..:::: General
Terms And Conditions ::::...
Unless any provision to the contrary is
stipulated in the Sales Contract / Proforma Invoice, the following terms and conditions
shall be applied.
1. Definitions:
Buyer means the person who
buys or agrees to buy the goods from the Seller.Conditions means the terms and
conditions of sale set out in this document and any special terms and conditions agreed in
writing by the Seller.Goods means the articles, merchandise or commodities
which the Buyer agrees to buy from the Seller.
Seller means Kawamin Pacific
Pte Ltd. a company incorporated in Singapore
2. Quantity:
The quantity stipulated in the Sales
Contract / Proforma Invoice shall be subject to a variation of plus or minus ten percent
(10%) at Sellers option. (If not stipulated otherwise).
3. Shipment:
The delivery of the goods to a carrier in
accordance with this contract and issuance of Bill of Lading by the carrier to Seller
shall be deemed to be completion of shipment to Buyer, and therefore Sellers
responsibility in delivery of the goods to Buyer shall be deemed to terminate upon the
said shipment. The date of the bill of lading shall be deemed as conclusive proof of the
date of shipment.
In the event of the goods being shipping
in more than one lot for this contract, each lot shall be deemed to be a separate sale or
contract, and therefore any quality issue, non-delivery and/or any dispute arising on any
part(s) of this contract shall not affect the other part(s) of this contract.Unless
otherwise stated, the terms shall carry the meanings, duties and obligations set out in
the INCOTERMS 2000.
4. Title and Risk:
The goods supplied or to be supplied but
already specified, shall remain the property of the Seller until the full payment of price
and the additional costs. Title of goods pass from Seller to Buyer upon Sellers
receipt of the full payment as per this contract. Risk of loss shall pass from Seller to
Buyer upon delivery of material over ships rail at load port.
5. Payment:
Buyer shall establish in favour of Seller
an Irrevocable, confirmed, unrestricted and without recourse letter of credit covering
full amount of this contract, negotiable on sight draft through a first class
International Bank, which shall be received by Seller immediately after conclusion of this
contract. The letter of credit shall be valid and effective for at least twenty-one (21)
days unless otherwise specified after the last date of shipment for negotiation of the
relative draft. If Buyer for any reason fails to furnish the letter of credit in the
manner and form aforesaid or to fulfil the payment term under this contract, Seller may
reserve the right to postpone the shipment or to cancel all or any part of this contract
and/or may be entitled to dispose of the goods on Buyers account and risk and/or
claiming compensation to be made by Buyer to Seller to cover any Sellers loss
resulting from the Buyers failure. The letter of credit shall refer to this contract
by its number, and shall authorise reimbursement to Seller for such sums, if any, as may
be advanced by Seller for consular invoices, inspection fees and other expenditures made
by Seller for account of Buyer.
6. Packing, Etc:
The make-up, packing and marking shall be
at Sellers option. In case special instructions are necessary, Buyer shall furnish
Seller with such instructions in time for preparation or shipment of the goods. Should
Buyer designate any special instructions, all additional charges incurred thereby shall be
at the Buyers account and shall be added to the invoice amount, for which the Letter
of Credit shall be amended accordingly.
7. Inspection:
The inspection of the goods shall be
performed according to the export regulations of country of shipment or by the
Manufacturer or Seller and such inspection shall be considered as final. Should Buyer
designate any specific inspection, all additional charges incurred thereby shall be at
Buyers account and shall be added to the invoice amount, for which the letter of
credit shall be amended accordingly.
8. Increased Cost:
If Sellers cost of performance are
increased after the date of this agreement by reason of increased freight rates (including
any freight surcharges), taxes, duties or other governmental charges, and insurance rate
including war risk, or if any variation in rate of exchange increase Sellers cost or
reduces Sellers return, Buyer agrees to compensate Seller for such increased cost or
loss of income. However, all import duties shall be paid by Buyer, regardless of any
change in the amount of any such duties.
9. Force Majeure:
If any performance of this contract is
prevented or delayed in whole or in part, by reason of any acts of God, prohibition of
exportation, fire, war, acts and/or regulations of government, armed conflict, civil
commotion, strike or other labour disputes, severe economic dislocation, lockouts, peril
or accident of the sea, delay in transportation, the bankruptcy or insolvency of
manufacturers or suppliers directly or indirectly, or any other causes beyond the
reasonable control of Seller or of the manufacturers or suppliers of the goods, Seller
shall not be liable for the non-performance of this contract including non-shipment or
late shipment of the goods, and Buyer shall accept any shipment made within a reasonable
time, or shall accept the cancellation of all or any part of this contract at
Sellers option.
10. Claim:
The Buyer shall be deemed to have
accepted the goods fifteen (15) days after the arrival of the goods at the destination
stipulated in the Sales Contract/Proforma Invoice. Unless written notice accompanied by
proof certified by an authorized surveyor is sent by the Buyer during the above-mentioned
period, the Buyer is deemed to have accepted the goods. After the acceptance of goods the
Buyer shall not be entitled to reject goods which are not in accordance to the contract.
Where the Buyer accepts or has been deemed to have accepted any goods then the Seller
shall have no liability whatever to the Buyer in respect of those goods.
In no event may Buyer assert a claim for
any reason whatsoever after the goods are used, sold, cut, processed or otherwise altered.
