FPT

General conditions of consultancy, design, trials, demonstrations, sales, supply, delivery, installation, commissioning, training, after-sales services and payment

FPT Asia Co., Ltd. (“FPT”) located at 47/8 Moo 5, Srinagarindra Road, Bang Mueang Sub-district, Mueang Samut Prakan District, Samut Prakan Province  

Tel: +66 (0) 27537794-6, Fax: +66 (0) 27537791

I. General

Only these conditions of sale, delivery and payment apply to all our deliveries and services to companies, corporate bodies under public law and public assets. All legal relationships, including future ones, between the ordering party (customer) and FPT follow the latest version of these conditions of sale, delivery, and payment unless otherwise expressly agreed in writing by both parties.

II. Quotations

Our quotations are non-binding and require written confirmation as with all agreements between the ordering party and FPT. The documents that are part of the quotation such as illustrations, drawings, weight, and dimension specifications are only approximate unless they are specified as binding. FPT retains the intellectual property rights and copyrights for quotations, drawings, and other documents. They must not be made accessible to third parties.

III. Order confirmation, delivery, and service item

The written order confirmation, if provided, from FPT is decisive regarding the time, type and scope of delivery and service. Minor changes to the delivery and service item regarding its design, shape and configuration, as well as to the values specified in the description, are permitted if the intended use, quality and functions are not impaired by these.

IV. Prices and payment conditions

1. Unless otherwise agreed, the prices are ex-works and do not contain loading, packaging, transport, hoisting, unloading, certifications/permits, testing, any provision of any utilities supply, any building or civil work and any insurance; where these are invoiced separately. The legally applicable amount of VAT is added to the prices. 

2. If the delivery and service deadlines are agreed to be more than four months from the time of contract conclusion and should the exchange rate, material or wage costs increase, FPT is entitled to impose appropriate variance costs for the additional costs incurred in accordance with its original price calculation.

3. Invoices from FPT are due immediately without discount and must be paid in cash without delay upon the readiness for shipping is declared. FPT reserves the right to only accept payment through bank transfer. The details of the bank shall be shared with you at a later stage. Handing over a cheque is not considered payment.

3. Discounts must be agreed upon in writing.

4. The ordering party only has a right to withhold payments or to balance them with counterclaims if their counterclaims are undisputed or have been determined to be legally binding. This shall be agreed between the parties in advance.

5. Interest at a rate of not exceeding the maximum rate permitted under Thai law will be charged in the event of payment default[BDO1].

V. Delivery and service time

1. The dates and deadlines specified by FPT are forecasts. Delivery times and dates are only considered binding if they have been explicitly confirmed by FPT as finite delivery time and date. Adherence to the delivery time and date by FPT requires the strict compliance of all commercial and technical terms specified between both parties. Which includes supplying of all design input, installation and operational details by ordering party and not limiting to the full compliance and fulfilment of all of the obligations specified such as payment of the purchase price. If this is not the case, the delivery time is extended accordingly and FPT is not liable for the delay or losses incurred if any.

2. The delivery and service deadline (delivery deadline) starts with receipt of the order confirmation and is adhered to if the delivery and service item has left the FPT factory or readiness for shipping has been reported by the deadline. If contractual or legal reasons require that acceptance be performed, unless there is justified acceptance rejection, the acceptance date is decisive or, alternatively, the declaration of readiness for acceptance.

3. The delivery deadline extends accordingly in the event of measures regarding industrial disputes, particularly strikes and lockouts, as well as if unforeseeable hindrances that are outside of FPT’s control occur if these hindrances have a demonstrable significant impact on production or delivery of the delivery and service item. This also applies if the circumstances occur with a sub-supplier or third parties. In significant cases, FPT will inform the ordering party of the revised start and end of these hindrances as soon as possible.

4. If shipping or acceptance of the delivery and service item are delayed for reasons for which the ordering party is responsible, they will be invoiced for the costs incurred by the delay starting one month after readiness for shipping or acceptance is declared; however, if the item is stored in the FPT factory, there will be at least 5 % of the invoice amount per month. The ordering party is entitled to prove that damages did not occur due to the delay or that they are significantly lower than the flat rate.

