Definitions

In these Conditions the following capitalized terms shall have the following meanings:

Buyer the entity to whom Goods are supplied or agreed to be supplied by the Seller
Seller Traxon Technologies Limited
Conditions the General Sale Conditions set out in this document
Contract any contract for the sale and purchase of the Goods concluded between the Buyer and the Seller, incorporating these Conditions
Goods the goods which the Seller is to supply in accordance with these Conditions
Release Date the date of the written confirmation given for mass production of the Goods (and for the avoidance of doubt, not the actual production date of the Goods)
Warranty the limited warranty of the Seller in respect of the Goods, as set out in Article 4

Article 1 - General
1.1NO TERMS OR CONDITIONS OF PURCHASE OF THE BUYER SHALL APPLY UNDER ANY CIRCUMSTANCES (INCLUDING ANY TERMS OR CONDITIONS WHICH THE BUYER PURPORTS TO APPLY UNDER ANY PURCHASE ORDER, CONFIRMATION OF ORDER, SPECIFICATION OR OTHER DOCUMENT).
1.2These conditions shall apply to all business dealings by the Seller acting as seller or potential seller of Goods and any variation to these Conditions and any representation about the Goods shall have no effect unless expressly agreed in writing and signed by a director of the Seller.
1.3In the event a specific Contract between the Seller and the Buyer is concluded to which these Conditions apply, the provisions of such specific Contract shall prevail in case of a conflict between the provisions of such specific Contract and the provisions of these Conditions.
1.4Whenever "written" or "in writing" is used in these Conditions it shall mean by fax, e-mail, Electronic Data Interchange, internet or by means of any other protocol electronic medium.

Article 2 - Contract
2.1Information given in data sheets, brochures, etc. is only given as guidance and shall not be binding upon the Seller.
2.2The Seller is not obliged to make inquiries regarding the intended use of the Goods or the circumstances under which the Goods will be used by the Buyer.
2.3All orders are accepted by the Seller on the assumption that the order of the Buyer will be executed under normal labour conditions and during normal working hours. If an order of the Buyer will not be executed under normal labour conditions and during normal working hours, the Buyer shall be under the obligation to reimburse all additional costs incurred by the Seller with respect thereto.
2.4The Seller is entitled to terminate any negotiations with the Buyer at any time, without any compensation being due. The Seller shall not be obliged to continue negotiations.
2.5A Contract between the Seller and the Buyer is concluded, if the Seller accepts in writing the Buyer's order (whether such order is made orally or in writing), or if the Seller commences the execution of the order placed by the Buyer. Each order by the Buyer shall be deemed to be an offer by the Buyer to buy Goods subject to the Conditions.
2.6The Seller is entitled to reject an order placed by the Buyer in whole or in part within 14 days after the receipt of such order in writing. In that event no compensation whatsoever shall be due by the Seller.
2.7Verbal promises or agreements are only binding if confirmed in writing by the Seller.

Article 3 - Delivery and risk
3.1Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered EX WORKS (Incoterms 2000).
3.2Unless otherwise agreed in writing by the Seller, the Buyer shall be solely responsible for complying with any legislation or regulations governing the export of the Goods from the country of export and their import into the country of destination and for the payment of any duties, taxes and other governmental charges on them.
3.3The Seller shall not be deemed to assume any liability in connection with any shipment of the Goods arising from the acts or omissions of any nominated shipper or carrier and/or the failure to insure any shipment of the Goods or any part thereof.
3.4The times for delivery indicated by the Seller will only serve as an estimate and shall not be made of the essence by notice. If no dates for delivery are indicated, delivery shall be within a reasonable time. The Seller will only be in default after having received a written notice of default specifying a reasonable time for delivery and if it has failed to comply within such specified time.
3.5The Buyer shall make all arrangements necessary for taking delivery of the Goods whenever they are tendered for delivery. If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Seller is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions or documents:
  1. risk in the Goods shall pass to the Buyer (including for loss or damage caused by the Seller's negligence);
  2. the Goods shall be deemed to have been delivered; and
  3. the Seller may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs andexpenses (including, without limitation, storage and insurance).
3.6The Seller reserves the right to make delivery by instalments and to issue a separate invoice in respect of each instalment. When delivery is agreed to be by instalments or the Seller exercises its right to deliver by instalments and there is delay in the delivery of any one or more instalments for whatever reason this will not entitle the Buyer to damages or to treat the Contract as repudiated.
3.7Until such time as the property in the Goods passes to the Buyer, the Buyer shall:
  • hold the Goods on a fiduciary basis as the Seller's bailee;
  • keep the Goods (at no cost to the Seller) separate from those of the Buyer and third parties and properly stored, protected and identified as the Seller's property;
  • not install the Goods;
  • not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods;
  • maintain the Goods in satisfactory condition and keep them insured on the Seller's behalf for their full price against all risks to the reasonable satisfaction of the Seller. On request the Buyer shall produce the policy of insurance to the Seller.

