Terms and Conditions for the Supply of Goods and Services
A. LEGAL TERMS
In these General Terms and Conditions, the definitions used shall have the meaning as described below unless otherwise defined in the Commercial Terms:
Affiliated Company means with respect to each Party, any other corporation or business entity by voting rights, shareholding or agreement directly or indirectly Controlling, Controlled by or under common Control with such Party.
Agreement means the following:
(a) a quotation sent by the Seller which is either:
(i) duly accepted, signed and returned to the Seller by the Customer (ConfirmedQuotation); or
(ii) duly accepted by the Customer and communicated to the Seller by way of electronic mail; and
(b) a purchase order (Purchase Order) sent by the Customer and confirmed by the Seller(Order Confirmation) (if applicable); and
(c) these General Terms and Conditions (as amended from time to time).
Alternative Shipping Terms means arrangements for transportation, delivery, collection, transfer of title and/or acceptance of risk to or in the Products specified in accordance with the terms of Clause 2.3 of the Trading Terms set out in Section B.
Business Day means a business day in Singapore.
Confidential Information means all information and documents of a confidential nature or expressly designated confidential by a Party, whether in writing or oral, directly or indirectly, disclosed by one Party to the other in connection with this Agreement, which shall include but is not limited to, price lists or pricing structures, marketing and sales information, technical, financial and business information and dealings, product lines, research activities, names of customers, business partners, suppliers or proposed business transactions, reports, plans, computer programs or files, designs, models, know-how, trade secrets and any other information.
Control of an entity means:
(a)the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
(i)cast, or control the casting of, more than fifty per cent (50%) of the maximum number of votes that might be cast at a general meeting of the entity; and/or
(ii)appoint or remove all, or the majority, of the directors or other equivalent officers of the entity; and/or
(iii)give directions with respect to the operating and financial policies of entity with which the directors and/or other equivalent officers of the entity are obliged to comply;
(b)the holding beneficially of more than fifty per cent (50%) of the issued share capital of the entity.
Customer means the party named as a counterparty to this Agreement.
Customer Data means any personal data and other information relating to the Customer, its customers and potential customers collected by the Customer in accordance with applicable Law by whatever means.
Customer’s Works means any materials, items and/or merchandise manufactured and/or developed using the Customer’s IPR as applicable together with all IPR in such materials, items and/or merchandise.
Date Product Received shall have the same meaning given to this term in the Commercial Terms.
Designated Freight Forwarder means the freight forwarder designated and approved by the Customer as notified by the Customer to the Seller from time to time.
Event of Insolvency means in relation to either Party to this Agreement, that a voluntary arrangement is proposed or approved or an administration order is made, or a receiver or administrative receiver is appointed of any of the assets or undertaking of that Party, or a winding-up resolution or petition is passed or presented or other similar or equivalent action is taken against or by that Party by reason of its insolvency or in consequence of debt.
Force Majeure Event means an event (including without limitation acts of God or public enemy,inclement weather, fire, explosions, earthquake, floods, strikes, work stoppages, slowdowns or other industrial disputes, accidents, riots or civil disturbances and outbreak of epidemics, pandemics, lockdown or application of any local, state, federal, national or international law, governmental order or regulation) that affects a Party which is beyond that Party’s reasonable control or that prevents the working or interrupts the operations of the Seller or its suppliers.
General Terms and Conditions or GTC means these general terms and conditions, comprising the Legal Terms set out in Section A and Trading Terms set out in Section B, as contained in and updated from time to time on https://www.asia-automation.com/
Group Policies means the prevailing policies of the Seller published on https://www.asia-automation.com/
Incoterms means those trade terms published by the International Chamber of Commerce, as amended from time to time.
Intellectual Property Rights or IPR means all registered and unregistered intellectual property rights which currently exist or are recognised in the future, including without limitation, the patents, trade names, designs, copyright, trademarks, database rights, know-how, confidential information customer data and all other forms of intellectual property rights and similar rights wherever in the worldenforceable.
Law means any applicable law, regulation, directive, guideline, standard, circular or general rule policy (and any amendments to any of the foregoing made from time to time) of any international or national governmental or regulatory body in any jurisdiction.
Letter of Authorisation means the letter valid for the term of the Agreement addressed to “whom it may concern” to confirm that the Customer is the exclusive owner in and to the Customer’s IPR supplied for provision of the Product or that the Customer is duly licensed by a third party (including without limitation any resale customer) to supply that third party’s IPR to the Seller for provision and development of the Product.
Marketing Materials means notices, data, statements, (technical) drawings, (technical) specifications, dimensions, renders, mock-ups, illustrations, presentations, samples and other products, materials and/or information made or provided by the Company, in whatever form or of whatever nature and includes all Intellectual Property related to, arising out of or in connection thereto.
Party means either the Customer or the Seller and Parties means both the Customer and Seller collectively.
Products means the material or products which are sold or to be sold by the Seller to the Customer.
Prohibited Territory means any country or territory that is, or whose government currently is, the target of comprehensive sanctions imposed by the Office of Foreign Assets Control of the United States Department of Treasury (OFAC). Such countries shall be referred to as the Comprehensively-Sanctioned Countries.
Restricted Person means any person or entity who is (i) included, or is directly or indirectly controlled or owned by 50% or more by one or more parties included, on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List or any other sanctions list maintained byOFAC, the United States Department of State, the European Union, the United Kingdom or the United Nations Security Council; or (ii) directly owned or controlled by any party who is organized orresident in any of the Comprehensively-Sanctioned Countries.