5. Adherence to the delivery deadline requires that the ordering party complies with their contractual obligations.

6. The delivery deadline extends accordingly if FPT itself is not supplied in good time by a sub-supplier.

7. If the ordering party does not accept the goods without justification, FPT is entitled to withdraw from the contact and to claim for damages in accordance with the Thai law.

VI. Transfer of risk, acceptance, transport

1. The risk is transferred from FPT to the ordering party at the latest when the delivery and service item is provided at the operating premises, and even if partial service are provided or FPT has undertaken to provide other services such as shipping costs or delivery and set up.

If acceptance must be performed, this is decisive for the transfer of risk. It must be performed without delay on the acceptance date or, alternatively, after receiving notification of readiness for acceptance from FPT. The ordering party may not reject acceptance if there is any insignificant fault. Upon request from the ordering party, the delivery will be insured by FPT against theft, breakage, transport damage, fire damage and water damage, and any other insurable risks at the ordering party’s expense.

2. If shipping is delayed due to circumstances outside FPT’s control, the risk is transferred to the ordering party from the date on which it is ready for shipping; however, FPT is obliged to take out the insurance that the ordering party requests at the ordering party’s expense.

3. Delivered items must be accepted by the ordering party even if they have insignificant faults regardless of the rights contained in section VIII.

4. Partial deliveries are permitted if acceptable for the ordering party.

5. Any transport aids are FPT’s property.

6. Transport damage must be reported to FPT without delay within 24 hours of delivery.

VII. Retention of title

1. FPT retains title to the delivery and service item until all FPT claims against the ordering party arising from the business relationship have been fulfilled. Conduct by the ordering party, which is contrary to the contract, particularly default, entitles FPT to withdraw from the contract after setting a deadline, to revoke the delivery and service item and to oblige the ordering party to surrender it. When FPT withdraws and seizes the item, FPT will only withdraw from the contract if it declares so in writing.

2. The ordering party will always perform processing or remodelling on retained items for FPT. If the retained item is processed or inseparably mixed with other items that do not belong to FPT, FPT acquires joint ownership of the new item in the ratio of the value of the retained item to the other processed or mixed items at the time of processing or mixing. If FPT goods were connected or mixed inseparably to other moving items to form a homogeneous item and the other item is to be considered the main item, it is considered agreed that the ordering party transfers joint ownership proportionally to FPT as long as the other item belongs to them. The ordering party grants ownership or partial ownership to FPT. Furthermore, the same applies to the item created by processing, remodelling, connecting or mixing as for the retained item.

3. FPT is entitled to insure the delivery and service item against theft, breakage, fire damage, water damage and other damage at the ordering party’s cost unless the ordering party has taken out the insurance and can prove this.

4. Resale of the supplied goods, regardless of whether they are unprocessed, processed, connected, or mixed is only permitted to resellers in the normal course of business with retention of title and only if the receivables from the reselling are transferred to FPT. The ordering party is prohibited from pawning or transferring by way of security, as well as agreeing upon a prohibition of assignment. If third parties’ access FPT’s rights, the ordering party must inform FPTG without delay.

5. The ordering party will surrender all receivables due now or later from the resale or from any other legal ground regarding the goods supplied to the value of the retained item (invoiced amount) to FPT. FPT will hereby accept the surrender.

6. Except for in the event of revocation, the ordering party is entitled to collect the receivables from resale. Upon request, the ordering party must inform FPT of the debtor of the receivables accrued, provide information required to claim their rights against the debtor and submit documents, as well as to declare the surrender to the debtor.

7. FPT is obliged to release the securities to which they are entitled as soon as the value exceeds the receivables to be secured by 20 % if they have not yet been paid.

VIII. Warranty / liability for defects

The FPT PRODUCTS exclusively meet CE standards. Compliance with standards shall be subject to the laws and mandatory regulatory requirements of the country of installation and use which the ordering party shall be liable for. The ordering party and particularly a reseller is obliged to adapt all FPTG products to the current legal and technical specifications of the corresponding country, which may differ, and to ensure a proper version in accordance with the current standards in this country. The ordering party and particularly a reseller is therefore obliged to clarify for themselves whether the machine can be adapted to the current legal and technical specifications of the corresponding country.

