General Terms and Conditions of Sales and Delivery
1. General – Scope
Subject to deviating provisions of individual contracts these Terms and Conditions for Sales and Delivery (hereinafter referred to as „the Terms and Conditions“) shall apply to all contracts concerning deliveries and other performances (hereinafter referred to as „the Delivery“) that we, The Monkey’s Consulting Ltd., as the performing party conclude with our customers (hereinafter referred to as „the Customer“).
General terms of sales or purchase of a Customer, as well as deviating and/or supplemental terms and conditions provided by a Customer are hereby rejected; even if a Customer refers to such terms in writing, such terms and conditions will not be binding upon us unless we expressly agreed to them in writing.
Our Terms and Conditions shall also prevail even if we are aware of terms and conditions of the Customer opposing or deviating from our Terms and Conditions but carry out an unreserved Delivery to the Customer.
By placing an order with us, the Customer warrants that he is:
at least 18 years old,
legally capable of entering into a binding contract,
purchasing in his capacity as a consumer.
2. Offer - Conclusion of Contract
The contract for the sale of the goods by us to the Customer ("the Contract") will only be formed in accordance with the following provisions. These provisions apply to the sale by us to the Customer of all and any goods purchased through the website or by telephone and govern each contract to the exclusion of any other terms and conditions introduced or submitted by the Customer.
In case the purchase order is placed via our Online Store, the following conditions apply to the sales by us to the Customer:
The Monkey’s Online Store comprises various categories for quick navigation. The Customer should select the appropriate category by clicking on the menu, then clicking on any product image within the category to see a larger image, full description and price. The Customer may then proceed to select the quantity of the goods required.
Add to cart: By clicking on this button the Customer begins the purchasing process. The goods will then be placed into the virtual shopping cart allowing the Customer to check and/or amend the contents of the purchase order.
Registration: Before submitting an order, the Customer is required to register his details with us. This only needs to be done once as the Customer’s details are held in our customer database in accordance with the applicable laws. Any subsequent purchases will only require the Customer’s e-mail address and password determined at the first registration. In the second step the Customer is able to enter deviating delivery details for the order. The Customer is always able to proceed shopping or to quit the order.
As third step, the Customer is required to choose the payment method. We offer the option of paying cash on pickup, which needs to be confirmed by the Customer.
Checkout: By confirming “I pay cash on pickup” the checkout screen will summarise the Customer’s details and those items in the shopping cart ready to be purchased, with their single price and entire purchase price. The Customer will be invited to accept our terms and conditions by ticking the check box to proceed with the order. Once complete, the Customer shall click on FINISH ORDER.
After placing an order through the website, the Customer will receive a confirmation e-mail from us acknowledging that we have received the order. This e-mail provides information on the goods, their quantity and the price of the goods; it also contains the required pickup information.
This confirmation e-mail does not constitute our acceptance of the order. The order constitutes an enquiry by the Customer to us to buy the goods. All orders are subject to acceptance by us. We will expressly confirm such ac-ceptance to the Customer by sending a further email that confirms that the goods have been despatched (the "Despatch Confirmation") and the contract will only be formed when we send a Despatch Confirmation to the Customer.
If the order is ready for pickup the Customer will be informed by e-mail. The Customer is able to view the status of the order in the Customer Centre as well.
The contract will relate only to goods whose despatch we have confirmed in the Despatch Confirmation. We will not be obliged to supply any other goods which may have been part of the Customer’s order until the despatch of such goods has been confirmed in a separate Despatch Confirmation.
Any descriptions or illustrations of the goods do not form part of the contract and any typographical error or omission in any sales literature, quotation, price list, e-mail confirmation, invoice or other document or information issued by us are subject to correction without any liability on our part.
The Customer will take responsibility for retaining a copy of any e-mail confirmation received in accordance with condition above.
In case the purchase order is placed via any means other than our Online Store, the following conditions apply to the sales by us to the Customer:
Information contained in brochures and similar advertising material is not of a binding nature and may be subject to changes by us. Only the details/prices stated in our written offers to the respective Customer shall be decisive.
Purchase offers are subject to our confirmation. Contracts are only concluded upon our written confirmation of the order, any supplements or additions that were not made in writing and signed by a duly authorized person on behalf of The Monkey’s Consulting Ltd. will only become binding upon our written confirmation of such supplements or additions.
With respect to orders acknowledged and accepted by us, we may not accept requests by the Customer to (i) cancel an order, or (ii) delay or reschedule delivery of goods. Exceptions to this prohibition must be in writing and approved by our managing director. No other employee or agent of ours is authorized to approve a cancellation or permit a delay or rescheduling of delivery.
We reserve any property rights and copyrights vested in all offers and other documents including those existing in an electronic form. These may neither be repro-duced nor made available to third parties without our prior written consent and must be returned to us after the execution of the contract or in case of a failure of the contractual negotiations without any requests from our side to do so being required.
3. Delivery terms - Passage of Risk
Delivery deadlines are only binding if they have been expressly agreed in writing. Our obligation to perform is subject to ourselves obtaining correct and timely delivery. Delays in delivery because of events of force majeure or other circumstances that cannot be influenced by us will lead to an appropriate extension of the delivery deadlines. Partial deliveries are allowed unless these are apparently not of interest or even unacceptable for the Customer. In case of a partial delivery, we are entitled to the contractual consideration attributable to the performed part of the delivery.
If delivery periods have not been expressly designated by us as binding, we come into default with delivery earliest three (3) weeks after expiration of the delivery period, always provided that we have received a written demand notice from Customer.
