當前頁面沒有中文繁體版本，請見英文版。
Effective from 16 Jun 2025
This Agreement (as defined below) is made between (1) the Supplier named in the Purchase Order (SUPPLIER) and (2) China Telecom Global Limited, a company incorporated under the laws of Hong Kong with its registered address at 28th Floor, Everbright Centre, 108 Gloucester Road, Wanchai, Hong Kong (CTG).
It is agreed as follows:
1 Structure of the agreement
1.1 This agreement (Agreement) comprises
1.1.1 these General Terms and Conditions;
1.1.2 the Operation and Maintenance Terms and Conditions; and
1.1.3 the Purchase Order.
1.2 If any of these documents is inconsistent with the others, then unless expressly stated otherwise the documents will prevail in the descending order set out in clause 1.1 to the extent of the inconsistency.
1.3 For the avoidance of doubt, the terms and conditions of this Agreement prevail over any inconsistent terms or conditions contained in, or referred to in, CTG's purchase order, confirmation of order, or specification, or implied by law, trade custom, practice or course of dealing.
2 Equipment
2.1 In consideration of payment of the Equipment Charges, CTG shall purchase, and SUPPLIER shall supply, the Equipment on the terms and conditions set out in this Agreement.
2.2 Quantity and description
2.2.1 The quantity and description of the Equipment shall be as set out in the Purchase Order.
2.2.2 All samples, drawings, descriptive matter, specifications and advertising issued by SUPPLIER, and any descriptions or illustrations contained in SUPPLIER’s marketing materials or brochures are issued or published for illustrative purposes only and they do not form part of this Agreement.
2.2.3 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by SUPPLIER shall be subject to correction without any liability on the part of SUPPLIER.
2.2.4 SUPPLIER reserves the right (but does not assume the obligation) to make any changes in the specification of the Equipment which are required to conform with any applicable legislation or, where the Equipment is to be supplied to CTG's specification, which do not materially affect their quality or performance.
2.3 Delivery
2.3.1 SUPPLIER shall deliver the Equipment to the Premises.
2.3.2 SUPPLIER shall use its reasonable endeavours to deliver the Equipment on the date(s) specified in the Purchase Order, but any such date is approximate only. If no dates are so specified, delivery shall be within a reasonable time of the Commencement Date. Time is of the essence as to the delivery of the Equipment.
2.3.3 The Equipment may be delivered by SUPPLIER in advance of the quoted delivery date on giving reasonable notice to CTG.
2.3.4 Delivery shall be made during Normal Business Hours. SUPPLIER may levy additional charges for any deliveries made outside Normal Business at CTG's request.
2.3.5 SUPPLIER shall be responsible for any damage, shortage or loss in transit, provided that:
(A) CTG notifies it to SUPPLIER (or its carrier, if applicable) within five (5) Business Days of delivery of the Equipment; and
(B) the Equipment has been handled in accordance with SUPPLIER's stipulations.
Any remedy under this clause 2.3.5 shall be limited, at the option of SUPPLIER, to the replacement or repair of any Equipment.
2.4 Title and risk
2.4.1 The Equipment shall be at SUPPLIER’s risk until delivery to CTG at the Premises. SUPPLIER shall off-load the Equipment at SUPPLIER's risk.
2.4.2 Ownership of the Equipment shall pass to CTG on the later of completion of delivery (including off-loading) or when SUPPLIER has received in full in cleared funds all sums due to it in respect of the Equipment.
2.4.3 Until ownership of the Equipment has passed to CTG under clause 2.4.2, CTG shall:
(A) hold the Equipment on a fiduciary basis as SUPPLIER's bailee;
(B) store the Equipment (at no cost to SUPPLIER) in satisfactory conditions and separately from all other equipment of CTG or a third party, so that it remains readily identifiable as SUPPLIER's property; and
(C) not destroy, deface or obscure any identifying mark or packaging on or relating to the Equipment.
2.4.4 CTG's right to possession of the Equipment before ownership has passed to it shall terminate immediately if:
(A) any of the circumstances set out in clauses 11.1.1 or 11.1.2 occur to CTG;
(B) CTG encumbers or in any way charges the Equipment; or
(C) CTG fails to make any payment of the Equipment Charges to SUPPLIER on the due date.
2.4.5 CTG grants SUPPLIER and SUPPLIER’s Personnel an irrevocable licence at any time to enter the Premises or any other premises where the Equipment is or may be stored in order to inspect it or, where CTG's right to possession has terminated, to remove it. All costs incurred by SUPPLIER in repossessing the Equipment shall be borne by CTG.
2.4.6 SUPPLIER may appropriate payments by CTG to such Equipment as it thinks fit, notwithstanding any purported appropriation by CTG to the contrary, and may make such appropriation at any time.
2.5.1 Where the Equipment is supplied for export from Hong Kong, the provisions of this clause 2.5 shall (subject to any contrary terms agreed in writing between CTG and SUPPLIER) override any other provision of this Agreement.
2.5.2 SUPPLIER shall be responsible for complying with any legislation governing:
(A) the importation of the Equipment into the country of destination; and
(B) the export and re-export of the Equipment,
and shall be responsible for the payment of any duties on it.
2.5.3 Unless otherwise agreed in writing between CTG and SUPPLIER, the Equipment shall be delivered free on board the air or sea port of shipment and SUPPLIER shall be under no obligation to give notice under section 34(3) of the Sale of Goods Ordinance (Cap 26).
