GENERAL CONDITIONS OF SALE
1. APPLICATION OF GENERAL CONDITIONS
1.1. These general conditions of sale (“General Conditions”) shall be an integral part of the contracts for the sale of goods or services by Air Liquide Far Eastern Ltd. ("ALFE") to the customer (“Customer”). If a formal written contract is subsequently entered into by the parties, the terms of the subsequent formal written contract shall prevail over these General Conditions in case of discrepancies.
1.2. No addition to, nor any variation or waiver of these General Conditions nor any terms or conditions provided by the Customer or printed on the Customer's purchase order, shall have any legal effect unless expressly agreed to in writing on behalf of ALFE by a duly authorised representative of ALFE.
1.3. When the Customer places a purchase order for Goods and/or Services which contains conditions which vary from these General Conditions, any subsequent delivery of the ordered Goods and/or Services to the Customer shall be construed as a counter-offer to supply based on these General Conditions.
1.4. All telephone orders should be confirmed by a written document. All written confirmation should specify the date of the order, the type and quantity of Goods and/or Services required.
1.5. Unless otherwise stated, a written quotation by ALFE constitutes an offer to sell the Goods and/or provide the Services described based on these General Conditions.
1.6. In these General Conditions:
“Affiliated Company” means, with respect to any person, any other person that (a) owns and controls the first person, (b) is owned and controlled by the first person, or (c) is under common ownership and control with the first person, where “own” means ownership of fifty percent (50%) or more of the equity interests or rights to distributions on account of equity of the person and “control” means the sole or joint power to direct the management or policies of the person, whether through the ownership of voting securities, by contract, or otherwise.
"Goods" means all goods (including gas and equipment) sold by ALFE.
"Gas" means any gas or gas mixture or chemicals sold by ALFE including liquefied, solidified, compressed or dissolved gases.
"Equipment" means any other products other than Gas sold by ALFE.
"Services" means all services supplied by ALFE to the Customer, including the delivery and/or installation of Goods.
"ALFE Equipment" means all things required for evaporating, storing, transporting and distributing Gas and includes cylinder manifolds, pipelines, cylinders and gas/liquid gas generating plants which belong to ALFE.
1.7. Unless the context requires otherwise, any references to the singular include the plural (and vice versa).
2.1. Prices are as set forth on the quotation and all prices are exclusive of tax of any kind.
2.2. Taxes, if applicable, shall be borne by the Customer.
3.1. Unless otherwise agreed by ALFE in writing, full payment of ALFE invoices must be made within 30 days from the date of ALFE invoices. No discount or allowance will be made unless specifically agreed by ALFE. All fixed payments shall be invoiced in advance, on the first (1st) day of the month.
3.2. In the event of the Customer failing to comply with ALFE's terms of payment, ALFE reserves the right to discontinue forthwith the provision of any further Goods and/or Services to the Customer and payment shall become immediately due for all outstanding goods and services supplied.
3.3. In respect of any outstanding amounts due and payable to ALFE, Customer shall indemnify ALFE for the costs of collection including but not limited to legal fees incurred in connection with such collection.
3.4. ALFE reserves the right to charge interest on any unpaid amount at the prevailing Bank of Taiwan’s prime lending rate plus 2% per annum, calculated daily and compounded monthly from the day after the due date until the day the amount is paid.
4. DELIVERY AND RETURN OF GOODS AND ALFE EQUIPMENT
4.1. When ALFE delivers or collects Goods and/or ALFE Equipment and ALFE or its carrier enters upon Customer’s premises, Customer shall provide full and safe access to ALFE or its carrier and shall indemnify ALFE and its carrier against the cost of all losses, damage to property and injury to persons, occurring directly or indirectly as a result of the failure by the Customer to ensure the said full and safe access.
4.2. Whenever Goods and/or ALFE Equipment are being returned to ALFE, the Customer shall ensure that they are returned in safe condition, both from the point of view of risk to persons handling them and in their vicinity and from the point of view of the risk of damage to the Goods and/or ALFE Equipment themselves.
4.3. If the Customer fails to accept delivery of Goods, ALFE shall be entitled to make arrangements for storage of Goods and to charge the Customer accordingly. Customer shall be responsible for the risk of loss of or damage to the Goods and for payment as if the Goods had been delivered.
4.4. Delivery shall be deemed to take place the moment the Goods pass over the side of the vehicle in which they were transported to the Customer's premises or when the Gas is transferred to Customer at the inlet valve of ALFE Equipment.
