOUNTS
The Customer should complete the credit application form enclosed in the Catalogue or available on request. Any credit limit granted to the Customer shall at all times be discretionary and may be reduced, suspended or withdrawn at the discretion of the Company at any time without prior notice.
The Company reserves the right to decline to trade with any company or person. To avoid duplication, any written confirmation of telephone orders sent must be clearly marked 'Confirmation only'. The Company will not accept liability for orders not so marked and duplicate orders will be charged accordingly.
7. STANDARD DELIVERY
Provided that the Goods ordered are in stock and are supplied within Hong Kong, the Company will use its reasonable endeavours to despatch the Goods ordered before 16.30p.m Monday to Friday on the same day. No commitment is given in relation to delivery times achieved.
Orders for Supplies, the aggregate price of which is HK$200.00 or above will be delivered free of any carriage or packing charge, unless the below heavy freight charges applies or unless the Goods are supplied for export from Hong Kong.
Orders for Supplies, the aggregate price of which is less than HK$200.00, will bear a HK$30.00 carriage and packing cost plus the below heavy freight charges (if applicable), unless otherwise agreed in writing by the Company or unless the Goods are collected from the eluomeng Limited Trade Counter or unless the Goods are supplied for export from Hong Kong.
For each package (as per the order unit of measurement) which actual weight or dimensional weight, whichever is greater, is over 12.5 kgs (included), heavy freight charges shall apply. The details of such charges will be subject to the contractual document agreed and executed by the Customer and the Company. (For any inquiries, please contact our customer service hotline at 852 2268 9888.)
Where Goods are scheduled for delivery in instalments, any applicable carriage and packing charge and heavy freight charge will be made in relation to one instalment only.
The above charges do not apply to Goods marked with the symbol H alongside the Order Code in the Catalogue. Carriage for these Goods will be charged at cost. The Company will use reasonable endeavours to meet delivery and/or performance estimates but, except as set out in Condition 8 below, in no circumstances shall it be liable to compensate the Customer for non-delivery, non-performance or late delivery or performance, even where it arises as a result of the negligence of the Company or its carriers. Time for delivery and/or performance shall not be of the essence. Delivery will be made to the address specified by the Customer. The Company may use any method of delivery available to it.
The Company reserves the right to deliver or perform by instalments. Failure to meet a scheduled delivery or performance date shall not prevent or restrict the Company from making further deliveries or rendering subsequent performance under the relevant Contract by instalment. Scheduled Deliveries can only be accepted for a maximum period of 12 months from the date of order.
If the Customer fails to take delivery of the Goods or fails to give the Company adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Customer’s reasonable control or by reason of the Company’s fault) then, without prejudice to any other right or remedy available to the Company, the Company may:
- store the Goods until actual delivery and charge the Customer for the reasonable costs (including insurance) of storage; or
- sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Customer for the excess over the price under the Contract or charge the Customer for any shortfall below the price under the Contract.
8. INSPECTION, DEFECTS AND NON-DELIVERY
(i) In the case of the Goods to be delivered at the Customer’s premises in Hong Kong, the Customer must inspect the Supplies as soon as reasonably practicable after delivery, or in the case of Services, performance, and, except as set out in Condition 14 below, the Company shall not be liable for any defect in the Supplies unless written notice is given to the Company within 7 days of the inspection. (ii) In the case of the Goods supplied for export from Hong Kong under a FOB Contract, the Customer must inspect the Goods at the Company’s premises before shipment and the Company shall not be liable for any defects in the Goods after delivery which would be apparent on inspection. (iii) In the case of the Goods supplied for export from Hong Kong under a CIF Contract, where the Customer is unable to inspect the Goods at the Company��s premises before shipment, the Customer must inspect the Goods as soon as reasonably practicable after delivery and except as set out in Condition 14 below, the Company shall not be liable for any defect in the Goods unless written notice is given to the Company within 7 days of the inspection. In any event, the Company does not write software comprised in the Goods and it is the Customer's responsibility to check for the presence of computer viruses before such Goods are used. If the Customer receives a damaged parcel, the Customer should take photographs of the parcel to confirm the damage and notify the Company immediately prior to opening the parcel.
