Terms and Conditions
TERMS AND CONDITIONS OF SALE
- AGREEMENT. This document establishes those terms and conditions under which the seller indicated on the face of this document (“Seller”) sells its products to the purchaser (“Buyer”) as and when orders are placed by Buyer and accepted by Seller. All orders are accepted subject to and incorporate these Terms and Conditions of Sale (“T&Cs”). Terms set forth on the face of this document shall prevail over any inconsistent terms herein. In the event there is a separate written agreement between the parties that conflicts with these T&Cs, the terms of the written agreement shall prevail. By placing an order with Seller, Buyer agrees to these T&Cs. These T&Cs override any different or additional terms or conditions contained in any purchase order or other document submitted by Buyer unless such different or additional terms or conditions are specifically agreed to in writing by Seller. Upon acceptance by Seller of an order, these T&Cs and this document constitute the “Agreement" between Buyer and Seller for the purchase and sale of the products set forth therein (“Products”).
- DELIVERIES. Seller shall attempt to meet requested delivery dates contained in Buyer's orders but will not be liable for failure to do so. Any time or date for delivery specified by Seller is an estimate only. Seller reserves the right to make early or installment shipments and invoice Buyer accordingly. Seller’s weights and quantities stated on the delivery note shall govern except in the case of proven error provided to Seller within seven (7) days of delivery.
- CHANGES. Buyer may not modify, cancel or otherwise alter orders after the order is in process without Seller's written consent. Any such cancellation, modification or alteration shall be subject to additional conditions as may be imposed by Seller at such time, including reimbursing Seller for any costs, expenses and losses relating to such change.
- PAYMENT. Payment terms are net 30 days from invoice date. Seller shall issue invoices upon shipment of Products. Each installment delivery constitutes a separate order with regard to payment. Payments shall be made at the direction, to the location and in the currency specified on the invoice. Any amounts unpaid after the due date shall accrue interest at a rate of 1.5% per month, or the maximum rate allowed by law, whichever is less. No part of any amount payable to Seller may be reduced due to any counterclaim, set-off, adjustment or other right which the Buyer might have against Seller or any other party. If Buyer fails to pay for any one or more shipments when due, Seller shall have the right, in addition to other remedies, to either: (a) suspend or cancel future deliveries, or (b) require cash payment on or before shipment/delivery. Should Buyer's financial viability become unsatisfactory to Seller, cash payment or satisfactory security may be required by Seller before proceeding with further Product deliveries. Buyer agrees to furnish Seller with credit information on request.
- PRICE. Unless otherwise set forth on the face of an accepted purchase order, the price for the Products shall be determined by Seller on the date of order acceptance. Seller price quotations are provisional only and Seller reserves the right to change such price at any time. Prices do not include taxes and other charges, and in some cases may not reflect materials surcharges.
- TAXES AND CHARGES. Buyer shall reimburse Seller for all taxes, excises or other charges that Seller may be required to pay to any governmental entity or collect for any governmental entity upon the production, sale, transportation, delivery or use of the Products sold hereunder.
- SHIPMENT, TITLE AND RISK OF LOSS. Seller will ship and deliver the Products in accordance with the trade term FCA, shipping point (Incoterms 2010). Title and risk of loss to Products transfers to Buyer upon delivery of the Products to the carrier at the shipping point.
- NO LICENSE. The sale of any Product hereunder does not transfer to Buyer any right or license under any patent, trademark or other intellectual property right with respect to any such Product. Seller retains ownership of all intellectual property rights to the Products sold hereunder.
- WARRANTIES. Seller warrants that at the time of delivery to Buyer, Products sold hereunder shall conform to Seller's standard written specifications for such Products. Determination of the suitability of the Products for the uses and applications contemplated by Buyer shall be the sole responsibility of Buyer. Any suggestions or recommendations made by Seller concerning uses or applications of the Products are believed to be reliable, but Seller makes no warranty or guarantee of the results to be obtained since the conditions of the use and application by Buyer and others are beyond Seller's control. Seller is not liable for claims caused by the following: 1) negligence of Buyer or third party; 2) alteration, contamination or misuse of the Product; 3) any specification or modification made at the request of Buyer; 4) Buyer's failure to follow health and safety instructions provided by Seller or in accordance with industry standards; and/or 5) Buyer's failure to comply with laws. Finally, Seller has no liability for any warranty claims: 1) submitted after expiration of the claim period; or 2) if Seller is not given reasonable opportunity to examine the Products to which the claim relates and Buyer does not return such Products to Seller upon Seller's request.
