Application of these Terms
In these Terms, unless the context otherwise requires, the following words and expressions shall have the following meanings:
“Actual Delivery Date” means the actual delivery date of your Vehicle.
“Affiliates” means any affiliated or related companies from time to time, whose activities include the Retail Goods and Services.
“Apex Authorised Retailer” means any third party that Apex has authorised to sell Apex motor vehicles from time to time.
“Apex Authorised Service Centre” means any third party that Apex has authorised to service Apex motor vehicles from time to time.
“Estimated Delivery Date” means the estimated delivery date of your Vehicle, as stated on the Vehicle Configuration.
“Final Purchase Price” means the Initial Purchase Price, and any taxes and official or governmental fees, as set out in the Final Purchase Price Sheet.
“Final Purchase Price Sheet” means the final purchase price sheet that will be provided to you as your Delivery Date nears. It will include the Final Purchase Price.
“First Payment” means fifty per cent (30%) of the Initial Purchase Price.
“Initial Purchase Price” means the purchase price of the Vehicle (excluding taxes and official or government fees), as stated in the Vehicle Configuration.
“Motor Vehicle Warranty” means Apex’s motor vehicle warranty as provided to customers who purchase motor vehicles from Apex, as amended from time to time, which can be found at www.apex-motor.com/about/legal.
“Order Date” means the date you place your order for the Vehicle with Apex.
“PDPO” means the Personal Data (Privacy) Ordinance (Cap. 486) of the laws of Hong Kong.
“Retail Goods and Services” means sales of goods or provision of services in relation to any of the following (whether through physical or online channels or in any other media now known or available in the future): motor vehicles, motor vehicle goods and services, vehicle towing, motor vehicle and general merchandise, food and beverages, restaurants, catering, groceries and household goods, health and beauty, pharmaceutical products, medical and pharmaceutical services, therapists, fragrance and cosmetics, wine and liquor, cigarettes and cigars, stationary, books and paper products, toys, clothing, shoes, baby products, pets products, fashion accessories, bags and luggage, jewellery, watches, furniture, plants and accessories, sports and leisure equipment, phones and mobile devices, electronics and electrical appliances, computer software and games, fuel, tutoring, mentoring, home cleaning, janitor services, landscape and plant maintenance services, agricultural services, part-time housekeeping, plumbing services, locksmiths, barber and salon services, gym and fitness services, laundry services, florists, catering services, building maintenance, business information services, business support services, brokerage services, conference and exhibition management services, consultancy and marketing research services, supply chain management, events, event and project management services, gaming services, advertising and public relations services, media production services, recreational services, banking, lending, investment and financial services, debt collection agencies, trust services, valuation services, secretarial services, data storage and management services, courier services, shipping services, graphic and interior design services, legal services, accounting, auditing, bookkeeping and taxation services, engineering services, architectural services, surveying services, equipment rental services, hospitality services, insurance services, Internet services, telecommunication services, testing services, photography services, printing and publishing services, property management services, real estate agencies and management, security services, home inspection services, storage and warehousing services, utilities services, oil and gas distribution, remittance services, travel agencies and tourism services, airlines, boat, limousine, taxi, truck and other transportation services, hospitals and nursing homes, childcare services, funeral services, casino services, investigative services, retail solutions, retail services and wholesales.
“Retailer” means any Apex Authorised Retailer and/or Apex Authorised Service Centre (as applicable).
“Second Payment” means twenty-five per cent (40%) of the Initial Purchase Price.
“Third Payment” means twenty-five per cent (30%) of the Initial Purchase Price.
“Vehicle” means the vehicle described in your Vehicle Configuration.
“Vehicle Configuration” means the vehicle configuration document that describes the Vehicle that you configured and ordered, including the Initial Purchase Price, as may be amended upon written agreement between you and us.
Agreement to purchase
You agree to purchase the Vehicle from Apex in accordance with the terms and conditions of this Agreement.
Your Vehicle is priced and configured based on options and features available at the Order Date. Options and/or features released after the Order Date may not be included in your Vehicle.
Purchase price, taxes and official or government fees, and payment terms
You agree that all the Personal Data provided by you to us and all information relating to your access to, and use of, the Website may be used and retained by us for the following purposes (the “Purposes”):
You shall pay:
the First Payment on the Order Date;
the Second Payment two (2) months after the Order Date, as stated on the Vehicle Configuration; and
the Third Payment on the Actual Delivery Date.
The Initial Purchase Price does not include taxes and official or government fees. As these taxes and fees are constantly changing and will depend on other factors, such as where you register the Vehicle and, or whether the Vehicle will be registered or not, they will be calculated closer to the time of delivery and indicated on your Final Price Sheet. You will be responsible for paying these additional taxes and fees (if any) [on the Actual Delivery Date].
You acknowledge that title of the Vehicle does not pass to you until we receive full and final payment of the Initial Purchase Price from you, and our receipt of written confirmation of your full and final payment of any additional taxes and fees to the relevant authorities.
