THE BABBITT TRADING PTE. LTD. – GENERAL TERMS AND CONDITIONS OF SALE
Last updated May 11, 2024
THE FOLLOWING GENERAL TERMS AND CONDITIONS SHALL GOVERN THE SALE OF PRODUCTS BY COMPANY (“GENERAL TERMS AND CONDITIONS”)
ORDER OF PRECEDENCE
The Parties agree that these General Terms and Conditions shall be incorporated into and govern any Order (as defined below) and shall further constitute the entire agreement of the Parties with respect to the Work and apply in place of, supersede, and prevail over, any terms, conditions and prior verbal or written representations, covenants, agreements and commitments (i) contained or referred to in any purchase order, any Customer correspondence, or other contracts (previously, currently or subsequently) agreed between Customer and Company, or (ii) implied by trade, custom, practice or course of dealing. For avoidance of doubt, except for any effective master service agreement or similar agreement existing between the Parties, which terms govern the Order, any terms and conditions which are inconsistent with these General Terms and Conditions are void and unenforceable, and any provisions to the contrary are hereby excluded or extinguished, unless otherwise expressly stated in Company’s quotation, Company’s written acceptance of the purchase order, or other subsequent contract signed by both Parties, where express reference is made to the portion of these General Terms and Conditions that is removed, replaced or modified.
1. DEFINITIONS
a. Claim(s) – means claims, disputes, demands, losses, liabilities, damages (including, special, punitive, exemplary, general, compensatory, direct, indirect, incidental, or consequential losses), fines, penalties, costs (including court costs and reasonable attorney’s fees), expenses, and any other causes of action of whatever kind or nature, whether based on tort, contracts, products liability, strict liability or other claim in law or equity.
b. Company – The Babbitt Trading Pte. Ltd.
c. Company Group – the following persons individually and collectively (which, for clarity, shall not include any person or member of Customer Group): Company and its respective affiliates, its and their contractors and subcontractors of any tier, and the agents, representatives, consultants, servants, directors, officers, assigns, managers, members, shareholders, employees, and invitees of all of the foregoing.
d. Consequential Loss – (i) any consequential loss and/or indirect loss under applicable laws, or (ii) any special, punitive, indirect, fines, fees and penalties, incidental or consequential damages or losses resulting from or arising, directly or indirectly, out of or in connection with the performance or non performance of the Order or operations including without limitation, loss of use, loss of assets, loss of profit, loss of business, or business interruption, loss of facilities or downtime in each case, whether direct or indirect, all without regard to the sole, joint, concurrent, contributory, gross, active or passive negligence or fault or breach of any duty (statutory or otherwise) of either Party and whether or not foreseeable as of the effective date of the Order.
e. Customer – the person, firm, company, or other entity to which any Work is provided in accordance with the Order.
f. Customer Group – the following persons individually and collectively: Customer, its parent (if any), Customer’s co-venturers, co-owners, partners, joint venturers, co-lessees, co-working interest owners, lessors, adjacent property owners, Customer’s clients and end-user, and its and their respective affiliates and subsidiaries; its and their contractors and subcontractors of any tier (excluding Company Group), and the agents, representatives, consultants, servants, directors, officers, assigns, managers, members, shareholders, employees, and invitees of all of the foregoing.
g. Order – Any written purchase order issued by Customer to Company or any other form of request for purchase of Products including by way of telephone or email order shall be deemed an offer to purchase Company’s Work. Subject to the “Order of Precedence” Section above, Customer’s purchase order or request for purchase is deemed accepted upon (i) Company’s written acceptance, (ii) Company’s issuance of a quotation, or (iii) Company’s initiation of the performance of the Work, in whole or in part, through actions. Upon Company’s acceptance of Customer’s purchase order or request for purchase, there shall be a binding contractual agreement for the Work, which shall include any commercial terms included in Company’s quote and the terms contained in these General Terms and Conditions (collectively referred to, the “Order”).
h. Party or Parties –Company and Customer referred to in the Order, individually or collectively, respectively.
i. Products – equipment, goods, materials or products sold by Company to Customer pursuant to the Order.
j. Work – Sale of Products by Company and/or the provision of such other services in accordance with an Order.
