These standard terms for the sale of goods by the seller (‘Goods’) and services related to Goods and rendered by the seller (‘Services’) shall apply exclusively. Differing or contrary terms shall not apply except where expressly agreed upon in writing.
These terms shall also govern all future transactions between the parties and shall also apply if the seller delivers despite its knowledge of differing or contrary terms.
2. Quotations, Orders and Specifications
No order submitted by the buyer which constitutes an offer shall be accepted, or deemed to be ac-cepted, by the seller unless confirmed in writing by the seller within 14 days after submittal.
The quantities, qualities, descriptions and specifications of Goods and Services (collectively, ‘Specifi-cations’) shall be those set out in the seller’s quotation (if accepted by the buyer) or the buyer’s order (if accepted by the seller).
Any Specifications shall be confidential and must not be made available to third parties.
The buyer shall be responsible to the seller for ensuring the accuracy of an order submitted, and for giving the seller all necessary information and sufficient time to perform the Contract.
The seller reserves the right to make any changes to Specifications which are required to comply with any applicable legal requirement or, where Goods are to be supplied according to the seller’s Specifi-cations, which do not materially affect their quality or performance.
In the case of conflict, the seller’s quotation shall prevail over these terms.
3. Prices; Taxes
The price of Goods and Services shall be the seller’s quoted price or, where no price has been quoted, the price listed in the seller’s published price list as at the date of acceptance of the order.
Prices are ex works (Incoterms 2010), exclusive of Goods and Services Tax or similar taxes if applica-ble, and exclusive of costs for packaging, except as otherwise expressly agreed upon.
The seller reserves the right, by giving notice to the buyer at any time before delivery, to increase the price of Goods or Services to reflect an increase of the seller’s costs due to external factors beyond the control of the seller (such as foreign exchange fluctuation,
currency regulation, alteration of duties, significant increase in material cost or other costs of manufacture), or to change delivery dates.
Any tax, duty, fee or charge imposed by any governmental or other taxing authority shall be paid by the buyer in addition to the price, except where the buyer provides the seller with a valid tax exemp-tion certificate in time.
The price of Goods and Services is due and payable nett within 30 days from the receipt of the seller’s invoice. If payment is not made by its due date, without prejudice to any other right or remedy avail-able to the seller, the seller shall at its discretion be entitled to cancel the order or suspend any fur-ther deliveries or services to the buyer, and to charge interest in the amount of 8 per cent per year, or part thereof, until full payment is made.
5. Offset; Right of Retention
The buyer shall be entitled to offset only insofar as the buyer’s counterclaim is acknowledged, undis-puted or assessed in a legally binding judgement or award. The buyer shall be entitled to claim a right of retention only to the extent such right is based on the same order.
6. Delivery; Packaging, Pre-delivery Inspection
Delivery of Goods and Services shall be conditional upon timely and proper performance of all duties of the buyer.
Goods shall be delivered packed in an environment which follows, uncertified, US Federal Standard 209E class 10,000. The packaging shall be equipped with three-dimensional impact indicators or impact labels to reveal mishandling during the delivery process.
All deliveries shall be made by way of the buyer collecting the Goods or receiving the Services, respec-tively, at the seller’s premises after the seller has notified the buyer the Goods are ready for collection or the Services are ready to be received, respectively. If the seller has agreed to deliver to a different place, such delivery shall be made by way of the seller delivering the Goods and Services to that place after the seller has notified the buyer of such delivery.
Before the seller notifies the buyer, the Goods are ready for delivery, the seller shall call on the buyer to conduct an inspection of the Goods at the seller’s premises (‘Pre-Delivery Inspection’). The Pre-Delivery Inspection shall take place at least seven days before the delivery of the Goods as notified by the seller. During the Pre-Delivery Inspection the buyer shall examine the Goods for defects in materi-al and workmanship, nonconformity with Specifications and, to the extent detailed designs have been furnished by the buyer, design defects. If the buyer fails to conduct the Pre-Delivery Inspection or to trace any of the aforesaid defects or nonconformity, it shall be presumed that the Goods were free of defects and conforming to Specifications upon delivery.
