1. Applicability and Acceptance of Terms
1.1 Legally Binding Contract. These General Terms and Conditions of Sale (the “Terms”) shall apply to all quotes concerning the purchase of products and services (collectively the “Product(s)”) from Shimadzu (Asia Pacific) Pte Ltd or Shimadzu Singapore Pte Ltd (hereinafter both referred to as “SAP” for the purpose of these Terms) and form part of the contract (the “Contract”) between Buyer and SAP. Unless otherwise agreed to in a valid written and mutually executed Contract between Buyer and SAP, Buyer agrees to be bound by the Contract for any purchase or transfer of Products from SAP (including any authorized distributor of SAP). "Buyer" means the person, firm or company whose purchase order has been accepted by SAP.
1.2 Order of Precedence. It is expressly agreed that these conditions shall override any terms or conditions stipulated, incorporated or referred to by the Buyer in its purchase order or elsewhere. If any conditions within the Contract conflict with each other, the following precedence shall apply: (a) the quote; (b) any written, mutually executed supplementary terms; (c) these Terms.
1.3 Non-Binding Description. Unless otherwise expressly agreed in writing by SAP, the descriptions and illustrations contained in catalogues, price lists and other leaflets or descriptive matter belonging to SAP are intended merely to present a general idea of the Products described therein and none of these shall form part of the contract and no report, representation or statement made by any representative of SAP not contained herein shall be binding on SAP.
2. Effect of the Terms
These Terms shall take effect upon acceptance of Buyer’s order by SAP.
3. Product Terms
3.1 Specifications. The specifications set forth in Product-related sales literature or the quote are not guaranteed unless separately certified in writing between Buyer and SAP.
3.2 Permits and Inspections. Buyer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of the Products.
4. Prices
SAP reserves the right to change its prices at any time without notice. Prices are subject to revision when interruption, engineering changes or changes in quantity or quality are caused or requested by Buyer. The quoted prices do not include any taxes (including GST), duties, levies or other government fees that may apply to Buyer’s order. If they apply, it shall be Buyer’s responsibility to pay them. If SAP pay them, SAP will add them to the invoice. Buyer are also responsible for standard delivery, handling, installation and commissioning charges unless otherwise mutually agreed between the parties.
5. Payment
5.1 Payment Terms. All payments due under the Contract shall be net thirty (30) days from date of the invoice unless otherwise specifically stated on the quote, and shall be made by check or wire transfer. When deliveries are spread over a period, each delivery shall be invoiced when dispatched and each invoice shall be treated as a separate account and payable accordingly. Failure on the part of the Buyer to make any payment for the partial delivery shall entitle SAP, without liability, damages, fees or penalty, to refuse to deliver the balance of the order or cancel any undelivered portion of the Products.
5.2 Late Payment Interest. Payments made beyond the terms as determined by Section 5.1 shall be subject to simple interest of 1.5% per month on the outstanding balance.
5.3 Rights to Effect Payment. If (i) Buyer fails or threatens to fail to make advance payment stated on the quote, or (ii) SAP reasonably determines that any payment will be delinquent, SAP shall have the right, at SAP’s sole discretion, to cancel the Contract, refuse to make further deliveries, or declare immediately due and payable all unpaid amounts for Products. Buyer may not move, sell, or otherwise transfer any Product until payment is made in full to SAP.
6. Delivery Postponement due to Buyer’s Convenience
6.1 Delivery Postponement due to Buyer’s Convenience. In the case that Buyer asks for postponement of delivery, installation or commissioning of the Product(s) for convenience, Buyer shall pay all or part of remaining amount of the Contract price in cash within 30 days after the initial delivery, installation or commissioning deadline regardless of the initial payment terms, if SAP requires Buyer to do so. In such a case, Buyer may ask SAP to store the Product(s) separating from other products in possession of SAP, or SAP may at its discretion arrange for the storage of the Product(s). In either case, SAP shall be entitled to charge Buyer for the storing expenses (including insurance cost) to be rationally calculated. If the Contract is cancelled after being postponed, it shall not preclude SAP from imposing the cancellation charge on Buyer in accordance with Section 8.1.
6.2 Expiry of Installation Obligation. Regardless of whether installation and commissioning of the Product(s) is carried out by SAP itself or a third party designated by SAP, this obligation for installation and commissioning is only valid for 12 months from the date of shipment("Expiry"). This obligation for installation and commissioning shall cease upon the Expiry. For the avoidance of doubt, if there is any delay or non-completion of installation and commissioning arising from any event or situation which is beyond the control of SAP or its designated third party, which includes event or situation where the installation site is not ready, shut down of unit where the Product(s) is to be supplied or installed, non-availability of authorized personnel for instrument operation, SAP and its designated third party shall have no obligation to conduct installation and commissioning upon the Expiry.