4.5. Return of Goods are not allowed. However, at ALFE’s absolute discretion, ALFE may allow the return and refund of cylinders of Gas provided that no Gas has been released from the cylinders.
5. INSTALLATION AND COMMISSIONING ON SITE
5.1. When the Customer requires the installation of ALFE Equipment, the Customer shall at its own expense furnish ALFE sufficient information to enable ALFE to proceed with the installation.
5.2. Customer undertakes to:
a. comply with all legal and statutory regulations and in particular, shall obtain and maintain all necessary permits in relation to the installation and operation of ALFE Equipment and for the utilities that Customer provides;
b. provide at no cost and properly maintain with safe and easy access at all time to ALFE’s employees and delivery trucks, a location for ALFE Equipment as well as all construction work, fences, safety devices, power supply, telephone line, water, etc. in accordance with the instructions given by ALFE;
c. connect its own piping to the outlet valve of ALFE Equipment and take appropriate measures to prevent any back-flow into ALFE Equipment unless otherwise agreed;
5.3. All works to be carried out by Customer as described in Clause 5.2 above shall be carried out to ALFE's reasonable satisfaction, and in the event that Customer has not complied with Clause 5.2 above, ALFE reserves the right to terminate the relevant contract and all costs and expenses incurred by ALFE up to such date shall be paid by Customer to ALFE.
5.4. ALFE undertakes to:
a. provide, transport, install and start up ALFE Equipment;
ensure the compliance of ALFE Equipment with the applicable regulations in force;
b. provide at start up, a safety briefing of ALFE Equipment to Customer at the location of ALFE Equipment.
5.5. An acceptance report for ALFE Equipment, describing ALFE Equipment and containing Customer’s confirmation that the connections made by Customer are suitable and that the utilities are ready to be supplied, shall be signed by both parties at the start up of ALFE Equipment.
5.6. Any person engaged in work on site in connection with the contract (other than an employee or subcontractor of ALFE) shall be deemed to be an employee or agent of Customer. Customer shall be liable for any injury or damage suffered by ALFE, its employees, agents or subcontractors on Customer's site, except to the extent caused by the intentional conduct or negligence of ALFE, its employees, agents or sub-contractors.
6.1. ALFE cylinders remain the sole property of ALFE and are supplied for Customer's sole use only in Taiwan unless ALFE specifically agrees in writing to allow Customer to use it elsewhere. On termination of the contract, all ALFE cylinders must be returned to ALFE.
6.2. ALFE may supply gas in non-ALFE cylinders (either provided by Customer or leased by ALFE) considered suitable by ALFE under special arrangement with Customer. Such supply is subject to cylinder examination, testing and replacement of valve at the Customer's cost when necessary in accordance with ALFE procedures and statutory requirements. ALFE shall be entitled to dispose of the non-ALFE cylinders which Customer fails to self collect or accept delivery of within six months from the date of ALFE's receipt or delivery as the case may be. Clause 4.3 above applies.
6.3. Customer is responsible for ALFE cylinder from receipt (whether at the delivery point or at ALFE's premises) until ALFE collects it. Any loss or damage must be reported promptly and Customer must bear any loss or damage to the cylinders.
6.4. Customer shall not refill or allow the refilling of ALFE cylinders or let them be used otherwise than for storage, transport or use of Gas placed in them by ALFE.
6.5. All cylinders must be returned with valves closed and in a clean and serviceable condition.
6.6. ALFE reserves the right to charge Customer for repair, or cleaning due to Customer's failure to take proper care of ALFE cylinders. Customer will be charged for a new cylinder if a ALFE cylinder is lost or damaged beyond repair.
6.7. Where applicable, if the actual number of cylinders being held by the Customer is found to be more than that shown in the rental invoice, ALFE reserves the right to amend its records and collect back the additional cylinders.
6.8. Unless otherwise agreed, the maximum period during which a cylinder is loaned to a Customer is six months from the date of despatch, thereafter the cylinder must be returned to ALFE and ALFE reserves the right to collect such cylinder without notice.
7. RISK IN GOODS
7.1. Any shortage, loss or damage or discrepancy must be notified promptly to ALFE and in any case, such notification in writing must be received by ALFE no later than 3 working days from delivery. Otherwise, ALFE shall not be liable. Damaged Goods and packing must be kept for inspection by ALFE or/and its carrier.
7.2. In the case of Gas deliveries, ALFE’s delivery order signed by Customer shall be conclusive as to the amount of liquid or bulk gas supplied or as to the number and type of Gas cylinders delivered and collected.