11. Governing Law & Arbitration:
This Contract shall be governed by and
construed (interpreted in accordance with the Laws of Singapore. Any dispute and/or claim
arising out of and/or in connection with this said Contract which cannot be settled by
negotiations between the parties, shall be submitted to arbitrators in Singapore pursuant
to the laws and regulations of Singapore and the parties hereby agree that any declaration
reached in arbitration shall be final and binding on both the parties and the arbitrators
are to determine which party is to bear the costs of the arbitration. Should the
arbitrators not make a declaration as to which party is to bear the said costs, costs
incurred in the said arbitration are to be borne by the unsuccessful party.
12. Liability:
The Seller warrants that the goods will
at the time of delivery correspond to the description given by the Seller. All other
conditions, warranties, terms, undertakings and obligations implied statute, common law,
custom, trade usage or otherwise (including, without prejudice to the generality of the
foregoing, any implied condition, warranty or undertaking as to the condition of the
goods, merchantable quality or fitness for any particular purpose) are hereby wholly and
expressly excluded, provided that nothing in this contract shall restrict or exclude
liability for death or personal injury caused by the negligence of the Seller. In the
event of any breach of this contract by the Seller, the remedies of the Buyer shall be
limited to damages. Under no circumstances shall the liability of the Seller exceed the
price of the goods. In no event shall the Seller be liable to the Buyer for any indirect
or consequential loss or damage, nor shall the Seller be liable for any loss of profit,
loss of use or production or of contracts which the other may suffer arising out of any
breach by the Seller of its obligations under the contract and whether the same be due to
the negligence of the Seller or not.
13. Infringements, Etc:
The Seller shall not be liable for any
infringement with regard to patent, utility, design, trademark and the likes originated
and/or chosen by the Buyer. Nothing contained herein shall be construed as, transferring
any patent, utility model, trademark, design or copyright in merchandise; all such rights
are to be expressly reserved in view of the true and lawful owners thereof. The Buyer
agrees to indemnify the Sellers liability and/or liabilities for all loss and/or
damage arising from any dispute and/or claim in relation with the above right and/or
rights. Further, the Seller hereby expressly reserves all rights to cancel and make null
and void this contract at his sole discretion in the event of such dispute and/or claim.
14. Non-Performance:
The Seller may by written notice,
terminate with immediate effect this Contract or suspend his performance of all or any of
his obligations under it immediately and without liability for compensation or damages and
be able to claim reimbursement from the Buyer for any loss sustained therefrom if:
(a)
any payment of any money payable by the Buyer under this Contract and/or any agreement
supplemental to it and/or any other contract with the Seller is not paid to the Seller on
the due date whether demanded or not; or
(b)
the Buyer fails to comply with any of his/its express and/or implied obligations under
this Contract and/or any agreement supplemental to it and/or any other contract with the
Seller; or
(c)
the Buyer fails to comply with any of his/its express or implied obligations under this
Contract and/or any agreement supplemental to it and the failure (if capable of being
remedied) remains unremedied for 7 days after being called to the Buyers attention
by written notice from the Seller; or
(d)
the Buyer dies, becomes bankrupt, becomes insolvent, has a receiving order made against
him/it, makes arrangement with his/its creditors generally or takes or suffers any similar
action as a result of debt; or
(e)
the Buyer convenes a meeting of its creditors or suffers a petition to be presented or a
meeting to be convened or other action to be taken with a view to its liquidation or
amalgamation or reconstruction (except with the written approval of the Seller); or
(f)
an administration order is made in relation to the Buyer; or
(g)
a receiver or administrative receiver is appointed of any of the Buyers property.
15. Liquidated
Damages:
Except in a situation of force majeure
(referred to in clause 9), if the Buyer fails to arrange the payment or establish the
letter of credit strictly in compliance with this Contract within the stipulated date
specified in the Contract, liquidated damages of 2% of the total contract value is to be
paid by the Buyer to the Seller. This amount is to be paid to the Seller within 15 days
after the Buyer receives the claim from the Seller stipulating amount to be paid and
payment instructions.
Except in a situation of force majeure,
if the Seller fails to ship the goods as stipulated in this Contract after receiving the
payment arrangement or letter of credit in order with the terms of this Contract, the
Seller is liable to pay the maximum of 2% of the total contract value as non-performance
liquidated damages to the Buyer within 15 days after the Seller receives such a claim from
the Buyer.
16. General
Conditions:
This Contract comes into effect from the
signing date and any amendment and/or additional clauses to these Clauses shall be valid
only if it is made in writing and duly confirmed by both the parties.
This Contract is to be made entirely in
the English language and is deemed effective if duly accepted via fax.
The Contract is to be issued by the
Seller in duplicate and the Buyer has to return the duplicate copy duly signed and stamped
on or before 5 working days as a token of acceptance to the Seller, failing which this
Contract will be subject to reconfirmation by the Seller.
Nothing in this Contract confers or
purports to confer any right under the Contracts (Rights of Third Parties) Act to enforce
any of its terms on any person who is not a party to it.
All notices under this Agreement shall be
given in writing and shall be deemed to have been given if sent by registered post
addressed to the party at its registered business address.
17. Severability:
The parties hereby agree that if any part
of this Sales Contract is found to be unreasonable, invalid or unlawful under any
enactment or rule of law pertaining thereto, the Court or other competent tribunal shall
have the power to strike out or override that part, whether it be an entire Clause or
Clauses, or some part thereof, and enforce the Sales Contract as if the unreasonable,
invalid or unlawful part or parts aforesaid had not been included.
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