We are liable for damages resulting from delayed delivery only in accordance with Section 5 of these Terms and Conditions.
Deliveries exceeding the quantity ordered by the Customer by maximum 10% are allowed and shall be paid for additionally by the Customer.
Title and risk of loss or damage will pass to the Customer on the physical delivery of products to the address identified by the Customer in the Purchase Order.
4. Prices – Payment
Subject to other individual agreements on prices and payment conditions, the prices indicated in the current price list at the time of order shall be applicable. If pricing on the website is incorrect, we will inform the Customer as soon as possible, with an option for the Customer to either reconfirm the order at the correct price or to cancel the order. All prices are inclusive of standard packaging but excluding delivery costs considering the Customer a self-collector. Subject to individual agreements the goods can be delivered with extra charge by our delivery service. Any other kind of packaging requested by the Customer will be charged additionally as well.
The Customer has the following payment options: cash payment or by cheque on pickup. Cheques shall be credited to the Customer by us on account of performance and free of charges. Discount charges and incidental charges customary in banking are to be compensated by the Customer in cash as soon as they occur.
If we find it necessary to refer an open account to an attorney or a collection agent, the Customer shall pay all costs of collection including, without limitation, reasonable attorneys’ fees.
The Customer is only entitled to a possibly existing statutory set-off right with respect to outstanding accounts receivable being undisputed by us or confirmed by a final and binding judgment from a competent court of law. The Customer is only entitled to possibly existing statutory rights of retention or to refuse performance, e.g., because of defective goods, with respect to those accounts receivable resulting from the same contractual relationship with us which are undisputed by us or con-firmed by a final and binding judgment from a competent court of law.
5. Liability for Defects
Warranty claims of the Customer are subject to the condition that the Customer has duly inspected the goods upon delivery and reported any damages without undue delay. Apparent defects must be reported in writing without undue delay after receipt of the respective goods, other defects without undue delay after their discovery.
If the Customer fails to give such notice, the goods shall be deemed accepted and to conform to the terms of the contract of sale.
The Customer shall keep the goods in accordance with the instructions on storage and handling as provided by us and afford us an opportunity to inspect the goods in question within a reasonable time following delivery.
The following storage and handling requirements shall be fulfilled by the Customer in order to maintain the quality of the goods, notwithstanding any other information provided by us to the Customer.
5.2.1 The goods shall be stored at a temperature between 7ºC to 9ºC.
5.2.2 Temporary storage temperatures shall not fall below 3ºC or rise above 15ºC at any time.
5.2.3 In any event, the Customer shall ensure that the goods are not exposed to extreme temperature fluctuations or direct sunlight.
Goods purchased by the customer shall be consumed before the designated expiry date. Return of out of date products is excluded.
Upon our request, any rejected goods must be returned to us for examination on our account. If the goods prove to be non-defective we are entitled to recover all costs incurred in connection with the examination from the Customer.
Any claims of the Customer which might arise because of a defect shall be limited to either a grant of credit at the invoiced price or a redelivery of goods free from defects, which alternative to apply will be decided by us in our sole discretion. If we are not able to remedy the defect as aforementioned, the Customer may, at his own discretion, rescind the purchase contract.
Claims of the Customer because of defects become statute-barred after one year beginning from the passing of the risk to the Customer of the respective goods.
The period of limitation of one year stipulated in 5.5 shall not apply in case of intent or malicious silence with regard to a defect and where otherwise not permitted by applicable compulsory law.
The passing of the risk shall constitute the relevant moment for the existence of a warranty defect causing warranty claims.
We are under no liability in respect of any damage to or defect in the quality or condition of the goods arising from wilful damages, negligence, misuse or alteration of the goods without our approval or failure to show any instructions issued by us (whether oral or in writing) including those instruction on storage and handling.
Nothing in these Terms and Conditions will exclude or limit our liability to the Customer for any damages caused by our intentional act or gross negligence or fraud, death or personal injury caused by our negligence or fraud, or for any other liability which may not be excluded or limited under the applicable law.
Apart from the aforementioned, we bear no liability under a contract for:
Any loss of profit, loss of income, loss of business, loss of revenue or loss of goodwill,
Any loss or corruption of or damage to data,
Any loss or damage which was not a reasonably foreseeable result of either our breach of contract or a breach of our legal duty of care.
Nothing in these Terms and Conditions is intended to limit any rights the Customer might have as a consumer under the applicable law or other statutory rights that may not be excluded.
The liability limitations stipulated in this Section 5 shall also apply to a possible liability of our legal representatives, executive employees and other agents employed in the performance of our obligations towards the Customer.
6. Retention of title
The goods delivered by us (hereinafter also referred to as „goods subject to our title of ownership“) remain our property including all and any proprietary rights, until any and all accounts receivable against the Customer have been fully paid. The Customer shall in the meantime take custody of the goods and retain them as the fiduciary agent and bailee of The Monkey’s Consulting Ltd.
7. Place of Performance - Legal Venue - Applicable Law
The place of performance for the delivery and payment as well as the legal venue for all disputes directly and indirectly arising from the contractual relationship — also for legal proceedings related to cheques — shall be Hong Kong, SAR.
Rights and claims resulting from contracts with us are only allowed to be transferred with our explicit consent.
Where individual provisions are invalid, the invalidity shall be limited to such provision. The parties are obligated to replace the invalid provision by one that comes, in a valid manner, closest to the economic meaning and purpose of the invalid provision; the same applies to eventual gaps in the contract.