EVA-LAST HONG KONG LIMITED

ELHK’S STANDARD TERMS AND CONDITIONS OF SALE OF EVA-LAST PRODUCTS

1. INTERPRETATION

   The following definitions are used –

   1. ELHK T&CS” – these Standard Terms and Conditions of Sale which govern all purchase orders and confirmed orders for the Eva-Last Products and the sale and delivery of all Eva-Last Products to the Purchaser accessible on the internet on Eva-Last’s website link http://www.eva-last.com/. These ELHK T&Cs are applicable in all countries except for the USA and Canada.
   2. “Seller” – Eva-Last Hong Kong Limited (Company No. 2236795) a company incorporated in Hong Kong, and in accordance with the company laws and ordinances of Hong Kong having its principal place of business at Room 1203, 12/F, Tower 3. China Hong Kong City. 33 Canton Road, Tsimshatsui, Kowloon, Hong Kong;
   3. “Purchaser” – any natural person or corporate entity who/which purchases, or offers to purchase, the Eva-Last Products from the Seller;
   4. “Party/Parties” – means the Seller and the Purchaser;
   5. “Eva-Last Products” – building and construction materials such as Eva-Last’s range of composite decking, facias, railing, cladding, pergolas, plus flooring, aluminium extrusions, metal and aluminium structures, and related ancillaries such as fittings, fasteners, and other accessories in respect thereof.
   6. “PO” or “Purchase Order” – the written purchase order to be submitted by the Purchaser to the Seller setting out the quantity and description of the Eva-Last Products that the Purchaser requires and offers to purchase such Eva-Last Products from the Seller;
   7. “Confirmed Customer Sales Order” / “Eva-Last Sales Order” – the written notice to be issued by the Seller setting out and confirming the Purchaser’s requirements of Eva-Last Products and if necessary, requesting an amended PO from the Purchaser as more fully set out in 4 below.
2. ACCEPTANCE
   1. Sales of all Eva-Last Products by the Seller to the Purchaser are governed by these ELHK T&Cs. All Purchase Orders and Confirmed Customer Sales Orders and sales are governed by and subject to these ELHK T&Cs appearing on ELHK”s website referred to above. As such the Purchaser is deemed to have agreed that acceptance by the Seller in a Confirmed Customer Sales Order is governed by, and subject to, these ELHK T&Cs. In addition the Purchaser’s acceptance of delivery shall evidence the Purchaser’s acceptance to these ELHK T&Cs.
   2. Any Purchaser’s terms and conditions are specifically excluded, unless agreed in writing and signed by or on behalf of the Parties.
   3. In the event of the Seller and the Purchaser having executed a separate agreement in writing relating to the purchase and sale of the Eva-Last Products which includes additional and/or different terms to these ELHK T&Cs (a “Separate Agreement”), then the terms of such Separate Agreement prevail over these ELHK T&Cs, and to the extent there is any conflict or ambiguity between these ELHK T&Cs and such Separate Agreement.
   4. These ELHK T&Cs may not, in any manner whatsoever, be amended, or modified or waived unless a written instrument in respect thereof is signed by or for and on behalf of the Parties.
3. PRICING AND PAYMENT TERMS
   1. All pricing, transactional records and payments shall be in USD.
   2. Prices shall remain valid for a period of 30 days from date of the Seller’s written quotation.
   3. The Purchaser shall pay the invoiced purchase price of Eva-Last Products in full without deduction or set off.
   4. Payment terms are full payment prior to delivery against receipt of the Confirmed Customer Sales Order unless other payment terms have been agreed in writing between the Purchaser and the Seller.
   5. The granting of credit terms is subject to the sole and unfettered discretion of the Seller. Credit terms will only be considered pursuant to the Purchaser having completed the Seller’s Application for Credit and appropriate credit check.
4. ORDERING
