STANDARD TERMS AND CONDITIONS OF SALE
01-01-2022
STANDARD TERMS AND CONDITIONS OF SALE
1. Interpretation
1.1 In these Terms and Conditions:-
“Buyer” means the person who accepts a quotation of the Seller for the sale of the Goods or whose order for the Goods is accepted by the Seller;
“Buyer’ s Group” means its subsidiaries, related companies and associated companies (and shall where applicable, include the subsidiaries, related companies and/or associated companies of such subsidiaries, related companies and associated companies) ;
“Contract” means the contract for the purchase and sale of the Goods made between the Seller and the Buyer;
“Goods” means the goods (including any instalment of the goods or any parts for them) which the Seller is to supply in accordance with these Terms and Conditions;
The Siam Industrial Wire Company Limited (SIW) is a wholly owned subsidiary of Tata Steel group.
“Seller” means the company whose name appears on the front of the proforma sales contract; and
“Terms and Conditions” means the standard terms and conditions of sale set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller.
1.2 Any reference in these Terms and Conditions to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
1.3 The headings in these Terms and Conditions are for convenience only and shall not affect their interpretation.
1.4 References to a party hereto shall be deemed to include its successors-in-title and permitted assigns. Words denoting the singular shall include the plural and vice versa. References to a person or persons shall be deemed to include firms and/or corporations. Where a word or phrase is defined, its other grammatical forms used herein have a corresponding meaning.
2. Terms of Sale
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any written quotation of the Seller which is accepted by the Buyer, or any written order of the Buyer which is accepted by the Seller, subject in either case to these Terms and Conditions, which shall govern and form part of the Contract mutatis mutandis as if the same were expressly repeated therein, to the exclusion of any other terms and conditions subject to which any such quotation is accepted or purported to be accepted, or any such order is made or purported to be made, by the Buyer. Without prejudice to the generality of the foregoing, these Terms and Conditions supersede any other terms, conditions and/or provisions appearing in the Seller’ s catalogues or elsewhere and shall override and prevail over any terms, conditions and/or provisions stipulated or appearing in or referred to in the Buyer’ s order or similar document or elsewhere.
2.2 No variation to these Terms and Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’ s employees, servants and/or agents are not authorised to make any representations or warranties whatsoever concerning the Goods unless confirmed by the Seller in writing. In entering into the Contract the Buyer acknowl­edges that it does not rely on, and waives any claim for breach of, any such representations, warranties and/or statements which are not so confirmed.
2.4 Unless otherwise expressly agreed to in writing by the Seller, the descriptions, information and illustrations contained in catalogues, price lists, leaflets and/or other descriptive materials (including those posted on the internet) are intended merely to present a general idea of the Goods described therein and shall not form part of the Contract.
2.5 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3. Orders
3.1 No order submitted by the Buyer shall be deemed to be accepted by the Seller unless and until confirmed in writing by the Seller’ s authorised representative based on these Terms and Conditions.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification and where a process or service is to be applied/provided by the Seller, drawings, delivery schedule, detailing schedule, bar bending schedule, structural architectural drawings, cutting list, bar cutting schedule, shape code, technical instructions, mass detailing etc) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods or services within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.3 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’ s quotation (if accepted by the Buyer) or the Seller’ s sales contract comprising these Terms and Conditions.
3.4 If the Goods are to be manufactured or any process is to be applied to the Goods by the Seller in accordance with a specification/instructions submitted by the Buyer, the Buyer shall indemnify the Seller against all loss, damages, costs and expenses awarded against or incurred by the Seller in connection with or paid or agreed to be paid by the Seller in settlement of any claim for infringement of any patent, copyright, design, trade mark or other industrial or intellectual property rights of any other person which results from the Seller’ s use of and/or compliance with the Buyer’ s specification/instructions.
3.5 The Seller reserves the right to make any changes in the specification of the Goods which are required to conform with any applicable standards, statutory rules, order or requirements or, where the Goods are to be supplied to the Seller’ s specification, which do not materially affect their quality or performance.
