Terms and Conditions of Sale
AZTECH GLOBAL PTE LTD’S STANDARD TERMS AND CONDITIONS OF SALE
All products (“Products”) purchased by the “Buyer”, from Aztech Global Pte Ltd including its associated companies (hereinafter collectively referred to as “Seller”) and sales by Seller to Buyer shall be governed exclusively by these terms and conditions of sale (the “Contract”). The terms and conditions in this Contract shall apply to and are automatically incorporated in all quotations, orders, agreements and contracts for goods.
No addition to or modification of this Contract will be accepted by or binding upon the Seller unless consented to in writing and signed by an authorised representative of the Seller (such consent may be withheld by the Seller at its sole and absolute discretion). Any terms and conditions that may be proposed by the Buyer (or which are contained in any document or instrument from the Buyer) shall automatically be deemed to be objected to and rejected by the Seller unless so consented to by the Seller as stated above. This Contract shall take precedence, prevail, control and solely govern in all instances of any inconsistency between this Contract and any terms and conditions proposed by the Buyer (or which are contained in any document or instrument from the Buyer).
- Payment. The time within which the Buyer is to pay for the said Products shall be the essence of this Contract. Under no circumstances shall the Buyer be entitled to make any deduction or to withhold payment for any reason whatsoever. If the Buyer fails to make payment when due or defaults in any way, Seller (i) reserves the right to withdraw credit and thereby suspend or cancel performance under any or all of Buyer’s purchase orders and/or (ii) reschedule such order(s) at Seller’s sole discretion. Each shipment of such order(s) shall be separately invoiced and paid for without regard to other shipments.
- Prices. Purchase prices in respect of the Products (“Prices”) are exclusive of all applicable taxes and all country, provincial, state or local import and export fees, custom duties, tariffs or other charges related to exporting and importing the Products. Any charge for freight and handling will be borne by the Buyer. Buyer shall be fully responsible for presenting all related documentation to the relevant authorities and to the accuracy of the said documents.
The Seller reserves the right to adjust the Prices as a result of any changes by the Buyer to the requirements, specifications, or assumptions in relation to the products and the Buyer shall pay such increased Prices in accordance with the timelines stipulated on the Seller’s invoices.
- Delivery Any time or date for delivery named by Seller is an estimate only but reasonable effort will be made to deliver according to schedule. The Buyer agrees that the Seller shall not be responsible or liable for any damages arising out of or related to any failure to deliver within the timeline provided. Seller may make deliveries in instalments with appropriate partial invoicing issued therefor.
- Cancellation / Rescheduling. No order which has been accepted by Seller may be cancelled or rescheduled by the Buyer except with the agreement in writing of
Seller and on terms that the Buyer shall indemnify Seller in full against all loss (including loss of profit), costs (including the cost of all labour and material used), damages, charges and expenses incurred by Seller as a result of cancellation or rescheduling.
In the case of partial completion of an order Seller shall be entitled to a quantum merit in respect of Products delivered without prejudice to any claim or right Seller might otherwise make or exercise should non-completion be occasioned by the Buyer.
- Insurance. At all times during the term of this Contract, the Buyer shall be responsible for maintaining appropriate insurance coverage including, but not limited to, the following insurance coverages of appropriate amounts: (i) worker’s compensation and disability insurance coverage; (ii) commercial general liability insurance with coverage for bodily injury, property damage and personal and advertising injury; (iii) employers’ liability insurance; (iv) commercial automobile liability insurance.
The Buyer shall deliver duly issued certificates of insurance evidencing such coverage to the Seller upon request in writing from the Seller.
The amount and coverage of such insurance will not limit the Buyer’s liability nor relieve the Buyer of any other obligation under this Contract.
If the Buyer fails to obtain or maintain any of the foregoing insurance coverages, it will assume and hereby assumes liability and risk for, and indemnifies the Seller against, any and all damages, demands, claims, losses, actions, liabilities, lawsuits, judgments, and expenses (including without limitation, reasonable attorney’s fees and expenses) to the extent that same would have been covered as if the foregoing insurance coverage had been obtained and maintained.
- Warranty. No condition is made or to be implied nor is any warranty given or to be implied as to the life or wear of the Products supplied or that they will be suitable for any particular purpose or use under any specific conditions, notwithstanding that such purpose or conditions may be known or made known to Seller.