With the exception of further claims, subject to Section IX, FPT provides a warranty for material and title defects to the delivery or service, which were complained about properly and in good time, as follows:

1. All deliveries or services that prove to be faulty as the result of circumstances that occurred prior to the transfer of risk must be reworked or replaced by non-faulty items at FPT’s discretion and free of charge. Detection of these faults must be reported to FPT in wiring and without delay. Replaced parts become FPT’s property.

2. In order to undertake all rework and replacement deliveries that FPT deems necessary, the ordering party must provide FPT with the required time and opportunity in agreement with FPT; otherwise, FPT is freed from liability for the consequences resulting from this. The ordering party only has the right to rectify the fault themselves or have it rectified by a third party and to claim the required expenses back from FPT in urgent cases of hazards for operational safety or to avoid disproportionately large damage, of which FPT is to be informed immediately.

3. Of the immediate costs resulting from the rework or replacement deliveries performed by FPT, insofar as the complaint is proven to be justified, FPT will bear the costs of the replacement delivery including shipping costs. Reasonable removal and installation costs will be reimbursed according to the legal regulations. The same applies to the costs for determining the cause of the fault.

4. Furthermore, the ordering party’s claims against FPT in total or regarding individual parts are limited to a right of supplementary performance. The ordering party can only choose to decrease or withdraw from the contract at their discretion if supplementary performance fails.

5. If there is an insignificant fault, the ordering party only has the right to a reduction to the contractual price.

6. No warranty is provided for the following cases in particular: unsuitable or improper use, incorrect (specifically state of the art) installation, lack of provision for power/voltage surge and/or lighting strike protection devices, unauthorised modification, use of non-original parts supplied by FPT, startup and/or use by the ordering party or third parties, normal wear, and tear on the goods, improper or impermissible handling, improper maintenance, unsuitable operating aids, faulty building work and utilities supplies, unsuitable foundations, unless they are FPTG’s responsibility.

7. If the ordering party/customer repairs the item improperly, FPT is not liable for the consequences. The same applies to any changes made to the delivery and service item without prior approval from FPT.

8. If the delivery and service item infringe domestic industrial property rights or copyrights, FPT will, at their own cost, procure the right for the ordering party to continue to use the delivery and service item or modify it for the ordering party in any way feasible in order to ensure that the property rights are no longer violated. If this is not possible due to reasonable economic conditions or within a reasonable time, the ordering party is entitled to withdraw from the contract. FPTG also has the right to withdraw from the contract under the aforementioned preconditions. Furthermore, FPT will release the ordering party from claims from the applicable property right holder that are undisputed or have been determined to be legally binding.

9. The FPT obligations specified in section VIII.8 are, subject to section IX, final in the event of property right or copyright infringements.

They apply only if the ordering party informs FPT immediately of claimed property right or copyright infringements,

- the ordering part supports FPT reasonably in avoiding the claims or enables FPT to take the modification measures in accordance with section VIII.8,

 - all avoidance measures including out-of-court settlements are available to FPT, 

- the fault does not relate to the ordering party’s instructions and

- the legal infringement was not caused by the ordering party having changed the delivery item without authorisation or used it in a non-contractual manner.

10. All warranties are void when selling used items. However, if devices have been completely or partially reconditioned by FPT, the following prerequisite also applies to the warranty: the warranty only relates to parts which FPTG was contractually obliged to replace or recondition.

11. The limitation period for all warranty claims is one year as of the legal start of the limitation period.

IX. Liability

1. The right of the ordering party to claim for damages due to fault-based claims is limited in the event of

a) willful intent or gross negligence on the part of FPT, their legal representatives or their vicarious agents,

  b) negligent infringement of significant contractual obligations (cardinal obligations), 

  c) fraudulent concealment of faults,

  d) taking over a guarantee,

  e) culpable life, bodily or health injuries by FPT, their legal representatives or vicarious agents, or

  f) a fault on a delivery or service item for which there is liability for personal injury or damage to property on privately used items according to the laws of Thailand.

2. In the event of negligent infringement of significant contractual obligations, the claim is limited to the amount of contractually foreseeable damages.

3. Other claims for damages such as consequential damages, loss of profits and indirect damages are excluded to the extent permitted by Thai law.