- CLAIM PERIOD; DISCLAIMER. In no event shall Buyer make a warranty claim or commence any action against Seller later than the earlier of 7 days after discovery of the breach or 6 months after delivery of the Products to which the claim relates. Buyer's failure to give Seller written notice of any claim or action within the applicable time period shall constitute an absolute and unconditional waiver of such claim or action. EXCEPT AS SET FORTH IN THESE T&Cs, SELLER MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, NO MATTER WHETHER ARISING BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND/OR AGAINST INFRINGEMENT. BUYER ASSUMES ALL RISKS RESULTING FROM THE USE OF THE PRODUCT PURCHASED, WHETHER USED SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS.
- LIMITATION OF LIABILITY. SELLER’S SOLE LIABILITY, AND BUYER’S EXCLUSIVE REMEDY AGAINST SELLER FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, IS LIMITED, AT SELLER’S ELECTION, TO: (a) SHIPMENT OF REPLACEMENT PRODUCT, (b) MODIFICATION OF THE PRODUCT, OR (c) REFUND OR ISSUANCE OF A CREDIT TO BUYER IN AN AMOUNT EQUAL TO THE PRODUCT'S PURCHASE PRICE. NOTWITHSTANDING THE FOREGOING, IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR ENHANCED DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF OPPORTUNITY OR DIMINUTION IN VALUE, RESULTING OR ARISING FROM OR IN CONNECTION WITH BREACH OF SELLER’S WARRANTIES OR THESE T&CS OR ANY CAUSE ARISING FROM OR IN CONNECTION WITH THE PRODUCT. TO THE EXTENT PERMITTED BY LAW, ANY STATUTORY REMEDIES WHICH ARE INCONSISTENT WITH THIS PROVISION ARE EXPRESSLY WAIVED BY BUYER. Product claimed to be nonconforming shall not be returned or discarded except as provided herein. In no event shall Seller be liable for any loss, damage, cost or expense attributable to any act, omission or misrepresentations by Buyer or any third party.
- BUYER OBLIGATIONS. In addition to other obligations stated herein, Buyer assumes all risk and liability for loss or damage resulting from the handling, use, or application of the Product and containers delivered hereunder. Buyer agrees to familiarize itself and keep informed (without reliance on Seller) concerning any hazards to persons and/or property involved in handling and using such Product and containers. Buyer shall advise its employees, customers, agents, distributors, consultants, independent contractors and others who handle or use, or may foreseeably handle or use, such Product, of any hazards. Buyer hereby agrees to indemnify, defend and hold Seller, its subsidiaries and affiliates and their respective directors, officers, shareholders, employees, agents, successors and assigns, harmless from and against any and all liabilities, losses, costs or damages, including reasonable attorneys’ fees, resulting from claims (unless finally determined to be the result of the gross negligence or willful misconduct of Seller) resulting from (a) use or handling of the Product by Buyer or its affiliates, whether or not the Product is combined with any other materials, substances or equipment or is used in any manufacturing process; (b) failure of Buyer or its affiliates to comply with laws; (c) misappropriation and/or infringement of intellectual property rights, including but not limited to patent, trademark or copyright infringement, resulting from use or handling of the Product by Buyer or its affiliates (for purposes of this Section, any reference to Buyer and its affiliates shall include Buyer’s and its affiliates’ officers, directors, employees, agents and representatives). In the event that Seller brings an action to enforce its rights under these T&Cs, and is successful in such action, Seller shall be entitled to reimbursement from Buyer of all costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) to enforce its rights hereunder.