7.3. The risk in Goods shall pass to the Customer upon delivery as set out in Clause 4.4 above.
8. RESERVATION OF OWNERSHIP OF GOODS
8.1. When applicable, Goods being sold shall remain the property of ALFE until the whole of the price has been paid.
8.2. In the case of Goods which after delivery, cannot be distinguished from or become intermingled with other goods of the same nature, ALFE shall have the right to nominate at its discretion which part of such goods are its property.
9.1. Both parties shall keep in confidence, until five (5) years after the termination date of the contract, the contents of the contract, including the schedules and appendices and any technical or other information furnished or disclosed under the contract (“Confidential Information”) and will not without the prior written consent of the Disclosing Party disclose to any third party any Confidential Information, unless such information:
a. was public knowledge or already known to the Receiving Party at the time of disclosure; or
b. subsequently becomes public knowledge other than by breach of any confidentiality obligation; or
c. subsequently comes lawfully into the possession of the Receiving Party from a third party.
9.2. To the extent necessary, the Receiving Party may disclose the Confidential Information to any relevant governmental or other authority or regulatory body, and to any employees or professional advisors of Receiving Party as may be reasonable or desirable, provided that the Receiving Party makes those persons aware of its obligations of confidentiality under this Clause 9 and will use its best endeavours to obtain a binding undertaking as to confidentiality from all such persons.
10.1. ALFE endeavours not to offer for sale Goods which infringe known and valid patents but shall not be liable to Customer for any and all claims arising from the infringement of any patent or registered design or from any proceedings or threatened proceedings in respect of infringement of any patent or registered design by any use or sale of the Goods.
10.2. Where ALFE provides advice to Customer in matters of technique or supplies Goods for carrying a technique into effect, the tendering of such advice or the supply of such Goods does not guarantee that such technique is free from patent restrictions. ALFE shall not be liable for any and all claims arising from infringement or alleged infringement of patent as a result of the Customer following the advice tendered by ALFE or using such Goods.
11. REPRESENTATIONS AND WARRANTY
11.1. Determination of the suitability of the Gas supplied under the contract for any use by Customer is the sole responsibility of Customer and ALFE shall have no responsibility in connection with such determination and use. Customer acknowledges that there are hazards associated with the use of the Gas and that it understands such hazards and that it is the responsibility of Customer to warn and protect its employees exposed to such hazards through their use of the Gas.
11.2. No warranty is given as to the fitness of Goods for any particular purpose and any implied warranty or condition (whether statutory or otherwise) in that connection is excluded except to the extent that such exclusion is prevented by law. The Customer must satisfy itself that the Goods are suitable for the purpose for which it intends to use them.
11.3. No liability shall arise out of the advice or representation given by ALFE, its employees or agents unless ALFE agrees in writing to provide technical advice in return for a specific fee.
11.4. Descriptions, technical specifications, drawings, illustrations or particulars of weight or dimensions given in catalogues or other literature issued by ALFE are given in good faith but shall not form part of the contract unless specifically incorporated.
11.5. Saved as aforesaid, all warranties or conditions implied by common law or statue are expressly excluded hereunder except where such warranty or condition cannot by law be so excluded.
12. LIMITATION OF LIABILITY
12.1. ALFE shall be liable to Customer for only direct physical damage to Customer’s property (which includes the cost of repairing, reinstating or replacing the property) caused by the negligence or breach of contract by ALFE, its employees or agents up to a limit of 20% of the Contract Value per incident.
“Contract Value” is defined as ALFE’s invoiced value before taxes for the particular delivery of Goods or performed Services that causes damage.
Beyond the above mentioned amounts, Customer waives any right of recourse against ALFE, its employees, agents and insurers and shall obtain an equivalent waiver by its insurers of their rights of subrogation.
12.2. Each party covenants to indemnify and to hold the other harmless from and against any and all claims, request, charges or actions of third parties, for personal injury or death of any person whomsoever that is caused by or is attributable to the acts or omissions of the indemnifying party. If such claims, requests, charges or actions are attributable to the acts or omissions of both ALFE and Customer, they shall share liability in the proportion that their acts or omissions contributed to such claims, requests, charges or actions.
12.3. Customer’s sole and exclusive remedy for ALFE’s delivery of non-conforming gas or failure to deliver Gas according to the contract shall be the replacement by ALFE of a like quantity of conforming gas at no cost to Customer or the delivery of the right amount of Gas; and the ability to claim for direct physical damage as set out in Clause 12.1.
