Terms & Conditions
GENERAL TERMS AND CONDITIONS OF SALE AND PURCHASE
A. LEGAL TERMS
In these General Terms and Conditions of Sale and Purchase, the definitions used shall have the meaning as described below:
Affiliated Company means, with respect to each Party, any other corporation or business entity by voting rights, shareholding or agreement directly or indirectly controlling, controlled by or under common control with such party.
Agreement means any of the following: (a) if applicable, the sale and purchase agreement entered into between Company and Customer (Sale and Purchase Agreement or SPA) ; (b) a purchase order sent by the Customer and accepted by the Company (Purchase Order), and (c) these General Terms and Conditions (as amended from time to time); (d) all drawings, designs, requirements, specifications and calculations (which shall include the Packaging Specifications and Quality and Technical Specifications) attached to, as applicable, the Sale and Purchase Agreement or Purchase Order or set out in this GTC.
Archwey Group means the Company and its Affiliated Companies.
Business Day means a business day in Singapore.
Company means the Archwey Group company specified as a party to the Purchase Order and/or the Sale and Purchase Agreement (as applicable).
Company Data means Supplier Data and any personal data and other information collected by the Company in accordance with applicable laws by whatever means.
Company’s IPR means the registered or unregistered intellectual property rights which currently exist or are recognized in the future, including without limitation the trademarks, trade names, patents, designs, copyright and related rights, database rights, know-how, confidential information and all other IPR and similar rights anywhere in the world owned by the Company or validly licensed to the Company for use in accordance with the Agreement.
Company’s Works means any Product manufactured and/or developed using the Company’s IPR or IPR to which the Company has a valid license for use for the purpose described in the Agreement.
Confidential Information means all information and documents of a confidential nature or expressly designated confidential by a Party, whether in writing or oral, directly or indirectly, disclosed by one Party to the other in connection with the Agreement, which shall include but is not limited to, price lists or pricing structures, marketing and sales information, technical, financial and business information and dealings, product lines, research activities, names of customers, business partners, suppliers or proposed business transactions, reports, plans, computer programs or files, designs, models, know-how, trade secrets and any other information.
Control of an entity means:
(a) the power (whether by way of ownership of shares, proxy, contract, agency or otherwise) to:
(i) cast, or control the casting of, more than fifty per cent (50%) of the maximum number of votes that might be cast at a general meeting of the entity; and/or
(ii) appoint or remove all, or the majority, of the directors or other equivalent officers of the entity; and/or
(iii) give directions with respect to the operating and financial policies of entity with which the directors and/or other equivalent officers of the entity are obliged to comply;
(b) the holding beneficially of more than fifty per cent (50%) of the issued share capital of the entity.
Corporate and Social Responsibility Standards – means the prevailing standards set out in the Customer’s policies in https://www.archwey.com/terms-conditions.
Customer means the party named as a counterparty to the Agreement, its manufacturers, Affiliated Companies and their manufacturers (each, a Customer, and together, the Customers).
Customer Data means any personal data and other information relating to Customers and Customer’s end user collected by the Customer in accordance with applicable laws by whatever means.
Customer’s IPR means the registered or unregistered intellectual property rights which currently exist or are recognized in the future, including without limitation the trademarks, trade names, patents, designs, copyright and related rights, database rights, know-how, confidential information and all other IPR and similar rights anywhere in the world owned by the Customer or to which Customer has a valid license.
Customer’s Works means any Products manufactured and/or developed using the Customer’s IPR or IPR to which the Customer has a valid license for use for the purpose described in the Agreement.
Date Product Received means the date on which Product is received by the Designated Freight Forwarder in accordance with Incoterms in the Purchase Order.
Defective Product means a Product (a) which does not satisfy the Product warranties in Clause 9; and/or (b) carries any Product Discrepancies.
Designated Freight Forwarder means the freight forwarder designated and approved by the Customer as notified by the Customer to the Company from time to time.
Event of Insolvency means in relation to either Party to this Agreement, that a voluntary arrangement is proposed or approved or an administration order is made, or a receiver or administrative receiver is appointed of any of the assets or undertaking of that Party, or a winding-up resolution or petition is passed or presented or other similar or equivalent action is taken against or by that Party by reason of its insolvency or in consequence of debt.
