These General Terms and Conditions of Sale (“General Sale Terms”) govern the terms of sale of any Products by Lucence Diagnostics Pte Ltd (UEN. 201605840N), a company incorporated in Singapore with its registered address at 211 Henderson Road, #04-02 Henderson Industrial Park, S159552 (the “Company”) to a Purchaser named in the Order Confirmation (as defined herein) issued by the Company and the expression “Purchaser” shall include a distributor appointed by the Company for such Products (if applicable). These General Sale Terms apply to all subsequent transactions made between the Company and the Purchaser in relation to sale of Products even if no further reference is made to them in subsequent transactions. “Products” shall mean goods supplied and sold by the Company as described in the Schedules attached. Where no such Schedule is attached the Products supplied shall be as described and confirmed in the Order Confirmation issued by the Company. “Price” shall mean the price(s) at which Products are sold by Company, and as more particularly described in Clause 5.1.
1.2 Inconsistency with separate written agreements:
These General Sale Terms may be used together as an addendum to a sale agreement or a distributorship agreement, if any. In the event of any inconsistency between the sale agreement and the terms herein, or the distributorship agreement and the terms herein, then the terms of the sale agreement or distributorship agreement (as the case may be) shall prevail to the extent they are inconsistent with these General Sale Terms.
1.3 Exclusion of Conflicting Terms:
All Products sold by the Company shall be sold on the terms and conditions herein and the terms of any Purchase Order (as defined herein) which seek to vary or amend or is in conflict with these General Sale Terms are hereby expressly objected to. All Order Confirmations issued by the Company incorporate these General Sale Terms and delivery of Products is made by the Company pursuant to these General Sale Terms.
1.4 Duration of Agreement:
Where the Company is appointed to supply Products for a specified duration, the additional terms and conditions as are contained in the Schedule attached or where no such Schedule is attached, the Order Confirmation, shall apply as though the additional terms were set forth herein.
1.5 No Exclusivity:
The Purchaser does not have any exclusive rights of purchase of the Product from the Company.
For purposes of these General Sale Terms (including Schedules as applicable), the terms below shall have the meanings set forth below. Additional terms are defined above and throughout these General Sale Terms (including Schedules as applicable).
“Affiliate” is a person or entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, either party. The term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of either party, whether through the ownership of voting securities, by contract or otherwise.
2. Purchase Orders and Availability
2.1 Purchase Orders:
Unless otherwise agreed to by the Company in writing, all orders to purchase (each, a “Purchase Order”) shall be placed by Purchaser, in advance, and placed no less than sixty (60) days lead time of the requested delivery date as stated in the Purchase Order. All Purchase Orders shall be subject to minimum order sizes as implemented from time to time by the Company. All Purchase Orders shall be made in writing in a form reasonably satisfactory to the Company (which shall be subject to these General Sale Terms), sent by courier, personal delivery, facsimile or electronic mail. Each Purchase Order shall state the quantity and type of the Products to be purchased, delivery date(s) (in accordance with the forecast, if applicable and unless otherwise agreed in writing by the Company), delivery destination (which shall be in Singapore), and confirmation of Price (as defined herein). No term or condition contained in any such Purchase Order, purchase acknowledgement, or other instrument shall alter, amend, modify, or supplement the parties’ obligations hereunder unless specifically agreed in writing by the Company. If the Purchaser does submit a Purchase Order containing other terms, then in addition to any other remedies available to the Company, such terms shall automatically be deemed rejected by the Company, and in no event shall the Company’s failure to object to such terms or conditions, or the Company’s provision of Products specified in such Purchase Order, be deemed as acceptance of such terms.
All Purchase Orders received are subject to acceptance in writing by the Company. Each Purchase Order is deemed to be an offer to purchase and when accepted whether in whole or in part shall form a contract under these General Sale Terms. All acceptances by the Company of Purchase Orders will be in the form of a written order confirmation (“Order Confirmation”) containing the accepted quantities of the Products, Price, delivery charges if any, and the estimated date of delivery (“Target Date”).
2.3 Sale of the Products:
The Company shall use commercially reasonable efforts to fill any accepted Purchase Orders.
