1. GENERAL PROVISIONS
1.1 Any buyer’s terms and conditions of purchase inconsistent with these Terms and Conditions of Sale for business transactions shall be nonbinding for Armstrong even if such inconsistent terms and conditions have not expressly been objected to. Any ancillary agreement, any warranties or any modification of these Terms and Conditions of Sale for business transactions shall only be binding if expressly accepted in writing by Armstrong.
1.2 All buyers are not authorized to enter into any oral ancillary agreements or to give any third party any warranties exceeding the provisions of any respective written agreement.
1.3 In any case of force majeure, business shutdown, curtailment of manufacture, strike, damage to industrial facilities, non-delivery or delayed delivery by Armstrong’s supplier, measures taken by government authorities or any similar unforeseen occurrences, Armstrong shall be excused from performing its duties under any respective agreement made. No claims for damages shall, however, accrue to the buyer in any such case.
2. ARMSTRONG'S WARRANTY & CLAIMS
2.1 Armstrong guarantees that the Products sold under this Contract shall be free from defects in material and workmanship and have the qualities stipulated in any specific Product warranties. The warranty period shall be for one year from the date of installation, unless Armstrong for particular Products sets a longer warranty period. If Product defects are discovered, Armstrong shall provide replacement material. However, any claims must be submitted in writing and approved by an authorized representative of Armstrong. Where a Product cannot be replaced with the same Product, Armstrong may provide similar Products as a replacement. Excluding the cost of the replacement material, any other expenses related to such replacement will not be accepted by Armstrong. Armstrong shall in no case be liable for indirect, special, consequential, punitive or incidental damages or losses whether caused by or arising out of the use of the Products supplied by Armstrong, or the quality of such Products or otherwise. This warranty is not applicable to the sale of second-class products (e.g. off-goods). This warranty expresses the full extent of the liability that Armstrong shall bear in connection with the sale of the Products, and expressly excludes any warranty of fitness for a particular purpose or merchantability.
2.2 Unless the buyer informs Armstrong in writing of Product defects in appearance, packaging, or quantity within 60 days after delivery of the Products, the Products delivered by Armstrong shall be deemed to be in conformity with this Contract and the effective order. Armstrong does not authorize the buyer or its customers to refit or reprocess any Products. The above warranty shall not apply to any Product that has been refitted or reprocessed. The buyer may ask for materials concerning the installation and application of the Products and for standards related to the Products.
2.3 Once cutting or processing of the Products has been commenced, complaints of visual defects shall no longer be permitted. Complaints of impairments inevitable within the current state of technology are also not acceptable.
2.4 Slight deviations of quality, weight, size, thickness, width, equipment, patterning and color that are trade-customary, permitted by quality standards, shall not constitute any defect.
2.5 The permanent shading arising in some cases after the installation of velvetpile carpets shall not constitute any defect as the reason for this is neither due to material nor to production.
2.6 Merchandise tags and delivery notes shall be submitted whenever warranty claims are asserted.
2.7 The products used to repair and replace defective Products shall be taken from the currently manufactured products or the available stock on hand. No products shall be specially manufactured for this purpose. No Products shall be returned without Armstrong’s consent.
2.8 The cleaning, maintenance and installation instructions of the Product shall be observed. Such instructions are also available in the Internet under www.armstrong.cn. The buyer confirms that it has fully acknowledged and understood such instructions.
2.9 Claims of the buyer against Armstrong shall be non-assignable.
3.1 EXWorks: Braeside / Delmenhorst as applicable
4. TRANSFER OF RISK AND OWNERSHIP IN THE PRODUCTS
4.1 All risks of loss of or damage to the Products shall pass to buyer at the time of the delivery of the Products to buyer, buyer's agent, buyer’s representative or the freight forwarder appointed by buyer, or at the time of receipt of the Products by buyer, buyer's agent, buyer’s representative or the freight forwarder appointed by buyer at the manufacturing factory of such Products.
4.2 Notwithstanding the buyer has taken possession of the Products, the ownership in the Products shall not pass to the buyer until the full contract price for such Products has been paid by the buyer as well as any taxes applicable to the sale of the Products. Any diminution in the marketable value of the Products howsoever arising after delivery shall be compensated by the buyer.
4.3 The buyer shall be authorized to sell the Products to third parties in the ordinary course of its business before payment has been made in full by the buyer to Armstrong. The buyer shall neither be permitted to mortgage or pledge the Product nor to transfer ownership by way of security. The buyer’s above authorization to sell the Products shall be subject to revocation by Armstrong at any time.
4.4 Buyer assigns in advance to Armstrong any claims which may arise from a resale of the Products to which Armstrong retains title in accordance with Article 4.2 of these General Terms and Conditions of Sale, together with any incidental rights and security interests including bills of exchange and checks, so as to provide Armstrong with security for all claims Armstrong has on buyer as result of the business connection.
5.1 Unless otherwise required by the applicable laws or regulations or otherwise agreed by both Parties, the Products shall be packed in accordance with the requirements and practices of the manufacturer of the Product.
6. QUALITY OF THE PRODUCT
6.1 Buyer agrees that, unless otherwise explicitly agreed by both Parties in writing, the quality standard of the Product shall be determined by mandatory provisions of the national laws and national standards; the product inspection report (or similar document) provided by Armstrong shall not be treated as the standard of the quality of the Product, it shall only be applicable to the selected product which was sent for inspection.
6.2 The quality of samples submitted shall only be deemed to be warranted if such samples have explicitly been identified in writing by Armstrong as quality standard samples. Slight color deviations between the different makings are unavoidable, and buyer agrees to accept slight color deviations.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 All Products sold may be resold by buyer only in packages supplied by Armstrong and in no case may any trademark and logo other than those applied by Armstrong be marked on or applied in relation to Products without prior written consent of Armstrong.
7.2 No rights or licences are granted under any contract to buyer under any patent, trademark, copyright, registered design or other intellectual property right except the right to use or resell Products.
7.3 Any documents issued by Armstrong to buyer at any time containing texts, designs, specification or drawings and all designs and methods of producing Products are confidential and are the property of Armstrong and shall not be copied, reproduced or communicated to any third party by buyer, its employees or agents without the prior written agreement of Armstrong. Title to and copyright in all above documents shall remain the property of Armstrong and such documents, together with all copies must be returned to Armstrong immediately upon request at the cost of buyer.
7.4 Buyer shall indemnify Armstrong in full against all other losses, costs, charges or expenses suffered or incurred by Armstrong as a result of any breach of confidentiality or other infringement of the intellectual property rights of Armstrong by buyer howsoever occasioned.
8. LIMITATION OF ARMSTRONG’S LIABILITIES
In no case shall Armstrong’s liability to buyer in respect of the transaction under these General Terms and Conditions, whether individual or cumulative, exceed the price amount paid by buyer of the product which gives rise to the liability.
9. GOVERNING LAW AND ARBITRATION
9.1.1 This Terms and Conditions of Sale shall be governed and construed by the laws of Hong Kong SAR, excluding any principles governing conflicts of law which might cause the laws of another jurisdiction to apply. No other laws, treaties, or commercial codes, including but not limited to the United Nations Convention on Contracts for the International Sale of Goods, shall apply to the construction and operation of this Terms and Conditions of Sale.
9.1.2 The Parties shall endeavour to resolve any and all differences, disputes or claims arising out of this Terms and Conditions of Sale, or the transaction or commercial relationship thereunder, including any question regarding its existence, validity or termination (“Dispute”) through shall be settled by arbitration in accordance with the Hong Kong International Arbitration Center.