Force Majeure Event means an event (including without limitation acts of God or public enemy, inclement weather, fire, explosions, earthquake, floods, strikes, work stoppages, slowdowns or other industrial disputes, accidents, riots or civil disturbances and outbreak of epidemics or application of any local, state, federal, national or international law, governmental order or regulation) that affects a Party which is beyond that Party’s control.
General Terms and Conditions or GTC means these general terms and conditions, comprising the Legal Terms set out in Section A and Trading Terms set out in Section B, as contained in and updated from time to time on https://www.archwey.com/terms-conditions.
Group Policies means the prevailing Archwey Group policies provided at https://www.archwey.com/terms-conditions.
Incoterms means those trade terms published by the International Chamber of Commerce, as amended from time to time.
Intellectual Property Rights or IPR means the registered or unregistered intellectual property rights which currently exist or are recognized in the future, including without limitation the trademarks, trade names, patents, designs, copyright and related rights, database rights, know-how, confidential information, customer data and all other IPR and similar rights wherever in the world enforceable.
Letter of Authorisation - means the letter valid for the term of any Sale and Purchase Agreement addressed to “whom it may concern” to confirm that the Customer is the exclusive owner in and to the Customer’s IPR supplied for the manufacture and development of the Product or that the Customer is duly licensed by a third party (including without limitation any resale customer) to supply that third party’s IPR to the Company for manufacture and development of the Product.
Non-Conforming Product means any Product identified as Defective Product or Product delivered as part of an Unauthorised Delivery.
Packaging Specifications means the specifications, as amended from time to time, set out in https://www.archwey.com/terms-conditions.
Party means either the Company or the Customer and Parties means both the Company and Customer collectively.
Products means the material or products manufactured in accordance with the Quality and Technical Specifications and delivered in accordance with the Packaging Specifications detailed and Incoterms described in a Purchase Order which is supplied or to be supplied by the Company and its Affiliated Companies to the Customer.
Product Discrepancies means discrepancies between the Product received or delivered to the end customer and the Product ordered pursuant to the Purchase Order.
Quality and Technical Specifications means the specifications and requirements, as amended from time to time, set out in the SPA or Purchase Order (as applicable) or in https://www.archwey.com/terms-conditions.
Supplier Data means any personal data and other information relating to suppliers or potential suppliers collected by the Company in accordance with applicable laws by whatever means.
Territory means the territory of distribution and sale as set out in the Sale and Purchase Agreement or Purchase Order, as applicable.
Unauthorised Delivery means deliveries of the Product for which there is no valid Purchase Order, invoice, order confirmation, Incoterms or Letter of Authorisation provided (if required).
Works means any materials or merchandise manufactured and developed using the Company’s IPR or the Customer’s IPR as applicable together with all IPR in such materials and merchandise.
1.1 These General Terms and Conditions apply to supply of Products by the Company to the Customer under Purchase Order(s) issued pursuant to the SPA.
1.2 To the extent that these General Terms and Conditions conflict with any Customer terms, these General Terms and Conditions shall prevail. To the extent that these General Terms and Conditions conflict with any terms in a Purchase Order or SPA (including any drawings, designs, requirements, specifications and calculations attached to the Purchase Order), the terms of the Purchase Order and SPA shall prevail. As between the SPA and the Purchase Order, the terms of the Purchase Order shall prevail.
1.3 The Customer shall be deemed to have accepted these General Terms and Conditions (a) where a SPA is executed by the Parties, by acceptance of the terms set out in that agreement; and (b) where a SPA is not executed by the Parties, by the Customer’s acceptance of the Company’s invoice. The invoice is deemed to be accepted by the Customer’s written confirmation or action indicating the intended fulfilment of the invoice (including without limitation partial or full payment of the invoice), whichever is earlier.
2. Ownership and Risk
2.1 Right and title to the Product shall pass to the Customer upon the Date Product Received.
2.2 Risk in respect of damage and loss of the Product received shall pass to the Customer, provided that risk to any Product shall automatically return to the Company upon notice given by the Customer rejecting Non-Conforming Product.