3.6 No order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit) , costs (including the cost of all labour and materials used, warehousing and storage charges) , damages, charges and expenses incurred by the Seller as a result of cancellation.
3.7 In the event that any licence, approval or consent of any governmental or other authority is or becomes required for the sale and purchase of the Goods comprised in the Contract, the Buyer shall, at its own cost and expense, obtain all such licences, approvals and consents and shall produce to the Seller satisfactory evidence that the same have been obtained. If such evidence is not produced within a reasonable time after the Seller’ s request therefor, the Seller shall (without prejudice to any of its other rights and/or remedies) be entitled by written notice to the Buyer cancel the Contract insofar as it remains unperformed.
4. Price of the Goods
4.1 The price of the Goods shall be the Seller’ s quoted price or, where no price has been quoted (or a quoted price is no longer valid) , the price listed in the Seller’ s published price list current at the date of acceptance of the order. Where the Goods are supplied for export from Singapore, the Seller’ s published export price list shall apply. Unless otherwise stated in the quotation, all prices quoted are valid for fourteen (14) days only or until earlier acceptance by the Buyer, after which time they may be altered by the Seller without giving notice to the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the reasonable control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture) , any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated under the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller on an ex-works basis, and where the Seller agrees to deliver the Goods otherwise than at the Seller’ s premises, the Buyer shall be liable to pay the Seller’ s charges for transport, packaging and insurance PROVIDED ALWAYS that the provisions of Clause 6.1 shall apply.
4.4 The price is exclusive of any applicable taxes, duties, tariffs and/or fees (including but not limited to Goods and Services Tax and customs fees) , which shall be for the sole account of the Buyer and for which the Buyer shall additionally be liable to pay to the Seller. In the event that any taxes, duties, tariffs, fees and/or other charges is paid by the Seller on behalf of the Buyer, the Buyer hereby undertakes to forthwith on the Seller’ s demand pay/repay the same to the Seller and hereby agrees to indemnify the Seller and keep the Seller fully indemnified in respect thereof.
4.5 Without prejudice to the foregoing, if after the date of the Contract, any tax, duty, tariff or any other such imposition or any increase in any existing tax, duty, tariff or any other such imposition is charged in respect of the Goods, and if the same is to be paid by the Seller, then the Seller shall be entitled to add the amount of such imposition to the price of the Goods and the Buyer hereby agrees to bear and pay the same.
5. Terms of payment
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection or (as the case may be) the Seller has tendered delivery of the Goods.
5.2 The Buyer shall pay the price of the Goods within seven (7) days of the date of the Seller’ s invoice, and the Seller shall be entitled to recover the price, notwithstanding that delivery may not have taken place and the property in the Goods has not passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 All payments to be made by the Buyer shall be made promptly and without withholding, set-off, counterclaim or any other deduction of any nature whatsoever.
5.4 If the Buyer fails to make any payment on the due date (or where the sum is payable on demand, on the Seller’ s demand therefor) then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to:-
(i) cancel the Contract (s) or suspend any further deliveries to the Buyer under the Contract (s) and/or any other contracts made between the Seller and the Buyer;
(ii) appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer) ; and/or
(iii) charge the Buyer interest (both before and after any judg­ment) on the amount unpaid, at the rate of twelve per cent (12%) per annum until payment in full is made (a part of a month being treated as a full month for the purpose of calculating interest) .
