General Terms and Conditions of Purchase and Supply
A. LEGAL TERMS
In these General Terms and Conditions, the definitions used shall have the meaning as described below unless otherwise defined in the Commercial Terms:
Administration Charges means charges payable by the Supplier for failure to comply with any terms of this Agreement, as set out in Schedule 1 to the General Terms and Conditions (GTC) and which may be revised by the Customer and notified to the Supplier from time to time.
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 the following: (a) if applicable, the purchase and supply agreement entered into between Customer and Supplier (Purchase and Supply Agreement or PSA); (b) a purchase order sent by the Customer and accepted by the Supplier (Purchase Order); (c) these General Terms and Conditions (as amended from time to time); and (d) all drawings, designs, requirements, specifications and calculations (which shall include the Packaging Specifications) attached to, as applicable, the Purchase and Supply Agreement or Purchase Order or set out in this GTC.
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 2.4 of the Trading Terms set out in Section B.
Arch Group means the Customer and its Affiliated Companies.
Business Day means a business day in Singapore.
Commercial Terms mean the commercial terms agreed in writing between the Parties set out in the PSA and signed by the authorized representatives of each Party.
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 this 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 Arch Group company specified as a party to the Purchase Order and/or the Purchase and Supply Agreement (as applicable).
Customer Data means any personal data and other information relating to the Customer, its customers and potential customers collected or acquired by the Customer or Arch Group company 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 validly licensed to the Customer for use in accordance with this Agreement.
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 this Agreement.
Date Product Received shall have the same meaning ascribed to it in the Commercial Terms.
Defective Product means any Product which (a) has Product Discrepancies; (b) does not comply with any Product Warranty; and/or (c) breaches any warranties under this Agreement.
Designated Freight Forwarder means the freight forwarder designated and approved by the Customer as notified by the Customer to the Supplier 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 reasonable control.
General Terms and Conditions or GTC means these general terms and conditions, comprising the Legal Terms set out in Section A and Trading T
erms set out in Section B, as contained in and updated from time to time on https://www.archwey.com/terms-conditions.
Group Policies means prevailing policies of the Arch Group published on https://www.archwey.com/terms-conditions.
GRS means Global Recycled Standard, an international, voluntary, full product standard that sets requirements for third party certification of recycled content, chain of custody, social and environmental practices and chemical restrictions.
Incoterms means those trade terms published by the International Chamber of Commerce, as amended from time to time.
Intellectual Property Rights or IPR means all registered and unregistered intellectual property rights which currently exist or are recognised in the future, including without limitation, the patents, trade names, designs, copyright, trademarks, database rights, know-how, confidential information customer data and all other forms of intellectual property rights and similar rights wherever in the world enforceable.
ISO 9001 means the international standard for creating a quality management system; published by the International Organization for Standardization.
ISO 14001 means the international standard that specifies requirements for an effective environmental management system; published by the International Organization for Standardization.
Law means any applicable law, regulation, directive, guideline, standard, circular or general rule policy (and any amendments to any of the foregoing made from time to time) of any international or national governmental or regulatory body in any jurisdiction.
Letter of Authorisation - means the letter valid for the term of the PSA addressed to “whom it may concern” to confirm that an Arch Group company is the exclusive owner in and to the Customer’s IPR supplied for manufacture of the Product or that the Arch Group company is duly licensed by a third party (including without limitation any resale customer) to supply that third party’s IPR to the Supplier for manufacture of the Product.
Non-Conforming Order means an order of Non-Conforming Product.
Non-Conforming Product means any Product identified as a Defective Product or Product delivered as part of an Unauthorised Delivery.
Packaging Specifications the specifications, as amended from time to time, set out in the PSA or in www.archwey.com/terms-conditions.
Party means either the Customer or the Supplier and Parties means both the Customer and Supplier collectively.
Products means the material or products manufactured in accordance with the Quality and Technical Specifications and delivered in accordance with the Packaging Specifications and Incoterms specified in a Purchase Order which is supplied or to be supplied by the Supplier to the Customer and its Affiliated Companies.
Product Discrepancy means any discrepancy between the Product received or delivered to the Customer or the Customer’s end customer; and the Product ordered pursuant to the Purchase Order.