Seller means Asia Automation (Singapore) Pte. Ltd. (UEN: 202123489R), a company incorporated in Singapore with registered address at 803 King George’s Avenue #02-206 Singapore 200803.
Seller Data means any personal data and other information relating to Seller; and Seller’s vendors and subcontractors collected by Seller in accordance with applicable Law by whatever means.
Seller’s IPR means the registered or unregistered intellectual property rights which currently exist or are recognized in the future, including without limitation the trademarks, trade names, patents, designs, copyright and related rights, database rights, know-how, confidential information and all other IPR and similar rights anywhere in the world owned by the Seller or validly licensed to the Seller for use in accordance with this Agreement; and includes without limitation, the BLUEWAVE trade mark and logo.
Seller’s Works means any Products manufactured and/or developed using the Seller’s IPR or IPR to which the Seller has a valid license for use for the purpose described in this Agreement.
Shipping Documents means the invoice, the packing list, the airway bill, country of origin certificates, approval documents, (if applicable) compulsory certifications and any other approvals, consents, certificates or licences required for import in accordance with applicable Law in the territory of manufacture from time to time and as required for the Confirmed Quotation or Purchase Order and relevant Order Confirmation.
Territory means the territory of distribution and/or sale as set out in the Confirmed Quotation, Order Confirmation and/or SPA, as applicable.
Works means any Product manufactured and/or developed using the Customer’s IPR and/or the Seller’s IPR as applicable together with all IPR in such Product.
1.1 These General Terms and Conditions apply to all sale of Products by the Seller to the Customer under the Confirmed Quotation, the Purchase Order(s) and/or Order Confirmation issued pursuant to the Agreement. All orders for Products shall be deemed to be an offer by the Customer to purchase Products subject to these General Terms and Conditions.
1.2 To the extent that these General Terms and Conditions conflict with any Customer terms, theseGeneral Terms and Conditions shall prevail. To the extent that these General Terms and Conditions conflict with any terms in the Confirmed Quotation, Purchase Order, Order Confirmation or SPA (including any drawings, designs, requirements, specifications and calculations attached to the Confirmed Quotation or Order Confirmation), the terms of theConfirmed Quotation, Order Confirmation and SPA shall prevail. As between the Confirmed Quotation, SPA, Purchase Order and Order Confirmation, the terms of the Confirmed Quotationor Order Confirmation shall prevail.
1.3 The Customer shall be deemed to have accepted these General Terms and Conditions uponthe (i) Customer accepting, signing and returning the form of quotation (Quotation) issued by the Seller within the time period specified in the Quotation, (ii) the Seller’s acceptance of thePurchase Order, by issuance of an Order Confirmation by Seller to Customer or Seller’s action indicating the intended fulfilment of the Purchase Order, whichever is earlier.
1.4 The Seller shall not be bound by conflicting purchasing conditions or reservations made by the Customer even if the Seller has not explicitly contradicted these terms.
2.1 All Quotations by the Seller are without commitment, unless the contrary is expressly provided in writing.
2.2 All Quotations are valid for 30 days from the date of the Quotation, unless otherwise agreed in writing. The Quotation shall be void if the Customer does not accept unconditionally by signing the and returning the Quotation to the Seller within 30 days.
3.1 Only an Agreement will constitute a binding obligation of the Company to deliver the Products.
3.2 Any promises made by, or arrangements made with employees of the Seller will not bind the Seller, unless they have been confirmed in writing by a person authorized to represent the Seller.
3.3 Unilateral termination of an Agreement by the Customer is invalid unless the Seller agrees to such termination in writing.
4 Marketing Materials
4.1 Marketing Materials are only indicative and shall not, in any circumstances, bind the Seller.
4.2 The Seller will always remain the sole owner of the Marketing Materials.
4.3 If the Seller distributes the Marketing Materials to the Customer, the Customer shall in all events (i) adhere to all the instructions given by the Seller, (ii) at the Seller’s written request, immediately cease the use of the Marketing Materials, (iii) use the Marketing Materials solely for its own use and not allow any third party to use the Marketing Materials and (iv) not make copies of or changes to the Marketing Materials unless with the prior consent of the Seller.
4.4 All Intellectual Property Rights with respect to the Marketing Materials shall, in so far as not already vested in the Seller, become or remain the sole and absolute property of the Seller, and the Customer shall do all that is reasonably necessary to ensure that such rights vest in the Seller by the execution of appropriate instruments or the making of agreements with third parties
5 Ownership, Risk, Insurance, right of repossession
5.1 Risk in respect of damage and loss of the Product received shall pass to the Customer in accordance with the relevant Incoterms stipulated in the Purchase Order.
5.2 The Seller shall retain property/title in all the Products delivered until the Customer has made full payment of everything it owes the Company for Products delivered or to be delivered to it by the Seller under an Agreement.
5.3 In the event that either Party becomes aware of the existence of any quality or technical problem relating to the Products which have left the control of the Seller and the relevant Party reasonably believes that the problem in question creates or is likely to give rise to a risk to health or safety of the resale customers or end users of the Product or the possibility of non-compliance with applicable Law, the following provisions will apply:
(a) the relevant Party shall upon becoming aware of the problem immediately notify the other Party in writing, and any such notification shall as a minimum:
(i) identify and state the quantity of the Products affected;
(ii) specify any relevant coding information; and
(iii) specify any other relevant information which may be of assistance in tracing the Products; and
(b) representatives of the Seller and the Customer shall appropriately communicate for the purpose of agreeing on the measures to be taken in order to remedy the failure.
