Watts Clever Supply Terms
The customer's attention is drawn in particular to the provisions of condition 8
These terms of supply (“Supply Terms”) shall apply to the supply of the Products to the Customer by Watts Clever.
1.1 In these Supply Terms, the following terms shall have the following meanings:
“Business Day” means a day (other than a Saturday, Sunday or public holiday) when banks in Hong Kong are open for business;
“Contract” means the contract between the Customer and Watts Clever for the sale and purchase of the products formed in accordance with condition 2.4;
“Customer” the person or firm who purchases the Products from Watts Clever;
“Force Majeure Event” an event specified in condition 9.1;
“Order” the Customer’s order for the Products, as set out in the Customer’s purchase order form, the Customer’s written acceptance of Watts Clever Limited's quotation, as the case may be;
“Products” the products (or any part of them) set out in the Order;
1.2 In these Supply Terms, unless the context otherwise requires:
(a) references to persons includes individuals, bodies corporate (wherever incorporated), unincorporated associations and partnerships;
(b) the headings are inserted for convenience only and do not affect the construction of the Agreement;
(c) references to one gender includes all genders;
(d) Words in the singular shall include the plural and vice versa.
(e) A reference to a statute, statutory provision or any subordinated legislation made under a statute is a reference to such statute, provision or subordinated legislation as amended or re-enacted from time to time, whether before or after the date of this agreement and in the case of a reference to a statute is also to all subordinate legislation made under that statute whether before or after the date of this Agreement; provided that, as between the parties, no such amendment or re-enactment shall apply for the purposes of this agreement to the extent that it would impose any new or extended obligation, liability or restriction on, or otherwise adversely affect the rights of any party.
(f) A reference to any party shall include that party's personal representatives, successors or permitted assigns.
(g) A reference to writing or written includes faxes and e-mail.
(h) Any reference to an English legal term for any action, remedy, method of judicial proceeding, legal document, legal status, court, official or any legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to what most nearly approximates to the English legal term in that jurisdiction.
(i) Any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2. Order and Supply of the Products
2.1 Watts Clever Limited shall use reasonable endeavours to supply the Products to the Customer.
2.2 These Supply Terms apply to each Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.3 Each Order for Products from the Customer to Watts Clever Limited shall be deemed to be an offer by Watts Clever Limited to purchase the Products subject to these Supply Terms. The Contract will be on these Supply Terms to the exclusion of all other terms and conditions (including any terms or conditions which the Customer purports to apply under any purchase order, confirmation of order, specification or other document).
2.4 No Order placed by the Customer shall be deemed to be accepted by Watts Clever Limited until a written acknowledgement of Order is issued by Watts Clever Limited or (if earlier) Watts Clever Limited commences work to fulfil the Order by advising the Customer of the estimated delivery date or otherwise, at which point and on which date the Contract shall come into existence.
2.5 The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of Watts Clever Limited which is not set out in the Contract. Any samples, drawings, descriptive matter, or advertising issued by Watts Clever Limited and any descriptions or illustrations contained in catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Products described in them. They shall not form part of the Contract or any other contract between Watts Clever Limited and the Customer for the sale of the Products.
2.6 A quotation for the Products given by Watts Clever Limited shall not constitute an offer. A quotation shall only be valid for a period of 30 Business Days from its date of issue.
2.7 The Customer shall, in respect of each Order for the Products to be supplied hereunder be responsible for:
(a) ensuring the accuracy of the Order;
(b) providing Watts Clever Limited with any information which is necessary to enable Watts Clever Limited to fulfil the Order.
Provided that the Customer complies with the terms of Condition 2.8 above and subject to Condition 2.11, Watts Clever Limited shall use all reasonable endeavours to meet the Customer’s requested delivery date.
2.11 Any dates specified by Watts Clever Limited for delivery are intended to be an estimate and time shall not be of the essence for delivery and shall not be made of the essence by notice. If no dates are so specified, delivery will be within a reasonable time.
21.12 Watts Clever Limited shall be entitled to rely upon the specification and any advice and instructions given by the Customer (including in relation to the suitability of the Products for meeting the Customer’s requirements) (the “Customer Information”) such that to the extent that the Products comply with such Customer Information then Watts Clever Limited shall be deemed to have supplied in accordance with these Terms.