   1. All quotations sent by the Seller to the Purchaser constitute invitations to the Purchaser to make an offer to purchase Eva-Last Products from the Seller.
   2. The Purchaser’s PO’s shall set out the Product category, the Eva-Last Product range, the Eva- Last Product colour and the specific quantities and specifications of each Eva-Last Product category range and colour. In the event of any instruction, stipulation and/or other terms on the face of the PO and/or in any other separate document, being in conflict with the terms of these ELHK T&Cs, these ELHK T&Cs shall prevail. The Purchaser shall bear the costs incurred for any non-standard shipping and packaging instructions. In addition any instruction shall not be in conflict with any applicable laws and regulations.
   3. It is recorded that all PO’s placed by the Purchaser on the Seller shall be deemed to be offers to purchase the Eva-Last Products set out therein.
   4. Pursuant to receipt of a PO from the Purchaser where there is no adjustment or modification required, the Seller shall issue a Confirmed Customer Sales Order, confirming the acceptance of the PO from the Purchaser.
   5. If the PO requires adjustment (e.g. clarifications, additions and amendments), the Seller shall liaise with the Purchaser on such adjustments. Upon consensus being reached on the Purchaser’s exact requirements, the Seller will send a Confirmed Customer Sales Order to the Purchaser setting out the exact products ordered by the Purchaser and with a request to the Purchaser to furnish an amended PO matching the Confirmed Customer Sales Order. Thus the onus is upon the Purchaser to ensure that the Purchaser’s final PO matches the Seller’s Confirmed Customer Sales Order.
   6. Whilst the Seller will use its reasonable endeavours to ensure that the manufacturing times and/or the shipping dates and/or delivery dates as may be set out in the Confirmed Customer Sales Order are met, given the vagaries of manufacture, shipping and transportation, such manufacturing times, shipping dates and delivery dates are estimates. As such, time will not be the essence of any Confirmed Customer Sales Order
   7. Should the Purchaser purport to cancel a Confirmed Customer Sales Order or any part thereof, prior to shipment/delivery, then the Seller shall be entitled to –
      1. accept such wrongful cancellation and claim damages;
      2. accept the cancellation subject to a minimum 10% cancellation fee being levied and paid on the value of the cancelled Confirmed Customer Sales Order;
      3. in the event of Eva-Last Products being specifically manufactured to the Purchaser’s, or the Purchaser’s customers’ specifications and dimensions (i.e. a bespoke order) then the full invoice amount shall become due and payable on demand. Should any deposit have been made pursuant to the Confirmed Customer Sales Order then the Seller shall be entitled to retain such deposit and set off the value of such deposit against the value of the cancelled Confirmed Customer Sales Order.
   8. All of the above provisions are without prejudice to any other rights the Seller may have under these ELHK T&Cs or in law.
5. SHIPPING DIRECT FROM THE MANUFACTURER
   1. For the purpose of shipping direct from the manufacturer the following definitions are used-
      1. “Container” means a full 20 foot container or a full 40 foot container;
      2. “Incoterms 2020” the incoterms published by the International Chamber of Commerce version 2020;
      3. “FOB” – Free On Board – as defined in the incoterms 2020;
   2. The Seller shall not ship less than container loads direct from the manufacturer. Therefore all orders in respect of direct shipping from the manufacturer must be for full containers.
   3. When the Confirmed Customer Sales Order is ready for shipment, the Seller shall send a written notice, via email, to the Purchaser informing the Purchaser that the Confirmed Customer Sales Order is ready for shipment and setting out the planned/available shipping dates (hereinafter referred to as the “Shipping Date Notice”).
