Please read these standard terms and conditions of sale of Omtis Fine Wines Limited (“Terms and Conditions”) carefully before placing your order with Omtis Fine Wines Limited and also retain a copy of these Terms and Conditions and your order for future reference. These Terms and Conditions apply to and form part of every Contract (as defined below) between Omtis Fine Wines Limited and its Customers (as defined below). Please also read Clause 14 of these Terms and Conditions carefully for specific terms and conditions for wine products purchased ‘En Primeur’.
In these Terms and Conditions:-
(a) "Amount(s) Owing" means the price charged by the Company for the Goods, and any other sums which the Company is entitled to charge under any Contract including any interest accruing thereon;
(b) "Company" means Omtis Fine Wines Limited, a limited company incorporated in Hong Kong and operating under the business name of “Omtis Fine Wines”;
(c) "Contract" means any agreement between the Company and the Customer for the sale by and the purchase of Goods from the Company;
(d) "Customer" means any person, firm, company, corporation or body which places an order with the Company and if comprises of more than one person, each person's liability is joint and several;
(e) "Event of Default" means an event where the Customer fails to comply with these Terms and Conditions or any other Contract with the Company; or the Customer commits an act of bankruptcy; or the Customer enters into any composition or arrangement with its creditors; or if the Customer is a company, the Customer has done or does anything which would make it liable to be put into liquidation; or a resolution is or has been passed or an application is or has been made for the liquidation of the Customer; or an administrator, receiver or similar officer is or has been appointed over all or any of the Customer’s assets.
(f) "Goods" means any product, equipment, material or other item sold by the Company under any Contract;
(g) "Price List" means the price list prepared by the Company for the Goods, which may be revised from time to time by the Company, without prior notice.
2. Terms and Conditions
(a) These Terms and Conditions are all of the terms and conditions under which the Goods are to be supplied and shall prevail over any terms and conditions which the Customer may stipulate, incorporate or refer to in writing or orally and shall prevail over any terms, conditions, warranties or representations which the Company or any employee, representative or agent of the Company may have stipulated, incorporated or referred to in relation to any previous Contracts, in advertising or otherwise and whether in writing or orally.
(b) The Company may vary or alter these Terms and Conditions from time to time without notice to the Customer.
(c) No variation to or alteration of these Terms and Conditions will bind the Company unless made in writing and signed by a director or an authorised signatory of the Company.
(a) All prices are subject to change by the Company without prior notice. Please refer to the Company’s latest Price List or visit the Company’s website for the latest prices of Goods.
(b) Unless the contrary is shown, prices are in the currency shown in the Price List and cannot be paid in other currencies unless agreed by the Company.
(a) The Company reserves the right to require advance or immediate payment for the Goods at the time a Customer places an order.
(b) Unless otherwise agreed, the Customer shall pay the Amount Owing on delivery of the Goods in Hong Kong dollars either by cash or cheque. The Customer will receive a monthly statement of accounts which itemises each transaction and sets out the relevant payment due dates.
(c) Any deposit required by the Company shall be paid according to the terms of the Contract(s) and subject to Clause 8 below all deposits paid are non-refundable. Any interest accrued on the deposit(s) shall be for the account of the Company.
(d) Payment of the Amount Owing shall be made in full by the Customer and free of any counterclaim, set-off, deduction, withholding or other claim whatsoever.
6. Credit Account
(a) Subject to the absolute discretion of the Company, where payment is on credit, the Customer must pay the outstanding Amount Owing on or before the credit term specified in all invoices and monthly statement(s) of accounts. Failure to do so may result in a credit account being withdrawn and the Company reserves the right to retake possession of the Goods from the Customer without prejudice to the Company’s right of claim against the Customer for the outstanding Amount Owing.
(b) The Company may impose a credit limit on such credit account at its discretion, and alter the Customer's credit limit without prior notice. Where the credit limit is exceeded, the Company may refuse to supply Goods to the Customer.
(c) Any outstanding Amount Owing not received by the Company on or before the specified credit term will incur annual interest at a rate to be determined from time to time (and indicated on all invoices) above the then prime rate quoted by the Hong Kong Association of Banks (as published daily in the South China Morning Post) from the date payment is due until payment is received by the Company.