Prohibited Territory means any country or territory that is, or whose government currently is, the target of comprehensive sanctions imposed by the Office of Foreign Assets Control of the United States Department of Treasury (OFAC). Such countries shall be referred to as the Comprehensively- Sanctioned Countries.
Quality and Technical Specifications means the specifications and requirements, as amended from time to time, set out in the PSA or Purchase Order (as applicable).
Restricted Person means any person or entity who is (i) included, or is directly or indirectly controlled or owned by 50% or more by one or more parties included, on the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List or any other sanctions list maintained by OFAC, the United States Department of State, the European Union, the United Kingdom or the United Nations Security Council; or (ii) directly owned or controlled by any party who is organized or resident in any of the Comprehensively-Sanctioned Countries.
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 with applicable Law in the territory of manufacture from time to time and as required for the relevant Purchase Order.
Supplier means the party named as a counterparty to this Agreement.
Supplier Data means any personal data and other information relating to Supplier and Supplier’s subcontractors collected by Supplier in accordance with applicable Law by whatever means.
Supplier’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 Supplier or to which Supplier has a valid license.
Supplier’s Works means any Products manufactured and/or developed using the Supplier’s IPR or IPR to which the Supplier has a valid license for use for the purpose described in this Agreement.
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) or deliveries made in respect of which a Purchase Order has been cancelled.
Works means any Product manufactured and/or developed using the Customer’s IPR and/or the Supplier’s IPR as applicable together with all IPR in such Product.
1.1 These General Terms and Conditions apply to all supply of Products by the Supplier to the Customer under Purchase Order(s) issued pursuant to the Purchase and Supply Agreement
1.2 To the extent that these General Terms and Conditions conflict with any Supplier 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 PSA (including any drawings, designs, requirements, specifications and calculations attached to the Purchase Order), the terms of the Purchase Order and PSA shall prevail. As between the PSA and the Purchase Order, the terms of the Purchase Order shall prevail.
1.3 The Supplier shall be deemed to have accepted these General Terms and Conditions (a) where a PSA is executed by the Parties, by acceptance of the terms set out in that agreement; and (b) where a PSA is not executed by the Parties, by the Supplier’s acceptance of the Purchase Order, by issuance of an Order Confirmation by Supplier to Customer or Supplier’s action indicating the intended fulfilment of the Purchase Order, 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 Products received shall pass to the Customer after the Date Product Received, provided that risk to any Product shall automatically revert to the Supplier upon notice given by the Customer rejecting the Product as a Non-Conforming Product.
2.3 The Supplier shall at all times:
(a) store the Product separately from all other products held by the Supplier 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 Products which have left the control of the Supplier 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 Law, 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; and
(b) representatives of the Supplier and the Customer shall appropriately communicate for the purpose of agreeing on the measures to be taken in order to remedy the failure.
2.5 If any facts and circumstances arise that effect, or are likely to effect the Customer’s rights or obligations under this Agreement, the Supplier shall notify the Customer immediately by email.
3 Intellectual Property Rights
3.1 The Customer represents and warrants that it has:
(a) valid right, title and interest in the Customer’s IPR;
(b) valid right to use the Customer’s IPR for supply of the Product; and
(c) valid right to license the Supplier to use Customer’s IPR for the sole purpose of manufacture and supply of the Product to Customer either directly or through authorised third parties.
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 Supplier that it has complied in full, with its obligations under this Clause 3.
3.3 The Supplier agrees that the Customer has all right, title, interest in the Customer’s IPR and that any rights arising from the use of the Customer’s IPR to create Customer’s Works shall inure to the benefit of the Customer. The Supplier agrees that it will not use the Customer’s IPR except as previously authorised by the Customer in writing and will not challenge the Customer’s IPR. The Customer grants to the Supplier for the term of this Agreement, a royalty free, non-exclusive licence to use the Customer’s IPR for the sole purpose of (a) manufacture and supply of the Product to Customer either directly or through authorised third parties; and (b) a right to sublicense the rights granted in the preceding sub-clause (a) to its subcontractors solely for the purpose described above.
