1. Entire Agreement
This Agreement comprises the entire agreement between the Buyer and the Seller with respect to the subject matter of this Agreement, and supersedes any previous agreement or understanding (including, without limitation, any earlier sets of conditions appearing in the Seller’s catalogues or elsewhere or any terms and conditions stipulated incorporated or referred to by the Buyer whether in order or in any negotiations) relating to it and all guarantees, warranties or conditions (including any condition as to quality or fitness for any particular purpose) whether expressed or implied by statute common law or otherwise are, to the extent permitted by law, excluded and hereby negated. Any variation of any term of this Agreement, including these terms and conditions by the Buyer shall not be binding on the Seller unless otherwise agreed in writing by the Seller. For the avoidance of doubt, nothing in this Clause 1 shall not exclude any liability on the part of the Seller for fraudulent misrepresentation.
The quoted price for the goods shall be exclusive of the cost of any form of taxes, levies, duties and insurance costs and/or license required for the registration and/or use of the goods including, goods and service tax (or its equivalent), value-added tax, withholding tax, customs duty, excise or any other taxes, levies or duties, all of which shall be borne solely by the Buyer. If the Seller is obligated by applicable law to collect and remit any such taxes, levies, duties, shipping charges and/or insurance costs on the goods being supplied, then the Seller will add the appropriate amount to the Buyer’s invoice as a separate line item in accordance with the applicable statutory requirements.
3. Variation in Initial Price
The initial quoted indicative price (“Initial Price”) for the goods may be varied by additions upwards by the Seller in its sole discretion, and the final price shall be determined on the date of delivery to the Buyer. The Buyer shall pay all such additional amounts to the Initial Price. Without prejudice to the generality of the foregoing, certain factors which may result in an increase in the Initial Price shall include inter alia any increase in the cost of labour and/or materials and/or operation and/or transport including freight and insurance and/or any variation in the rate of exchange and/or the imposition of any charge, duty, expense, levy or tax (including any value added or goods and services tax) by any relevant authority, changes in the market prices of goods which are similar in nature to the goods being sold by the Seller and any circumstance(s) beyond the control of the Seller.
4. Design and Specifications
The Seller reserves the right to make at any time any changes in the construction and/or design of the goods supplied and/or the specifications thereof, provided always that such changes shall not materially impact the description and/or quality or fitness for any particular purpose of such goods supplied. If the Seller adopts any changes in the construction and/or design of the goods supplied and/or the specifications thereof, the Buyer shall accept the goods so changed and shall bear any increase to the Initial Price arising from or in connection with any changes or modifications made to the goods in accordance with Clause 3 above.
5. Date for Delivery
Any date named by the Seller for delivery is indicative only and the Seller shall not be liable to make good any damage or loss whether arising directly or indirectly out of any delay in delivery. Any such delay shall not entitle the Buyer to repudiate this agreement.
Delivery shall be taken by the Buyer personally (or through his agent duly authorised in writing at his sole risk) at the Seller’s premises within 7 days of the issue of a written request by the Seller to the Buyer to take delivery of the goods (“Collection Notice”). Any request by the Buyer for the goods to be delivered by the Seller to any other location shall be accepted at sole discretion of the Seller and, if so accepted, such delivery shall be carried out at the sole risk of the Buyer as regards loss or damage in transit or otherwise. The property and title in the goods shall not pass to the Buyer until the Seller has received payment in full of the price of the Goods. Until property in the Goods passes to the Buyer, the Buyer 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.
If for any reason (including the failure of the Buyer to secure any licence or certificate required for the registration and/or use of the goods) the Buyer fails to take delivery of the goods within 7 business days of the issuance by the Seller of the Collection Notice, the Seller shall be entitled, at its option and without prejudice to its rights herein, to invoke its rights, or if it so desires, to store or remove the goods to such place and for such period as the Seller considers appropriate. The Buyer shall be liable for and shall indemnify the Seller against all costs and expenses incurred by the Seller in connection with such storage or removal of goods including insurance charges, road tax and/or maintenance charges. The Seller shall be entitled to charge a fee for such storage or removal or any other action taken by the Seller in connection with the goods. The Seller shall not be responsible for the deterioration, loss, damage or destruction of the goods at any point in time. This provision shall be in addition to and not in substitution of any other payment or damages for which the Buyer may become liable in respect of his failure to take delivery in accordance with this Clause 6.
7. Delivery Certificate
Delivery under this Agreement shall be sufficient if made by the seller handing the buyer a Delivery Certificate.
The Buyer shall be solely responsible for registering for the Warranty. At the appropriate time, instruction of warranty registration will be provided.
Any payment made by cheque shall not constitute full and final payment until such time as the cheque has been honoured and the appropriate sum remitted into the Seller’s account. In the event of a default by the Buyer of its payment obligations under this Agreement, the Seller shall be entitled in its sole discretion to (i) withhold the registration and/or the delivery of the goods until full and final payment has been made by the Buyer; or (ii) cancel or suspend the performance of its obligations in accordance with Clause 11 of this Agreement.
In addition to any right of lien to which the Seller may be by law be entitled, the Seller shall be entitled to a general lien on all goods of the Buyer in the Seller’s possession (although such goods or some of them may have been paid for) for the unpaid price of any other goods sold and delivered to the Buyer by the Seller under the same or any other contract.