- EXCUSES FOR NONPERFORMANCE. Seller shall not be responsible for nonperformance or delays in performance due to causes beyond Seller's control, including but not limited to the acts or omissions of Buyer, acts of God, strikes or other labor disputes, acts of terror, war, plant shutdowns, voluntary or involuntary compliance with any law, order, regulation, recommendation or request of any governmental authority, inability to obtain fuel, material or parts, delays or unavailability of transportation, breakdowns of machinery or equipment, fires, explosions or accidents. In addition, Seller shall be excused in the event of its inability to obtain raw materials (on a commercially reasonable basis) necessary for manufacturing the Product. Should any such event occur, Seller shall have the right to allocate remaining production and/or supply among its customers as it determines, and Buyer hereby releases Seller from liability for any resulting incomplete fulfillment of any order.
- RETURNS. No conforming Product will be accepted for return by Seller, and no order may be cancelled by Buyer, without Seller’s prior written consent. Such consent will be granted at Seller’s sole discretion, and Seller may impose a 25% restocking charge on returned Products. All Products must be returned to Seller in accordance with the instructions provided by Seller, and at Buyer’s sole cost.
- RETURNABLE CONTAINERS. If shipment requires use of returnable containers, title to such returnable containers shall remain with Seller and they shall be returned to Seller in good condition (normal wear and tear excepted) within 60 days of Product delivery (freight charges collect). Upon request of Seller, Buyer agrees to pay Seller the reasonable value of the returnable containers if Buyer fails to return them to Seller or fails to return them in suitable condition. Seller may require a returnable container deposit at its sole discretion.
- COMPLIANCE WITH LAWS. Each party shall, in performance of this Agreement, comply with all applicable laws and governmental rules, regulations and orders.
- ANTI-CORRUPTION COMPLIANCE. If Buyer is a distributor of Seller’s Products, Buyer certifies that it (i) has been and will continue to be in full compliance with Seller’s Foreign Corrupt Practices Act/Anti-Corruption Policy (the “Policy”) (which can be found on Seller’s website: www.platformspecialtyproducts.com) and all applicable anti-corruption laws, including, without limitation, the U.S. Foreign Corrupt Practices Act (collectively, “Applicable Laws”); and (ii) has not and will not pay, offer, or promise to pay, or authorize the payment of, directly or indirectly, any monies or anything of value to (a) any governmental official, government employee, political party, or candidate for political office for the purpose of influencing any act or decision to obtain or retain business or otherwise gain an improper advantage, or (b) any private individual that could reasonably be expected to cause the recipient to violate his or her duty of loyalty or trust. Seller may audit Buyer’s books and records and conduct other internal review to verify compliance with the Policy and Applicable Laws. Buyer agrees that it shall immediately advise Seller in writing if Buyer learns of, has reason to know of, or suspects any violation of the Policy or any Applicable Laws involving Seller, any of Seller’s affiliated companies, or the actions of Buyer or its representatives in connection with this Agreement.
- MISCELLANEOUS. This Agreement is not assignable by Buyer. If any provision herein is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be amended to as closely as possible achieve the intended effect of this Agreement in a valid, lawful and enforceable manner, or if not possible, then deleted and ineffective to the extent thereof, all without affecting any other provision of this Agreement. The parties disclaim applicability of the U.N. Convention on the International Sale of Goods to the sale of Products hereunder. This Agreement shall be governed by the laws of the jurisdiction of Seller’s principal place of business, and Buyer agrees to be subject to jurisdiction in the courts of the jurisdiction of Seller’s principal place of business. Except as otherwise provided, all notices provided for by this Agreement shall be given in writing either by actual delivery or by e-mail or registered or certified mail, return receipt requested, and shall be deemed to be received on the date personally delivered or sent by e-mail, or three (3) days after deposited in the mail postage prepaid. Except as provided in the first paragraph of these T&Cs, this document constitutes the entire written agreement of the parties covering the sale and purchase of the Products and there are no understandings, agreements, representations, express or implied, that are not contained herein regarding the subject matter hereof. No modification of these T&Cs shall be binding on Seller unless approved by Seller in writing.
- A SERVICE CHARGE EQUAL TO 1-1/14% PER MONTH OR THE MAXIMUM RATE ALLOWED BY APPLICABLE LAW, WHICHEVER IS LESS, MAY BE CHARGED ON PAST DUE INVOICES.