3.4 The Customer acknowledges that the Supplier has all right, title, interest in the Supplier’s IPR and that any use of the Supplier’s IPR by the Customer to create Supplier Works shall inure to the benefit of Supplier. The Customer agrees that it will not use any of the Supplier’s IPR except as previously authorised by the Supplier in writing and it will not challenge the intellectual property rights or other rights of Supplier in the Supplier’s IPR. The Supplier grants the Customer and its Affiliated Companies (a) a perpetual, royalty-free, fully paid up, non-exclusive, non-revocable license to use the Supplier’s IPR in the Product for displaying, merchandising, retailing, sale, marketing and distribution of the Product or merchandise incorporating the Product, in the territories of distribution and/or sale; and (b) a right to sublicense the rights granted in the preceding sub-clause (a) to its end customers for the purpose of displaying, merchandising, retailing, sale, marketing and distribution of the Product or merchandise incorporating the Product by such customers to its end users worldwide.
3.5 Subject to Clause 3.4 above, where Supplier 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 Supplier or solely by the Customer, shall be vested in the Customer. The Supplier agrees to irrevocably assign the IPRs vested in such Works to the Customer upon their creation, with full title, guarantee, intellectual property rights and any other interest in those Works. At the request and cost of the Customer, the Supplier shall take such actions and execute any documents as is reasonably necessary and as the Customer requires to vest properly all such rights in the Customer or (where directed by the Customer) in its nominee and secure all appropriate forms of protection for and defend and enforce such rights.
3.6 The Parties agree that the IPR in all written material, drawings, specifications and Product moulds supplied by the Customer to the Supplier or commissioned by the Customer (collectively, the Customer’s Materials), belong to the Customer. The Supplier shall store the Customer’s Materials with adequate security measures; and shall not copy and/or use such material other than as permitted under this Agreement. The Supplier shall promptly return the Customer’s Materials, upon the Customer’s request.
3.7 The Supplier agrees that it shall not cause or permit anything to be done (or not done) which may damage or endanger the Customer’s IPR or Arch Group’s IPR.
3.8 If during the term of this Agreement, the Supplier becomes aware of any infringement of any of the Customer’s IPR or Arch Group's IPR, the Supplier shall immediately inform the Customer in writing.
4.1 The Supplier agrees that the Arch Group companies have all right, exclusive title and interest in the Customer Data and the Customer agrees that the Supplier shall have all right, exclusive title and interest in the Supplier Data.
4.2 The Supplier, 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 Supplier challenge the rights (including IPR) of the Customer in the Customer Data.
4.3 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 Supplier Data without the prior written consent of the Supplier, nor shall the Customer challenge the rights (including IPR) of the Supplier in the Supplier 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. The Supplier shall ensure that all personal data provided by the Customer, is deleted and/or destroyed by the Supplier as soon as it is no longer necessary for such purpose. Each Party shall treat such personal data as Confidential Information and: (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 Law; (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; and (g) comply with all applicable Law in relation to such personal data.
4.5 The Customer shall be entitled to supply any Arch Group company such information or personal data in respect of the Supplier for investment, marketing or other business purposes, including the exchange of non-financial information with selected business partners, without the Supplier’s consent.
5.1 The Supplier shall not at any time disclose to any third party any Confidential Information of the Customer unless the Supplier can show such information 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 this Agreement;
(c) is made available to the Supplier on a non-confidential basis from a third-party source that the Supplier 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 5.4 to 5.6 of these Legal Terms, is required to be disclosed by Law;
(e) is independently developed by the Supplier without reference to any Confidential Information shared by the Customer.
5.2 The Supplier may only disclose the Customer’s Confidential Information to its employees, professional agents, sub-contractors or its Affiliated Companies (collectively, the Representatives) in connection with this Agreement if, in the Supplier’s reasonable opinion the Representative must necessarily be involved in the performance of the Supplier’s obligations under this Agreement and provided that such Representative is informed of the confidential nature of the information and directed to treat such information confidentially pursuant to this Agreement.
5.3 Neither Party shall disclose to any person or entity the existence of this Agreement and its terms and conditions. For the avoidance of doubt, the Supplier shall not hold itself out as a supplier to the Customer or the Arch Group to any third party without the prior written consent of the Customer.
