Sales Terms & Conditions
These Standard Sales Terms and Conditions (the “Conditions”) constitutes the entire agreement (the “Agreement”) between the Vendor, being one or more of the following entities as expressly set out in the Order (as defined below) as being Vendor of the Goods: Beng Hui Marine Electrical Pte Ltd (Company Registration No.199900682G) and the subsidiaries, divisions or trading units of BH Global Corporation Ltd (Company Registration No.200404900H) (collectively the “Vendor Entities”) and the Buyer identified in the Order.
The Buyer hereby agrees that any terms different from or in addition to the Conditions, whether communicated orally or contained in any order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, whether before or after the effectiveness of these Conditions, shall at all times bind the Buyer but shall not be enforceable against the Vendor Entities unless expressly agreed in writing by the Vendor Entities, notwithstanding any oral acceptance, acquiescence and/or acts or reliance by the Vendor Entities upon such terms.
The Buyer’s electronic acceptance, acquiescence and/or acts or reliance by the Buyer upon or subsequent to any document containing or making reference to these Conditions shall be deemed as acceptance of and agreement to these Conditions.
Notwithstanding any other terms of this Agreement, only the Vendor Entity named in the Order shall be liable under this Agreement, in respect of the sales of Goods under the Order, but any Vendor Entities (whether or not such Vendor Entities are those identified in the Order) that utilises, relies on or supplies to any other persons the Goods (as defined below) shall be entitled to enforce this Agreement against the Buyer as if it were the Vendor under this Agreement.
1. DEFINITIONS AND INTERPRETATIONS
In these Conditions:
"Buyer" means the person, firm, entity or company named in the Order;
"Conditions" means the standard sales terms and conditions set out herein and (unless the context otherwise requires) includes any varied or special terms and conditions as expressly agreed in writing between the Vendor and the Buyer;
"Contract" means the contract of the sale and supply of the Goods and/or the supply and performance of the Services subject to these Conditions;
"Goods" means the Goods (including any installment of the Goods or any part of them) described in the Order;
"Order" means an order placed by the Buyer for the Goods, which may be oral or in writing, whether or not preceded by a quotation and which may or may not be evidenced by a purchase order;
"Price" means the price of the Goods and/or the charges for the Services and shall include any costs of delivery and applicable taxes;
“Services” means the services that the Vendor is to perform for the Buyer as specified in the Order;
"Specification" includes the specifications for the Goods and Services;
"Vendor" means the Vendor Entit(ies) named expressly in any written Order and where no such entity is named shall refer to the Vendor Entity named in the invoice issued by the Vendor for the supply of Goods or Services; and
“Vendor Entities” means Beng Hui Marine Electrical Pte Ltd and the subsidiaries, divisions or trading units of BH Global Corporation Ltd and “Vendor Entity” means either of them.
2. ORDERS AND SPECIFICATIONS
2.1. These Conditions apply to all sales of Goods by the Vendor.
2.2. The placing of an Order by the Buyer for the Goods shall constitute acceptance of these Conditions by the Buyer notwithstanding any other terms and conditions set out by the Buyer in any document sent by the Buyer to the Vendor whether or not accepted or acted upon by the Vendor.
2.3. The quantity, Specifications and date of delivery of any order by the Buyer for Goods or Services shall be as set out in the Order (as may be subsequently varied) and the quotation, delivery order and invoice issued by the Vendor. Where there is no written Order, the quantity, Specifications and date of delivery shall be as set out in the delivery order and invoice issued by the Vendor.
2.4. All Orders submitted by the Buyer (including any applicable Specification) shall be subject to the acceptance by the Vendor.
2.5. The Buyer acknowledges that all advice, instructions or recommendations of the Vendor are given in reliance upon the information and technical background given to Vendor by the Buyer from time to time, including without limitation the information given in the Order (including any applicable Specification). The Buyer agrees that the Vendor’s knowledge of the purpose for which Goods and Services are intended shall not constitute a warranty by the Vendor or assumption of any liability by the Vendor that the Goods and Services are suitable or fit for such purpose, and all liability of the Vendor, including any liability for loss (including consequential loss) however arising attributable to such knowledge are expressly excluded.