   4. The Eva-Last Products will be shipped directly from the manufacturer to the Purchaser from the port of origin on an incoterms 2020 – FOB basis unless otherwise as may be agreed by the Purchaser and the Seller in writing.
   5. When Eva-Last Products are shipped from the manufacturer directly to the Purchaser, then the passing of risk of the Eva-Last Products from the Seller to the Purchaser shall take place on an FOB basis in terms of, and as determined by, the rules of the incoterms 2020 in respect of shipments on an FOB basis.
6. DELIVERY EX-WAREHOUSE
   1. Should the Purchaser order less than container loads (a “LCL order”), then such LCL order must meet the Seller’s minimum order quantity (“MOQ”) defined in 6.6 below, and the Purchaser shall be required to collect such LCL order from the Seller’s warehouse or arrange (at the Purchaser’s cost) for the collection of such LCL order from the Seller’s warehouse.
   2. Under special circumstances, the Seller, in its sole discretion, may choose, to arrange delivery of the Eva-Last Products (at the Purchaser’s cost) from the Seller’s warehouse to the Purchaser’s designated place of business (the “Purchaser’s Premises”).
   3. Therefore “delivery” means –
      1. the delivery of less than container loads of Eva-Last Products by the Seller to the Purchaser’s designated place of business (the “Purchaser’s Premises”); or
      2. the collection of less than container loads of Eva-Last Products by the Purchaser from the Seller’s warehouse.
   4. “Delivery Date” means the date upon which the delivery of the Eva-Last Products takes place at the Purchaser’s Premises OR the date upon which collection of the Eva-Last Products takes place at the Seller’s warehouse as the case may be.
   5. “Delivery Note” means the Seller’s delivery note and/or invoice that will accompany the delivery of the Eva-Last Products to the Purchaser’s Premises, OR the Seller’s delivery note or invoice that will be made available upon the collection of the Eva-Last Products from the Seller’s warehouse.
   6. “MOQ” – means the Seller’s Minimum Order Quantity being full pallets of the Seller’s stock keeping units (“SKU”).
   7. On the Delivery Date all risk and benefit in the Eva-Last Products shall pass from the Seller to the Purchaser.
   8. In the event of delivery of the Eva-Last Products to the Purchaser’s Premises, signature of the Delivery Note by the Purchaser/Purchaser’s representative or by any person present at the Purchaser’s Premises ostensibly being an employee of the Purchaser or in the event of collection of the Eva-Last Products from the Seller’s warehouse, signature of the Delivery Note by the Purchaser/Purchaser’s representative or by the Purchaser’s transport contractor, the Purchaser’s agent, shall constitute –
      1. conclusive proof of the quantity of the Eva-Last Products delivered/collected;
      2. conclusive proof that the Eva-Last Products delivered/collected are in good order.
7. SECURITY
   In the event of the Purchaser being granted terms of payment or any other credit facility pursuant to 3 above, then the Seller shall be entitled, in its sole and unfettered discretion, to require satisfactory security before shipment or delivery of the products to the Purchaser. In this regard should the Seller call upon the Purchaser to provide such security, the Purchaser shall be obliged to furnish –
   1. a guarantee/guarantees from a reputable Bank/Financial Institution guaranteeing the obligations of the Purchaser arising in respect of all buy and sell agreements between the Purchaser and the Seller and/or all the Purchaser’s obligations under these ELHK T&Cs.
   2. a guarantee and/or a suretyship from the shareholders of the Purchaser, or any other such owners of the Purchaser, binding themselves as sureties for, and co-principal debtors with, the Purchaser for the Purchaser’ obligations arising in respect of all buy and sell agreements between the Purchaser and the Seller and/or the Purchaser’s obligations under these ELHK T&Cs.
8. PERMITTED VARIATIONS TO THE PRODUCTS