5.4 In the event that the Supplier 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 this Agreement, the Supplier shall provide the Customer with prompt written notice of such request and the terms of and circumstances surrounding such request, so that the Customer may consider whether there are appropriate grounds to object to such production and if so, the Supplier shall appear before the requesting authority to object to such production.
5.5 Without prejudice to Clause 5.4 above, the Customer may seek a protective order or other appropriate remedy and the Supplier agrees to co-operate fully with the Customer to seek such remedy.
5.6 In the event that such protective order or other remedy is not obtained, then the Supplier 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 a 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.
5.7 Upon expiry or termination of this Agreement (in whole or in part), the Supplier shall promptly return to the Customer any Confidential Information supplied by the Customer to the Supplier under this Agreement which shall remain at all times the property of the Customer.
5.8 Each Party may 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 this Agreement strictly for the purpose of establishing its compliance with any applicable Law and for defending or maintaining any litigation relating to this Agreement, provided that such retained material shall be kept only in its record archives and used only to the extent for such purpose. All Confidential Information that is not returned or destroyed pursuant to this Clause 5.8 shall remain subject to this Agreement.
5.9 Supplier 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 this Agreement.
5.10 The Supplier acknowledges that in the event of such a breach or threatened breach of this Agreement, the Customer shall be entitled to seek equitable relief, including an injunction and specific performance, in addition to any other right or remedy to which the Customer may be entitled. The Supplier waives any right to challenge any such claim for equitable relief by the Customer on the basis that an adequate remedy at Law exists.
6.1 Notwithstanding the expiry or termination of this Agreement (in whole or in part), the Supplier shall indemnify and hold the Customer 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 Customer or its Affiliated Companies:
(a) relating to any alleged or actual infringement arising from use of the Customer’s IPR or Arch Group’s IPR;
(b) relating to any Non-Conforming Products;
(c) as a result of any delay in shipment or delivery of the Products; or
(d) as a result of any:
(i) breach of any applicable Law; or
(ii) material breach of this Agreement (including without limitation terms relating to Exclusivity (if applicable) and Clause 3 above (Intellectual Property Rights));
by the Supplier, its employees, agents, carriers, representatives or otherwise.
6.2 The Supplier shall, at all times, have in force and maintain at its own cost (and cause any sub-contractor to have in force and maintain at its own cost) such policy or policies of insurance with insurers of good repute which would give the Supplier (or its sub-contractor) adequate cover in respect of all of the Supplier’s insurable liabilities under this Agreement. The Supplier shall, upon request by the Customer, provide the Customer with all such documentation as is necessary to prove the Supplier’s continuing compliance with its obligations to insure under this Clause 6.2.
6.3 Each Party shall immediately notify the other Party, 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 Customer’s Liability
7.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE CUSTOMER be LIABLE TO the Supplier 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 THIS Agreement, EVEN IF the Supplier HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
7.2 IF, NOTWITHSTANDING THE FOREGOING, LIABILITY CAN BE IMPOSED ON THE CUSTOMER, THEN the Supplier AGREEs THAT THE AGGREGATE LIABILITY OF THE CUSTOMER FOR ANY AND ALL LOSSES, damages and/OR INJURIES ARISING OUT OF ANY ACT OR OMISSION OF THE CUSTOMER and/or its affiliated companies IN CONNECTION WITH thIS 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 NOT EXCEED THE amount ACTUALLY PAID BY THE CUSTOMER TO the SUPPLIER FOR THE product(s) FOR THE PERIOD OF 12 MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.
7.3 NOTHING IN THIS AGREEMENT IS INTENDED TO exclude or limit ANY LIABILITY IN RESPECT OF DEATH OR PERSONAL INJURY by THE CUSTOMER or its employees, agents or sub-contractors; or any other liability which cannot be excluded or limited under law.
8 Group Policies
8.1 The Group Policies form part of the relationship with any business partner of the Arch Group. Failure to comply with these policies may lead to a civil and criminal prosecution under the provisions of applicable Law in the countries in the Arch Group operates. It may also result in violation of local Law in any business partner’s country of origin. The Supplier shall (and ensure that its employees, agents, subcontractors, representatives and vendors) comply, with the Group Policies; failing which the Customer may terminate this Agreement (in whole or in part) by giving prior written notice to the Supplier.