2.6. If the Goods are to be manufactured or any process is to be applied to the Goods by the Vendor in accordance with a Specification provided by the Buyer and accepted by the Vendor, the Buyer shall indemnify the Vendor against all and any loss, damages, costs and expenses (including legal costs) or liabilities of whatever nature arising out or in connection with any claim against any Vendor for infringement of any intellectual property rights of any other person which results from Vendor's use of the Specification submitted by the Buyer.
2.7 Where no Specifications of any Goods or Services is agreed, it shall be sufficient for the Vendor to supply Goods and Services that of a quality and specifications that are commercially reasonable based on the price at which such Goods and Services are supplied by the Vendor, without taking into account any specific needs or functions to which such Goods and Services are intended to be applied.
2.8 No Order that has been accepted by the Vendor may be cancelled, or changed or altered, by the Buyer except with the written agreement of the Vendor and the Buyer shall indemnify the Vendor in full against all loss (including loss of profit), costs, damages, charges and expenses incurred or suffered by the Vendor from such cancellation, change or alteration.
2.9 The Buyer shall promptly respond to any requests by the Vendor for clarification on the Order or Specifications and failure to do so shall exempt the Vendor from any liability for delays in delivery of the Goods or Services or in supplying Goods and Services that do not conform to the Specifications.
2.10. The Buyer agrees that all drawings, illustrations or any product literature or other publications of the Vendor whether or not attached to the delivery order or quotation may in certain instances be approximations and should not be relied upon by the Buyer (unless such Specifications are specifically repeated in the delivery order, quotation or invoice).
2.11 The Buyer hereby acknowledges that any Specification supplied by the Vendor, whether such Specification is made in accordance with the Buyer’s request, together with all intellectual property rights contained therein, shall be the exclusive property of Vendor. The Buyer shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Buyer, or as required for the purpose of these Conditions.
2.12. The Vendor reserves the right to, from time to time make any changes to the Specification of the Goods or Services to conform with any statutory or other regulatory requirements applicable to the Goods or Services.
3. PRICE OF THE GOODS
3.1. The Price of the Goods and Services will be set out in the Vendor's quotation or, if the price is not stated in the quotation, in the delivery order or, if the price is not stated in the Buyer’s delivery order, the invoice.
3.2. Notwithstanding clause 3.1 above, in the event of the following circumstance, the Vendor reserves the right to by giving notice to the Buyer at any time before delivery adjust the Price:
· any reason or factor that has since the Order materially impacted on the Vendor’s cost of raw materials, cost of production or cost of supply beyond the Vendor’s reasonable control; or
· any change in delivery dates, quantities or any Specifications which is requested by the Buyer; or
· any delay in delivery due to the instructions of the Buyer or due to the Buyer failing to take delivery; or
· any failure of the Buyer to give the Vendor adequate or accurate information or instructions.
3.3. Except as otherwise stated under the terms of the Order and unless otherwise agreed in writing between the Buyer and Vendor, the Price is given by the Vendor on an ex works basis, and where Vendor agrees to deliver the Goods at a place other than the Vendor's premises, the Buyer shall bear all the costs and expenses arising from such delivery, including without limitation, the Vendor's transportation, packaging and insurance fees. Any risks associated with transport shall be borne by the Buyer.
3.4 For the avoidance of doubt, the Price referred herein is exclusive of any applicable value added tax, which the Buyer shall be liable to pay to the Vendor.
4.1. In the case of F.C.A, F.A.S. or F.O.B. sales in Singapore, unless otherwise agreed by the Vendor, the Buyer shall upon the Vendor’s request nominate a carrier or vessel willing to receive the Goods within seven (7) days from the Vendor's request.
