Standard Sales Terms and Conditions
1. DEFINITIONS AND INTERPRETATION
1.1 In these general sales and delivery terms (“Terms”), the following expressions shall have the meanings set out against them:-
“Confidential Information” means all trade secrets and/or Information of a confidential nature furnished to a Party (the “Recipient”) by the other Party hereto or its related corporations (the “Disclosing Party”) for the purpose of these Terms and/or the matters contemplated herein, whether before or after the date hereof but does not include information which:
(i) is or becomes generally available to the public other than as a result of a disclosure by the Recipient or any of its servants or agents in breach of any of its duties or obligations to the Disclosing Party; or
(ii) becomes available to the Recipient otherwise than for the purpose of or in the course of performance of obligations under these Terms;
“Delivery Address” means the delivery address stated in the Quotation or such other address as the Purchaser and the Vendor may agree in writing in advance, where the Equipment is to be delivered;
“Equipment” means the machinery and/or equipment specified in the Quotation;
“GST” means Goods and Services Tax as defined in the Goods and Services Tax Act (Cap. 117A);
“Information” means information whether written or oral or any other form, including, but not limited to, documentation, training manuals, equipment manuals, operations and maintenance manuals, instruction manuals, specifications, reports, data, notes, drawings, models, patterns, samples, software, computer outputs, designs, circuit diagrams, inventions, whether patentable or not and know-how;
“Intellectual Property” means any patent, petty patent, trade mark, service mark trade, business or company name, registered design, copyright, design right, semiconductor topography or circuit board layout right, know-how, confidential information or any other similar right exercisable in any part of the world and shall include any rights to registration of such rights, whether created before or after the date of these Terms and whether existing in Singapore or otherwise;
“Purchase Price” means the consideration payable by the Purchaser to the Vendor as set out in the Quotation;
“Purchaser” means the purchaser of the Equipment as specified in the Quotation;
“Quotation” means the quotation issued by the Vendor relating to the supply of the Equipment to the Purchaser;
“Shipment Date” means the shipment date as set out in the Quotation by which the Equipment shall be shipped for delivery or such other date(s) as the Vendor and the Purchaser may agree;
“Shipment Terms” means the trade terms for shipment and delivery as set out in the Quotation and interpreted in accordance with Incoterms 2000 (as defined below); and
“Specifications” means the specifications relating to the Equipment set out in the Quotation.
“Vendor” refers to Promoter Hydraulics Pte Ltd or its successor.
All references made to trade terms herein shall be interpreted in accordance with Incoterms 2000 as published by the International Chamber of Commerce (“Incoterms 2000”).
2.1 All sales by the Vendor to the Purchaser shall be subject to these Terms and the terms set out in the relevant Quotation. In the event of conflict, the terms in the Quotation shall prevail.
2.2 The Vendor’s agents and representatives have no authority to make any oral representations, statements, warranties, conditions or agreements that conflict with these Terms or the terms of the Quotation.
2.3 Subject to the availability of adequate stocks, the Vendor shall supply the Equipment to the Purchaser in accordance with the Quotation to the best of the Vendor’s ability.
2.4 Subject to Clause 2.3 above, all orders for the Equipment are final and binding on the Purchaser.
2.5 The Purchaser shall at its own expense be responsible for obtaining and maintaining in force all licenses, permits, consents, approvals, certificates, registrations and authorisations or other requisite documents as required by any law, if any, from appropriate federal, provincial, municipal or other governmental or administrative bodies, to permit the supply of the Equipment to the Purchaser as contemplated herein.
2.6 The Vendor shall not be under any obligation to continue the supply of the Equipment and the Vendor shall have the sole and absolute discretion in determining whether to accept any order for the Equipment.
3.1 The Purchase Price for the sale and purchase of the Equipment shall be the amount set out in the Quotation.
3.2 All payments made by the Purchaser to the Vendor shall be in Singapore Dollars unless otherwise mutually agreed between the Parties in writing.
3.3 All payments by the Purchaser to the Vendor shall be made in the manner and by the date specified in the Quotation. Where payment by letter of credit is stipulated, payment must be made by confirmed irrevocable letter of credit established for the credit of the bank that the Vendor nominates, and be irrevocable, confirmed and without recourse and otherwise in the form satisfactory to the Vendor.
3.4 If the Vendor requires the Purchaser to post security for payment, the Purchaser shall post such security before the Equipment is loaded for shipment.
3.5 The Purchaser may not withhold payment or make any deduction or set-off from any amount owing to the Vendor without the Vendor’s prior written consent.
3.6 The Purchase Price is exclusive of all taxes for which the Purchaser shall be solely and additionally liable.
3.7 The Vendor will issue an invoice upon shipment of the Equipment for the Purchase Price and any GST payable thereon.
3.8 The Purchaser shall (if applicable) submit to the Vendor all documents to support
the zero rating of GST.