9 Representations 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 Law 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 a petition or application could be based for its winding up or appointment of a receiver;
(c) it has all licenses, 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 this Agreement and that when executed this Agreement will constitute a valid and binding obligation on it; and
(e) its execution and performance of this Agreement will not violate any applicable Law or regulations.
9.2 The Supplier 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 Law;
(b) the management system operated at the manufacturing premises has been certified to conform with ISO 9001, ISO14001 and GRS;
(c) the raw materials and production process used to manufacture the Product meets all requirements of applicable Law (including without limitation safety standards and sanctions), GRS and the Customer’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 Supplier’s warranties in Clause 9.2 above shall apply for a term of twenty-four (24) months from the Date Product Received in respect of each Purchase Order.
9.3 The Customer, its authorized representatives, agents and end customers may inspect and test Products furnished under any Purchase Order and to inspect the Supplier’s premises to ensure that the Product Warranties have been complied with, at any time upon reasonable notice to the Supplier.
9.4 The Supplier further represents and warrants that it is not a Restricted Person; and is not located or incorporated in a Prohibited Territory.
10 Termination/Force Majeure
10.1 The Customer may terminate this Agreement (in whole or in part) immediately at any time by giving written notice to the Supplier:
(a) if the Supplier commits a breach of its obligations relating to a Defective Product; or under Clause 2I (Audit Rights) or 2J (Exclusivity) in the Commercial Terms; and fails to remedy such breach to the satisfaction of the Customer within 14 Business Days;
(b) f the Supplier undergoes a Change of Control;
(c) pursuant to Clause 8.1 (Group Policies) above; or
(d) if the Supplier is in breach of its warranty under Clause 9.4 above.
10.2 Either Party (Non-Defaulting Party) may terminate this Agreement immediately by written notice to the other Party (Defaulting Party):
(a) if the Defaulting Party fails to pay any amount due under this Agreement within 30 Business Days of receipt of notification of such failure from the Non-Defaulting Party;
(b) if the Defaulting Party commits a material breach of this Agreement and if the breach is capable of remedy, fails to remedy the breach within 60 Business Days of receipt of notification of such breach from the Non-Defaulting Party;
(c) if the Defaulting Party ceases to trade or carry on its business for more than 30 consecutive Business Days;
(d) if the Defaulting Party undergoes an Event of Insolvency; or
(e) on the occurrence of a Force Majeure Event subject to and in accordance with Clause 10.4 below.
10.3 A Party shall not be deemed to be in breach of this Agreement if that Party (the Affected Party) is unable to perform any of its obligations under this Agreement by reason of a Force Majeure Event.
10.4 Upon occurrence of any Force Majeure Event, the Affected Party shall give notice to the other Party (Non-Affected Party) and provide details relating to the Force Majeure Event. The Parties shall collaborate to overcome the Force Majeure Event and shall at their respective cost, mitigate adverse consequences of non-performance of the Affected Party’s obligations under this Agreement. If the Affected Party is unable to overcome the Force Majeure Event within thirty (30) Business Days or such period of time as agreed between the Parties, either Party may terminate this Agreement by giving prior written notice to the other Party.
10.5 Effect of Termination
Upon expiry or termination of this Agreement (in whole or in part), the Supplier shall immediately cease to use and return to the Customer, the Customer’s IPR and Confidential Information provided under this Agreement.
11.1 The Customer may (but the Supplier may not) assign or sub-contract its rights or delegate any of its obligations under this Agreement without prior written consent of the Supplier.
11.2 This 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 this 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 this Agreement (including without limitation the right to seek liquidated damages or take legal action).
11.3 If any provisions of this Agreement shall be construed to be invalid or unenforceable, it or they shall not affect the legality, validity and enforceability of the other provisions of this Agreement. The illegal or invalid provision shall be deleted from this Agreement and no longer incorporated as a term of this Agreement but all other provisions of this Agreement shall remain in effect.
11.4 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 this 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.
11.5 Should there be any inconsistency between the English version and any other translation of these General Terms and Conditions, the English version shall prevail.
