Terms and Conditions

These terms and conditions of sale of Gold Mark Hong Kong Ltd (the "Terms and Conditions") apply to and form an integral part of all quotations and offers made by Gold Mark Hong Kong Ltd ("Gold Mark"), all acceptances, acknowledgements and confirmations by Gold Mark of any orders by Buyer and any agreements ("Agreement(s)") regarding the sale by Gold Mark and purchase by Buyer of goods and services ("Products"), unless and to the extent Gold Mark explicitly agrees otherwise in writing.

Any terms and conditions set forth on any document or documents issued by Buyer either before or after issuance of any document by Gold Mark setting forth or referring to these Terms and Conditions are hereby explicitly rejected and disregarded by Gold Mark, and any such terms shall be wholly inapplicable to any sale made by Gold Mark to Buyer and shall not be binding in any way on Gold Mark.

Gold Mark' offers are open for acceptance within the period stated by Gold Mark in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Gold Mark at any time prior to the receipt by Gold Mark of Buyer's acceptance thereof.

Prices in any offer, confirmation or Agreement are in Hong Kong Dollars, based on delivery Ex-Works (INCOTERMS latest version) Gold Mark' manufacturing facility or other facility designated by Gold Mark, unless agreed otherwise in writing between Buyer and Gold Mark and do not include any taxes, duties or similar levies, now or hereafter enacted, applicable to the Products or any other expenses. Gold Mark will add taxes, duties and similar levies to the sales price where Gold Mark is required or enabled by law to pay or collect them and these will be paid by Buyer together with the price.

(a) Unless agreed otherwise between Gold Mark and Buyer in writing, Gold Mark may invoice Buyer for the price of the Products delivered upon delivery of the Products in accordance with the applicable INCOTERM. All payments shall be made to the designated Gold Mark account. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Gold Mark. In addition to any other rights and remedies Gold Mark may have under applicable law, interest will accrue on all late payments at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full.

(b) All deliveries of Products agreed to by Gold Mark shall at all times be subject to credit approval of Gold Mark. If, in Gold Mark' judgment, Buyer's financial condition at any time does not justify production or delivery of Products on the above payment terms, Gold Mark may require full or partial payment in advance or other payment terms as a condition to delivery, and Gold Mark may suspend, delay or cancel any credit, delivery or any other performance by Gold Mark.

(c) In the event of any default by Buyer in the payment of any fees or charges due, or any other default by Buyer, Gold Mark shall have the right to refuse performance and/or delivery of any Products until payments are brought current and Gold Mark may suspend, delay or cancel any credit, delivery or any other performance by Gold Mark. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the Agreement or at law.

(a) Products shall be delivered Ex-Works (INCOTERMS latest version) as designated by Gold Mark, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by Gold Mark are approximate only, and Gold Mark shall not be liable for, nor shall Gold Mark be in breach of its obligations to Buyer, for any delivery made within a reasonable time before or after the communicated delivery date. Gold Mark agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the such delivery date.

(b) Buyer will give Gold Mark written notice of failure to deliver and thirty (30) days within which to cure. If Gold Mark does not deliver within such thirty (30) day period, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the related Agreement.

(c) Title in the Products shall pass to Buyer upon payment in full of the purchase price, including any interest and/or expenses in respect thereof and (to the extent permitted by applicable law) payment in full of any other Products Buyer has ordered and/or payment of any claim in connection with or arising out of the Agreement. Until title in the Products has passed to Buyer, Buyer shall not assimilate, transfer or pledge any of the Products, or grant any right or title in the Products to any third party, except in the event such right or title is granted in normal course of business. Buyer shall ensure that the Products remain identifiable as Products obtained from Gold Mark. Buyer shall at all times grant Gold Mark (or its representative) free access to the location where Buyer has stored the Products. In the event Buyer does not fulfill its payment obligations towards Gold Mark, or gives reason to believe that it will not fulfill any or part of its payment obligations, Buyer is obliged at Gold Mark' request to return to Gold Mark, at Buyer's cost, the Products in which the title has not yet passed and Buyer agrees to fully cooperate with Gold Mark in order to enable Gold Mark (or its representative) to collect its Products. Risk of loss in the Products shall pass to Buyer upon Gold Mark' delivery in accordance with the applicable INCOTERMS.

(d) If Buyer fails to take delivery of Products ordered, then Gold Mark may deliver the Products in consignment at Buyer's cost.

(e) In the event Gold Mark' production is curtailed for any reason, Gold Mark shall have the right to allocate its available production and Products, in its sole discretion, among its various customers and as a result may sell and deliver to Buyer fewer Products than specified in the Agreement, as the case may be, without being responsible or liable to Buyer for any damage resulting therefrom.