5.4 The Customer shall insure the Products against damage or loss from whatever cause during the period in which the Seller retains title to the Products; the insurance policy must designate the Seller as a (co-)insured having an independent right of action against the insurer(s), and the Customer must make the policy(ies) available for inspection to the Seller upon request. At theSeller’s request, all claims of the Customer against the insurers pursuant to these insurances shall be assigned to the Seller or a right of pledge be granted to the Seller.
5.5 If the Customer fails to meet its obligations, the Seller shall be entitled forthwith without prior notice of default being required, to repossess Products which have been delivered under retention of title and which are still at the Customer’s premises. In so far as necessary, the Customer irrevocably authorises the Seller to exercise this right of repossession.
5.6 In the event, and to the extent to which the Seller has exercised the right of repossession referred to in the preceding sub-clause, the Agreement shall be terminated in whole or for a proportionate part without judicial intervention being required, and without prejudice to theSeller's right to compensation of damage and costs. The Customer shall in this case be credited with the market value (which on no account can be higher than the original purchase price), reduced by the damage and costs incurred by the Seller.
5.7 A Customer acting in a professional or business capacity shall, in the course of its business operations, be entitled to sell and deliver the Products delivered to it to third parties under retention of title. For sales such as these, the amount payable by the Customer to the Seller for the Products resold by the Customer shall, if it is not already due and payable, become due and payable in full immediately.
5.8 The Customer shall always inform third parties of the Seller’s retention of title. The Customer is also obliged, at the Seller’s request, to inform the Seller of the location of the Products and, if applicable, to whom they were sold.
6 Intellectual Property Rights
6.1 The Seller represents and warrants that it has:
(a) valid right, title and interest in or is duly licensed to use the Seller’s IPR;
(b) valid right to use the Seller’s IPR for sale of the Product; and
(c) valid right to license the Customer and its end customers to use the Seller’s IPRincorporated in the Product for the sole purposes set out in Clause 6.4 below.
6.2 The Customer agrees that it will fulfil the requirements and upon request, execute or procure the execution of the Letter of Authorisation in order to satisfy the Seller that it has complied in full, with its obligations under this Clause 6.
6.3 The Customer agrees that the Seller has all right, title, interest in the Seller’s IPR and that any rights arising from the use of the Seller’s IPR to create Seller’s Works shall inure to the benefit of the Seller. The Customer agrees that it will not use the Seller’s IPR except as previously authorised by the Seller in writing and will not challenge the Seller’s IPR.
6.4 The Seller grants to the Customer for the term of this Agreement, a royalty free, non-exclusive licence to use the Seller’s IPR incorporated in the Product for the sole purpose of (a) the design, development and manufacture of materials, items and/or merchandise incorporating the Product as permitted under this Agreement; and (b) the display, merchandising, retail and distribution of such materials, items and/or merchandise, for marketing and intended sale transactions in the Territory or other territories of the Customer’s operation.
6.5 The Seller acknowledges that the Customer has all right, title, interest in the Customer’s IPR and that any rights arising from the use of the Customer’s IPR to create Customer’s Works shall inure to the benefit of the Customer. The Seller agrees that it will not use the Customer’s IPR except as previously authorised by the Customer in writing and will not challenge the Customer’s IPR. The Customer grants to the Seller and its Affiliated Companies for the term of this Agreement, a royalty free, non-exclusive and non-revocable licence to use the Customer’s IPR incorporated in the Product for the sole purpose of (a) the design, development and manufacture of materials, items and/or merchandise incorporating the Product; (b) the displayof the Product in the territories in which the Seller operates; and (c) a right to sublicense the rights granted in the preceding sub-clause (a) and (b) to its suppliers and subcontractors for the purposes set out in this Clause 6.5.
6.6 Subject to Clause 6.5 above, where Seller has been engaged by Customer to create designs, Product moulds and/or develop the Product on behalf of the Customer, all IPRs in the designs, Product moulds and/or in the Product, including without limitation any drafts and preparatory work created whether jointly with the Customer or solely by the Seller, shall be vested in the Seller unless otherwise agreed between the Parties. The Customer agrees to irrevocably assign all such IPRs vested in such Works to the Seller upon their creation, with full title, guarantee, intellectual property rights and any other interest in those Works. At the request and cost of the Seller, the Customer shall take such actions and execute any documents as is reasonably necessary and as the Seller requires to vest properly all such rights in the Seller or (where directed by the Seller) in its nominee and secure all appropriate forms of protection for and defend and enforce such rights.
6.7 The Parties agree that the IPR in all written material, drawings, specifications and Product moulds supplied by the Seller to the Customer or commissioned by the Customer (collectively, the Seller’s Materials), belong to the Seller. The Customer shall store the Seller’s Materialswith adequate security measures; and shall not copy and/or use such material other than as permitted under this Agreement. The Customer shall promptly return the Seller’s Materials,upon the Seller’s request.
6.8 The Customer agrees that it shall not cause or permit anything to be done (or not done) which may damage or endanger the Seller’s IPR or Seller’s IPR.
6.9 If during the term of this Agreement, the Customer becomes aware of any infringement of any of the Seller’s IPR or Seller's IPR, the Customer shall immediately inform the Seller in writing.
7.1 The Customer agrees that the Seller companies have all right, exclusive title and interest in theSeller Data and the Seller agrees that the Customer shall have all right, exclusive title and interest in the Customer Data.