4.2. Any dates quoted for delivery of the Goods or Services are approximate only and the Vendor shall not be liable for any early or late delivery of the Goods or Services however caused.
4.3. Where delivery of the Goods or Services is to be made by the Vendor in bulk, the Vendor reserves the right to make partial delivery without any adjustment to the Price per unit, and the quantity so delivered shall be deemed to be the quantity ordered.
4.4. Where Goods or Services are to be delivered via installments, each installment delivery shall constitute a separate contract and failure by the Vendor to deliver any one or more of the installments or any claim by the Buyer in respect of any one or more installments shall not entitle the Buyer to treat the Agreement as a whole as repudiated.
4.5. In the event the Vendor fails to deliver the Goods or Services (or any installment), the Vendor's liability shall be limited to the excess (if any) of the cost to the Buyer (in the lowest available market price) of similar goods or services to replace those not delivered over the Price of the Goods or Services on the basis that the replacement are to be supplied to the Buyer on a reasonable and not expedited nor “rush” basis.
4.6. If the Buyer fails to accept delivery of the Goods or Services or fails to give the Vendor adequate delivery instructions at the designated delivery time for whatever reason, the Vendor shall, without prejudice to any other right or remedy available to the Vendor, at its own discretion:-
(i) at the Buyer’s risk, store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance cost) of such storage; or
(ii) sell the Goods at the best price readily obtainable and (after deducting all reasonable storage and selling expenses) account to the Buyer for the excess over the Price or charge the Buyer for any shortfall below the Price;
4.7 Any charges quoted for delivery of the Goods including transport, packaging and insurance are approximate only and Vendor shall not be liable for any changes to the charges quoted however caused.
4.8 Where Goods are shipped or transported by a shipper or third party, the Vendor shall not be liable for any delays arising from delays of the shipper or third party.
4.9 In the event of any non-payment by the Buyer or its related entities or affiliates of any amounts owed to any Vendor Entities, the Vendor shall be entitled to withhold delivery of any Goods or Services even if the non-payment does not relate to the Order pursuant to which the Goods or Services are supplied. In the event of the insolvency of the Buyer or any circumstances leading the Vendor to have reasonable concerns as to the ability of the Buyer to make payment of the Price in full, the Vendor shall be entitled prior to delivery to require the Buyer to pay the Price in full as a condition to delivery.
5. TERMS OF PAYMENT
5.1. Subject to any special terms agreed in writing between the Buyer and the Vendor or any other agreement on prepayment or payment of a deposit by the Buyer, the Vendor shall be entitled to invoice the Buyer for the Price at any time on or after delivery of the Goods. The Vendor shall be entitled to apply any prepayment or deposit made by the Buyer for an Order towards any outstanding invoice even if for any other Order.
5.2 In the event the Buyer fails to take delivery of the Goods for whatever reason other than from the Vendor’s breach of these Conditions, the Vendor shall be entitled to invoice the Buyer for the Price at any time either after (i) the Vendor has notified the Buyer that the Goods are ready for collection (the “Collection Notice”) or (ii) the Vendor tendered delivery of the Goods (as the case may be).
5.3. The Buyer shall pay the amount reflected in the invoice within the agreed terms thereof. The Vendor shall be entitled to recover any amounts outstanding under any invoice, notwithstanding that the delivery may not have taken place and/or the Goods have not been passed to the Buyer. Time of payment shall be of the essence.
5.4. If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Vendor, the Vendor shall be entitled to:
(i) terminate the Agreement or suspend any further deliveries to the Buyer; and
(ii) appropriate any payment made by the Buyer to such of the Goods (or goods and/or services supplied under any other contract between the Buyer and Vendor) as Vendor may think fit (notwithstanding any purported appropriation by the Buyer); and
(iii) charge the Buyer interest (both before and after any judgment) over the amount unpaid, at the rate of 2% per cent per month from the due date till the payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) before and after judgment.