As your Vehicle is custom ordered, we incur significant costs in starting production of your Vehicle. We also incur significant costs for re-marketing and re-selling the Vehicle if you cancel your order for your Vehicle or default/breach these Terms. As a result, the First Payment is non-refundable once your order is placed with Apex (except as provided in Paragraph 4.1), and the Second Payment is non-refundable once paid to Apex. You acknowledge that the First Payment and the Second Payment amounts are fair and reasonable estimates of the actual damages that we have incurred or may incur. We will credit your First Payment and Second Payment payments toward the Final Purchase Price of the Vehicle [when you are required to pay the Third Payment and any additional taxes and fees on the Actual Delivery Date]. You acknowledge that your payment of the First Payment and Second Payment, and these Terms, are not made or entered into in anticipation of, or pending, any conditional sale contract.
All payments to be made under these Terms shall be made in cleared funds, without any deduction or set-off, and free and clear of, and without deduction for, or on account of, any taxes, levies, imports, duties, charges, fees and withholdings of any nature now or hereafter imposed by any governmental, fiscal or other authority save as required by law. If you are compelled to make any such deduction, you shall pay us such additional amounts as are necessary to ensure receipt by us of the full amount which we would have received but for the deduction. You shall not be entitled by reason of any set-off, counter-claim, abatement, or other similar deduction to withhold payment of any amount due to us, unless we have otherwise agreed in advance in writing.
We will submit your order for your Vehicle to our factory for production one (1) week after the Order Date. During this one (1) week period, you may:
cancel your order and obtain a refund of the First Payment; or
make any changes to your Vehicle Configuration without incurring any [administrative or manufacturing] costs, provided that the cost of any additional options and/or features shall be added to the Initial Purchase Price and payable upon ordering such changes.
After we submit your order for your Vehicle to our factory for production, the First Payment becomes earned and non-refundable pursuant to Paragraph 3.5. As production of your Vehicle is already underway, changes to your Vehicle Configuration during this time will be difficult, if not impossible, for us to accommodate. If you want to make changes to your Vehicle Configuration, we will try to accommodate your request. If we accept your request, you will be subject to potential price increases for any pricing adjustments made since your original order date. Any changes made to your Vehicle Configuration, including changes to the Initial Purchase Price, will be reflected in a subsequent Vehicle Configuration that will form part of this Agreement.
Inventory Vehicle. This Paragraph is applicable if you are purchasing the Vehicle from our inventory (i.e., the Vehicle has already been manufactured, as indicated by an existing vehicle identification number). As we incur significant costs in preparing and coordinating the delivery of your Vehicle, including shipping logistics, the First Payment and Second Payment are non-refundable. You acknowledge that the First Payment and Second Payment amounts are fair and reasonable estimates of the actual damages that we have incurred or may incur in transporting, re-marketing, and re-selling the Vehicle. We will credit your First Payment and Second Payment against the Final Purchase Price of the Vehicle when you are required to pay the Third Payment and any additional taxes and fees on the Actual Delivery Date. You acknowledge that your payment of the First Payment and Second Payment, and these Terms, are not made or entered into in anticipation of, or pending, any conditional sale contract.
The Estimated Delivery Date of your Vehicle indicated in the Vehicle Configuration is an estimate only and is not a guarantee of when your Vehicle will actually be delivered, you acknowledge that we shall not be liable for any delay in delivering your Vehicle to you.
We will notify you of when we expect your Actual Delivery Date, which such delivery will be at your local Retailer, or such other location as we may agree to. You agree to schedule and take delivery of your Vehicle within two (2) months of the Estimated Delivery Date, or the Actual Delivery Date if this is different. If you are unable to take delivery within the specified period, your Vehicle may be made available for sale to other customer
If, on your behalf, we are coordinating the shipping of the Vehicle to you via a third party common carrier, you agree that delivery of the Vehicle, including the transfer of title and risk of loss, will occur at the time your Vehicle is loaded onto the common carrier’s transport (i.e., FOB shipping point). The carrier will insure your Vehicle while in transit and you will be the beneficiary of any claims for damage to the Vehicle or losses occurring while the Vehicle is in the possession of a common carrier. To secure your final payment and performance under the terms of this Agreement, we will retain a security interest in the Vehicle and all proceeds therefrom until your obligations have been fulfilled.
You are eligible to obtain a warranty for your Vehicle under the Motor Vehicle Warranty. You must apply for such warranty in accordance with the Motor Vehicle Warranty. The terms and conditions of this warranty shall be as set out in the Motor Vehicle Warranty.
No resellers; discontinuation
Apex and its Affiliates sell cars directly to end-consumers, and we may unilaterally cancel any order that we believe has been made with a view toward re-sale of the Vehicle or that has otherwise been made in bad faith.
We may also cancel your order and refund your First Payment and/or your Second Payment (as applicable) if we discontinue a product, feature, or option after the Order Date.
Disclaimer and limitation of liability
The Vehicle is provided by us on an “as is” and “as available” basis. We do not make any representations or warranties of any kind, express or implied, in relation to this Warranty. To the fullest extent permissible by applicable law, we disclaim all representations and/or warranties, express or implied thereof. Apex shall not be liable for any statement or representation, written or verbal, (by whosoever made) which contradicts the terms and conditions of these Terms, unless such statement or representation is supported in writing by Apex.