2.5.4 SUPPLIER shall be responsible for arranging for the testing and inspection of the Equipment at SUPPLIER’s premises before shipment.
2.6 Warranty
2.6.1 If SUPPLIER is not the manufacturer of the Equipment, SUPPLIER shall use reasonable endeavours to transfer to CTG the benefit of any warranty or guarantee given by the manufacturer to SUPPLIER.
2.6.2 SUPPLIER’s Personnel are not authorised to make any representations or contractually binding statements concerning the Equipment.
2.7 Licence of Software
2.7.1 If SUPPLIER refers to a software licence in the Purchase Order, the Equipment Charges includes the licence fee for CTG's right to use the Software.
2.7.2 If CTG is provided with any operating system software licence in respect of the Software, CTG shall sign and return it to SUPPLIER within five (5) Business Days of installation of the Software, unless the licence has been supplied on a "shrink-wrap" or "click-wrap" basis.
2.7.3 If no software licence has been provided to CTG, CTG hereby accepts a non-exclusive, non-transferable licence to use the Software on the following conditions:
(A) CTG shall not copy (except to the extent permissible under applicable law or for normal operation of the Equipment), reproduce, translate, adapt, vary or modify the Software, nor communicate it to any third party, without SUPPLIER’s prior written consent;
(B) CTG shall not use the Software on any equipment other than the Equipment, and shall not remove, adapt or otherwise tamper with any copyright notice, legend or logo which appears in or on the Software on the medium on which it resides;
(C) such licence shall be terminable by either party on twenty (20) Business Days’ written notice, provided that SUPPLIER terminates only if the continued use or possession of the Software by CTG infringes the developer's or a third party's rights, or SUPPLIER is compelled to do so by the developer or by law, or if CTG has failed to comply with any term of this Agreement; and
(D) on or before the expiry of this licence, CTG shall return to SUPPLIER all copies of the Software in its possession.
3 Installation and Commissioning Services
3.1 In consideration of payment of the Installation and Commissioning Fees, SUPPLIER shall perform the Installation and Commissioning Services on the terms and conditions set out in this Agreement.
3.2 SUPPLIER shall use reasonable endeavours to manage and complete the Installation and Commissioning Services in accordance in all material respects with the Statement of Work.
3.3 SUPPLIER shall use reasonable endeavours to meet the commencement date and/or performance dates (if any) specified in the Statement of Work, but any such dates shall be estimates only and time for performance of the Installation and Commissioning Services shall be of the essence.
3.4 SUPPLIER shall perform the Installation and Commissioning Services at the Premises. SUPPLIER shall procure that its Personnel shall, while on site at the Premises, comply with CTG's reasonable health and safety and security policies provided that these policies have been brought to the attention of its Personnel.
3.5 SUPPLIER warrants to CTG that:
3.5.1 the Installation and Commissioning Services shall be performed:
(A) by an appropriate number of suitably qualified and experienced Personnel;
(B) using all reasonable skill and care; and
(C) in accordance with all applicable laws and regulations in force from time to time; and
3.5.2 all components and equipment supplied or used in the course of the provision of the Installation and Commissioning Services shall operate in accordance with their technical specifications.
4.1 CTG will have five (5) calendar days following the Ready for Service Date to conduct tests to determine whether the Equipment complies with the Acceptance Criteria (Acceptance Testing Period) and to notify SUPPLIER that the Equipment is accepted.
4.2 If no written notice is received from CTG on expiry of the Acceptance Testing Period, CTG shall not deemed to have accepted the Equipment.
4.3 If CTG notifies SUPPLIER during the Acceptance Testing Period that the Equipment does not comply with the Acceptance Criteria, SUPPLIER will promptly take such reasonable action as is necessary to correct any such non-compliance in the Equipment and clauses 4.1 and 4.2 will apply.
5 Equipment Operation and Maintenance Services
5.1 Subject to clause 5.4, in consideration of payment of the Equipment Operation and Maintenance Fees, SUPPLIER shall perform the Equipment Operation and Maintenance Services on the terms and conditions set out:
5.1.1 in the Operation and Maintenance Terms and Conditions; and
5.1.2 otherwise in this Agreement.
5.2 SUPPLIER shall perform the Equipment Operation and Maintenance Services during the Operation and Maintenance Term at the Premises.
5.3 SUPPLIER warrants to CTG that:
5.3.1 the Equipment Operation and Maintenance Services shall be performed:
(A) by an appropriate number of suitably qualified and experienced Personnel;
(B) using all reasonable skill and care; and
(C) in accordance with all applicable laws and regulations in force from time to time; and
5.3.2 all components and equipment supplied or used in the course of the provision of the Equipment Operation and Maintenance Services shall operate in accordance with their technical specifications.
5.4 If the Purchase Order provides that maintenance of the Equipment shall be the responsibility of the manufacturer of the Equipment, the provisions of this clause 5 shall (unless the SUPPLIER is the manufacturer) not apply and the SUPPLIER shall have no responsibility or liability for any maintenance of the Equipment except that CTG may collect payment for such maintenance from the SUPPLIER on behalf of the manufacturer.
6 Extra Services
6.1 In consideration of payment of the Extra Fees, SUPPLIER shall perform the Extra Services on the terms and conditions set out in this Agreement.