4. If there are claims for damages against FPT, their vicarious agents or assistants, these lapse within one year as of the legal start of the limitation period.

5. If FPT or their employees provide advice and information before, during or after conclusion, or in a different context, FPT is only liable if special remuneration was agreed upon and received by FPT and the advice, information or recommendation was provided in writing. In this case, FPT is liable for up to 25 % of the remuneration agreed to for the consultation, etc. in the event of fault. This liability limitation does not apply in the event of points 1 a), b), d), and e).

6. FPT will ensure the quality of our solutions and products provided. But for whatsoever cases FPT shall not be liable for any loss or damage, including:

  - Direct or indirect losses

  - Loss of business

  - Loss of profits

  - Any other risks or damages

  - Any delays as a result of non-compliance

7. FPT's liabilities disclaimer and buyer's responsibilities:

  1. FPT disclaims all liabilities for damages or injuries arising from its business supply & activities.

  2. List of Services but not limited to: The disclaimer covers a range of services, including consultancy, design, supply, delivery, installation, commissioning, training, trial/demonstration (in which case potential buyer must be responsible for all consumable, labour and all associated cost), consumables, ingredients, exhibitions, usage, rental, and all related services.

  3. Buyer's Insurance Responsibility: The buyer must purchase necessary insurance coverage to protect themselves, third parties, properties, and FPT's supplied systems equipment, and consumable until full payment or till end of contractual period inclusive.

  4. Comprehensive Hazardous Protections: The buyer must ensure all necessary hazardous protections inside, outside and surrounding the equipment are in place, including fire preventive and exhaust systems, PPE for workers, smoke detection systems, electrical surge and/lighting strike protective devices, all safety regulators, pressure relief valves, flammable/hazardous gas detection/cutoff systems, explosion-proof measures (if required), leak detection systems, flood prevention measures, proper storage conditions and environment, fire escape provisions, consumable (ingredients compliance and safety) and more.

  5. Certifications and Compliance: The buyer is responsible for obtaining mandatory certifications for shipment, import, transport, installation, commissioning, storage, and usage, unless otherwise specified.

This clause reinforces the buyer's responsibility for ensuring safety, risk mitigation, obtaining necessary insurance coverage, and complying with relevant regulations and certifications.

X. Changes and product labelling

1. A change to the delivery and service item requires prior written approval from FPT.

2. Changes to the labelling on the delivery and service item, particularly the serial or other control numbers and any special stamp that is considered the mark of origin of the ordering party or third parties, and that could give the impression that this is a special product are prohibited.

XI. Taking items back / returns.

FPT is not obliged to take back a fault-free delivered item (exchange). Taking it back is at FPT’s discretion. A return is only accepted if FPT has issued written approval.

XII. Special information regarding repairs outside of warranty

FPT will only perform repairs or reconditioning to delivered goods/systems outside of warranty for a fee. The customary local remuneration will be calculated for this.

XIII. Place of performance, place of jurisdiction, applicable law, miscellaneous

1. The place of performance for all business concerning FPT is Hong Kong, or when special mentioned in the contract in the country of installation.

2. The place of jurisdiction for all disputes with merchants, corporate bodies under public law or special funds under law is Thailand. However, FPT is also entitled to sue in the location of the ordering party’s headquarters.

3. This Agreement shall be governed by and construed in accordance with the laws of the Kingdom of Thailand. The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply unless expressly agreed in writing.

4. Supplementary agreements, changes and/or additions must be made in writing. This also applies to waiving the written form requirement itself.

5. If a provision in these terms of business or a provision within the framework of other agreements should be or become ineffective, the effectiveness of all other provisions or agreements shall not be affected. In this case, a provision that reflects the intentions of the parties insofar as possible shall be deemed to have been agreed in place of the ineffective provision. The same applies in the event of a loophole.

Sales Contract

Between:

Seller: FPT Asia Co., Ltd. (“FPT”) located at 47/8 Moo 5, Srinagarindra Road, Bang Mueang Sub-district, Mueang Samut Prakan District, Samut Prakan Province 

Buyer: [Insert Buyer’s Name and address]

Article 1: Scope of Agreement

This contract governs the sale, delivery, installation, commissioning, and warranty of goods and services provided by FPT. It outlines the obligations, rights, and responsibilities of both parties to ensure clarity and protection throughout the transaction.