3. Transport and Delivery
3.1 Trade Terms:
Reference to trade terms such as EXW denoting Ex-Works, FCA denoting Free Carrier, CIF denoting Cost Insurance and Freight and other trade terms as well as the obligations of parties to a transaction not specified herein shall be interpreted in accordance with Incoterms 2020 issued by the International Chamber of Commerce.
Unless otherwise expressly agreed to by the Company in writing, all Products will be delivered Ex-Works, and delivery shall be constituted by a notice (“Delivery Notice”) issued by the Company to the Purchaser informing the Purchaser that the Products are ready and available for shipment or transportation at the Company’s premises. If the Purchaser fails to accept the Products or fails to take delivery of the Products within seven (7) days of the date of the Delivery Notice, Purchaser will be liable for storage charges at a rate as may from time to time be charges by the Company. the Company may also arrange for storage with third parties and the Purchaser will be liable for storage charges charged by the third party.
At the request of a Purchaser, the Company may in its sole discretion agree to make transport and insurance arrangements and the cost shall be borne by the Purchaser and if requested earlier by the Company, shall be paid in advance; otherwise, the cost of such transport and insurance arrangements shall be paid by the Purchaser at the time of payment of the Price of the Products. Unless otherwise agreed in writing the Company reserves the right to select the route and mode of transportation and the Company shall not be bound to select any route whether the same be regarded as cheapest or quickest of all given possibilities.
3.4 Delivery Date:
The Company will make all reasonable efforts to conform to delivery by the Target Date as specified in the Order Confirmation. If no Target Date is specified in the Order Confirmation, then the Products shall be delivered by such date as may be notified subsequently by the Company. In no event will the Company be responsible for any delays resulting from events of Force Majeure more particularly described in Clause 9.10.
3.5 Late Delivery:
Should a delivery time be exceeded due to fault on the part of the Company and other than due to the events more particularly described in Clause 9.10, then the Purchaser may cancel the relevant Purchase Order, provided however that the Purchaser and the Company shall have agreed to a reasonable extension, of no less than fourteen (14) business days, of the period to effect delivery and the Company remains unable to fulfil the delivery by the expiry of the extended period. Any claims for damages arising from late delivery shall only accrue upon expiry of the extension of the period for delivery and the quantum of damages shall be limited to the payment of interest at the prevailing prime lending rate quoted by DBS Bank Ltd as at the date of default, on the Price of the delayed delivery and for the period commencing from the accrual of the claim to the date of actual delivery or cancellation as the case may be. All claims for consequential, special, punitive, incidental or indirect damages which may be suffered by the Purchaser are hereby excluded. Where the Purchaser is unable or unwilling to accept delivery, or where the Purchaser has failed to make any advance payments or provide a letter of credit required (where applicable) in respect of Products ordered, the Company shall be entitled to, at the discretion of the Company cancel the delivery of the Products to the Purchaser, seek an alternative purchaser for the Products and recover from the Purchaser any costs, including storage and transport, as well as any loss resulting from the sale.
4. Inspection of Products
The Purchaser shall be allowed a period of three (3) business days (“Inspection Period”) from the date of delivery to notify the Company in writing of any damage or defects to the Products which are discernible by a visual inspection of the Products. Where a notice is issued by the Purchaser and the Company agrees with the assessment made in such notice the Company shall in its discretion replace the defective Product or refund or credit the Price pursuant to this Clause 4.1, provided that this Clause 4.1 shall not apply to any defect in the Products which has been subjected to fair wear and tear, misuse, mishandling, storage in a manner inconsistent with Product labelling, neglect, modification, or unusual physical or chemical stress after delivery. At the Company’s request and expense, Purchaser shall return any Product to be replaced or for which the Price is to be refunded or credited. In the event no notice is issued by the Purchaser within the Inspection Period, the Products shall be deemed to be in all respects in accordance herewith save for any latent defects.
4.2 Latent Defect:
The Company shall compensate the Purchaser for the value, as provided in Clause 6.3, of defective Products, in the Purchaser’s possession, only in respect of latent defects which is hereby agreed as defects which are due to the manufacturing process which are a breach of the warranty as provided in Clause 6.1(a) and which defect must not be discernible at the time of delivery to the Purchaser. This duty to compensate shall not apply to Products which have been damaged after delivery due to improper storage conditions or Products that may have been kept in storage beyond its use by date, where applicable (“Warranty Period”).
