1.
Interpretation
1.1
In these conditions:
‘Conditions’ means the standard terms and conditions of
purchase set out in this document and (unless the context otherwise requires)
includes the terms and conditions set out in the Order and any special terms
and conditions agreed in writing by the Purchaser.
‘Contract’ means the contract for the sale and purchase of
the Goods and the Services arising from the Seller’s acceptance of the Order.
‘Delivery Address’ means the address stated in the Order.
‘Goods’ means the goods (including any instalment
of the goods or any part of them) described in the Order (if any).
‘Order’ means the Purchaser’s purchase order to the Seller
for the Goods and the Services, including any Specification and other documents
attached thereto by the Purchaser.
‘Purchaser’ means Toshiba Data Dynamics Pte Ltd.
‘Price’ means the price of the Goods and the charge for the
Services.
‘Seller’ means the person so described in the Order.
‘Services’ means the services described in the Order (if
any).
‘Specification’ includes any plans, drawings, data or other
information relating to the Goods and Services.
1.2
Any reference in these conditions to a statute or a
provision of a statute shall be construed as a reference to that statute or
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.
2.
Basis of
purchase
2.1
The Order constitutes an offer by the Purchaser to purchase
the Goods and the Services subject to the Conditions.
2.2
The Conditions shall apply to the Contract to the exclusion
of all other terms and conditions including any terms or conditions which the
Seller may purport to apply under any quotation, sales offer or similar
document.
2.3 No variation to the Order or the
Conditions shall be binding unless otherwise agreed to in writing by a duly
authorized officer or agent of the Purchaser.
2.4 The Order
may be withdrawn or varied by the Purchaser by written notice at anytime prior
to the receipt by the Purchaser of the Seller’s written acceptance of the
Order.
3.1 The
quantity, quality and description of the Goods and the Services shall, subject
as provided in the Conditions, be as specified in the Order and there shall not
be any variance in the quantity, quality and description of the Goods and the
Services unless authorized by the Purchaser in writing.
3.2
Any Specification
supplied by the Purchaser to the Seller, or specifically produced by the Seller
for the Purchaser, in connection with the Contract, together with the
copyright, design rights or other intellectual property rights in the Specification,
shall be the exclusive property of the Purchaser. The Seller shall not disclose
to any third party or use any such Specification except to the extent that it
is or becomes public knowledge through no fault of the Seller or as required
for the purpose of the Contract.
3.3 It is
the Seller’s responsibility to furnish the proper quantity as specified in the
Order. No variation of the quantity specified will be accepted as compliance
with the Order, except by prior written agreement of the Purchaser. The
Purchaser reserves the right to return excess shipments of the Goods at the
Seller’s expense.
4.1 The
Price of the Goods and the Services shall be as stated in the Order and, unless
otherwise so stated, shall be:
4.1.1
exclusive of any goods and services tax (which shall be
payable by the Purchaser subject to a receipt of the Seller’s original tax
invoice); and
4.1.2
inclusive of all
charges for packaging, packing, shipping, carriage, insurance and delivery of
the Goods to the Delivery Address and any duties or levies other than goods and
services tax.
4.2
The Seller shall at its own expense promptly obtain all
necessary export licences, clearances and other
consents necessary for the supply and delivery of the Goods and the performance
of the Services.
4.3
No increase in the Price may be made (whether on account of
increased material, labour or transport costs,
fluctuations in rates of exchange or otherwise) without the prior written
consent of the Purchaser.
4.4
The Seller shall be entitled to invoice the Purchaser on or
at any time after delivery of the Goods and performance of the Services in
accordance with the Contract.
4.5
The Purchaser shall pay the Price of the Goods and the
Services within the relevant number of days as stated in the Order after the
receipt by the Purchaser of a proper invoice.
4.6
The Purchaser shall be entitled to set off against the Price
any sums owed to the Purchaser by the Seller whether under the Contract or
otherwise.
5.1
The Goods shall be delivered to, and the Services shall be
performed at, the Delivery Address on the date stated in the Order.
5.2
Where the date of delivery of the Goods or of performance of
the Services is to be specified after the placing of the Order, delivery of the
Goods and performance of the Services will take place within a reasonable time
from the Seller’s acceptance of the Order.
5.3
The time of delivery of the Goods and of performance of the
Services is of the essence of the Contract.
5.4
If the Goods are to be delivered, or the Services are to be
performed, by instalments, the Contract will be
treated as a single contract and not severable.
5.5
The Purchaser shall be entitled to reject any Goods
delivered which are not in accordance with the Contract and shall not be deemed
to have accepted any Goods until the Purchaser has had a reasonable time to
inspect them following delivery or, if later, within a reasonable time after
any latent defect in the Goods has become apparent.
5.6
The Seller shall supply the Purchaser in good time with any
information required to enable the Purchaser to accept delivery of the Goods
and performance of the Services.
5.7
The Purchaser shall not be obliged to return to the Seller
any packaging or packing materials for the Goods, whether or not any Goods are
accepted by the Purchaser.
5.8 All
shipments of Goods must be forwarded to the Delivery Address in the manner
indicated on the Order. In the event of any variance, all additional expenses
to which the Purchaser may be subjected shall be borne by the Seller.
