Terms and Conditions of Sale

1. Scope

The following are the standard conditions of sale (“Conditions of Sale”) of Carbery Asia Pte. Ltd. (hereinafter called “the Seller”). All goods (“Goods”) sold by the Seller are sold subject to these Conditions of Sale. The firm or company purchasing the Goods from the Seller shall hereinafter be called “the Buyer”. The quotation, order confirmation or sales agreement entered into between the Buyer and the Seller are collectively referred hereinafter as the “Contract”. The Seller and the Buyer shall hereinafter collectively be referred to as the “Parties”, and individually as a “Party”.

2. General

(1) In these Conditions of Sale, “Business Day” shall refer to any day other than Saturdays, Sundays or public holidays in Singapore.
(2) These Conditions of Sale shall apply to all sales of Goods by the Seller. Terms and conditions on the Buyer’s order form or other equivalent document shall not be binding on the Seller. The placing of an order for or the acceptance of the Goods by the Buyer shall indicate unqualified acceptance of these Conditions of Sale. Unless expressly agreed to in writing by the Seller, no amendment or variation or purported amendment or variation to these Conditions of Sale shall be valid and effective.
(3) There shall be no Contract between the Seller and the Buyer until the Buyer’s order is accepted by the Seller.
(4) Where an order is accepted by the Seller, each order shall create a separate Contract between the Seller and the Buyer. In the event of any conflict between these Conditions of Sale and the Contract, the Contract shall prevail.

3. Terms of payment

(1) The purchase price of the Goods quoted are ex works and net of the statutory goods and services tax (under the Goods and Services Tax Act 1993 of Singapore) payable at the material time. Taxes, surcharges, import and export fees as well as customs fees may arise in addition thereto.
(2) Unless otherwise stated in the Contract, the Buyer shall pay all invoices issued by the Seller (“Invoice”), without deduction, in the currency set forth in the Contract no later than thirty (30) days from the date of the Invoice and no discount (in cash or otherwise) will be allowed. No deductions from invoices for credits, samples, damaged goods or bill-backs of any kind are permitted or shall be made. All payments shall be made without any deduction on account of any taxes and free of set-off or other counterclaims.
(3) In the event of a dispute with respect to any Invoice, the Buyer shall notify the Seller in writing within ten (10) Business Days after the date of the Invoice, failing which the Buyer shall be deemed to have approved the Invoice and waived all rights to dispute the said Invoice.
(4) Where there is any late payment of an Invoice, the Buyer shall be liable to pay interest on all invoiced sums at the rate of 5 % for each month of delay or part thereof, until full payment has been made to the Seller.
(5) In the event the Seller determines (at its sole discretion) that the Buyer’s credit or financial responsibility is unsatisfactory, the Seller may require immediate cash payment in advance of or on delivery of the Goods.

4. Inspection of Goods and Limited Liability

(1) Upon receipt of the Goods, the Buyer has the obligation to immediately inspect the Goods received for defects prior to any further processing or other use. In the event of any defects in the Goods, the Buyer shall inform the Seller in writing (the “Complaint”) no later than seven (7) Business Days upon receipt of the Goods. Failing which, the Buyer shall be deemed to have accepted the delivery of the Goods and waived all rights to make a Complaint.
(2) In the event the Buyer has made a Complaint in accordance with Section 4(1) above, the Buyer shall grant the Seller the opportunity to verify the Complaint and provide the Seller with the defective Goods and associated packaging for inspection within ten (10) Business Days from the date of the Complaint. Failing which, the Complaint shall be deemed to be invalid and the Buyer shall have no further recourse against the Seller in relation to the defective Goods.
(3) After due inspection and in the case of a valid Complaint, the Seller shall arrange for a substitute delivery of the Goods to the Buyer (“Seller’s Rectification”). Subject to applicable laws, in the event the Seller’s Rectification is not possible or is rejected for reasons attributable to the Seller, the Seller shall instead issue a credit note.
(4) The Seller’s total liability towards the Buyer in respect of all claims under or in relation to the Goods, whether arising out of contract, tort (including negligence, misrepresentation or otherwise), shall be expressly limited to the purchase price of the relevant Goods. Under no circumstances shall the Seller be liable for special, incidental, indirect or consequential damages or loss, including but not limited to loss of profits, loss of revenue, loss of business, depletion of goodwill, revenues and the like incurred by the Buyer or any third party, however caused and arising out of or in connection with any contract or these Conditions of Sale.