7.2 The Customer, its employees, agents or sub-contractors and its Affiliated Companies shall not independently collect, use, retain, solicit, disclose to third parties or remove any of the Seller Data without the prior written consent of the Seller, nor shall the Customer challenge the rights (including IPR) of the Seller in the Seller Data.
7.3 The Seller, its employees, agents or sub-contractors and its Affiliated Companies shall not independently collect, use, retain, solicit, disclose to third parties or remove any of the Customer Data without the prior written consent of the Customer, nor shall the Seller challenge the rights (including IPR) of the Customer in the Customer Data.
7.4 Personal data disclosed by a Party to the other may only be used for the purpose of fulfilling its obligations under this Agreement. Each Party shall ensure that all personal data provided by the other Party, is deleted and/or destroyed by the receiving Party as soon as it is no longer necessary for such purpose. Each Party shall treat such personal data as Confidential Information and: (a) comply with all reasonable instructions in relation to such personal data (including its use and storage); (b) not use such personal data for any purpose other than to perform its obligations under this Agreement; (c) take all reasonable measures to protect such personal data (while in its possession) from unauthorized access, usage or loss; (d) not transfer such personal data to any third parties (except with the disclosing Party’s prior written consent); (e) promptly give the relevant Party all reasonable assistance it requires to enable it to comply with all applicable Law; (f) ensure that such personal data is only accessible to those in its organization who need to have access to it in order to perform its obligations under this Agreement; and (g) comply with all applicable Law in relation to such personal data.
7.5 The Seller shall be entitled to supply any Seller company such information or personal data in respect of the Customer for investment, marketing or other business purposes, including the exchange of non-financial information with selected business partners, without the Customer’s consent.
8.1 Each Party (Receiving Party) shall not at any time disclose to any third party any Confidential Information of the other Party (Disclosing Party) unless the Receiving Party can show such information was:
(a) publicly available at the time of disclosure;
(b) becomes, after disclosure, part of the public domain by publication or otherwise, except by violation of this Agreement;
(c) is made available to the Receiving Party on a non-confidential basis from a third-party source that the Receiving Party has confirmed (after such inquiry as would be reasonable under the circumstances) is not bound by a confidentiality agreement or other legal or contractual obligation of confidentiality;
(d) subject to Clauses 8.4 to 8.6 of these GTC, is required to be disclosed by Law; or
(e) is independently developed by the Receiving Party without reference to any ConfidentialInformation shared by the Disclosing Party.
8.2 The Receiving Party may only disclose the Disclosing Party’s Confidential Information to its employees, professional advisers, agents, sub-contractors and/or its Affiliated Companies (collectively, the Representatives) in connection with this Agreement if, in the Receiving Party’s reasonable opinion the Representative must necessarily be involved in the performance of the Receiving Party’s obligations under this Agreement and provided that such Representative is informed of the confidential nature of the information and directed to treat such information confidentially pursuant to this Agreement.
8.3 Neither Party shall disclose to any person or entity the existence of this Agreement and its terms and conditions. For the avoidance of doubt, the Customer shall not hold itself out as a customer to the Seller or the Seller, to any third party without the prior written consent of the Seller.
8.4 In the event that the Receiving Party or its Representatives are legally compelled (by court order, oral motion, interrogatory, request for information or documents, subpoena, civil investigation, demand or similar legal process) to disclose Confidential Information or any information relating to this Agreement, the Receiving Party shall provide the Disclosing Party with prompt written notice of such request and the terms of and circumstances surrounding such request, so that the Disclosing Party may consider whether there are appropriate grounds to object to such production and if so, the Receiving Party shall appear before the requesting authority to object to such production.
8.5 Without prejudice to Clause 8.4 above, the Disclosing Party may seek a protective order or other appropriate remedy and the Receiving Party agrees to co-operate fully with the Disclosing Party to seek such remedy.
8.6 In the event that such protective order or other remedy is not obtained, then the Receiving Party and its Representatives shall furnish only such portion of the information or take only such action as it is advised by counsel is legally required by a binding order and, where available, shall use commercially reasonable efforts to obtain an order or other reliable assurances that confidential treatment will be accorded to the information furnished.
8.7 Upon expiry or termination of this Agreement (in whole or in part), the Receiving Party shall promptly return to the Disclosing Party any Confidential Information supplied by the Disclosing Party to the Receiving Party under this Agreement which shall remain at all times the property of the Disclosing Party.
8.8 Each Party may retain one copy of the relevant documents (including written Confidential Information of the Disclosing Party and any materials produced, developed and/or compiled using the information) as may be necessary to document this Agreement strictly for the purpose of establishing its compliance with any applicable Law and for defending or maintaining any litigation relating to this Agreement, provided that such retained material shall be kept only in its record archives and used only to the extent for such purpose. All Confidential Information that is not returned or destroyed pursuant to this Clause 8.8 shall remain subject to this Agreement.
8.9 The Receiving Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and that money damages may not be a sufficient remedy for any breach of this Agreement.
8.10 The Receiving Party acknowledges that in the event of such a breach or threatened breach of this Agreement, the Disclosing Party shall be entitled to seek equitable relief, including an injunction and specific performance, in addition to any other right or remedy to which the Disclosing Party may be entitled. The Receiving Party waives any right to challenge any such claim for equitable relief by the Disclosing Party on the basis that an adequate remedy at Law exists.
8.11 The Customer shall maintain the confidentiality of any business information and technique which relates to the Seller as Confidential Information and not disclose it to any third party whatsoever either during the term of this Agreement or after; business information is to be interpreted in the broadest sense and includes any information which is disclosed to the Customer by the Seller or which comes to the Customer’s knowledge in the context of the Agreement.
