Kam Pui Enterprises Limited/ Smart English Company Limited
Standard Sales Terms and Conditions

1. Definition

   This Standard Sales Terms and Conditions (“ST&C”) contains the policy and information about rights and obligations of the parties herein with respect to sale and purchase of any kind of books, magazines, learning materials, tools and equipment, electronic learning products and any other kind of products (“Goods”) by Kam Pui Enterprises Limited (“KP”) or Smart English Company Limited (“SE”) to the Customer.

2. Transaction

   • Unless otherwise agreed upon, this ST&C constitutes the entire agreement between KP/SE as the seller and the Customer as the purchaser, with respect to any sales transactions between the parties. Subject to Clause 17(a) of this ST&C, KP/SE expressly rejects any changes, additions, modifications or deletions to those standard sales terms and conditions stipulated in this ST&C that are not based on mutual agreement in writing by both KP/SE and the Customer.
   • All orders for the sales of goods accepted by KP/SE by way of issuance of invoices to customer are subject to this ST&C which may only be varied by an authorized official of KP/SE, in writing. Except as provided above, this ST&C overrides all standard or special terms and conditions provided or adopted by the customer.
   • KP/SE’s employees or agents are not authorized to make any representation concerning the Goods unless confirmed by KP/SE in writing. The Customer acknowledges that it does not rely on any representation which is not so confirmed.
   • Unless otherwise stated in the subsequent purchase orders made between KP/SE and the Customer or invoices issued by KP/SE to the Customer, the Terms and Conditions stipulated in this ST&C shall automatically incorporate into such purchase orders / invoices as part of the terms and conditions therein.
   • This ST&C shall take effect from the date of issuance of invoices.

3. Other Agreement (s) / Addendum

   From time to time, KP/SE and the Customer may enter into other agreement(s) or Addendum (“Other Agreement(s)”) which may contain provisions that conflict with or otherwise alter the Terms and Conditions contained herein. In such cases, these properly executed Other Agreements shall control, and the terms and conditions contained therein shall supersede and replace or amend this ST&C to the extent called for in the Other Agreement(s). Any terms or conditions of this ST&C which is not specifically altered by such Other Agreement(s) shall remain in full force and effect.

4. Purchase Orders

   • In general, orders must be placed by the issuance of a valid purchase order or other written communications properly authorized by the Customer. KP/SE reserves the right not to accept any purchase order.
   • No order submitted to KP/SE shall be deemed to be accepted by KP/SE unless and until a written confirmation is issued (either by invoice submitted with Goods delivered or otherwise) by KP/SE.
   • No order, which has been accepted by KP/SE, may be cancelled by the Customer except with the agreement in writing of KP/SE and on terms that the Customer shall indemnify KP/SE in full against all loss (including loss of profit), costs (including the cost of all labour and material used), damages, charges and expenses incurred by KP/SE as a result of cancellation.
   • KP/SE reserves its right, by giving notice to the Customer at any time before delivery, to change the price of the Goods to reflect any change in the cost to KP/SE which is due to any factor beyond the control of KP/SE (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Customer, or any delay caused by any instructions of Customer or failure of the Customer to give KP/SE adequate information or instructions.

5. Sales of Goods

   • Notwithstanding any provision in law, the Parties herein expressly agree that any description (whether verbal or written) given or applied to the Goods is given by way of identification only and use of such description shall not constitute a sale by description. For the avoidance of doubt, the Customer hereby affirms that it does not in any way rely on any description in relation to the sale of Goods by KP/SE.
   • All information relating to the Goods given by KP/SE to the Customer is for the Customer’s reference only and the Customer shall not in any way rely on the particular skill and knowledge of KP/SE in purchase of the Goods of the KP/SE. The Customer is advised to seek proper independent professional opinion from the third party before making any purchase order with KP/SE.
   • Unless otherwise stated or agreed upon in the subsequent purchase order or Other Agreement (s) made between KP/SE and the Customer, no warranty of the user of the Goods or its suitability to the use of the Customer or its adaptability in the market is given by KP/SE to the Customer.

6. Collection of Goods

   • Unless otherwise stated or agreed upon, all purchase orders meet the minimum order amount will be delivered to the Customer’s designated location at KP/SE’s cost. The Customer shall bear all expenses for returning remaining Goods to KP/SE.
   • Should KP/SE is unable to deliver the Goods because of actions or circumstances under the control of the Customer, KP/SE is entitled to place the Goods in storage until such times as collection or delivery may be effected and claim against the Customer and the Customer hereby agrees to pay the reasonable expense associated with such storage to KP/SE, which shall be determined by KP/SE, arising from the delay collection/delivery of Goods caused by the Customer.