5.5. By using our e-Platform services, you promise to repay us all extensions of credit (including any and all Purchases and Cash Advances) you have authorized us to charge to your account and any accrued interest, fees, collection costs, and other amounts that you agree to pay in this Agreement. We will presume you authorized any purchase using your account, if the purchase is delivered in your name to your address.
6. RISK AND OWNERSHIP OF THE GOODS
6.1. Unless otherwise agreed by the parties hereto or set out in these Conditions, Goods are deemed to be accepted by the Vendor upon delivery (the “Acceptance of Goods”) in either of the following manners and the risk of damage to or loss of the Goods shall pass to the Buyer:
· for delivery at the Vendor's premises, at the time when the Vendor issues the Collection Notice; or
· for delivery at a place other than the Vendor's premises, at the time of delivery or, if the Buyer fails to take delivery of the Goods, the time when Vendor has tendered delivery of the Goods.
6.2. Ownership of the Goods shall not be passed to the Buyer until the Vendor has received in cash or cleared funds payment in full of the Price and all other goods agreed to be sold by Vendor to the Buyer for which payment is then due if any.
6.3. For so long as any part of the Price remains outstanding and/or ownership of the Goods remains with the Vendor, the Buyer shall, at its own costs and expenses hold the Goods as the Vendor's fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and shall ensure that the Goods are properly stored, protected and insured and identified as the Vendor's property but the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business subject to all proceeds being held for the account of and benefit of the Vendor.
6.4. Notwithstanding the physical possession of the Goods and for so long as the ownership of the Goods remains to be held by the Vendor (and provided the Goods are still in existence and have not been resold), the Vendor shall be entitled at any time to require the Buyer to deliver up the Goods to the Vendor and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored for the purpose of repossession the Goods.
7.1. Subject to the conditions set out in clauses 9 and 10 hereunder, the Vendor warrants that the Goods will correspond with the Specification at the time of delivery and will be free from defects in material and workmanship for a period specified in the quotation, delivery order of invoice.
7.2. The above warranty is given by Vendor subject to the following conditions:
· under no circumstance shall the Vendor be liable for any defect in the Goods arising from any drawing, design or Specification supplied by the Buyer;
· under no circumstance shall the Vendor be liable for any defect arising from fair wear and tear, willful damage, negligence, abnormal working conditions, failure to follow Vendor's instructions (whether oral or in writing), misuse or alteration or repair of the Goods without Vendor's approval; and
· under no circumstance shall the Vendor be liable for any of the above warranties (or any other warranty, condition or guarantee in the Agreement) if the Price has not been fully paid by the Buyer at the date of alleged breach giving rise to a claim on these warranty.
The Buyer hereby further agrees that the Vendor shall not be or be deemed to be in breach of the Agreement by reason of any delay in performing, or any failure to perform, any of Vendor's obligations in relation to the Goods and/or Services, if the delay or failure was due to any cause beyond Vendor's reasonable control.
7.3 The Vendor’s warranties herein shall not extend to parts, materials or equipment which are not manufactured by the Vendor, in respect of which the Buyer shall only be entitled to the benefit of any such warranty or guarantee as is given by the manufacturer to Vendor.
7.4 Notwithstanding anything contained herein, the Vendor will not be liable for any loss of the Buyer, whether direct or indirect or consequential or loss of profit or any damage as a result of any of the following:
· any inaccurate or insufficient information or technical background given by the Buyer, whether orally or in written, including without limitation any information given in the purchaser order (including any applicable Specification) or the Buyer’s request;
· any failure to comply strictly with the instructions, advice or recommendations given by the Vendor;
· any use or application of the Goods for any purpose other than those detailed in the Specification or advised by Vendor; or
· any failure to comply with any applicable legislation or any guidelines issued by the Health and Safety Executive (HSE) or other appropriate regulatory authority current at the time of use of the Goods by the Buyer or any of its employees, agents or sub-contractors.