9.1 Notwithstanding the expiry or termination of this Agreement (in whole or in part), the Customer shall indemnify and hold the Seller harmless from and against all losses, damages, costs and all liabilities and obligations of any nature whatsoever (including loss of property, loss of trade, any legal and associated costs and all reasonable fees on an indemnity basis) howsoever arising from any claims, pending or threatened suits, proceedings and/or actions against the Seller or its Affiliated Companies:
(a) relating to any alleged or actual infringement arising from use of the Seller’s IPR or Seller’s IPR; or
(b) as a result of any:
(i) breach of any applicable Law; or
(ii) material breach of this Agreement (including without limitation terms relating to restrictions on the use, sale, distribution and/or supply of the Product (if any) and Clause 6 above (Intellectual Property Rights));
by the Customer, its employees, agents, carriers, representatives or otherwise.
9.2 Each Party shall, at all times, have in force and maintain at its own cost (and cause any sub-contractor to have in force and maintain at its own cost) such policy or policies of insurance with insurers of good repute which would give such Party (or its sub-contractor) adequate cover in respect of all of its insurable liabilities under this Agreement. Each Party shall, upon request by the other Party, provide the other Party with all such documentation as is necessary to prove its continuing compliance with its obligations to insure under this Clause 9.2 and Clause 5.
9.3 Each Party shall immediately notify the other Party, with no admission of liability or entering into any settlement, of any claim or action brought or threatened in respect of which the other Party may be or become liable under this Agreement.
10 Seller's Liability
10.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE SELLER BE LIABLE TO THE CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS INFORMATION OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT, EVEN IF THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
10.2 IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON THE SELLER, THEN THE CUSTOMER AGREES THAT THE AGGREGATE LIABILITY OF THE SELLER FOR ANY AND ALL LOSSES, DAMAGES AND/OR INJURIES ARISING OUT OF ANY ACT OR OMISSION OF THE SELLER AND/OR ITS AFFILIATED COMPANIES IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY THE CUSTOMER TO THE SELLER FOR THE PRODUCT(S) FOR THE PERIOD OF 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.
10.3 NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT ANY LIABILITY IN RESPECT OF DEATH OR PERSONAL INJURY BY THE SELLER OR ITS EMPLOYEES, AGENTS OR SUB-CONTRACTORS; OR ANY OTHER LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER LAW.
10.4 The Product is provided on an “as-is” and “as available” basis. To the fullest extent permitted by law, the Seller disclaims any representation or warranty whether express or implied as to the title, fitness for a particular purpose, merchantability, accuracy or standard of quality of the Product; and the results to be obtained from use of the Product unless specifically mentioned inthe Agreement. The Seller disclaims all representations and warranties that the Product will meet the requirements of the Customer and/or those of its end customers.
10.5 The Seller shall not be liable in any circumstance for improper or inappropriate use on the part of the Customer or third parties, normal wear and tear or faulty or negligent handling or manipulation.
10.6 The Seller shall also not be liable for any infringement of a third party’s Intellectual Property Rights caused by the Customer’s use of the Products.
10.7 The limitations and exclusions of liability stipulated by the Seller for itself in the sub-clauses above are also stipulated for and on behalf of the Affiliated Companies of the Seller, their respective directors, employees , agents and all authorised persons of each of them thereunder.
10.8 The Seller will not qualify as a ‘producer’ as meant in Council Directive 85/374 of 25 July 1985 or any national legislation based thereupon or any similar legislation in any jurisdiction and shall in no way be responsible for the construction of the Products.
11 Representations and Warranties
11.1 Each Party represents, warrants and covenants that
(a) it is a company duly incorporated or established and validly existing under the Law of its place of incorporation;
(b) it has full power, authority and legal right to own its assets and carry on its business and is not in receivership or liquidation, it has taken no steps to enter liquidation and no petition has been presented for its winding up and there are no grounds on which a petition or application could be based for its winding up or appointment of a receiver;
(c) it has all licenses, permits and consents to carry out its business;
(d) it has the capacity and has obtained the authorization necessary, to enter into and perform its obligations under this Agreement and that when executed this Agreement will constitute a valid and binding obligation on it; and
(e) its execution and performance of this Agreement will not violate any applicable Law or regulations.
11.2 The Customer, its authorized representatives, agents and resale customers may inspect and test Products furnished under any Confirmed Quotation or Order Confirmation to ensure that the Product Warranties have been complied with, with valid cause and upon reasonable notice to the Seller.
11.3 The Customer further represents and warrants that it and its customers are not RestrictedPersons; and are not located or incorporated in a Prohibited Territory.
12.1 Either Party (Non-Defaulting Party) may terminate this Agreement immediately by written notice to the other Party (Defaulting Party):
(a) if the Defaulting Party fails to pay any amount due under this Agreement within 30 Business Days of receipt of notification of such failure from the Non-Defaulting Party;
(b) if the Defaulting Party commits a material breach of this Agreement and if the breach is capable of remedy, fails to remedy the breach within 60 Business Days of receipt of notification of such breach from the Non-Defaulting Party;
(c) if the Defaulting Party ceases to trade or carry on its business for more than 30 consecutive Business Days;
(d) if the Defaulting Party undergoes an Event of Insolvency; or
(e) On the occurrence of a Force Majeure Event subject to and in accordance with Clause 14.2below.