5. Limitation Period

The Buyer agrees and undertakes that any cause of action and claim which it may have pursuant to these Conditions of Sale must be made by the Buyer within twelve (12) months from the event(s) giving rise to the cause of action or claim, failing which the Buyer shall no longer be entitled to pursue any such action or claim against the Seller.

6. Non-Assignment, Title to Goods, Buyer Insurance

(1) The Seller shall reserve the right to retention of title of the delivered Goods until full payment of the Goods has been received by the Seller.
(2) The Buyer agrees and undertakes to obtain adequate replacement value insurance for the Goods against fire, water and theft at the Buyer’s own expenses.
(3) The Buyer shall not assign or transfer or purport to assign or transfer to any other person the Contract or the benefit of any condition, warranty or guarantee or other term or condition (express or implied) forming part thereof or relating to the Goods.

7. Shipment

(1) All shipment and transportation of the Goods shall be effected at the Buyer’s own risk and expense. Upon the Buyer’s request, the Seller shall obtain transport insurance which shall include the customary transport risks associated with the delivery of such Goods. For the avoidance of doubt, all expenses incurred by the Seller in obtaining the said transport insurance shall be solely borne by the Buyer.
(2) In the event shipment and transport of the Goods is delayed due to the Buyer’s fault, the Goods shall be deposited or stored in the Seller’s premises at the Buyer’s own risk and expense.

8. Delivery Time and Delivery Date

(1) The delivery time specified for delivery is only an estimate and the Seller shall not be liable for failure to deliver the Goods within the specified delivery time. Any fees imposed by the Buyer for non-compliance with the delivery time shall not be accepted.
(2) All delivery dates shall be agreed upon by the Parties. If the Parties agree on a delivery period, such period shall commence on the date of the Contract.
(3) The Seller shall be entitled to make partial deliveries or deliveries by instalments and these Conditions of Sale shall apply to each partial delivery or delivery by instalment (as the case may be). 9. Force Majeure
The Seller shall not be liable for any delay in performance or failure to perform when such delay or failure is due to a cause beyond the Seller’s reasonable control, including, but not limited to, acts of God or the public enemy, governmental action, fires, floods, earthquakes, quarantine restrictions, riots, labour difficulties or strikes, insurrections, freight embargoes, plant breakdown, transportation shortages, severe weather and non-performance of, interference with, or disruption to the Seller’s intended sources of supply (collectively, a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Seller shall without unreasonable delay, notify the Buyer of the Force Majeure Event. Where a Force Majeure Event occurs which prevents the Seller from being able to meet its supply commitments to its customers (including the Buyer), the Seller may in its sole discretion, allocate its available inventories between its customers (including the Buyer) using any preferred method. At the Seller’s option, such Goods which are delayed or not delivered due to any Force Majeure Event for a continuous period of six (6) months may be excluded from the Contract.

10. Intellectual Property and Confidentiality

(1) The Parties hereby agree that all intellectual property rights in the Goods (including but not limited to copyright, trade marks, patents, design rights and confidential rights) shall remain the absolute property of the Seller.
(2) For the purposes of these Conditions of Sale, “Confidential Information” shall refer to any and all information (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by the Seller to the Buyer or otherwise obtained by the Buyer relating to the Seller’s business, dealings, technology, know-how, trade secrets, intellectual property, assets, strategy, designs, documentation, manuals, budgets, financial statements, or accounts in relation to the Seller. The Buyer shall keep strictly confidential all Confidential Information and shall procure that its employees, agents, contractors and nominees keep strictly confidential all Confidential Information. Notwithstanding the foregoing, the disclosure of the Confidential Information shall be permitted in the following circumstances: (a) where the disclosure is required by applicable law, (b) where the information is or becomes publicly available through no fault of the Buyer or (c) where the information is obtained from a bona fide third party who is not under an obligation to keep such information confidential.