6.2 SUPPLIER shall use reasonable endeavours to manage and complete the Extra Services in accordance in all material respects with the specification for the Extra Services set out in the Purchase Order.
6.3 SUPPLIER shall use reasonable endeavours to meet the commencement date and/or performance dates (if any) for the Extra Services specified in the Purchase Order, but any such dates shall be estimates only and time for performance of the Extra Services shall be of the essence.
6.4 SUPPLIER shall perform the Extra Services at the Premises. SUPPLIER shall procure that its Personnel shall, while on site at the Premises, comply with CTG's reasonable health and safety and security policies provided that these policies have been brought to the attention of its Personnel.
6.5 SUPPLIER warrants to CTG that:
6.5.1 the Extra Services shall be performed:
(A) by an appropriate number of suitably qualified and experienced Personnel;
(B) using all reasonable skill and care; and
(C) in accordance with all applicable laws and regulations in force from time to time; and
6.5.2 all components and equipment supplied or used in the course of the provision of the Extra Services shall operate in accordance with their technical specifications.
7 CTG obligations
7.1 CTG shall:
7.1.1 be responsible (at CTG's cost) for preparing the delivery location for the delivery of the Equipment and the performance of the Services;
7.1.2 at all reasonable times permit full and free access to the Premises and to the Equipment to SUPPLIER and its Personnel and provide them with adequate and safe working space, and any other facilities as are reasonably required, to enable SUPPLIER to perform the Services while at the Premises, including obtaining all necessary permits, authorisations, licences and consents for SUPPLIER and its Personnel to deliver the Equipment and perform the Services at the Premises;
7.1.3 co-operate with SUPPLIER and provide SUPPLIER with any information that is reasonably requested in the delivery of the Equipment and/or performance of the Services, and ensure that such information is accurate in all material respects;
7.1.4 keep an operational logbook as instructed by SUPPLIER; and
7.1.5 take any steps reasonably necessary to ensure the safety of SUPPLIER's personnel when attending the Premises.
7.2 CTG agrees to act in a timely manner and to provide properly competent and qualified Personnel with respect to its obligations under this Agreement and to any tasks to be undertaken by it, whether expressly set out in this Agreement or otherwise reasonably requested of it by SUPPLIER. Delivery of the Equipment and performance of the Services are provided on the assumption that CTG and its Personnel will fulfil their obligations and tasks on time and as stated.
7.3 If, as a result of any act or omission by CTG or its Personnel (howsoever caused) which is not directly and wholly caused by SUPPLIER (including the provision of any incorrect or inadequate information or data by CTG), SUPPLIER is prevented or delayed from performing any of its obligations under this Agreement or the cost of such performance increases, then:
7.3.1 the time for performance of SUPPLIER’s obligations will be extended for a reasonable period;
7.3.2 CTG will be responsible at SUPPLIER’s cost for storing the Equipment until the Premises are ready for delivery or performance of the Services and/or nominating alternative premises; and
7.3.3 CTG shall not pay SUPPLIER:
(A) for any additional time spent and materials used by it with respect to any delays or extra work caused by such act or omission; and
(B) all other reasonable costs, loss or damage which it sustains as a direct result of such act or omission.
7.4 CTG shall not either on its own account or in partnership or association with any person, firm, company or organisation, or otherwise and whether directly or indirectly during, or for a period of three (3) months from, expiry or termination of this Agreement, solicit or entice away or attempt to entice away or authorise the taking of such action by any other person, any of SUPPLIER’s Personnel who has worked on delivery of the Equipment and/or performance of the Services provided under this Agreement at any time during the term of this Agreement.
8 Charges
8.1 The Charges shall be as stated in the Purchase Order as the same may be varied in accordance with the terms of this Agreement.
8.2 The Charges are inclusive of all delivery, warehousing, packaging, packing, shipping, carriage, insurance, Taxes and other charges and duties, (and in the case of Taxes at the rate and in the manner for the time being prescribed by law).
8.3 SUPPLIER shall obtain CTG prior written consent:
8.3.1 at least seven (7) days before delivery of the Equipment, to increase the Equipment Charges of such of the Equipment as has not been delivered to reflect any increase in the cost to SUPPLIER which is due to any factor beyond the control of SUPPLIER (including any foreign exchange fluctuation, currency regulation, alteration of duties, change in legislation, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Equipment which is requested by CTG, or any delay caused by any instructions of CTG or failure of CTG to give SUPPLIER adequate information or instructions; and/or
8.3.2 to vary the Standard Operation and Maintenance Fees in accordance with the Operation and Maintenance Terms and Conditions.
9 Invoices and payment
9.1 SUPPLIER will issue an invoice in accordance with the timetable for invoicing set out in the Purchase Order.
9.2 Subject to clause 10, CTG must pay all invoices in full:
9.2.1 within the time for payment specified in the Purchase Order or, if no such payment terms are so specified, within thirty (30) days of the date of the invoice;
9.2.2 in the currency specified in the Purchase Order; and
9.2.3 without any withholding, deduction, set off or counterclaim.