12.2 The Seller may terminate this Agreement (in whole or in part) immediately at any time by giving by written notice to the Customer if the Customer is in breach of its warranty under Clause 12.3 above.
13 Force Majeure
13.1 A Party shall not be deemed to be in breach of this Agreement if that Party (the Affected Party) is unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event.
13.2 Upon occurrence of any Force Majeure Event, the Affected Party shall give notice to the other Party (Non-Affected Party) and provide details relating to the Force Majeure Event. The Parties shall collaborate to overcome the Force Majeure Event and shall at their respective cost, mitigate adverse consequences of non-performance of the Affected Party’s obligations under this Agreement. If the Affected Party is unable to overcome the Force Majeure Event within thirty (30) Business Days or such period of time as agreed between the Parties, either Party may terminate this Agreement by giving prior written notice to the other Party.
13.3 The Seller is released from its obligations and efforts included in the Agreement, including to deliver the Products on the original delivery date, and is allowed to extend the date of delivery, if a Force Majeure Event prevents it from performing the Agreement. Should such Force Majeure Event continue to prevent the Seller from performing the Agreement, the Seller may terminate the Agreement without any compensation being due.
14 Anticipatory breach
14.1 In the cases provided for by law, or in the event of the Customer’s non-performance, defective performance or delay in performance of one or more of its obligations under the Agreement, including the provisions of these General Terms and Conditions, or if there is serious doubt as to whether the Customer will be able to comply with its contractual obligations to the Seller, or in the event of the Customer’s insolvency, suspension of payments, complete or partial stoppage of work, liquidation or the transfer or encumbrance of its business, including the transfer or pledging of an important part of its accounts receivable, or if any items of property belonging to the Customer are seized by way of provisional seizure or in execution of judgment, the Seller shall have the right, without notice of default or judicial intervention, either to terminate (wholly or partially) or suspend the execution of the Agreement, such without the Seller being liable to any compensation or guarantee, and without prejudice to any of its other rights and remedies available.
15 Suspension and termination; consequences
15.1 In the event that the Seller suspends fulfilment of its obligations, it shall have the right or, at the end of the suspension period, shall be obliged to decide whether to perform the Agreement or to wholly or partially terminate it.
15.2 In case of suspension or termination pursuant to the provisions of the preceding sub-clause, the agreed price shall be due and payable forthwith under deduction of the costs saved by the Seller because of the suspension. In case of termination, the Customer shall furthermore be obliged, after payment of the amount that is due pursuant to the preceding sentence, to take possession of the Products to which the payment relates, failing which the Seller shall have the right to cause the Products to be stored at the risk and expense of the Customer, or to sell them at the expense of the Customer.
15.3 In the event that the Customer returns the Products it has received from the Seller after the Agreement has been terminated, the return shall at all times be at the risk and expense of the Customer until the Seller has taken possession of the Products.
16 Effect of Termination
Upon expiry or termination of this Agreement (in whole or in part), each Party shall immediately cease to use and return to the other Party, the other Party’s IPR and Confidential Information provided under this Agreement.
17.1 The Seller may (but the Customer may not) assign or sub-contract its rights or delegate any of its obligations under this Agreement without prior written consent of the Customer.
17.2 This Agreement contains a complete statement of all the arrangements between the Parties regarding its subject matter and supersedes any previous arrangement whether oral or in writing. The failure of either Party to insist upon strict adherence to any term of this Agreement shall not be construed as a waiver or deprive that Party of the right thereafter to insist upon strict adherence to any term of this Agreement (including without limitation the right to seek liquidated damages or take legal action).
17.3 If any provisions of this Agreement shall be construed to be invalid or unenforceable, it or they shall not affect the legality, validity and enforceability of the other provisions of this Agreement. The illegal or invalid provision shall be deleted from this Agreement and no longer incorporated as a term of this Agreement but all other provisions of this Agreement shall remain in effect.
17.4 Neither Party shall be considered as or hold itself out to be any agent of the other Party and neither Party may act or bind the other Party in any dealings with a third party. Nothing in this Agreement (or any arrangement contemplated by it) is or shall be deemed to constitute a partnership or to establish an economic entity of any form between the Parties.
17.5 Should there be any inconsistency between the English version and any other translation of these General Terms and Conditions, the English version shall prevail.
17.6 Clause 6 (Intellectual Property Rights), Clause 7 (Privacy), Clause 8 (Confidentiality), Clause 9 (Indemnity), Clause 10 (Seller’s Liability), Clause 11 (Group Policies), Clause 12(Representations and Warranties) and Clause 17 (Effect of Termination) of the Legal Terms in this GTC and terms of the Agreement relating to restrictions on the use, sale, distribution and/or supply of the Product (if any) shall survive the expiry or termination of this Agreement.
17.7 All notices, requests, demands and other communications which may be given or are required to be given under the Agreement shall be in writing.
17.8 Except as provided in Clause 18.9 below, a person or entity which is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) 2001 (Third Parties Act) to enforce or enjoy the benefits of this Agreement.
17.9 The Seller and its Affiliated Companies (collectively Third Parties) may enforce the terms and conditions of this Agreement; and shall have the benefit of those provisions in this Agreement which are, or are stated to be, for their benefit, subject to and in accordance with the provisions of the Third Parties Act.
The Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
19 Governing Law and Dispute Resolution
19.1 This Agreement shall be governed and construed in accordance with the laws of Singapore.
19.2 Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre (the SIAC) in accordance with the Arbitration Rules of the SIAC for the time being in force, which rules are deemed to be incorporated by reference in this Clause. The seat of the arbitration shall be Singapore and the tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.