7. Delivery and International Shipping
(a) Delivery is free of charge to Customers located in Hong Kong, Kowloon and the New Territories (except Lantau and the Outlying Islands) for orders of HK$1,500.00 or above per delivery address. Additional charges will be payable by the Customer for deliveries to addresses where lift access is not possible. For deliveries to the Lantau and the Outlying Islands, please contact us directly. Orders below HK$1,500.00 will be charged at the prevailing delivery rates of the Company, which shall be notified by the Company to the Customer prior to delivery. Additional freight charges will be payable by the Customer for orders for overseas delivery. Freight charges may vary and overseas delivery may be subject to import charges and taxes which will be payable by the Customer.
(b) Time for delivery shall not be of the essence of any Contract. The Customer acknowledges that any periods or times quoted for delivery are estimates only and while the Company will use reasonable endeavours to deliver orders within such periods or at such times, no guarantee is given and the Company shall not be liable for any loss or damage suffered by the Customer resulting from such delay. Delay due to circumstances outside the control of the Company shall not entitle the Customer to cancel any order or refuse to accept delivery.
(c) Upon delivery of the Goods, the Customer should stamp (using the company chop of the Customer where the Customer is a corporation), sign, date and return to the Company a copy of the Company’s invoice or the delivery note as an acknowledgement of the receipt of the Goods.
(d) The Company reserves the right to charge an additional delivery fee if the recipient nominated by the Customer is not available to accept delivery at the nominated delivery time. It is the responsibility of the Customer to notify the Company in advance if there is any change to the delivery address.
(e) The Company reserves the right to decline delivery of the Goods to any person at its sole discretion absolutely.
II. International Shipping
(a) The Company ships wine to most countries using various specialized carriers and a copy of the purchase invoice is required to be provided to carriers for use in determining foreign taxes and duties. If wine not purchased from the Company is being shipped from storage, the Company will provide a written estimate of fair market value to the carrier based on information available.
(b) The Company charges for air freight but is not involved in the collection of foreign duties, taxes, and surcharges which must be paid separately by Customer to the relevant party before the wine is released to Customer. These charges vary widely around the world, are sometimes onerous (e.g., reaching over 100% of value), and are often based on complex rules. Moreover, certain countries have "sampling" laws where authorities have the right to open a limited number of bottles per item. Failure to pay required duties may also result in confiscation of Customer wine. THEREFORE, ALL COSTS RELATED TO INTERNATIONAL SHIPPING ARE ESTIMATES ONLY (SEE BELOW) AND ARE ALWAYS THE SOLE RESPONSIBILITY OF THE CUSTOMER.
(c) Please note that wine shipped internationally is shipped solely at Customer's own risk. In particular, the precise timing of deliveries (given the need to clear Customs in other countries) and the local storage conditions while awaiting Customs clearance are completely outside of the Company’s control. Customers are advised to understand the import requirements for their intended destination country, and make their own arrangements for duties payment, hiring of import brokers or other expenses and services required to ensure the prompt processing of their wine through customs. The Company is not liable for making these arrangements and is not liable for any delays associated with customs or other processing required to import wine into a country.
Customer is responsible for all carrier fees, duties, and customs charges incurred in shipping purchases to Customer's desired shipping address. To the extent that the Company provides estimates of shipping, duties, and custom charges, these should be considered to be estimates only. Upon request only, original wooden boxes associated with a purchase (if any) may be shipped separately from bottles by common carrier for an additional fee.
Care must be taken when shipping wine in adverse weather conditions. High temperatures may cause wine bottles to leak or extreme cold can freeze wine during shipment.
Customer accepts all responsibility for the shipment through whatever weather conditions may occur during the shipment and agrees that the Company will not be responsible for, and will not replace, wine that is damaged by adverse weather conditions during such shipment.
It is the Customers’ responsibility to arrange insurance for the shipment. The Customer may consider to join the Company’s Group Insurance Policy at his own expenses subject to the terms and conditions of the Group Insurance Policy.
(a) Notwithstanding acceptance by the Company of any order placed by the Customer, all Goods are offered for sale subject to availability. In the event that stocks of Goods ordered by the Customer are not available, the Company will use its reasonable endeavours to contact the Customer to arrange for replacement or a full refund.
(b) The Customer also acknowledges that vintages and bottle size(s) of all wines are subject to availability and the final confirmation of the Company.