9.3 Time for payment of the price shall be of the essence of this Agreement.
9.4 In addition and without prejudice to any other remedies SUPPLIER may have, if CTG fails to pay any amount when due, SUPPLIER shall without notice to CTG be entitled to:
9.4.1 charge interest on the overdue amount from the date due until the date paid at the rate of 0.5% per month. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. CTG shall pay the interest immediately on demand by SUPPLIER;
9.4.2 terminate this Agreement or suspend any further deliveries of Equipment to CTG and/or performance of the Services;
9.4.3 net or set off amounts payable by SUPPLIER to CTG under this Agreement;
9.4.4 make a storage charge for any undelivered Equipment at its current rates from time to time;
9.4.5 stop any Equipment in transit; and/or
9.4.6 a general lien on all Equipment and property belonging to CTG, exercisable in respect of all sums lawfully due from CTG to SUPPLIER. SUPPLIER shall be entitled, on the expiry of ten (10) Business Days’ notice in writing, to dispose of such Equipment or property in such manner and at such price as it thinks fit and to apply the proceeds towards the amount outstanding.
10 Billing disputes
10.1 If CTG reasonably disputes any matter contained in any invoice, CTG shall:
10.1.1 pay the undisputed portion of the invoiced charges by the due date for the relevant invoice; and
10.1.2 notify SUPPLIER in writing of the disputed amount providing the invoice number and reasonable details as to why the amount is disputed within twenty (20) Business Days of the date of the relevant invoice.
10.2 A dispute shall not be cause for delay of payment of the balance due, nor may it be grounds for CTG to withhold payment of any undisputed amount.
10.3 In the event of a dispute, the parties will investigate the matter and use reasonable endeavours to resolve the disputed charges within twenty (20) Business Days of the notice of the dispute. If the parties are unable to resolve the dispute informally in good faith within those twenty (20) Business Days, SUPPLIER reserves the right to terminate this Agreement or suspend any further deliveries of Equipment to CTG and/or performance of the Services.
10.4 Following resolution of the dispute, the adjustment (if any) will be applied to the payment of CTG’s next invoice. If it is ultimately determined that the adjustment amount is payable by CTG, SUPPLIER may (without prejudice to any other remedies SUPPLIER may have) charge interest on the adjustment amount from the original due date for payment of the disputed amount at the rate of 0.5% per month. Such interest shall accrue on a daily basis from for each day thereafter until actual payment is made, whether before or after judgment. CTG shall pay the interest immediately on demand by SUPPLIER.
11 Termination
11.1 Either party may terminate this Agreement:
11.1.1 where the other party is in material breach of this Agreement and that breach is not remedied twenty (20) Business Days after the breaching party has received notice to do so;
11.1.2 on notice to the other party where the other party suffers an Insolvency Event; or
11.1.3 where a Force Majeure Event continues for more than twenty (20) Business Days.
11.2 On termination of this Agreement by either party for any reason:
11.2.1 all Confidential Information of a party must on the request of a party be destroyed or returned to that party by the other party;
11.2.2 all outstanding charges and invoices which have yet to be paid must be paid by CTG;
11.2.3 accrued rights and obligations of a party are not affected; and
11.2.4 clauses 1, 2.4, 11.2, 11.3, 12, 13, 14.1, 14.2, 15 (excluding clause 15.1) and 16 will survive termination.
11.3 Where a termination fee (the “Termination Fee”) is expressly agreed by the parties in writing, on termination of this Agreement:
11.3.1 by SUPPLIER in accordance with clause 11.1.1 or 11.1.2; or
11.3.2 by CTG for convenience where permitted by this Agreement,
CTG must pay SUPPLIER the Termination Fee in addition to any outstanding charges payable pursuant to clause 11.2.2. The parties agree that the Termination Fee has been calculated as, and is, a genuine pre-estimate of the loss likely to be suffered by SUPPLIER.
12.1 Each party accepts liability to the other party in connection with this Agreement as set out in this clause 12.
12.2 Subject to clauses 2.3.2, 2.3.5, 12.3, 12.5, 12.6 and 12.7, a party’s maximum liability to the other party for Loss suffered or incurred in connection with this Agreement is limited in aggregate to 100% of the Charges paid under this Agreement.
12.3 A party's liability to the other party for Losses under clauses 12.4 is not limited by clause 12.2.
12.4 Each party indemnifies the other party (Indemnified Party) for all Loss suffered or incurred by the Indemnified Party:
12.4.1 arising from personal injury or death to the Indemnified Party’s Personnel; and/or
12.4.2 arising from damage to the Indemnified Party’s physical property,
to the extent it is caused directly by the negligence of the indemnifying party in connection with this Agreement.
12.6 Other than for liability under clauses 12.4 or for any liability which may not be limited by applicable law, each party excludes any liability for any Consequential Loss suffered or incurred in connection with this Agreement.
12.7 To the extent possible, SUPPLIER excludes all conditions and warranties implied into this Agreement and limits its liability for any non-excludable conditions and warranties, where permitted by law to do so, to (at SUPPLIER’s option) repairing or replacing the relevant goods, or resupplying the relevant or equivalent services.
13 Confidentiality and Data Privacy
13.1 Each party must:
13.1.1 keep the other party's Confidential Information confidential;
13.1.2 not use or exploit the other party’s Confidential Information in any way except in connection with its rights and obligations under this Agreement; and
13.1.3 not disclose the other party’s Confidential Information except:
(A) to its Personnel and Affiliates who have a need to know for the purposes of this Agreement; or
(B) as required by law or a governmental or other regulatory authority (including any relevant securities exchanges), court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of this disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 13.1.3(B), it takes into account the reasonable requests of the other party in relation to the content of this disclosure.