2. INVOICING AND PAYMENT TERMS.
Unless otherwise agreed and stated in the Order, Company’s payment terms are cash in advance, payable in full upon Company’s acceptance of the purchase order. Company, in its sole discretion, may permit Customer the right to procure Work on credit on terms acceptable to Company but may rescind the right at any time. If Customer’s account with Company becomes delinquent, or Customer’s creditworthiness or financial solvency, in Company’s sole discretion, appears uncertain, Company shall have the right to require immediate payment on Customer’s delinquent accounts and/or cash in advance in accordance with the terms herein as a condition to continue performing any ongoing Work or accepting any additional Work.
For cash in advance transactions, an invoice shall be issued by Company upon receipt of full payment from Customer. If Customer requires any supporting documents to be submitted with Company’s invoices, such requirements must be included in the Order. Company’s invoice shall be deemed correct and shall evidence Customer’s acceptance of Work delivered, unless Company receives prompt written notice of any disputed items within five (5) days of invoice submission. Such notice shall explain the reason for the dispute in detail, and include any supporting documentation of Customer’s position. Within ten (10) calendar days following Company’s receipt of such notice, Customer and Company shall meet in good faith to resolve the dispute. If an invoice is disputed, Customer will pay the undisputed portion of that invoice still outstanding without delay. Upon settlement of the dispute, Customer shall immediately pay all amounts agreed by the Parties that is due with respect to the disputed amount(s) and Company shall make the appropriate corrections on the disputed amounts by issuing, as applicable, a credit or debit note to Customer. Customer shall have no right to withhold or offset payments due to Company with respect to disputed amount(s) under an Order or for any other type or kind of claim or disputes between the Parties. Customer waives all rights to dispute any item (or submit a claim for amounts invoiced) where Company has not received written notification of a disputed item within one (1) year from the date such Work is actually provided. Customer shall pay the total invoice amount without any deductions, except as mandated by tax legislation. Payment shall be made by in accordance with the payment instructions in an Order or invoice. Customer agrees that Company is entitled to charge and accrue interest on any overdue balance (including amounts that are disputed by Customer but are ultimately found to be due and owing by Customer) at a rate of one and one-half percent (1.5%) per month or the maximum interest rate allowed by applicable law, if such law limits the interest rate to a lesser amount from the invoice due date until Company’s receipt of the unpaid amount. If Customer fails to timely pay two (2) or more consecutive invoices, Company may, in addition to all other remedies set forth herein, suspend any Work or part of any Work until the Customer has fully paid for such Work and any applicable penalties or pre-payment invoices issued by Company in accordance with this clause. If Company employs a collection agency or attorneys to collect any outstanding invoice(s) or enforce its rights under the General Terms and Conditions, Customer agrees to pay all actual expenses of collection, all collection agency fees, and all attorneys’ fees and court costs, including, but not limited to, attorneys’ fees incurred in connection with litigation, mediation, arbitration, bankruptcy, or other proceedings. In the event that Customer’s payment of Company’s invoice is received by Company after the due date, any price discount will be unearned and Company has the right to revoke any and all discounts previously applied in determining the net invoice price. Upon revocation, the full invoice price, without discount, will become immediately due and owing and subject to collection.
3. INDEPENDENT CONTRACTOR
Company shall retain and exercise the authority and right to direct and control the manner in which all Work is performed. It is the express understanding and the intention of the Parties is that Company shall act as an independent contractor at all times, and no relationship of master and servant or principal and agent shall exist between Customer and Company Group. Company shall have no right or authority to supervise, instruct, or give orders to any members of Customer’s Group; all such persons shall remain under Customer’s direct and sole supervision and control at all times. Any communications by Customer Group to Company Group shall, with respect to the scope of Work, be given only to Company’s designated superintendent or representative.