- Seller’s acceptance of Buyer’s order for the chemicals, articles, or equipment (hereinafter collectively called “products”) covered hereby and the making of any shipments pursuant thereto are subject to the terms and conditions of applicable contract between the Buyer and Seller, signed by the Seller, and to the extent not inconsistent therewith, or, if none, subject to and expressly conditioned upon Buyer’s assent to those terms and conditions on the front and back hereof which in such case constitute the contract covering such order and shipments and the entire understanding between the parties relating thereto, anything inconsistent or to the contrary in any purchase order notwithstanding. Buyer shall be deemed to have assented to the provisions hereof in all respects by its acceptance of any product shipped or by failure to give Seller notice of objection received by Seller prior to shipment or within (10) days after receipt of Seller’s acknowledgment of Buyer’s order, whichever is earlier. Buyer is subject to a 25% restocking charge on returned product. Buyer shall be responsible for all costs associated with the cancellation and completion of processing of product. Seller shall not be bound by any change in, addition to, or waiver of any of the provisions hereof unless approved in writing by an authorized representative of Seller at its principal office in Waterbury, Connecticut. Buyer shall be deemed to have affected final acceptance of the product within fifteen (15) days after the date of initial shipment, unless written notice is received by Seller within such period. In any case, the product will be deemed accepted on the date when used or otherwise placed in commercial operation by Buyer. If Buyer refuses shipment, Seller is authorized to (a) have the product transported and warehoused, at Buyer’s expense and risk, which act shall constitute shipment to Buyer, in which event, Seller may declare as immediately due all amounts due upon shipment, or, if any amounts are financed by Seller, may declare the monthly installment payments to commence thirty (30) days after the date of such shipment to the warehouse, or (b) at Seller’s option, defer shipment. Buyer shall pay all expenses, including taxes, insurance, freight, carriage, and warehousing.
- Prices and terms of payment are subject to change without notice and as to any shipment will be those in effect on date of shipment. All prices quoted are exclusive of taxes. Shipping dates are conditional upon availability of product and shipping. Seller shall select the method of transportation and route, unless terms are f.o.b. point of shipment without freight allowed and Buyer specifies the method and route. Shipment will be f.o.b. Shipping Point unless agreed to otherwise by Seller in writing. Seller may make partial shipments. If shipment is delayed thirty (30) days or more beyond the scheduled shipment date and such delay is caused in whole or in part by circumstances beyond the reasonable control of Seller as provided in paragraph 7 below, then the purchase price and applicable taxes with respect to the product being shipped shall be subject to increase. All sums shall be payable to Seller at Waterbury, Connecticut in legal tender of the U.S.A., within thirty (30) days after the invoice date, time being of the essence. Acceptance by Seller of bank drafts, checks or other media of payment is subject to collection. Seller may recover for each delivery as a separate transaction, without reference to any other delivery. Seller may at any time, upon giving notice to Buyer, decline to make delivery except for cash. If Buyer is in default of any provisions of this contract, in any respect, if Buyer fails to make any payments when due, or if Seller deems itself insecure, then Buyer shall be deemed in default, and Seller shall have, at its option, the right to take immediate possession of the product and/or declare all unpaid amounts immediately due and payable, and/or Seller may defer further deliveries until the default is remedied (in which event, if Seller elects, the contract shall be deemed extended for a period of time equal to that during which deliveries are deferred) , and/or, without prejudice to any other remedy, Seller may terminate the contract. Buyer shall pay all costs and expenses of Seller, including, without limitation, reasonable attorneys’ fees, on past due accounts referred for collection. Seller shall be entitled to set off any amount owed by Buyer or any of Buyer’s related entities against any amount payable to Seller in connection with any unpaid moneys due to Seller. Seller shall have all the rights and remedies of a secured party under the Uniform Commercial Code in effect from time to time in the State of Connecticut in addition to all other rights as established herein, which rights and remedies shall be cumulative. Waiver by Seller of any breach or default shall not constitute a waiver of any subsequent breach or default. In the event of Buyer’s refusal to accept shipment or other default, Seller, at its discretion and option, shall be entitled to retain all money paid by Buyer on account as liquidated damages.