4. PACKAGING, PACKING AND DELIVERY
4.1 The Purchaser shall issue delivery instructions sufficiently in advance to allow the Vendor to ship and/or deliver the Equipment and/or to procure delivery and shipment based on the Shipment Terms. If the Purchaser fails to issue delivery instructions sufficiently in advance, the Vendor may issue an invoice for the Equipment on the Shipment Date and demand payment as if the Equipment had been delivered on that date.
4.2 Where delay in delivery is due to the fault of the Purchaser as a result of its failure to produce applicable documents, or for any other reason whatsoever, the Vendor shall be entitled to cancel the contract without any liability to the Purchaser or to continue delivery of the Equipment.
Should the Vendor elect to continue with the delivery of the Equipment, the Purchaser shall reimburse the following amounts to the Vendor:
(i) interest calculated at the rate of 12% per annum for the period between the Shipment Date and the date of actual shipment; and
(ii) any additional costs incurred by the Vendor as a result of the aforesaid delay including but not limited to exchange risk, storage and insurance for the Equipment.
5.1 The Purchaser shall inspect or procure the inspection of the Equipment immediately upon receipt by the Purchaser and inform the Vendor forthwith of any damage or defects in the Equipment within 7 working days. If the Purchaser can show to the Vendor’s reasonable satisfaction that such damage or defects occurred to the Equipment prior to their delivery to the Purchaser, the Vendor shall replace such damaged or defective Equipment. After this notice period, the Purchaser shall be solely liable for any damage or defects to the Equipment.
5.2 Following notification of any defects, the Vendor, its agents or employees are entitled to inspect the Equipment and the Purchaser shall provide them access to the Equipment. The Purchaser shall provide proper storage for the Equipment until inspection has taken place.
5.3 The Parties shall bear their own costs relating to the inspection of the Equipment unless it is subsequently discovered that such damage or defect arose due to the fault of the Purchaser. In such event, the Purchaser shall be solely liable for all costs related to the inspection of the Equipment and in this connection shall reimburse the Vendor all costs and expenses incurred by it in carrying out the inspection of the Equipment.
6. RISK AND TITLE
6.1 The risk of damage to or loss of the Equipment shall pass to the Purchaser in accordance with the Shipment Terms as interpreted in accordance with Incoterms 2000.
6.2 Notwithstanding anything to the contrary set out herein, the title to the Equipment shall only pass to the Purchaser upon full payment of the Purchase Price in accordance with the Quotation.
6.3 Full payment of the Price shall include, without limitation, the amount of any interest or other sum payable under the Quotation. Until title to the Equipment passes to the Purchaser, the Equipment shall be subject to the following conditions:
(i) the Vendor shall have authority to retake, sell or otherwise deal with and/or dispose of all or any part of the Equipment;
(ii) the Vendor, its agents and employees shall be entitled at any time and without prior notice to enter upon any property upon which the Vendor reasonably believes the Equipment to be stored to inspect or remove such Equipment; and
(iii) the Purchaser shall store or mark the Equipment in a manner reasonably satisfactory
to the Vendor indicating that title to the Equipment remains vested in the Vendor.
7. WARRANTIES AND LIMITATION OF LIABILITY
7.1 The Vendor does not give any warranty as to the Equipment supplied by it pursuant to the Quotation except that the Equipment conforms to the Specifications.
7.2 Without limiting the generality of the provisions of Clause 7.1, nothing in these Terms or the Quotation shall be construed as a warranty or representation that the Equipment will be free from infringement of any patent, other intellectual property right or other similar right of any third person. The Vendor shall not be required to protect, indemnify or hold harmless the Purchaser, its employees or agents against, and shall not be liable to the Purchaser, its employees or agents for, any liabilities, losses, expenses or damages which may be suffered or incurred by the Purchaser, its employees or agents as a result of infringement or any allegation thereof by any third person.
7.3 The Vendor shall not be liable to the Purchaser or any third party by reason of any implied warranty, condition or other terms or any duty at common law unless expressly stated herein for any loss or damage howsoever arising out of or in connection with the supply of the Equipment.
7.4 In no event shall the Vendor be liable for any special, consequential, incidental, punitive, exemplary or indirect losses or damages whether in contract or tort arising from the supply of the Equipment or the performance or non-performance of its obligations hereunder.
7.5 Without prejudice to the generality of the foregoing, the Vendor’s total liability to the Purchaser for any claim arising out of the Equipment supplied shall be limited to the Purchase Price.
8.1 The Purchaser may not terminate any order after the Purchaser has issued the Purchase Order.
8.2 The Vendor may cancel any order for Equipment if (a) the Purchaser commits any continuing or material breach of any Term and, in the case of such a breach which is capable of remedy, fails to remedy the same within two (2) weeks after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or (b) a Force Majeure Event (as defined in Clause 10) occurs.
