These general terms and conditions of Franz Barta Far East Limited(“Barta”, “we” or “us”) apply to all orders made in Hong Kong with Barta which are subsequently accepted by Barta.
Offers, price and order
Requests for goods addressed to us (“orders”) shall be treated as binding orders upon receipt by us. Notwithstanding the foregoing, we shall reserve the right to accept and/or carry out the order – for any reason whatsoever – and the contract for sale of the goods shall not be treated as concluded and legally binding until we have explicitly accepted it by sending a confirmation of order. Quotes sent by us are without any binding effect and shall merely be deemed as an invitation to treat; we shall not be liable for the accuracy of cost estimates. Any objections by the customer due to deviations of our order confirmation from the customer’s order letter must be raised within two (2) working days after receipt of our order confirmation; otherwise the customer shall be deemed to have acknowledged the content of our order confirmation to be correct. The customer is responsible for verifying the accuracy of the content of our order confirmation, especially as to whether we have designated the required fonts, subjects or illustrations correctly. Any increase of the materials price and of the labour cost due to collective bargaining agreements after determination of the price, but before execution of the delivery, shall entitle us to invoice the resulting price increase. Oral agreements or agreements by telephone shall require a written confirmation sent by us to be binding. We shall be entitled to request an order letter properly signed on behalf of the customer before confirming any contract.
Terms of payment, no set-off
The following payment terms shall apply to invoices issued by us: new customers shall settle all invoices in advance of delivery; returning customers shall be entitled to 30 days credit following delivery to settle any invoices. In the event of late payment, default interest amounting to 4% above the HSBC Hong Kong base rate of interest per annum shall be paid. The customer shall not have any right of offset in respect of any sums owned to Barta and all invoices must be settled in full.
Reservation of title
We shall retain a lien over the delivered goods until payment in full of all our claims associated with the respective contract. If the goods are processed or combined with other items, we shall be co-owners of the new object in the amount of the proportion deriving from the value of the processed goods subject to retention of title in relation to the value of the new object. The customer shall be entitled to pass on the goods in the course of regular business transactions, provided he is not in default of payment. Any goods produced using our products must not be handed over before payment of our claims in full. Without any further special declaration of assignment being required, the customer assigns to Barta the claims accruing to him from reselling the goods subject to retention of title vis-à-vis his buyers for redemption of all our claims including all ancillary rights, namely in the amount of the value of our unpaid delivery. The same shall analogously apply in case of finishing or processing, combining or mixing. If our goods or the things produced using them become essential parts of third-party goods, the customer hereby assigns to us its claims acquired in this respect, which may also cover its remaining services, together with all ancillary rights, in the amount of the value of our delivery. The customer must neither pledge the goods subject to retention of title nor transfer them as security. In case of seizures or other claims raised by third parties, the customer shall be obliged to assert our right of ownership and notify us accordingly without delay. The customer shall reimburse us for the costs associated with the objection of nullity of the claim.
Packaging
The price only includes the simple wrapping of the printed products in order to put the goods into a deliverable state. If the customer requests any special packaging or bundling, the latter shall be charged at cost.
Delivery period
The delivery period shall start on the date of dispatch of our order confirmation, provided that all working documents are clearly and unequivocally available and nothing to the contrary has been noted in our order confirmation. Due to the technical difficulties that may arise during the manufacture of our special products, any information given as to delivery periods shall be subject to change. If in specific cases, a binding date is explicitly granted by us in writing, we shall retain the right to ask for a reasonable period of grace, even if there is no force majeure. In case of a delay in delivery, the customer cannot assert its statutory rights before granting a reasonable period of grace of at least 30 days and declaring the rescission of the contract. Any loss of profit cannot be claimed under any circumstances. Moreover, the amount of any claim for damages shall be limited, to the fullest extent permitted by law, to a maximum of 10% of the respective contract amount. Damages claims for delayed delivery shall be excluded to the extent permitted by law. Force majeure shall release us from any obligation to deliver, regardless of whether said event of force majeure has taken place in our plant or in the plants of our suppliers. In such cases, the customer shall not be entitled to withdraw from the contract. Claims for compensation, of any kind whatsoever, vis-à-vis Barta cannot be derived from such circumstances.
Delivery
Delivery shall take place ex works, Barta’s Hong Kong warehouse, or as otherwise agreed in writing , for the account and risk of the customer. Excess or short deliveries by us shall be admissible up to 10% and shall be invoiced pro rata at the agreed invoice price.