4. WARRANTY FOR PRODUCTS.
a. Customer acknowledges that Company is a reseller of the Products and agrees that the warranty for the Products supplied against defects of material and workmanship shall be in accordance with the manufacturer’s standard warranty for such Products. Customer further agrees that Company’s liability to Customer in connection with the aforesaid warranty shall be limited to the extent of its recovery from the manufacturer of such Products under its liability to Company.
b. Nullification of Warranty. Notwithstanding anything else to the contrary, the above warranty for the Products shall not apply with respect to, and Company gives no warranty if the warranty claim results from: (i) Products that have been handled, stored, applied, operated outside of the temperature or other technical parameters for which they were manufactured; (ii) Products that have been tampered, misused, or altered by anyone other than Company or a party authorized by Company; (iii) any situation arising from, or relating to, breach by Customer of its obligations hereunder; (iv) Products used after Customer Group has knowledge of a defect; (v) Products damaged by causes outside of Company’s control including but not limited to Force Majeure events or vandalism; and (vi) such other warranty exclusions as may be stipulated by the manufacturer of the Work.
c. THE FOREGOING WARRANTIES FOR THE PRODUCTS SUPPLIED UNDER AN ORDER ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY SHALL NOT APPLY. COMPANY’S WARRANTY OBLIGATIONS AND CUSTOMER’S REMEDIES THEREUNDER (EXCEPT AS TO TITLE) ARE SOLELY AND EXCLUSIVELY AS STATED HEREIN.
5. TITLE AND RISK OF LOSS
a. Unless otherwise agreed by the Parties in the applicable Order, title to Products sold will pass to Customer upon the earlier of (i) receipt of payment in full by Company, or (ii) delivery to Customer. Risk of loss for Products sold will pass to Customer upon delivery to the Customer.
b. Company may agree to store Customer’s Products but Customer shall compensate Company, at mutually agreed rates, for costs associated with the storage and handling of such Products. Customer retains title and risk of loss for all Products, equipment, tools and materials stored by Company on behalf of Customer.
c. Subject to Section 5(b), in the event that Customer’s Products, are left at a Company’s facility for a period in excess of thirty (30) days and Customer is no longer compensating Company for such related storage, Company reserves the right, at its sole discretion, to consider the Products abandoned and Company shall be entitled to sell them or otherwise dispose of them without any liability whatsoever at Customer’s cost. Customer acknowledges and agrees that Company has the right and is authorized to sell or dispose of such Products, pursuant to this Section 5(c).
6. INCIDENTAL OR CONSEQUENTIAL DAMAGES
NOTWITHSTANDING ANYTHING TO THE CONTRARY, IT IS EXPRESSLY AGREED THAT CUSTOMER SHALL WAIVE, RELEASE, PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY GROUP FROM CUSTOMER GROUP’S OWN CONSEQUENTIAL LOSS AND COMPANY SHALL WAIVE, RELEASE, PROTECT, DEFEND, INDEMNIFY AND HOLD HARMLESS CUSTOMER GROUP FROM COMPANY GROUPS OWN CONSEQUENTIAL LOSS.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN OR IN THIS ORDER, THE TOTAL CUMULATIVE LIABILITY OF COMPANY PURSUANT TO AN ORDER FOR ANY REASON WHATSOEVER SHALL NOT IN ANY CIRCUMSTANCES EXCEED ONE HUNDRED (100%) OF THE VALUE OF THE ORDER AND CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS COMPANY GROUP FOR ANY AMOUNT IN EXCESS THEREOF.
8. CONFIDENTIALITY
Customer agrees to hold in strict confidence all information provided by Company Group to Customer, in whatever form, format or medium, whether oral or written, all of which shall remain Company’s confidential information. Customer will not disclose such confidential information to any person without written authorization from Company, except to those members of Customer Group who have a need to know the confidential information in connection with the Work, or except to such other persons as is required by law or legal process. The foregoing confidentiality obligations shall not apply if the information (i) is already known to the receiving Party or its affiliates as of the date of disclosure hereunder provide that such knowledge was not obtained subject to any confidentiality obligation, (ii) is already in possession of the public or becomes available to the public other than through the act or omission of the receiving Party or the receiving Party representatives, (iii) is acquired independently and without any confidentiality obligation by the receiving Party or its affiliates from a third party that has the right to disseminate such information at the time it is acquired by the receiving Party or such affiliates, or (iv) is developed by the receiving Party or the receiving Party’s representative independently of the confidential information (based on evidentiary support).