   Without notice to the Purchaser, the Seller may at any time make changes or variations to the Eva-Last Products which, in the Seller’s opinion, do not affect the general characteristics of the properties of the Eva-Last Products.

9. DAMAGED PRODUCTS ON RECEIPT OF DELIVERY
   1. Should the Purchaser contend that any of the Eva-Last Products are damaged on receipt of delivery, the Purchaser shall be obliged to note such alleged damaged products on the Delivery Note. Then within 24 hours from time of Delivery, the Purchaser must send a back-up email clearly specifying the alleged damaged products with a photograph of the alleged damaged products (hereinafter referred to as “a damaged products claim”).
   2. the Seller shall not accept any damaged products claim not noted on the Delivery Note at time of delivery and/or not followed up with an email within the said 24 hours as set out above.
   3. Upon receipt of a damaged products claim the Seller shall have the election to –
      1. arrange for an inspection of the alleged damaged products at the Purchaser’s premises; or
      2. accept the damage products claim as set out in the email and photograph referred to in 9.1 above; or
      3. not accept the damage products claim with written reasons for such non-acceptance.
   4. At all times the Purchaser shall retain the alleged damaged products on hand until receipt of written instructions from the Seller, as to whether the Seller wishes to uplift the damaged products or instruct otherwise.
   5. In the event of the Seller agreeing to accept a damaged products claim, the Seller’s sole liability shall be the replacement of the damaged products or credit the Purchaser with the invoiced cost thereof.
10. DAMAGED PRODUCTS MANIFEST ON UNPACKING
    1. The Seller accepts that damaged products may only be noticed upon unpacking the Eva-Last Products. Should the Purchaser contend that the damaged products were only manifest and identified on unpacking, then the Purchaser’s shall have 30 days from the Delivery Date within which to lodge a claim in respect of such alleged damaged products.
    2. In the event of the Purchaser wishing to lodge a damaged product claim in respect of damage manifest after delivery date, then, the Purchaser shall be obliged to contact the Seller (in writing i.e. by way of email or SMS) within 30 days from the Delivery Date setting out the alleged damaged products delivered with a photograph thereof (e.g. iPhone photograph).
    3. The Seller shall not accept any damaged products claims after the expiry of the 30 days from the Delivery Date.
    4. Upon receipt of such a damaged products claim, the Seller shall have the election to –
    1. arrange for an inspection of the alleged damaged products at the Purchaser’s premises; or
    2. accept the damaged products claim as set out in the Purchaser’s written submission (e.g. email and photographs); or
    3. not accept the damaged products claim with written reasons for such non-acceptance.
    5. At all times the Purchaser shall retain the alleged damaged products on hand until receipt of written instructions from the Seller as to whether the Seller wishes to uplift the damaged products or instruct otherwise.
    6. In the event of the Seller agreeing to accept a damaged products claim, the Seller’s sole liability shall be replacement of the damaged products or credit the Purchaser with the invoiced costs thereof.
    7. A manufacturing integrity claim can only be brought after the date of delivery of the Eva-Last Products by the owner of the premises where the products are installed whereafter any such claim will fall within the ambit of the Product Limited Warranties.

11. DELAYS
    1. Cost of Delay in respect of direct shipments from the manufacturer –
    1. Should the Purchaser delay the shipping dates set out in the Shipping Date Notice or for any reason whatsoever, including but not limited to, non-payment by the Purchaser, then the Purchaser shall be liable for all warehouse, demurrage and other costs occasioned by such delay (“Costs of Delay”).
    2. Should the Purchaser delay the shipping dates beyond a period of 30 days from date of the Shipping Date Notice then, in addition to the Costs of Delay, the Purchaser shall be liable for penalty interest at 1.5% (one point five percent) per month or prorated per month as the case may be calculated and compounded daily on the value of the Confirmed Customer Sales Order from the date of the Shipping Date Notice.
    3. Should the Purchaser delay the Shipping Date by 60 days from the date of the Shipping Date Notice then the Seller shall be entitled to cancel the Confirmed Customer Sales Order and claim the value of the full purchase price of the Eva-Last Products ordered by the Purchaser in addition to the costs of the delay without prejudice to any other rights the Seller may have under these ELHK T&Cs or in law.
    2. Failure to accept delivery at the Purchaser’s premises –
    1. Should the Purchaser delay, or refuse to accept, the delivery of a Confirmed Customer Sales Order at the Purchaser’s premises beyond a period of 30 days then, in addition to the Costs of Delay, the Purchaser shall be liable for penalty interest at 1.5% (one point five percent) per month or prorated per month, as the case may be, calculated and compounded daily on the value of the Confirmed Customer Sales Order from the date of the delay/refusal to accept delivery until the subsequent date of delivery.
    2. Should the Purchaser delay or refuse to accept the delivery of a Confirmed Customer Sales Order at the Purchaser’s premises for a period of 60 days, then the Seller shall be entitled to cancel the Confirmed Customer Sales Order and claim the value of the full purchase price of the Eva-Last Products ordered by the Purchaser in addition to the costs of the delay without prejudice to any other rights the Seller may have under these ELHK T&Cs or in law.
12. RETURNS

    The Purchaser may not return any Eva-Last Products without obtaining the Seller’s prior written consent to do so. In the event of the Seller agreeing to returns –

    1. a handling fee of 25% on the invoiced value of the returns shall be levied and paid by the Purchaser;
    2. all transport costs plus all further incidental costs shall be borne by the Purchaser.