Gold Mark shall not be liable for any failure or delay in performance if:
(i) such failure or delay results from interruptions in the Product manufacturing process; or
(ii) such failure or delay is caused by Force Majeure as defined below and/or by (case) law.

In case of such a failure as set forth above, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues, without Gold Mark being responsible or liable to Buyer for any damage resulting therefrom.

The expression "Force Majeure" shall mean and include any circumstances or occurrences beyond Gold Mark' reasonable control—whether or not foreseeable at the time of the Agreement—as a result of which Gold Mark cannot reasonably be required to execute its obligations including force majeure and/or default by one of Gold Mark' suppliers. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Gold Mark to extend for a period of three (3) consecutive months), Gold Mark shall be entitled to cancel all or any part of the Agreement without any liability towards Buyer.

Subject to the provisions set forth herein, the sale by Gold Mark of any goods implies the non-exclusive and non-transferable limited license to Buyer under any of Gold Mark's and/or its affiliates' intellectual property rights ("Gold Mark' IPR") used in the goods to use and resell the goods as sold by Gold Mark to Buyer. To the extent that software and/or documentation is embedded in or delivered with any goods sold by Gold Mark to Buyer, the sale of such goods shall not constitute the transfer of ownership rights or title in such software and/or documentation to Buyer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and non-transferable license to Buyer under Gold Mark IPR used in the software to use such software and/or documentation in conjunction with and as embedded in or delivered with the goods as supplied by Gold Mark to Buyer.

Notwithstanding anything to the contrary herein, these Terms and Conditions shall not be construed as conferring any right, license or immunity, either directly or by implication, estoppel or otherwise to Buyer or any third party under any Gold Mark IPR or intellectual property rights of any third party other than explicitly granted under these Terms and Conditions.

Buyer shall not:
(a) modify, adapt, alter, translate, or create derivative works from any software residing in or provided by Gold Mark in conjunction with any goods;
(b) assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software;
(c) merge or incorporate such software with or into any other software; or
(d) reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Gold Mark except as explicitly allowed under applicable law. Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Gold Mark and/or its affiliates or its third party suppliers in any software or documentation provided by Gold Mark. If and to the extent copyright in the software is owned by third parties, the license terms of these third parties shall apply instead of the present Terms and Conditions to such third party software.

(a) Gold Mark warrants that under normal use in accordance with the applicable user manual the Products, (excluding any software that is not embedded in or delivered with any goods by Gold Mark or software which is subject to copyright owned by a third party) shall, at the time of delivery to Buyer and for a period of twelve (12) months from the date of delivery (or such other period as may be agreed upon in writing by the parties, or as communicated in writing at sale by Gold Mark), be free from defects in material or workmanship and shall substantially conform to Gold Mark' specifications for such Product, or such other specifications as Gold Mark has agreed to in writing, as applicable. Labour costs, (de)mounting and/or (de)installation are excluded from this warranty. Gold Mark' sole and exclusive obligation, and Buyer's sole and exclusive right, with respect to claims under this warranty shall be limited, at Gold Mark' option, to (1) repair or (2) provide a replacement of the defective or non-conforming Product or (3) to an appropriate credit for the purchase price thereof. Gold Mark will have a reasonable time to repair, replace or credit. Gold Mark is entitled at its option to replace the defective or non-conforming Product(s) with a product that has minor deviations in design and/or specifications not affecting the functionality of the agreed Product(s). The non-conforming or defective Products shall become Gold Mark' property as soon as they have been replaced or credited.

(b) Buyer may ship Products returned under warranty to Gold Mark' designated facility only in conformance with Gold Mark' then-current return material authorization policy. Where a warranty claim is justified, Gold Mark will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing, on-site visits and handling costs associated therewith.

(c) Notwithstanding the foregoing, Gold Mark shall have no obligations under warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, use other than as set forth in the applicable User Manual, neglect, liquid ingress or corrosion, power interruption, natural calamities or other external factors, improper installation or accident, or as a result of improper repair, alteration, tempering, modification, storage, transportation or improper handling.

(d) Subject to the applicable mandatory law, the express warranty granted above shall extend directly to Buyer only and not to Buyer's customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by Gold Mark.

(e) Subject to the exclusions and limitations set forth in Section 9 of the Terms and Conditions, the foregoing states the entire liability of Gold Mark and its affiliates in connection with defective or non-conforming Products supplied hereunder.