2.13 If the Customer wishes to amend any Customer Information or in the event that such Customer Information, advice and/or instructions is subsequently found to be inaccurate and/or not complete for any reason other than Watts Clever Limited's negligence Watts Clever Limited will be entitled to alter these Terms of Supply for the provision of the Products (including without limitation increasing the price of the Products).
3. Title, Risk and Delivery
3.1 The title in any Products shall not pass to the Customer until Watts Clever Limited receives payment in full of all sums (in cash or cleared funds) for:
(a) the Products; and
(b) any other products that Watts Clever Limited has supplied to the Customer, which are due by the Customer under Condition 4 below.
3.2 Until title to the Products has passed to the Customer, the Customer shall:
(a) hold the Products on a fiduciary basis as Watts Clever Limited's bailee;
(b) store the Products separately from all other products held by the Customer so that they remain readily identifiable as Watts Clever Limited's property;
(c) not remove, deface or obscure any identifying mark or packaging on or relating to the Products;
(d) maintain the Products in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
(e) notify Watts Clever Limited immediately if it becomes subject to any of the events listed in condition 7.2; and
(f) give Watts Clever Limited such information relating to the Products as Watts Clever Limited may require from time to time, but the Customer may resell or use the Products in the ordinary course of its business.
3.3 The Customer grants Watts Clever Limited, its agents and employees an irrevocable licence at any time on giving two (2) days written notice to the Customer, or without notice where the Customer’s right to possession has terminated, to enter any premises where the Products are or may be stored in order to inspect them, or, where the Customer's right to possession has terminated, to recover them.
3.4 Where Watts Clever Limited is unable to determine whether any Products are the Products in respect of which the Customer's right to possession has terminated, the Customer shall be deemed to have sold all Products of the kind sold by Watts Clever Limited to the Customer in the order in which they were invoiced to the Customer.
3.5 Unless otherwise agreed between the parties, delivery of all Products to be supplied pursuant to these Supply Terms shall be made as specified in the Order. If the Customer requires delivery by air freight the Customer shall, in addition to the price, be liable for paying all costs of transport and insurance relating to such delivery. In such event, written notice of dispatch of any Products shall constitute sufficient notice in terms of Section 32(3) of the Sale of Goods Act 1979 so as to oblige the Customer to forthwith insure such Products during their transit.
3.6 Where Watts Clever Limited agrees to arrange for transport and insurance as agent for the Customer, the Customer shall reimburse to Watts Clever Limited the full costs thereof and all the applicable provisions of these Supply Terms shall apply with the respect to the payment of such costs as they apply to payment of the price of the Products.
3.7 Risk in the Products shall pass to the Customer on completion of delivery.
3.8 If Watts Clever Limited fails to deliver the Products, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Products. Watts Clever Limited shall have no liability for any failure to deliver the Products to the extent that such failure is caused by a Force Majeure Event or the Customer's failure to provide Watts Clever Limited with adequate delivery instructions or any other instructions that are relevant to the supply of the Products.
3.9 Watts Clever Limited may deliver the Products by instalments, which shall be invoiced and paid for separately. Each instalment shall constitute a separate Contract. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
4. Price and Payment for the Products
4.1 The prices of all Products to be supplied hereunder shall be the price set out in the Order, or, if no price is quoted Watts Clever Limited list price which may alter from time to time (inclusive of packaging costs) and accordingly Watts Clever Limited shall:
(a) supply to the Customer up to date copies of all price lists for the Products from time to time; and
(b) give the Customer not less than thirty (30) days advance notice in writing of any alteration in such list prices, and the prices as so altered shall apply to all Products ordered under Orders placed by the Customer on and after the applicable date of the increase.
4.2 Unless otherwise agreed by the parties, payment of the price for the Products shall be made within 5 days of the date of Watts Clever Limited invoice for the same in full and cleared funds by cheque or to a bank account nominated in writing by Watts Clever Limited. Time for payment is of the essence.
4.3 If the Customer fails to pay the price for the Products in accordance with the credit terms set out above Watts Clever Limited shall be entitled (without prejudice to any other right or remedy it may have) to:
(a) cancel or suspend any further delivery to the Customer under any Order; and
(c) sell or otherwise dispose of any Products that are the subject of any Order by the Customer, whether or not appropriated thereto, and apply the proceeds of sale to the overdue payment.