7. Ownership / Risk of Goods

   • Unless otherwise stated or mutually agreed between KP/SE and the Customer, risk of Goods shall transfer to Customer upon receipt of the Goods either at the time of delivery, or otherwise as soon as the goods are handed over to the Customer/ Customer’s designated agent /carrier at KP/SE’s warehouse or designated location in Hong Kong, or at the time when KP/SE has tendered delivery of the Goods if the Customer wrongfully fails to take delivery of the Goods.
   • Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, the title in the Goods shall not pass to the Customer until KP/SE has received in payment in full of the price of the Goods.
   • Until such time as the title in the Goods passes to the Customer, the Customer shall hold the Goods as KP/SE’s fiduciary agent and bailee, and shall keep the Goods separate from those of Customer and third parties and properly stored, protected and insured and identified as KP/SE’s property, but shall be entitled to resell or use the Goods in the ordinary course of its business.
   • Until such time as the title in the Goods passes to the Customer (and provided that the Goods are still in existence and have not been resold), KP/SE shall be entitled at any time to require the Customer to deliver up the Goods to KP/SE and, if the Customer fails to do so forthwith, to enter upon any premises of the Customer or any third party where the Goods are stored and repossess the Goods.
   • The Customer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of KP/SE, but if the Customer does so all moneys owing by the Customer to KP/SE shall (without prejudice to any other right or remedy of the KP/SE) forthwith become due and payable.
   • Unless otherwise agreed by KP/SE to accept the return of the ordered Goods, the Customer shall have the obligation to fully settle the price of the Goods ordered by the Customer to KP/SE in accordance with the terms and conditions stipulated in the respective purchase order made between KP/SE and the Customer.

8. Return

   • KP/SE will only accept the return of the ordered Goods from the Customer when the Goods’ conditions are in full compliance with KP/SE’s return policy which may be subject to changes at KP/SE’s absolute discretion and without prior notices.
   • Return for damage/wrong delivery – In case of any damaged or wrong delivery of Goods, the Customer shall inform KP/SE’s customer service department within 7 days of the date of receipt of the ordered Goods by the Customer to execute the subsequent return of Goods and all returned Goods shall be settled by stock exchange by KP/SE.

9. Credit Control

   • Orders from the Customer without a valid credit account with KP/SE will only be accepted after full payment in advance.
   • Where the Customer has a valid credit account with KP/SE, all Goods are supplied in accordance to the credit terms granted by KP/SE at its absolute discretion. Failure to settle outstanding payments on due dates will entitle KP/SE to withhold any further supplies without prejudice to any other claim or right KP/SE may have against the Customer and without incurring any liability whatever to the Customer for non-delivery or any delay in delivery. KP/SE shall be entitled to charge interest on top of any overdue amount at a rate of 1.5% per month.
   • KP/SE may, at its own discretion, supply the Goods to the Customer at the published price less discount in accordance to the credit terms which may have been agreed between KP/SE and the Customer in writing before.

10. Sub-Contracting

    The Customer hereby declares and agrees that it will only conduct retailing sale of the Goods and it shall not sell the Goods to another distributor(s) without the consent of KP/SE. This ST&C between the Customer and KP/SE for the sale and purchase of Goods shall not be assigned or transferred, nor performance of any obligation sub-contracted, in either case by the Customer, without the prior written consent KP/SE. Personal performance of the obligations by the Customer to this Terms and Conditions is required.

11. Reselling

    • KP/SE also acts as the sole agent of all Goods published or manufactured byKam Pui Enterprises Limited. The Customer is not permitted to resell the Goods to any other distributors without KP/SE’s prior consent. The Customer is only allowed to do retailing sale of the Goods and shall only resell the Goods via proper reselling channels which are determined at KP/SE’s absolute discretion and no Customer shall be permitted to engage in any second-hand dealings or redistribution of KP/SE’s goods to third parties.
    • All Goods sold to Customer’s account are restricted to be resold within the territory of Hong Kong and Macau only. KP/SE shall reserve the right to terminate the agreement with immediate effect (including an immediate demand for all outstanding amounts owning to us) if KP/SE is aware of any unauthorized export or resell of goods into other territories without KP/SE’s prior consent. This clause cannot apply to online resellers.

12. Inspection

    Upon KP/SE’s request, KP/SE, its agents or any other personnel authorized by KP/SE, the official agents appointed by the Hong Kong Government or regulatory authorities shall be allowed to enter any of the Customer’s place of business or premises at any reasonable time to inspect the processing of the Goods of KP/SE.

13. Intellectual Property Rights

    • KP/SE has the sole ownership of all copyright and any other intellectual property rights whatsoever related to the Goods supplied to the Customer.
    • The Customer shall use its best endeavors to protect KP/SE’s copyright and intellectual property rights of the goods and it shall avoid using or dealing with the goods which may result in infringement, interference with or undermining KP/SE’s rights as mentioned.
    • In case of any infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights in the Goods or other alleged violation of copyright, the Customer is obliged to forthwith notify KP/SE in writing of the cases without delay.