- Seller agrees, at its option, to repair or to provide a replacement for any product or part thereof found to be defective in material or workmanship for a period of six (6) months after delivery of the product. Seller makes NO WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, of any kind, express or implied, except that such product complies with any test or specifications set forth herein or such test or specifications in effect as of the date of shipment and otherwise made available in writing by Seller. Seller’s recommendations or instructions as to use of any product, including its use alone or in combination with other products, or as to any apparatus or process or the use of any product in connection therewith, are based upon information believed to be reliable, but Seller assumes no liability with respect thereto. Such recommendations or instructions are not intended to suggest operations which would infringe any patents belonging to third parties under which Seller is not licensed with the right to grant sublicenses, and Seller assumes no liability or responsibility for infringement of any such patents. Seller may, without liability to Buyer of any kind, decline to continue deliveries of any product the manufacture, sale or use of which, in Seller’s option, would infringe any such patent now or hereafter issued. Buyer shall be deemed to have waived all claims as to any product except those claims of which it gives notice to Seller within thirty (30) days after Buyer’s receipt thereof. On any claim, whether as to product delivered or for non-delivery thereof or otherwise. , Seller’s liability shall not exceed the purchase price of the portion of the product in respect of which such claim is made plus any transportation charges thereon paid by Buyer. In no event shall Seller be liable for incidental, consequential, or exemplary damages or attorneys’ fees.
- Buyer assumes full responsibility for and liability arising out of unloading, discharge, storage, handling, use and disposal of any product or container therefore, including the use of such product or container alone or in combination with other substances, compliance or non-compliance with any federal, state and local laws, ordinances, rules and regulations relating thereto and damage to or destruction of returnable containers from any cause whatsoever after delivery to Buyer and until their return to Seller in good condition. Buyer is responsible for the designation and selection of product sold by Seller. Buyer shall hold Seller harmless and indemnify and defend Seller (including its affiliates, assigns, directors, officers, employees, agents, and representatives) for any claims arising out of or relating to the design, specification, or use of product(s) sold by Seller to Buyer. Carboys and stainless steel drums are returnable and remain the property of Seller, with Seller reserving full recapture rights. A deposit charge is made for each such drum shipped and credit in such amount will be allowed for each such drum returned to Seller (f.o.b. Seller’s shipping point) and received at point of origin in good condition.
- Buyer shall reimburse Seller for all taxes, excise or other charges which Seller may be required to pay to any government or governmental authority which are hereafter levied directly upon the production, sale, transportation, storage or use of any product.
- Neither party shall be liable for any failure to make or accept any one or more deliveries (or portions thereof) arising out of compliance with any law, or governmental action, or arising out of acts of God, fire, flood, explosion, strikes or other labor troubles, shortage or failure of supply of materials or equipment, interruption of or delay in transportation, or any other circumstances of like or different nature beyond the reasonable control of the party so failing; and, at the option of either party, the total quantity to be delivered shall be reduced by the quantity not delivered on account of such cause. If any of such contingencies occur, Seller may, without liability to the Buyer of any kind, keep its available supply of any product for its own uses, or distribute it among its customers upon such basis and in such manner as Seller deems fair and practicable.
- Seller’s weights shall govern, except in case of proven error.
- Any notice shall be sufficiently given when duly mailed, addressed to Seller or to Buyer at their respective addresses appearing on Seller’s acknowledgment of Buyer’s order or such other address for either party as that party may be written notice designate.
- This contract shall bind the respective successors and assigns of the parties hereto but none of Buyer’ rights or obligations hereunder shall be assigned without Seller’s prior written consent.
- Seller represents that in the production of products covered hereby Seller has complied with the provisions of the Fair Labor Standards Act of 1938 as amended.
- This contract shall be governed by, and any and all disputes between Seller and Buyer with respect to this contract shall be construed in accordance with, the laws of the State of Connecticut, without reference to its conflicts of laws provisions. All disputes shall be subject to arbitration conducted by a single arbitrator in Hartford, Connecticut, in accordance with the rules of the American Arbitration Association. Buyer must institute any action against Seller within one year after Buyer’s claim arises, or such claim shall be barred, notwithstanding any statutory limitations to the contrary.
- In the event any term or provision hereof shall be held invalid or unenforceable, to any extent, the remainder of the terms hereof shall be valid and enforceable to the fullest extent permitted by law.
- The provision of products is expressly dependent upon acceptance of these terms and conditions, which will supersede all other terms and conditions including those on the purchaser's purchase order or other documents, and the purchaser's order and/or acceptance of delivery of products will be acceptance of these terms and conditions.