2.3 The Company shall at all times:
(a) store the Product separately from all other products held by the Company so that they are readily identifiable by the Customer;
(b) store the Product in accordance with any special storage instructions provided by the Customer on or before delivery of the Product;
(c) keep the Product fully insured against all risks for their full price until delivery;
(d) notify the Customer immediately if it becomes subject to an Event of Insolvency; and
(e) give the Customer such information relating to the Product as it may require from time to time.
2.4 In the event that either Party becomes aware of the existence of any quality or technical problem relating to the Product which has left the control of the Company and the relevant Party reasonably believes that the problem in question creates or is likely to give rise to a risk to health or safety of the resale customers or end users of the Product or the possibility of non-compliance with applicable laws or standards, the following provisions will apply:
(a) the relevant Party will upon becoming aware of the problem immediately notify the other Party in writing, and any such notification shall as a minimum:
(i) identify and state the quantity of the Products affected;
(ii) specify any relevant coding information; and
(iii) specify any other relevant information which may be of assistance in tracing the Products.
(b) representatives of the Company and the Customer shall appropriately communicate for the purpose of agreeing on the measures to be taken in order to remedy the failure.
3. Intellectual Property Rights
3.1 The Company represents and warrants that it has:
(a) if applicable, a valid right, title and interest in Company’s IPR;
(b) valid right to use the Company’s IPR for supply of the Product;
(c) valid right to license the Customer and end customers to use Company’s IPR incorporated in the Product for the purpose described in Clause 3.3 below.
3.2 The Customer agrees that it will fulfil the requirements and upon request, execute or procure the execution of the Letter of Authorisation in order to satisfy the Company that it has complied in full, with its obligations under this Clause 3.
3.3 The Customer acknowledges that the Company has all right, title, interest in the Company’s IPR and that any rights arising from the use of the Company’s IPR to create Company’s Works shall inure to the benefit of the Company. The Customer agrees that it will not use any of the Company’s IPR except as previously authorised by the Company in writing and it will not challenge the Company’s IPR. The Company grants a perpetual, royalty free, non-exclusive licence to the Customer to use the Company’s IPR incorporated in the Product for the purpose of (a) designing, developing and manufacturing merchandise incorporating the Product; and/or (b) displaying, merchandising, retailing and distribution of the Product or merchandise incorporating the Product, for marketing and intended sale transactions in the territories of distribution and sale subject to the Customer’s compliance with any instructions or brand guidelines made available by the Company in connection with the use of Archwey Group’s IPR. The Customer agrees to supply any marketing materials using Archwey Group’s IPR for review and approval of the Company.
3.4 The Company acknowledges that Customer has all right, title, interest in the Customer’s IPR and that any use of the Customer’s IPR by the Company to create Customer Works shall inure to the benefit of Customer. The Company agrees that it will not use any of the Customer’s IPR except as previously authorised by the Customer and it will not challenge the intellectual property rights or other rights of Customer in the Customer’s IPR. The Customer grants the Company and its Affiliated Companies a royalty-free, fully paid up, non-exclusive, non-revocable license to use of the Customer’s IPR in the Product for the purpose of (a) designing, developing and manufacturing the Product, (b) display of the Product in the territories in which the Archwey Group operates and (c) a right to sublicense the rights granted in clause (a) and (b) above to its suppliers for the purposes detailed in these clauses.
3.5 Subject to Clause 3.4 above, where Company has been engaged by Customer to create designs and develop the Product on behalf of the Customer, all IPRs in the designs and/or in the Product, including without limitation any drafts and preparatory work created whether jointly with the Customer or solely by the Company, shall be vested in the Company. The Customer agrees to irrevocably assign the IPRs vested in such Works to the Company upon their creation, with full title, guarantee, intellectual property rights and any other interest in those Works. At the request and cost of the Company, the Customer shall take such actions and execute any documents as is reasonably necessary and as the Company requires to vest properly all such rights in the Company or (where directed by the Company) in its nominee and secure all appropriate forms of protection for and defend and enforce such rights.