B. TRADING TERMS
1 Purchase of Goods
1.1 Purchase Orders, Confirmed Quotations and Order Confirmations must be in writing and sent electronically unless otherwise agreed between the Parties or provided for under the SPA.
1.2 The prices quoted and/or agreed upon by the Customer shall be exclusive of (i), goods and services tax, GST, duties, import taxes, and similar or related charges and costs for certification and analysis unless the contrary is expressly provided in writing. Taxes, duties or levies will be charged where such additional taxes, duties and levies are deemed obligatory, unless the Customer prove that they are exempt from such taxes, duties and levies (ii) any loading and delivery costs, unless the contrary is agreed in the Incoterms specified in the applicable Purchase Order, Confirmed Quotation or Order Confirmation .
1.3 All prices quoted and/or agreed upon by the Seller are valid for 30 days and subject to the availability of the Product to the Seller and include the costs of the Seller's standard packing.
1.4 The Seller has the right to increase the quoted or agreed prices in the event of an increase of cost of the items, raw materials or parts obtained from third parties or an increase in wages, national insurance contributions, freight, insurance premiums or other cost components (including fluctuations in foreign exchange rates) and charges (including import and transit duties), provided that the aforementioned factors results in an increase of the quoted or agreed price of 5% or more within the period between the date of the Agreement and the time of actual delivery.
1.5 The Purchase Order or Quotation is an offer subject to the condition that the Seller accepts its terms. The Purchase Order or Quotation is deemed to be accepted by the Seller’s Order Confirmation or Confirmed Quotation as applicable or action indicating the intended fulfilment of the Purchase Order or Quotation (including without limitation delivery of the Product), whichever is earlier. Once the Seller has accepted the Purchase Order or Quotation, the Seller shall subject to the terms of this Agreement, provide the Customer with the Product specified in the Order Confirmation or Confirmed Quotation and in accordance with its terms.
1.6 The Seller may accept the Purchase Order/Quotation in part and once the Purchase Order/Quotation has been accepted, it may not be cancelled by the Customer.
1.7 Save as otherwise agreed between the Parties, title and risk of damage to the Products shall pass to the Customer upon the Date Product Received for authorized deliveries in accordance with the Incoterms specified in the confirmed Purchase Orders/Quotations.
1.8 Unless otherwise agreed in writing or specified in the Commercial Terms, the standard payment terms are thirty (30) days from Date Product Received for the invoice amount in the applicable Purchase Order.
1.9 If the Customer fails to make payment of any invoice by its due date, it shall pay late charges at the rate of five per cent (5%) per annum of the outstanding amount, to be calculated on any unpaid balances from the due date for such payment until full payment is received by the Seller. The Customer shall reimburse the Seller for all charges and expenses arising from or in connection with the Customer’s failure to make timely payment and/or late collection of the Products (including without limitation, storage and warehousing charges and foreign exchange losses). The Customer shall make payment for the charges and expenses under this Clause 1.9, within thirty (30) days of the date of the Seller’s invoice. In addition to any rights and remedies that the Seller may have under this Agreement, the Seller may suspend delivery of the Products until the outstanding amounts have been fully paid by the Customer.
1.10 If the Seller has good reason to believe that the Customer will not fulfil its obligations, the Seller shall have the right to require the Customer to provide an amount as security for its payment obligations which the Seller deems sufficient, before the Seller commences or continues performance of the Agreement. The Seller has the right to suspend performance of its obligations until the Customer has given such security.
1.11 The Seller has the right to set-off any amounts which the Customer or any company affiliated with the Customer owes the Seller (or any party affiliated with the Seller), by any amounts which the Seller owes the Customer or any company affiliated with it, regardless of whether these payments are due or not.
1.12 The Customer shall compensate the Seller for any judicial or extrajudicial costs, including extrajudicial collection costs and costs of legal assistance which the Seller incurs as a result of the Customer’s non-fulfilment or late or inadequate fulfilment of its obligations.
2 Delivery and Shipping
2.1 The interpretation of the terms and conditions of delivery shall be governed by the edition of the Incoterms issued by the International Chamber of Commerce that was the most recent at the time of the Agreement. Each Party shall ensure that it complies with the Incoterms specified in the Agreement.
2.2 The Seller shall ensure that the Product is appropriately packed, labelled and ticketed (if required) in accordance with the Packaging Specifications with the required accompanying Shipping Documents prior to and during delivery and dispatch. The Seller accepts no liability for any changes made to Packaging Specifications unless previously agreed in writing.
2.3 Unless Alternative Shipping Terms, the Seller shall deliver the Product as specified in theConfirmed Quotation or Order Confirmation.
2.4 If Alternative Shipping Terms are specified, the Seller must deliver the Product as specified in these terms and [title and] risk to the Product shall pass to the Customer in accordance with the Incoterms specified in such Alternative Shipping Terms and the terms of these GTC. Products must be delivered by Date Product Received specified Confirmed Quotation or Order Confirmation.
2.5 The delivery period (Delivery Period) shall commence on the date of the Agreement is entered into, and end on the Date Product Received.
2.6 The Seller shall use its best efforts to deliver the Products to the Customer by the Date Product Received, it being understood that the Date Product Received will be the Seller's reasonable estimate of when the Products will be delivered. Time for delivery shall not be of the essence and while every reasonable effort will be made to comply with such dates. Compliance is not guaranteed, and the Customer shall have no right to damages or to terminate the Agreement for failure for any cause to meet any delivery date stated.
