TERMS AND GENERAL CONDITIONS
1. In these Conditions, where the context permits:
2. These Conditions shall apply to all service contracts for Service between TOPWIN and the Applicant to the exclusion of all other terms and conditions including any terms or conditions which the Applicant may purport to apply and any variation of these Conditions (including any special terms and conditions agreed between TOPWIN and the Applicant) shall be inapplicable unless the same is agreed in writing by TOPWIN.
3. The Document is confidential to the Applicant. TOPWIN shall not be under any obligation to discuss the Document or any of its contents with any party other than the Applicant unless written authorization is granted by the Applicant. The Applicant hereby irrevocably authorizes TOPWIN to send the Document to any third party as notified by the Applicant to TOPWIN by notice in writing or to such other party as TOPWIN may think fit having regard to the circumstances, trade custom, usage or practice.
4. The Document shall be treated by the Applicant, its employees, agents, sub-contractors, subsidiaries and/or affiliates as a private and confidential document and shall not be used for any purpose in connection with advertising, save and except with the written permission from TOPWIN.
5. In the event of improper use of the Document, TOPWIN reserves the right to withdraw it, and to take such measures as it may think fit to prevent such improper usage and TOPWIN shall be entitled to obtain an injunction or other equitable relief in addition to any other rights and remedies which TOPWIN may have at common law and/or under any statute.
6. The Applicant shall provide necessarily instructions and information, technical and commercial, such as standard, criteria, drawing, inspection plan, etc., to enable TOPWIN to carry out the Service efficiently and professionally. It shall be the responsibility of the Applicant to ascertain and notify TOPWIN of the standards which the Sample must comply in any country or territory in which the same is intended to be sold. In default of specific instructions from the Applicant, TOPWIN shall be of liberty, and without incurring any commercial risk or liability, to use testing methods and standards or inspection plan, specifications and/or criteria which it considers appropriate and shall not necessarily give notification in advance while the Applicant may consult TOPWIN for clarification. Where the Sample is known or suspected to be hazardous or dangerous, the Applicant shall disclose such information to TOPWIN at the time of submission of its application for Service or immediately upon notice of such information, whichever is earlier.
7. For TOPWIN's service Validity, the Applicant shall provide TOPWIN with accurate, valid telephone/fax numbers, e-mail and location address details to ensure TOPWIN personnel receive fax, e-mail or correspondence etc from Applicant in a correct and vice versa manner. The Applicant shall inform TOPWIN of any charges in such contact details. Otherwise, TOPWIN is not responsible for any delayed delivery thereof.
8. Application received no early than 48 hours by TOPWIN will be treated as a late application, if late issue or changing within 24 hours of the inspection, then the over charge will be happen or may delay the inspection for manpower limited. For the avoidance of doubts, Saturday and Sunday or Public Holiday is not treated as working day. Cancellation or rescheduling requested with 24 hours (one business day) notice or less of the scheduled date, the full inspection fee is charged in addition to any non-refundable and already-incurred travel expenses. If an access denied occurs during the day of the inspection, there will be a full inspection fee charge in addition to any non-refundable and already- incurred travel expenses.
9. The client application paper for services will be invalid without the seal of the lawful entity or the signature of its agents.
10. If in the opinion of TOPWIN the size of the Sample is too small to enable the Test to be carried out effectively, such sample may still be accepted for Testing but the Test report will be properly endorsed to reflect such fact.
11. Sample which has been used for Testing or sample from Inspection will be destroyed at the expiration of a period of 30 days from the date of the Test report or Inspection report/certificate unless the Applicant has made special arrangements in advance with TOPWIN regarding the disposal thereof. The Applicant will be responsible for the collection of any Sample, tested or untested, agreed to be returned to the Applicant at its own costs and expenses. The Applicant expressly acknowledges that it assumes the entire responsibility in relation to the Sample and TOPWIN shall not be liable for any loss, damage or destruction to the Sample (whether or not the Sample has been used for Testing or sampled from Inspection). The Applicant should at its own costs and expenses maintain sufficient policy of insurance to protect itself against any loss, damage or destruction to the Sample.
12. Should any law-enforcement department seal, detain or take away the sample or any lawful measure taken relevant to samples, TOPWIN will no longer be liable for keeping samples, and the Applicant shall not be entitled to claim for any compensation thereof.
13. The Test report relates exclusively to the Sample being tested and will not apply to the bulk, unless sampling has been carried out by TOPWIN, and is stated to have been so carried out in the Test report. The Inspection report/certificate reflects only the findings at time and place of the Inspection only. The Report does not relieve the seller/manufacturer of their contractual liabilities or prejudice from the Buyer's right for compensation for any apparent and/or hidden defects not detected during our random Inspection or occurring thereafter.
14. TOPWIN will use its best endeavours to ensure that the service is carried out in accordance with the applicable standards of testing, inspection and certification. For the avoidance of doubts, the Applicant expressly acknowledges that TOPWIN shall not be liable to the Applicant or any third party for any indirect, special and/or consequential loss or damage, including but not limited to loss of profits under any circumstances whether or not such loss or damage is caused by the error, negligence, mis-description, mis-judgement or default whatsoever on the part of TOPWIN, its associate, subsidiary, agent, sub-contractor or employee and the liability of TOPWIN shall be limited to the amount stated in paragraphs 12 and 13 hereto.