The quantity of any consignment of Goods as recorded by the Company upon despatch from the Company's place of business shall be conclusive evidence of the quantity received by the Customer on delivery, unless the Customer can provide conclusive evidence to the contrary. The Company will not be liable for any non-delivery of Goods or non-performance of Services unless written notice is given to the Company within 3 days of the date when the Goods should have been delivered or the Services should have been performed in the ordinary course of events.
Any liability of the Company for non-delivery or non-performance or for Goods notified as defective on delivery or Services notified as defective following performance in accordance with this Condition 8 will be limited to replacing the Goods or re-performing the Services within a reasonable time or to refunding the price then paid in respect of such Supplies.
All specifications, drawings, illustrations, descriptions and particulars of weights, dimensions, capacity or other details including, without limitation, any statements regarding compliance with legislation or regulation (together ²Descriptions²) wherever they appear (including without limitation in the Catalogue, despatch notes, invoices or packaging) are intended to give a general idea of the Supplies, but will not form part of the Contract. If the Description of any Goods differs from the manufacturer's description, the latter shall be deemed to be correct. The Company shall take all reasonable steps to ensure the accuracy of Descriptions but will also rely on such information, if any, as may have been provided to it by its suppliers and the Company accepts no liability in contract or tort or under statute or otherwise for any error in or omission from such Descriptions whether caused by the Company's negligence or otherwise. The Company may make changes to the Supplies as part of a continuous programme of improvement or to comply with the legislations.
10. RISK AND OWNERSHIP
(i) In the case of FOB Contract where the Goods are supplied for export from Hong Kong, the risk of damage to or loss of Goods will pass to the Customer when the Goods are uploaded to the carriers. (ii) In the case of CIF Contract where the Goods are supplied for export from Hong Kong, the risk of damage to or loss of Goods will pass to the Customer when the Goods are on board carrier or upon the delivery of the Shipping Documents by the Company to the Customer, whichever is earlier. (iii) In the case of Goods to be delivered at the Customer’s premises in Hong Kong, the risk of damage to or loss of Goods will pass to the Customer when the Goods are arrived at the Customer’s premises or are received by the Customer or its representative. In any event, the ownership of the Goods shall not pass to the Customer until the Company has received in full (in cash or cleared funds) all sums due from the Customer to the Company on any account whatsoever.
Until ownership passes to the Customer, the Customer must hold the Goods on a fiduciary basis as the Company's bailee. If payment is not received in full by the due date, or the Customer passes a resolution for winding up or a court shall make an order to that effect, or a receiver is appointed over any assets or the undertaking of the Customer or an execution or distress is levied against the Customer, the Company shall be entitled, without previous notice, to retake possession of the Goods and for that purpose to enter any premises occupied or owned by the Customer.
The Catalogue remains at all times the sole and exclusive property of the Company.
No Goods may be returned other than with prior agreement in writing of the Company. Prior to returning any Goods to the Company for any reason, the Customer must contact the Company to obtain a returns authorisation number ('RAN'). All Goods are returned at the Customer's risk and expense and should be undamaged by the Customer and in their original packaging. The Customer is responsible for returning Goods to the Company and for providing proof for delivery of such return.
Appropriate precautions must be taken in respect of Goods classified as 'static sensitive'.
All Goods accepted for return should be returned for receipt by the Company within 7 days of delivery. The Customer should return the Goods to "The Returns Department, eluomeng Limited, Unit 601, 6/F, Exchange Tower, 33 Wang Chiu Road, Kowloon Bay, Kowloon, Hong Kong" clearly quoting the Customer's account number, order number and RAN.
Any Goods returned as 'unwanted' or 'incorrectly ordered' may at the discretion of the Company be subject to a restocking fee of 20% of the invoice value of the Goods (subject to a minimum charge of HK$100.00).