3.6 Any written material or drawings or specifications supplied by the Company to the Customer shall remain subject to the Company’s IPR, shall be stored with adequate security measures and shall not be copied or used for any purpose other than satisfying the requirements of the Agreement. The Customer shall promptly return, when requested by the Company, all written material and drawings or specifications previously supplied by the Company.
3.7 The Customer agrees that it shall not cause or permit anything to be done (or not done) which may damage or endanger the Company’s IPR or Archwey Group’s IPR.
3.8 If during the term of the Agreement, the Customer becomes aware of any infringement of any of the Company’s IPR or Archwey Group’s IPR, the Customer shall immediately inform the Company in writing.
4.1 The Customer agrees that the Archwey Group companies have all right, exclusive title and interest in any Company Data and the Company agrees that the Customer shall have all right, exclusive title and interest in any Customer Data .
4.2 The Customer, its employees, agents or sub-contractors and its Affiliated Companies shall not independently collect, use, retain, solicit, disclose to third parties or remove any of the Company Data without the prior written consent of the Company, nor shall the Customer challenge the rights (including IPR) of the Company in the Company Data.
4.3 The Company, its employees, agents or sub-contractors and its Affiliated Companies shall not independently collect, use, retain, solicit, disclose to third parties or remove any of the Customer Data without the prior written consent of the Customer, nor shall the Company challenge the rights (including IPR) of the Customer in the Customer Data.
4.4 Personal data disclosed by a Party to the other may only be used, for the purpose of, fulfilling its obligations under this Agreement (and must be deleted/destroyed as soon as it is no longer necessary for such purpose). The Parties agree that, in addition to treating such personal data as Confidential Information it will: (a) comply with all reasonable instructions in relation to such personal data (including its use and storage); (b) not use such personal data for any purpose other than to perform its obligations under this Agreement; (c) take all reasonable measures to protect such personal data (while in its possession) from unauthorized access, usage or loss; (d) not transfer such personal data to any third parties (except with the disclosing Party’s prior written consent); (e) promptly give the relevant Party all reasonable assistance it requires to enable it to comply with all applicable laws; and (f) ensure that such personal data is only accessible to those in its organization who need to have access to it in order to perform its obligations under this Agreement.
4.5 The Company shall be entitled to supply any Archwey Group company such information or personal data in respect of the Customer for marketing or other business purposes, including the exchange of non-financial information with selected business partners, without the Customer’s further consent being obtained.
5.1 For the purpose of this Clause 5, Disclosing Party and Receiving Party shall mean the Party disclosing and receiving Confidential Information respectively.
5.2 Receiving Party may not at any time disclose to any third party any Confidential Information. The obligation in this clause shall not apply to any information which the Receiving Party can show was:
(a) publicly available at the time of disclosure;
(b) becomes, after disclosure, part of the public domain by publication or otherwise, except by violation of the Agreement;
(c) is made available to the Receiving Party on a non-confidential basis from a third-party source that the Receiving Party has confirmed (after such inquiry as would be reasonable under the circumstances) is not bound by a confidentiality agreement or other legal or contractual obligation of confidentiality;
(d) subject to Clauses 5.5 to 5.7, is required to be disclosed by law;
(e) is independently developed by the Receiving Party without reference to any Confidential Information shared by the Disclosing Party.
5.3 The Receiving Party may only disclose Confidential Information to its employees, professional agents, sub-contractors or its Affiliated Companies (collectively, the Representatives) in connection with the Agreement if, in the Receiving Party’s reasonable opinion the Representative must necessarily be involved in the decision-making in the Agreement and provided that such Representative is informed of the confidential nature of the information and directed to treat such information confidentially pursuant to the Agreement.
5.4 Neither Party shall disclose to any person the existence of the Agreement and its terms and conditions. For the avoidance of doubt, the Customer shall not hold itself out as a customer of the Company or the Archwey Group to any third party without the prior written consent of the Company.
5.5 In the event that the Receiving Party or its Representatives are legally compelled (by court order, oral motion, interrogatory, request for information or documents, subpoena, civil investigation, demand or similar legal process) to disclose Confidential Information or any information relating to the Agreement, the Receiving Party shall provide the Disclosing Party with prompt written notice of such request and the terms of and circumstances surrounding such request, so that such the Disclosing Party may consider whether there are appropriate grounds to object to such production and if so, the Receiving Party shall appear before the requesting authority to object to such production.