If the buyer fails to accept delivery on the due date, it shall pay the price as if the Goods and Services had been delivered. The seller shall arrange for the return consignment, as the case may be, and the storage of the Goods, each at the risk and cost of the buyer.
In case of default in acceptance or other breach of duties to cooperate by the buyer, without preju-dice to any other right or remedy available to the seller, the seller shall be entitled to claim the result-ing damage including additional expenses, if any. In this case, the risk of loss or damage to the Goods passes to the buyer at the time of such default or breach.
7. Passing of Risk
Risk of damage to or loss of Goods shall pass to the buyer as follows: (i) in case of Goods to be deliv-ered at the seller’s premises, at the time the seller notifies the buyer the Goods are ready for collec-tion; (ii) in case of Goods to be delivered to a different place, upon dispatch.
8. Intellectual Property Rights
Nothing in the Contract will affect the rights (including intellectual property rights) in documents, materials, data, proprietary software (and the media on which they are each recorded), which are owned by the seller at the date of the Contract or which are subsequently created by the seller inde-pendently of the Contract, or which are subsequently created by the seller as a result of performing services to the buyer (‘Supplier Materials’). All such rights are and shall remain vested in the seller.
To the extent that Supplier Materials are used or incorporated into the Services or any part of the Goods, the parties acknowledge and
agree that the buyer is licensed to use the same upon the terms set out as follows.
The seller hereby grants to the buyer a royalty-free, site (place of initial equipment installation) li-cence, revocable only for breach by the buyer of the terms of the Contract, to use the Supplier Mate-rials solely to the extent necessary to use the results of Services. The buyer will not use the Supplier Materials for any other purpose; will not modify or reverse-engineer or take any similar action in rela-tion to any propriety software of the seller; may sub-licence its affiliates to use the Supplier Materials on the terms of this clause and provided that the buyer is liable for any breaches by them of such terms, but will not otherwise assign, sub-licence or deal with the Supplier Materials; hereby assigns to the seller, on their creation, all intellectual property rights which arise or are created by any use by it of, or work done by it on, the Supplier Materials or the results of the Services.
9. Further Rights and Duties Relating to Goods
Notwithstanding delivery and the passing of risk in Goods or any other term and without prejudice to any other right or remedy available to the seller, the seller shall retain title to the Goods until it has received all payments for them in full. In case of breach of Contract by the buyer including default in payment, the seller shall have (i) a lien on the Goods or right to retain them for the price while the seller is in possession of them; (ii) in case of the insolvency of the buyer, a right of stopping the Goods in transit after the seller has parted with the possession of them; (iii) a right of re-sale as limited by the Sale of Goods Act; (iv) a right of withholding delivery similar to and co-extensive with a seller’s rights of lien or retention and stoppage in transit under the Sale of Goods Act where the property has passed to the buyer.
As long as the seller retains title to Goods delivered to the buyer, the buyer shall hold these Goods in trust for the seller, store them properly and handle them with due care, maintain suitable insurance for and, to the extent necessary, service and maintain them.
As long as the seller retains title to Goods, the buyer shall immediately inform the seller in writing if these Goods become subject to rights of third parties or other encumbrances.
Any warranty for Goods and Services by the seller shall be conditional upon timely and proper per-formance of all duties of the buyer and be limited in scope as set out in this clause.
The seller warrants to the buyer that the Goods delivered will be free from defects in material and workmanship and conforming to Specifications.
The seller warrants to the buyer that, to the extent detailed designs have not been furnished by the buyer, the Goods delivered will be free from design defects and fit for all purposes for which goods of the kind in question are commonly supplied.
The seller warrants to the buyer that Services will be free from defects in workmanship.