Article 4 - Warranty and indemnification
4.1The Seller warrants the Goods against defects in material or workmanship for a period of (i) one (1) year from the date of purchase from the Seller for the Goods whose Release Date is on or before 31 December 2007 and (ii) two (2) years from the date of purchase from the Seller for the Goods whose Release Date is on or after 01 January 2008, on the following conditions:
4.1.1The Goods are used in accordance with the instructions and parameters stated in respective user manuals.
4.1.2The Warranty begins from the date the Goods are installed/purchased, or from the date appearing on the sales invoice in respect of the Goods, whichever is earlier.
4.1.3The Warranty shall cover defects that are attributable to material and/or manufacturing fault identified during the Warranty period.
4.1.4The Warranty shall be void in one or more of the following circumstances:
4.1.4.1the defect in the Goods is found to have been caused by misuse, abuse, improper handling or improper installation;
4.1.4.2the Goods have been used in combination with products not supplied by the Seller;
4.1.4.3the Goods have been altered, modified or changed without the prior consent of the Seller;
4.1.4.4the Goods have been operated under conditions other than those advised in respective product brochures or user manuals;
4.1.4.5original identification information of the Goods has been altered, obliterated, or removed; or
4.1.4.6the Goods have been serviced by personnel not unauthorised by the Seller.
4.1.5The Warranty does not cover:
4.1.5.1normal wear and tear of components due to use under normal operating conditions;
4.1.5.2natural degrading and color shift of light emitting diodes in the course of normal operation of the Goods;
4.1.5.3slight deviations from the specified quality that do not affect the value and functionality of the Goods; and
4.1.5.4Goods sold but not manufactured by the Seller. In respect of the Goods in this Article 4.1.5.4, the Seller shall, upon the Buyer's reasonable request, provide to the Buyer the warranty offered by the manufacturer, so far as it is permitted to do so.
4.1.6Goods identified in writing to the Seller as faulty within 14 days of delivery are eligible for replacement or repair (of the Goods or the part concerned) free of charge including cost of shipment. Any returns must be authorised in accordance with the Return Policy as set out in Article 6.
4.1.7Defects that are covered by the Warranty shall be corrected, at the discretion of the Seller, either by repair of the defective Goods or, subject to availability, by replacement with the same model, or a later model of the Goods.  The Seller does not guarantee that the repaired/replaced Goods shall be consistent in performance with the defective Goods (including, without limitation, in terms of color-brightness and evenness).
4.1.8This Warranty shall cover only parts or replacement consumables that are available from the manufacturer and/or on the market at the time when servicing is made.
4.1.9Due to inherent properties of light emitting diodes, the Seller does not warrant that the functioning and performance of the Goods, after being serviced by the Seller whether under the Warranty or otherwise, will be fully restored to its previous working condition.
4.2The Seller warrants only that at delivery the Goods comply with the description given by the Seller and with the contents of any warranty as to product, use or performance explicitly made by the Seller in writing.
4.3The Seller may from time to time make changes in the specification of the Goods which are required to comply with any mandatory laws and regulations regarding the nature or the quality of the raw materials and/or materials applied in the delivered Goods or which do not materially affect the quality or fitness for purpose of the Goods.
4.4In case of any disputes, the Seller reserves the right to make the final decision on all matters, including but not limited, to the period of the Warranty applicable to the Goods under Article 4.1.
4.5Any other warranty is explicitly excluded.
4.6The Seller reserves the right to amend the conditions of the Warranty without notice.

Article 5 - Complaints
5.1The Buyer is obliged to inspect the Goods at delivery in order to evaluate whether they conform to the Contract and are free from defects. If the Buyer fails to inform the Seller of any alleged defect or failure to conform with the Contract by giving reasons, as soon as possible in writing and in any case within 7 days after delivery of the Goods or after such moment that the defect or deviation should reasonably have been detected, the Goods shall be conclusively presumed to be in accordance with the Contract and free from any defect which would be apparent from a reasonable examination of the Goods and the Buyer shall be deemed to have accepted the Goods.
5.2The Goods in question shall remain available for inspection by the Seller in their state at the time the Seller receives a written notice referred to in Article 5.1. If a claim of the Buyer under this Article 5 is considered to be justified by the Seller, the Seller is, at its sole discretion, only obliged to either deliver the missing part or quantity, replace or repair the Goods delivered or to credit the Buyer the proportionate part of purchase price paid for the relevant Goods. The Buyer is obliged to follow the Seller's instructions with respect to the storage and/or return of the Goods to be replaced. Any returns must be authorised in accordance with the Return Policy as set out in Article 6.
5.3Any claim and/or defence based upon facts that would justify the claim that the Goods delivered do not conform to the Contract and/or are defective expires one (1) year after the date of delivery.
5.4This Article 5 does not apply in case of a claim under the Warranty.