11.6 The Supplier’s obligations under Clause 3 (Intellectual Property Rights), Clause 4 (Privacy), Clause 5 (Confidentiality), Clause 6 (Indemnity), Clause 7 (Customer’s Liability), Clause 8 (Group Policies), Clause 9 (Representations and Warranties) and Clause 10.5 (Effect of Termination) of the Legal Terms in this GTC and terms of the Purchase and Supply Agreement relating to exclusivity shall survive the expiry or termination of this Agreement.
11.7 All notices, requests, demands and other communications which may be given or are required to be given under the Agreement shall be in writing.
11.8 Except as provided in Clause 11.9 below, a person or entity which is not party to this Agreement shall have no right under the Contracts (Rights of Third Parties) 2001 (Third Parties Ordinance) to enforce or enjoy the benefits of this Agreement.
11.9 The Customer and its Affiliated Companies (collectively Third Parties) may enforce the terms and conditions of this Agreement; and shall have the benefit of those provisions in this Agreement which are, or are stated to be, for their benefit, subject to and in accordance with the provisions of the Third Parties Ordinance.
12 Governing Law and Dispute Resolution
12.1 This Agreement shall be governed and construed in accordance with the laws of Singapore.
12.2 Any dispute arising out of or in connection with this Agreement, 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. TRADING TERMS
1 Purchase of Goods
1.1 Purchase Orders must be in writing and sent electronically. The Customer may refuse to accept Products delivered or received without a valid Purchase Order and Order Confirmation.
1.2 The prices quoted and/or agreed upon by the Customer shall be exclusive of any loading and delivery costs, unless the contrary is agreed in the Incoterms specified in the applicable Purchase Order or is expressly provided in writing.
1.3 The Purchase Order is an offer subject to the condition that the Supplier accepts its terms. The Purchase Order is deemed to be accepted by the Supplier’s Order Confirmation or action indicating the intended fulfilment of a Purchase Order (including without limitation delivery of the Product), whichever is earlier. Once the Supplier has accepted the Purchase Order, the Supplier is under an obligation to supply the Customer with the Product specified in the Purchase Order in full and in accordance with its terms.
1.4 The Supplier may not accept a Purchase Order in part and once a Purchase Order has been accepted it may not be cancelled other than by the Customer.
1.5 The Supplier may not substitute the 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.
1.6 Save as otherwise agreed between the Parties, title and risk of damage to the Products shall pass to the Customer upon the Date Product Received for authorized deliveries in accordance with the Incoterms specified in the agreed Purchase Orders without prejudice to any right of rejection or other right which may accrue or have accrued to the Customer under this Agreement or otherwise.
1.7 Unless otherwise agreed in writing, the standard payment terms are thirty (30) days from Date Product Received for the invoice amount in the applicable Purchase Order.
2 Delivery and Shipping
2.1 The Supplier shall ensure that it complies with all applicable import requirements for the Products. In the case of Products supplied under Incoterms Ex-Works or equivalent terms, the Supplier shall provide the relevant documentation required for the Customer to complete appropriate import declarations in compliance with applicable Law.
2.2 The Supplier shall ensure that the Product is appropriately packed, labelled and ticketed (if required) in accordance with the Packaging Specifications with the required accompanying Shipping Documents prior to and during delivery and dispatch. The Customer accepts no liability for any changes made to Packaging Specifications unless previously agreed in writing.
2.3 Unless Alternative Shipping Terms are indicated on the Purchase Order, the Supplier shall deliver the Product as specified on a Purchase Order at the Supplier’s sole cost and any Product Discrepancy will give rise to Administration Charges.
2.4 If Alternative Shipping Terms are specified, the Supplier must deliver the Product as specified in these terms and title and risk to the Product shall pass to the Customer in accordance with the Incoterms specified in such Alternative Shipping Terms. Products must be delivered by Date Product Received in the Purchase Order.
2.5 Late Shipment
(a) If the Supplier anticipates that it cannot satisfy the Incoterms specified in the Purchase Order, it shall provide not less than 14 days’ notice by email to the authorised representative of the Customer to notify Customer of the delay to Date Product Received (as specified in the Purchase Order) and the new Date Product Received.