13. INTELLECTUAL PROPERTY
    1. The Seller’s “Intellectual Property” means all intellectual property rights, such as, but not limited to, copyright, patents, trademarks, and designs relating to or in respect of the Eva-Last Products.
    2. All information in respect of, or in relation to the Seller’s Intellectual Property is acknowledged by the Purchaser as being proprietary to the Seller.
    3. The Purchaser shall not, at any time –
    1. put in issue or contest the validity of the Seller’s Intellectual Property; or
    2. do anything which may disparage or harm the Seller’s Intellectual Property.
14. RELATIONSHIP BETWEEN THE SELLER AND THE PURCHASER

    The relationship between the Seller and the Purchaser is one of independent contracting parties. Nothing in these ELHK T&Cs shall be construed as giving rise to or creating a legal relationship of agency, partnership, association, trust or employment between the Parties.

15. FORCE MAJEURE

    The term “Force Majeure” means supervening impossibility of performance attributable to a cause beyond the control of the Seller and shall include, but not be limited to, any events affecting supply and delivery of Eva-Last Products to the Purchaser, strikes, lockouts, other labour unrest, fire, explosions, floods, riots, civil commotion, unrest or disturbance, war, acts of God, embargoes, legislation, interruption in shipping and transportation and the non-availability of raw materials. In the event that the performance of the Seller is prevented by reasons of Force Majeure, the Seller shall be excused from compliance with its obligations for as long as and to the extent that, the performance of such obligations are prevented by Force Majeure.

16. HEALTH AND SAFETY
    1. Should the Purchaser be situated the United Kingdom (“UK”), the Purchaser agrees to comply with The UK Health and Safety at Work etc, Act 1974 (HASAWA) and all related laws and regulations and requirements applicable to the Eva-Last Products and the use and transport thereof, including but not limited to all building codes and the Eva-Last Installation Guidelines on the Eva-Last website.
    2. Should the Purchaser be situated the European Union (“EU”), the Purchaser agrees to comply with EU Occupational Health and Safety Act (OSH) and with the foundational Framework Directive (89/291/EEC) promulgated thereunder, and all related laws and regulations and requirements applicable to the Eva-Last Products and the use and transport thereof, including but not limited to all building codes and the Eva-Last Installation Guidelines on the Eva-Last website.
    3. Should the Purchaser be situated in a country or jurisdiction outside the UK and the EU, then the Purchaser shall comply with all analogous occupation and health and safety legislation and regulation in such country / jurisdiction. In addition the Purchaser shall comply with all building codes in such country / jurisdiction as well as the Eva-Last Installation Guidelines on the Eva-Last Website.

17. PRODUCT LIMITED WARRANTIES
    1. The Eva-Last Products come with certain product limited warranties to and in favour of the owner (the “End-User”) of the premises where the Eva-Last Products, as purchased by the End-User, have been installed (hereinafter referred to as the “Product Limited Warranties”). All information relating to the Product Limited Warranties is accessible on the Eva-Last website, link http://www.eva-last.com/. The Product Limited Warranties are subject to and conditional upon the Eva-Last Products having been installed at the premises of the End-User strictly in accordance with the Product Installation Guidelines accessible on the Eva-Last website, link http://www.eva-last.com/.
    2. The Seller’s sole liability under the Product Limited Warranties is the replacement of the defective products to be re-installed at the End-User’s cost or, at the election of the Seller, a refund of the original cost of the defective products adjusted and pro-rated to the length of time that the Eva-Last Products have been installed.
    3. The Product Limited Warranty is the only warranty given by the Seller in respect of and/or relating to the Eva-Last Products. All other warranties of whatsoever nature whether express, oral, tacit and/or implied are specifically excluded save for statutory warranties as may be applicable in USA legislation and/or Canadian legislation.
    4. It is further brought to the Purchaser’s attention, that the Eva-Last Products supplied fall within certain manufacturing tolerances in particular but not limited to, hue/shade, product characteristics such as those contained in the relevant technical data sheet, thicknesses, wall thicknesses, width and length. In addition packing dimensions may vary from time to time.