- Software. Software delivered hereunder is furnished “As Is” basis. Seller makes no warranties, whether express or implied with respect to such software and documentation describing such software, its quality, its performance, merchantability, or fitness for a particular purpose. The entire risk as to the quality and performance of software documentation describing such software is with the Buyer.
- Inspection of Goods. The Buyer shall inspect the said Products immediately upon the completion of the delivery of the Products and shall within three (3) days from such inspection give notice in writing to Seller of any matter or thing by reason whereof he alleges that the Products are not in accordance with the Contract. If the Buyer shall fail to give such notice the said Products shall be deemed to be in all
respects in accordance with the Contract and the Buyer shall be bound to accept and pay for the same accordingly.
- Interest on Late Payment. Seller shall be entitled to charge interest at 2% per month on a day to day basis in respect of any amount of money due and owing to Seller by the Buyer for the period of default.
- Title and Risk of the Products. Notwithstanding delivery and acceptance, title to all the Products shall not pass to the Buyer but shall be retained by Seller until full payment for the Products has been received by Seller from the Buyer. Risk in the Product shall pass to the Buyer upon delivery of the Product. In the event that the Buyer fails to pay any of the instalment set out in this Contract and fails to make payment within three (3) days from the date of notice from Seller. Seller shall:
- (i) have absolute authority to retake, sell or otherwise deal with or dispose of any part of the Products in which title remains vested in Seller and for this purpose, Seller or any of his agents or authorized representatives shall be entitled at any time and without notice to enter upon the Buyer’s premises or any part thereof is installed, stored or kept, or is reasonably believed so to be;
- (ii) be entitled to seek a court injunction to prevent the Buyer from selling, transferring or otherwise disposing of the Products and to forfeit and retain all payments made by the Buyer to Seller pursuant to this contract or any other contract.
- Intellectual Property Rights Indemnity.
(a) If any claim is made against the Buyer that the Products infringe or that their use or resale infringes the patent, copyright, design, trade mark or any other industrial or intellectual property rights of any other person (the “Infringing Act”), then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, Seller shall indemnify the Buyer against all loss, damages, costs and expenses, except consequential damages, awarded against or incurred by the Buyer in connection with the claim, or paid or agreed to be paid by the Buyer in settlement of the claim, provided that:
- (i) The Buyer notifies Seller in writing as soon as is practicable (and in any event within three (3) Business Days) of any such claim or threatened claim that is received;
- (ii) Seller is given full control of any proceedings or negotiations in connection with any such claim;
- (iii) The Buyer shall give Seller all reasonable assistance for the purpose of any such proceedings or negotiations;
- (iv) Except pursuant to a final award, the Buyer shall not pay or accept any such claim, or compromise any such proceedings without the prior written consent of Seller;
- (v) The Buyer shall do nothing which would or might vitiate any insurance policy which the Buyer may have in relation to such infringement, and this
indemnity shall not apply to the extent that the Buyer recovers any sums
under any such policy;
- (vi) Seller shall be entitled to the benefit of, and the Buyer shall accordingly account to Seller for, all damages and costs (if any) awarded in favour of the Buyer which are payable by, or agreed with the consent of the Buyer (which consent shall not be unreasonably withheld) to be paid by any other party in respect of any such claim;
- (vii) Without prejudice to any duty of the Buyer at common law, Seller shall be entitled to require the Buyer to take such steps as Seller may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which Seller is liable to indemnify the Buyer under this clause;
- (viii) Seller shall not be liable to indemnify the Buyer if Seller is not itself fully indemnified by the relevant component manufacturer/vendor for any Infringing Act which may be committed by the Buyer or any other third party; and
- (ix) Seller has been fully reimbursed by the relevant component manufacturer/ vendor pursuant to the indemnity given by the component manufacturer/ vendor as referred to in Clause 10(viii).
For the avoidance of doubt, Seller shall not be liable to the Buyer under any circumstances whatsoever if Seller has not obtained any indemnity from the relevant component manufacturer/vendor.