5.5 Without prejudice and in addition to any of the other terms, conditions and/or provisions hereof or to any of the other rights or remedies of the Seller, if the Buyer shall fail to perform any of its obligations hereunder including but not limited to if the Buyer shall fail to make payment for any of the Goods delivered) or if the credit of the Buyer shall become impaired or its financial condition become such that, in the Seller’ s sole and absolute discretion, the credit extended and/or to be extended should be curtailed or withdrawn, the Seller shall have the right to:-
(i) declare that the credit period granted by the Seller to the Buyer in respect of any and/or all invoice (s) already issued to the Buyer shall be cancelled and the invoice (s) due and payable immediately;
(ii) limit or vary the credit as to term and/or amount; and/or
(iii) require payment from the Buyer in advance of delivery for all Goods;
and upon such notification by the Seller to the Buyer, the terms of payment under the Contract shall be duly amended in accordance with the notification.
5.6 Without prejudice to any other right or remedy which the Seller may have, Seller shall be entitled (without suffering any penalty whatsoever and without being in breach of the Contract or any other contract) to withhold delivery of the Goods and/or to stop the Goods in transit at any time should the Buyer:-
(i) fail to observe any of the terms, conditions and/or provisions of the Contract and/or these Terms and Conditions; or
(ii) fail to make any payment under the Contract or under any other contract that the Buyer may have with the Seller from time to time.
6. Delivery
6.1 Delivery of the Goods shall be made by the Buyer collecting the Goods at the Seller’ s premises at any time after the Seller has noti­fied the Buyer that the Goods are ready for collection or, if some other place for delivery is agreed by the Seller, by the Seller delivering the Goods to that place PROVIDED ALWAYS that from the time of dispatch from the Seller’ s premises and until delivery to that place, the risk of loss, damage and/or deterioration of the Goods from any cause whatsoever shall be borne by the Buyer.
6.2 Any dates quoted by the Seller for delivery of the Goods are approximate only and the Seller shall not be liable in any way or manner for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon the Seller giving reasonable notice to the Buyer.
6.3 Where the Goods are to be delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the instalments in accordance with these Terms and Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’ s reasonable control or the Buyer’ s fault, and the Seller is accordingly liable to the Buyer, the Seller’ s liab­ility shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or requests a delay in the delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery (otherwise than by reason of any cause beyond the Buyer’ s reasonable control or by reason of the Seller’ s fault) then, without prejudice to any other right or remedy available to the Seller and without being liable in any way or manner to the Buyer, the Seller may:-
(i) store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage at the Buyer’ s sole risk; 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 under the Contract or charge the Buyer for any shortfall below the price under the Contract; or
(iii) (where there is no ready buyer for the goods, for example where the Goods are manufactured or fabricated to Buyer’ s specific needs/instructions) , recycle, scrap or howsoever otherwise dispose of the Goods and (after deducting all reasonable costs and expenses) charge the Buyer for any shortfall below the price under the Contract.
7. Risk and property
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer:-
(i) in the case of Goods to be delivered at the Seller’ s prem­ises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
(ii) in the case of Goods to be delivered otherwise than at the Seller’ s premises, at the time of dispatch of the Goods from the Seller’ s premises.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Terms and Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other Goods agreed to be sold by the Seller to the Buyer for which payment is then due.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’ s fiduciary agent and bailee, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and iden­tified as the Seller’ s property. Until that time, the Buyer shall be entitled to resell or use the Goods in the ordinary course of its busi­ness, but shall account to the Seller for the proceeds of sale or other­wise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold) , the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller 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 and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so, all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. Warranties and Liability
8.1 Unless otherwise expressly given by the Seller in writing, all warranties, conditions and other terms (whether express or implied by statute, common law or otherwise) are hereby excluded and negated to the fullest extent permitted by law.
8.2 Without prejudice to the generality of the foregoing, no warranty or condition (express or implied) is given by the Seller as to the merchantability, fitness, quality or suitability of the Goods for any particular purpose, whether or not such purpose is known to the Seller.
