Terms and Conditions of Purchase

Last Updated: 9th August 2023

1. General

1.1 These Terms and Conditions of Purchase (“T&C”) shall, to the exclusion of terms and conditions applied by suppliers or third parties, govern all requests for quotations made by M800 Limited (“M800”) to the supplier who is supplying Goods to M800 ("Supplier"), as well as all agreements such as acceptance of quotations, order confirmations and purchasing orders, etc. entered into between M800 and Supplier, except to the extent that these T&C specify otherwise.

1.2 Each of M800 and Supplier under these T&C is individually referred to as a “Party” and collectively as the “Parties”.

1.3 Deviating conditions shall only apply to the extent that M800 expressly agrees to them in writing, and they shall apply exclusively to the agreement(s) for which they are made.

1.4 In these T&C, "Goods" shall be understood to include any and all tangible and intangible goods and services such as hardware, software, equipment, license and the renewal thereof, service and the result thereof, etc. supplied by Supplier to M800.

 

2. Requests for quotations

2.1 All requests for quotations and all information furnished in this context by or on behalf of M800 may contain commercial secrets, shall be treated with confidentiality and may only be used to prepare for the submission of a quotation. Except where required in preparing for the submission of a quotation or where permitted, any kind of reproduction or publication of a request for a quotation shall be prohibited in any form.

 

3. Agreement

3.1 A quotation from the Supplier shall be irrevocable for a period of no less than thirty (30) days after its receipt by M800, unless otherwise agreed by the Parties.

3.2 M800 shall be entitled at all times to terminate negotiations without giving reasons and without being liable to compensate the Supplier.

3.3 An agreement shall be deemed to have been concluded as soon as M800 accepts a written quotation by means of placing a written order. If, however, the order is sent after expiry of the period referred to in Clause 3.1 or the order deviates significantly from the quotation, the agreement shall be deemed to have been concluded in accordance with the order, unless the Supplier rejects the order in writing within seven (7) days of the date of the order. The following items shall form an integral part of the agreement:

(1) the (purchase) order from M800;

(2) these Terms and Conditions of Purchase;

(3) the quotation and the acceptance thereof;

(4) the request for a quotation.

In the event of any contradiction between the provisions contained in two different documents, the documents shall prevail in their numerical order, with (1) taking precedence over (2) etc.

3.4 If the Supplier has not made an offer or has made a verbal offer, the agreement shall be deemed to have been concluded by the Supplier accepting, in writing, a written order from M800 within fourteen (14) days of the date of said order.

3.5 Agreements may only be amended and/or supplemented in writing by both Parties.

 

4. Quality

4.1 The Goods supplied must satisfy the provisions of the agreement. They shall not be deemed to have satisfied the provisions of the agreement if they do not possess the properties which M800 was entitled to expect pursuant to the agreement.

4.2 Where no detailed description has been provided of the requirements of the Goods, they shall in any event be of good quality and satisfy, at the very least, the normal requirements of reliability, effectiveness, fitness for purpose, merchantability and workmanship.

4.3 M800 shall be entitled to reject Goods because they do not satisfy the provisions of the agreement, provided that M800 informs the Supplier accordingly within thirty (30) days of having discovered this to be the case. If M800 subjects the Goods to inspection, a notification of defects which M800 could reasonably be expected to have detected during said inspection, shall take place within thirty (30) days of the inspection having been completed.

4.4 The Goods delivered must be free from all charges, limitations and rights, including limitations and rights which are connected with intellectual property rights, with the exception of charges, limitations and rights which the Supplier informed M800 about in writing and which M800 has expressly accepted in writing. The Supplier shall hold M800 harmless against third-party claims in this respect, and also against any and all damage and costs which M800 might incur in this connection.

 

5. Testing and inspection

5.1 M800 shall be entitled to test and/or inspect the Goods for, amongst other things, damage, quantity, quality and weight after delivery.

5.2 The Supplier shall be obliged to render, free of charge, all reasonable cooperation required by M800 within the context of the testing and inspection, including the granting of access to the Supplier's facilities and the provision of personnel expertise.

5.3 Should the Goods become damaged or are used during testing, the Supplier shall have no claims against M800 if the Goods are partially or totally rejected.

5.4 Should M800 reject the Goods or find them not to be in order during an inspection, the Supplier shall immediately refund to M800 all amounts paid for the Goods and collect them at its own expense from M800 within fourteen (14) days of M800 having informed the Supplier in this respect. Should the Supplier fail to satisfy this obligation, M800 shall be entitled to have the Goods disposed of or delivered to the Supplier at the Supplier's expense, without prejudice to any of M800’s other rights or claims.