9. FORCE MAJEURE
Company shall not be liable for any delay or non-performance due to governmental regulations, labor disputes, strikes, riots, war hostilities or actions, extreme weather events, epidemics, pandemics, including the Covid-19 pandemic, maritime disasters, fires, floods, earthquakes, acts of God or any other causes beyond the reasonable control of Company (a “Force Majeure Event”). On the occurrence of such a Force Majeure Event, the obligations of Company shall be tolled for the period of the Force Majeure Event and Company shall have a further extension of time within which to perform its obligations. The extension of time shall be for a period reasonably necessary under the circumstances. If the Force Majeure Event continues for a period of ten (10) days or more, Company may, in its sole discretion, terminate any outstanding Order or refrain from accepting any further purchase orders from Customer. A Force Majeure Event will not excuse Customer from honoring its payment obligations. Company shall be paid during the Force Majeure Event at applicable rates and charges in the Order.
10. MISCELLANEOUS PROVISIONS
a. Governing Law: The law of Singapore shall apply and govern the validity, interpretation, and performance of the Order and the Work. Any dispute, controversy or claim with respect to any of the terms or conditions of, or the performance of any of the Parties under this Order which is not settled amicably by the Parties, whether or not such dispute, controversy or claim is arbitrable under applicable law, shall be finally settled by the Courts of Singapore.
b. Severability: If any part of the General Terms and Conditions contravenes any applicable statutes, regulations, rules, or common law requirements, to the extent of and only to the extent of such contravention, such part shall be severed from the General Terms and Conditions and deemed non-binding while all other parts shall remain binding.
c. Compliance with laws: Customer and Company respectively agree to comply with all laws, statutes, codes, rules, and regulations, which are now or may become applicable to operations covered by the General Terms and Conditions or arising out of the performance of the Work. Each Party represents, warrants and agrees that it will not, directly or indirectly, in connection with the performance of the Work or operations hereunder, offer, pay, promise to pay, or authorize the payment of, or transfer money or anything of value to any government official or person while knowing or being aware that all or a portion of such money or anything of value will be offered, paid, promised, authorized, transferred directly or indirectly to any government official or person, for the purpose of influencing the act, decision or omission of such government official or person (i) to obtain or retain business related to the Order, (ii) to direct business related to the Order to any government official or person, or (iii) to obtain any improper advantage or benefit. Each Party further represents, warrants and understands that it has adequate policies, procedures and/or controls in place to ensure compliance with the anticorruption laws.
d. Survival: The provisions of the General Terms and Conditions, which by their nature are intended to survive the termination or expiry of the Order, shall remain in full force and effect after said termination or expiry.
11. GENERAL COMMERCIAL CONDITIONS
Commercial conditions, prices and technical specifications for the Work shall be documented in an Order. Unless specified in the relevant Order or agreed in writing by Company, the following commercial conditions shall apply:
a. Orders: Company reserves the right to accept or reject Customer’s purchase order or request for purchase.
b. Product Sales Are Final: Orders placed by Customer and accepted by Company can only be canceled with Company’s written consent and upon such conditions that accompany the consent to the extent provided.
c. Commencement and Termination of Work: Company shall commence and make commercially reasonable efforts to deliver the Work by the delivery date(s) agreed upon in the applicable Order. In the event Company, absent a Force Majeure Event, fails to commence or deliver the Work as specified in the applicable Order or abandons or suspends the Work, Customer shall have the right, at its sole option, to terminate the applicable Order; provided however that Customer shall be responsible for making payment of any outstanding amounts owed under the applicable Order to Company through the date of termination. If Customer should be adjudged bankrupt, or make a general assignment for the benefit of its creditors, or if a receiver should be appointed in respect of Customer’s insolvency, or if Customer should refuse or fail to perform any of the terms of an Order, then Company may immediately terminate any Order upon written notice to Customer, without prejudice to any other right or remedy Company may have. Company shall also have the right to terminate any Order at any time with or without cause upon 30 days prior written notice to Customer
CONTACT US
In order to resolve a complaint regarding the Services or to receive further information regarding use of the Services, please contact us at:
The Babbitt Trading Pte Ltd
50 Hillview Ter
Singapore, Singapore 669270
Singapore
Phone: +6567600033
sales@thebabbitttrading.com