8.3 Any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller immediately after discovery of such alleged defect but in any event within the applicable time period set out in clause 14.5 below. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.4 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 specification is notified to the Seller in accordance with these Terms and Conditions, the Seller shall be entitled, at its sole and absolute discretion to either:-
(i) replace the Goods (or the part in question) free of charge; or
(ii) refund to the Buyer the price of the Goods (or a proportionate part of the price) ; or
(iii) compensate the Buyer in accordance with clause 14.6 hereof;
but, save as expressly provided herein, the Seller shall have no further or other liability (including but not limited to liability for any direct, indirect or consequential loss howsoever caused or for any other loss whether caused by the Seller’ s negligence or otherwise) ) to the Buyer PROVIDED ALWAYS that in no event shall the Seller be liable in any way or manner for any defects whatsoever arising out of or as a result of materials provided, or a design stipulated or specified, by the Buyer.
8.5 The Seller shall not in any circumstances be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit, loss of use, loss of contracts or otherwise) , costs, expenses or other claims for consequential compensation of any kind or nature whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Terms and Conditions.
8.6 The Buyer is fully aware and cognisant of the meaning and effect of the provisions of this Clause 8 and of the effect of Unfair Contract Terms Act (Cap. 396) and hereby declares that these provisions are fair and reasonable in relation to the terms of the Contract and the relationship between the Buyer and the Seller.
8.7 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’ s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’ s reasonable control. Without prejudice to the generality of the foregoing, the following shall be regarded as causes beyond the Seller’ s reasonable control:-
(i) Act of God, explosion, flood, tempest, fire or accident;
(ii) war or threat of war, sabotage, insurrection, civil disturbance or requisition;
(iii) acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
(iv) import or export regulations or embargoes;
(v) strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party) ;
(vi) difficulties in obtaining raw materials, labour, fuel, parts or machinery;
(vii) power failure or breakdown in machinery; and/or
(viii) in the event that the Seller obtains the Goods from any third party (whether or not the third party is part of the Tata Steel Group) , any delay, failure and/or inability of the Seller to perform any of its obligations under the Contract and/or in relation to the Goods by reason and/or as a result of any delay, failure and/or inability of any third party to manufacture and/or supply the Goods to the Seller for any reason whatsoever.
8.8 If delivery of the Goods or any part thereof shall be delayed on account of any of the causes listed in the immediately preceding clause, the time for delivery shall be so extended until the operation of the cause (s) preventing delivery has ceased or, at the option of the Seller, the Contract may be cancelled either in full or, if the Contract has been partly performed, in respect of the unperformed portion thereof. In the latter situation, the Buyer shall make payment to the Seller in respect of that portion of the Contract that has been performed.
8.9 For the avoidance of doubt, no liability shall be assumed by the Seller for damages caused by improper or incompetent use, faulty assembly and/or start-up carried out by the Buyer or by third parties, natural wear, improper or careless handling, unsuitable consumables, substitute materials, imperfect construction work, unsuitable building ground, chemical, electrochemical or electrical influences.
9. Lien and Resale
9.1 In addition to any right of lien to which the Seller may by law be entitled, the Seller shall be entitled to a general lien on the property of the Buyer in the Seller’ s possession for the unpaid price of any Goods sold and delivered to the Buyer by the Seller or any other monies owing by the Buyer or any of its affiliated companies to the Seller under the same or any other contract.
9.2 Without prejudice to any other terms and conditions contained herein, if the Buyer shall fail and/or neglect to pay the whole or any part of the price of the Goods or be in breach of any of the terms and conditions hereof, the Seller shall be entitled to resell the Goods or any part thereof without prejudice to any claim which the Seller may have against the Buyer for damages or otherwise.