(b) Where the Products or any parts and/or components thereof are not obtained by Seller from any component manufacturer/vendor or any other party, Seller shall not be liable to indemnify the Buyer against any claims that the Products or any parts and/or components thereof infringe or that their use or resale infringes the patent, copyright, design, trade mark or any other industrial or intellectual property rights of any other person.
- Disclaimer. Seller shall not under any circumstances whatsoever be liable for any loss, injury, damage or delay arising out of any cause whatsoever beyond Seller’s reasonable control or any malfunctioning of or defect in or failure of any of the Products or any loss of the use of any item of the Products.
Seller shall not be liable for and the Buyer shall indemnify and hold Seller harmless against any claim by or loss or damage to any person or property directly or indirectly caused by the Buyer.
- Limitation of Liability. Notwithstanding anything to the contrary elsewhere herein, the Seller shall not be liable for any incidental, special, remote or consequential damages (including but not limited to the loss of revenue or profits) arising from or caused, directly or indirectly by the use of the Products by the Buyer, or by the performance or failure of Seller to perform under this Contract or by any other act or omission of Seller, or by any other cause. In no event will Seller’s total liability to Buyer for any cause exceed the sum paid to Seller by Buyer for the Products sold hereunder.
- Breach of Contract. If the Buyer shall make any default in or commit a breach of this Contract or any other obligation to Seller, or if any distress or execution shall be levied upon the Buyer’s property or assets, or if the Buyer shall make or offer to make any arrangements or composition with creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against him, or if the Buyer is a limited company resolution or petition to wind up such company’s business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver of such company’s undertaking, property or assets or any part thereof shall be appointed, Seller shall have the right forthwith to terminate any subsisting Contracts without liability, and upon written notice of such termination being posted to the Buyer’s last known address, any subsisting Contracts shall be deemed to have been determined without waiving any other remedies the Seller may have against the Buyer.
- Seller’s Rights. If: (1) Buyer does not pay on time or (2) Buyer’s financial situation becomes unsatisfactory, then Seller may:-
- (i) defer shipments;
- (ii) accelerate the due date on all amounts owed to Seller;
- (iii) require cash payments or other security; and/or
- (iv) terminate any subsisting Contracts without liability and without waiving any
other remedies Seller may have against Buyer.
Buyer agrees to pay all of Seller’s collection costs, including reasonable legal fees.
Notwithstanding Seller’s rights stated above, Seller shall also have the right to complete the production of any units that have been ordered by Buyer and/or sell all Products in stock to third parties without any further reference to Buyer. Seller has the right to decide in its sole discretion whether to sell the Products in Buyer’s trade name or any other trade name in which case the Buyer is deemed to have given Seller an irrevocable royalty free right to do so without any notification or payment to Buyer.
- Legal Fees. In the event that any action is brought by Seller to enforce any provision of this Contract, Seller shall be entitled to recover from the Buyer, in addition to the amount of any judgement, its lawyer’s fees and other related expenses.
- Prohibition by the law. Any provision of this Contract prohibited by applicable law or by any court decree shall be ineffective to the extent of such prohibition, but such provision shall not in any way invalidate or affect the remaining provisions of this Contract.
- Waiver. Failure or neglect by Seller to enforce at any time any of the provisions hereof shall not be construed nor shall be deemed to be a waiver of Seller’s rights hereunder nor in any way affect the validity of the whole or any part of this Contract nor prejudice Seller’s rights to take subsequent action.
- Force Majeure. Seller shall not be liable to the Buyer for any delay or breach caused or arising out of war, rebellion, civil commotion, strikes, industrial disputes, fire, earthquakes, the unavailability if deliveries of Products or supplies or the requisitioning or other act or order by any government department, council or other constituted body or other acts of God or other happenings that are beyond Seller’s control.
- No Assignment of Contract. This Contract shall not be assignable by either party save that Seller shall be permitted to assign this Contract to any of its subsidiaries, related or associated companies.
- Applicable Law. The validity, construction and performance of this Contract and any other contract between the Buyer and Seller shall be governed by the law of Singapore. All claim or suit with respect to this Contract and other contracts shall be brought in the jurisdiction of the courts of the Republic of Singapore.
- Entire Agreement. This Contract embodies the entire agreement between the parties hereto, supercedes all other prior agreements between the parties in connection with the sale of Products described herein.