1. Preamble These terms of sale apply to all contracts for the supply of services and sale of goods between ASIABIKE INDUSTRIAL LTD. and the customer (“the parties”). These terms may only be modified by the express written agreement of both parties. The buyer’s submission of an order in response to ASIABIKE INDUSTRIAL LTD.’s estimate or quotation (“Offer”) and subsequent acceptance of the same by ASIABIKE INDUSTRIAL LTD. constitutes acceptance of these General Terms of Sale and the renunciation of the buyer’s own terms, if any.
2. Formation of contract Unless stated otherwise in the Offer’s particular terms, ASIABIKE INDUSTRIAL LTD.’s Offer will be valid for 7 days from the date upon which the Offer is made. A variation of a ASIABIKE INDUSTRIAL LTD. Offer is only binding when confirmed by ASIABIKE INDUSTRIAL LTD. in writing.
All firm orders placed by a customer in response to an Offer must be accepted in writing by ASIABIKE INDUSTRIAL LTD. to form a binding contract. No order can be cancelled in full or in part or varied by the customer once accepted by ASIABIKE INDUSTRIAL LTD. Should this occur, the customer shall be liable to compensate ASIABIKE INDUSTRIAL LTD. for any ensuing losses suffered by ASIABIKE INDUSTRIAL LTD. and any advance payments made by the customer shall be retained by ASIABIKE INDUSTRIAL LTD. Any request for special tests shall be expressly stipulated in the order. The costs of any and all such tests including incidental travel and attendance costs shall be invoiced to and paid by the customer.
3. Delivery, approval and retention of property Terms of delivery are governed by INCOTERMS (latest edition as published by the International Chamber of Commerce). Unless otherwise expressly agreed in writing between ASIABIKE INDUSTRIAL LTD. and the customer, delivery of all goods is “Ex Works” from ASIABIKE INDUSTRIAL LTD.’s premises. ASIABIKE INDUSTRIAL LTD. may deliver goods ordered in one or more consignments, unless otherwise stipulated. If the customer is prevented from taking or accepting delivery on the specified delivery date as mentioned in the delivery note, it shall pay the agreed price as if the delivery had taken place.
Storage costs can be charged to the customer’s account should it fail to take delivery on the specified delivery date.
The customer is deemed to have accepted the goods unless the customer sends a complaint by registered mail with return receipt within eight working days of the date the goods are received by or on behalf of the customers recorded by the carrier’s delivery note.
The goods remain ASIABIKE INDUSTRIAL LTD.’s property until full payment of the price by the customer, notwithstanding delivery of the same and the transfer of risk to the customer. The customer undertakes that it will not, without ASIABIKE INDUSTRIAL LTD.’s express prior written consent, dispossess itself or otherwise pledge or permit any third party to establish a proprietary interest in the goods before the customer has paid for the goods in full.
The customer shall be responsible for insuring in respect of all risks of damage or loss to the goods from the time those goods are delivered to the customer. The customer must also note ASIABIKE INDUSTRIAL LTD.’s interest as owner of the same on such insurance policy pending payment in full of the price for those goods to ASIABIKE INDUSTRIAL LTD. The customer must at all times ensure that those goods are identified as ASIABIKE INDUSTRIAL LTD. goods and that they cannot, in particular, be commingled with other products or made subject to a claim by any third party. In the event the customer defaults in payment for goods by the due date for payment, ASIABIKE INDUSTRIAL LTD. as owner may at any time prior to payment in full recover those goods at the customer’s expenses. The right of recovery shall be without prejudice to any claim for damage or loss suffered by ASIABIKE INDUSTRIAL LTD. in this regard.
4. Delivery schedules The places and delivery schedules applicable to the goods ordered by the customer are those mentioned in ASIABIKE INDUSTRIAL LTD.’s order confirmation. Where applicable, any period of time allowed for delivery of goods ordered by the customer shall be ascertained from the date of reception in ASIABIKE INDUSTRIAL LTD.’s offices of the necessary technical data provided by or on behalf of the customer, which enables ASIABIKE INDUSTRIAL LTD. to fulfil the order.
Unless stipulated otherwise, delivery schedules are estimated and a delay in delivery shall not permit the customer to cancel or suspend the order nor entitle the customer to compensation for delay. Any variation of an order which is requested by the customer will entitle ASIABIKE INDUSTRIAL LTD. to revise the projected delivery dates to accommodate the agreed variation(s) if ASIABIKE INDUSTRIAL LTD. accepts the customer’s request.
