VYTAL SUPPORT (Hong Kong) Ltd, STANDARD TERMS AND CONDITIONS FOR PRODUCTION OF DESIGNS

  1. DEFINITIONS

    In this document the following words shall have the following meanings:

    1. "Client" means the organisation or person who commissions Designs from the Designer;

    2. "Designs" means the development of graphic designs on behalf of the Client and may be in the form of software in any format to be agreed, hardcopy or photographs and the like to be supplied to the Client by the Designer;

    3. "Intellectual Property Rights" means all patents, registered and unregistered designs, copyright, trade marks, know-how and all other forms of intellectual property wherever in the world enforceable;

    4. "Designer" means Vytal Support (Hong Kong) Ltd or any of its subsidiaries.

  2. GENERAL

    1. These Terms and Conditions shall apply to all contracts for the production of Designs by the Designer on behalf of the Client to the exclusion of all other terms and conditions referred to, offered or relied on by the Client whether in negotiation or at any stage in the dealings between the parties, including any standard or printed terms tendered by the Client.

    2. Any variation to these Terms and Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Designer.

    3. The Contract may only be cancelled by the Client with the written consent of the Designer. The Client shall be responsible for payment in full of all costs (including loss of profit), costs, damages, charges and expenses incurred (directly or indirectly) by the Designer as a result of such cancellation. For the avoidance of doubt this includes costs incurred for any design work carried out up to the time of cancellation.

  3. PRICE AND PAYMENT

    1. The price shall be that in the Designer’s quotation, or such other price as the parties may agree in writing.

    2. Payment shall only be deemed received by the Designer from the Client upon receipt by the Designer of cleared funds net of any bank charges. Payment shall be made in full without any deduction, set off or abatement on any grounds.

    3. The Designer shall be entitled to charge interest on overdue invoices from the date when payment becomes due from day to day until the date of payment at the Hong Kong High Court Judgment percentage rate for Hong Kong dollars per annum.

    4. The Designer shall be entitled to charge any expenses and legal costs incurred by the Designer in recovering overdue amounts.

    5. If payment of the price or any part thereof is not made by the due date, the Designer shall be entitled to:

      1. require payment in advance of delivery in relation to any Designs not previously delivered;

      2. refuse to make delivery of any undelivered Designs whether ordered under the contract or not and without incurring any liability whatever to the Client for non-delivery or any delay in delivery;

      3. terminate the contract.

  4. DESCRIPTION

    1. Any description given or applied to the Designs is given by way of identification only and the use of such description shall not constitute a sale by description. For the avoidance of doubt, the Client hereby affirms that it does not in any way rely on any description when entering into the contract.

  5. COMPLETION

    1. Unless otherwise agreed in writing, completion of the Designs shall take effect on emailing the completed design, or if agreed in writing, on dispatch of the hardcopy of the design by courier.

    2. The date of completion of the designs specified by the Designer is an estimate only. Time for delivery shall not be of the essence of the contract.

    3. The Designer may deliver the Designs in installments in any sequence. Deliveries of further installments and performance of further sections may be withheld until the Designs comprised in earlier installments and / or sections have been paid for in full. Default by the Designer, howsoever caused, in respect of one or more installments shall not entitle the Client to terminate the Contract as a whole.

  6. TITLE

    1. Title in the Designs shall pass to the Client only when the Designer has been paid in full for the Designs.

  7. WARRANTY

    1. The Client is relying on its own skill and judgment in relation to the Work irrespective of any knowledge of the Designer or its servants, agents or employees or as to the purpose for which the Work is supplied or its suitability.

    2. Subject to Clauses 7.1 and 7.3 the Designer warrants that all Designs shall upon delivery be of satisfactory quality and be reasonably fit for any purpose for which they are commonly supplied and that all Services shall be carried out with reasonable skill and care.

    3. The warranty given in Clause 7.2 will not apply:

      1. where the defect complained of arises from any drawing, design, specification or IPR supplied by the Client failure to follow the Designer’s instructions (whether oral or in writing) or misuse or alteration or repair of the Designs without the Designer’s approval;

      2. if the Contract price for the Designs has not been paid in full by the due date for payment;

    4. The obligations of the Designer under the Contract are limited such that in the event of a breach by the Designer of the Warranty in Clause 7.2 or any defect in any Designs, the Designer shall only be obliged (and shall have no further liability in contract, negligence or otherwise for any defect in quality of the Designs or fitness for purpose of the Designs) at its option either to credit the price (if already paid) attributable to the faulty Designs or repair, rectify or replace the faulty Designs or Services provided that such Designs are returned or its agent in their delivered state at the Client’s expense if so requested by the Designer.

    5. Where the Designs have been supplied to the Designer by a third party, any warranty granted to the Designer in respect of the Designs shall be passed on to the Client.

    6. The remedies contained in this Clause are without prejudice to the other Terms and Conditions herein, including, but without limitation, Clauses 10 and 11 below.

  8. LIABILITY

    1. No liability of any nature shall be incurred or accepted by the Designer in respect of any representation made by the Designer, or on its behalf, to the Client, or to any party acting on its behalf, prior to the making of this contract where such representations were made or given in relation to:

      1. the correspondence of the Designs with any description;

      2. the quality of the Designs; or

      3. the fitness of the Designs for any purpose whatsoever.

    2. No liability of any nature shall be accepted by the Designer to the Client in respect of any express term of this contract where such term relates in any way to:

      1. the correspondence of the Designs with any description;

      2. the quality of the Designs; or

      3. the fitness of the Designs for any purpose whatsoever.