The Company expressly reserves the right (without limiting its discretion under this Condition 11) to refuse the cancellation of any order for or return for credit of Goods supplied by the Company which (i) are not in the Catalogue; or (ii) are notified by the Company to be not-in-catalogue Goods; or (iii) are sourced from Newark; or (iv) consist of software or contain any hazardous substances referred to in the European Union's Directive number: 2002/95/EC relating to Restrictions of the Use of Certain Hazardous Substances in Electrical or Electronic Equipment. In any event, consumable items are non-returnable.
The Company shall have a general lien in respect of all sums due from the Customer upon all Goods to be supplied to the Customer or upon which work has been done on the Customer's behalf and upon fourteen days written notice to the Customer, the Company may sell such Goods and apply the proceeds towards the satisfaction of any sums due to the Company.
13. PERFORMANCE AND FITNESS FOR PURPOSE
Unless any performance figures, tolerances or characteristics have been specifically and expressly warranted by a director of the Company in writing, the Company accepts no liability for any failure of the Supplies to comply with such criteria, whether attributable to the Company's negligence or otherwise.
It is the responsibility of the Customer to ensure that the Supplies are sufficient and suitable for a particular purpose unless specifically stated in writing by a director of the Company. Any advice or recommendation given by an employee of the Company which is not confirmed in writing by a director of the Company is acted on entirely at the Customer's risk and the Company shall not be liable for any such advice or recommendation which is not so confirmed. Except as set out in the Condition 15, the liability of the Company to the Customer, should any warranty, statement, advice or recommendation confirmed in accordance with this Condition 13 prove to be incorrect, inaccurate or misleading, will be limited to the refund of the price paid by the Customer for the Supplies or, at the Company's option, the supply of replacement Supplies which are sufficient and suitable.
The Company will endeavour to transfer to the Customer the benefit of any warranty or guarantee given by the manufacturer of the Goods.
In addition, the Company will, free of charge, repair or, at the Company's option, replace the Goods or, in the case of the Services, re-perform the Services which are proved to the reasonable satisfaction of the Company, to be damaged or defective due to faulty materials, workmanship or design. Software programs are supplied on the strict understanding that the Company does not warrant their functions to be free from defects or error.
This obligation will not apply:
- if the defect arises because the Customer has altered or repaired such Goods without the written consent of the Company;
- because the Customer did not follow the manufacturers' instructions for storage, usage, installation, use or maintenance of the Goods;
- if the Customer has failed to notify the Company of any defect in accordance with Condition 8 where the defect should have been reasonably apparent on reasonable inspection; or
- if the Customer fails to notify the Company of the defect within 12 months (or such other period as the Company shall specify at the time of acceptance of the order for the Supplies) of the date of despatch of the Goods or performance of the Services.
Any replacement Supplies made or Goods repaired under this Condition 14 will be guaranteed on these terms for any unexpired period of guarantee given on the original Supplies. Any Goods which have been replaced will belong to the Company.
The Customer grants to the Company and its employees, agents and representatives a right to enter into its premises to effect any repair or replacement under this Condition 14. The Customer shall ensure that the Company's employees, agents and representatives are provided with a safe and secure working environment at its premises and the Customer shall be responsible for isolating any computers or processors requiring repair or replacement from its network and for making back-up copies of any information on such computers or processors before the Company's arrival on site.
Except as set out in Conditions 8 and 15, this Condition 14 is the Company's sole obligation and the Customer's sole remedy for defective Supplies and is accepted by the Customer in substitution for all express or implied representations, conditions or warranties, statutory or otherwise, as to the satisfactory quality, fitness for purpose or performance of the Goods (or any materials used in connection therewith) or the standard of workmanship of the Services and all other such representations, conditions and warranties are excluded.
- The Company shall not be liable for any damage, loss, cost, claim or expense resulting from the failure to give advice or information or the giving of incorrect advice or information whether or not due to the negligence of the Company, its employees, agents or subcontractors.