7.5. The Buyer hereby acknowledges that the Vendor is not an insurer and insurance (if any) obtained by the Buyer, and that the amounts payable to Vendor under the Agreement are based upon the value the Goods to be provided hereunder. The Vendor makes no guarantee or warranty that any Services whether or not rendered in respect of the Goods including any tests of the Goods in respect of their characteristics or shelf life where the Goods are manufactured in accordance with the Specification submitted by the Buyer will avert or prevent occurrences or the consequences thereof which any Services are designed to detect.
7.6. Subject as expressly provided in these Conditions, and except where the Goods are sold to a person dealing as a consumer (within the meaning of the Unfair Contract Terms Act 1977), all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
7.7. Where the Goods are sold under a consumer transaction (as defined by the Consumer Transactions (Restrictions on Statements) Order 1976, the statutory rights of the Buyer are not affected by these Conditions.
7.8. Any claim by the Buyer which is based on any defect in the quantity, quality or condition of the Goods or their failure to correspond with the Specification shall be notified to Vendor within seven (7) days from the date of delivery or (where the defect or failure was not apparent on reasonable inspection) within 15 days after discovery of the defect or failure. If delivery is not refused, and the Buyer does not notify Vendor accordingly, the Buyer shall not be entitled to reject the Goods and Vendor shall have no liability for such defect or failure.
7.9 Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet the Specification is notified to Vendor in accordance with these Conditions, and provided the Goods are returned to Vendor's premises carriage paid Vendor will at its option either replace the Goods (or the part in question) free of charge or refund to the Buyer the Price of the Goods (or a proportionate part of the price), but Vendor shall have no further liability to the Buyer.
7.10 Except in respect of death or personal injury directly caused by the Vendor's negligence, Vendor shall not be liable to the Buyer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Agreement, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for compensation whatsoever (whether caused by the negligence of Vendor, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or Services or their use or resale by the Buyer and the entire liability of Vendor under or in connection with the Agreement shall not exceed the Price, notwithstanding any terms to the contrary.
8. INTELLECTUAL PROPERTY INDEMNITY
8.1. If any claim is made against the Buyer that the Goods infringe or that their use or resale infringes any intellectual property rights of any other person, then unless the claim arises from the use of any drawing, design or specification supplied by the Buyer, the Vendor shall reimburse the Buyer against all reasonable loss and damages awarded against or incurred by the Buyer in connection with the claim, provided that Vendor is given full control of any proceedings or negotiations in connection with any such claim and the Buyer shall give all assistance to the Vendor as it may require and take such steps as the Vendor may reasonably require to mitigate or reduce any such loss, damages, costs or expenses for which the Vendor is liable to indemnify the Buyer under this clause.
8.2 Notwithstanding Clause 8.1 above, the Buyer agrees that the Vendor’s aggregate liability to the Buyer for any and all damages, losses and causes of action (whether in contract, tort including, without limitation, negligence, or otherwise) arising out from the infringement of any third party intellectual property rights shall not in any event exceed the total amount of Price paid by the Buyer for the Goods or Services in the six (6) months period immediately preceding the time such liability arose.
9. BUYER’S INDEMNITY
9.1. The Buyer shall indemnify and keep the Vendor indemnified against all or any injury (including death) to any persons and any loss and/or damage as a result of any act, default or negligence by the Buyer and/or its employees or agents (other than any Vendor Entity or its manufacturers or subcontractors) and against all claims, demands, proceedings, damages, costs, charges and expenses whatsoever (including legal costs) in respect thereof or in relation thereto.