Liability (warranty, compensation)
Unless agreed otherwise, the statutory warranty rules shall apply. Specific properties of the products shall only be deemed warranted if they were explicitly promised by Barta. The fact that Barta commences any bidding, production and delivery activity does not constitute an automatic or conclusive consent to contracts and provisions of the customer. Any consent by Barta must be given explicitly and in writing. Information contained in product descriptions does not constitute any explicitly warranted properties of the product. Complaints (notices of defects) shall only be admissible within one week after receipt of the goods and must be notified immediately. Defects in part of our delivery cannot entail the rejection of the entire delivery. We may demand improvement or replacement at our discretion. Complaints in case of hidden defects that cannot be detected within 8 days even through careful examination of the delivered goods, must be raised immediately after being detected, but no later than within 3 months after delivery in any case. On principle, we shall not be held liable for the improper use of our products. Our technical product and data sheets as well as other technical information correspond to the best of our knowledge; however, no binding commitment as to the results to be achieved when using our products may be derived therefrom. Colours according to RAL, HKS, PMS and/or other colour catalogues will always be printed in line with the latest colour catalogue available on the market. We shall not assume any liability for deviations from previous colour catalogues. Special colour requests shall be communicated to Barta based on original artwork. Colours in products supplied shall be considered approved for follow-up orders upon the goods arriving at the customer. Warranty claims for minor deviations in colour shades and formats, as well as for minor deviations between press proof and production print and/or original and production print, shall be excluded and cannot be the object of a notice of defect. A warranty for the authenticity of colours, bronzes, varnishing and impregnations will only be provided to the extent that upstream suppliers assume a corresponding undertaking towards us or to the extent explicitly granted by us in writing. We shall not be liable for any misprints and bad workmanship which the customer has overlooked in the photocopies, layouts, press proofs or artwork designated by him as ready for press. We shall carry out any text and artwork modifications notified by telephone without assuming any liability for their correctness. Should the specific characteristics of goods supplied by us involve the risk that, by processing them, an unsatisfactory result might be obtained or even damage caused to other objects, we shall provide those goods on the condition that the customer both provides for adequate trial processing and applies the required care during processing itself, in order to avoid any damage caused through obvious or hidden defects of the goods. Any liability for damage caused by the further processing of our goods shall be excluded. Otherwise Barta shall be liable for damage caused in the course of performing the contract only in case of gross negligence. The compensation of consequential damage or economic loss shall be excluded in the same way as for lost savings, interest losses and loss due to third-party claims against the customer. The contract does not provide any protection in favour of third parties. Claims for damages shall become time-barred six months after finding out about the damage and the injuring party, but in any case three years after provision of the service. Other claims, of any kind whatsoever, for compensation by the customer shall be excluded – except for instances of negligence or intent. Nothing in this contract shall be deemed to limit or exclude the liability of Barta for personal injury or death caused by negligence or any other liability which cannot be excluded or limited by law.
Processing
By awarding the contract, the customer declares that it has ascertained the expediency of the goods ordered from us, based on processing a sample with a view to the intended use. The tests carried out by the Barta laboratory with product and material shall be effected according to internal test specifications. They will be carried out in line with internationally recognised test standards, but are not certified. All tests required by the customer beyond that shall be carried out at the latter’s expense and initiative using original material. The customer will only obtain valid results if our product is transferred to the former’s original material under manufacturing conditions. We undertake to manufacture the goods, with respect to their technical properties, in the same way as the samples tested upon the award of the contract. In any case, we shall not be held liable for any problems and damage caused through insufficient preliminary testing or, after preliminary testing, through modifications to any production factor (substrate, processing temperature, working method etc.).
Ownership title, copyright
The lithographs, drawings, slides and printing plates, as well as any other material required for the production process, shall remain solely vested in and owned by us, even if these have been created or developed in the course of fulfilling a customer’s order. The same shall apply to any manufacturing documents that were prepared by another company on our behalf.
Special costs
The costs of layouts and press proofs will be additionally invoiced and are not included in the delivery prices. The same shall apply to all special requests of the customer beyond what is customary, e.g. for any special way of cutting and bundling the goods. Any later requests for modifications on the part of the customer or its agents shall be separately charged according to calculation methods commonly used in the industry.