- The Company does not exclude or restrict its liability for any matter for which it would be illegal for the Company to exclude or attempt to exclude its liability. Nothing in these Conditions excludes or limits the liability of the Company for death or personal injury caused by the Company's negligence or fraudulent misrepresentation.
- Except for any rights to have Goods repaired or replaced or Services re-performed or to receive a refund of any price paid as expressly set out in these Conditions, the Company will be under no liability to the Customer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any damage or direct or indirect or consequential loss (all of which terms include, without limitation, pure economic loss, loss of profits, loss of business, loss of use, loss of data, computer downtime, depletion of goodwill, business interruption, increased purchasing or manufacturing costs, loss of opportunity, loss of contracts and the like) howsoever caused or arising out of or in connection with:
- Any of the Supplies, or their manufacture, sale, performance, characteristics or any failure or delay in performance or supply of the Supplies by the Company or on the part of the Company's employees, agents or subcontractors;
- Any breach by the Company of any of the express or implied terms of the Contract;
- Any use made or resale or on-supply of any of the Supplies or any product incorporating any of the Goods or developed using the Supplies;
- Any acts or omissions of the Company at the Customer's premises;
- Any statement made or not made or advice given or not given by or on behalf of the Company (including without limitation any statement as to compliance with legislation or regulation); or
- Otherwise under the Contract.
- Except as contemplated by Condition 15(ii), these Conditions set out the entire liability of the Company to the Customer in respect of the Supplies and shall be in lieu and to the exclusion of all other warranties, conditions, and other terms implied by statute or common law save for any implied terms which by law cannot be excluded. The Company's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall be limited to repairing, replacing or, in the case of Services, re-performance or, in any case, at the Company's option, refunding monies already paid in respect of the Supplies. The Company hereby excludes to the fullest extent permissible at law all conditions, warranties and stipulations express (other than those set out in these Conditions or given in accordance with them) or implied, statutory, customary or otherwise shall be limited to repairing or replacing Goods or, in the case of Services, re-performing the Services or, at the Company's option, refunding monies already paid in respect of the Supplies.
- Each of the Company's employees, agents and subcontractors may rely on and enforce the exclusions of and restrictions on liability in these Conditions in that person's own name and for that person's own benefit.
16. PRODUCTWATCH AND PRODUCTFIND
The Customer acknowledges that these services are provided free of charge. Without limiting the generality of Condition 15:
(i) In relation to ProductWatch
The Company will make all reasonable efforts to inform the Customer of the pending obsolescence or replacement of any Goods but accepts no liability for failing to do so in a timely manner or at all, nor for failing to provide details of possible or appropriate substitutes or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods suggested are suitable for the Customer's intended use and no representations or warranties are provided in this regard.
(ii) In relation to ProductFind
The Company will make all reasonable efforts to assist the Customer in identifying and/or procuring suitable Goods but accepts no liability for failing to do so in a timely manner or at all nor for failing to source possible or appropriate Goods or for failing to provide the service in the manner or at the times anticipated. It is the responsibility of the Customer to determine whether the Goods are suitable for the Customer's intended use and no representations or warranties are provided in this regard.
17. USE OF PERSONAL DATA
"Personal Data" means, in relation to any Customer, or any representative of a Customer who is (in either case) a living individual, any data from which (whether alone or in combination with other information held by the Company) the Company can identify that Customer or that representative, regardless of how and when that data is provided. The Company may process Personal Data for some or all purposes contemplated in these Conditions or arising in the context of the relationship between the Company and the Customer, including:
(i) Deciding whether to enter into any contract or arrangement with that Customer. This may include conducting credit reference searches against the Customer or its representatives and the disclosure of information to the relevant agency as to how that Customer conducts its account;
Order fulfilment, administration, customer services, profiling the Customer's purchasing preferences and to help the Company to understand and develop its business; (iii) Direct marketing of the Company's products and services and/or of the products and services of other companies in the Premier Farnell Group or third parties which the Company believes may be of interest to the Customer or its representatives, whether by post, fax, telephone, email, SMS, MMS or otherwise;
Crime prevention or detection.
