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Standard Terms and Conditions of CMI Purchase Order
Standard Terms and Conditions of CMI Purchase Order
This Contract (as defined below) is made between (1) China Mobile International Limited (“CMI”), a company incorporated under the law of Hong Kong with its registered address at Level 30, Tower 1, Kowloon Commerce Centre, No. 51 Kwai Cheong Road, Kwai Chung, N.T. Hong Kong or such other company named in the Purchase Order (“Buyer”) and (2) the contractor named in the Purchase Order (“Seller”). Buyer and Seller shall hereinafter collectively be referred to as "the Parties".
It is agreed as follows:
In this contract the following terms and expressions shall have the following meanings:
1.1 “Affiliate” means any entity which from time to time directly or indirectly controls, is controlled by, or is under common control with a Party.
1.2 “CIF” or “Cost Insurance and Freight” shall have the meaning ascribed to it by the International Commercial Terms (Incoterms) 2010.
1.3 “CIP” or “Carriage and Insurance Paid” shall have the meaning ascribed to it by the International Commercial Terms (Incoterms) 2010.
1.4 “Claim” means any claim or cause of action, including but not limited to, in contract (including a breach of warranty), in tort (including misrepresentation or negligence) or under statute.
1.5 “DDP” or “Delivered Duty Paid” shall have the meaning ascribed to it by the International Commercial Terms (Incoterms) 2010.
1.6 “FOB” or “Free On Board” shall have the meaning ascribed to it by the International Commercial Terms (Incoterms) 2010.
1.7 “Goods” means the goods, services, materials and/or technology covered by the Purchase Order.
1.8 “Hong Kong” means the Hong Kong Special Administrative Region of the People’s Republic of China.
1.9 “Purchase Order” means this purchase order made between the Parties, as may be varied and/or supplemented from time to time.
1.10 “Parties” means the Buyer and the Seller, and a Party means either the Buyer or the Seller.
1.11 “These Terms and Conditions” means these Standard Terms and Conditions of CMI Purchase Order.
2 Structure of the Contract
2.1 This contract comprises:
a) the Purchase Order;
b) any variations and supplemental to the Purchase Order (if any);
c) these Terms and Conditions CMI Purchase Order.
2.2 If there is any inconsistence between the documents in this contract, the document will prevail in the descending order set out in clause 1.1 to the extent of the inconsistency.
3 Acceptance of Purchase Order
3.1 The Seller shall not be required to provide the Buyer with a written acknowledgement of the Purchase Order unless the Purchase Order specifically requires an acknowledgement of receipt by the Seller. However, if there is any disagreement or non-acceptance of the Purchase Order by the Seller, the Seller shall notify the Buyer in writing within one (1) week (or such other period as the Purchase Order may specify) from the date of the receipt of the Purchase Order by the Seller, failing which the Seller shall be deemed to have accepted the terms and conditions of the Contract and shall provide the Goods to the Buyer in accordance with the terms and conditions of the Contract accordingly.
3.2 If acknowledgement of receipt by the Seller is specified in the Purchase Order, the Seller shall sign with company chop and return (by email and/or such other means as specified in the Purchase Order) an acknowledgement to the Buyer within one (1) week (or such other period as the Purchase Order may specify) from the date of the receipt of the Purchase Order by the Seller, signifying the Seller’s acceptance to the terms and conditions of the Contract.
3.3 Notwithstanding the provisions of Clauses 2.1 and 2.2, the Seller shall be deemed to have accepted the terms and conditions of the Contract upon delivery of the Goods to the Buyer or by the Seller’s performance of its obligations under the Contract.
4.1 No variation of or supplemental to the Contract (including the Purchase Order) proposed by the Seller (including any variation of or additional terms and conditions proposed by the Seller) shall be accepted by the Buyer unless and until confirmed in writing by the Buyer.
5 Inspection and rejection
5.1 All Goods delivered pursuant to the Contract shall be subjected to inspection(s) and test(s) by the Buyer.
5.2 If any of the Goods shall be found defective in material or workmanship or not in conformity with the requirements of the Contract, the Buyer reserves the right to reject and return the same to the Seller at the Seller’s sole costs and expenses, including but not limited to transportation charges. The Buyer shall not in any way be responsible for any Goods delivered which are not in accordance with the terms of the Contract.
