GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY
I. Scope and Application
1. These General Terms and Conditions of Sale and Delivery (hereinafter referred to as “Terms and Conditions”) shall apply to any transaction, or sale and delivery of goods purchased from San-Yang Intertrade Corporation (San-Yang Furniture, San-Yang Home and Furniture Republic) hereinafter referred to as “San-Yang”, regardless of whether it is a single transaction or series of transactions based on a separate definitive or related agreement between San-Yang and the customer. Any deviating conditions of the customer shall be excluded and shall only apply if expressly accepted by San-Yang and agreed to in writing. These Terms and Conditions shall also apply to any future business transactions without need for express reference in each individual case, and shall take precedence over customer’s different general terms and conditions.
2. Individual agreements between San-Yang and the customer made in a particular case shall take precedence over the Terms and Conditions provided that, such arrangements, as well as any amendments, supplements to, or cancellation, must be in writing and signed by the parties in order to be effective and binding.
3. Unless otherwise agreed to in writing, the price list valid at any one time given shall apply.
4. All prices are agreed to in writing and are quoted net exclusive of value-added taxes, unless otherwise specified in the Proforma Invoice and/or other relevant transaction documents. To prevent any confusion or doubt, other than for income and similar taxes, any and all taxes, duties, fees, and other charges which any relevant government entity or other applicable regulatory authority may impose arising from or in connection with the sale and/or delivery of the goods purchased from San-Yang shall be for the exclusive account of the customer.
5. San-Yang reserves the absolute right to implement price adjustments.
III. Payments, Default of Payment
6. Unless otherwise agreed to in writing, invoices shall be paid within the period stated as follows, unless otherwise stated in the Proforma Invoice and/or other relevant transaction documents:
(i) For off the floor stocks: full payment upon signing of the Proforma Invoice;
(ii) For advance orders: full payment upon signing of the Proforma Invoice;
(iii) For reservation & price lock: fifty percent (50%) as downpayment, upon signing of the Proforma Invoice. The balance of fifty percent (50%) balance must be settled within fifteen (15) days. Failure to settle the balance within fifteen (15) days would mean forfeiture/cancellation of reservation but the downpayment may still be used as an advanced payment for other purchases.
Customer agrees to the “No Full Payment, No Delivery Policy” of San-Yang.
IV. Quality of Goods, Information And Use, Guarantees
7. As regards the quality of the goods, only the agreed upon specifications shall apply. The customer shall be solely responsible for verifying that the goods are suitable for the desired purposes of their purchase/acquisition.
8. Information provided by San-Yang in writing, verbally or in any other form with regard to suitability, including application, processing or another use, as well as technical support offered are rendered to the best of San-Yang’s knowledge; however, all these shall be deemed non-binding information only. The information shall not release the customer from verifying on its own account the suitability of goods delivered by San-Yang for the intended purposes. Application, processing and any other use of the goods are beyond San-Yang’s control and shall therefore be the customer’s responsibility. Guarantees, particularly guarantees of quality shall be binding on San-Yang only to the extent that: (i) they are included in an offer or order confirmation, (ii) they are referred to expressly as “guarantee” or “guarantee of quality”, and (iii) San-Yang’s duties from such guarantee are expressly stated.
V. Warranty and Liability
9. San-Yang guarantees the characteristics stipulated in the agreed specifications. All further guarantees extending beyond the contractual specifications are excluded. San-Yang does not warrant or guarantee the purpose of use of the goods intended by the customer.
10. The customer’s warranty rights shall be contingent on the customer having performed an inspection of the goods upon delivery and any defect found are immediately noted and relayed to San-Yang. Consequently, the customer must verify the delivery and the item/s’ physical conditions immediately after it has been received.
11. Any physical damages must be inspected and declared by the customer during receiving of the item/s. Physical damages claim and claims for compensation shall be barred upon signing of the Delivery Order Confirmation. Signing of the Delivery Order Confirmation affirms that the item(s) had been delivered in good condition, free from any and all defects.
12. Any warranty claims and claims for compensation of the customer shall be barred seven (7) calendar days following delivery date. Any agreements between the customer and its purchasers beyond the warranty claims agreed herein shall not affect and bind San-Yang.
13. Any complaints or notification of defects shall be made in writing and specify the defect. Defects on account of incomplete delivery or other patent defects shall be communicated to San-Yang in writing without delay, or, at the latest within the period stated in the immediately preceding paragraph. Acceptance of goods shall not be refused on grounds of minor defects. Belated claims for defects shall be disallowed. The customer shall bear the cost incurred from the inspection of goods. A check-up fee Php 1,000.00 (complaints beyond seven (7) days from delivery-assembly and/or pick-up date) must be settled prior to the check-up schedule. Defective goods shall be made available to San-Yang for inspection on demand.
14. In case of justified and timely notice of defects and where the defects can be remedied, San-Yang shall remedy the defect at its own discretion either by rectification or by delivering a replacement. In case of defects, whether or not San-Yang is responsible, the customer shall have no right to terminate the sale.
15. The customer shall bear any reasonable cost incurred from an unjustified enforcement of warranty rights, and the same shall apply if San-Yang erroneously grants warranty rights without being obliged to do so.
16. For the avoidance of doubt, San-Yang shall only be responsible for any damage or liability caused solely and directly by it, and if attended with gross fault or negligence or willful acts, with intent to cause damage to life, limb or health of the customer.
17. Save as herein provided, San-Yang shall not be responsible for any and all liability arising out of, or in connection with, the sale and delivery of goods between San-Yang and the customer. For this purpose, customer holds San-Yang free and harmless from any and all such liabilities, whether direct or indirect.