12.4. Customer’s sole and exclusive remedy for ALFE’s delivery of Equipment that is defective or failure to deliver Equipment according to the contract shall be as provided in Clause 13 below; and the ability to claim for direct physical damage as set out in Clause 12.1 above.
12.5. Except as provided in Clauses 12.1, 12.2, 12.3 and 12.4 above, neither ALFE, nor its employees or agents shall have any other liability to Customer for any damages, whether direct, indirect, special, incidental, consequential, production losses, loss of use or economic losses, claims by third party or any other liability express or implied. Accordingly, Customer waives any right of recourse against ALFE, its employees, agents and insurers and shall obtain an equivalent waiver by its insurers of their rights of subrogation.
13. SALE OF EQUIPMENT AND SERVICES
13.1. ALFE undertakes to repair or, at its option, replace the equipment it manufactures or parts thereof which fail (fair wear and tear excepted) as a result of a defect in ALFE’s materials or workmanship arising within 12 months of the sale of the Equipment to Customer or the execution of Services by ALFE as appropriate (or within such other period as may be specified by ALFE in the contract having regard to the nature and properties of the Equipment and/or Services concerned) provided that :
a. Customer notifies ALFE promptly in writing with details of any alleged defect or malfunction; and
b. Customer gives ALFE or its agent the opportunity to inspect the Equipment and, if ALFE so requests, the Equipment are returned promptly (carriage paid and details of carriage notified in writing to ALFE in advance); and
c. the Equipment have been properly stored, used and maintained and have not been repaired, tampered with, modified or altered by anyone other than ALFE or its agents.
13.2. In the case of Equipment or parts not manufactured by ALFE, Customer shall be entitled (subject to compliance with (a), (b) and (c) of Clause 13.1 above) only to the benefit of any guarantee ALFE may have from the supplier or manufacturer.
13.3. If the Equipment is found to be defective, ALFE undertakes to refund the Customer’s reasonable expenses incurred in re-turning such Equipment to ALFE.
13.4. ALFE may at its option, elect to refund or forego the contract price and take back Equipment supplied in full satisfaction of any liability or obligation under Clauses 13.1 and 13.2 above.
14. FORCE MAJEURE
14.1. Neither party shall be liable for any default or delay in the performance of any or all of its obligations (other than payment obligations) when such default or delay is due to any event beyond its control (“Force Majeure Event”). Subject to satisfying the above definition, a Force Majeure Event may include but is not limited to, any of the following events: act of God, casualty or accident, lack or failure of transportation facilities, breakdown or accident of machinery, pipeline or equipment, strike, lock-out, labour dispute, riot, war, terrorism, fire, flood, explosion, atmospheric disaster, acts of third parties except for sub-contractors, unless said sub-contractors are affected by a Force Majeure Event as defined herein, impossibility of obtaining electrical power, raw materials, utilities, manpower, equipment or means of transport, failure to obtain or maintain permits or authorisations. For avoidance of doubt, lack of funds or an economic downturn shall not constitute a Force Majeure Event.
14.2. In such a case, the party affected by a Force Majeure Event shall at once notify the other party in writing within seven (7) working days and take such measures as may reasonably be required to cope with the case as quickly as possible and return to normal operation. Both parties shall examine in common, if necessary the measures to be taken to limit the effect of the Force Majeure Event.
14.3. A Force Majeure Event shall relieve either party from their obligations under the contract for the duration and to the extent of the effect of the Force Majeure Event, except for the payment of any accrued liabilities and the monthly facility fee, if any.
14.4. Upon Customer’s request, if ALFE can obtain an alternative source of supply for some additional cost and ALFE elects to observe its obligations under the contract from such alternative source, Customer shall pay ALFE such additional cost.
15. RESPONSIBILITY FOR SAFETY AND LEGAL OBLIGATIONS
15.1. Customer shall be responsible for obtaining necessary consents and for complying with all legal obligations in connection with any Goods supplied, ALFE Equipment provided to the Customer or work done on Customer's site. Customer shall indemnify ALFE against all claims arising from non-compliance with any said obligations and against all costs and expenses arising from any such claims.
15.2. Customer is responsible for any risks to health or safety arising from Goods and ALFE Equipment in its possession. Customer must ensure that persons handling the Goods and ALFE Equipment receive adequate training and these persons understand all precautions.