The processing of the Personal Data may involve:
(i) The disclosure of that Personal Data except Customers’ credit card numbers and/or Hong Kong identity card numbers to the Company's service providers, agents, advisers and representatives;
(ii) The disclosure of that Personal Data except Customers’ credit card numbers and/or Hong Kong identity card numbers to other companies in the Premier Farnell Group whose products and services the Company believes may be of interest to that Customer or representative;
The disclosure of that Personal Data except Customers’ credit card numbers and/or Hong Kong identity card numbers to third parties whose products and services the Company believes may be of interest to that Customer or representative;
The transfer of Personal Data except Customers’ credit card numbers and/or Hong Kong identity card numbers outside of Hong Kong, including to countries whose laws may not provide adequate protection to Personal Data. The Company will only transfer Personal Data outside Hong Kong to companies who have guaranteed to the Company the same level of protection as that Personal Data would have received in Hong Kong.
The Customer shall have the right to request for (i) access to the Personal Data; and (ii) correction of the Personal Data and; (iii) the name and address of any potential transferee.
The Company assumes that it may use Personal Data for all these purposes unless and until notified to the Customer to the contrary. If, at any time, the Customer or its representative does not wish his or her Personal Data to be used for any or all of the above purposes, please contact the Marketing Manager, eluomeng Limited, Unit 601, 6/F, Exchange Tower, 33 Wang Chiu Road, Kowloon Bay, Kowloon, Hong Kong or notify any of our sales representatives when placing an order.
18. INTELLECTUAL PROPERTY RIGHTS
The Supplies in the Catalogue may be subject to the intellectual and industrial property rights including patents, knowhow, trademarks, copyright, design rights, utility rights, database rights and or other rights of third parties. No right or licence is granted to the Customer, except the right to use the Supplies or re-sell the Goods in the Customer's ordinary course of business. The Company shall have no liability whatsoever in the event of any claim of infringement of any such rights howsoever arising.
In particular, without limiting the above, title in any software program forming part of the Goods is reserved to the Company and/or its suppliers. The Customer is responsible for the terms of its licence or use and paying any royalty payable. Such programs may be used only with the Goods.
The Company owns full copyright in respect of the Catalogue. The reproduction of the Catalogue in whole or in part is prohibited without the Company's prior written consent.
In the event that the Company sends promotional materials to the Customer in relation to goods or services available from the Company, these Conditions shall apply to all Supplies purchased from such material.
20. COUNTRY OF ORIGIN
Unless otherwise confirmed by the Company in writing, nothing in the Catalogue is to be taken as representation of the source of origin, manufacturer or production of the Goods or any part thereof. Any fees incurred by the Company to provide certificates of origin (where available), will be charged to the Customer at cost.
21. EXPORT TERMS
In these Conditions ‘Incoterms’ means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provisions of Incoterms and these Conditions, the latter shall prevail.
Where the Goods are supplied for export from Hong Kong, the provisions of this Condition 21 shall (subject to any special terms agreed in writing between the Company and the Customer) apply notwithstanding any other provision of these Conditions.
The Customer shall be responsible for obtaining any licence and complying with any export regulations in force within Hong Kong and any legislation or regulations governing the importation of the Goods into the country of destination and for the payment of any duties on them.
Unless otherwise agreed in writing between the Company and the Customer, the Goods shall be delivered [FOB/CIF] the [air or sea] port of shipment.