13.2 Confidential Information does not include any information that:
13.2.1 is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Personnel in breach of this clause);
13.2.2 was available to the receiving party on a non-confidential basis prior to disclosure by the disclosing party;
13.2.3 was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party's knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party;
13.2.4 was known to the receiving party before the information was disclosed to it by the disclosing party;
13.2.5 the parties agree in writing is not confidential or may be disclosed; or
13.2.6 is developed by or for the receiving party independently of the information disclosed by the disclosing party.
13.3 Each party shall comply with its respective obligations under all applicable laws and regulations relating to use of personal data and privacy in relation to all personal data that is used by it in the course of performing its obligations under this Agreement.
14 Intellectual Property
14.1 CTG acknowledges that all Intellectual Property Rights used by or subsisting in the Equipment and in any and all materials, equipment and tools, drawings, specifications and data created or supplied by or on behalf of SUPPLIER while providing the Services are and shall remain the sole property of SUPPLIER or (as the case may be) its licensor(s) or other third party rights’ owner(s), and CTG shall not at any time make any unauthorised use of such Intellectual Property Rights, nor authorise or permit any of its Personnel or any other person to do so. CTG shall keep the same in safe custody at its own risk and maintained and in good condition until returned to SUPPLIER, and shall not dispose of or use the same other than in accordance with SUPPLIER's written instructions or authorisation.
14.2 In relation to the Software:
14.2.1 CTG acknowledges that it is buying only the media on which the Software is recorded and the accompanying user manuals;
14.2.2 nothing contained in these conditions shall be construed as an assignment of any Intellectual Property Rights in the Software or user manuals; and
14.2.3 CTG shall be subject to the rights and restrictions imposed by the owner of the Intellectual Property Rights in the Software and user manuals, and shall comply with all licence agreements, terms of use and registration requirements relating to them.
14.3 Neither party shall have the right to use the other party’s or its Affiliates’ trademarks, service marks or trade names or to otherwise refer to the other party in any marketing, promotional or advertising materials or activities without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
15 General
15.1 Warranty
Each party warrants to the other party that it:
15.1.1 is duly incorporated and subsisting under, and the operation of its business is in compliance with, the law of the relevant jurisdiction; and
15.1.2 has the complete right and authority to enter into this Agreement without approval or consent of any third party.
15.2 Force majeure
Neither party shall be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control (a Force Majeure Event). In such circumstances the time for performance of the affected obligations will be extended by the time of the delay caused by the Force Majeure Event.
15.3 Notices
15.3.1 A notice given to a party under or in connection with this Agreement shall be in writing and sent to the party at the address set forth at the top of this Agreement or as otherwise notified in writing to the other party in accordance with this clause 15.3. Any notice shall be duly served:
(A) on delivery if delivered by hand;
(B) forty-eight (48) hours after sending if sent by pre-paid post or recorded delivery;
(C) on the date and at the time that the courier's delivery receipt is signed, if delivered by commercial courier; or
(D) at the time of transmission, if sent by fax or email, unless sent after 17:00 in the place of receipt in which case it shall be deemed to have been received on the next Business Day in the place of receipt, and, subject to clause 15.3.2, provided that a copy has also been sent by post as set out in clause 15.3.1(B).
15.3.2 CTG acknowledges and agrees that notices issued by SUPPLIER in connection with acceptance testing, Service Levels and Service Credits will be sent by email only and that for any such notices SUPPLIER shall not be required to send a copy of the notice by post under clause 15.3.1(D) to be duly served.
15.4 Variation
Save as expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.5 Assignment
15.5.1 Subject to clause 15.5.2, this Agreement is personal to the parties and neither party shall assign, transfer, mortgage, charge, subcontract or deal in any other manner with any of its rights and obligations under this Agreement without the prior written consent of the other party (such consent not to be unreasonably withheld or delayed).
15.5.2 SUPPLIER has the right to sub-contract the provision of all or part of delivery of the Equipment and/or of performance of the Services to any Affiliate of SUPPLIER or a Third Party Provider, but SUPPLIER will remain primarily liable for the performance of its obligations under this Agreement.
15.6 Entire agreement
15.6.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous drafts, agreements, arrangements and understandings between them, whether written or oral, relating to its subject matter.
15.6.2 Each party agrees that it shall have no remedies in respect of any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.
15.6.3 No party shall have any claim for innocent or negligent misrepresentation based upon any statement in this Agreement.
15.6.4 Nothing in this clause 15.6 shall limit or exclude any liability for fraud.
15.7 Severability
15.7.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
15.7.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties' original commercial intention.
15.8 Waiver and remedies cumulative
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy. A waiver of any right or remedy under this Agreement is only effective if given in writing. Unless specifically provided otherwise, rights arising under this Agreement are cumulative and do not exclude rights provided by law.
15.9 No third party rights
No one other than a party to this Agreement, their successors and permitted assignees, shall have any right to enforce any of its terms.
15.10 Non-exclusive arrangements
Nothing in this Agreement diminishes, restricts or prejudices the rights of either party to enter into similar agreements with a third party.
15.11 No partnership or agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between the parties, constitute a party the agent of the other party, nor authorise a party to make or enter into any commitments for or on behalf of the other party.