5. Price, Payment Terms, Risk and Property in Products
The Company shall sell the Products to the Purchaser at the Prices set forth against the Product in the Schedule attached hereto. Where no Schedule is attached, the Products are sold at the Prices set out in quotations given by the Company. Save where the Company has expressly agreed to a fixed term of supply, Prices are variable and may be varied at any time by the Company.
Such variation described in Clause 5.1 above will also however apply to Purchase Orders which have been confirmed provided that in the event of a price increase, the Purchaser shall be entitled to cancel within five (5) business days of notification of increase any confirmed Purchase Orders which are so affected by the price increase.
5.3 Packaging: The Prices include the Company’s standard packaging existing as of the date of shipment. If the Purchaser requests and the Company agrees to provide non-standard packaging, the Purchaser shall pay the Company an additional fee for such packaging in accordance with the Company’s then-existing pricing policies. If the Purchaser has requested that non-standard packaging be used and has provided specifications, designed and/or materials for such non-standard packaging, the Purchaser shall fully indemnify and hold the Company harmless from all losses, expenses, costs and liabilities (including without limitation attorney’s fees) arising from any claim that the non-standard packaging, as a result of such specifications, designs and/or materials, infringes the rights of any third party or the laws of any jurisdiction. Purchaser shall not have any right to set off or withhold any amounts due to the Company hereunder arising out of, or based upon, any counterclaim, breach of contract, tort or other action against the Company.
5.4 Risk of Loss:
Risk in the Products shall pass upon delivery.
5.5 Payment Terms:
The Purchaser shall pay the Company the full Price of each Purchase Order net of any goods and services tax, withholding and other applicable taxes, for which the Purchaser shall be additionally liable at the applicable rate from time to time. All payment to be made by the Purchaser to Company shall be paid without any demand, set-off, counterclaim or deduction whatsoever; free and clear of and without any deduction or withholding of any taxes; and by cheque or by telegraphic transfer to the bank account as indicated in Company invoice or such other account as may be designated by Company from time to time, with all bank charges to be borne by the Purchaser. The Purchaser shall pay Company within thirty (30) days from the date of Company invoice or within such other time period as may be agreed. For the avoidance of doubt, each Purchase Order and related Order Confirmation is a separate, independent transaction, and Purchaser has no right of set-off against other Purchase Orders or other transactions with Company, unless otherwise agreed by Company in writing. Any amounts owed to the Company in connection with the Product, including without limitation, any costs the Company incurs on Purchaser’s behalf for shipping, freight, insurance, and duties and all other amounts due to the Company shall be paid in full by the Purchaser in the same manner as the Price. The Company shall have no obligation to fill any Purchase Order for which a payment has not been received by Company when due. Any unpaid invoices (or any part thereof) will be considered past due after thirty (30) days of the invoice date. Upon non-payment of any invoice rendered, the Company reserves the right to discontinue supplying the Products to the Purchaser until the balance is paid in full. The Company shall also be entitled, without limiting any other rights it may have, to charge a late payment interest of 2 % above the prime lending rate as quoted by DBS Bank Ltd per month from the due date until the outstanding amount is paid in full.
5.6 Passing of Property:
Notwithstanding the passing of risk, property and title in the Products will pass only upon receipt of full payment of the Price by the Company.
5.7 Restriction in Use and Re-Sale:
(a) The Purchaser acknowledges that the Products sold to the Purchaser are marked and labelled “Made in Singapore” and “Research Use Only” and are not intended for diagnostics or therapeutic use or administration. The Purchaser undertakes that the Purchaser will not:
(i) re-sell or otherwise transfer the Products to any third party without the Company’s prior written consent;
(ii) attempt to decompile, reverse engineer, deconstruct, disassemble the Products, and/or in any way attempt to determine and/or learn the compositions, ingredients, algorithms, ideas, structures or compositions underlying the Products;
(iii) copy or modify the Products;
(iv) use the Products in any manner not permitted under these General Sale Terms; and/or
(v) procure or allow any third parties to do any of the aforesaid.
