APPLICABILITY
1. These General Terms and Conditions of Sale and Delivery (T&C) apply exclusively to, and form an integral part of, any and all orders, contracts, arrangements, enquiries and quotations regarding the sale, supply or delivery of goods and/or services (together, Deliverables) by Splendid Group Limited (SGL), Splendid Solutions Limited (SSL), Splendid Holdings Group Americas Limited (SHGAL), Splendid Holdings Group UK Limited (SHGUK) or any of their respective affiliated companies anywhere in the world (together, Splendid, we or us) to any customer, buyer, distributor, business partner or any of its affiliated companies anywhere in the world (together, Buyer). Buyer and Splendid are each a Party, and collectively the Parties.
2. Terms explicitly agreed by the Parties in a purchase order, contract or other binding agreement (together, Order) shall take precedence over conflicting terms in these T&C, but only for that particular Order. We reject all standard terms and conditions of Buyer, which shall be null and void (including those printed on, attached to, or included or referred in, any Order, Order confirmation or other document), except if accepted by Splendid by explicit written statement duly signed by any of its directors.
3. In case Splendid also provides any shipping, transportation, logistics and/or warehousing services, Splendid’s General Terms and Conditions of Service shall apply to those services as well.
ORDERS
4. All Splendid’s offers and quotations are indicative and non-binding. Only Orders issued or explicitly accepted by Splendid in writing (including by email and other electronic means) are valid and shall be binding on Splendid. Oral agreements require confirmation in writing. Splendid is not bound by any obvious mistakes, misspellings and miscalculations in Orders or any other documents.
5. Unless explicitly otherwise provided in the Order, all information about weight, dimension, capacity, prices, ingredients and any other information included in catalogues, brochures, newsletters, advertisements, price lists, websites and promotional material provided by us are indicative, non-binding and may not be relied upon.
6. Any additional or conflicting terms or conditions set forth in any acknowledgment or communication by Buyer in respect of an Order shall have no effect, unless explicitly accepted by us in writing.
PRICES AND PAYMENT
7. Unless otherwise agreed in writing, (a) the price stated in an Order shall be based on the Incoterms 2020: Ex Works (EXW) (place of Splendid’s business), and (b) Splendid’s prices neither include transportation, insurance and other charges, nor taxes and duties (without limitation VAT, sales tax and import duties), and Buyer shall solely bear those costs.
8. We reserve the right to make reasonable changes to an agreed Order price where, after conclusion of that Order, cost increases arise (particularly for raw materials or labor, or due to foreign currency effects). We will provide Buyer with proof thereof on request. If Buyer rejects such price increase, we may cancel the Order without any liability on our part.
9. Unless otherwise agreed in writing, Splendid’s invoices shall be payable within thirty (30) days of the invoice date strictly net cash, plus the statutory VAT or other sales tax, into Splendid’s bank account and in the currency as stated on the invoice, without any discount, set-offs, deductions or withholdings. Payments made to representatives or employees of Splendid shall not in any way discharge Buyer from its payment obligations to Splendid. Any claim by Buyer shall neither affect Buyer’s obligation to pay Splendid’s invoices in full when due, nor entitle Buyer to suspend or set-off any payment whatsoever to Splendid.
10. In case of late payment by Buyer, we are entitled, without any notification being required, to charge 0.03% default interest per day over the outstanding amount until we receive payment in full. In case of any overdue payment, or if we become aware of any circumstances that, in our reasonable opinion, reduce Buyer’s creditworthiness, we may immediately suspend delivery of all pending Orders and demand advance payment or security therefor, and full prepayment for any future Orders.
DELIVERY
11. Unless otherwise agreed in writing, (a) delivery of Deliverables shall take place in accordance with the Incoterms 2020: Ex Works (EXW) (place of Splendid’s business), (b) the risk of Deliverables transfers to Buyer when the Deliverables leave Splendid’s place of business, (c) delivery periods set out in any Order, or otherwise specified by Splendid, are estimates only and shall under no circumstances be deemed firm deadlines, (d) partial or early deliveries of Deliverables are permitted, and (e) each delivery is considered a separate transaction and shall not affect the others.