5.9 The Goods
shall be marked in accordance with the Purchaser’s instructions and all lawful
requirements and properly packed and secured for delivery to the Purchaser in
an undamaged condition. All Goods that are shipped to the Purchaser from abroad
shall be securely packed for export as light as possible and in the smallest
cubical bulk consistent with safe carriage by ocean vessel, railroad or
aircraft (as the case may be) and insurance requirements. All packaging and
boxing costs shall be borne by the Seller.
5.10 The purchase
number as stated in the Order shall be stencilled or
otherwise clearly marked on or outside the wrapping or casing of each delivery
or consignment of the Goods and shall be noted on all invoices and Bills of
Lading.
6. Risk and
Property
6.1
Unless otherwise indicated in the Order, risk of damage to
or loss of the Goods shall pass to the Purchaser upon delivery to the Purchaser
in accordance with the Contract.
6.2
The property in the Goods shall pass to the Purchaser upon
delivery, unless payment for the Goods is made prior to delivery, when it shall
pass to the Purchaser once payment has been made and the Goods have been
appropriated to the Contract.
7.1 The Seller warrants to the Purchaser that
the Goods:
7.1.1
will be of satisfactory quality (within the meaning of the
Sale of Goods Act Cap. 393 ) and fit for any purpose held out by the Seller or
made known to the Seller at the time the Order is placed;
7.1.2
will be free from defects in design, material and
workmanship;
7.1.3
will correspond with any relevant Specification or sample;
and
7.1.4
do not infringe any patent,
copyright, design right, trade mark or other intellectual property rights of
any person.
7.2
The Seller warrants to the Purchaser that the
Services will be performed by appropriately qualified and trained personnel,
with due care and diligence and to such high standard of quality as it is
reasonable for the Purchaser to expect in all the circumstances.
7.3 The Seller warrants that it will comply
with all governmental laws and regulations concerning the manufacture,
packaging, packing, delivery and sale of the Goods and the performance of the
Services.
7.4 Without prejudice to any other remedy,
if any Goods or Services are not supplied or performed in accordance with the
Contract, then the Purchaser shall be entitled:
7.4.1
to require the
Seller to repair the Goods or to supply replacement Goods or Services in
accordance with the Contract within seven (7) days; or
7.4.2
at the Purchaser’s sole option, and whether or not the
Purchaser has previously required the Seller to repair the Goods or to supply
any replacement Goods or Services, to treat the Contract as discharged by the
Seller’s breach and require the repayment of any part of the Price which has
been paid.
7.5 The Seller shall indemnify the Purchaser
in full against all liability, loss, damages, costs and expenses (including
legal expenses) awarded against or incurred or paid by the Purchaser as a
result of or in connection with:
7.5.1
breach of any warranty given by the Seller in relation to
the Goods or the Services;
7.5.2
any act or omission of the Seller or its employees, agents
or sub-contractors in supplying, delivering and installing the Goods; and
7.5.3
any act or
omission of the Seller or its employees, agents or sub-contractors in
connection with the performance of the Services.
7.6
Except in relation to liability for death or personal
injury, the Purchaser and its officers, employees and agents shall not be
liable to the Seller for any damage to any property of, or any losses, claims,
demands, actions, proceedings, damages, costs or expenses or other liability
incurred or suffered by the Seller or by its employees, agents, sub-contractors
or by any other person arising directly, indirectly or in any manner whatsoever
from any act, omission or negligence of the Purchaser or its officers,
employees and agents.
7.7 Neither the
Seller nor the Purchaser shall be liable to the other or be deemed to be in
breach of the Contract by reason of any delay in performing, or any failure to
perform, any of its obligations in relation to the Goods or the Services, if
the delay or failure is beyond that party’s reasonable control (“Force
Majeure”), and the time for performance of its obligation shall be extended
accordingly. Force Majeure shall include but are not limited to strikes, fires,
wars, acts of God and civil commotion. If the Force Majeure in question
prevails for a continuous period in excess of six (6) months, either party
shall have the right to terminate the Contract.
8. Termination
8.1 If a
bankruptcy or winding up application shall be filed against the Seller or the
Seller makes any voluntary arrangement with its creditors, or an encumbrancer takes possession, or a receiver is appointed,
of any of the property or assets of the Seller, or the Seller ceases or
threatens to cease to carry on any business, then the Purchaser shall be
entitled to terminate the Contract without liability to the Seller by giving
written notice to the Seller.
9.1
The Conditions constitute the entire agreement between the
parties and supersede any previous agreement or understanding.
9.2
The Order is personal to the Seller and the Seller shall not
assign or transfer or purport to assign or transfer to any other person any of
its rights or obligations under the Contract.
9.3
Any notice required to be served, delivered or given under
the Conditions shall be in writing and shall be deemed sufficiently served if
sent by registered post, facsimile or by personal delivery to the last known address
or facsimile number of the other party.
9.4
No waiver by the Purchaser of any breach of the Contract by
the Seller shall be considered as a waiver of any subsequent breach of the same
or any other provision.
9.5
If any provision of the Conditions is held by any competent
authority to be invalid or unenforceable in whole or in part, the validity of
the other provisions of the Conditions and the remainder of the provision in
question shall not be affected thereby.
9.6 The laws of