(b) The Company’s written consent in relation to Clause 5.7(a)(i) above shall be contingent on the Company’s receipt of a written undertaking from the buyer of the Products in favour of the Company and the Company’s Affiliates, that such buyer will also not engage in any of the activities under Clauses 5.7(a)(i) to 5.7(a)(v) above.
(c) The Purchaser shall only use the Products in compliance with all applicable laws. The Purchaser also undertakes to procure from the buyer (if applicable) of the Products an undertaking similar to this undertaking. The Purchaser agrees that this undertaking is given for the benefit of all related companies of the Company. Any warranty granted by Company with respect to the Products shall be deemed void if any Product covered by such warranty is used for any purpose not permitted hereunder or otherwise in violation of any use restrictions referred to in this Clause.
6. Warranty and Liabilities
6.1 Company’s Warranties:
The Company represents, warrants and covenants to the Purchaser that:
(a)The Product delivered to the Purchaser hereunder (i) shall be consistent with the description and specifications for such of the Products that the Company may supply to the Purchaser from time to time, as in effect at the time of shipment, and (ii) shall be of satisfactory quality for the duration of the Warranty Period. All warranties are personal to the Purchaser and may not be transferred to a third party, including an Affiliate of the Purchaser; and
(b) The Company will convey to the Purchaser good and full title to all Products delivered and paid for, free and clear of any security interests, liens, claims, or encumbrances.
6.2 Limitation of Warranties:
The foregoing warranties in Clause 6.1 are in lieu of all other warranties or obligations, express or implied. EXCEPT AS SET OUT HERE IN THESE GENERAL SALE TERMS, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND EXPRESS AND IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE, IN CONNECTION WITH THE SUPPLY OF THE PRODUCTS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, COMPANY HEREBY EXPRESSLY DISCLAIMS, AND PURCHASER HEREBY EXPRESSLY WAIVES, ANY WARRANTY (EXPRESS OR IMPLIED) REGARDING THE UTILITY OF THE PRODUCT FOR PURCHASER’S INTENDED USE AND/OR RESULTS OBTAINED THROUGH THE USE OF THE PRODUCTS INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF INACCURATE, INVALID, OR INCOMPLETE RESULTS.
6.3 Sole Remedy under Warranty:
The Purchaser’s sole and exclusive remedy for any defective Products including any claim by third parties made against the Purchaser shall be a refund, a credit or a replacement as provided in this Clause 6.3, at Company’s sole option. The Company’s obligation to replace any of the Products which may be defective or refund or credit the Price pursuant to this Clause 6.3 shall not apply to any of the Products that has been subjected to fair wear and tear, misuse, mishandling, storage in a manner inconsistent with the Product’s labelling, neglect, modification, or unusual physical or chemical stress after delivery.
6.4 Limitation of Liability:
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY BE LIABLE FOR THE COST OF ANY SUBSTITUTE GOODS OR FOR ANY LOSS OF PROFITS OR LOSS OF REVENUE OR FOR ANY OTHER SPECIAL, PUNITIVE, INCIDENTAL, CONSEQUENTIAL, ORINDIRECT DAMAGES, HOWSOEVER ARISING OR CAUSED, EVEN IF THE COMPANY HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE FULL EXTENT PERMITTED BY LAW, THE PURCHASER WAIVES, FOR ITSELF AND FOR ANY OF ITS OWN CUSTOMERS OR END USERS OF THE PRODUCTS, ALL RIGHTS AND REMEDIES AGAINST THE COMPANY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, NOT PROVIDED FOR IN THESE GENERAL SALE TERMS. TO THE EXTENT PERMITTED BY LAW, COMPANY’S TOTAL AND CUMULATIVE LIABILITY TO PURCHASER OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS, INCLUDING WITHOUT LIMITATION, THE PRODUCT (INCLUDING USE THEREOF) AND COMPANY’S PERFORMANCE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTIES, FAILURE OF ESSENTIAL PURPOSE OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT PAID TO COMPANY FOR THE PRODUCT(S) CONTAINED IN THE PARTICULAR ACCEPTED PURCHASE ORDER THAT DIRECTLY CAUSED THE LIABILITY.