15.12 Further assurances
Each party shall, and shall use all reasonable endeavours to procure that any necessary third party shall, execute and deliver such documents and perform such acts as may reasonably be required for the purpose of giving full effect to this Agreement.
15.13 Language
15.13.1 This Agreement is drafted in the English language. If this Agreement is translated into any other language, the English language text shall prevail.
15.13.2 Any notice given under or in connection with this Agreement shall be in the English language. All other documents provided under or in connection with this Agreement shall be in the English language, or accompanied by a certified English translation. If such document is translated into any other language, the English language text shall prevail.
15.14 Governing law
This Agreement and all documents made under this Agreement shall be governed by and construed and enforced in accordance with the laws of Hong Kong.
15.15 Dispute resolution
15.15.1 Except for disputes to be resolved pursuant to clause 10.3, and subject to clause 15.15.4, if a dispute arises out of or in connection with this Agreement or its performance, validity or enforceability (Dispute) then the parties must comply with the following dispute resolution procedure:
(A) either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (Dispute Notice), together with relevant supporting documentation;
(B) on receipt of the Dispute Notice, each party must nominate a sufficient senior Personnel who will attempt in good faith to resolve the Dispute;
(C) if the nominated Personnel are for any reason unable to resolve the Dispute within twenty (20) Business Days of it being referred to them, the parties will attempt to settle it by mediation in accordance with the Hong Kong International Arbitration Centre rules (HKIA Rules).
15.15.2 The commencement of mediation under clause 15.15.1(C) will not prevent the parties commencing or continuing arbitration in accordance with clause 15.15.3.
15.15.3 Subject to clause 15.15.4, any Dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the HKIA Rules, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be one. The seat, or legal place, of arbitration shall be Hong Kong. The language to be used in the arbitral proceedings shall be English. The decision of the arbitrator shall be final and binding on the parties, save in respect of manifest error. The costs of the arbitrator shall be borne equally between the parties or as the arbitrator otherwise directs.
15.15.4 Notwithstanding clauses 15.15.1, 15.15.2 and 15.15.3, nothing in this Agreement prevents:
(A) either party from seeking urgent injunctive or similar relief from any court of competent jurisdiction if needed to enforce its rights under this Agreement; and/or
(B) SUPPLIER from bringing any legal action or proceedings in the courts to recover any unpaid charges,
and to this end each Party irrevocably agrees that the courts of Hong Kong shall have exclusive jurisdiction to settle any such dispute or claim.
16 Definitions and Interpretation
16.1 In this Agreement, unless the context otherwise indicates:
Acceptance Criteria means the acceptance criteria set out in or appended to the Purchase Order;
Acceptance Date means the date on which the Equipment is accepted or deemed accepted pursuant to clauses 4.1 and 4.2;
Acceptance Testing Period has the meaning given in clause 4.1;
Additional Services Fees has the meaning given in the Operation and Maintenance Terms and Conditions;
Additional Services has the meaning given in the Operation and Maintenance Terms and Conditions;
Affiliate means in respect of a company, a company which is its subsidiary or holding company or a company which is a subsidiary of that holding company;
Agreement has the meaning given in clause 1.1;
Business Day means a day other than a Saturday, Sunday or a public or general holiday in the location where the obligation is to be performed or Hong Kong (whichever is appropriate);
Charges means the Equipment Charges, Equipment Operation and Maintenance Fees, the Installation and Commissioning Fees and the Extra Charges;
Commencement Date means the date on which the last party to this Agreement has executed the Purchase Order;
Confidential Information means any information which has been designated as confidential by either party in writing or that ought to be considered as confidential (however it is conveyed or whatever media it is stored) including information which relates to the business, affairs, properties, assets, trading practices, goods/services, developments, trade secrets, Intellectual Property Rights, know-how, personnel, customers and suppliers of either party and all personal and private data and includes the terms of and information in this Agreement;
Consequential Loss means any:
(a) loss of profits, use, anticipated savings, revenue, business opportunity, goodwill, reputation, economic loss or data; and/or
(b) indirect loss or damages, special, punitive or consequential loss;
Dispute has the meaning given in clause 15.15.1;
Dispute Notice has the meaning given in clause 15.15.1(A);
End User means any person who uses the Equipment and/or the Services and/or to whom the Equipment or the Services are resold and includes CTG;
Equipment means the equipment to be supplied by SUPPLIER to CTG as set out in the Purchase Order (including any part or parts of it);
Equipment Charges means the charges payable by CTG to SUPPLIER for the supply of the Equipment as set out in the Purchase Order;
Equipment Operation and Maintenance Fees means the Standard Operation and Maintenance Fees, Additional Services Fees and any additional charges for spare parts as provided in the Operation and Maintenance Terms and Conditions;
Equipment Operation and Maintenance Services means the Operation and Maintenance Services and Additional Services to be provided by or on behalf of SUPPLIER;
Extra Charges means the charges for any Extra Services as specified in the Purchase Order;
Extra Services means any additional training, technical support and/or other extra services agreed between SUPPLIER and CTG as specified in the Purchase Order;
Force Majeure Event has the meaning given in clause 15.2;
General Terms and Conditions means these general terms and conditions;
Hong Kong means the Hong Kong Special Administrative Region of the People’s Republic of China;