7. Shipment and Delivery
7.1 Packaging. The cost of packaging for shipments is included in the quoted price unless otherwise provided or special packaging is specified or necessary.
7.2 Shipment Terms. For domestic shipments, all shipments, unless otherwise agreed in writing, shall be Ex Works (“EXW") SAP’s designated facilities. For international shipments, all shipments, unless otherwise agreed in writing, shall be FOB SAP’s designated seaport/airport.
7.3 Title and Risk of Loss. SAP's obligation to effect shipment of any Product purchased by Buyer shall be fully discharged, and beneficial ownership, legal title and all risk of loss or damage shall pass to Buyer when the Product is made available for shipment to a carrier at the designated EXW or FOB location.
7.4 Investigation and Notice of Damage. If shipped FOB Destination, upon arrival Buyer shall be entitled to conduct a reasonable investigation of the Product(s) purchased by it, but all claims for losses due to loss or damage to Product(s) while in transit shall be waived unless made immediately in writing by Buyer to SAP, but not more than thirty (30) days after arrival. If Buyer shall fail or refuse to accept delivery of any of the Product(s) for unverifiable claims for loss or damage to Product(s) occurring while in transit, all sums paid on deposit shall be retained by SAP as liquidated damages, provided, however, that SAP may recover in full its actual damage from Buyer in the event that actual damages exceed the amount retained as liquidated damages. All claims for damage or loss of insured shipments shall be immediately communicated to SAP. Buyer shall also immediately notify delivering carrier of loss or damage to the shipment and SAP will reasonably cooperate with Buyer in the adjustment of all claims. Buyer agrees to permit SAP or an SAP representative to inspect damaged Products at SAP’s convenience during normal business hours.
7.5 Shipping or Delivery Date. The scheduled shipping or delivery date is SAP's best estimate of the time the Product order will be shipped and SAP assumes no liability for loss, general damages, or special or consequential damages due to delays.
8. Termination
8.1 Termination by Buyer. Upon any termination or cancellation of the Contract by Buyer (without good cause attributable to SAP), whether in whole or in part, Buyer agrees to promptly pay SAP a cancellation charge of thirty-five percent (35%) of the total amount of the Contract. If such termination or cancellation occurs after shipment, a one hundred percent (100%) cancellation charge shall be imposed on Buyer.
If SAP makes default in or commit a breach of any of its obligations under the Contract, and does not cure the default or breach within thirty (30) days period from receipt of notice from Buyer specifying such default or breach, Buyer shall have the right forthwith to terminate the Contract and upon written notice of such termination being posted to the SAP's last known address the Contract shall be deemed to have been terminated but without prejudice to any claim or right which Buyer may otherwise make or exercise.
8.2 Termination by SAP. If the Buyer makes default in or commit a breach of any of its obligations under the Contract or if any distress or execution shall be levied upon the Purchaser's property or assets, or if the Buyer shall make or offer to make any arrangement or composition with creditors, or commit any act of bankruptcy, or if any petition or receiving order in bankruptcy shall be presented or made against it, or if the Buyer is a limited company and any resolution or petition to wind up such company's business (other than for the purpose of amalgamation or reconstruction) shall be passed or presented, or if a receiver of such company's undertaking properly or assets or any part thereof shall be appointed, SAP shall have the right forthwith to terminate the Contract and upon written notice of such termination being posted to the Buyer's last known address the Contract shall be deemed to have been terminated but without prejudice to any claim or right which SAP may otherwise make or exercise. The cancellation charge specified in the Section 8.1 above shall also apply to the termination pursuant to this Section 8.2.
9. Patents
SAP shall defend and indemnify Buyer against patent infringing damages finally awarded in any legal action brought by a third party against Buyer directly arising from a Product directly infringing against any Singapore patent and/or intellectual property rights. This indemnity shall only apply (a) to claim or claims covering solely the Product itself; (b) if Buyer notifies SAP promptly in writing and gives SAP authority to defend; (c) if Buyer provides information and assistance for the defense of same; (d) if the claims did not arise based on Buyer’s failure to comply with the Contract or to acquire any additional intellectual property rights related to the use of the Product; (e) if the claim does not relate to any use of any Product sold hereunder in any process or in conjunction with any other Product; (f) if the claim does not relate to any Product manufactured to Buyer's design or any Product having a design arising from SAP's compliance with Buyer's specifications; (g) if claims are related to Buyer’s resale of the Product or to modifications made by Buyer or at Buyer’s direction; or (h) if claims are related to products originating from third parties. In the event the Product identified in such suit is held to constitute Infringement and the use of said Product is enjoined, SAP shall, at its own option and at its own expense, either:
- Procure for Buyer the right to continue using said Product,
- replace the same with a non-infringing Product,
- modify the Product so it becomes non-infringing, or
- remove the Product and refund its purchase price.