Any delay in delivery requested by the customer beyond 30 days from the agreed delivery day will incur additional storage charges that will be informed to the customer as the storage will be in a bonded warehouse for which the rates will be informed at the time the products are moved to the bonded warehouse.
5. Packaging Goods are packed according to ASIABIKE INDUSTRIAL LTD.’s standards. The goods may be disassembled for packing and shipping convenience. The cost of packing is included in the sales price of ASIABIKE INDUSTRIAL LTD. unless otherwise stipulated by ASIABIKE INDUSTRIAL LTD.
6. Price – Invoicing – payment ASIABIKE INDUSTRIAL LTD. prices are quoted net and in United States Dollars (US $). All taxes shall be borne by the customer. All costs of transportation shall be charged to the customer’s account, if applicable. The prices mentioned in the Offers of ASIABIKE INDUSTRIAL LTD. are firm only during the validity of the Offers. Unless otherwise stipulated, payments shall be made in US $ to ASIABIKE INDUSTRIAL LTD.’s registered office onto one of ASIABIKE INDUSTRIAL LTD.’s bank accounts as stipulated in the invoice, net and without discount. Invoices are payable against an irrevocable documentary credit opened in favour of ASIABIKE INDUSTRIAL LTD. at the maximum 10 days after ASIABIKE INDUSTRIAL LTD. order confirmation, payable at sight or as per other payment terms at set out in the offer. Once the amount indicated on the invoice has been credited irrevocably to ASIABIKE INDUSTRIAL LTD.’s bank account, the invoice is considered paid by the customer. Any disagreement regarding an invoice shall be notified to ASIABIKE INDUSTRIAL LTD. in writing within eight working days from the date on which the disputed invoice was sent. ASIABIKE INDUSTRIAL LTD.’s agents and salesmen are not authorized to collect payment for invoices.
Incomplete or disputed delivery does not entitle the buyer to delay payment. If the invoice is not paid by its due date, delay compensation shall automatically and without notice accrue on the outstanding amount at the rate defined at 8% and the buyer shall be liable to pay a lump-sum compensation equal to the greatest of 15% of the invoice or 250 US $. Non-payment of any past-due invoice automatically entitles ASIABIKE INDUSTRIAL LTD. to immediate payment of all and any other outstanding invoices then due to ASIABIKE INDUSTRIAL LTD., the entirety of the amounts being subject to penalties as outlined above.
Furthermore, in the event of late payment, and without prejudice, ASIABIKE INDUSTRIAL LTD. may at its election:
• suspend all ongoing orders and deliveries until the amount due to ASIABIKE INDUSTRIAL LTD. from the customer has been settled in full; or
• as stipulated in Article 7, require financial guarantees or new payment terms for ongoing orders; or
• terminate the contract automatically and without notice in which case, ASIABIKE INDUSTRIAL LTD. shall be entitled to an indemnity for breach of contract which shall not be less than 30% of the total net price agreed; and any advance or down payments, whatever their value, shall be forfeit to ASIABIKE INDUSTRIAL LTD.. If the goods have been delivered but not paid for and their price exceeds the amount of the indemnity and/or the down-payments made, ASIABIKE INDUSTRIAL LTD. may reclaim possession of the unpaid goods delivered in addition to the indemnity.
Any other sums outstanding from the customer to ASIABIKE INDUSTRIAL LTD. shall be immediately due in the event the customer has been granted an extension of time within which to pay any sum due under a contract, if the customer either breaches its ongoing obligations under the contract, terminates the contract, otherwise ceases to trade for whatever reason, or broadly speaking if it fails to fulfil any of its obligations. In the event of sale or transfer to a company under any form whatsoever of the customer’s business assets, all outstanding amounts shall be immediately due, notwithstanding any previous agreement.
Mutual debts of sums of money shall be set off by the parties, automatically and without formality, regardless of whether or not the customer’s liability at law to compensate ASIABIKE INDUSTRIAL LTD. has yet to be established, even in the event the customer is subjected to an insolvency proceeding or undergoes a distraint against its assets.
“Insolvency proceedings” means any one or more of the following : bankruptcy, composition with creditors, collective settlement of debts or any other foreign legal, administrative or voluntary insolvency procedure, involving the sale of asset and the distribution of the proceeds of sale among creditors, shareholders, partners or members, as the case may be, as well as any rehabilitation measure involving a foreign administrative or legal authority, the purpose of which is to protect preserve or re-establish the financial status of the customer which adversely affects the pre-existing rights of third parties, including any measure that entails a suspension of payments, a suspension of enforcement measures or a reduction of receivables.