4.4 The Customer may not withhold payment of any amount due to Watts Clever Limited because of any set-off, counter-claim, abatement, or other similar deduction .
4.6 Watts Clever Limited reserves the right to charge interest on any amounts overdue at the rate of 2% per annum above the base rate of HSBC Hong Kong from time to time. The interest period shall run from the due date for payment until receipt of the full amount by Watts Clever Limited whether before or after judgment.
4.7 All sums payable under the Contract, or otherwise payable by any party to any other party under the Contract are exclusive of any value added tax or other applicable sales tax, which shall be added to the sum in question. All sums payable under the Contract shall be paid free and clear of all deductions and withholdings whatsoever, unless the deduction or withholding is required by law. If any deduction or withholding is required by law the Customer shall pay to Watts Clever Limited such sum as will, after the deduction or withholding has been made, leave Watts Clever Limited with the same amount as it would have been entitled to receive in the absence of any such requirement to make a deduction or withholding. If the Customer is required by law to make a deduction or withholding, the Customer shall, within five business days of making the deduction or withholding, provide a statement in writing showing the gross amount of the payment, the amount of the sum deducted and the actual amount paid.
4.9 All taxes, charges, levies, assessments and other fees of any kind imposed on the purchase or import of the Products shall be the responsibility of, and for the account of, the Customer.
5.1 Watts Clever Limited warrants that on delivery, and for a period of 12 months from the date of delivery (warranty period), the Products shall:
(a) conform in all material respects with their description and any applicable specification of the Products provided by Watts Clever Limited;
(b) be free from material defects in design, material and workmanship.
6. Defective Products
Subject to condition 5.1, if:
(a) the Customer gives notice in writing to Watts Clever Limited during the warranty period within a reasonable time of discovery that some or all of the Products do not comply with the warranty set out in condition 5; and
(b) Watts Clever Limited is given a reasonable opportunity of examining such Products; and
(c) the Customer (if asked to do so by Watts Clever Limited) returns such Products to Watts Clever Limited place of business at the Customer's cost,
Watts Clever Limited shall, at its option, repair or replace the defective Products, or refund the price of the defective Products in full together with the Customer’s reasonable costs of returning the Products to 2SE in accordance with condition 5.1(c).
6.2 Watts Clever Limited shall not be liable for Products' failure to comply with the warranty set out in condition 6 if:
(a) the Customer makes any further use of such Products after giving notice in accordance with condition 6.1; or
(b) the defect arises because the Customer failed to follow Watts Clever Limited written instructions as to the storage, commissioning, installation, use and maintenance of the Products or (if there are none) good trade practice; or
(c) the defect arises as a result of Watts Clever Limited following any Customer Information (including any drawing, design or specification) supplied by the Customer; or
(d) the Customer alters or repairs such Products without the written consent of Watts Clever; or
(e) the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions.
6.3 Except as provided in this condition 6, Watts Clever Limited shall have no liability to the Customer in respect of the Products' failure to comply with the warranty set out in condition 5.
6.5 These Conditions shall apply to any repaired or replacement Products supplied by Watts Clever Limited.
7. Customer’s insolvency or incapacity
7.1 If the Customer becomes subject to any of the events listed in condition 7.2, or Watts Clever Limited reasonably believes that the Customer is about to become subject to any of them and notifies the Customer accordingly, then, without limiting any other right or remedy, Watts Clever Limited may at any time:
(a) cancel or suspend all further deliveries under the Contract or under any other contract between the Customer and Watts Clever Limited
(b) require the Customer to deliver up the Products and, if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Products are stored in order to recover them, without incurring any liability to the Customer, and all outstanding sums in respect of Products delivered to the Customer shall become immediately due and payable.