11. Use of the Goods

(1) The Seller undertakes that it will use its reasonable endeavours to ensure that the delivered Goods correspond with any samples or specifications (collectively, the “Samples”) provided by the Buyer. Notwithstanding the foregoing, the Buyer hereby acknowledges and agrees that the Samples: (a) are only provided for the general consideration and reference of the Buyer and (b) shall not constitute a warranty or guarantee of the properties or condition of the Goods or their suitability for its intended purpose. The Buyer further acknowledges and agrees that regardless of whether the intended purpose of the Goods has been made known to the Seller, the Seller shall not be liable if the delivered Goods are not fit for purpose.
(2) The Parties hereby agree that the Buyer: (a) shall examine the supplied Goods immediately upon receipt (and prior to any processing) in order to ensure that the Goods correspond to the Samples (if any) and (b) has the sole responsibility to satisfy itself that the supplied Goods meet its requisite requirements.
(3) Notwithstanding the foregoing, nothing in these Conditions of Sale shall limit the statutory rights of a Buyer who is dealing as a consumer (as defined under the Unfair Contract Terms Act 1977 of Singapore).

12. Termination

(1) Without prejudice to the other rights and obligations of the Seller under these Conditions of Sale or the Contract, the Seller may terminate the Contract at any time with immediate effect upon written notice to the Buyer, if the Buyer:
(a) commits a material breach of any of its obligations, representations or warranties under these Conditions of Sale or the Contract, and fails to remedy such breach within thirty (30) business days of the Seller notifying the Buyer of such breach. For the avoidance of doubt, the failure to pay any amount due to the Seller under the Contract shall constitute a material breach of the Contract;
(b) commits a series of breaches of any of its obligations, representations or warranties under these Conditions of Sale or the Contract which, if taken in the aggregate, would amount to a material breach, and the Buyer fails to remedy such breaches within thirty (30) business days of the Seller notifying the Buyer;
(c) dissolves or ceases to do business, fails to pay its debts as they come due, has a receiver or similar official appointed for all or a substantial part of the Buyer’s assets, passes a resolution to wind up, or is under any other situation which has an analogous effect to that mentioned in this Section 12(1)(c).
(2) Termination shall be without prejudice to the Seller’s rights that may have accrued prior to such termination.

13. Contracts (Rights of Third Parties) Act

Except as otherwise expressly stated in these Conditions of Sale or the Contract, a person who is not a party to the Contract has no right under the Contracts (Rights of Third Parties) Act 2001 to enforce any term of these Conditions of Sale or the Contract.

14. Governing Law & Jurisdiction

(1) Any dispute arising out of or in connection with these Conditions of Sale and the Contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration administered by the Singapore International Arbitration Centre in accordance with the rules of the Singapore International Arbitration Centre (“SIAC Rules”) for the time being in force, which rules are deemed to be incorporated by reference in this Section. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.
(2) The Agreement shall be subject to the laws of Singapore. The application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna, 1980) shall be excluded.
(3) If any provision in these Conditions of Sale, in whole or in part, shall be or become illegal, invalid or unenforceable, the provision shall apply with whatever deletion or modification is necessary so that the provision is legal, valid and enforceable and gives effect to the commercial intention of the Parties. To the extent the said deletion or modification cannot be done, then such illegal, invalid or unenforceable provision shall not affect the legality, validity and enforceability of the remaining provisions in these Conditions of Sale.