 

6. Delivery and transfer of title

6.1 The Supplier shall deliver the Goods on the scheduled delivery date or within the agreed period to the agreed location. If delivery of Goods is delayed more than one (1) days beyond the scheduled delivery date, M800 may cancel the delivery by notice, and without liability, to the Supplier.

6.2 M800 may reschedule the delivery of all or part of the Goods ordered by M800 by notice to the Supplier no less than seven (7) days prior to the scheduled delivery date.

6.3 M800 shall acquire title to the Goods upon delivery or payment, whichever is earlier.

 

7. Risk of loss

7.1 The risk of loss attaching to the Goods shall pass to M800 with effect from delivery.

7.2 In the event that M800 rejects the Goods, finds them not to be in order during inspection, or invokes its right to terminate the agreement on reasonable grounds or its right to have the Goods replaced, the risk of loss attaching to the Goods shall be deemed to have remained with the Supplier throughout.

 

8. Prices, charges, invoices and payment

8.1 All prices and charges shall be deemed to include all direct and indirect costs of whatever kind. The prices and charges shall be exclusive of tax. Unless otherwise agreed by the Parties in writing, delivery shall take place D.D.P. (Delivery Duty Paid) in accordance with the Incoterms 2010.

8.2 The prices and charges shall be fixed, unless the agreement specifies the circumstances which may lead to price adjustments, as well as the way in which such adjustments are to take place.

8.3 Once M800 has acquired title to the Goods, the Supplier shall send its invoices to the address specified by M800 in its order, quoting, in any event, the agreement number and the purchase order number (without prejudice to the other legally required invoice details) and enclosing the agreed documentation.

8.4 Unless otherwise agreed by the Parties in writing, invoices which satisfy the conditions of Clause 8.3 shall be paid within forty-five (45) days of the date of their receipt, after any possible settlement or compensation of M800’s claims against the Supplier has taken place.

8.5 M800 shall not be required to pay a proportional part of an invoice if it has not received the agreed quantity of Goods at the agreed address.

8.6 Payment as described in Clause 8.4 shall not prejudice any possible recovery rights or other claims on the part of M800 with regard to the Goods delivered and/or services rendered.

8.7 Invoices and payments shall take place in HKD currency, unless otherwise specified in a purchase order.

8.9 The expiry of a payment period or non-payment of an invoice by M800 shall not entitle the Supplier to terminate its services or, in the event that the expiry or non-payment is a result of the defective nature of the invoiced Goods or services and/or the inaccuracy (of the content) of the invoice (details), to postpone its services.

 

9. Force majeure

9.1 To the extent that a failure to comply with an obligation by a Party is resulted from force majeure events, the Party shall not be deemed to be in default and shall not be liable to pay compensation, provided that the Party informs the other Party in writing about the default and the underlying reasons forthwith and, in any event, within the period agreed for compliance with the obligation.

 

10. Compliance

10.1 If the Goods delivered fail to satisfy the provisions of the agreement, M800 may demand that the Supplier deliver the missing Goods, or repair or replace the Goods, within a reasonable period to be specified by M800. Any and all costs related and/or involved shall be at the Supplier's expense.

10.2 In the event of the Supplier still failing to render the service in question within the period referred to in Clause 10.1, M800 shall be entitled to have the delivery, repair or replacement carried out by a third party, and recover the costs involved from the Supplier, without seeking prior court intervention.

10.3 The provisions of this Clause 10 shall not prejudice M800 other rights and claims with respect to the default.

 

11. Warranty

11.1 Without prejudice to the provisions contained in an agreement, the Supplier warrants that:

(1) the Goods supplied to M800 shall be of good quality and free from defects of any kind and can be used, operate and function properly within any express or implied warranty period;

(2) software, hardware and databases (if any) supplied to M800 shall be free of viruses;

(3) the Supplier’s provision and M800’s purchase and use of the Goods shall not infringe any rights of any third party at any time;

(4) the Supplier is unconditionally authorised to perform the services and deliver the Goods encompassed in the context of the agreement;

(5) the Goods are suited to the purpose for which M800 ordered and received the;

(6) the employees and third parties whose services the Supplier uses in the performance of its contractual obligations under the agreement have sufficient and relevant expertise, experience and training;

(7) all services rendered and Goods delivered in the context of the agreement satisfy all applicable laws and regulations; and

(8) the Supplier possesses the permits and licences required for the performance of the agreement.