10. Termination
10.1 In the event that:-
(i) the Buyer makes default or commits any breach of the Contract, these Terms and Conditions and/or any of its obligations to the Seller;
(ii) the Buyer’ s officers or employees or representatives (whether employees or otherwise) represents to the Seller orally or in writing that the Buyer is not able to pay or has difficulty in paying outstanding debts (whether the same be debts due to the Seller or otherwise) ;
(iii) the Buyer becomes insolvent or makes any voluntary arrangement with its creditors or (being an individual or firm) has a Statutory Demand presented against it or becomes bankrupt or (being a company) goes into liquidation or has a petition presented or resolution passed for winding up (otherwise than for the purposes of amalgamation or reconstruction) ; or
(iv) an encumbrancer takes possession, or a receiver is appointed, of any of the property or assets of the Buyer; or
(v) the Buyer ceases, or threatens to cease, to carry on business; or
(vi) the Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly,
then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract 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. Export terms
11.1 In these Terms and Conditions, “Incoterms” means the international rules for the interpretation of trade terms of the International Chamber of Commerce as in force at the date when the Contract is made. Unless the context otherwise requires, any term or expression which is defined in or given a particular meaning by the provisions of Incoterms shall have the same meaning in these Terms and Conditions, but if there is any conflict between the provisions of Incoterms and these Terms and Conditions, the latter shall prevail.
11.2 Where the Goods are supplied for export from Singapore, the provisions of this clause 11 shall (subject to any special terms agreed in writing between the Buyer and the Seller) apply notwithstanding any other provision of these Terms and Conditions.
11.3 The Buyer shall be responsible, at its own costs and expense, for complying with any legislation or regulations governing the importation of the Goods into the country of destination, for the obtaining of all permits and for the payment of any and all duties, taxes, levies, imposts and tariffs thereon.
11.4 Unless otherwise agreed in writing between the Buyer and the Seller, the Goods shall be delivered FOB the air or sea port of shipment and the Seller shall be under no obligation to give notice under Section 32 (3) of the Sale of Goods Act (Cap.393) (“the Act”) . It is hereby agreed that Section 32 (2) of the Act shall not apply to the Contract.
11.5 The Buyer shall be responsible for arranging for survey, testing and inspection of the Goods at the Seller’ s premises before shipment. The Seller shall have no liability for any claim in respect of any defect in the Goods which would be apparent on inspection and which is made after shipment, or in respect of any damage during transit.
11.6 Payment of all amounts due to the Seller shall be made by irrevocable letter of credit opened by the Buyer in favour of the Seller and confirmed by a bank in Singapore acceptable to the Seller. The said letter of credit shall be in such form and substance as the Seller may in its absolute discretion specify. If the Seller has agreed in writing on or before acceptance of the Buyer’ s order to waive this requirement, by acceptance by the Buyer and delivery to the Seller of a bill of exchange drawn on the Buyer payable seven (7) days after sight to the order of the Seller at such branch of any Bank in Singapore as may be specified in the bill of exchange.
11.7 The Buyer shall ensure that a letter of credit for the full purchase price of a Contract is issued and confirmed by a bank in Singapore acceptable to the Seller within seven (7) days from the date of acceptance by the Seller of the order pertaining to the Contract but in any event no later than four (4) days before the proposed delivery date of the Goods stated in the order. It is hereby agreed that the Seller shall not be under any obligation to deliver the Goods under the Contract unless and until the said letter of credit has been issued and confirmed as above stated to the satisfaction of the Seller.
12. Indemnity for breach of Intellectual Property rights
12.1 The Buyer shall indemnify the Seller and keep the Seller fully indemnified against all claims, demands, damages, penalties, costs and/or expenses of any nature whatsoever suffered and/or incurred by the Seller as a result of or arising from any alleged infringement or infringement of any patent, registered design, copyright, trade-mark, trade name or other intellectual and/or industrial property right.
13. Governing Law and Arbitration
13.1 The Contract and these Terms and Conditions shall be governed by and construed in all respects in accordance with the laws of the Republic of Singapore.
13.2 In respect of local sale and purchase transactions (ie where the Goods are delivered within Singapore) , the Buyer irrevocably agrees for the benefit of the Seller that any dispute arising out of or in connection with the Contract and these Terms and Conditions may, at the Seller’ s sole and absolute discretion be resolved by the courts of the Republic of Singapore and the Buyer hereby irrevocably submits to the non-exclusive jurisdiction of such courts. The submission to such jurisdiction shall not (and shall not by construed so as to) limit or exclude the right of the Seller to take proceedings against the Buyer or any of its assets in any other jurisdictions as shall to the Seller seem fit, nor shall the taking of proceedings in any one or more other jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not.