DefinitionsIn these conditions:
- the "Seller" means MacDermid Autotype Pte Limited;
- the "Buyer" means the person, firm or company who places an order with the Seller for the purchase and/or supply of any Goods or service;
- the "Goods" means the products or services supplied by the Seller which are the subject of an order placed by the Buyer with the Seller.
- the "Contract" means any contract between the Buyer and the Seller for the sale and purchase of Goods, incorporating these conditions.
- These conditions shall apply to all contracts for the sale of Goods entered into by the Seller to the exclusion of the terms and conditions of the Buyer.
- All drawings, illustrations, performance data and other details in the Seller's catalogues, sales or promotional literature or elsewhere are included as a guide only, and whilst such details are printed in good faith they shall not bind the Seller. The Seller reserves the right to change specifications without prior notice at its absolute discretion.
- No variation, cancellation or waiver of these conditions shall be of any effect unless made in writing signed by a duly authorised officer of the Seller and the Buyer.
- Typographical or clerical errors or omissions shall be subject to correction.
- The Buyer must notify the Seller within seven days of the date of the Seller's acceptance or acknowledgement of order if such acceptance or acknowledgement does not accurately confirm the Buyer's order failing which the Buyer shall be bound by the terms of the acknowledgement.
- The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Seller which is not set out in the Contract. Nothing in this condition shall exclude or limit the Seller's liability for fraudulent misrepresentation.
Creation of Contractual RelationsUnless previously withdrawn the Seller's quotations and tenders shall remain valid for the period stated therein or if no period is stated for 30 days from the date of the quotation or tender. The Seller's offers, estimates, quotations, tenders, and price lists are invitations to treat only. All orders, must be in writing and must be accompanied by sufficient information to enable the Seller to proceed without delay with the execution of the order. All orders require the Seller's acceptance in writing in order to create a contract. Any such acceptance will nevertheless be subject to the Buyer's credit being approved and to cancellation without liability at the instance of the Seller should the Seller subsequently determine that, in its opinion the Buyer's credit worthiness is inadequate.
- All prices include only such Goods and accessories as are specified in the quotation and are for the quantities therein expressed. If the Buyer shall request any variation in quantity the price may be varied accordingly.
- Unless otherwise specified prices quoted do not include Value Added Tax which will be added at the rate prevailing at the appropriate tax point.
- Unless otherwise specified prices quoted do not include carriage which will be charged at extra cost. Where the quoted prices do include carriage the Seller shall determine the route and method of carriage and any special requirements of the Buyer shall be subject to an additional charge.
- Unless otherwise specified prices quoted include the Seller's and/or its suppliers' standard non-returnable packaging. It is the Buyer's responsibility to dispose of all packaging after delivery.
At any time before delivery has been completed the Seller shall be entitled to vary the price of the Goods to take into account all or any of the following factors:
- where Goods are imported any variation of currency exchange rate or special taxes or charges imposed by any government;
- increased costs resulting from the prohibition or other actions of any government;
- increased transport costs (if carriage is included in the quoted price);
- implementing any request by the Buyer for expedited despatch or changes in delivery, schedules, completion dates, quantities, designs or specifications.
- delays caused by instructions of the Buyer or by failure of the Buyer to give adequate instructions or information.
PaymentPayment shall be made strictly to the terms specified and in the currency stated on the invoice. In default of payment on the due date specified in the invoice the Company without prejudice to its rights hereunder may charge the Buyer interest on overdue accounts at the rate of 3% over the Hong Kong and Shanghai Banking Corporation prime lending rate for the time being. The Seller shall at Its discretion (without prejudice to its right to treat the Contract as repudiated and claim damages) be entitled to withhold despatch of the Goods or any of them until all monies owing to the Seller by the Buyer have been paid in full.
Property and Risk
Until payment in full for all the Goods delivered (including any charges or interest due under Clauses 4 or 5 of these conditions) has been received by the Seller or until such time as the Buyer sells the Goods by way of a bona fide sale at full market value:
- ownership of the Goods shall remain with the Seller;
- the Seller reserves the right to dispose of the Goods, and the Seller shall be permitted to enter upon the Buyer's premises at all reasonable times to recover the Goods for this purpose;
- The Buyer shall store the Goods so that they may be readily identified as the property of the Seller and during such time the Buyer shall ensure that the Goods are kept and maintained in the condition in which they were delivered.
