GENERAL TERMS & CONDITIONS OF PURCHASE
These terms and conditions shall apply to all contracts for the purchase of goods and/or services (including any instalment of the same or any part thereof) (“Goods”) by AT&S Pte Ltd and its group of companies (“Buyer”), and shall take precedence over the supplier’s or seller’s (“Seller”) supplemental or conflicting terms and conditions to which notice of objection is hereby given. Despatch or delivery of Goods by the Seller to the Buyer shall be deemed conclusive evidence of the Seller’s acceptance of these terms and conditions.
Seller acknowledges that the date(s) of delivery specified in the purchase order(s) are critical and time is of the essence of the contract. Failure to meet any delivery date constitutes a material breach of the contract. In the event of delay, or if in the opinion of the Buyer, the Goods will not be delivered by the delivery date(s), Buyer may at its option and sole discretion, direct the Seller to expedite delivery of the Goods by air-freight, or procure the delivery of the Goods by itself, with all costs associated therewith to be claimed against or reimbursed by the Seller. Further, in the event of delay, Buyer shall be entitled to claim from Seller by way of liquidated damages, at a rate of five percent (5%) of the contract price, for each week of delay, up to a maximum of twenty percent (20%) of the contract price. The right to liquidated damages shall be without prejudice to all other rights of the Buyer available to it under contract, law or otherwise.
2. Price and Payment
Price shall be all-inclusive and shall remain firm and fixed for the duration of the contract. Unless otherwise specified in the purchase order(s), Buyer shall pay the contract price within sixty (60) days after the end of the month of receipt of invoice(s) and delivery of the Goods, whichever is later. Buyer shall be entitled to set off against the contract price any sums owed to the Buyer whether under the applicable contract of sale or otherwise.
3. Title, Risk and Property
Seller warrants clear title to the Goods, free from any and all liens and encumbrances until delivery.
Seller shall ensure that the Goods are properly packed for multi-modal transportation, loading and unloading until delivery to the Buyer. Risk of loss of or damage to the Goods shall pass to the Buyer upon delivery in accordance with the contract, while property in the Goods shall pass to the Buyer upon delivery, unless payment for the Goods is made prior to delivery, in which case property shall pass to the Buyer once payment has been made and the Goods shall be marked as such accordingly.
The Seller shall not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and the Seller shall provide the Buyer (or Buyer’s sub-buyer) with all facilities reasonably required for inspection and testing. If as a result of inspection or testing the Buyer is not satisfied that the Goods will comply in all respects with the contract, the Seller shall take such steps as are necessary to ensure due compliance before delivery.
All Goods delivered hereunder shall be subject to final inspection and acceptance by the Buyer at its facility notwithstanding prior payment or inspection at Seller’s facility. Neither the inspection as provided herein nor the failure of the Buyer to carry out such inspection shall relieve the Seller of its obligations, responsibilities and liabilities under the contract.
Seller warrants that the quantity, quality and description of the Goods shall be as specified in the purchase order, and/or in any applicable specification supplied in the purchase order and/or any applicable specification supplied by the Buyer to the Seller or agreed in writing by the Buyer if there are no specific descriptions, plans, specifications or samples, and to the extent that they are not explicit, all Goods shall be new, of the latest design or model conforming to the Buyer’s requirements and of the best quality unless otherwise stated.
Seller further warrants that the Goods shall be of merchantable quality and fit for any purpose held out by the Seller or made known to the Seller in writing at the time the order is placed; free from defects in design, material and workmanship for a period of one (1) year after being placed in service in the plant or structure of the Buyer or its sub-buyers; and comply with all applicable statutory requirements and regulations relating to the sale of the Goods.
Without prejudice to any other remedy, if the Goods supplied are not in accordance with the contract, the Buyer shall be entitled, at its sole option, to require the Seller to rectify or replace the Goods in accordance with the contract at no cost to the Buyer within a period to be specified by the Buyer. If the Buyer believes that a timely and/or proper rectification or replacement of the Goods by the Seller is not possible, the Buyer may (in addition to any other remedies available to it under contract, law or otherwise) immediately terminate the purchase order in whole or in part and/or remedy the deficiency itself (or use a third party to do so) with all costs associated therewith to be claimed against or reimbursed by the Seller.
Seller represents and warrants that the Goods delivered to the Buyer do not directly or indirectly infringe upon or otherwise violate any intellectual or proprietary rights of any third party and that it has all the necessary rights to perform and fulfill its obligations under the contract. Without prejudice to the indemnity provision herein, in case the Goods or any part thereof supplied by the Seller is found to constitute an infringement or unlawful use of any intellectual property, and the use or sale of the Goods or any part thereof is enjoined, Seller shall, at its expense, either procure for Buyer (and its sub-buyers) the right to continue using the Goods, replace the infringing Goods with a non-infringing equivalent acceptable by the Buyer, or modify the Goods so that it is no longer infringing.
6. Compliance with Laws
Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, processing, storing, testing, packaging, packing and delivery of the Goods.
Seller shall indemnify, defend and hold harmless the Buyer in full against any claims, demands, proceedings and any liability, loss, damages, costs and expenses (including legal consultation or any other legal expenses) awarded against or incurred or paid by the Buyer as a result of or in connection with a breach by the Seller including but not limited to a breach of any warranty given by the Seller in relation to the Goods; delay in delivering the Goods, any claim that the Goods or their importation, use or resale thereof, infringes the intellectual or proprietary rights of any other person, and any act or omission of the Seller in supplying, delivering and installing the Goods.
