Terms and Conditions of Delivery and Payment of Bestol Footcare Limited
Court of Jurisdiction: Hong Kong (Special Administrative Region), China
Version as of June 1, 2022
We welcome you to Bestol Footcare’s website, www.bestol-footcare, that display these Terms and Conditions for Bestol Footcare Limited (“Bestol Footcare”, “we”, or “us”), located at Room 1103, 11/F, CC Wu Building, 302-308 Hennessy Road, Wanchai, Hong Kong (Special Administrative Region), China.
I. Conclusion of Contract
a. The following terms and conditions shall apply to all types of contracts, deliveries of Bestol Footcare products (“Products”) and other services and also, if not separately agreed upon, to all future business relations. Deviating conditions, contradictory purchasing conditions and counter-confirmations of the buyer shall not be recognized even if we do not explicitly contradict them upon receipt, unless they have been agreed upon with the buyer by signature. These terms and conditions of delivery and payment shall be deemed accepted through our confirmation of the buyer’s purchase order (“Order”) or at the latest upon hand-over and acceptance of our Products through the buyer.
b. Our offers are subject to change. Agreements, in particular verbal agreements and assurances by our sales representatives and sales employees, shall only become binding upon our written confirmation. Our samples, specimens and information on the composition and functions of our products are based on our experience and expertise, but do not constitute a guarantee of quality or performance. Information on composition and quality as well as other descriptions of weight, dimensions and performance shall only be binding if their exact observance has been explicitly agreed.
c. We reserve the right to cancel Orders and/or parts of Orders for manufacturing specific reasons. Such cancellations must be made no later than 90 days of the Order being placed and do not entitle the buyer to assert claims for compensation of any kind whatsoever.
Prices & Other Terms
a. All prices are generally ex works (EXW) China, freight costs will be invoiced accordingly. The risk of damage and loss of Products transfers from Bestol Footcare to the buyer ex works. Agreements to the contrary are possible, but must be explicitly made in writing.
b. Unless otherwise agreed in writing, our prices are net prices without deduction and without value added tax. Duties and other costs of third parties shall be borne by the buyer if they are included in the agreed price and increase after conclusion of the contract or if they are newly incurred, unless we are responsible for their occurrence.
c. Partial deliveries of our Products are permissible.
III. Payment / Settlement
a. Payment shall be made by international wire transfer (TT) or Letter of Credit (LOC). All payments shall always be credited first to interest and costs and second to our oldest claim, without regard to other dispositions of the payer. We reserve the right to deviating offsets.
b. In the event of late payment, we reserve the right to assign the claims against the buyer to factoring companies, to sell them or to hand them over for collection. The associated costs, such as in particular reminder and collection fees, shall be borne by the buyer.
c. If the terms of payment are not complied with or if we become aware of circumstances which, according to our due commercial discretion, are suitable to reduce the creditworthiness of the buyer, all claims shall become due immediately. We shall then be entitled to carry out outstanding deliveries only against advance payment and, after setting a deadline, to withdraw from the contract or to assert claims for damages due to non-performance.
IV. Retention of Title
a. All Products delivered by us to the buyer shall remain the property of Bestol Footcare until such time, and the title to such Products will pass to the buyer after the buyer has fully paid any amounts in connection with such Products delivered to the buyer.
b. The buyer may resell the delivered Products in the regular course of business only if his customer has not excluded the assignment of the claim from the resale. The buyer is not permitted to transfer ownership by way of security or to pledge the Products subject to retention of title. The buyer shall notify us without delay of any impending or completed seizures or any other impairment of our rights, in particular of the existence of global assignments. In the event of seizure, a copy of the pledge record shall be sent to us. If the buyer sells the Products delivered by us alone – regardless of their condition – he hereby assigns to us all claims against his buyers arising from the sale, together with all ancillary rights including profit margin, until all our claims have been settled in full.
c. The taking back or seizure of the Products subject to retention of title shall not constitute a withdrawal from the contract.