(a) Subject to Clause 9(b), cancellation by the Customer will not be accepted and any deposit paid by the Customer will not be refunded by the Company once orders for Goods have been made, unless a written notice of cancellation is received by the Company at least twelve (12) months prior to the scheduled delivery date and accepted in writing by the Company. Upon the receipt and the acceptance of a valid notice of cancellation, the Company shall arrange (in its sole discretion) for either a refund of, or issue a credit for, the purchase price of the Goods to the Customer.
(b) The Company shall not be obliged to accept a notice of cancellation. Any cancellation accepted by the Company is so accepted on the condition that all costs, damages, losses (including loss of profit), charges and expenses incurred by the Company by reason of such cancellation will be fully indemnified and paid by the Customer.
10. Storage of Wines
(a) The Company offers storage facilities to the Customer for the Goods purchased from the Company and storage fees and insurance will be charged at the prevailing storage rates of the Company afterwards, which shall be notified by the Company to the Customer if storage of the Goods are required. Any changes to storage rates or storage location shall be notified to the Customer by giving Customers no less than thirty (30) days’ notice in writing.
(b) Goods stored by the Company will be insured by the Company against all risks of physical loss or damage subject to the terms and conditions of the relevant insurance policy.
(c) In the event of non-payment of storage fees or any outstanding Amount Owing remaining unsettled by the Customer after thirty (30) days from the date of the relevant invoice, the Company reserves the right to exercise a lien over the Goods stored by the Company and may refuse to deliver the Goods to the Customer.
(d) If any outstanding Amount Owing remains unsettled by the Customer for more than six (6) months, the Company has the right to sell some or all of the Goods of the Customer and to deduct any outstanding Amount Owing from the proceeds of sale at the absolute sole discretion of the Company. The Company shall account to the Customer any remaining balance (if any) after settling all Amounts Owing of the Customer.
11. Breakage and Shortage
(a) The Customer is required to examine the Goods at the time of delivery to ensure that there are no breakages or shortages. No claims for breakage or shortage of Goods will be accepted by the Company unless the carriers are informed at the time of delivery of such breakage or shortage.
(b) No complaints made by the Customer will be entertained by the Company thereafter. The Company may offer a replacement or credit in favour of the Customer. The Company is not obliged to deliver any replacement of the Goods to an overseas address.
12. Faulty Goods
Subject to the provisions in this Clause, all Goods delivered are non-returnable. Where it is discovered that the Goods are faulty, for any reason due to the fault of the Company, (referred to as the “Faulty Goods”), the Customer must notify the Company within three (3) working days (the “Notification”) and must return the Faulty Goods to the Company within twenty-four (24) hours of the Notification for the Company’s examination. The Company will offer a replacement or credit in favour of the Customer provided that:
(a) the value of the Goods does not exceed HK$700.00 per bottle or the vintage of the Goods is less than 10 years old;
(b) the Customer's claims are genuine;
(c) the Goods were purchased from the Company and that the price charged for the Goods has been fully paid by the Customer; and
(d ) the Goods have not been kept too long or stored inappropriately by the Customer.
The Company is not obliged to deliver any replacement of the Goods to an overseas address.
13. Title and Risks
(a) All Goods sold to the Customer shall remain the property of the Company until all Amounts Owing due to the Company from the Customer under any account whatsoever have been paid in full.
(b) All risks in respect of the Goods shall be transferred to the Customer immediately once delivery of the Goods is completed.
(c) Until ownership of the Goods has passed to the Customer:
(i) the Customer shall store the Goods separately from other goods of the Customer and/or keep them in such a way (at no cost to the Company) that they can be readily identified as being the property of the Company;
(ii) the Customer shall hold the Goods on a fiduciary basis as the Company’s bailee;
(iii) the Customer shall not destroy, deface or obscure any identifying mark on or relating to the Goods; and
(iv) the Customer shall maintain the Goods in satisfactory condition and keep them insured (at the expense of the Customer) on behalf of the Company for their full replacement value against all risks.
(d) Until ownership of the Goods has passed to the Customer:
(i) the Customer cannot resell the Goods; and
(ii) if the Customer resells the Goods without obtaining the prior approval from the Company, the Customer must hold the proceeds of such resale on trust for and on behalf of the Company.
(e) The Customer’s right of possession of the Goods shall automatically cease upon the occurrence of an Event of Default.