(a) Gold Mark, at its sole expense, shall:
(i) defend any legal proceeding brought by a third party against Buyer to the extent that the proceeding includes a claim that any Product as furnished by Gold Mark under an Agreement directly infringes the claimant's patent, copyright, trademark, or trade secret; and
(ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding to the extent directly and solely attributable to such infringement.

(b) Gold Mark shall have no obligation or liability to Buyer under Section (a)(1) if:
(1) Gold Mark is not:
(i) promptly notified in writing of any such claim;
(ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and
(iii) given full reasonable assistance and cooperation by Buyer in such investigation, preparation, settlement and defense;
(2) the claim is made after a period of three (3) years from the date of delivery of the Product;
(3) to the extent that any such claim arises from:
(i) modification of the Product if the claim of infringement would have been avoided by use of the unmodified Product; or
(ii) design, specifications or instructions furnished by Buyer;
(4) to the extent the claim is based directly or indirectly upon the quantity or value of products manufactured by means of the Product or upon the frequency of use or the amount of use of the Product irrespective of whether such claim alleges that the Product as such, or its use, infringes or contributes to the infringement of any intellectual property rights of the claimant;
(5) for unauthorized use or distribution of the Product or use beyond the specifications of the Product;
(6) to the extent any such claim arises from Buyer's manufacture, use, sale, offer for sale, importation or other disposition or promotion of the Product after Gold Mark' notice to Buyer that Buyer should cease any such activity, provided such notice shall only be given if the Product is, or in Gold Mark' opinion is likely to become, the subject of such a claim of infringement;
(7) for any costs or expenses incurred by Buyer without Gold Mark' prior written consent;
(8) to the extent the claim is based on any prototypes, or Open Source Software, or software provided by Buyer or any of its designees to Gold Mark and/or its affiliates;
(9) to the extent any such claim arises from any infringement or alleged infringement of third party's intellectual property rights covering a standard set by a standard setting body and/or agreed between at least two companies;
(10) for infringement of any third party's intellectual property rights covering the manufacture, testing or application of any assembly, circuit, combination, method or process in which the Product may have been used; or
(11) for infringement of any third party's intellectual property rights with respect to which Gold Mark or any of its affiliates has informed Buyer, or has published (in a datasheet or other specifications concerning the Product or elsewhere) a statement, that a separate license has to be obtained.

For such claims of infringements referred to in this Section 8(b), Buyer shall indemnify Gold Mark and its affiliates against and hold them harmless from any damages or costs arising from or connected with such claims and shall reimburse all costs incurred by Gold Mark and its affiliates in defending any claim, demand, suit or proceeding for such infringement, provided Gold Mark gives Buyer prompt notice in writing of any such suit or proceeding for infringement.

(c) If any Product is, or in Gold Mark' opinion is likely to become, the subject of a claim of infringement as referred to under Section 8(a) above or if Gold Mark receives from a third party claiming infringement of third party IPR in relation to any of the Products, Gold Mark shall have the right, without obligation or liability and at its sole option, to:
(i) procure for Buyer the right to continue to use or sell the Product;
(ii) provide replacement Product with a non-infringing product;
(iii) modify the Product in such a way as to make the modified Product non-infringing;
(iv) repurchase such Product from the Buyer for the initial price paid by Buyer less reasonable depreciation;
(v) suspend or discontinue supplies to Buyer of the Products or parts to which such notice relates; or
(vi) terminate any Agreement to the extent related to such Product.

(d) Subject to the exclusions and limitations set forth in Section 9 of the Terms and Conditions, the foregoing states Gold Mark' entire liability and obligation to Buyer and Buyer's sole remedy with respect to any actual or alleged infringement of any intellectual property rights or any other proprietary rights of any kind.

(a) GOLD MARK SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS OF REPUTATION, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR THE SALE OF ANY PRODUCTS OR SERVICES BY GOLD MARK OR THE USE THEREOF WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER LEGAL THEORY—EVEN IF GOLD MARK HAS BEEN ADVISED, OR IS AWARE, OF THE POSSIBILITY OF SUCH DAMAGES.
GOLD MARK' AGGREGATE AND CUMULATIVE LIABILITY TOWARDS BUYER UNDER ANY AGREEMENTS SHALL NOT EXCEED AN AMOUNT OF TEN PERCENT (10%) OF THE RELATED AGREEMENT.

(b) Any Buyer's claim for damages must be brought by Buyer within thirty (30) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.

(c) The limitations and exclusions set forth above in this Section 9 shall apply only to the extent permitted by applicable mandatory law.

Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by Gold Mark and/or its affiliates is the confidential information of Gold Mark and/or its affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.