I. Interpretation
1.1 In these conditions: “Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller. “GOODS” means the goods (including any instalment of the goods or any part for them) which the Seller is to supply in accordance with these terms and conditions. “Seller” means EMUGE-Franken Singapore Pte. Ltd., a private limited company incorporated in Singapore (UEN no.: 202040258C). “Conditions” means the standard terms and conditions of sale herein set out and (unless the content otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller. “Contract” means the contract for the purchase and sale of the Goods. “Writing” includes telex, cable, facsimile transmission and comparable means of communication.
1.2 Any reference in these Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.
II. Basis of the Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer by way of a written order from the Buyer to the Seller. Each order so accepted or confirmed by the Seller (such accepted order or confirmed order shall be hereinafter known as a “Order Confirmation”) shall be upon these Conditions and shall constitute an individual legally binding Contract between the Buyer and the Seller. These Conditions shall override any contrary, different or additional terms (if any) contained on referred to in the Buyer’s order form or other documents or correspondence from the Buyer, and no addition, alteration or substitution of these terms will bind the Seller or form part of the Contract.
2.2 No variation to these Conditions shall be binding unless agreed in Writing between the authorised representative of the Buyer and Seller.
2.3 The Seller’s employees or agents are not authorised to make any representations concerning the Goods unless confirmed by an authorised personnel the Seller in writing. In entering the Contract, the Buyer acknowledges that it does not rely on, and waives any claim for breach of, any such representations which are not so confirmed.
2.4 Any advice or recommendation given by the Seller or its employees or agents to the Buyer or its employees or agents as to the storage, application or use of the Goods which is not confirmed in Writing by the Seller is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller shall not be liable for any such advice or recommendation which is not so confirmed in Writing.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
III. Orders and Specifications
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in Writing by the Seller’s authorised representative by way of an Order Confirmation.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order, (including any applicable specification), submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation accepted by the Buyer and as confirmed by the Seller in the Seller’s Order Confirmation.
3.4 The Seller retains all rights of whatsoever nature, including ownership rights and intellectual property rights, in illustrations, drawings and other documents supplied by the Seller to the Buyer for the purposes of the agreement between them and the Buyer shall treat the same as confidential and not disclose it to any third party.
3.5 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification submitted by the Buyer, the Buyer shall indemnify the Seller against 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, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’s use of the specifications provided by the Buyer to the Seller.
3.6 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable statutory or EC requirements or, where the Goods are to be supplied to the Seller’s specification, which do not materially affect their quality or performance.
3.7 No order which has been accepted or confirmed by the Seller may be cancelled by the Buyer except with the agreement in Writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the cost of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
3,8 For any order of special tools by the Buyer, the Buyer here agrees that the quantity of tools delivered may exceed or be lesser than the ordered quantity by 10%, but at the minimum by at least 2 pieces.
IV. Price of the Goods
4.1 The prices of the Goods shall be the Seller’s quoted price. All prices quoted are valid for 30 days only or until earlier acceptance by the Buyer. If the Buyer has not accepted the quoted price within 30 days’ or such quote, the quote shall become invalid and the Seller shall, upon the request of the Buyer, provide a new price quote to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), to make any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or to delay delivery of the Goods caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller and unless otherwise agreed in Writing between the Buyer and the Seller, all prices are given by the Seller on a Delivered at Place (DAP) ® Incoterms 2010 basis.
4.4 All samples supplied by the Seller will be invoiced to the Buyer at the price agreed.
4.5 The Buyer shall be additionally liable to pay the Seller the applicable Goods and Services Tax which the Seller shall invoice to the Seller as part of the price of the Goods.
4.6 The Seller reserves the right to charge the cost of pallets and returnable containers to the Buyer in addition to the price of the Goods, but full credit will be given to the Buyer provided they are returned undamaged to the Seller before the due payment date.
V. Terms of Payment
5.1 Subject to any special terms agreed in Writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or prior to delivery of the Goods. Unless otherwise agreed in writing between the Buyer and the Seller, the price of the Goods shall be on a DAP Incoterms ® 2010 basis, in accordance with Article IV above.