(f) The Customer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises of the Customer, or to which the Customer has access, for the purpose of inspecting the Goods or, whether the Customer’s right to possession has terminated, to recover any Goods.
(g) The rights of the Company set out in Clause 13 shall remain in full force and effect notwithstanding termination of the relevant Contract.
(h) The Company may maintain an action for the purchase price of the Goods notwithstanding the ownership of the Goods has not passed to the Customer.
14. Specific Terms and Conditions for ‘En Primeur’ Orders
A description of ‘En Primeur’ wine products and their prices are set out in the ‘En Primeur’ Price List of the Company. Prices may vary due to fluctuations in currencies and the market and subject to change without prior notice.
(i) The deposit demanded in the ‘En Primeur’ invoice of the Company is due within fourteen (14) days from the invoice date as confirmation of order and is not refundable. The Company reserves the right to cancel the ‘En Primeur’order if the deposit is not received by the Company within fourteen (14) days from the invoice date.
(ii) The balance is due by 31st December of the campaign year.
(iii) The deposit will be automatically forfeited and the order will be automatically cancelled if the balance is not paid within thirty (30) days of final invoicing.
(iv) All bank charges will be payable by the Customer.
(i) Delivery of wine products purchased ‘En Primeur’ will be made within three (3) years from the date such wine products are offered for sale and subject to the availability of such wine products from the relevant supplier of the Company and the instruction of the Customer. Upon the request of the Customer, the Company will use all reasonable endeavours to provide a bank guarantee to the Customer in respect of the amount paid relating to the ‘En Primeur’ purchase, subject to the terms and conditions of the relevant bank and the payment of the relevant bank charges by the Customer.
(ii) The Company offers a flat-rate, door-to-door delivery service from Bordeaux to Hong Kong upon availability of wine products purchased ‘En Primeur’. Customers have the option of choosing air or ship freight depending on their needs.
(iii) The Company will use all reasonable endeavours to deliver wine products purchased ‘En Primeur’ to the place as instructed by the Customer at the costs, expenses and risks of the Customer.
(iv) Delivery will only be made upon full payment of all Amounts Owing to the Company.
Stocks of certain wine products purchased ‘En Primeur’ may need to be allocated subject to demand, in such case the Company reserves the right to allocate the stocks amongst its Customers in such proportions as it deems fit (at all times trying to be reasonable and fair). Some Customers may not therefore be allocated any or only some of the quantities they have ordered. Orders will only be accepted if there remains unsold stock and subject to written confirmation of the Company.
Due to the unique nature of ‘En Primeur’ sales, cancellation of ‘En Primeur’ orders by the Customer will not be accepted and any deposit paid by the Customer will not be refunded by the Company.
(i) Wine products purchased ‘En Primeur’ may be stored in bulk in the region of their production. Until such wine products are bottled and transferred to the Company, they cannot be segregated and the Customer may have a contractual rather than a proprietary interest in them.
(ii) Free storage will be offered for the first three (3) months upon the Company sending a notice of final invoicing to the Customer notifying the Customer that wine products purchased ‘En Primeur’ are ready and available for collection (the Customer may contact the Company and check the anticipated date on which the ‘En Primeur’ wine products will be ready and available for collection). A storage fee will be charged thereafter if the Company does not receive any further delivery instructions from the Customer.
(g) Insurance and Ownership:
Subject to the Customer’s payment of the storage fee pursuant to Clause 14(f)(ii) of these Terms and Conditions, the Company will remain responsible for insuring the wine products purchased ‘En Primeur’ at the original invoice value until delivery to the Customer. All wine products purchased ‘En Primeur’ remain the property of the Company until full payment is received by the Company.
In the case of any disputes, the Company reserves the right of final decisions on all matters.
15. Limitation of Liability
(a) The Company shall not be liable to the Customer for ullages or for any deterioration in the condition of any wine products (which can occur naturally to all wines products no matter how well cared for).
(b) The Company shall not be liable to the Customer for any claim (whether arising in or for contract, tort (including but not limited to negligence), breach of statutory duty, misrepresentation (other than fraudulent or negligent misrepresentation) or otherwise) under or in connection with these Terms and Conditions for:
(i) any economic losses (including but not limited to loss of profit, revenue, anticipated savings, business or contract);
(ii) any loss of goodwill or reputation; or
(iii) any special, indirect or consequential loss.