11.2 If, in the opinion of M800, the warranty stipulations described in Clause 11.1 have not been satisfied, the Supplier shall be deemed to be in default and M800 shall be entitled to exercise, forthwith and without seeking court intervention, the rights which it derives from said default.

11.3 In the event that M800 invokes Clause 11.1 or Clause 11.2, the resulting costs shall be at the Supplier's expense.

11.4 This Clause 11 shall not prejudice the rights or claims which M800 can derive from an event of default.

 

12. Licences for software/hardware/databases

12.1 This Clause 12 applies if the Goods supplies to M800 include licence of software, hardware or database.

12.2 M800 shall acquire a non-exclusive licence to use the software, hardware and databases (including new versions and releases) furnished by the Supplier under the terms of an agreement, for an indefinite period of time with effect from the time of delivery of said Goods, unless otherwise agreed.

12.3 The licence shall, in any event, be understood to include loading, displaying on screen, copying, executing, transmitting and storing, etc. In certain cases, the licence shall also be understood to include the right to issue sub-licences and all activities required in that context.

 

13. Protection of intellectual property rights

13.1 The Supplier guarantees that the Goods it supplies and the services it renders shall not infringe any thirdparty intellectual property rights and that the use of said Goods and services shall not otherwise constitute a wrongful act towards third parties.

13.2 The Supplier shall indemnify M800 against claims from third parties in this respect, wherever and whenever such claims might be instigated.

13.3 In the event that the Goods supplied and/or the services rendered infringe on any third-party intellectual property rights and/or constitute a wrongful act towards any third party, or in the event that M800 is prohibited from the use of the Goods, the Supplier shall, at the choice of M800:

(1) acquire the right, on behalf of M800, to continue using the Goods and/or services under the conditions of the agreement in question; or

(2) replace the Goods and/or services or change them in such a way that the infringement no longer exists; or, if the aforementioned options are not reasonably feasible,

(3) take back the Goods, crediting M800 for the amounts it has already paid to the Supplier; all of this without prejudice to M800’s other rights, including its right to compensation.

13.4 The Supplier shall conduct out the defence in any legal proceedings which might be instigated against M800 for infringement of any third-party intellectual property rights and/or any wrongful act against a third party in connection with Goods supplied and/or services rendered by the Supplier. The Supplier shall indemnify M800 against all damage and costs incurred by M800 as a result of such legal proceedings.

13.5 All rights of results of research and development by M800 on the Goods shall be vested on M800.

 

14. Termination

14.1 M800 may, at its sole discretion, terminate the agreement immediately by providing written notice of termination, without any liability, if:

(1) The Supplier is in breach of its obligations in the agreement and such breach, if capable of remedy, has not been remedied at the expiry of seven (7) days following written notice to that effect having been served on the Supplier by indicating the steps required to be taken to remedy the failure; or

(2) Delivery of Goods is delayed more than one (1) day beyond the scheduled delivery date; or

(3) M800 has reasonable ground to believe or suspect that the purchase or use of the Goods supplied to M800 infringes third party’s right; or

(4) The Supplier becomes insolvent, bankrupt, its business liquidated or ceases to carry on business or any substantial part thereof or for the appointment of a liquidator, receiver, administrator, trustee or similar officer or of all or any part of its business or assets.

14.2 Unless otherwise agreed, M800 shall be entitled to terminate or cancel an order or the agreement without cause by notifying the Supplier no less than thirty (30) days prior to the scheduled delivery date, without having any liability to the Supplier.

14.3 Upon termination of the agreement, the Supplier must:

(1) Immediately return all information and materials furnished by M800 and all media embodying such information and materials to M800;

(2) delete and overwrite any electronically stored copies of such materials within seven (7) days from the date of termination of the agreement; and

(3) within such seven (7) days’ period, deliver to M800 a certificate duly executed by its authorized representative certifying its compliance with the foregoing.

14.4 Termination of the agreement and/or any related purchase order, for whatever reason, shall not prejudice the licences and other rights granted to M800.

 

15. Confidentiality

15.1 The Supplier shall treat as confidential the information which it receives, such as specifications, technical information, company information and other information of a confidential nature, and shall not disclose such information to any person(s) other than its own employees, nor use it for any purpose other than in the performance of an agreement. Upon the termination and/or expiry and/or completion of performance of an agreement, the Supplier shall immediately send all the carriers of this information and all copies thereof to M800.