10. INSOLVENCY OF THE BUYER
10.1. If the Buyer makes any voluntary arrangement with its creditors or becomes bankrupt or becomes subject to an administration order or goes into liquidation or Vendor reasonably apprehends that any of the events mentioned above is about to occur, the Vendor shall be entitled to terminate the Agreement or suspend any further deliveries under the Agreement without any liability to the Buyer, and if the Goods have been delivered but not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
11. FORCE MAJEURE
11.1 The Vendor shall not be liable to the Buyer in any manner whatsoever in the event of failure or delays in delivery/performance due to the events beyond the Vendor’s reasonable control including but not limited to, war (whether declared or otherwise), civil or military disturbances, riot, Act of God (flood, typhoon, earthquake, epidemic), embargoes, severe fire, sabotage, perils of the sea, strike, lockout and labour disputes. The Vendor, if affected shall as soon as reasonably practicable inform the Buyer in writing of the said failure or delay and the event relied upon for such failure or delay. In the event of such delay, the due dates for the performance and or delivery shall be correspondingly extended by a period or periods equal to the duration of such event. For delay lasting for a period of more than three (3) months, either of the parties hereto may, with written notice to the other party, terminate this Agreement, with no liability save for costs incurred by the Buyer in producing or procuring the Goods or Services even if at an unfinished stage, less any amounts that can reasonably be realized by the Vendor from such unfinished Goods and Services.
If any provision of this Agreement is held invalid or unenforceable, and unless invalidity and unenforceability thereof does substantial violence to the underlying intent and sense, or the remainder of this Agreement, such invalidity and unenforceability shall not affect in any way the validity and enforceability of any other provisions of this Agreement except those of which the invalidated or unenforceable provisions comprise an integral part of or are otherwise clearly inseparable from. In the event any provision is held invalid or unenforceable, the parties hereto shall use their reasonable efforts to agree upon a valid and enforceable provision which shall be a reasonable substitute for such invalid or unenforceable provision in light of the tenor of this Agreement and, upon so agreeing, such substitute provision shall be deemed incorporated into this Agreement.
The Vendor’s restraint or failure to enforce, at any time any of the provisions of this Agreement or any of its rights shall not waive any such right or provision or in any way affect the validity of this Agreement. The exercise by the Vendor of any of its rights under the terms of this Agreement shall not preclude or prejudice Vendor from thereafter exercising the same or any other right it may have under this Agreement irrespective of any previous action taken by the Vendor.
Any notice or other document to be given under this Agreement and all other communications between the Buyer and the Vendor shall be in writing and may be given or sent by:
(b) registered post or express or air mail; or
(c) facsimile or other electronic media;
to the other Party at the address or facsimile transmission number set out below, or such other address or facsimile transmission number as either party hereto may give notice of, to the other party.
If to the Vendor:-
Address: 8 Penjuru Lane, Singapore 609189
Fax: 6296 2775
Any notice or other document shall be deemed to have been duly served upon and received by the addressee:-
(a) if delivered by hand, at the time of delivery;
(b) if sent by registered post or express or air mail, within three (3) days of dispatch; and
(c) if transmitted by way of facsimile transmission or other electronic media, within three (3) days of transmission.
12.4. Dispute Resolution
If a dispute arises between the Buyer and the Vendor, out of or in connection with this Agreement, the parties hereto shall endeavor to resolve the dispute through negotiations. If negotiations fail, the parties hereto shall refer the dispute for mediation at the Singapore Mediation Centre in accordance with the Mediation Rules for the time being in force. For the avoidance of doubt, prior reference of the dispute to negotiations between the parties hereto or to mediation under this Clause shall not be a condition precedent for resolution of any disputes by arbitration in Singapore under Clause 12.5 below.
12.5 Governing Law
This Agreement and its performance shall be governed by the laws of Singapore.
The Parties agree that any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in Singapore in accordance with the UNCITRAL Arbitration Rules as at present in force. The arbitration shall be administered by Singapore International Arbitration Centre ("SIAC") in accordance with its practice rules and regulations. The appointing authority shall be the Chairman or Deputy Chairman of SIAC. The number of arbitrators shall be one. The language to be used in the arbitral proceedings shall be English.