The Purchaser shall defend, indemnify and hold harmless the Company, its Affiliates and each of their respective shareholders, officers, directors, agents, employees, successors and assigns from and against any and all liabilities, obligations, losses, fines, costs, penalties, assessments, deficiencies, demands, actions, suits, proceedings, judgments, expenses or damages of any nature (including without limitation attorneys’ fees) resulting from claims of third parties arising from or relating to acts or omissions of Purchaser or its Affiliates, or their respective agents, contractors, and/or employees (including medical diagnosis or treatment decisions) or any breach by the Purchaser of any provisions or representations contained herein.
7. Intellectual Property Rights
Purchaser acknowledges the validity of and the Company’s ownership of all patents, trade marks, service marks, copyrights, and other rights to the Products and the packaging and documentation related to the Products except in the case of non-standard packaging, the ownership of which shall be agreed by the parties separately. The Purchaser acknowledges that all trade marks or service marks used by the Company in connection with the Products and any foreign language translations thereof (“Marks”) are the sole property of the Company.
7.2 Use of Marks:
(a) At the Company’s request, the Purchaser shall use Marks on packaging for Products ordered from the Company. The Purchaser shall not use Marks other than as expressly permitted by the Company in writing.
(b) The Purchaser shall not use the name, logos, or Marks of the Company in any publication, press release, marketing and promotional material, or other form of publicity without obtaining the prior written consent of the Company in each instance, save as required by any applicable law or governmental regulation.
7.3 Ownership of Company’s Intellectual Property:
(a) Except as provided in Clause 7.2, the Purchaser agrees and acknowledges that the goodwill, patent, copyright, trade mark and all other intellectual property rights and other rights associated with the Products and any documentation, materials, data, and information provided by the Company vests in the Company and that it is the intention of the parties that all such rights will at all times hereafter and for all purposes remain vested in the Company.
(b) In the event that any such rights at any time accrue to the Purchaser by operation of law or howsoever arising otherwise, the Purchaser will (at its own expense upon the Company’s demand) do all such acts and things and execute all such documents as the Company shall deem necessary to vest such rights absolutely in the Company, without the Company having to pay any fee or premium to the Purchaser.
(c) The Purchaser shall, at the request of the Company, enter into such agreements with the Company (including without limitation, license and registered user agreements) and shall execute such documents and carry out such actions as may be necessary to protect and register any of the Company’s intellectual property rights.
(a) The Purchaser will immediately notify the Company of any and all circumstances coming to the attention of the Purchaser, its directors, agents and employees, which may constitute an infringement of or passing off and/or any intellectual property rights contained in the Products. The Purchaser will promptly ensure that the Company is notified in writing no later than three (3) days of any litigation relating to these General Sale Terms or the Purchaser’s operations hereunder instituted by any person, firm, corporation or governmental agency against the Purchaser.
(b) The Company shall, at its own expense, have the right in its sole discretion to undertake the enforcement of any and all claims or causes of action that are brought to the Company’s attention by the Purchaser, of the intellectual property rights contained in the Products. The Company shall have the option of conducting the proceedings in the name of the Purchaser at the cost of the Company. The Company, at its option, shall also have the right in its sole discretion to advise, assist or undertake the conduct of any hearings or conferences before any governmental agencies or litigation directly or indirectly concerning the intellectual property rights contained in the Products, and the Purchaser shall promptly notify the Company of any such hearings, conferences or litigation in writing. In the event the Company undertakes the conduct of any hearings, conferences or litigation, the Purchaser shall execute any and all documents and do such acts and things as may, in the opinion of the Company or legal counsel for the Company, be necessary to carry out such hearings, conferences or litigation, either in the name of the Company (and/or its Affiliates) or in the name of the Purchaser, as the Company shall elect. The Purchaser shall take such reasonable actions in connection with and/or as the Company may direct to assist the Company (and/or its Affiliates) in the conduct of the aforesaid matters.
8.1 Use of Confidential Information:
The Company may disclose data pertaining to the Company, including but not limited to confidential information, proprietary information, and any other materials pertaining to the Company’s operations (“Confidential Information”), to the Purchaser as a result of these General Sale Terms. The Purchaser agrees that, during the term of these General Sale Terms and thereafter, it shall not, directly or indirectly, (i) use the Company’s Confidential Information for any reason other than to perform its obligations or exercise its rights under these General Sale Terms, or (ii) disclose or otherwise make available the Company’s Confidential Information to any third parties, except in either case as authorized by the Company in writing.