16. TERMINATION OF SUPPLY AND REPOSSESSION OF ALFE PROPERTY
16.1. ALFE may stop the supply of Goods and/or Services, or at its option, terminate the contract immediately upon giving written notice to Customer without prejudice to any then accrued rights of either party:
a. If Customer commits any act of bankruptcy or, being a company, has a receiver appointed or goes into liquidation (except for the purpose of reorganization or amalgamation); or
b. If Customer commits any material breach of any provision of the contract (including non-payment of sums due) or these General Conditions and fails to rectify such breach within 30 days of notification.
16.2. If ALFE ceases to supply Goods to Customer for the reasons in Clause 16.1, ALFE may on demand to Customer retake possession of ALFE Equipment (including, where relevant, any Gas in ALFE’s cylinders or other equipment).
16.3. To enable ALFE to repossess ALFE Equipment, Customer shall allow ALFE full and free access to ALFE Equipment and shall be responsible for and indemnify ALFE against all actions, suits, proceedings, claims, demands and costs occurring directly or indirectly as a result of ALFE not having such full and free access. ALFE shall be entitled to sever the ALFE Equipment (if necessary) from any other property, notwithstanding that it may have become a fixture thereto. Upon repossession of the ALFE equipment, the Customer shall reimburse ALFE for the outstanding monthly facility charges due from the date of termination till the end of the contracted period, if applicable, and for the cost of removal.
Neither party shall have the right to assign this contract without the other party’s prior written consent, which consent shall not be unreasonably withheld, save that ALFE may assign freely part or all of its rights and obligations under this contract to any of its Affiliated Company.
18.1. If by arrangement with Customer, the Goods and/or Services are supplied to any person who is not a party to the contract, Customer shall procure that such person agrees to be bound by these General Conditions as though a party to the contract, and Customer shall indemnify ALFE against any consequences of Customer failing to do so, including any claim made by such person.
18.2. Customer shall indemnify ALFE against any liability of ALFE to third parties which would not arisen but for the breach of contract by Customer.
18.3. In making these General Conditions, ALFE does so both for itself and for and on behalf of every employee, servant or agent of ALFE and the existence of a contract shall be conclusive evidence of the agreement of Customer that in the event of any loss or damage of any nature suffered by Customer by reason of the negligence or default of any employee, servant or agent of ALFE, any exemption of liability of ALFE under these General Conditions shall extend to every such employee, servant or agent of ALFE.
18.4. Any failure of ALFE to insist upon strict performance by the Customer of any terms or these General Conditions contained herein shall not be taken to be a waiver thereof or of any rights of ALFE in relation thereto AND IN ANY EVENT shall not be taken to be a waiver of the same terms and conditions on any subsequent occasion.
18.5. If ALFE’s cost of supply is increased, ALFE may require Customer to enter into discussions with a view to agreeing revisions to the contract that will remove the disadvantage suffered by ALFE due to such increased costs.
18.6. Notices to ALFE shall be faxed or transmitted by registered mail to ALFE’s address stated on the contract or the quotation. No notice to ALFE shall be taken to have been given until it is actually received by ALFE.
18.7. Any dispute arising out of or relating to these General Conditions and the contract, including the validity and interpretation of these General Conditions and the contract and any non-contractual disputes and claims which cannot be settled amicably by the parties shall be exclusively referred to and finally resolved by litigation and Taipei District Court shall be the court of first instance.
18.8. The headings in these General Conditions are for convenience of reference only and shall not affect the construction or interpretation thereof.
18.9. These General Conditions and any contract subject to them shall be governed by and construed in accordance with the Laws of Taiwan.
===== Chinese Translation Below=========
5.5. 雙方當事人應於ALFE 設備啟動時簽署一份ALFE設備驗收報告，其內容應描述說明ALFE設備，並包含客戶之確認書，確認書應載明由客戶施作之連接工程均為妥適，且相關公用事業項目可立即供應。
16.3. 為使ALFE得以取回ALFE設備，客戶應讓ALFE能夠充分且自由接觸ALFE設備，對於因ALFE無法充分且自由接觸ALFE設備，而直接或間接發生之一切法律行動、訴訟、程序、請求權主張、要求及成本，客戶應承擔一切責任並補償ALFE。如有必要，ALFE有權將ALFE設備自其他財產分離，即使該設備已成為該等財產之固定附著物亦然。ALFE取回ALFE設備後，客戶應向ALFE償還自終止日至契約屆滿日止之未結清設施月費， 以及設備移除費用。