5.6 Without prejudice to Clause 5.5 above, the Disclosing Party may seek a protective order or other appropriate remedy and the Receiving Party agrees to co-operate fully with the Disclosing Party to seek such remedy.
5.7 In the event that such protective order or other remedy is not obtained, then the Receiving Party and its Representatives shall furnish only such portion of the information or take only such action as it is advised by counsel is legally required by binding order and, where available, shall use commercially reasonable efforts to obtain an order or other reliable assurances that confidential treatment will be accorded to the information furnished.
5.8 Upon expiry or termination of the Agreement (in whole or in part), the Receiving Party shall promptly return to the Disclosing Party any Confidential Information supplied under the Agreement which shall remain at all times the property of the Disclosing Party.
5.9 Receiving Party shall be permitted to retain one copy of the relevant documents (including written Confidential Information and any materials produced, developed and/or compiled using the information) as may be necessary to document the Agreement for the purpose of establishing its compliance with any applicable laws or regulations and for defending or maintaining any litigation relating to this Agreement, provided that such retained material shall be kept only in its record archives except to the extent used for any such purpose. All Confidential Information that is not returned or destroyed pursuant to this Clause 5.9 shall remain subject to the Agreement.
5.10 Each Party recognizes and acknowledges the competitive value and confidential nature of the Confidential Information and that money damages may not be a sufficient remedy for any breach of the Agreement.
5.11 Each Party acknowledges that in the event of such a breach or threatened breach of the Agreement, it shall be entitled to seek equitable relief, including an injunction and specific performance, in addition to any other right or remedy to which it may be entitled.
6.1 Notwithstanding the expiry or termination of the Agreement (in whole or in part), the Customer will indemnify and hold the Company harmless from and against all losses, damages, costs and all liabilities and obligations of any nature whatsoever (including loss of property, loss of trade, any legal and associated costs and all reasonable fees on an indemnity basis) howsoever arising from any claims, pending or threatened suits, proceedings or actions against the Company or its Affiliated Companies:
(a) relating to any alleged or actual infringement of the Company’s IPR or Archwey Group’s IPR; or
(b) as a result of any:
(i) breach of any applicable laws or regulations; or
(ii) material breach of any provision of the Agreement (including without limitation terms in the SPA relating to Exclusivity (if applicable) and Clause 3 above);
by the Customers, its employees, agents, carriers or otherwise.
6.2 The Parties shall, at all times, have in force and maintain at their own cost (and cause any sub-contractors to have in force and maintain at their own cost) such policy or policies of insurance with insurers of good repute which would give the Parties adequate cover in respect of all of the Parties’ insurable liabilities under the Agreement. The Company shall, upon request by the Customer, provide the Customer with all such documentation as is necessary to prove the Company’s continuing compliance with its obligations to insure under this clause.
6.3 The Parties shall immediately notify each other, with no admission of liability or entering into any settlement, of any claim or action brought or threatened in respect of which the other Party may be or become liable under this Agreement.
7. Company’s Liability
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE COMPANY be LIABLE TO the CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS INFORMATION OR BUSINESS INTERRUPTION) ARISING OUT OF OR IN ANY WAY RELATED TO THE Agreement, EVEN IF the company HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
7.2 IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON THE COMPANY, THEN the CUSTOMER AGREEs THAT THE AGGREGATE LIABILITY OF THE COMPANY FOR ANY AND ALL LOSSES OR INJURIES ARISING OUT OF ANY ACT OR OMISSION OF THE COMPANY or its EMPLOYEES, AGENTS, sub-contractors OR affiliated companies IN CONNECTION WITH the AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE NATURE OF THE LEGAL OR EQUITABLE RIGHT CLAIMED TO HAVE BEEN VIOLATED, SHALL NEVER EXCEED THE amount ACTUALLY PAID BY THE Customer TO the company FOR THE product(s) in the twelve (12) months preceding the event giving rise to the CLAIM.