Article 6 - Return Policy
6.1All returns must be made in accordance with this Return Policy. Before returning any Goods, the Buyer must obtain prior authorisation from the Seller by contacting [insert contact information].If the return is approved, the Seller shall send a Return Approval (RA) to the Buyer.
6.2Goods returned without a RA will either be rejected or returned by the Seller and any costs associated with the return shall be borne by the Buyer. The Seller shall not be deemed to assume any liability for any loss or damage to Goods whose return was not approved by the Seller in advance (including for loss or damage caused by the Seller's negligence).
6.3Any Goods returned must be in their original condition together with their original unmarked packaging. The Buyer shall pay a replacement fee for any damage to the Goods or any marking or damage to the packaging or any missing parts.
6.4Unless the Goods are being returned under the Warranty or after a complaint under Article 5, all requests for return must be made within [30 days] of the date of the sales invoice and the Buyer shall assume all costs and charges for any applicable freight, tax, levies and customs duties associated with the return.
6.5If the Goods are defective or faulty, the Seller shall either repair the Goods or replace them with the same model or a later model of the Goods. The Seller shall cover such transport costs of the return of Goods and delivery of repaired/replaced Goods to the Buyer as it deems reasonable.
6.6Credit may only be provided for authorised returns in the absolute discretion of the Seller.
6.7If the Seller agrees to accept the return of any Goods which conform to the Contract the Buyer shall be liable to pay a handling charge.
6.8Goods will not be accepted for return under any one or more of the circumstances set out in Articles 4.1.4 and 4.1.5 (other than Article 4.1.5.4).

Article 7 - Limitation of Liability
7.1Subject to Articles 3, 4 and 5, the following provisions set out the entire financial liability of the Seller (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of:
  1. any breach of these Conditions;
  2. any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and
  3. any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
7.2All warranties, conditions and other terms implied by statute or common law (save for the conditions implied by section 14 and in the case of the Buyer dealing as consumer (as defined in section 4 of the Control of Exemption Clauses Ordinance (Cap. 71) by sections 15 and 16 of the Sale of Goods Ordinance) are, to the fullest extent permitted by law, excluded from the Contract.
7.3Nothing in these Conditions excludes or limits the liability of the Seller:
  1. for death or personal injury caused by the Seller's negligence; or
  2. for any matter which it would be illegal for the Seller to exclude or attempt to exclude its liability; or
  3. for fraud or fraudulent misrepresentation.
7.4Subject to Article 7.2 and Article 7.3:
  1. the Seller's total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
  2. in no event shall the Seller be liable for consequential losses or damage, including but not limited to, loss of profits, loss of data, loss of contracts, loss of savings, depletion of goodwill or losses caused by disruption or cessation of the production and/or business in each case whether direct or indirect or consequential whether or not the Seller has been advised of the possibility thereof.
7.5The Buyer shall indemnify, defend and hold harmless the Seller and its associated parties including but not limited to, its officers, directors, agents, employees, affiliates, representatives, successors, and assigns from and against any and all third party claims for losses, liabilities, costs and expenses, including legal fees in relation to any loss or damage to property or injury to persons (including death) arising from (a) breach by the Buyer of any of its obligation herein contained; (b) negligent use, misapplication, improper installation, handling or implementation of the Goods by the Buyer; and/or (c) any modification of Goods by the Buyer without the express authorisation of the Seller, including but not limited to formulating, packaging and/or finishing the Goods itself in any manner whatsoever or integrating the Goods into other products . The Buyer shall not join, settle or otherwise compromise or dispose of any such claim or liability in any manner without the prior written consent of the Seller.