2.7 Delivery Delay
(a) If the Seller anticipates that there will be a delay in the delivery of the Products such that the delivery will take place beyond the Delivery Period (Delivery Delay), it shall provide prior notice by email to the authorised representative of the Customer to notify Customer of the Delivery Delay and the new Date Product Received.
(b) If the Seller fails to make the Product available to satisfy the specified Incoterms and meet the Date Product Received specified in the Purchase Order (save and except where the Date Product Received has been extended as agreed between the Parties or where such failure by the Seller was due to a Force Majeure Event), the Parties may mutually decide to: (i) cancel the whole or any part of the Purchase Order; or (ii) agree in writing to extend Delivery Period; or (iii) reject the Product not received on time.
(c) The Customer shall not be entitled to any other remedies in relation to the Delivery Delayor any failure referred to in Clause 2.7(b) above. If the Customer agrees to any amendment to the dates specified in the Confirmed Quotation or Order Confirmation such amended dates shall for the purposes of the delayed receipt be deemed to be the applicable dates for the order.
2.8 The Seller assumes no liability for, and Customer waives any claims based on, loss, damage, or consequential damages due to Delivery Delays.
2.9 The Seller shall at all times be entitled to make partial deliveries, unless expressly agreed otherwise.
2.10 Upon the Customer’s written request with reasonable prior notice, the Seller shall prepare and provide to the Customer periodic reports tracking purchases or deliveries (including the types, quantity and price of the Products).
3.1 The Products are transported at the expense and risk of the Customer, unless expressly agreed in writing otherwise. Any claims for missing or damaged Products must be made by the Customer against its own insurance provider.
3.2 All customs duties, freight, insurance and other shipping expenses from the delivery point, as well as any other special packing expenses requested by the Customer, shall be borne by the Customer. The Customer agrees to comply with all import formalities pertaining to shipment of units of the Products.
3.3 The Seller shall not be responsible for documents (or their use by the Customer) which are provided by the Seller for the transport of the Products to the destination.
3.4 At the request of the Seller, the Customer shall immediately provide all the necessary security for the documents which are required for the transport of the Products to the destination.
3.5 In the event that circumstances beyond the Seller's control occur which make transport to or (part of) delivery at the agreed place impossible, or if the Customer does not take delivery of the Products, the Seller have the right at its option to take the Products back or to store them or cause them to be stored at the expense and risk of the Customer. The costs of return shipment and storage shall be payable by the Customer, and the Customer shall be obliged to fulfil its obligations to the Seller as if delivery has taken place.
4 Defective Product
4.1 The Customer may inspect the Product and notify the Seller in writing within three (3) BusinessDays after the Date Product Received if the Product is identified to be a Defective Product; failing which the Customer shall be deemed to have accepted the Product and shall not be entitled to reject such Product and to any remedies in relation thereto.
4.2 If the Customer notifies the Seller that the Product is a Defective Product, the Seller may inspect and test the Product at its sole cost to ascertain, whether or not, the Product is defective or if Seller deems necessary, appoint an independent third party agreed by the Parties to inspect and/or test the Product. The cost of such engagement shall be borne by the Seller unless it is determined that the Product delivered by Seller is not a Defective Product in which case the Customer shall bear such costs. Upon verification of any defect by the Seller or independent third party, the Customer may reject and return any Defective Product in accordance with Clause 4.3 below, within three (3) Business Days of the date of verification of the defect; failing which the Customer shall be deemed to have accepted the Defective Product and shall not be entitled to reject such Defective Product and to any remedies in relation thereto.
4.3 If Customer has identified a Product as a Defective Product and such defect has been verified by the Seller or independent third party, the Seller shall its sole cost (including without limitation bearing import/export costs and taxes), within a reasonable period, provide the Product with the Product Defect rectified to the reasonable satisfaction of the Customer in which event the Sellershall pay all related costs (including without limitation import/export costs and taxes) for the transportation and redelivery of the Product to the Customer or its representative or end customer.
4.4 The Customer shall not be entitled to any other remedies in relation to Defective Products save and except for those set out in Clause 4.3 above.
4.5 If the Customer rejects a Product in accordance with this Clause 4 and such Product has been delivered to the Customer, the Customer shall make the Product available for collection from the Customer for a period of fourteen (14) calendar days. The Customer shall not sell or dispose of such Product unless agreed by the Seller. If the Customer sells or disposes of the Product, the Customer shall be liable to the Seller for the proceeds of sale or the cost of such Product as notified by the Seller to the Customer.
4.6 The Seller may, at the Customer’s request, arrange for storage, insurance and return of Product at the Customer’s sole cost, liability and risk.
4.7 The Customer may not enforce any rights relating to defects against the Seller if it can also enforce rights relating to these defects directly against the manufacturer.
5 Invoicing for Purchase Orders
5.1 The Seller may issue one or more separate invoices for each Confirmed Quotation or OrderConfirmation.
5.2 The Customer shall make payment of each invoice for the Products in accordance with its terms and the terms of this Agreement and unless otherwise agreed in writing by the Seller, the Customer shall not set off amounts owed to the Customer by the Seller under this Agreement against any amounts due on invoices from the Seller or monies owed to the Seller. Notwithstanding that the Customer believes it has a rightful claim against the Seller with regard to the Seller's performance of the Agreement, the Customer shall not be released from its obligation to pay all invoices in the agreed manner.
5.3 The Parties may mutually agree to change the agreed currency for payments for a particular Confirmed Quotation or Order Confirmation.