5.3 Acceptance of any partial delivery of any Goods shall not in any way be deemed to bind the Buyer to accept any further delivery of Goods which are not in accordance with the terms of the Contract.
6 Delivery and default
6.1 The Goods shall be delivered by the Seller at, or dispatched for delivery to, the place or places and in the manner specified in the Purchase Order, or as subsequently agreed in writing by the Parties.
6.2 If the Goods or any portion thereof are not delivered within the time specified in the Purchase Order, or any approved extension, the Buyer shall have the right to cancel the Purchase Order (or any part thereof) and henceforth be entitled to recover from the Seller any additional expenditure over and above the purchase price reasonably incurred by the Buyer in obtaining other goods, services, materials and/or technology in replacement of those Goods which have not been delivered.
6.3 As an alternative to Clause 5.2 and solely at the discretion of the Buyer, the Buyer shall have the right to claim liquidated damages calculated at the rate of half a per cent (0.5%) of the purchase price of all Goods due for delivery for each week or part thereof for delay up to a maximum of ten per cent (10%) of the price thereof. The Buyer shall not have to prove any loss.
7.1 Unless otherwise agreed by the Parties and subject to the satisfactory inspection and acceptance of the Goods by the Buyer, payment of the Goods ordered and delivered shall be made by the Buyer to the Seller within 45 days from the receipt of negotiable shipping documents or receipt of delivery of the Goods by the Buyer in the destination specified in Purchase Order, whichever is the latest.
8.1 The Buyer reserves the right to cancel the Purchase Order, in whole or in part, by notice to the Seller, to return any unused Goods (or any part thereof) for a refund of the purchase price thereof and/or to terminate the Contract (or any part thereof), without prejudice to any rights the Buyer may have under the Contract (including but limited to claiming damages for breach of contract) in any one or more of the following circumstances:
a) at any time prior to acceptance of the Purchase Order by the Seller;
b) at any time after acceptance of the Purchase Order by the Seller with the Seller’s consent;
c) if the Seller fails to comply with any provisions of the Contract, including without limitation the specified date for delivery; and
d) if there has been a claim, demand or suit (e.g. against intellectual property right), or a threat of a claim, demand or suit, against the Buyer or any of its Affiliates in relation to the Goods (or any part thereof) or in relation to any contents which are provided by the Seller and accessible through the use of the Goods.
8.2 If the Buyer shall return any unused Goods (or any part thereof) under Clause 7.1, the Seller shall promptly refund to the Buyer any purchase price already paid by the Buyer for those Goods.
8.3 If the Buyer shall cancel an Purchase Order (in whole or in part) or terminate the Contract (or any part thereof) under Clause 7.1, the Buyer shall as soon as reasonably practicable return all unused Goods in relation to that Purchase Order or relevant part of the Contract to the Seller.
9.1 For a Purchase Order on FOB terms, the Seller shall arrange shipment for the Buyer and invoice the Buyer at actual cost with supporting document (unless otherwise agreed by the Parties), and the Buyer shall cover the related insurance. For an Purchase Order on CIF, CIP or DDP terms, the Seller shall arrange for shipment and insurance for Institute Cargo Clause A (including breakage) plus war and strike with a reputable insurer who has a setting agent in the delivery country specified in Purchase Order. All shipment terms used in the Purchase Order and these Terms and Conditions shall have the meaning ascribed to them by the International Commercial Terms (Incoterms) 2010.
9.2 For each shipment of the Goods (or any part thereof), the Seller shall ensure that all shipping documents are sent to the Buyer as soon as available but in any case not later than the shipment arrival date, to enable the Buyer to take collection of the Goods (or any part thereof). The Seller shall advise the Buyer of the shipment details in writing, by email and/or such other means as the Buyer may advise, immediately after the departure of the aircraft/vessel. The shipping documents, including two (2) copies of negotiable clean bill of lading, commercial invoices, packing lists, insurance policy if on CIF term and test certificate of the Goods, For each shipment of the Goods (or any part thereof), the Seller shall ensure that every package of the Goods (or any part thereof) will bear the shipping mark of the Buyer, followed by the Purchase Order number and case number (if applicable) in Purchase Order to facilitate identification.
10 Environmental protection
10.1 In connection with the Goods and the Purchase Order, the Seller shall reduce the generation of waste throughout the production process as far as is reasonably practicable and dispose of all remaining waste in an environmentally responsible manner. The Seller shall conform in all respect with the provisions of any environmental enactments, regulations or by-laws of any local or duly constituted authority and shall indemnify and keep the Buyer and its Affiliates indemnified in full against all penalties and liabilities of every kind for breach of any environmental standards and regulations.