8.2 Ownership of Confidential Information:
Notwithstanding anything to the contrary herein, the Company’s Confidential Information shall at all times remain the property of the Company, and the Company does not provide a license or right to use the same or a license under any intellectual property of the Company except to the extent necessary for the Purchaser to perform the work that is contemplated hereunder.
8.3 Return of Confidential Information:
Upon the end of these General Sale Terms, the Purchaser shall return any Confidential Information of the Company (including without limitation all copies), except for one (1) copy which may be retained solely for archival and/or legal purposes.
8.4 Injunctive Relief:
The Purchaser agrees that the Company will suffer irreparable injury if its Confidential Information is made public, released to a third party, or otherwise disclosed in breach of Clause 8. Notwithstanding Clause 9.9 below, the parties agree that the Company shall be entitled to obtain injunctive relief against a threatened or actual breach of Clause 8 from any court of competent jurisdiction, in addition to any other remedies available at law or in equity.
9. General Provisions
9.1 Sub-contracting and Non-assignment:
Company may, at its sole discretion, sub-contract any part of obligations to an Affiliate or third party at its discretion. Company may, at its sole discretion, assign or transfer its any part of its rights and/or obligations to an Affiliate. The Purchaser may not assign, transfer, or sell its rights hereunder, or delegate its duties hereunder, to any person including any Affiliate of the Purchaser, without the prior written consent of the Company, which may be granted or withheld in sole discretion of the Company. A transfer of a controlling interest in the Purchaser shall constitute an assignment. Any purported assignment without the Company’s consent shall be void and shall constitute a material breach of these General Sale Terms.
9.2 Entire Agreement and Modification:
These General Sale Terms (with the relevant Order Confirmation) and, only if applicable, the separate agreement entered into between Company and Purchaser, contain the entire and final agreement between the parties. No modification of any of its provisions, or any future representation, promise, or addition, shall be binding upon the parties unless made in writing and signed by both parties.
A waiver of any obligation the Purchaser has under these General Sale Terms shall be effective only if in writing signed by the Company. Any waiver shall not affect the Company’s right to require strict compliance with these General Sale Terms in the future.
Every notice by one party to the other party shall be in English and in writing and shall be delivered to the addresses set out in the quotation or such other addresses as may be notified in writing by the other party. Any notice may be delivered by email, registered or certified mail, postage prepaid return receipt requested, or by courier service. Any notice sent by prepaid registered or certified post shall be deemed served forty-eight (48) hours after despatch thereof. In the case of email, notice shall be deemed given on the date and time of transmission, unless sender receives a non-delivery or error message indicating that the email was not successfully sent to recipient.
9.5 Governing Law:
These General Sale Terms shall be governed by and construed in accordance with the laws of Singapore.
9.6 Effectiveness of General Sale Terms:
These General Sale Terms shall be considered agreed to by the parties upon the issuance of the written Order Confirmation (which may be delivered electronically) by Company and shall be effective as of the date therein; or upon mutual execution of a separate definitive agreement (if applicable) and shall take effect as of the effective date therein.
All amounts payable under these General Sale Terms shall be paid in SGD unless otherwise agreed in writing.
9.8 No Agency:
The Purchaser is an independent business and has no power, right, or authority to bind the Company or to assume or to create any obligation or responsibility, express or implied, on behalf of the Company. The Purchaser shall not take any action that could lead a third party to believe it has such authority. Nothing stated in these General Sale Terms shall be construed as creating relationships of partners, employer and employee, franchiser and franchisee, or principal and agent between the parties.
In the event of any dispute arising out of or relating to these General Sale Terms, the parties shall use their best efforts to resolve it amicably by negotiation. Any dispute, which cannot be so resolved, shall be referred to and finally resolved by mutually binding, confidential, documents-only arbitration administered by the Singapore International Arbitration Centre (“SIAC”) in accordance with the Arbitration 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 Clause. The seat of the arbitration shall be Singapore. The Tribunal shall consist of one (1) arbitrator. The language of the arbitration shall be English.. The arbitration proceedings shall be conducted in Singapore. Neither a party nor its representatives may disclose the existence, content or results of any arbitration without the prior written consent of both parties, save as required by law or to protect or pursue a legal right.