15.2 Without M800’s prior consent, the Supplier shall in no way disclose, advertise or publish (the existence of) provisions from, or transactions performed under this agreement.

15.3 The Supplier shall also ensure that these obligations are also imposed on its own employees and any independent third parties involved, in any way, in the performance of this agreement.

15.4 Any infringement of the provisions of Clauses 15.1 and 15.2 by an employee of the Supplier shall be deemed to be an infringement of this obligation by the Supplier.

 

16. Indemnification

16.1 The Supplier agrees to defend, indemnify, and hold harmless M800, its affiliates and their respective officers, directors, employees and agents from and against any loss, claim, cost, expense, liability or damage, including reasonable attorney's fees and costs resulting from a third party claim that directly or indirectly arises from:

(i) the performance of the Supplier's obligations hereunder;

(ii) a breach of Supplier 's representations and warranties hereunder made;

(iii) the Supplier's, or its respective employees' or agent’s negligence, misrepresentations or other tortious, illegal or unauthorized conduct or any other act or omission arising out of
or relating to this agreement; or

(iv) a claim that M800’s purchase or use of the Goods infringes the intellectual property right or other proprietary rights of any third party.

16.2 The provisions of this Clause 16 shall apply without prejudice to the other provisions of these T&C.

 

17. Limitation of liability

17.1 The Supplier agrees that

(i) in no event shall M800, its affiliates or employees be liable to the Supplier for any direct, special, indirect, consequential, incidental, punitive or consequential damages; and

(ii) the liability of M800, if any, for damages for any claim of any kind whatsoever, with regard to the rights granted hereunder, shall not include compensation, reimbursement or damages on account of the loss of present or prospective profits, expenditures, data, opportunity, anticipated savings, investments or commitments, whether made in establishment, development or maintenance of reputation or goodwill or for any other reason whatsoever.

 

18. Governing law and dispute resolution

18.1 These T&C shall be governed by and construed in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”), without regard to conflict of laws principles. Subject to the Parties' rights to seek injunctive relief or other right in equity by any court of competent jurisdiction, the Parties expressly understand and agree that any dispute arising under the agreement will be brought exclusively in the courts located in Hong Kong and the Parties to this Agreement hereby consent to the exclusive personal jurisdiction and venue therein. However, all disputes shall first be discussed between the Supplier and M800 in order to reach a solution in mutual consultation.

 

19. General

19.1 The Supplier shall inform M800 immediately if problems arise with respect to the services or Goods which pose a threat to the Supplier complying with its obligations in full and on time. The Supplier shall consult with M800 in order to find a solution which will protect the interests of M800, without prejudice to any other rights conferred upon M800. Whenever appropriate, the Supplier shall, at M800’s request, provide substitute and functionally equivalent goods and render services on a temporary basis and at no cost for M800.

19.2 The Supplier shall, at its own expense and risk, take the necessary measures to obtain permits, if and to the extent that these are required in the context of the performance of the agreement.

19.3 Any failure on the part of one of the Parties to enforce any of the provisions of the agreement within a period specified in these T&C shall not affect the right of the said Party to demand compliance at a later stage,
unless the Party in question has expressly accepted the event of non-compliance in writing.

19.4 The rights and obligations of M800 under the agreement may be assigned and/or transferred by M800 to a third party without further requirements. The Supplier's consent shall not be required in this respect.

19.5 If any of the provisions of these T&C proves to be void or is repudiated, the other provisions shall remain in full force and this shall have no effect whatsoever on (the performance of) the other parts of an agreement. Furthermore, in such an event, the Parties shall consult with one another as soon as possible in order to reach a
solution suited to the nature of the agreement and which most closely matches the aim and meaning of the void or repudiated provision.

19.6 All notices required or permitted hereunder shall be given in writing addressed to the respective Party as set forth below and shall either be

(i) personally delivered,

(ii) transmitted by postage prepaid certified mail, return receipt requested,

(iii) transmitted by nationally recognized private express courier, or

(iv) emailed. All notices shall be deemed to have been given on the date sent if delivered personally or by email, or seven (7) days after deposit in mail or three (3) days if delivered by express courier. A Party may change its address for purposes hereof by written notice to the other in accordance with the provisions of this Clause 19.6.

19.7 Termination or expiry of the agreement shall not prejudice the provisions of these T&C with regard to intellectual property, warranty, confidentiality and the settlement of disputes.