12. If Buyer fails to take delivery at the agreed-upon time, the following shall apply: (i) Buyer shall pay for the Deliverables nevertheless; (ii) the Deliverables shall be deemed delivered at the agreed time for delivery;(iii) storage of the Deliverables shall be at Buyer’s sole risk and expense; (iv) Buyer shall bear any additional costs incurred by Splendid due to Buyer’s failure to take delivery (including without limitation costs related to storage, redelivery and administration); and (v) if Buyer’s failure to take delivery exceeds thirty (30) days, Splendid may cancel the Order, claim damages from Buyer, and dispose of the Deliverables as it deems fit, each without any liability or refund obligation on the side of Splendid.
13. Unless otherwise instructed, shipment (including without limitation method, route and handler) shall be made at Splendid’s discretion. Compliance with foreign import and customs regulations shall at all times be the sole responsibility of Buyer. Insurance will only be arranged by us, for Buyer’s account, if explicitly agreed upon in writing.
RETENTION OF TITLE
14. Splendid reserves and retains title to all Deliverables. The ownership title of each Deliverable remains with Splendid until Splendid has received payment in full for all Deliverables under any and all Orders and any other claims we are entitled to make against Buyer arising out of its business relationship with Splendid. Until then, Buyer shall store the Deliverables for Splendid at Buyer’s expense, separate from other goods and insured to our benefit against loss and damage. Buyer shall give us prompt written notice of any attachment or other interventions by third parties. If Deliverables have been processed or comingled with other goods, Buyer hereby assigns to Splendid co-ownership in what has been created and shall keep these replaced goods separate from other goods.
INSPECTION
15. Buyer shall inspect each Deliverable immediately upon delivery and report any quality or quantity issues in writing to Splendid within twentyfour (24) hours, provided that defects that cannot be discovered upon careful inspection within this period must be reported to us within twenty four (24) hours after discovery, and any failure to do so shall result in the Deliverables being deemed accepted by Buyer without any defect or claim, and Buyer having waived all its rights in that respect.
LIMITED WARRANTY
16. Splendid grants no warranties whatsoever, except if Splendid agrees thereto in an express written agreement. Except as expressly provided herein, all warranties, conditions or other terms implied by statute or law are excluded to the fullest extent permitted by law.
17. Splendid undertakes to deliver the Deliverables free from material defects and defects of title. With respect to each Deliverable intended for human consumption Splendid shall ensure that each such Deliverable is: (a) edible/drinkable and fit for human consumption until the end of the shelf life as indicated on the Deliverable or as otherwise indicated by Splendid (subject to clause 18 below); (b) appropriately labelled with the Deliverable description and appropriate production or expiry date; and (c) in compliance with the World Food Safety Guidelines for Airline Catering by the IFSA (International Flight Service Association).
18. The warranty in clause 17 above shall not apply and no liability for Splendid exists in respect of a Deliverable, if such Deliverable: (a) only contains a minor defect that does not materially impact use or safety, (b) contains a deviation (in quantity, quality or otherwise) within the tolerances specified by us, (c) has not been used or stored strictly in compliance with Splendid’s advice or instructions for use or storage, (d) has been subject to any transformation, modification, processing, comingling or repair by Buyer or third party, or (e) is defective due to (i) any specification supplied by Buyer, (ii) damaged or opened packaging, (iii) fair wear and tear, (iv) Buyer’s or any third party’s negligence, mishandling, overuse or improper storage, or (v) materials or equipment not manufactured by us (in which case Buyer shall only be entitled to the benefit of any such warranty as given by the manufacturer to us).