Article 8 - Force majeure
8.1Except as hereinafter provided, no party shall be liable for any reasonable default or delay in the performance of the terms of these Conditions where such failure is due to force majeure (as hereinafter defined) affecting that party.
8.2The term "force majeure" referred to in these Conditions shall mean any circumstances the cause of which is not reasonably within the control of the party claiming force majeure and which affect the performance by it under these Conditions and shall include, without limitation, strikes or other labour conflicts, lock-outs or industrial disputes or disturbances (whether or not relating to either party's workforce), protests, riots, civil disturbances, any default of third parties affecting the performance of the Contract, hindrances, restrictions or obstructions in respect of the extraction, production, supply and/or importation of raw and auxiliary materials for the product and/or the manufacturing of the product and/or the transportation of the materials for the product, breach of contract by suppliers, fire, storm, floods, explosions, epidemic, measures by any public authority, acts of God, war or national emergency, acts of terrorism, the inability to obtain or retain necessary authorisations, permits, easements or rights of way.
8.3Upon the occurrence of an event constituting force majeure, the party affected by this event shall take all measures which may reasonably be required to perform its obligations under the Contract as quickly as possible. The parties shall, if necessary, jointly examine the measures to be taken to limit the effect of force majeure.
8.4In the event that a party wishes to rely on a condition of force majeure, that party shall notify the other party as soon as reasonably possible, but in no case later than 72 hours after discovery of such condition.

Article 9 - Retention of title
9.1The Seller retains title relating to the Goods delivered or to be delivered, until the Buyer has made payment in full and/or any other obligations with respect to all Goods delivered or to be delivered under the Contract and all other payment obligations which are or which become outstanding from the Buyer to the Seller on any account.
9.2The Buyer shall notify the Seller immediately, if:
  1. third parties exercise rights to the Goods referred to in Article 9.1 or if the Buyer becomes aware of the fact that third parties wish to do so; or
  2. if any arrangements with the Buyer's creditors are made; or
  3. an application for bankruptcy is filed with regard to the Buyer or the Buyer is declared bankrupt in any jurisdiction.
9.3The Buyer's right to possession of the Goods shall terminate immediately if:
  1. the Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator, provisional liquidator or liquidator (or similar person in any jurisdiction) appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator (or similar person in any jurisdiction) of the Buyer or notice of intention to appoint an administrator (or similar person in any jurisdiction) is given by the Buyer or its directors or by a provisional liquidator or liquidator, or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an order for appointment of an administrator (or similar person in any jurisdiction) in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or
  2. the Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Seller and the Buyer; or is unable to pay its debts as they fall due or the Buyer ceases to trade; or
  3. the Buyer encumbers or in any way charges any of the Goods.
9.4Notwithstanding that the Goods (or any of them) remain the property of the Seller the Buyer may sell or use the Goods in the ordinary course of the Buyer's business at full market value for the account of the Seller. Any such sale or dealing shall be a sale or use of the Seller's property by the Buyer on the Buyer's own behalf and the Buyer shall deal as principal when making such sales or dealings. Until property in the Goods passes from the Seller the entire proceeds of sale or otherwise of the Goods shall be held in trust for the Seller and shall not be mixed with other money or paid into any overdrawn bank account and shall be at all material times identified as the Seller's money.
9.5Where the Buyer's right to possession has terminated, the Seller has the right, without prior notice being required, to repossess the Goods delivered. The Buyer herewith irrevocably authorises the Seller, or any third party designated by the Seller, to enter those premises of the Buyer where the Goods have been stored. All costs relating to the repossession of the Goods are borne by the Buyer.
9.6The Seller shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Seller.
9.7Where the Seller is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Seller to the Buyer in the order in which they were invoiced to the Buyer.
9.8The Buyer may not pledge any Goods of which the Seller retains title without the prior written consent of the Seller.
9.9On termination of the Contract, howsoever caused, the Seller's (but not the Buyer's) rights contained in this Article 9 shall remain in effect.

Article 10 - Suspension and termination
10.1In case the Buyer fails to comply with any of its obligations under the Contract; or if any event described in Article 9.3 occurs, the Seller shall be entitled in its absolute discretion to entitled to terminate or rescind the Contract with the Buyer in whole or in part with immediate effect or to suspend the performance of its obligations under the Contract and exercise any of its rights pursuant to Article 9, all such without prejudice to any other rights or remedies the Seller may have and without any compensation being due by the Seller.
10.2In case the Seller terminates the Contract in accordance with Article 10.1, without prejudice to any other rights or remedies the Seller may have, any and all claims the Seller may have vis-à-vis the Buyer shall become immediately due and payable.

Article 11 - Prices
11.1The prices shall be quoted in such currency as set out in the Contract, and shall be exclusive of taxes and levies and other governmental charges and costs or charges for packing materials and/or packaging other than for standard packaging, loading, unloading, transport and insurance, all of which amounts the Buyer shall pay in addition to the price for the Goods.
11.2In case, upon the formation of the Contract, fluctuations occur in one or more of the factors constituting the Seller's cost price, such as, but not limited to, cost of raw materials, wages, insurance premiums, freight, exchange rates and taxes, the Seller is entitled to adjust the prices accordingly. The Seller will inform the Buyer in writing of the price adjustment. The Buyer will be deemed to have accepted the price adjustment unless it has informed the Seller within 14 days after receipt of such notice that it wishes to terminate the Contract.