7.3 NOTHING IN THIS AGREEMENT IS INTENDED TO exclude ANY LIABILITY IN RESPECT of DEATH OR PERSONAL INJURY by THE COMPANY or its employees, agents or sub-contractors.
8. Group Policies
8.1 The Group Policies form part of the relationship with any business partner of the Archwey Group. Failure to comply with these policies may lead to a civil and criminal prosecution under the provisions of applicable local laws in the countries in Archwey Group operates. It may also result in violation of local laws in any business partner’s country of origin.
9. Representation and Warranties
9.1 Each party represents, warrants and covenants that:
(a) it is a company duly incorporated or established and validly existing under the laws of its place of incorporation;
(b) it has full power, authority and legal right to own its assets and carry on its business and is not in receivership or liquidation, it has taken no steps to enter liquidation and no petition has been presented for its winding up and there are no grounds on which petition or application could be based for its winding up or appointment of a receiver;
(c) it has all license, permits and consents to carry out its business;
(d) it has the capacity and has obtained the authorization necessary, to enter into and perform its obligations under the Agreement and that when executed the Agreement will constitute a valid and binding obligation on it; and
(e) its execution and performance of the Agreement will not violate any applicable laws or regulations.
9.2 The Company represents and warrants that:
(a) the Product has been manufactured in accordance with the prevailing Quality and Technical Specifications and delivered in accordance with the Packaging Specifications in full compliance with applicable laws and regulations;
(b) the management system operated at the manufacturing premises has been certified to conform with ISO 9001 and ISO 14001;
(c) the production process used to manufacture the Product meets all requirements of applicable laws and regulations (including without limitation safety standards and sanctions) and the Company’s Corporate and Social Responsibility Standards;
(d) it has full, clear and unencumbered title to the Product and the right, power and authority to sell, transfer and deliver the Product to the Customer; and
(e) where the Product is accepted, the Customer shall acquire valid, unqualified and unencumbered title to the Product.
The Company’s warranty in Clause 9.2 (a) above shall apply for a term of eighteen (18) months from the Date Product Received in respect of each Purchase Order.
10.1 The Company may terminate all or part of this Agreement immediately at any time by written notice if the Customer to meet its obligations under terms applicable to Exclusivity (if applicable under the SPA) and fails to remedy such breach to the satisfaction of the Company within fourteen (14) Business Days.
10.2 A Party may terminate the Agreement in whole or in part by written notice in the event that the other Party:
(a) fails to pay any amount due and fails to remedy such default within thirty (30) Business Days after notification of default;
(b) materially and/or continuously fails to meet any other obligations under this Agreement and either that breach is not capable of remedy or, if such breach is capable of remedy, the other Party has failed to remedy the breach within sixty (60) Business Days;
(c) ceases to trade or carry on its business for more than thirty (30) Business Days;
(d) undergoes an Event of Insolvency;
(e) undergoes a change of Control; or
(f) on the occurrence of a Force Majeure Event subject to and in accordance with terms set out below (Force Majeure).
10.3 Force Majeure
(a) A party shall not be deemed in breach of the Agreement if that party (the Affected Party) is unable to perform its obligations under the Agreement or any part of it by reason of a Force Majeure Event.
(b) Upon occurrence of any Force Majeure Event, the Affected Party shall give notice to the non-Affected Party providing relevant detail relating to the event. The Parties shall collaborate to overcome the Force Majeure Event and to mitigate adverse consequences of non-performance of obligations under the Agreement, each bearing their own costs. If it is not possible to overcome the Force Majeure Event within a reasonable period of time, the non-Affected Party may terminate all or part of the SPA in accordance with Clause 10.2 above.
10.4 Effect of Termination
Upon termination of this Agreement the Customer shall immediately cease to use and shall return any of the Company’s IPR supplied for the purpose of this Agreement together with any Confidential Information pursuant to its obligations under Clause 5.8 (Confidential Information).
11.1 The Customer agrees that Company may subcontract its obligations under the Agreement to any Affiliated Company, contractor or supplier.
11.2 The Customer may not assign or sub-contract its rights or delegate any of its obligations under the Agreement except with the consent of the Company.