In the event we are held liable for any damages to you, your sole and exclusive remedy will be limited to reimbursement of the First Payment and/or your Second Payment (as applicable).
To the fullest extent permissible by applicable law, we accept no liability for any direct or indirect loss or damage, foreseeable or otherwise, including any indirect, consequential, special, or exemplary damages no liability will be accepted for any loss arising out of, or resulting from, your or any third parties’ use of the Vehicle (whether based on breach of contract, tort (including negligence), product liability, or otherwise). You acknowledge and agree that you and any third parties’ access and use of the Vehicle are at your own risk.
To the fullest extent permissible by applicable law, Apex excludes any liability for death, bodily injury, or damage to other property or any consequential loss of whatsoever nature arising directly or indirectly from your or any third parties’ use of the Vehicle.
Notwithstanding anything to the contrary in these Terms, nothing in these Terms shall exclude or limit our liability for death or personal injury caused by our negligence, or any other liability which cannot be excluded or limited under applicable law.
You agree to indemnify, defend, and hold harmless Apex and its Affiliates, and their respective directors, officers, employees, representatives, advisers and/or agents, fully from and against any and all claims, losses, liabilities, damages, costs and/or expenses (direct and/or indirect, and including legal fees and expenses on a full indemnity basis) arising out of, or resulting from, your or any third parties’ use of the Vehicle.
Construction. In these Terms, where the context admits:
references to “these Terms” are references to these terms and conditions, and such other agreement or document duly executed by the parties as may amend, vary, supplement, modify or novate these Terms from time to time;
references to “Paragraphs” in these Terms are references to the paragraphs of these Terms;
the headings and sub-headings in these Terms are inserted for convenience only and shall not affect the construction of these Terms;
the singular includes the plural and vice versa, references to the masculine, feminine and the neuter shall include all such genders, and words denoting persons shall include natural persons, bodies corporate, unincorporated associations and partnerships;
references to any party to these Terms includes its successors and permitted assigns;
references to “including”, “includes” and “in particular” are illustrative, and none of them shall limit the sense of the words preceding it and each of them shall be deemed to incorporate the expression “without limitation”; and
references to “in writing” includes typewriting, printing, lithography, photography, email messages, and other modes of reproducing words in a legible and non-transitory form.
Entire agreement. These Terms constitute the entire agreement between the parties relating to its subject matter, and supersedes and extinguishes any and all previous drafts, agreements, promises, assurances, undertakings, understandings and arrangements between them of any nature, whether written or oral, relating to such subject matter.
Variation. We reserve right to modify these Terms at any time. Changes and clarifications will take effect immediately upon their posting on the Website. If we make material changes to these Terms, we will use our reasonable efforts to notify you of such changes by an appropriate method, such as a notice on the Website.
Assignment. You shall not assign any of your rights or obligations under these Terms to any third party without our prior written consent. We have the right to assign any of our rights or obligations under these Terms at any time. You agree that you shall, in the event of any such assignment of our obligations, release us from any of our obligations, provided that the relevant assignee agrees to assume any and all such obligations.
Force majeure. If, by any reason of any event of force majeure or acts of God which shall directly or indirectly cause any party to these Terms to be delayed in, or prevented from, performing any of the provisions of these Terms, then such delay or non-performance shall not be deemed to be a breach of these Terms, and no party shall be responsible or liable to the other for such failure in delay or performance, and no loss or damage shall be claimed by any party hereto from the other by reason thereof.
Severability. The provisions of these Terms shall be severable, and if any provision, or part-provision, of these Terms shall be held or declared to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability shall not affect any other provision, or part-provision, of these Terms, and the remainder of these Terms, disregarding such illegal, invalid or unenforceable provision, or part-provision, shall continue in full force and effect as through such illegal, invalid, or unenforceable provision, or part-provision, had not been contained in these Terms.
Waiver. No provision of these Terms shall be deemed waived, unless such waiver shall be in writing and signed by the party against which the waiver is sought to be enforced. The waiver by a party of any breach of any provision, or part provision, of these Terms by another party shall not be construed to be either a waiver of any succeeding breach of any such provision or a waiver of the provision itself. No single or partial exercise of any right or remedy shall prevent or restrict further exercise of that or any other right or remedy.
Third party rights. These Terms do not create any right enforceable by any person who is not a party to this Policy under the Contracts (Rights of Third Parties) Ordinance (Chapter 623 of the Laws of Hong Kong), irrespective of whether or not a clause of these Terms confers or purports to confer a benefit on such person.
Governing law and jurisdiction. These Terms, and any disputes, controversies, differences, or claims arising out of, or in connection with, these Terms or the subject matter or formation of these Terms (including non-contractual disputes or claims), are, and shall be, governed by, and construed in accordance with, the laws of Hong Kong, and each of the parties irrevocably submits to the exclusive jurisdiction of the Hong Kong courts.