14. Liability

    • Unless otherwise agreed in writing, delivery of Goods shall take place on or as close as possible to the date required by the Customer. Any date(s) quoted for delivery of the Goods are approximately only and KP/SE shall not be liable for any delay in delivery of Goods however caused. Time for delivery shall not be of the essence of the ST&C unless previously agreed by KP/SE in writing.
    • KP/SE shall not under any circumstances whatsoever and however arising be liable for any indirect or consequential damages however caused.
    • Any liability of KP/SE for any loss, costs, expense or damage suffered by the Customer as a result of the Goods being defective in any way or as a result of any other cause whatsoever or in respect of any breach or non-performance of any order shall be limited to the refund of the invoice value to which the claim relates, or limited to the purchase price paid by the Customer to KP/SE for the goods provided that if KP/SE shall replace such defective Goods with Goods which conform with relevant order. In both cases, KP/SE shall be under no further liability whatsoever to the Customer.
    • In the event that KP/SE is prevented from carrying out its obligations under this ST&C as a result of any cause beyond its reasonable control including but not limited to acts of God, act or omissions of civil or military authority, war, fire, flood, nature, disaster, labour disputes, plant breakdown, shortage of supplies, or compliance with orders lawfully given by any public authority, KP/SE shall be relieved of any liability as bound by this ST&C or any purchase order.
    • In the event of KP/SE notifying the Customer that a publication contains content revisions or due to request by distributors; and KP/SE recalls such publications from sales, the Customer shall take prompt action in compliance with the request. In such circumstances, the Customer shall be entitled to return all unsold stock of that publication and this shall be the least of KP/SE’s liability to the Customer. KP/SE shall be under no further liability whatsoever to the Customer after the issuance of credit note for such return.

15. Termination / Cancellation

    • KP/SE has the right to terminate this ST&C if the Customer violates any Terms and Conditions stipulated in this ST&C and KP/SE shall have further rights to claim against the Customer for all losses and damages arising from and out of the Customer’s violation and seek proper reliefs.
    • Any outstanding purchase order, which has not been completely performed, made between KP/SE and the Customer prior to or after the termination, KP/SE may, in its own absolute discretion, have the option either to: -
      • go on and continuously perform any or all of the outstanding purchase order(s) made between KP/SE and the Customer in accordance with the terms and conditions therein and the Terms and Conditions stipulated in this ST&C and if that is the case, the Customer shall then also have to duly comply with all obligations therein; or
      • cancel any or all of such outstanding purchase order(s) made between KP/SE and the Customer. If KP/SE chooses to do so, KP/SE shall repay to the Customer any sums paid by the Customer under the relevant outstanding purchase order(s) but in any event, KP/SE shall not be liable for any loss or damage whatever arising from the termination or cancellation.

16. Protection of Confidential Information

    KP/SE prohibits the giving, receiving or exchange of gifts or gratuities as a condition of, or in exchange for, business considerations. KP/SE will report any knowledge of bribery or corrupt activities to customer’s management representatives and/or applicable government or regulatory authorities as the situation may warrant.

17. Anti-Bribery / Anti-Corruption

    All Information or details pertinent to any purchase order are secret between KP/SE and Customer and should be treated with strict confidence. The Customer shall not disclose to third parties any details or information of the purchase orders, including prices and credit terms or any other confidential information which has been obtained in connection with this terms and Conditions unless such disclosure is required by law or regulatory authority.

18. Others

    • Whenever deemed appropriate and necessary, KP/SE is entitled to unilaterally review and change any terms and conditions in relation to the supply of the Goods in future purchase order(s), variation of the credit terms to be offered to the Customer for future purchase order(s), demand repayment of all outstanding amounts owed by the Customer to KP/SE, if KP/SE thinks fit, by giving a written notice to the Customer.
    • Nothing contained in this Terms and Conditions shall be construed as establishing or implying any partnership or joint venture between the parties and nothing in these Terms and Conditions shall be deemed to construe either of the parties as the agent of the other.
    • Unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing the plural include the singular and vice versa and words importing a gender shall include every gender.
    • The failure by KP/SE to enforce at any time or for any period any one or more of the Terms and Conditions herein shall not be a waiver of KP/SE of its right at any time subsequently to enforce all Terms and Conditions of this ST&C. No waiver by KP/SE of any breach of this ST&C by the Customer shall be considered as a waiver of any subsequent breach of the same or any other provision.
    • If any provision of this Terms and Conditions is held by any court or other competence authority to be void or unenforceable in whole or in part, this Terms and Conditions shall continue to be valid as to the other provisions thereof and the remainder of the affected provisions.
    • This Terms and Conditions is construed and shall be governed by in all respects in accordance with the laws of Hong Kong Special Administrative Region and the parties agree to submit to the non-exclusive jurisdiction of the court of Hong Kong to deal with any dispute which has occurred or may occur in connection with the sale of the Goods by KP/SE to the Customer.