Any claim for breach of this warranty must be made to the seller within twelve months from the date of the delivery, which period shall not be extended by any act of the seller. The buyer must make the relevant Goods available for correction at the buyer’s premises or return them after obtaining prior written authorisation from the seller. The buyer shall bear the risk of loss or damage during transit and all expenses incurred by the seller for unauthorised shipment. Unless otherwise agreed in writing, the buyer’s return of Goods constitutes the buyer’s authorisation for the seller to repair the Goods and to invoice the buyer for any reasonable cost of repair, labour, parts and freight on Goods not cov-ered by the warranty.
The seller’s liability under the warranty for Goods is limited, at the seller’s option, to repair or replace with new or ‘like new’ equivalent goods. The seller shall hold all right, title and interest in and to any goods replaced under this warranty (which shall be deemed to be Goods).
Any warranty service is limited to the seller’s standard working hours (9:00 am to 6:00 pm, Monday through Friday).
The above warranty shall not (i) cover any defect in or nonconformity of Goods arising from the buy-er’s Specifications, (ii) cover any defect in or nonconformity of Goods caused, in whole or in part, by improper or unauthorised installation or maintenance, misuse, neglect or any cause other than ordi-nary commercial application, by events or conditions beyond the seller’s reasonable control, or by any acts or omissions of the buyer including modifications of Goods without the seller’s prior written agreement or against Specifications or the seller’s instructions; nor (iii) extend
to parts, materials or equipment manufactured by or on behalf of the buyer, unless such warranty is given by the manufac-turer to the seller.
The seller shall not be liable for cost, loss, damages, claims or liabilities due to non-delivery of Goods or non-performance of Services caused by events beyond its reasonable control, in which case the seller may, at its sole option, extend the delivery date for a time equal to the period of the delay and/or allocate its available resources among its customers when it is unable to supply its total de-mands and/or commitments.
Any liability of the seller shall be limited to intentional acts or acts of gross negligence, subject to applicable law. The seller shall not be liable for damage due to acts of ordinary negligence nor for con-sequential damages or damages for economic loss, loss of savings or interest or damage resulting from third party claims against the buyer.
If Goods are to be manufactured or any process is to be applied to Goods by the seller in accordance with Specifications submitted by the buyer, the buyer shall be liable for and indemnify the seller from all loss, damages, costs and expenses awarded against or incurred by the seller in connection with or paid or agreed to be paid by the seller in settlement of any claim for infringement of any patent, copy-right, design, trade mark or other industrial or intellectual property rights of any other person which results from the seller’s use of the buyer’s Specifications.
The buyer shall comply with and indemnify the seller from all liability arising from corrupt activity, otherwise unethical practices or breach of export control or foreign trade laws applicable to the Con-tract or to Goods or Services the buyer obtains under the Contract by the buyer or its representatives.
Neither party shall assign or otherwise transfer any of its rights or obligations hereunder without pri-or written consent of the other, except that the seller may assign its right to receive payment, assign the Contract to an affiliated, subsidiary or successor company and/or subcontract the provision of services.
If any part of the Contract is found by a court, tribunal or other administrative body of competent jurisdiction to be unenforceable or invalid for any reason, that provision is to be severed from the Contract and the remaining provisions of the Contract will otherwise remain in full force.
No delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
The seller’s quotation (if accepted by the buyer) or the buyer’s order (if accepted by the seller) togeth-er with these terms constitute the entire agreement between the parties in relation to its subject matter (collectively, ‘Contract’). No other terms apply.
13. Choice of Law; Place of Jurisdiction
This contract shall be governed by and construed in accordance with Singapore law (excluding the United Nations Convention on Contracts for the International Sale of Goods). Each party agrees to submit to the jurisdiction of the courts of Singapore. In addition, the seller shall have the right to bring an action before a court at the buyer’s seat or principal place of business or before any other court competent for the place of performance of the buyer’s obligation in question.