7.2 For the purposes of condition 7.1 the relevant events are:
(a) the Customer suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986, or (being a partnership) has any partner to whom any of the foregoing apply; or
(b) the Customer commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (where the Customer is a company) these events take place for the sole purpose of a scheme for a solvent amalgamation of the Customer with one or more other companies or the solvent reconstruction of the Customer; or
(c) (being an individual) the Customer is the subject of a bankruptcy petition or order; or
(d) a creditor or encumbrancer of the Customer attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of its assets and such attachment or process is not discharged within 14 days; or
(e) (being a company) an application is made to court, or an order is made, for the appointment of an administrator or if a notice of intention to appoint an administrator is given or if an administrator is appointed over the Customer; or
(f) (being a company) a floating charge holder over the assets of the Customer has become entitled to appoint or has appointed an administrative receiver; or
(g) a person becomes entitled to appoint a receiver over the assets of the Customer or a receiver is appointed over the assets of the Customer; or
(h) any event occurs, or proceeding is taken, with respect to the Customer in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in condition 7.2(a) to condition 7.2(g) inclusive; or
(i) the Customer suspends, threatens to suspends, ceases or threatens to cease to carry on all or substantially the whole of its business; or
(j) the financial position of the Customer deteriorates to such an extent that in the opinion of Watts Clever Limited the capability of the Customer adequately to fulfil its obligations under the Contract has been placed in jeopardy.
(k) (being an individual) the Customer dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his or her own affairs or becomes a patient under any mental health legislation.
8.1 In this Condition 8 the following shall mean an “Event of Default”:
(a) any breach by Watts Clever Limited of its contractual obligations arising under the Agreement (other than a breach arising from wilful default or recklessness);
(b) any misrepresentation by Watts Clever Limited in connection with (whether or not contained in the Agreement) Watts Clever Limited (other than a fraudulent misrepresentation);
(c) any tortious, act or omission, including negligence, arising in connection with Watt Clever Limited's performance under the Agreement (other than any act or omission which is fraudulent or dishonest); and/or
(d) any other act giving rise to a liability in respect of the Supply Terms.
8.2 Watts Clever Limited shall not be liable for any delay or failure to provide the Products caused by:
(a) any act or omission of the Customer which is relative to its obligations under the Agreement; and/or
(b) any failures of any third parties to provide the Products.
Subject to condition 8.13 the Customer acknowledges that Watts Clever Limited's shall have no liability in respect of the suitability of the Products which have been recommended and/or selected by the Customer in accordance with Watts Clever Limited's requirements and the Customer Information.
Subject to condition 8.13 Watts Clever Limited shall not be liable to the Customer in respect of any Event of Default for loss of profits, goodwill or any type of special indirect or consequential loss or damage (including loss or damage suffered by the Customer as a result of an action brought by a third party) even if such loss was reasonably foreseeable or Watts Clever Limited had been advised of incurring the same.
Subject to condition 8.13 Watts Clever Limited's entire liability to the Customer in respect of any individual Event of Default shall be limited to the price paid for the Products that are the subject of the Event of Default.
8.7 In the event that any advice provided to the Customer by Watts Clever Limited was provided free of charge by Watts Clever Limited then such advice is provided as is without any warranty of any kind from Watts Clever Limited and shall have no liability in relation thereto.
8.8 Except in the case of an Event of Default arising under condition 8.13 Watts Clever Limited shall have no liability to the Customer in respect of any Event of Default unless notice in writing of such claim (specifying in reasonable detail with supporting evidence the event, matter or default which gives rise to the claim and an estimate of the amount claimed) has been given to Watts Clever Limited within 3 months of the Customer becoming aware of the circumstances and in any event within 12 months following delivery which give rise to such claim provided that without prejudice to their rights, Watts Clever Limited and the Customer agree that if they have reason to believe that they may have a cause of action hereunder, they shall liaise with the other in an open and co operative way with a view to rectifying the reason for such cause of action whenever practicable.
8.9 If a number of Events of Default give rise substantially to the same loss or a number of Events of Default flow from the same defect then such Events of Default shall be regarded as giving rise to only one claim under these Supply Terms.
8.10 The Customer hereby agrees to afford Watts Clever not less than 60 days (following notification thereof by the Customer) in which to remedy any Event of Default hereunder.
Nothing in this condition shall confer any right or remedy upon the Customer to which it would not otherwise be legally entitled.
8.12 Watts Clever shall not be liable for defects in the products that arise as a result of fair wear and tear, abnormal conditions of storage, of use or any act, neglect or default of the Customer or any third party.
Notwithstanding any other provision under these Supply Terms or otherwise each party’s liability to the other for:
(a) death or personal injury resulting from its own or its employees’, agents’ or sub-contractors’ negligence; and/or
(b) any breach of its obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982; and/or
(c) in relation to any fraudulent misrepresentation or fraudulent acts of its employees shall not be limited or excluded.
Subject to condition 8.13, all warranties conditions and terms implied by Statute or common law are, to the fullest extent permitted by law, excluded from the Contract.