Article 2: Quotations and Pricing / Pricing Errors and Amendments

1. Non-Binding Quotations: All quotations provided by FPT are non-binding unless explicitly confirmed in writing. Intellectual property rights in quotations, drawings, or technical documents shall remain with FPT. 

2. Price Adjustments: FPT reserves the right to adjust prices if material, labor, or exchange rate costs increase after contract signing, provided delivery timelines exceed four months. The buyer agrees that the buyer shall have no further claim on the price adjustments. Adjustments will be substantiated upon request. 

3. In the event that the quoted price is found to be substantially incorrect due to typographical errors, computational mistakes, or any other unforeseen inaccuracies, and where the Seller (FPT) can provide evidence of such errors, FPT reserves the right to amend the quotation to reflect the actual cost. This amendment can be made without any obligation or liability on the part of FPT, even if the quotation has been accepted by the Buyer.

While all reasonable care is taken to ensure the accuracy of proposals, any revisions necessitated by proven errors shall be communicated promptly to the Buyer for acknowledgment and adjustment.

Article 3: Manufacturing and Delivery

1. Delivery Timelines: Delivery dates are forecasts and binding only if explicitly confirmed by FPT. Compliance with technical and commercial terms by the Buyer is essential to adhere to agreed timelines. 

2. Transfer of Risk: Risk transfers to the Buyer once goods are ready for shipment, even if shipping is delayed due to circumstances outside FPT’s control. 

3. Partial Deliveries: FPT reserves the right to make partial deliveries and issue partial invoices prior to the expiration of the delivery deadline. This will be informed to the buyer in prior.

Article 4: Installation and Commissioning

1. Buyer Obligations: The Buyer shall provide all necessary inputs, including design details and operational requirements, within agreed timelines to facilitate installation and commissioning. 

2. Testing and Acceptance: Acceptance testing will be conducted upon completion of installation. Minor faults shall not entitle the Buyer to reject acceptance.

3. The Buyer hereby acknowledges and agrees that the purchase of the Products from the Seller's inventory located at any of the FPT premises constitutes acceptance of all conditions, components, software, years of manufacture, and other relevant factors, and the Buyer waives any and all claims for compensation or damages in connection therewith, unless otherwise specified and agreed by FPT in writing prior to the date of purchase order receipt

Article 5: Warranty Terms

1. Warranty Period: FPT offers a warranty of [Insert Period] for all goods and services, effective from the date of acceptance. 

2. Exclusions: Warranty is void if the Buyer modifies goods without prior approval or uses them in a non-contractual manner. 

3. Repairs and Replacements: Faulty items reported within the warranty period will be repaired or replaced at FPT’s discretion. Replaced parts become the property of FPT. 

Article 6: Payment Terms

1. Payment Schedule: The Buyer agrees to pay [Insert Payment Terms] upon receipt of invoices. Late payments incur interest at the maximum rate permitted by Thai law. [BDO3]

2. Retention of Title: FPT retains ownership of goods until full payment is received. In case of payment default, FPT reserves the right to reclaim delivered goods. 

Article 7: Liability and Force Majeure

1. Limited Liability: FPT is not liable for indirect losses, business disruptions, or delays caused by the Buyer’s non-compliance with contractual obligations. 

2. Force Majeure: Neither party shall be liable for delays or non-performance caused by events beyond their reasonable control, including strikes, natural disasters, or government actions. 

Article 8: Intellectual Property and Confidentiality

1. Ownership: All designs, drawings, and technical specifications provided by FPT remain its intellectual property and may not be shared with third parties without written consent. 

2. Confidentiality: Both parties shall protect sensitive information related to the transaction and use it solely for purposes outlined in this contract. 

Article 9: Termination

1. Termination Grounds: FPT may terminate the contract if the Buyer defaults on payment, breaches its obligations, or fails to comply with agreed deadlines.

2. Compensation: In case of termination, the Buyer shall reimburse FPT for all costs incurred up to that point, including warehousing and administrative expenses. 

Article 10: Governing Law and Jurisdiction

This contract shall be governed by the laws of Thailand. FPT reserves the right to pursue legal action in the Buyer’s jurisdiction if necessary.