11.3 The Agreement contains a complete statement of all the arrangements between the parties regarding its subject matter and supersedes any previous arrangement whether oral or in writing. The failure of either party to insist upon strict adherence to any term of the Agreement shall not be construed as a waiver or deprive that party of the right thereafter to insist upon strict adherence to any term of the Agreement.
11.4 If any term of the Agreement is invalid or unenforceable, the remaining terms shall remain in effect.
11.5 Neither Party shall be considered as or hold itself out to be any agent of the other Party and neither Party may act or bind the other Party in any dealings with a third party. Nothing in the Agreement (or any arrangement contemplated by it) is or shall be deemed to constitute a partnership or to establish an economic entity of any form between the Parties.
11.6 References to applicable laws and regulations include any amendments to those laws and regulations made from time to time.
11.7 The Parties’ obligations under Clause 3 (IPR), Clause 4 (Privacy), Clause 5 (Confidentiality), Clause 6 (Indemnity), Clause 7 (Company’s Liability), Clause. 8 (Group Policies) and Clause 9 (Representations and Warranties) of the Legal Terms in this GTC and the terms of the SPA relating to Exclusivity (if applicable) shall survive the termination of the Agreement.
11.8 Should there be any inconsistency between the English version and a translated version of the Agreement, the English version shall prevail.
11.9 All notices, requests, demands and other communications which may be given or are required to be given under the Agreement shall be in writing.
11.10 Unless otherwise provided herein, a person who is not a party to the Agreement shall have no right under applicable Third Party Rights legislation to enforce or enjoy the benefits of this Agreement.
12. Governing Law and Dispute Resolution
12.1 The Agreement shall be governed and construed in accordance with the laws of Singapore.
12.2 Any dispute arising out of or in connection with the SPA, 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 (the SIAC) in accordance with the Arbitration Rules of the SIAC for the time being in force, which rules are deemed to be incorporated by reference in this clause. The seat of the arbitration shall be Singapore and the tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.
B. TRADE TERMS
In these General Terms and Conditions, the definitions used shall have the meaning as described below or as described in the Legal Terms (Section A):
Alternative Shipping Terms means arrangements for transportation, delivery, collection, transfer of title and/or acceptance of risk to or in the Products specified in accordance with the terms of Clause 2.3 below.
Cancellation Date means the date shown on the Purchase Order as the End Date of Shipment Window, on or after which the Purchase Order may be cancelled by the Company without any liability or compensation to the Supplier unless the Product has been delivered to the location specified in the Purchase Order within the Shipment Window or that the Shipment Window has been otherwise extended in writing.
Non-Conforming Order means an order of Non-Conforming Product.
Replacement Product means goods to be supplied or made available by the Company to replace Defective Product or Product which has not been accepted by the Customer because of Product Discrepancies identified on delivery.
Shipping Documents means the invoice, the packing list, the airway bill, country of origin certificates, approval documents, (if applicable) compulsory certifications and any other approvals, consents, certificates or licences required for import in accordance applicable laws in the territory of manufacture from time to time and as required for the relevant Purchase Order.
1. Purchase Order
1.1 Purchase Orders must be in writing and sent electronically and if specified in the Sale and Purchase Agreement, shall be in the form set out in the Agreement.
1.2 The prices quoted and/or agreed upon between the parties shall be exclusive of taxes, levies, duties any loading and delivery costs unless the contrary is expressly provided in writing.
1.3 Company may not substitute any Product for any alternative items (even if similar) or supply fewer or more items or change the price from that specified in the Purchase Order without the prior written agreement of the Customer.
1.4 Save as otherwise agreed between the parties, title and risk of damage to the Products shall pass to the Customer in accordance with the specified Incoterms in the SPA and Purchase Order (as applicable).
1.5 Unless otherwise agreed in writing, the standard payment terms are ten (10) calendar days of invoice date.
2. Delivery and Shipping
2.1 It is the Customer’s responsibility to ensure that it complies with the applicable import requirements for the Products and the Company’s responsibility to ensure that it complies with the applicable Incoterms. In the case of Products supplied under Incoterms ex-works or equivalent terms the Company’s obligations are limited to provision of relevant documentation required for the Customer to complete appropriate import declarations in compliance with applicable regulations and laws.