(b) If the Supplier fails to make the Product available to satisfy the specified Incoterms and meet the Date Product Received specified in the Purchase Order, the Customer may at its option: (i) cancel the whole or any part of the Purchase Order; (ii) agree in writing to extend Date Product Received; (iii) charge the Supplier Late Receipt Charges and Administration Charges; (iv) reject the Product (in whole or in part) not received on time; (v) return any part receipt of the Product irrespective of the cause of delay at the Supplier’s expense; (vi) delay payment for the Product not received on time; and/or (vii) set off losses incurred by the Customer arising from late receipt of Product against any payments due to the Supplier.
(c) The exercise of any of the foregoing options shall be without prejudice to the Customer’s other rights and remedies including the right to claim damages or specific performance. If the Customer agrees to any amendment to the dates specified in the Purchase Order, such amended dates shall for the purposes of the delayed receipt be deemed to be the applicable dates for the Purchase Order. If, the Product is not received by the new receipt date, any claim by the Customer in respect of such failure may be made at the Customer’s option, with reference to, the original receipt date specified in the Purchase Order for purposes of calculation of the Late Receipt Charges, Administration Charges and/or any claim against the Supplier. The Customer may deduct or set off the Late Receipt Charges and/or Administration Charges from any amounts payable under any Purchase Order; or against any other amounts due to the Supplier. All Late Receipt Charges and Administration Charges which have not been deducted or set off, shall be payable by the Supplier within thirty (30) days of the Customer’s request.
2.6 Where the Supplier is required by any Alternative Shipping Terms to deliver or make the Product available to any third party carrier, the Supplier must ensure that such carrier is the Designated Freight Forwarder. In particular, where, a Purchase Order states that the Product is to be placed under shipping Incoterms FOB or Incoterms Ex-Works, the Supplier must ensure the Product is duly collected from the Supplier and delivered to the Designated Freight Forwarder. If the Supplier fails to comply with this requirement, without prejudice to the Customer’s other rights and remedies in respect of the Supplier’s failure to comply with this Agreement, the Supplier shall indemnify the Customer for any additional freight costs incurred for late shipment.
2.7 The Supplier shall comply with the logistical and other requirements in respect of delivery of the Products.
2.8 Upon the Customer’s written request with reasonable prior notice, the Supplier shall prepare and provide to the Customer periodic reports tracking purchases or deliveries (including the types, quantity and price of the Products).
3 Cancellation of Purchase Order
3.1 The Customer may cancel any Purchase Order in whole or in part on or after the Date Product Received, if the Product has not been delivered to the location specified in the Purchase Order unless the Date Product Received has been extended as agreed between the Parties in writing. In the case of Incoterms specified as Incoterms FOB or Ex-Works, the Customer may cancel any Purchase Order in whole or in part up to the date of Order Confirmation. Cancellation shall be by notice in writing to the Supplier.
3.2 If the Customer cancels a Purchase Order pursuant to Clause 3.1 above, such cancellation discharges the obligations of both Parties under this Agreement in relation to the cancelled Purchase Order and neither Party shall have any obligations to the other in respect of the cancelled Purchase Order.
4 Administration Charges
4.1 If the Supplier fails to comply with any term of this Agreement without prejudice to the right or remedies of the Customer in contract, tort or otherwise, the Customer may charge the Supplier the Administration Charges in accordance with Schedule 1 of this GTC.
5 Unauthorised Deliveries
5.1 The Customer (or the recipient named on the cancelled Purchase Order) may reject any Unauthorised Delivery by the Customer. If such Product is delivered to the Customer, subject to Clause 5.3 below the Customer will wherever possible make available such Product for collection for a period of fourteen (14) calendar days from delivery or if later the date on which the Product is received within the Customer’s control. Any Product which is not collected within this period may be sold or disposed of by the Customer or by any third party nominated by the Customer in such a manner as the Customer sees fit and without any liability. If the Customer disposes of the Product, the Customer may charge the Supplier for the costs of disposal. If the Customer sells the Product, it may retain the proceeds of sale for its own account and shall be under no obligation to account to Supplier for the proceeds of sale.
5.2 The Customer accepts no liability whatsoever in respect of Product delivered to the Customer in error or for which there is no valid Purchase Order.
5.3 The Customer may, at the Supplier’s request, arrange for storage, insurance and return of Product at the Supplier’s sole cost, liability and risk and the Customer reserves the right to charge the Supplier an additional handling fee or Administration Charges.