HKIA Rules has the meaning given in clause 15.15.1(C);
Indemnified Party has the meaning given in clause 12.4;
Insolvency Event means a situation where a party is unable to pay its debts or stops or threatens to stop or suspend payment of all or a material part of its debts, has a receiver, manager or liquidated appointed in respect of it or enters into or resolves to enter into any arrangement with its creditors;
Installation and Commissioning Fees means the fees payable by CTG to SUPPLIER for the performance of the Installation and Commissioning Services, as set out in the Purchase Order;
Installation and Commissioning Services means the installation and commissioning services to be provided by or on behalf of SUPPLIER as set out in the Statement of Work;
Intellectual Property Rights means any and all existing and future rights associated with registered and unregistered copyrights, trade marks, trade dress, trade names, corporate names, logos, inventions, patents, patent applications, software, know-how, and all other intellectual and industrial property and proprietary rights of every kind and nature and however designated, whether arising or subsisting in Hong Kong or elsewhere;
Loss means all loss, liability, damage, cost and expense (including Taxes and reasonable legal fees);
Normal Business Hours means SUPPLIER’s official business hours (as may be notified by SUPPLIER from time to time) on a Business Day in the location where the obligation is to be performed or 9.00 am to 5.30 pm on a Business Day in Hong Kong (as appropriate);
Operation and Maintenance Services has the meaning given in the Operation and Maintenance Terms and Conditions;
Operation and Maintenance Term has the meaning given in the Operation and Maintenance Terms and Conditions;
Operation and Maintenance Terms and Conditions mean the service-specific terms applicable to the Operation and Maintenance Services set out in the Schedule to these General Terms and Conditions;
Personnel means employees, officers, agents, consultants, contractors, sub-contractors and their employees, officers, agents, consultants, contractors and sub-contractors;
Premises means (as the case may be):
(a) the place of delivery of the Equipment; and/or
(b) the place of performance of the Services,
as specified in the Purchase Order or any other location as may be agreed by the parties in writing from time to time subject to CTG having given SUPPLIER at least five (5) Business Days’ notice prior to the scheduled delivery or performance date (as the case may be) of any request to change the place of delivery or performance;
Purchase Order means the summary of the Equipment, Equipment Operation and Maintenance Services, Installation and Commissioning Services and/or Extra Services (as the case may be) to be provided by SUPPLIER pursuant to this Agreement made by CTG requesting supply of the Service and attached to these General Terms and Conditions;
Ready for Service Date means the date when:
(a) if Installation and Commissioning Services are to be provided, SUPPLIER notifies CTG that the Installation and Commissioning Services have been completed; or
(b) if no Installation and Commissioning Services are to be provided, the Equipment is delivered;
Service Credits has the meaning given in the Operation and Maintenance Terms and Conditions;
Service Levels has the meaning given in the Operation and Maintenance Terms and Conditions;
Services means the Equipment Operation and Maintenance Services, the Installation and Commissioning Services and the Extra Services;
Software means any operating system installed on the Equipment;
Standard Operation and Maintenance Fees has the meaning given in the Operation and Maintenance Terms and Conditions;
Statement of Work means the statement of work for the Installation and Commissioning Services set out in or attached to the Purchase Order;
Taxes means all forms of taxation, duties, levies, imposts and other similar impositions of any jurisdiction whether central, regional or local (but excluding income tax attributable to SUPPLIER); and
Third Party Provider means any third party who provides services to SUPPLIER to enable SUPPLIER to deliver all or part of the Equipment and/or to provide all or part of the Services.
16.2 In this Agreement, unless the contrary intention appears:
16.2.1 headings are for convenience only and do not impart any meaning;
16.2.2 the singular includes the plural and vice versa;
16.2.3 references to any legislation includes all amendments, modifications, consolidation or re-enactment of that legislation;
16.2.4 a reference to a party is a reference to a party to this Agreement;
16.2.5 mentioning anything after “include”, “includes” or “including” does not limit the reference to anything else which might be included;
16.2.6 other grammatical forms of defined words and expressions have corresponding meanings; and
16.2.7 references to clauses herein are to clauses of these General Terms and Conditions.
SCHEDULE TO GENERAL TERMS AND CONDITIONS: OPERATION AND MAINTENANCE TERMS AND CONDITIONS
1 Operation and Maintenance Term
16.3 SUPPLIER shall provide the Equipment Operation and Maintenance Services during the Initial Operation and Maintenance Period.
16.4 Subject to earlier termination in accordance with this Agreement, the term of the Equipment Operation and Maintenance Services shall automatically be extended for a Operation and Maintenance Renewal Period at the end of the Initial Operation and Maintenance Period and at the end of each Operation and Maintenance Renewal Period, unless a party gives written notice to the other party, not later than sixty (60) days before the end of the Initial Operation and Maintenance Period or the relevant Operation and Maintenance Renewal Period, to terminate the Equipment Operation and Maintenance Services.
2 Performance of Operation and Maintenance Services
16.5 SUPPLIER shall attend the Premises during Normal Business Hours at a frequency as is reasonably determined by SUPPLIER to perform Preventative Maintenance of the Equipment.
16.6 As soon as becoming aware that the Equipment is malfunctioning or has failed or is otherwise not in Good Working Order (Fault), CTG must notify SUPPLIER by contacting such telephone number and/or email address as SUPPLIER may from time to time notify CTG for this purpose.