Storage and call-off deliveries
Any material provided by the customer, such as manuscripts, originals, printing plates, films, data and data carriers, of any kind whatsoever, shall be delivered at the customer’s cost to Barta’s Hong Kong warehouse or as otherwise agreed. Said material shall be stored at our premises at the risk of the customer exclusively. The customer shall exclusively be responsible to take care of insuring these goods against any risk whatsoever at its own expense. We shall not assume any liability for damage to or loss of said items, unless the damage or loss was caused through by negligence or intentionally by Barta. Should any limited storage of finished goods be explicitly agreed, we cannot be held liable for any damage occurring in spite of taking reasonable care. Nor shall we be obliged to take out insurance for stored goods. In case of call-off orders the customer undertakes to purchase the entire quantity within 6 months, unless any other agreement was explicitly made in writing. At an ambient temperature of -25 to +25 degrees Celsius & a humidity of 40 to 60%, the storage stability of our products is at least two (2) years (except for elastofix®-tex/AM type where storage stability is one (1) year) from completion of the goods. Any deviating storage periods for special products will be explicitly communicated by Barta. In case the storage period indicated is exceeded, tests shall be carried out to determine the product quality on original material.
Corrections
We shall only be obliged to submit a proof, draft, press proof or a photocopy if this was explicitly made a condition and confirmed by us upon ordering. If such artwork is not returned by the customer with a note of approval or modification within 8 days after receipt, this failure to reply on the part of the customer shall be deemed an approval. The same shall apply to Production Part Approval Process (PPAP) documents upon expiry of 10 days. However, if the subsequent performance of the contract absolutely requires the customer to make a confirmation, the period during which the customer delayed in responding shall be treated as an interruption of any delivery period agreed upon and the delivery date shall be extended accordingly. Should any such interruption of the delivery period caused by the customer exceed a period of 4 weeks, we shall be entitled to invoice the work already done on a pro rata basis, unless this right is explicitly waived by us.
Right of reproduction
We shall not be obliged to verify if our customer is entitled to use the artwork and have it reproduced or otherwise use it as intended. We are entitled to assume that our customer has obtained all of the rights and/ or consents required for the execution of the order including vis-à-vis third parties. Our customer shall be obliged to indemnify us with respect to all claims asserted by third parties due to infringements of copyrights, ancillary copyrights, other proprietary rights or protective personal rights. We shall notify our customer of such claims and be entitled to join him in case of any legal action against us. If our customer fails to join us in the proceedings by way of a joinder of parties, we shall be entitled to respond to, defend and/ or settle the third party claim and to seek indemnification from our customer in respect of all losses and costs suffered by us in responding, defending or settling such claim, regardless of the lawfulness of the acknowledged claim. The contractor shall fully indemnify us with respect to all loss, costs and expenses (including legal reasonable fees) incurred in connection with any such claims asserted against us by third parties or public authorities.
Written form requirement
All agreements shall be made in writing to be effective. Oral agreements shall not be valid, unless confirmed by us in writing. Deviating from this formal requirement shall require a written agreement.
Corporate and trademark imprint
We are entitled to print our company name and trademark on the printed material ordered. Nothing in these terms and conditions shall prevent Barta seeking and/or obtaining an injunction to protect against infringement of its trademark or other intellectual property rights in any court of competent jurisdiction throughout the world.
Legal venue
The place of performance for all contractual relationships subject to the present terms of delivery and payment shall be Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”). The legal venue for disputes concerning the existence or non-existence of such contractual relationships and for disputes arising from such contractual relationships shall exclusively be the courts of Hong Kong.
Applicability of delivery and payment terms, deviations
Any deviations from these terms of delivery and payment shall only take effect upon being approved in writing. These terms and conditions shall apply to the exclusion of any terms and conditions of the customer; they shall not be binding upon us, even if Barta fails to reiterate its objection to them upon contract conclusion. The present terms of delivery and payment shall apply as a framework agreement to all subsequent deliveries associated with the contract as well as to all additional legal transactions with the customer (especially additional and follow-up contracts), even if their application was not explicitly agreed in each case. Should any provision of the present general terms and conditions be invalid or unenforceable in whole or in part, this shall not impair the legal effect of all the remaining provisions. The contracting parties shall replace the invalid or unenforceable provision by a valid and enforceable provision approximating the purpose and content of the invalid or unenforceable provision as closely as possible.
Data processing
You acknowledge and agree that we will use the personal data collected during the order process only for the purpose of executing your order and providing follow up services. We may share your personal data with any of our affiliates, whether in Hong Kong or overseas, for the purposes stated above. We may also transfer any personal data we have about you in connection with a merger or sale involving all or part of Barta or its group companies or a part of a corporate reorganization or any other change in corporate control. To access, review or change your personal data held by Barta please contact us at office.asia@barta.at.
Applicable law
These terms and conditions and any matters arising out of (or in connection with) this contractual relationship shall be governed by the laws of Hong Kong.