13.3 In respect of all other sale and purchase transactions, the Buyer irrevocably agrees for the benefit of the Seller that any dispute arising out of or in connection with the Contract and these Terms and Conditions may, at the Seller’ s sole and absolute discretion be resolved either by:-
(i) the courts of the Republic of Singapore and the Buyer hereby irrevocably submits to the non-exclusive jurisdiction of such courts. The submission to such jurisdiction shall not (and shall not by construed so as to) limit or exclude the right of the Seller to take proceedings against the Buyer or any of its assets in any other jurisdictions as shall to the Seller seem fit, nor shall the taking of proceedings in any one or more other jurisdiction preclude the taking of proceedings in any other jurisdiction, whether concurrently or not; or
(ii) arbitration in the Republic of Singapore or such other forum (s) /jurisdiction (s) as the Seller shall in its discretion determine and the Buyer hereby irrevocably submits to the jurisdiction of such forum/arbitral tribunal as shall be determined by the Seller. All disputes shall be referred to a single arbitrator appointed by the parties. The prevailing Rules of the International Chamber of Commerce shall apply to the arbitration proceedings except when the Seller elects to arbitrate in Singapore, in which event the prevailing Rules of the Singapore International Arbitration Centre shall apply.
13.4 The Buyer waives any objection it may now or hereafter have to the venue of any action or proceeding arising out of or in connection with the Contract and these Terms and Conditions in any jurisdiction and any claim it may now or hereafter have that any such legal action or proceeding has been brought in an inconvenient forum.
13.5 The Buyer irrevocably waives any immunity from suits and proceedings and from all forms of execution or attachment to which it and/or its property is now or may hereafter become entitled under the laws of any jurisdiction and declares that such waiver shall be effective to the fullest extent permitted by such laws.
14. General
14.1 The Seller is a member of the Tata Steel Group and accordingly the Seller may perform any of its obligations or exercise any of its rights hereunder by itself or through any other member of its group, provided that any act or omission of any such other member shall be deemed to be the act or omission of the Seller.
14.2 Any notice required or permitted to be given by either party to the other under these Terms and Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pur­suant to this provision to the party giving the notice.
14.3 In addition and without prejudice to the rights which the Seller may have under the Contract and/or any other rights of set-off and/or any similar express or implied rights under common law or equity, the Seller may at any time, without notice or demand as a continuous right, where the Buyer and/or any member of the Buyer’ s Group has incurred any liability, whether prior to or under the Contract or otherwise, whether by way of a debt or otherwise, whether arising under the same transaction contemplated by the Contract or otherwise, whether by way of an indemnity and/or guarantee, whether such liability is liquidated, un-liquidated or contingent (hereinafter referred to as the “Liability”) , set-off or deduct such amount of the Liability against any sum that would otherwise be due to the Buyer under the Contract or otherwise.
14.4 The Buyer hereby expressly agrees that the Seller shall be entitled at any time and from time to time, without notice and as a continuous right, to set-off any monies owing by the Seller and/or any member of the Tata Steel Group to the Buyer and/or any member of the Buyer’ s Group from any monies owing by the Buyer to the Seller.
14.5 The Buyer shall inspect the Goods immediately upon receipt and shall within fourteen (14) days, give notice in writing to the Seller of any matter or thing by reason whereof the Buyer alleges that the Goods are not in accordance with the contract whether as to quantity, quality or otherwise. If no such notice is served by the Buyer upon the Seller within the said fourteen (14) days, the Goods shall be deemed to be in accordance with the contract in all respects and the Buyer shall have deemed to have accepted them and the Buyer shall have no right to claim any damages against the Seller. In the case of sale of steel reinforcement bars by export, the Buyer shall inspect the Goods immediately upon receipt and shall within ninety (90) days after shipment by the Seller, give notice in writing to the Seller of any matter or thing by reason whereof the Buyer alleges that the Goods are not in accordance with the contract whether as to quantity, quality or otherwise. If no such notice is served by the Buyer upon the Seller within the said ninety (90) days, the Goods shall be deemed to be in accordance with the contract in all respects and the Buyer shall have deemed to have accepted them and the Buyer shall have no right to claim any damages against the Seller.