5.2 Unless any special terms are agreed payment shall be due within 30 days from the date of invoice.
5.3 The Buyer shall pay the price of the Goods at the date agreed between the Seller and the Buyer and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request from the Buyer.
5.4 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:
5.4.1 Cancel the Contract and upon such cancellation the Contract shall be terminated or suspend any further deliveries to the Buyer;
5.4.2 Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer); and
5.4.3 Charge the Buyer interest (both before and after any judgement) on the amount unpaid, at the rate of 4% per annum above HSBC base rate from time to time, until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest).
5.5. The Buyer shall not be entitled to set off any sums claimed from the Seller under this contract or any other agreement between the parties from the sums to be paid for the Goods.
VI. Delivery
6.1 Unless otherwise agreed in writing between the Buyer and the Seller, delivery of the goods shall be made by the Seller delivering the Goods to the Buyer at the agreed named place based on a DAP (Delivered at Place) basis ® Incoterms 2010.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer.
6.3 Where delivery of the Goods is to be made by the Seller in bulk, the Seller reserves the right to deliver up to 10% more or 10% less than the quantity ordered without any adjustment in the price, and the quantity so delivered shall be deemed to be the quantity ordered.
6.4 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.5 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market)of similar goods to replace those not delivered over the price of the Goods.
6.6 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the buyer’s reasonable control or by reason of the Seller’s fault) then, without prejudice to any other right or remedy available to the Seller, the Seller may:
6.6.1 Store the goods until actual delivery and charge the Buyer for the reasonable cost (including insurance) of storage; or
6.6.2 Sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the price.
VII. Risk and Property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery of the Goods according to the relevant Incoterm ® 2010 stated in the Order Confirmation issued by the Buyer to the Seller.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other amounts owing by the Buyer to the Seller on any account whatsoever.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the goods as the Seller’s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any monies or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Should the Goods be converted into a new product whether or not such conversion involved the admixture of any goods or thing whatsoever the conversion shall be deemed to have been affected on behalf of the Seller and any proceeds from the disposal of such new product shall be held on trust for the Seller absolutely.
7.5 Until such time as the property in the Goods passes to the Buyer( and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods and the Buyer shall procure that the Seller shall have the necessary access to such premises.
7.6 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable. Further, the Buyer shall procure that the relevant assignment agreements or other documents are entered into to ensure that such monies shall be paid to the Seller.
7.7 The Buyer hereby grants the Seller an irrevocable license to enter upon the Buyer’s premises in order to repossess any of the Goods pursuant to this clause.
VIII. Warranties and Liability
8.1 Subject to the conditions set out below the Seller warrants that the Goods will correspond with their specification (as stated in the Order Confirmation with reference to the relevant brochure, catalogue and/or website referred to) at the time of delivery and will be free from defects in material and workmanship.
8.2 The above warranty is given by the Seller subject to the following conditions:
8.2.1 the Seller shall be under no liability in respect of any defect in the Goods arising from any drawing, design or specification supplied by the Buyer.
8.2.2 the Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval.
8.2.3 the Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid in full by the due date for payment.
8.2.4 the above warranty does not extend to parts, materials or equipment not manufactured by the Seller, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to the Seller.
8.3 Subject as expressly provided in these Conditions, and except where the goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act. Cap. 396, all warranties, conditions or other terms implied by the statue or common law are excluded to the fullest extent permitted by law.