9.10 Force Majeure:
Neither party shall be liable for any delay or default in performing its obligations (other than payment obligations and the Purchaserâ€™s obligations to obtain regulatory approval for import and sale of the Products, if applicable) if such default or delay is caused by any event beyond the reasonable control of such party, including, but not limited to, acts of nature, war or insurrection, civil commotion, destruction of production facilities or materials by earthquake, fire, storm or flood, labour disturbances or strikes, outbreak of disease, materials shortages, equipment malfunction, government-imposed travel restrictions or other similar event. The party suffering such cause shall immediately notify the other party of the cause and the expected duration of such cause. If either party’s performance is delayed by more than sixty (60) days, the other party may immediately terminate these General Sale Terms by written notice given before the affected party resumes performance.
Any breach or violation of any term of these General Sale Terms by any Affiliates, agents, employees, directors or officers of the Purchaser or of any sub-distributor or any other agent authorized in accordance with these General Sale Terms shall be deemed to be a breach or a violation by the Purchaser.
9.12 Third Party Rights:
Unless expressly provided herein, a person who is not a party to the relevant sales transaction shall have no right under the Contracts (Rights of Third Party) Act 2001 of Singapore to enforce any term and condition in these General Sale Terms.
The Purchaser represents and warrants to Company that
(i) it is a corporation duly organised, in good standing, and qualified to do business under the laws of the jurisdiction in which it is incorporated/registered;
(ii) it has all necessary corporate power and authority to agree to, deliver, consummate and perform its obligations under these General Sale Terms;
(iii) it is not purchasing the Product on behalf of a third party unless notified and agreed to by Company in writing,
(iv) it is not purchasing the Product in order to resell or distribute the Product to a third party unless agreed to by Company in writing,
(v) it is not purchasing the Product in order to export the Product from the country in which Company shipped the Product pursuant to the ship-to address designated by Purchaser at the time of ordering (“Ship-To Country”), and accordingly will not export the Product out of the Ship-To Country.
The Purchaser (if a company operating in a jurisdiction outside Singapore) further recognizes that the Company is not fully familiar with the laws, rules, regulations and policies of each jurisdiction outside Singapore and that the Company has entered into these General Sale Terms with the Purchaser (and will perform these General Sale Terms) in reliance upon the following representations and warranties made by the Purchaser on each date that Product is shipped or sold that: none of these General Sale Terms, the relationship created hereby or the performance hereof is contrary to the laws, rules, regulations or policies of any government, commission, agency or instrumentality having jurisdiction within which the Purchaser is operating.
Company may cease performance (including cancellation of any order outstanding) immediately without liability to Purchaser if for any reason, in its sole and unfettered discretion, the Company deems the ultimate collectability of the Price to be in doubt.
9.15 Books and Records/Inspection and Audit Rights:
Purchaser acknowledges that Company may be required by the Ministry of Health of Singapore, any applicable law or regulations or its own contractual obligations, to disclose terms, documents and records relating to any sale of Products hereunder. In relation thereto, Company shall have the right to maintain records of the sale of Products transacted for a period of five (5) years after the completion of such sales and make such records available to the Ministry of Health of Singapore and its authorised agents, designees or contractors, or parties it is contractually obliged to. The Purchaser agrees to cooperate with Company to the extent necessary for Company to satisfy its obligations to a government, regulatory body or parties contracted with Company to produce documents or undergo an audit or inspection.
9.16 Company’s Remedies:
The Company’s exercise of any of its rights and remedies under these General Sale Terms or at law following the Purchaser’s breach shall not be the exclusive rights or remedies of the Company and shall in no way limit the Company’s additional rights or remedies available to it under these General Sale Terms or law. Without limiting the foregoing, in the event of a breach by the Purchaser of any of its obligations under these General Sale Terms, the Company may, upon notice to Purchaser and as determined in the Company’s sole discretion, immediately terminate these General Sale Terms in its entirety or in part or suspend the Company’s performance under these General Sale Terms.
Last updated on January 18, 2023