19. In case a Deliverable contains a material defect for which Splendid is responsible and Splendid is timely notified thereof, Splendid shall, as Buyer’s sole remedy and at Splendid’s sole discretion, replace or repair that Deliverable free of charge. Only if such repair or replacement fails twice, or is not performed within a reasonable time, Buyer may require a reduction of the price or cancel the relevant portion of the Order.
LIMITATION OF LIABILITY
20. Splendid does not exclude or limits its liability for (a) claims based on Splendid’s fraudulent or wilful misconduct or gross negligence, nor (b) any matter for which it would be unlawful to exclude liability.
21. Splendid’s total aggregate liability in contract, tort (including negligence and breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of any Order shall be limited to the price of that Order actually paid by Buyer to Splendid. Without prejudice to the foregoing, the maximum amount of Splendid’s liability shall at all times be the then existing insurance coverage of Splendid. Splendid shall under no circumstances be liable for any indirect or consequential loss, any damages that were not foreseeable by us, nor for any loss (whether direct or indirect) of profit, revenue, production, contract, business, reputation or goodwill.
22. To the extent that Splendid’s liability is precluded or limited, this is also for the benefit of our Related Parties. Buyer shall, and it shall cause its Related Parties to, make any claims regarding an Order only against the relevant Splendid Contracting Entity (subject to these T&C) and refrain from making any claims against any of that entity’s Related Parties.
23. Without prejudice to clause 15 above, any claim by Buyer against Splendid or any of its Related Parties under or in connection with any Order must be filed within twelve (12) months from the date of the event giving rise to any such claim and Splendid and its Related Parties shall not be liable for any claim for damages brought or filed by Buyer after said twelve (12) month period.
FORCE MAJEURE
24. Splendid shall not be liable to Buyer, nor be deemed in breach of any Order, by reason of any delay in performing or any failure to perform any of its obligations under any Order, if the delay or failure was due to any cause beyond Splendid’s reasonable control or if the cause was unforeseeable (including without limitation operations interruptions, shipping disruptions, work stoppages, lockouts, late or inadequate provision of transport space, import or export bans, mobilization, war, pandemics, government measures, lack of or insufficient delivery of raw materials and similar circumstances for which we are not responsible).
INTELLECTUAL PROPERTY
25. Any and all intellectual property rights in the Deliverables, in Splendid’s Confidential Information and in Splendid’s or its subcontractor’s trademarks and tradenames shall at all times remain the sole property of Splendid or its relevant subcontractor, and Buyer shall acquire no intellectual property rights therein whatsoever.
COMPLIANCE
26. Buyer shall at all times comply with all applicable laws, regulations, standards. Buyer guarantees to Splendid that it holds all permits, licenses and approvals required for the import, transit and handling of the Deliverables.
27. Buyer shall refrain from any action involving fraud or breach of trust, bankruptcy, antitrust, profiteering, bribery or other corruption offenses of persons or third parties employed by Buyer. Buyer will also contractually obligate its business partners to comply with these obligations.
CONFIDENTIALITY
28. Buyer shall not disclose Confidential Information, except to employees, affiliates, agents, or professional advisors who need to know it for the purpose of an Order and who have a legal obligation to keep it confidential, provided that Buyer shall be liable for any breaches of confidentiality by any of these persons. Buyer will use the Confidential Information only to exercise rights and fulfil obligations under the Orders, or disclose it when legally compelled by a court or other government authority.
29. Confidential Information means information that we disclose to Buyer or any of its Related Parties under or in relation to any Order or potential Order, and that is marked confidential or would normally be considered confidential information under the circumstances, including without limitation information about products, volumes, ingredients, schedules, processes and prices, financial information and any information made available to Buyer or any of its Related Parties during communications, exchange of documents or visits to Splendid premises.
DATA PROCESSING
30. We are authorized to process Buyer’s data and that of its Related Parties received in connection with our business relationship, subject to relevant data protection legislation, regardless of whether such data originated from Buyer itself or from third parties. We are further authorized to transmit Buyer’s invoice related data to third parties for the purpose of factorization. These third parties are also authorized to process and transfer the data in compliance with relevant data protection legislation.