The customer shall reimburse ASIABIKE INDUSTRIAL LTD. in full all costs incurred by ASIABIKE INDUSTRIAL LTD. in the recovery of due and unpaid invoices.
7. Financial guarantees Should it appear after entry into a contract and before total payment of all sums due thereunder, that the customer’s credit has deteriorated whether involving a creditors’ voluntary arrangement, seizure of all or part of the customer’s assets, protest of bills, and/or more generally any modification, whatever the reason, of the customer’s financial situation, ASIABIKE INDUSTRIAL LTD. shall be entitled to require guarantees from the customer for the fulfilment of its obligations or to modify payment terms, and/or according to Article 6, to suspend delivery until such have been agreed and implemented or to terminate the contract by written notice, without prejudice to ASIABIKE INDUSTRIAL LTD. rights and without compensation to the customer.
8. Descriptions plans and documents Information relating to ASIABIKE INDUSTRIAL LTD.’s goods or services contained in ASIABIKE INDUSTRIAL LTD.’s catalogues, prospectuses, promotion documents, notices, price lists or displayed on its website is given for illustrative purposes only and are not binding on ASIABIKE INDUSTRIAL LTD.
Plans, designs or documents which are supplied by ASIABIKE INDUSTRIAL LTD. remain ASIABIKE INDUSTRIAL LTD.’s exclusive property. They shall not be used by the customer otherwise than for the express purpose of a contract, nor otherwise recopied, reproduced, transmitted or communicated to third parties without ASIABIKE INDUSTRIAL LTD.’s authorization.
9. Intellectual property ASIABIKE INDUSTRIAL LTD. retains all intellectual property rights in all drafts, studies, drawings, plans, designs, texts, projects, records and documents, in whatever medium of reproduction of all kinds, generated by it or its agents and/or employees or otherwise on its behalf, and supplied to the customer in relation to the fulfilment of an order or supply of services under a contract. In case of communication of the above-mentioned documents to the customer, the customer must return them to ASIABIKE INDUSTRIAL LTD. upon first request. No use or reproduction of the same is permitted for any purpose not expressly authorised by ASIABIKE INDUSTRIAL LTD. The technology and know-how, whether or not patented, incorporated in ASIABIKE INDUSTRIAL LTD.’s goods and services, and the intellectual property rights of whatever nature (including any copyright rights, systems including software, database rights and design rights whether or not registered each from the moment of its respective creation) concerning ASIABIKE INDUSTRIAL LTD.’s goods and services, shall remain the exclusive property of ASIABIKE INDUSTRIAL LTD. or the property of the rights holders. The customer and any person claiming through the customer (whether or not the end user) are only granted non-exclusive rights.
10. Confidentiality The customer acknowledges that all technical, commercial and financial data and information belonging to ASIABIKE INDUSTRIAL LTD. (“Confidential Information”) which is not already in the public domain at the time it is communicated to the customer is communicated by ASIABIKE INDUSTRIAL LTD. in strict confidence and remains the property and entitlement of ASIABIKE INDUSTRIAL LTD. Confidential Information must not be disclosed to a third party without ASIABIKE INDUSTRIAL LTD.’s express prior written authority and shall not be used otherwise than for the purpose of fulfilling the customer’s order.
11. Assignment The customer cannot assign either its rights and/or its obligations arising under the contract without ASIABIKE INDUSTRIAL LTD.’s prior express written agreement.
12. Force Majeure ASIABIKE INDUSTRIAL LTD. may, on giving due notice to the customer in writing, suspend performance of its obligations under a contract in the event of occurrences beyond its control and for which it is not responsible including by way of example but not limitation, fire, storm, earthquake, national or local government law, decree or regulation (including requisition or embargo), strikes or other industrial action, acts of war, insurrection, or national emergency, unavailability of transport, general lack of supplies or interruption of power supplies. If the event(s) of force majeure which prevents fulfilment of the customer’s order lasts for three consecutive calendar months, or for a total of three months in a period of six calendar months, either ASIABIKE INDUSTRIAL LTD. or the customer shall be entitled to cancel all or part of the order without any obligation whatsoever to the other party.
13. Applicable law All contracts concluded between ASIABIKE INDUSTRIAL LTD. and the customer is governed by Sri Lankan law.
14. Jurisdiction Any disputes arising out of this contract shall be submitted exclusively to the courts having jurisdiction in the Republic of Sri Lanka.