    3. All implied terms, conditions or warranties as to the correspondence of the Designs to any description or the satisfactory quality of the Designs or the fitness of the Designs for any purpose whatsoever (whether made known to the Designer or not) are hereby excluded from the contract.

  9. LIMITATION OF LIABILITY

    1. Where any court or arbitrator determines that any part of Clause 10 above is, for whatever reason, unenforceable, the Designer shall be liable for all loss or damage suffered by the Client but to an amount not exceeding the contract price.

    2. Nothing contained in these Terms and Conditions shall be construed so as to limit or exclude the liability of the Designer for death or personal injury as a result of the Designer’s negligence or that of its employees or agents.

  10. INTELLECTUAL PROPERTY RIGHTS

    1. All Intellectual Property Rights produced from or arising as a result of the performance of this Agreement shall, so far as not already vested, become the absolute property of the Designer, and the Client shall do all that is reasonably necessary to ensure that such rights vest in the Designer by the execution of appropriate instruments or the making of agreements with third parties.

    2. The Client warrants that the use by the Designer of any IPRs, designs, specifications, drawings or other materials or information of any nature provided to the Designer by the Client pursuant to an Order shall not infringe any third party’s IPRs and the Client shall indemnify the Designer against all actions, claims, costs, demands, expanses and liabilities of whatsoever nature suffered of incurred by the Designer as a result such claim or threatened claim brought against the Designer.

    3. The Designer shall have the right to apply any trademarks and / or service marks to the Designs. The Client acknowledges that no rights are granted to the Client by the use by the Client of such trademarks, trade names and/or services marks. The Client shall not deface, remove or obliterate any trademarks, trade names or logos applied by the Designer on or in relation to the Designs.

    4. The Designer reserves the right to refuse to produce designs by the Client that the Designer considers to be offensive or illegal. The Client shall indemnify the Designer against all action in the future by third parties for such claims.

  11. NON-SOLICITATION

    1. It is agreed that during the term of the Agreement and for a period of three (3) years after the conclusion of the Agreement or termination of the Agreement for any or no reason, the Client/Designer shall not on its own behalf or on behalf of or in conjunction with any person or legal entity, directly or indirectly, whether for profit or otherwise, hire or attempt to hire any consultant, employee, agent or other representative of the Client/Designer (or any of its subsidiaries or affiliates), nor shall the Client/Designer on its own behalf or on behalf of or in conjunction with any person or legal entity, directly or indirectly, for profit or otherwise, solicit, induce or attempt to solicit or induce any such person, to terminate, reduce or materially alter such employee’s, consultant’s, agent’s or other representative’s relationship with the Designer/Client.

    2. In the event the Designer/Client is found to be involved in respect of the above, during the term of the Agreement or thereafter for a period of three (3) years after the conclusion of the Agreement or termination of the Agreement for any or no reason, it shall be considered as breach of Agreement, if during the term of Agreement and/or shall be construed as restraint of trade, business or profession, during or after the term of the Agreement, and the Designer/client shall be forced to take suitable action against the client/Designer. Further, the Designer/Client shall be entitled to recover all damages direct and indirect, which may be caused to the Designer/Client on account of solicitation or attempt of solicitation by the Client/Designer.

  12. FORCE MAJEURE

    1. The Designer shall not be liable for any delay or failure to perform any of its obligations if the delay or failure results from events or circumstances outside its reasonable control, including but not limited to acts of God, strikes, lock outs, accidents, war, fire, breakdown of plant or machinery or shortage or unavailability of raw materials from a natural source of supply, and the Designer shall be entitled to a reasonable extension of its obligations. If the delay persists for such time, as the Designer considers unreasonable, it may, without liability on its part, terminate the contract.

  13. TERMINATION

    1. Without prejudice to any of its other rights the Designer may immediately terminate the Contract and demand payment due or accruing to the Designer whether under the Contract or otherwise, re-sell the Designs and / or withhold or cancel any deliveries if any of the following occurs or is likely to occur:

      1. the Client is in breach of any of its obligations under the Contract which, if capable of remedy, the Client has not remedied within 30 days of receiving written notice from the Designer; or

      2. the Client makes any voluntary arrangement with its creditors, becomes subject to an administration order, goes into liquidation, except for the purposes of amalgamation or reconstruction, a receiver is appointed over any of the property or assets of the Client; or the Client ceases to carry on business including, without limitation, the occurrence or sufferance of anything equivalent under any jurisdiction outside Hong Kong Special Administrative Region of the People’s Republic of China or the calling of any meeting or the passing of any resolution whether formal or informal for the purpose of proposing the taking any of foregoing steps.

  14. RELATIONSHIP OF PARTIES

    1. Nothing contained in these Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.

  15. ASSIGNMENT AND SUB-CONTRACTING

    1. The contract between the Client and Designer for the production of Designs shall not be assigned or transferred, nor the performance of any obligation sub-contracted, in either case by the Client, without the prior written consent of the Designer.

  16. WAIVER

    1. The failure by either party to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of them or of the right at any time subsequently to enforce all Terms and Conditions of this Agreement.

  17. SEVERABILITY

    1. If any term or provision of these Terms and Conditions is held invalid, illegal or unenforceable for any reason by any court of competent jurisdiction such provision shall be severed and the remainder of the provisions hereof shall continue in full force and effect as if these Terms and Conditions had been agreed with the invalid, illegal or unenforceable provision eliminated.

  18. GOVERNING LAW AND JURISDICTION

    1. This Agreement shall be governed by and construed in accordance with the laws of Hong Kong Special Administrative Region of the People’s Republic of China and the parties hereby submit to the exclusive jurisdiction of the Hong Kong courts.