16.7 Subject to paragraph 4, on CTG informing SUPPLIER of a Fault, SUPPLIER shall:
16.7.1 use all reasonable endeavours to attend the Premises during Normal Business Hours within the relevant Response Time; and
16.7.2 use all reasonable endeavours to perform Corrective Maintenance of the Equipment within the relevant Fix Time.
16.8 In performing the Operation and Maintenance Services, SUPPLIER shall use all reasonable endeavours to restore any malfunctioning or failed Equipment to Good Working Order while in attendance at the Premises. Where this is not reasonably practicable, or not reasonably practicable within Normal Business Hours, SUPPLIER shall either arrange for a further visit to the Premises within Normal Business Hours to complete the repair, or remove the Equipment or part of the Equipment for repair off-site.
16.9 SUPPLIER shall procure that its Personnel shall, while on site at the Premises, comply with CTG's reasonable health and safety and security policies provided that these policies have been brought to the attention of its Personnel.
3 Service Levels
16.10 SUPPLIER shall perform the Operation and Maintenance Services in accordance with the Service Levels, which are as follows:
16.10.1 Response Time: [ ]; and
16.10.2 Fix Time: [ ].
4 Additional Services
16.11 On CTG informing SUPPLIER outside Normal Business Hours that the Equipment is malfunctioning, has failed or is not in Good Working Order, SUPPLIER shall use all reasonable endeavours to attend the Premises and to perform Emergency Maintenance of the Equipment.
5 Replacements and spare parts
16.12 In performing the Equipment Operation and Maintenance Services, SUPPLIER shall use all reasonable endeavours to source spare parts required to restore the Equipment to Good Working Order. Where SUPPLIER can reasonably source individual spare parts for less than [HKD20,000] excluding Taxes, SUPPLIER shall not charge CTG for the spare parts. Where SUPPLIER is unable to source individual spare parts for less than this amount, SUPPLIER shall have the right to charge CTG for the spare parts.
16.13 All spare parts and/or replacements provided by SUPPLIER to CTG shall become part of the Equipment.
6 Customer’s obligations
16.14 Notwithstanding the provisions of clause 7.1 of the Agreement, CTG shall:
16.14.1 ensure that the Equipment is installed and kept in suitable premises and under suitable conditions, as specified in the Operating Manuals;
16.14.2 notify SUPPLIER promptly if the Equipment is discovered to be operating incorrectly and keep records of Faults.
7 Maintenance Fees
16.15 For the performance of Operation and Maintenance Services, SUPPLIER shall invoice, and CTG shall pay to SUPPLIER, the Standard Operation and Maintenance Fees in accordance with the invoicing and payment terms set out in the Purchase Order. The Standard Operation and Maintenance Fees are non-refundable.
16.16 The Standard Operation and Maintenance Fees shall be inclusive of all expenses, other than those recoverable in accordance with paragraph 5.1, and SUPPLIER shall be responsible for all costs and expenses incurred in providing the Operation and Maintenance Services (other than those recoverable in accordance with paragraph 5.1).
16.17 Any charges for spare parts recoverable in accordance with paragraph 5.1 shall be invoiced by SUPPLIER as and when incurred.
8 Additional definitions
In addition to the terms defined in the General Terms and Conditions, in these Operation and Maintenance Terms and Conditions unless the context otherwise indicates:
Corrective Maintenance means:
(a) making any adjustments to the Equipment; and
(b) replacing any parts or components of the Equipment, required to restore the Equipment to Good Working Order,
in accordance with paragraphs 2.2 and 2.3;
Emergency Maintenance means:
(a) making any adjustments to the Equipment; and
(b) replacing any parts or components of the Equipment, required to restore the Equipment to Good Working Order,
in accordance with paragraph 4.1;
Fault has the meaning set out in paragraph 2.2;
Fix Time means the applicable fix time(s) as set out in as set out in paragraph 3.1.2;
Initial Operation and Maintenance Period means the initial maintenance period set out in the Purchase Order commencing on the day after the Acceptance Date;
Good Working Order means the Equipment operates in accordance with the Operating Manuals;
Operating Manuals means the standard manufacturer operating manuals and specifications relating to the Equipment;
Operation and Maintenance Renewal Period means each successive twelve (12) month period after the Initial Operation and Maintenance Period for which the Operation and Maintenance Services are renewed in accordance with paragraph 1.2;
Operation and Maintenance Services means Preventative Maintenance and Corrective Maintenance of the Equipment;
Operation and Maintenance Term means the Initial Operation and Maintenance Period together with any and all Operation and Maintenance Renewal Periods;
Preventative Maintenance means:
(a) testing that the Equipment is functional; and
(b) making any adjustments as may be required to ensure the Equipment remains in Good Working Order,
in accordance with paragraph 2.1;
Response Time means the applicable response time(s) as set out in paragraph 3.1.1;
Service Levels means the Response Time and the Fix Time; and
Standard Operation and Maintenance Fees means the fees payable by CTG for the provision of Corrective Maintenance and Preventative Maintenance, as set out in the Purchase Order, as these fees are varied from time to time in accordance with the terms of this Agreement.
In these Operation and Maintenance Terms and Conditions, reference to paragraphs means to paragraphs of these Operation and Maintenance Terms and Conditions.