- The risk in the Goods shall, subject to Clause 8(b), pass to the Buyer on delivery to the Buyer or the Buyer's carrier.
- Until payment in full for all the Goods delivered (including any charges or interest due under Clauses 4 or 5 of these conditions) has been received by the Seller or until such time as the Buyer sells the Goods by way of a bona fide sale at full market value:
- The period quoted for delivery commences from the date of order acknowledgement but is an estimate only, and the time of delivery shall not be of the essence of the contract. Whilst the Seller shall use reasonable commercial endeavours to deliver the Goods by the date (if any) specified on the order acknowledgement it shall not be liable in any way for delay in delivery from any cause whatsoever and howsoever arising nor shall such delay entitle the Buyer to reject the Goods or treat the contract as repudiated or render the Seller liable for damages in any way.
- The Seller shall have the right to despatch any portion(s) of the Goods covered by the contract separately and to invoice the Buyer for such portion(s) so despatched on the same terms and conditions as are contained herein.
- It is the Buyer's duty to inform the Seller of the detailed delivery requirements in advance and to provide due warning and notice of any changes in such requirements.
- The Buyer shall take delivery of the Goods within 14 days of the Seller giving it notice that the Goods are ready for delivery.
Non-acceptance by Buyer
If by reason of the Buyer's default the Goods or any of them have not been taken up or delivered by any date specified for such taking up or delivery, then:
- the Buyer shall nevertheless pay the Seller in accordance with Clause 5 of these conditions as if such taking up or delivery had occurred; and
- the Buyer shall pay the Seller a storage charge in respect of any of the Goods which have not been taken up or delivered together with the cost of any additional handling and transport incurred. In the event that such storage by the Seller shall continue to a period exceeding six weeks the Seller may (without prejudice to any other rights which may have accrued) treat the contract as repudiated;
- During the period of any storage of the Goods or any of them by the Seller as contemplated by sub-clause 8(a)(ii) above such Goods shall be at the risk of the Buyer.
- If by reason of the Buyer's default the Goods or any of them have not been taken up or delivered by any date specified for such taking up or delivery, then:
Loss or damage in transit and Non-delivery of GoodsNo responsibility will be accepted by the Seller for any shortage, non-delivery or damage occurring in transit unless the Buyer makes a claim in writing providing full particulars on both the carriers and the Seller within one week of receipt of Goods or, in the case of non-delivery, within four weeks after the expected arrival of the Goods.
Cancellation and VariationNo cancellation or variation of an order by the Buyer shall be effective unless served in writing at the Registered Office of the Seller and until accepted in writing by an authorised officer of the Seller. The Seller reserves the right to refuse to accept such cancellation or variation or to accept cancellation or variation only subject to such conditions as the Seller may determine. Acceptance by the Seller shall be subject to payment by the Buyer of such cancellation or variation charges as the Seller shall deem reasonable. Such charges shall take into account expenses incurred and commitments made by the Seller and all other losses due to such cancellation or variation.
Return of the GoodsWhere the Goods have been received by the Buyer and the Buyer wishes to return some or all of the Goods, the Seller can in its absolute discretion either:
refuse to accept the return of such Goods and seek payment in accordance with Clause 5 hereof;
- accept return of such Goods, subject to such conditions as the Seller may determine and subject to the Seller receiving immediate payment for those Goods not being returned.
- refuse to accept the return of such Goods and seek payment in accordance with Clause 5 hereof;
Force MajeureShould any event occur whether at the Seller's premises or elsewhere which is beyond the control of the Seller such as by way of example industrial action or dispute (including strike or lock out) shortage of materials, act of God, war, fire, flood, drought, breakdown of machinery, as a result of which the performance of this contract is prevented or delayed:
- Without prejudice to its right in the event of breach of contract by the Buyer the Seller reserves the right to cancel delivery or other performance of the Seller's obligations under any contract in whole or in part and in the event of the Seller exercising such right the Seller's liability shall be limited to the repayment to the Buyer (without interest) of any part of the purchase or contract price or charge already received by the Seller and attributed to any unfulfilled and cancelled part of the contract less any expenses incurred by the Seller down to the date of cancellation in part performance of the contract.