9. Force Majeure
Neither party, nor any of its employees, agents or sub-contractors, shall be liable to the other for any failure or delay in performing any of its obligations under or pursuant to the Contract if the failure or delay results from any of the following: act of God, explosion, fire, accident, lightning, tempest, flood, fog or bad weather, outbreak of war, hostilities, riot, civil disturbance, acts of terrorism, the act of any government or authority (including refusal or revocation of any licence or consent), power failure, failure of telecommunications lines, failure or breakdown of plant, machinery or vehicles, default of suppliers or sub-contractors, theft, malicious damage, strike, lock-out or industrial action of any kind, any cause or circumstance whatsoever beyond the reasonable control of such party provided that such party promptly notifies the other in writing of the reason for and expected duration of the delay.
9.2 Such a failure or delay shall not constitute a breach of the Contract. The time for performance of the Contract shall be extended by a period equivalent to the delay, provided that if such delay or failure persists for more than three months, either party shall have the right to terminate the Contract forthwith on giving notice in writing to the other party.
10. Nature of Supply Terms
10.1 Watts Clever may at any time assign, transfer, mortgage, charge or deal in any other similar manner with any or all of its rights and obligations under the Contract. Watts Clever may sub-contract or delegate in any manner any or all of its obligations under the Contract to any third party or agent PROVIDED THAT Watts Clever must give the Customer prompt notice of any assignment of the Contract to a third party.
10.2 The Contract is personal to the Customer and the Customer shall not assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under the Contract without Watts Clever prior written consent (such consent not to be unreasonably withheld or delayed).
10.3 Each party confirms it is acting on its own behalf and not for the benefit of any other person.
Nothing in these Supply Terms shall create, or be deemed to create, a partnership or the relationship of principle and agent or employer and employee between the parties nor authorise any party to make or enter into any commitments for or on behalf of any other party.
10.5 It is acknowledged and agreed that these Supply Terms (including the documents and instruments referred to herein) (“the Documents”) shall supersede all prior representations arrangements understandings and agreements between the parties relating to the subject matter hereof and shall constitute the entire complete and exclusive agreement and understanding between the parties hereto.
10.6 The parties irrevocably and unconditionally waive any right they may have to claim damages for any misrepresentation arrangement understanding or agreement not contained in the Documents or for any breach of any representation not contained in the Documents (unless such misrepresentation or representation was made fraudulently);
10.7 It is further acknowledged and agreed that no representations arrangements understandings or agreements (whether written or oral) made by or on behalf of any of the other parties have been relied upon other than those expressly set out or referred to in the Documents.
10.8 If any provision of these Supply Terms is held by any Court or other competent authority to be void or unenforceable in whole or part, these Supply Terms shall continue to be valid as to the provisions hereof and the remainder of the affected provision.
10.9 Save as expressly provided to the contrary in a Contract, a person who is not a party to a Contract shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.
10.10 Any notice to be given under this Agreement shall be in writing and shall be delivered personally or sent by first class pre-paid or registered or recorded delivery post or by facsimile transmission to the registered office for the time being or last known principal place of business or facsimile number of the party to receive the notice.
10.11 The notice referred to in condition 10.10 shall be deemed to be given if delivered personally at the time of delivery or if sent by post 2 Business Days after the notice shall have been posted or if sent by facsimile at the time of completion of transmission by the Sender.
10.12 In proving service of a notice referred to in condition 10.10 it shall be sufficient to prove that personal delivery was made or that the envelope containing the notice was properly addressed and delivered into the custody of the postal authorities as a first class pre-paid or registered or recorded delivery letter or that the facsimile was despatched and a confirmatory transmission report received.
10.13 A notice required to be given under or in connection with this Agreement shall not be validly given if sent by e-mail.
10.14 No failure or delay by any party in exercising any right or remedy provided by law under or pursuant to this Agreement shall impair such right or remedy or operate or be construed as a waiver or variation of it or preclude its exercise at any subsequent time and no single or partial exercise of any such right or remedy shall preclude any other or further exercise of it or the exercise of any other right or remedy.
10.15 No amendment or variation of this Agreement shall be valid unless it is in writing and signed by or on behalf of each of the parties to it.
11. Governing Law
The Contract, and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims), shall be governed by, and construed in accordance with, Hong Kong law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Hong Kong.