INDEMNITY AND BREACH
31. Buyer shall indemnify and hold harmless Splendid and its Related Parties from any and all losses, damages, expenses (including reasonable legal fees), costs, fees, charges, penalties, claims, judgements, actions and proceedings incurred by Splendid or any of its Related Parties arising from or related to any of the following: (i) any breach by Buyer of any covenant, obligation, representation or warranty in any Order, these T&C or any other agreement between the Parties, (ii) any fraud, negligence, misconduct or breach of applicable laws by Buyer or any of its Related Parties, or (iii) any claim or allegation by any third party in relation to any Deliverable (including end-user and product liability claims).
32. In case Buyer breaches any of its obligations under any Order or these T&C, Splendid is entitled to (a) suspend or terminate the relevant Order and any other Orders(without any prior or formal notice being required), and (b) retain Buyer’s (pre)payments to cover possible loss on the resale of Deliverables.
MISCELLANEOUS
33. Buyer shall cause each of its affiliated companies, and its and their respective shareholders, directors, officers, employees, (sub)contractors, agents and any other person under its control (together, Related Parties) to comply with the terms of each Order, these T&C and any other agreement between the Parties as if such Related Party itself would be a party thereto together with, or instead of, Buyer.
34. Modifications, amendments and cancellation of any Order or these T&C must be in writing (including any waiver of the written form requirement). All notices must be in English, in writing, and addressed to the other Party’s primary contact. Notice can be by email and will be treated as given on receipt. Should a provision of an Order or these T&C be or become invalid or unenforceable, the validity of the remaining provisions will not be affected, and an alternate regulation that comes as close as possible to the objective aimed at by the invalid or unenforceable provision shall take the place of the invalid provision. This applies mutatis mutandis in the event of a contractual gap.
35. No Order, nor these T&C create a relationship of agency, partnership, joint venture or employment between the Parties. Neither Party will be deemed having waived any rights by not, or by the delay of, exercising any rights under an Order or these T&C. Buyer shall not assign or transfer its rights or obligations under any Order or these T&C, and any attempt to do so is void. Splendid may assign or transfer any of its rights or obligations under any Order or these T&C to an affiliate. Splendid may subcontract its obligations under any Order, provided that Splendid shall remain responsible for the performance of its obligations under that Order.
36. Buyer acknowledges and agrees that if Splendid breaches any of the warranties, representations, undertakings or other obligations contained in these T&C or any Order, Buyer’s only remedies shall be those remedies explicitly set forth in these T&C, and Buyer explicitly waives all other rights and remedies (including those in tort or arising under statute).
37. Each and any Order, these T&C and any other agreement or relationship between the Parties, and any dispute or claim arising out of or in connection therewith, or its subject matter or formation (including noncontractual disputes or claims) (Dispute), shall be governed and construed in accordance with the laws of the jurisdiction of incorporation of the Splendid legal entity acting as supplier under the relevant Order (Splendid Contracting Entity), or in absence thereof, the laws of the jurisdiction of incorporation of the Splendid Contracting Entity providing, quoting or discussing the actual or potential supply of Deliverables, or in absence of all of the foregoing, Hong Kong law.
38. The Parties irrevocable agree to submit any Dispute to the exclusive jurisdiction of the competent courts at the location of the Splendid Contracting Entity (which shall be the competent courts in (i) Hong Kong if SGL or SSL is the Splendid Contracting Entity, (ii) British Columbia if SHGAL is the Splendid Contracting Entity, and (iii) England if SHGUK is the Splendid Contracting Entity), or in absence thereof, to the competent courts in Hong Kong, except that in addition to the foregoing Splendid shall (at its discretion) at all times also be entitled to submit any Dispute to the competent courts at the location of Buyer’s incorporation.
39. The UN Convention on Contracts for the International Sale of Goods (CISG/Vienna Convention) is excluded. The place of performance of each Order shall be the place of business of the Splendid Contracting Entity.