15. Our Services, including Reports and Certificates, are subject to the general conditions of service of TOPWIN which can be sent upon written request. The over charge may happen for the below cases: Missing, Re-inspection, OT payment for non-working hour or working day.
16. In the event that TOPWIN is not able to complete the Service at the fee originally agreed with the Applicant due to problem associated with the characteristics of the Sample or unforeseeable events including but not limited to the shortage or rise in the costs of labour, material or otherwise, then TOPWIN shall be entitled to charge additional fee to the Applicant.
17. The Applicant shall pay the fee punctually on the date specified in the relevant debit note or invoice or within such period as may be agreed by TOPWIN in writing. If any sum payable by the Applicant has not been paid when due, the Applicant shall pay to TOPWIN interest on such sum on a daily basis from rate of 0.3%.
18. All payments made by the Applicant to TOPWIN shall be made in full without demand, deduction, set-off or counterclaim whatsoever.
19. TOPWIN may delegate the performance of its service to its agents or subcontractors, either in whole or in part.
20. All warranties, terms, conditions and representation of any kind, express or implied which may arise out of the information contained in Document are hereby expressly excluded by TOPWIN. In the event of any inaccurate information contained in the Document which is caused by the negligence or willful default on the part of TOPWIN, TOPWIN's liability shall be limited to the amount of fee paid by the Applicant to TOPWIN for carrying out the Service as referred to in the Document.
21. In the event of loss or damage caused to the Applicant as a result of the negligence or willful default of TOPWIN, the liability of TOPWIN shall be limited to five times of the amount of fee paid by the Applicant to TOPWIN for Service which gives rise to the claim for loss or damage.
22. The Applicant's right to damages shall be extinguished if an action is not brought within one year from the date of issuance of the Document or, from the date on which the Document ought to be issued in the case of any alleged non-performance on the part of TOPWIN.
23. In the event that the Document is required to be used in any Court or Arbitration proceedings, TOPWIN will render all assistance and explanation as may be reasonably required in the circumstances provided that all costs and expenses of TOPWIN arising out of or incidental to the said proceedings shall be borne and paid by the Applicant.
24. Save and except with the written approval from TOPWIN, TOPWIN shall not be called or liable to be called to give evidence in any Court or Arbitration proceedings by subpoena or otherwise. TOPWIN reserves its right to take part in any action for or against the Applicant.
25. The Applicant shall also reimburse or pay to TOPWIN all expenses and charges (including legal costs on a solicitor and the Applicant basis) incurred by TOPWIN in connection with the demand for payment of any sum owed to TOPWIN by the Applicant and enforcement of any other provisions contained in these Conditions in Court or otherwise.
The Applicant agrees with TOPWIN to indemnify and keep indemnified TOPWIN from and against all demands, claims, liabilities (whether criminal or civil), losses, costs and expenses whatsoever (including legal costs and expenses) which TOPWIN may suffer or incur arising out of or in connection with the performance of its services to the Applicant.
26. If the Applicant fails to pay any sum due under these Conditions, ceases or threatens to cease business, makes or offers to make any arrangements or composition with creditors or commits an act of bankruptcy, or if a receiving order is made against it, or if any resolution or petition is passed or made for its winding up (other than for the purpose of amalgamation or reconstruction), or if an administrator, administrative receiver, receiver or manager is appointed of any business, assets or undertakings, or if it takes or suffers the seizure of any assets for non-payment of any debt or if it takes or suffers any similar or analogous action in consequence of debt, then without prejudice to any other rights and remedies which TOPWIN may have and without being liable for any loss or damage occasioned thereby, TOPWIN may forthwith suspend or, at its option, terminate all future services to the Applicant.
27. For the Document sent to the Applicant by ordinary mail, TOPWIN will not be responsible for its loss or damage. The Document will be sent to the Applicant by courier upon request and on the Applicant's account.
28. The Document may not be reproduced in full or in part except with the written approval from TOPWIN.
29. TOPWIN takes no responsibility in case the Applicant, in violation of the relevant regulations ofChinaor abroad, purposely imports/exports or undertakes business covering restricted or banned goods.
30. If any provisions contained in these Conditions shall be prohibited by law or adjudged by a court or other competent authority to be unlawful, void, or unenforceable, such provisions shall to the extent required be severed from these Conditions and rendered ineffective as far as possible without modifying the remaining provisions of these Conditions and shall not in any way affect any other circumstances of or the validity or enforcement of these Conditions. These Conditions shall be governed by and construed in accordance with the laws ofHong Kongexclusive of any rules with respect to conflicts of laws, and each party agrees to submit to the exclusive jurisdiction of the courts of the Hong Kong S.A.R.
31. TOPWIN reserves its right to amend these terms and General Conditions and these terms and General Conditions as an open terms for all applicants.