If the Buyer shall fail to take delivery of goods within 7 days of the issuance by the Seller of a Collection Notice, or if the Buyer shall fail to make full and final payment to the Seller by such date stipulated by the Seller, or if the Buyer shall otherwise make default in or commit any breach of its obligations under this Agreement, or if any distress or execution shall be levied upon the Buyer or its property or assets, or if the Buyer shall make or offer to make any arrangement or composition with its creditors of if any bankruptcy petition or bankruptcy order shall be presented or made against the Buyer or if the Buyer (being a company) shall pass any resolution or have any petition presented for its winding up otherwise than for reconstruction or amalgamation or if a receiver of the Buyer’s undertaking, property or assets or any part thereof or a judicial manager shall be appointed, the Seller shall without prejudice to any other claim or right which the Seller might otherwise make or exercise, be entitled to do any one or more or all of the following:
(i) terminate this Agreement forthwith by written notice to the Buyer;
(ii) forfeit and retain for the Seller’s own account any money received by the Seller from the Buyer as deposit, advance payment, part payment or otherwise; and / or
(iii) sell or otherwise deal with or dispose of the goods in such manner as it may deem fit. Any deficiency in price which may result from and all expenses incurred by the Seller in attending a resale or attempted resale shall be made good and paid by the Buyer while any increase of price on a resale shall belong to the Seller.
12. Force Majeure
The Seller shall not be liable to the Buyer for any delay or failure in performance of the Seller’s obligations hereunder by reason of Force Majeure for a continuous period in excess of [three] months. Any such delay or failure in the performance of the Seller’s obligations shall not entitle the Buyer to repudiate this Agreement. “Force Majeure” refers to circumstances beyond the Seller’s reasonable control including, without limitation, acts of god, war, invasion, act of foreign enemy, hostilities (whether war is declared or not), terrorist acts, civil war, rebellion, revolution, insurrection, martial law, riot, strike, lockout, trade dispute, local or national emergency, natural disasters, severe weather or other catastrophes, epidemics / pandemics, civil commotion, breakdown of plant, shortage of materials, stocks or supplies, import or export regulations, embargo, act statute, general import/export/customs process problems affecting supplies to the Seller, failure of a utility service or transport network, regulation, bye-law, prohibition or measure of any kind on the part of any governmental or local authority, default of suppliers or subcontractors of the Seller due to any of the preceding events, or any other causes (whether or not of a like nature) beyond the Seller’s control.
Any waiver by the Seller of any breach by the Buyer of this Agreement shall not be deemed to apply to any succeeding breach of the provision or of any other provision of this Agreement. No failure to exercise and no delay in exercising on the part of the Seller of any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power or privilege.
14. Initial Deposit and Progress Payments
The “Initial Deposit” shall be refundable, only if the Buyer chooses to relinquish his production slot at such time which the Seller calls upon the first progress payment from the Buyer. The “Initial Deposit” shall not be refundable once the Buyer has accepted the allocated production slot. Any and all progress payments other than the Initial Deposit are not refundable to the Buyer under any circumstances whatsoever.
15. No Partnership or Agency
Nothing in this Agreement will create or imply an agency, partnership or joint venture between the Parties. Neither Party shall describe itself as the agent of the other Party nor shall either Party have or represent that it has any authority to make commitments on behalf of the other.
Save as expressly provided in this Agreement, no amendment or variation of this Agreement shall be effective unless it is in writing and signed by the Seller.
This Agreement, and all rights and obligations hereunder, are personal to the Parties and subject to the express provisions of this Agreement, the Buyer shall not assign, transfer or novate or attempt to assign, transfer or novate all or any of its rights or obligations hereunder to any third party.
Any notice or communication under this agreement to either party be in writing and sent by post to the last known address of such party and shall be deemed to have been received by such party 48 hours after the same has been put into post and in proving the same it shall be sufficient to show that personal delivery was made or that the envelope containing such notice was properly addressed, and duly stamped and posted.
19. Governance and Jurisdiction
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Singapore and all disputes shall be submitted to the exclusive jurisdiction of the Singapore courts.
The terms set out in this sales agreement are strictly confidential between the Buyer and the Seller, and shall not be disclosed by either Party without the prior written consent of the other Party, in whole or in part, to any third party except as may be required by law and/or to such Party’s accountants, lawyers, bankers, assigns, or other parties insofar as may be necessary for either Party to carry out its obligations or enforce its rights pursuant to this sales agreement.
The various provisions of this Agreement are severable and in the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be unenforceable in any respect under the laws of Singapore, such unenforceability shall not affect any other provision of this Agreement which shall then be construed as if such unenforceable provision or provisions had never been contained herein.
The Buyer acknowledges that he / she / it has read and understood the terms of this Agreement and executes this Agreement based upon such party’s own judgment and independent legal advice (if sought).
23. Third Party Rights
No person other than a Party to this Agreement may enforce this Agreement by virtue of the Contracts (Rights of Third Parties) Act, Cap. 53B of Singapore but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
Following collection / delivery of the goods, the Buyer shall take full responsibility for any and all use, and/or misuse of the goods and unconditionally and irrevocably agrees and undertakes that the Seller shall bear no responsibility for any consequences, legal, or other, of such use and/or misuse thereof.