- If such prevention or delay continues for 60 days the Buyer may elect either to cancel the contract or to allow the order to remain on the books of the Seller and to be completed at some late date at an adjusted price to be determined by the Seller.
Replacement of Defective Products
- The Seller warrants that (subject to the other provisions of these conditions) upon delivery and for a period of six months from the date of delivery, the Goods conform to his specification and, subject as below, indemnifies the Buyer against any loss suffered as a result of the Products failing to conform to such specification.
Other than in respect of claims for death or personal injury caused by the negligence of the Seller, the Seller will not be liable for any of the following losses which may arise by reason of any breach of this Agreement or any implied warranty, condition or other term or any representation or any duty of any kind imposed on the Seller by operation of law:
- any loss of anticipated profits or expected future business;
- damage to reputation or goodwill;
- loss of any order or contract;
- any consequential loss of any kind.
- Other than in respect of claims for death or personal injury caused by the negligence of the Seller, if any liability attaches to the Seller under clause 13 (b) then the Seller's total liability in respect of any claim shall not exceed the total price payable under this Contract multiplied by a factor of 1.5.
Sub-clause (a) of this Clause 13 shall be subject to the proviso that no guarantees provided by the Seller will apply:
- where the Goods have been installed, repaired or alterations made by anyone other than the Seller's representatives or authorised agent; or
- where the Goods have not been installed, commissioned, operated or used in accordance with procedures prescribed by the Seller.
Labelling, Packaging and Safety
- The Seller will ensure that all products are labelled and packed in accordance with the applicable laws of England and the rules, regulations and directives that apply in that territory, including, but not limited to, those of the European Union and the United Nations Organisation.
- The Buyer undertakes to ensure that all product that is re-sold to any person is labelled and packed in the same manner and that any training or instructions necessary for the safe and effective use of the product is provided to any such person and indemnifies the Seller against all and any claims for loss, costs or damage arising from a failure by the Buyer to observe the requirements of this sub clause.
SubstitutionsIn the event of non-availability of materials or parts the Seller reserves the right to use suitable alternative materials or parts where possible. Such substitutes shall be accepted by the Buyer in full satisfaction and performance of the Contract or that part thereof for which it is a substitute as the case may be. In the event that the Seller is unable to obtain a satisfactory substitute its obligations to complete performance of the contract shall upon notification in writing to the Buyer be suspended until such time as the unavailable materials or parts or suitable substitutes become available.
Sub-ContractingThe Seller shall be free to employ sub-contractors.
IndemnityThe Buyer shall indemnify the Seller against all claims, demands, damages, penalties, costs and expenses arising out of the Seller's performance of the Contract in accordance with the Buyer's specifications for which the Seller may become liable by reason of the infringement of any letters patent, registered design, trade mark, copyright (including design copyright) or any other industrial property right.
Intellectual PropertyThe Buyer hereby acknowledges that all intellectual property rights (including but not limited to copyright) in all documents (including drawings) supplied by the Seller to the Buyer shall remain with the Seller. In no circumstances whatsoever shall such documents or their contents be used for any purpose other than that for which they were supplied. The Buyer acknowledges that the trade marks, trade and brand names applied by the Seller to the Goods shall remain the property of the Seller and the Buyer shall acquire no rights in such names. Any intellectual property rights of the Seller shall be used only for the purposes of sale of the Goods.
WaiverNo waiver by either party in respect of any breach by the other shall operate as a waiver in respect of any subsequent breach.
SeverabilityAny provisions of these conditions which in any way now or subsequently contravene the law shall be deemed severable and shall not affect any other provisions herein.
Governing LawAny contract of which these conditions form part shall be governed by the laws of Singapore and shall be subject to the exclusive jurisdiction of the Courts in Singapore.
NoticesAny notices required to be served hereunder shall be deemed to be properly served if sent by prepaid Registered or Recorded delivery post to the last known address of the party to be served and shall be deemed to be duly served the day following the date of posting.
Clause headingsThe clause headings shall not affect the interpretation of these conditions.
AssignmentThe Buyer may not assign the Contract or any part of it to any person, firm or company.