18. In all cases, San-Yang shall not be liable to the customer for special, indirect, incidental or consequential damages. The term “consequential damages” shall include, but not be limited to, loss of actual or anticipated profits, loss of use, loss of revenue, loss of production, loss of business, loss of goodwill or reputation, cost of capital, and third party claims without the fault of San-Yang, including those caused by the supplier and agents of San-Yang.
19. Delivered goods must be inspected by the customer immediately upon receipt. Upon acceptance of the goods, the customer shall be deemed to have made the inspection and confirmed, to its satisfaction, that the goods are of the quality, quantity, performance, measurement and any other conditions it specified to San-Yang pursuant to the purchase of the goods, unless San-Yang receives a written notice of defects, including a reasonable justification and evidence within at their destination, within seven (7) days following receipt of the goods. For this purpose, it is agreed that San-Yang shall have the right to inspect the goods if a notice of defects has been issued.
20. Only the terms and date(s) of delivery stated in the order confirmation / conforme shall be binding. Partial deliveries shall be permitted, unless otherwise agreed. If the customer is in default with a liability or if it can be assumed that the customer will not be able to pay, San-Yang shall have the right to suspend deliveries until payment has been made, without prejudice to other rights and remedies of San-Yang under any applicable agreement or law.
21. In case of deliveries made within a shorter term of delivery than original agreed due to the requests or requirements of the customer, or in case of fixed date transactions, San-Yang may demand a surcharge, unless waived in writing by San-Yang. In case deliveries are to be made beyond the intended date of delivery (original or as prior extended, as the case may be) upon the request of customer, San-Yang shall charge the customer with a corresponding storage fee of PhP 1,000.00/sqm per month or PhP50/sqm per day, whichever is lower, provided, that, in no case shall San-Yang accommodate storage for more than fifteen (15) days as and from the supposed intended date of delivery. In the event that storage exceeds the fifteen (15) day period, San-Yang shall have the right to deliver the goods purchased to the customer, who shall in turn have the sole responsibility of looking for an alternative warehouse or any space for the storage of the goods purchased. In any event, customer holds San-Yang free and harmless from any and all actions, liabilities, damages or suits arising from or in connection with the said forcible delivery of the goods to the customer. For extended storage, San-Yang has the right to withhold items purchased until the storage amount due has been fully paid.
22. In case of delayed delivery, San-Yang shall immediately notify the customer. The customer shall grant an appropriate grace period for delivery. San-Yang shall not be liable for claims for compensation on the part of the customer and termination of the sale on account of delayed delivery unless the delay exceeds the specified lead time: seven (7) working days for readily available furniture, provided, that, where damage is caused to the customer by reason of the delay, the amount of claims or compensation that the customer may recover shall be limited to a maximum of fifty percent (50%) of the total contract price.
23. Goods which have been delivered to and received by the customer with factory defects may only be returned within seven (7) days from receipt by the customer or its authorized representative, provided, that, San-Yang shall not refund any payment made by the customer (where payment has been made), but the customer may exchange the goods for another merchandise being sold by San-Yang, provided, further, that, the customer shall pay for the difference where the purchase price of the replacement goods is higher than price the original goods purchased.
24. Goods which are held in storage in accordance with the second sentence of paragraph 21 of these Terms and Conditions may be replaced with a different item within fifteen (15) days from the date of purchase.
VII. Force Majeure
25. Notwithstanding any other provisions to the contrary, San-Yang shall not be liable to the customer where the cause of delay is due to force majeure, or any event that is beyond the reasonable control of San-Yang, such as, but not limited to, acts of God, fire, flood, lightning, war, revolution, acts of terrorism, strikes, lockouts or other industrial action, delayed transport by the supplier wherever situated, or any other events of similar nature which prevents San-Yang from completing the delivery of the goods to the customer on the agreed delivery date.
VIII. Retention of Ownership
26. Notwithstanding delivery and acceptance of the goods by the customer, ownership of the goods shall remain with San-Yang until full payment of the purchase price, provided however , that, the risk of loss shall pass to the customer upon receipt of the goods.
IX. Intellectual Property
27. Any and all intellectual property rights on or in connection with the goods delivered remain vested in San-Yang.
28. Any other provisions to the contrary notwithstanding, amendments and additions to these Terms and Conditions are valid only if they are made in writing. This applies likewise to any waiver of the requirement of the written form.
29. The customer shall not be entitled to assign any or all of its rights and obligations in connection with the sale and delivery of the goods without the prior written consent of San-Yang. On the other hand, San-Yang shall be entitled to assign any or all of its rights and obligations herein provided to an affiliated company.
30. In case one or more of the provisions contained in these Terms and Conditions shall be declared invalid, illegal, or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired thereby.
31. No waiver by San-Yang of any breach of these Terms and Conditions by the customer shall be held or construed to be a waiver of any other subsequent or antecedent breach thereof. Failure of San-Yang to exercise a remedy or to insist in the performance of any of the terms of the sale shall not be construed as abandonment, cancellation or waiver of such covenant. No waiver by San-Yang shall be deemed to have been made unless expressed in writing and signed by its authorized representatives.
32. A waiver by the customer of any breach of the terms of sale and/or these Terms and Conditions shall be deemed a waiver of any other subsequent or antecedent breach thereof. Failure of the customer to exercise a remedy or insist in the performance of any of the terms of the sale and/or these Terms and Conditions shall be construed as an abandonment, cancellation or waiver of such term.
33. These Terms and Conditions shall form an integral part of the terms of the sale of goods by San-Yang to the customer which shall be governed by Philippine law. Any dispute arising from or in connection with the sale and delivery of the goods contemplated herein, including the validity, enforceability or interpretation of these Terms and Conditions, shall only be brought before the appropriate court of Valenzuela City, Metro Manila to the exclusion of all other courts elsewhere situated.