(c) The sole liability of the Company in respect of or in connection with the Goods under or in connection with any Contract (save in the case of death and personal injury) shall be limited to the price of the Goods paid or payable by the Customer.
(d) The Customer agrees to indemnify the Company against all costs, expenses, losses and damages incurred by the Company as a result of breach of any of these Terms and Conditions.
16. Compliance with Laws and Regulations
The Customer shall comply with all applicable laws, statutes, by-laws, directives, decisions, regulations, rules, orders and notices having the force of law and any applicable codes of practice.
17. Force Majeure
The Company reserves the right to defer the date of delivery and suspend further performance of the Contract if it is prevented or hindered from performing any part of the Contract by any circumstances beyond its control including (but without limiting the generality of the foregoing) acts of God, strikes, lock-outs, labour disputes or other industrial actions, embargoes, wars, riots, civil disturbances, malicious damage, government interventions, accidents, fire, floods and storms or other natural events to the extent that it is beyond the control of the Company (each individually referred to as a “Force Majeure Event”). The Company will use all reasonable endeavours without being obliged to incur any expenditure or cost, to resume delivery and performance of the Contract once the Force Majeure Event ceases.
18. Governing Law and Jurisdiction
These Terms and Conditions and each Contract shall be governed by and construed in all respects in accordance with the laws of the Hong Kong Special Administrative Region and the Company and the Customer irrevocably submit to the non-exclusive jurisdiction of the Hong Kong Courts.
19. Failure to Comply
If payment in full of any Amount Owing is not made within one month from the date payment is due, or an Event of Default occurs, then the Company may without prejudice and in addition to any other rights or remedies exercise all or any of the following rights :
(a) Delay delivery of any Goods until the matter is resolved to the Company's satisfaction;
(b) Suspend or cancel (in whole or in part) any delivery;
(c) Exercise a lien over and/or to sell some or all of the Goods of the Customer and to deduct any outstanding amounts from the proceeds of sale at the sole discretion of the Company absolutely. The Company shall account to the Customer any remaining balance (if any) after settling all Amounts Owing by the Customer;
(d) Recover from the Customer, or deduct from or set-off against any Amount Owing, amounts for any damage, loss or cost (including legal costs) to the Company relating to the non-performance by the Customer; or
(e) By notice to the Customer require that all the Customer’s indebtedness to the Company, whether or not due, is paid immediately and such amount will then become due and payable.
20. Contract by Corporation
Where the Customer is a corporation, the Company shall be entitled to treat a person purporting to have authority to make orders on behalf of the Customer as being duly authorised by the Customer. The Customer shall not be entitled to refuse delivery of any orders by reason of invalid authorisation of the person placing such order on behalf of the Customer. The Customer agrees to indemnify the Company for and against all losses, damages, costs and expenses suffered by the Company if delivery is refused by any of its officers, employees, agents or representatives for any reason other than as provided in Clauses 11 and 12 above.
(a) In respect of these Terms and Conditions, the English version shall prevail over the Chinese version.
(b) In Hong Kong, it is illegal to sell alcohol to any person under the age of 18 years. Similar restrictions apply in other jurisdictions. By placing an order with the Company, the Customer confirms and warrants that he or she is at least 18 years old (or otherwise above any applicable age limit). At the time of delivery of the Customer’s order, the Company or its agent may request proof of age from the person accepting the delivery. If appropriate proof cannot be produced, the Company or its agent may refuse to deliver the order.
(c) The Company shall not be liable for any failure to meet its obligations caused by circumstances beyond its control.
(d) No delay in exercising or non-exercise by the Company of any right, power or remedy under or in connection with these Terms and Conditions shall impair such right, power or remedy or operate as a waiver or release of it.
(e) Where the Company operates a joint account in the names of two or more Customers, the Company shall (unless expressly instructed to the contrary) be entitled to accept, rely upon and act upon instructions by any one of the Customers named on that account.
(f) If any provision, or any part of any provision, of these Terms and Conditions shall be or become illegal, invalid or unenforceable in any respect then that provision, or that part, shall be severable from these Terms and Conditions and the remainder of the provision and/or all other provisions shall remain valid and enforceable and the liability of the Company and the Customer shall not be affected or impaired.