2.2 Company shall ensure that the Product is appropriately packed, labelled and ticketed (if required) in accordance with the Packaging Specifications with all the required accompanying Shipping Documents prior to and during delivery and dispatch.
2.3 If Alternative Shipping Terms are specified, the Company must deliver the Product as specified in these terms and title and risk to the Product will pass to the Customer in accordance with the specified Incoterms of such Alternative Shipping Terms.
2.4 If the Company anticipates that it cannot satisfy Incoterm specified in the Purchase Order, it shall provide minimum notice of fourteen (14) calendar days by email to the authorised representative of the Customer advising on the delay to Date Product Received originally specified in the Purchase Order and a new Date Product Received.
2.5 Where the Company is required by any Alternative Shipping Terms to deliver or make the Product available to any third party carrier, the Company must ensure that such carrier is the Designated Freight Forwarder.
2.6 The Company shall comply with the logistical and other requirements in respect of delivery of the Products in accordance with Incoterms specified in the Purchase Order.
2.7 Upon the Customer’s written request with reasonable prior notice, the Company shall prepare and provide to the Customer periodic reports tracking purchases or deliveries (including the types, quantity and price of the Products).
3. Defective Product
3.1 It is a condition of the Agreement that Product is not a Defective Product.
3.2 If the Customer reasonably suspects that any Product is a Defective Product, the Company shall at the Customer’s request, inspect and test the Product at its sole cost to ascertain, whether or not, the Product is defective or at the Customer’s option, engage a mutually agreed independent third party to inspect and/or test the Product. The cost of such engagement shall be borne by the Customer unless it is determined that the Product delivered by Company is a Defective Product. Any Defective Product may be rejected and returned to the Company at the Company’s cost as set forth in Clause 3.3, within fifteen(15) calendar days of the date of the inspection, identifying defect.
3.3 If it is determined in accordance with Clause 3.2 above that the Product is a Defective Product, the Customer may at its option:
(a) grant the Company an opportunity to correct the defect within a reasonable mutually agreed period; or
(b) grant the Company the opportunity to re-supply the Product in which case the Company shall pay all the costs (including, without limitation import/export costs and taxes) relating to transportation and redelivery of the Product to the Customer or its nominees.
3.4 When the Customer rejects a Product in accordance with Clause 3.2 and such Product has been delivered to the Customer, the Customer will make the Product available for collection for a period of fourteen (14) calendar days.
3.5 The Company acknowledges and agrees the Customer’s written communication to the Company (by electronic or other means) shall constitute sufficient notice of a Non-Conforming Order.
3.6 Where Defective Product carries a latent defect, written notice to the Company within five (5) calendar days of inspection identifying the latent defect shall be deemed as sufficient notice.
3.7 For the avoidance of doubt, the Company shall not be liable or responsible for any defects arising as a result of or in connection with (a) any manufacturing or chemical process applied to the Product after delivery of the Product by Company to Customer; (b) the combination of the Product with other materials, whether through a manual process (e.g. crushing and packing), chemical or heat process or otherwise; or (c) the conditions of packaging and storage of the Product by the Customer, unless it can be demonstrated that the defect at issue arises solely as a result of the Company’s breach of the warranties in Clause 9.2 of the Legal Terms.
4. Invoicing for Purchase Orders
4.1 Company agrees that payment for Products received and checked by the Customer is conditional upon the Customer having received a valid invoice from the Company.
4.2 A separate invoice is required for each order. The Products included in the invoice must match the Products in the Purchase Order and order confirmation.
4.3 Customer shall, at first request in writing from Company, pay any outstanding amount related to an invoice issued by the Company, which is not paid when due. The Company shall be entitled to charge interest at a rate of 4% above a major bank or central bank’s base rate every six (6) months during which any sums owed to the Company remains unpaid.
4.4 The Company may agree in advance to payments for a particular Purchase Order or series of Purchase orders being made in currencies other than US dollars. In these circumstances, the Purchase Order(s) and all other documents in relation to such Purchase Order(s) must state the relevant currency code and all prices must be quoted in the relevant currency.