14.6 Subject to the provisions of clause 8.4 above and a claim being notified to the Seller within the said fourteen (14) or ninety (90) days (as the case may be) in accordance with clause 14.5 above, the maximum liability of the Seller for direct/foreseeable damages shall not exceed:-
(i) five per cent (5%) per contract value in the case of Tata Steel Group as Seller;
(ii) five per cent (5%) per shipment value /invoice in the case of Tata Steel Group as Seller;
(iii) five per cent (5%) per scheduled delivery in the case of all subsidiaries or associated companies of Tata Steel Group as Seller.
14.7 The Seller shall not be liable for loss of profit, loss of use, loss of contracts, delay in construction of building projects, or any consequential, economic or indirect loss whatsoever and in particular (but without prejudice to the generality of the foregoing) the Seller shall not be responsible for any form of damages, liquidated or otherwise, imposed by developers on main contractors and/or sub-contractors, whether the Buyer is a main contractor or sub-contractor or otherwise.
14.8 If any provision of the Contract and/or these Terms and Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of the Contract and/or these Terms and Conditions and the remainder of the provision in question shall not be affected thereby.
14.9 No exercise or failure to exercise or delay in exercising any right power or remedy vested in the Seller shall constitute a waiver by the Seller of that or any other right power or remedy. Any waiver by the Seller of a breach of any provision of the Contract and/or these Terms and Conditions shall not be considered as a waiver of any subsequent breach of the same or any other provision thereof.
14.10 The Buyer undertakes that it shall at all times keep confidential (and shall procure that its employees and agents shall keep confidential) any confidential information which it may acquire hereunder and shall not use or disclose such information except with the consent of the Seller or in accordance with the order of a court of competent jurisdiction.
14.11 Without prejudice to the foregoing, the Seller may assign any Contract and the rights and transfer obligations thereunder. The Contracts are personal to the Buyer who may not without the written consent of the Seller assign, mortgage, charge or dispose of any of its rights thereunder, or sub-contract or otherwise delegate any of its obligations thereunder.
14.12 A person who is not a party to the Contract (other than a person who is a member of the Tata Steel Group) shall have no right under the Contracts (Rights of Third Parties) Act 2001 to enforce any of its terms.
14.13 Without prejudice to any of the other terms, conditions or provisions of the Contract or these Terms and Conditions, it is hereby expressly agreed and declared that:-
(i) if the Buyer and/or any member of the Buyer’ s Group shall default in payment of any sums payable under any existing agreement or instrument or any agreement or instrument executed or from time to time executed between the Buyer and/or any member of the Buyer’ s Group and the Seller and/or any member of the Tata Steel Group or shall fail to observe or perform any of the other terms and conditions of the said agreements or instruments, then such default or failure shall constitute and be deemed to be a default by the Buyer under the Contract and thereafter the Seller shall have all the remedies specified herein; and
(ii) if the Buyer shall default in payment of any of the sums payable hereunder or shall fail to observe or perform any of the other terms and conditions of the Contract, then such default or failure shall constitute and be deemed to be a default by the Buyer and/or the Buyer’ s Group under all other existing agreements or instruments made between the Buyer and/or the Buyer’ s Group and the Seller and/or the Tata Steel Group and the Seller and/or the respective members of the Tata Steel Group shall have all the remedies specified in the said agreements or instruments without being liable in any way or manner whatsoever or howsoever to the Buyer or any member of the Buyer’ s Group.