Certain Goods imported from the United States are subject to specific restrictions. With respect to goods manufactured in the United States, the Customer agrees to comply with all applicable export laws, restrictions and regulations of the United States or foreign agencies or authorities, and shall not import, export, or transfer for the purpose of re-export, any product to any prohibited or embargoed country or to any denied, blocked, or designated person or entity as mentioned in any such United States or foreign law or regulation. The Customer represents and warrants that it is not on the Denied Persons, Specially Designated Nationals or Debarred Persons List and is not otherwise prohibited by the laws of Hong Kong, United States or otherwise from purchasing the Supplies.
The Company reserves the right not to supply certain customers or to certain countries and to require from the Customer full details of the end use and final destination of the Goods.
22. TRADE COUNTER
The Customer must produce an official order if calling directly at the Trade Counter or having previously ordered by telephone or facsimile, if the Goods are to be charged to the Customer's commercial credit account. Goods collected at the Trade Counter are to be duly checked by the Customer for quantity, quality and condition. The Customer must notify the Company of any deficiencies in quantity or condition before leaving the Trade Counter otherwise it will be assumed that the Customer has accepted the Goods.
23. BUSINESS CUSTOMERS
The Company is a business to business supplier. The Catalogue and any specialogues and other product brochures produced by the Company are intended for use by business customers and not consumers. By ordering, the Customer confirms that he, she or it wishes to obtain the Supplies for the purposes of his, her or its business and not as a consumer.
24. AGE REQUIREMENT FOR CERTAIN GOODS
Where the law requires a minimum age for the purchase of certain Goods, the Customer confirms that he or she is over the required age and that delivery of the Goods will be accepted by a person over the relevant age limit.
25. PROHIBITED APPLICATIONS
The Goods are strictly prohibited for use in anti-personnel landmines, or in any connection with biological, chemical or nuclear weapons or missiles to deliver them under any circumstances.
The Goods are not authorised for use in space or aircraft or air traffic applications, life support or life sustaining equipment, surgical implantation equipment or for any other purpose where the failure or malfunction of the Goods could reasonably be expected to result in personal injury, death, environmental damage or severe property damage. Use or inclusion of the Goods in any such equipment, system or applications is also strictly prohibited.
The Customer will indemnify the Company and its suppliers against any and all losses, liability and expense (including legal and other costs) resulting from any such inclusion or use even if damage is attributed to defective design or manufacture.
26. FORCE MAJEURE
The Company shall not be liable to the Customer in any manner or be deemed to be in breach of these Conditions because of any delay in performing or any failure to perform any of the Company's obligations under these Conditions if the delay or failure was due to any cause beyond the Company's reasonable control (which shall include, but not be limited to government actions, war, fire, explosion, flood, import or export regulations or embargoes, labour disputes or inability to obtain or a delay in obtaining supplies of Goods or labour). The Company may, at its option, delay the performance of, or cancel the whole or any part of a Contract.
27. LEGAL CONSTRUCTION
These Conditions and all Contracts shall be governed by the laws of Hong Kong. The Courts of Hong Kong shall have jurisdiction to settle any disputes which may arise out of or in connection with these Conditions or any Contract. The jurisdiction agreement contained in this Condition 27 is made for the benefit of the Company only and the Company shall retain the right to bring proceedings in any other Court of competent jurisdiction. The parties agree to submit to the said jurisdiction.
Any provision of these Conditions which is held by any competent authority to be invalid, void, voidable, unenforceable or unreasonable (in whole or in part) shall to the extent of such invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the other provisions of these Conditions and the remainder of such provision shall not be affected.
Failure by the Company to enforce or partially enforce any provision of these Conditions shall not be construed as a waiver of any continuing or succeeding breach of such provision, a waiver of the provision itself, or a waiver of any other rights under these Conditions.
The Company shall be entitled, without the consent of or notice to the Customer, to assign the benefit, subject to the burden, of these Conditions and/or any Contract to any company in its group at any time. For the purposes of this Condition, "group" shall mean, in relation to the Company, the Company, any other body corporate which is the Company's holding company or subsidiary and any other body corporate which is a subsidiary of that holding company.
THESE CONDITIONS SUPERSEDE ALL PREVIOUS ISSUES
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