6 Defective Product
6.1 It is a condition of this Agreement that the Product is not a Defective Product.
6.2 If the Customer reasonably suspects that any Product is a Defective Product, the Supplier 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 appoint an independent third party nominated by the Customer to inspect and/or test the Product. The cost of such engagement shall be borne by the Supplier unless it is determined that the Product delivered by Supplier is not a Defective Product. Any Defective Product may be rejected and returned to the Supplier at Supplier’s cost in accordance with Clause 6.5 below, within thirty (30) calendar days of the date of the inspection, identifying defect, at any time prior to resale by the Customer, or at any time after resale to the Customer’s end customer.
6.3 If Customer has identified a Product as a Defective Product at any time, the Supplier shall its sole cost (including without limitation bearing import/export costs and taxes) and at Customer’s election:
(a) correct the Product Defect within seven (7) Business Days upon Customer’s request or such other period as agreed between the Parties;
(b) re-supply the Product with the Product Defect rectified to the reasonable satisfaction of the Customer in which event the Supplier shall pay all related costs (including without limitation import/export costs and taxes) for the transportation and redelivery of the Product to the Customer or its representative or end customer; or
(c) reimburse the price paid for the Product upon return of the Product by the Customer; and
(d) impose Administration Charges on the Supplier.
6.4 The Supplier acknowledges that the Customer’s receipt of the Product and/or acceptance of any Defective Product or identified as a Defective Product (whether before or after sale of the Product by the Customer) shall not operate as a waiver of any rights, power or remedies of the Customer under this Agreement or at law or equity.
6.5 If the Customer rejects a Product in accordance with this Clause 6 and such Product has been delivered to the Customer, the Customer will make the Product available for collection from the Customer for a period of fourteen (14) calendar days and the same terms set out in Clause 5 (Unauthorised Deliveries) will apply to the sale or disposal of the Defective Products.
6.6 The Supplier acknowledges and agrees the Customer’s written communication to the Supplier (by electronic or other means) shall constitute sufficient notice of a Non-Conforming Order.
6.7 Where Defective Product carries a latent defect, written notice to the Supplier within thirty (30) calendar days of inspection identifying the latent defect shall be deemed as sufficient notice. The Supplier hereby expressly waives any right to receive notice of the Non-Conforming Order earlier or in any manner other than as given by the Customer.
6.8 The Supplier acknowledges that the Customer’s receipt and/or acceptance of Product delivered under a Non-Conforming Order shall not waive any right of the Customer, including the right to later reject or otherwise direct the sale, disposition, repair or replacement of the Product delivered under the Non-Conforming Order, or the right to seek damages in respect of the Non-Conforming Order.
7 Invoicing for Purchase Orders
7.1 Payment for Products received by the Customer is conditional upon the Customer having received a valid invoice from the Supplier.
7.2 If so required by the Customer, the Supplier shall issue a separate invoice for each Purchase Order. The Products included in the invoice must match the Products in the Purchase Order, Order Confirmation and delivery note. The Supplier acknowledges that any mis-match or non-conforming invoice may lead to payment delay and under no circumstances shall the Customer be liable for any interest charges or late payment fees.
7.3 Payment of the invoice for the Products is made in accordance with the terms of this Agreement and the Customer is entitled to set off amounts owed to the Customer by the Supplier under this Agreement against any amounts due on invoices from the Supplier or monies owed to the Supplier.
7.4 The Customer 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.
In the event of any of the violations below, the Customer may impose Administration Charges of USD1000 for each violation in relation to each Purchase Order. Such charges shall payable by the Supplier within thirty (30) days of the Customer’s request.
Delivery Compliance Violations
Non-Conforming Product orders
Deliveries without a valid booking reference
Failure to provide accurate Shipping Documents (charge per inaccurate Shipping Document)
Deliveries which do not comply with specified Incoterms, destination or other terms specified in the Purchase Order
Invoice Matching Compliance Violations
Failure to quote the Purchase Order number
Failure to invoice at the price quoted in the Purchase Order
Submission of invoice including Product items not delivered
The Supplier agrees that the Customer may revise the Administration Charges from time to time and that the revised charges shall apply upon notification to the Supplier by the Customer.