V. Execution of Delivery, Delivery Periods and Date
a. All delivery times stated by us are always to be regarded as best faith estimates. Our delivery obligation is subject to the reservation of complete, timely and correct supply of goods from our vendors, save for instances where such incomplete, delayed or incorrect supply is caused by our gross negligence. If we are not supplied or only partially supplied by our vendors, we shall be released from our delivery obligation in whole or in part. In this case, claims for damages by our buyer are excluded.
b. Delivery periods shall commence on the date of the Order, but not before complete clarification of all details of the Order and the provision of any necessary certificates. Delivery periods and dates always refer to the time of delivery ex works. The delivery periods and dates shall be extended – without prejudice to our rights arising from default on the part of the buyer – by the period by which the buyer is in default with his obligations to us arising from this or other contract or purchase order.
c. Events of force majeure, including without limitations epidemics, shall entitle us to postpone and delay delivery by the duration of the hindrance and of a reasonable period of restarting operations. Equal to force majeure are all corresponding events which make delivery considerably more difficult or impossible for us, such as currency and trade policy or other sovereign measures, e.g. strikes, lockouts, entry bans, quarantine measures, operational disruptions as well as obstruction of traffic routes, regardless of whether these circumstances occur with us or with one of our vendors.
VI. Notice of Defects and Warranty
a. The buyer shall inspect the delivery item immediately upon receipt with the thoroughness that can reasonably be expected of him under the given circumstances. Defects with regard to completeness and external condition of the delivery must be reported to the us within seven working days, stating the reason for the complaint and the corresponding invoice number, otherwise any claims by the buyer are excluded. In the case of hidden defects, the notification must be made within 4 weeks of receipt of the Products. In any case, the warranty period expires after 6 months. Complaints received later than the above deadlines are ineffective.
b. Customary or minor, technically unavoidable deviations, in particular in quality or weight, do not entitle the buyer to make a complaint.
c. If the buyer does not immediately give us the opportunity to ascertain the defect, in particular if he does not immediately provide the Products complained of or samples thereof upon request, the claims for defects shall lapse.
d. In the event of justified complaints, we shall have the right to rectify the defect or to supply defect-free replacement Products within four weeks of receiving the Products back. We accept returns and complaints only after written consent to the return. We do not accept a return of Products without our consent.
e. Further claims are excluded, this applies in particular to claims for compensation for damage that has not occurred to the Products themselves (consequential harm caused by a defect). In the absence of warranted characteristics, we shall be liable to the extent that the purpose of the warranty was to protect the buyer against the consequential harm caused by the defect.
VII. General Limitation of Liability and Statute of Limitations
a. Claims not explicitly granted in these terms and conditions, in particular claims for damages arising from impossibility, delay, breach of secondary contractual obligations, breach of pre-contractual obligations and tort shall be excluded unless we are liable in cases of intent and gross negligence (this shall not apply, however, to personal injury).
b. All claims against us – irrespective of their legal basis – shall become barred by any statute of limitations at the latest one year after the transfer of risk of damage and loss of Product to the buyer, unless the statute of limitation period is shorter.
VIII. Prohibition of Circumvention, Place of Performance, Place of Jurisdiction, Partial Invalidity
a. Circumvention of the terms of payment and delivery, in particular also through commission business, is not permitted. Place of performance and place of jurisdiction is Hong Kong (Special Administrative Region), China. Bestol Footcare may at its choice also initiate civil proceedings arising out of the supply of Products at the competent court at the buyer’s place of jurisdiction. All legal relations between us and the buyer shall be governed by the laws of Hong Kong (SAR), (without regard to its rules governing conflict of laws). The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
b. In case of ineffectiveness of any of these provisions, we are entitled to replace the ineffective provision by an effective provision; the ineffectiveness of individual provisions shall not affect the effectiveness of the remaining provisions.
These Terms and Conditions were last revised on June 1, 2022.