18. LIMITATION OF LIABILITY
    1. The Seller’s liability shall not exceed the purchase consideration of the Eva-Last Products giving rise to any liability regardless whether such claim is based in contract, tort, warranty or howsoever arising.
    2. The Seller, its directors, employees, servants and contractors shall not be liable to the Purchaser for any personal injury or death of any person arising from, or relating to, the Purchaser’s execution of the buy and sell agreement between the Seller and the Purchaser, nor shall the Seller be labile for any loss, damage or damage to any property of the Purchaser or any third party howsoever arising. The Purchaser hereby indemnifies and holds the Seller harmless in respect of the aforesaid events.
    3. Under no circumstances shall the Seller be liable for any consequential damages or any indirect damages, including or not limited to, loss of profit, loss of business opportunities, loss of goodwill notwithstanding the Seller may have been advised as to the possibility thereof.
    4. The Purchaser shall be responsible for all costs incurred in procuring payment from the Purchaser including, but not limited to, attorneys costs and reasonable fees expended on collection services.

19. LIMITATION OF ACTIONS

    The Purchaser shall not have any action or claim of whatsoever nature against the Seller (other than in respect of the Product Limited Warranties) after 1 (one) year from the date of the accrual of such claim (i.e. the date upon which the Purchaser becomes aware of the existence of such claim).

20. DEFAULT

    In the event of –

    1. the Purchaser failing to pay any amount to the Seller on the due date in respect thereof (the “Due Date”) and failing to make such payment within 7 calendar days from date of written demand from the Seller demanding that the Purchaser do so;
    2. the Purchaser ceasing to conduct business;
    3. the Purchaser suffering a final judgment and failing to settle such a judgment within 14 calendar days from the judgement coming to the attention of the Seller,
    4. the Purchaser’s bankruptcy and/or the filing of voluntary or involuntary petition for bankruptcy by, or against, the Purchaser, or the appointment of a receiver or trustee for the Purchaser or the execution of an assignment for the benefit of creditors or any similar event,

    then notwithstanding anything to the contrary contained in these ELHK T&Cs and/or any other Separate Agreement between the Seller and the Purchaser, and notwithstanding that the Due Date for payment of any amount owing has not arrived, the full indebtedness of the Purchaser to the Seller shall immediately become due and payable by the Purchaser to the Seller. In addition the Seller shall be entitled to levy default interest on all amounts unpaid at a rate equal to the maximum permissible in law for the period commencing on the Due Date in respect thereof until payment is received from the Purchaser.

21. GOVERNING LAW AND JURISDICTION

    Notwithstanding the domicilia of the Parties, all buy and sell agreements between the Purchaser and the Seller and the application of these ELHK T&Cs, shall be governed by, and interpreted and determined in terms of, the laws of England and Wales without reference to the principal of conflict of laws. All disputes of legal rights, the interpretation and the application of the buy and sell agreements and these ELHK T&Cs shall be submitted to arbitration at The London Court of International Arbitration (“LCIA”) in accordance with the LCIA administration and arbitration rules.

22. SEVERABILITY

    If any of the provisions of these ELHK T&Cs are determined to be wholly or partially unenforceable, then the Purchaser agrees that these ELHK T&Cs or any provision hereof may be reformed so that it is enforceable to the maximum extent permitted by law. If any of the provisions of these ELHK T&Cs are determined to be wholly or partially unenforceable in any jurisdiction, such determination shall not be a bar to or in any way diminish the Seller’s right to enforce any such covenant in any other jurisdiction.

23. GENERAL
    1. These ELHK T&Cs supersede all prior agreements (save for any Separate Agreement) and all arrangements between the Parties, whether express, oral, tacit or implied relating to the subject matter of these ELHK T&Cs.
    2. These ELHK T&Cs constitute the sole record of Eva-Last Hong Kong Limited’s Standard Terms and Conditions of Sale. The Seller shall not be bound by any express, tacit or implied term, representation, warranty, promise or the like not recorded in these ELHK T&Cs.
    3. No addition to, variation, novation, waiver or agreed cancellation of any provision of these ELHK T&Cs shall be binding upon the Seller unless reduced to writing and signed by, or on behalf, of the Seller.
    4. No indulgence, or extension of time, which the Seller may grant to the Purchaser shall constitute a waiver of the Seller’s rights, whether by estoppel or otherwise, or limit any existing or future rights of the Seller in terms hereof, save in the event and to the extent that the Seller has signed a written document expressly waiving or limiting such rights.