8.4 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 7 days from the date of delivery or (whether the defect or failure was not apparent on reasonable inspection) within 7 days after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.5 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge, or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.6 Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract for any consequential loss or damage (whether for loss of profit or otherwise), cost, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in, or any failure to perform, any of the Seller’s obligation in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. If such delay or failure was due to cause beyond the Seller’s reasonable control, the Seller shall be entitled to either delayed delivery of the Goods as agreed with the Buyer or if such cause beyond the Seller’s reasonable control persists for more than 60 calendar days, the Seller shall be entitled to terminate the relevant Contract by giving prior written notice to the Buyer without any further liability or obligations to the Buyer. Without prejudice to the generality of the foregoing, the following shall be regarded as cause beyond the Seller’s reasonable control: a) act of God, pandemic or epidemic, explosion, flood, tempest, fire or accident; b) war or threat of war, sabotage, insurrection, civil disturbance or requisition; c) act, restrictions, regulations, bye-laws, prohibitions or measure of any kind on the part of any governmental parliamentary or local authority; d) import or export regulations or embargoes; e) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party); f) difficulties in obtaining raw materials, labour, fuel parts or machinery; g) power failure or breakdown in machinery.
IX. Indemnity
9.1 If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes the patent, copyright, design, trade mark or their industrial or intellectual property rights of any other person, the Seller shall indemnify the Buyer against all loss, damages, costs and expenses awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
9.1.1 the Seller is given full control of any proceedings or negotiations in connection with any such claim;
9.1.2 the Buyer shall give the Seller all reasonable assistance for the purposes of any such proceedings or negotiations;
9.1.3 except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the consent of the Seller (which shall not be unreasonably withheld);
9.1.4 the Buyer shall not do anything which would or might vitiate any policy of insurance or insurance cover which the Buyer may have in relation to such infringement and this indemnity shall not apply to the extent that the Buyer may have insurance in relation to such infringement, and this indemnity shall not apply to the extent that the Buyer recovers any sums under any such policy or cover (which the Buyer shall use its best endeavours to do);
9.1.5 the Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to the Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by, any other party in respect of any such claim; and
9.1.6 without prejudice to any duty of the Buyer to take such steps as the Seller shall be entitled to require the Buyer to take such steps as the Seller may reasonably require to mitigate or reduce any such loss, damages, cost or expenses for which the Seller is liable to indemnify the Buyer under this clause.
X. Insolvency of Buyer
10.1 This clause applies if:
10.1.1 the Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being and individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purposes of solvent amalgamation or reconstruction); or
10.1.2 an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer;
10.1.3 the Buyer ceases, or threatens to cease, to carry out business; or
10.1.4 the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
10.2. If this clause applies then without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract upon which cancellation such Contract shall be terminated or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
XI. Special Terms for Machining Orders
(Finishing, Redressing, Redesigning & Reconditioning of Tools)
The following terms and conditions shall be applicable to this agreement for machining orders and shall supplement or replace such terms of these Conditions as will necessarily appear from the context:
11.1 Invoices shall be due and payable immediately and without deduction.
11.2 The Seller shall not be liable for the properties of the material provided to him. The Seller’s claim for remuneration shall not be affected.
11.3 In the event of the materials becoming unserviceable during the machining process through the gross negligence of the Seller, the Seller’sclaims for remuneration as well as any claims for compensation by the Buyer shall be excluded. Liability for defects shall be excluded.
XII. Export Items
12.1 In these conditions “Incoterms” means the International Rules for the Interpretation of Trade Terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Conditions, but if there is any conflict between the provision of Incoterms and these Conditions, the latter shall prevail.
12.2 Where the Goods are supplied for export from Singapore, the provisions of this clause XII shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these conditions.
12.3 Unless otherwise agreed in Writing between the Buyer and the Seller, the Goods shall be delivered ex-works (designated location in Singapore) ® Incoterms 2010 by air or sea port of shipment and as more specifically stated in the Order Confirmation. The Seller shall be under no obligation to give notice under section 32(3) of the Sale of Goods Act 1979 (as amended).
XIII. General
13.1 The Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such member shall be deemed to be the act or omission of the Seller.
13.2 Any notice required or permitted to be given by either party to the other under these conditions shall be in Writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving notice.
13.3 No Waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
13.4 In any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall remain valid and enforceable and shall not be affected thereby.
13.5 The Contract shall be governed by the laws of the Republic of Singapore and the parties hereby agree to submit to the non-exclusive jurisdiction of the Singapore courts. For the avoidance of doubt, the United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not be applicable to these Conditions.