Article 12 - Payment
12.1Unless otherwise agreed in writing, payment must be made COD (Cash on Delivery). Payment by the Buyer shall be made in full in the currency set out in the sales invoice and without any deduction whether by way of set-off, counterclaim, discount, abatement and/or suspension or otherwise unless the Buyer has a valid court order requiring an amount equal to such amount to be paid by the Seller to the Buyer.
12.2Time for payment shall be of the essence.
12.3No payment shall be deemed to have been received until the Seller has received cleared funds.
12.4All payments payable to the Seller under the Contract shall become due immediately on its termination.
12.5If payment is not received by the due date, the Seller shall be entitled, without prejudice to any other rights and remedies that the Seller may have, and without any written notice of default being required, to charge interest at two percent above the prime lending rate quoted by the Seller's banker on the outstanding amount(s) until full payment is received. The Seller shall in such case also be entitled to request immediate payment of all invoices, irrespective whether these are due, and to immediately suspend performance of all of its obligations.
12.6All costs with respect to payment, including but not limited to transaction charges, taxes, fees and costs with respect to the provision of security, shall be for the Buyer's account and expense.
12.7All legal costs, which expressly includes costs incurred by drafting notice letters, conducting settlement negotiations, and performing any other acts relating to the preparation of legal proceedings, and judicial costs which the Seller might incur pursuant to a default of the Buyer shall be borne by the Buyer.
12.8Payments by the Buyer shall be deemed to have been made first to settle judicial and extra judicial costs as stipulated in Article 12.7, accrued interest as stipulated in Article 12.5, thereafter they shall be charged to the oldest debt, irrespective of any indications made by the Buyer.

Article 13 - Security
13.1In case the Seller has good reason to believe that the Buyer will not fulfil its obligations under a Contract, the Buyer is obliged to provide at the Seller's request satisfactory security in any form requested by the Seller, including but not limited a pledge on receivables, with respect to the fulfilment of the Buyer's payment obligations.
13.2In case the Buyer fails to comply with the Seller's request for satisfactory security within 7 days after having received such a request, any and all payment obligations of the Buyer, shall become due and payable, and the Seller is entitled to suspend immediately fulfilment of all its obligations, without prejudice to any other rights or remedies the Seller may have.

Article 14 - Industrial/intellectual property rights, confidentiality
14.1The Buyer may only use the trade names, logos, patents, copyrights, trademarks and/or any other intellectual property rights of the Seller for the purpose of the Contract. The specification and design of the Goods (including the copyright, design right or other intellectual property in them shall as between the parties be the property of the Seller.
14.2The Buyer shall not disclose to any third party in any manner whatsoever any confidential information relating to the Goods and/or the business of the Seller save to the extent required under applicable laws, rules and regulations.
14.3The Buyer is obliged to indemnify and hold the Seller harmless against any and all claims of third parties relating to the alleged infringement of copyright, patent or intellectual property rights in the event the Buyer has formulated, packaged and/or finished the Goods itself in any manner whatsoever.

Article 15 - Miscellaneous
15.1Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms 2000 shall have the same meaning in these Conditions but if there is any conflict between the provisions of Incoterms 2000 and these Conditions, the latter shall prevail.
15.2Each right and remedy of the Seller under the Conditions is without prejudice to any other right or remedy of the Seller whether under the Conditions or not.
15.3Failure or delay by the Seller in enforcing or partially enforcing any provision of the Conditions shall not be construed as a waiver of any of its rights under the Conditions.
15.4Any waiver by the Seller of any breach of, default under, any provision of the Conditions by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Conditions.
15.5If any provision of these Conditions, or part thereof is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, voidable or unenforceable or unreasonable it shall to the extent of such illegality, invalidity, voidness, voidability, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Conditions and the remainder of such provision, shall remain in full force and effect.

Article 16 - Governing law and competent court
16.1All Contracts and these Conditions shall be governed by and construed in accordance with the laws of the Hong Kong Special Administrative Region of the People's Republic of China.. The provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to these Conditions nor to any individual Contract.
16.2Any dispute arising out of or in connection with these Conditions and/or any other legal relationship between the Seller and the Buyer shall be submitted to the exclusive jurisdiction of the Hong Kong courts.
         
 
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