11 Warranties of the Seller
11.1 By accepting the Purchase Order and thereby the Contract, the Seller represents and warrants to the Buyer:
a) that the title to the Goods conveyed to the Buyer shall be good and its transfer rightful, and is not in breach of any laws or regulations nor contractual obligations of the Seller;
b) that the Goods shall be delivered free from any security interest or other lien or encumbrance;
c) that the Goods shall be of a merchantable quality and, if the Purchase Order specifies any particular purpose for which the Goods are to be used, they shall be fit for that purpose;
d) that the Goods shall not in any way infringe any patent, trademark, copyright or other intellectual property right or any other rights of any third party; and
e) that the Goods shall be subject to at least 12 months’ warranty after they have been put into service, unless otherwise agreed by the Parties and specified in Purchase Order.
12 Liability for damages and compensation
12.1 In the event of any workman or other person employed on any work done in pursuance of the Contract in the employment of the Seller suffering any personal injury and whether there be a claim or compensation or not, the Seller shall, within seven (7) days, give notice (with sufficient details) of such personal injury in writing to the Buyer.
13 Intellectual property rights
13.1 The Seller will defend at its own costs and expenses any Claim brought against the Buyer or its Affiliates to the extent such Claim alleges that the Goods furnished under the Contract infringes any patent, trademark, copyright or other intellectual property right or any other right of any third party, and the Seller shall indemnify and keep the Buyer and its Affiliates indemnified in full and pay all damages which may be assessed against the Buyer and its Affiliates on account of such infringement, together with all reasonable costs and expenses (including legal fees) incurred by the Buyer and/or its Affiliates in connection therewith, provided that the Seller is given:
a) reasonable notice of the Claim in writing; and
b) the relevant information and reasonable assistance which the Seller requires to defend the Claim.
14 Limitation of liability
14.1 Notwithstanding any provisions contained in the Contract but subject to Clause 12.1), the Buyer’s aggregate liability for any costs, claim, damage or loss arising under the Contract shall be limited to an amount equal to the total amount of payments received by the Seller from the Buyer in relation to the Contract. The Buyer shall not be liable to the Seller for any indirect, special, consequential, collateral, incidental or punitive damages including, without limitation, loss of business, revenue, profit, contracts, anticipated savings or goodwill, loss of use or value of any equipment, including software, claims of third parties and all associated and incidental costs and expenses, whether or not the Buyer was or should have been aware of the possibility that such damage could occur.
15 Time is of the essence
15.1 Time is of the essence in all respects for the Seller’s obligations under the Contract.
16.1 All information exchanged between the Parties under the Contract or during negotiations preceding the Contract is confidential to them and may not be disclosed to any person or entity except with the prior consent of the Party who supplied the information (“Disclosing Party”), provided that this obligation of confidentiality shall not apply to information which can be demonstrated:
a) to have been rightfully in the possession of the receiving Party (“Receiving Party”) from a source other than the Disclosing Party prior to the time of disclosure of said information to such Receiving Party (“Time of Receipt”);
b) to have been in the public domain prior to the Time of Receipt;
c) to have become part of the public domain after the Time of Receipt by a publication or by any other means except an unauthorized act or omission or breach of the Contract on the part of the Receiving Party, its employees, or agents;
d) to have been supplied to the Receiving Party after the Time of Receipt without restriction by a third party who is under no obligation to the Disclosing Party to maintain such information in confidence;
e) to have been required to be disclosed pursuant to any requests of insurance companies (or their authorized agents) in relation to insurance claims by the Buyer (or its Affiliates) or the requirement of a court, government authority, stock exchange or other regulatory body.
17.1 The name of the Buyer and the order number as specified in the Purchase Order must be quoted on all correspondence, packing list, packages and invoice.
18.1 The Contract (or any part thereof) may not be assigned by the Seller, nor shall the Seller delegate its duties and obligations, without the prior written consent of the Buyer.
19 Governing law
19.1 The Contract is deemed to be made in Hong Kong and is governed by the laws of Hong Kong.
19.2 The parties hereby agree to be governed by the exclusive jurisdiction of the courts of Hong Kong in respect of any matter or dispute relating to or arising from the contract.