8. Business Ethics and Conflict of Interest
Seller represents and warrants that neither it nor its parent or subsidiary companies, affiliates or any of their shareholders, subcontractors, members, managers, directors, officers, employees or agents has given, offered or promised, or will give, offer or promise any gratification to any third party, including but not limited to a government official, political party, party official, family member or representative of a state-owned enterprise for the purpose of influencing business decision or obtaining an improper business advantage.
Seller shall comply with the highest professional and ethical standards, and in particular, shall observe
and comply with all applicable anti-bribery or anti-corruption laws.
Seller shall not offer any gifts, entertainment or any other gratification to the Buyer’s employees, other
than nominal value.
Seller shall keep accurate, detailed and proper accounting records, and shall cause its agents and
subcontractors to do the same, and retain such records for a period of five (5) years after all obligations
of the contract have been fully discharged. Such records shall be made available to the Buyer (or its
auditors) by prior notice and at all reasonable times, for inspection and audit.
Buyer shall be entitled to terminate the contract forthwith without liability to the Seller by giving notice to the Seller in the event of a material (including but not limited to a breach of the Seller’s delivery obligations pursuant to Clause 1, above) or anticipated breach by the Seller, or if the Seller makes any voluntary arrangement with its creditors or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), or an encumbrancer takes possession or a receiver is appointed over a substantial part of the assets of the Seller, or Seller ceases, or threatens to cease to carry on its business. Termination shall be without prejudice to all other rights of the Buyer available to it under contract, law or otherwise.
In the event that the contract is terminated by the Buyer under this Clause, the Seller shall be liable for any and all the loss and damage suffered by the Buyer occasioned by or arising from such termination including but not limited to costs to procure the Goods from alternative third parties and loss and damage suffered as a result of any claims brought by the Buyer’s customers.
10. Assignment and Subcontracting
Seller shall not assign or transfer or purport to assign or transfer to any other person any of its rights or obligations without the prior written consent of the Buyer. Where consent is given by the Buyer, Seller shall remain responsible for the full and proper performance of all obligations of the contract.
11. No Waiver
No failure, delay or omission on the Buyer’s part in exercising any right, power or remedy in the contract shall impair such right, power or remedy, or be construed as a waiver of it or acquiescence of any default of the Seller, nor shall any single or partial exercise by the Buyer of any such right, power or remedy preclude further exercise of it or the exercise of any right, power or remedy including any rights, remedies, claims, whensoever, howsoever arising in relation to the contract by the Buyer against the Seller.
12. Governing Law and Jurisdiction
The Buyer and Seller shall be governed by the laws of the Republic of Singapore to the exclusion of the UN Convention on Contracts for the International Sale of Goods. The Buyer and the Seller shall submit to the exclusive jurisdiction of the Courts in Singapore in respect of any disputes arising from or in connection with the contract.
13. Force Majeure
Buyer is not liable for failure to fulfil its obligations due to causes beyond Buyer’s reasonable control including, but not limited to, acts of God, natural or artificial disaster, riot, war, strike, delay by carrier, acts or omissions of other parties, acts or omissions of civil or military authority, Government priorities, changes in law, material shortages, fire, strikes, floods, epidemics, quarantine restrictions, pandemic such as worldwide spread of a disease, acts or regulations of any governmental or supra-national authority directing or implementing lockdowns, restrictions on movement of people or goods or business operations, acts of terrorism, which shall be considered as an event of force majeure excusing Buyer from performance and barring remedies for non-performance. In an event of force majeure condition, the Buyer’s time for performance shall be extended for a period equal to the time lost as a consequence of the force majeure condition without subjecting Buyer to any liability or penalty. Buyer may, at its option, cancel the remaining performance, without any liability or penalty, by giving notice of such cancellation to the Seller.
All notices, demands or other communications required or permitted to be given or made hereunder shall be in writing and delivered personally or sent by prepaid registered post or by email to the Seller or Buyer at their respective addresses (as set out in the purchase order, invoice or statement of account, where appropriate) or email addresses provided (or to such other address or email address as the Seller or the Buyer may from time to time notify the other party).
Any notice, demand or communication delivered in accordance with this clause shall be deemed to have been duly served:-
(a) in the case of delivery by hand, when delivered;
(b) in the case of registered post (if despatched to an address within the country of the sender) 5 business
days or (if despatched by registered air-letter to an address outside the country of the sender) 10
business days after posting, and in proving the same it shall be sufficient to show that the envelope
containing the same was duly addressed, stamped and posted; or
(c) in the case of email, when the email was sent.
If any provision of this General Terms and Conditions of Sale or part thereof is rendered void, illegal or unenforceable by any legislation to which it is subject, it shall be rendered void, illegal or unenforceable to that extent and no further and it shall in no way affect or prejudice the enforceability of the remainder of such provision or the other provisions of this General Terms and Conditions of Purchase.
16. Exclusion of Rights of Third Parties
The application of the Contracts (Rights of Third Parties) Act (No. 39 of 2001) and its subsequent amendment, revision or replacement thereof is expressly excluded in so far as these terms and conditions are concerned.