8.3 In the event that an order for Equipment is cancelled by the Vendor due to a breach by the Purchaser of a Term, the Purchaser shall reimburse the Vendor for any costs incurred as a consequence of such cancellation, including without limitation, packaging and re-packaging costs, storage costs, financing costs, foreign exchange losses, loss of profits and any diminution in the value of the Equipment due to price movements.
9. Technical Advice
9.1 Where any technical advice is given by the Vendor in connection with the supply of the Equipment, no obligation or liability is assumed by the Vendor for any technical advice so given. The Purchaser accepts such technical advice entirely at its own risk based on its own judgment and not in reliance upon any warranty or representation by the Vendor.
9.2 The Vendor’s technical documentation which include, inter alia, manuals supplied in connection with the Equipment and any specifications, reports, data, notes, drawings, models, patents, designs, circuit diagrams comprises its Intellectual Property and shall remain the Intellectual Property of the Vendor at all times. The Vendor hereby grants the Purchaser a non-exclusive licence to use such Intellectual Property and the Purchaser shall not alter, modify or reproduce such documentation without the consent in writing of the Vendor.
10. FORCE MAJEURE
10.1 The Vendor shall not be liable to the Purchaser for any non-performance of its obligations hereunder if such non-performance is due to the interruption of operations of the Vendor or third parties, failure of suppliers to deliver, lack of raw material or energy, strikes, riots, walk-outs, lockouts, labour shortages, power shortages, fires, wars, acts of God, earthquakes, storms, floods, explosions, accidents, protests or demonstrations, delays in transportation, breakdown of machinery, inability to obtain necessary materials in the open market, unavailability of equipment, governmental regulations restricting normal operations, shipping delays, material adverse effect or any other reason or reasons beyond the control of and not reasonably foreseeable by the Vendor (“Force Majeure Event”).
10.2 If the delivery of the Equipment is delayed by reason of any Force Majeure Event, then the time for delivery of the Equipment shall be extended by a period of time equal in length to the period of such delay and the Purchaser shall accept such delayed delivery in full satisfaction of his rights hereunder.
Each Party hereto shall at all times maintain and cause to be maintained the confidentiality of all Confidential Information and shall not copy or use or disclose or permit the use by or disclosure to any person (other than to such Party’s related corporations and/or professional advisers) of any such Confidential Information save and to the extent that such use or disclosure is necessary:
(i) for the discharge or performance of obligations under these Terms; or
(ii) to comply with any legal or regulatory requirements applicable to it.
Each Party shall take all reasonable steps to minimise the risk of disclosure of all such Confidential Information, by ensuring that only its employees and agents whose duties will require them to possess any such information shall have access thereto, and that they shall be instructed to treat the same as confidential.
12. CONTINUING EFFECTS OF THESE TERMS
These Terms shall be binding on and shall enure to the benefit of each Party’s successors
in title and assigns.
The rights and benefits hereunder may not be assigned at law or in equity by the Purchaser without the prior written consent of the Vendor.
14. INVALIDITY AND SEVERABILITY
If any of the provisions of these Terms shall be found by any court or administrative body of competent jurisdiction to be invalid or unenforceable, the invalidity or unenforceability of such provision or provisions shall not affect the other provisions of these Terms and all provisions not affected by such invalidity or unenforceability shall remain in full force and effect. The Parties hereby agree to attempt to substitute for any invalid or unenforceable provision a valid and enforceable provision which achieves to the greatest extent possible the economic, legal and commercial objectives of the invalid or unenforceable provision.
15. WAIVER, REMEDIES AND AMENDMENTS
15.1 No failure on the part of either Party to exercise, and no delay on its part in exercising, any right or remedy under these Terms will operate as a waiver thereof, nor will any single or partial exercise of any right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. The rights and remedies provided in these Terms are cumulative and not exclusive of any other rights or remedies (whether provided by law or otherwise).
15.2 Any provision of these Terms may be amended, varied or supplemented only if the Parties so agree in writing and any provision or breach of any provision of these Terms may be waived only if the relevant Party so agrees in writing. Any waiver or consent given by the relevant Party under any provision of these Terms must also be in writing. Any such waiver or consent may be given subject to any conditions thought fit by that Party and shall be effective only in the instance and for the purpose for which it is given.
16.1 Nothing in these Terms and the terms in the Quotation shall create, or be deemed to create, a partnership or a relationship of principal and agent or any other relationship of a similar nature between the Parties.
16.2 These Terms and the terms in the Quotation set forth the entire agreement and understanding between the parties hereto in connection with the subject matter herein and supersedes and cancels in all respects all previous agreements and undertakings among the parties hereto in relation to such matters, whether written or oral.
17. GOVERNING LAW AND JURISDICTION
17.1 These Terms shall be governed by, and construed in accordance with the laws of Singapore.
17.2 The Parties hereby irrevocably submit to the non-exclusive jurisdiction of the courts of Singapore.