The foregoing sets forth the entire liability of SAP for patent and/or intellectual property right infringement by a Product. If any suit or proceeding is brought against SAP based on claims that the Product supplied by SAP in compliance with Buyer's specifications directly infringe any fully issued Singapore patent and/or intellectual property right, then the patent indemnity obligations herein stated with respect to SAP shall reciprocally apply with respect to Buyer.
10. Warranty
10.1 Product Warranty. Subject to the exceptions and upon the conditions stated below, SAP warrants that Product(s) sold under the Contract, excluding Consumables, shall be free from defects in workmanship and materials for a period of eighteen (18) months from the date of shipment from SAP, or alternatively, a period of twelve (12) months from the date of installation of the Product(s), whichever expires earlier (the “Warranty Period” and the "Warranty"). If any such Product should prove to be defective within the Warranty Period, Seller's sole liability, and Buyer's sole and exclusive remedy, shall be, at Seller’s option, (1) to correct or repair the defect, or (2) to replace the defective Instrument or portions thereof with equivalent product or (3) to refund the purchase price.
10.2 Warranty Exceptions. The exceptions and conditions to this Warranty are as follows:
a. These Warranty and Consumables Warranty (as sated below) are valid only to the extent the Product and consumables are operated under normal and proper (residual) use and conditions and have not been damaged as a result of accident, misuse, abuse, or modification of the Product or consumables.
b. Consumables provided under the Contract are not included in this Warranty but are instead subject to the following Consumables Warranty: SAP warrants that Consumables provided with or under the Contract, except those specifically exempted, will be free from defects in materials and workmanship for ninety (90) days from the date of acceptance by Buyer (the “Consumables Warranty”). During the Consumable Warranty period.
c. SAP makes no warranty with respect to Products, components or accessories not manufactured by Shimadzu. In the event of defect in any such Product, component or accessory, SAP will give reasonable assistance to Buyer in obtaining from the respective manufacturer whatever adjustment is authorized by the manufacturer's own warranty.
d. If the Product is a chemical, it is warranted only to conform to the quantity and content and for the period (but not in excess of one year) stated on the label at the time of delivery.
e. SAP's obligations pursuant to all warranties are conditioned upon payment in full by Buyer for the Product(s) covered by the warranties.
f. SAP makes no promise or representation that any Product will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing.
10.3 Return of Warrantied Products. If requested by SAP, any Product claimed by Buyer to be defective shall be returned directly to the factory, transportation charges prepaid, and shall be returned to Buyer with transportation charges collect unless the Product is found to be defective, in which case SAP shall pay all transportation charges.
10.4 Voiding of Warranties. All warranties, whether express or implied, shall be immediately voided if the covered Product is misused in accordance with instructions or training and/or in accordance with industry standards or practices, or is repaired or modified by persons other than SAP authorized service personnel unless SAP gives prior written consent of such repair or modification.
10.5 LIMITATIONS. THIS WARRANTY SHALL BE IN LIEU OF ALL WARRANTIES OF ANY NATURE WHATSOEVER, WHETHER EXPRESS OR IMPLIED, INCLUDING WTIHOUT LIMITATION WARRANTIES OF FITNESS FOR ANY PARTICULAR PURPOSE AND MERCHANTABILITY, AND THAT SAP SHALL HAVE NO LIABILITY FOR SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR CAUSE WHATSOEVER, INCLUDING, BUT NOT LIMITED TO LOSS OF USE, LOSS OF DATA, LOSS OF PRODUCTIVITY, LOSS OF BUSINESS, LOSS OF PROFIT, LOSS OF PLANT, EQUIPMENT OR PRODUCTION. THIS LIMITATION OF LIABILITY FOR SUCH DAMAGES SHALL BE APPLICABLE EVEN IF SAP HAS BEEN ADVISED OF THE POSAPBILITY OF SUCH DAMAGES, ARISING OUT OF THE MANUFACTURE, USE, SALE, HANDLING, REPAIR, MAINTENANCE OR REPLACEMENT OF ANY PRODUCT SOLD UNDER THE CONTRACT.
11. Limitation of Liability
To the maximum extent permitted by applicable law, SAP will not be liable under any legal theory for any indirect, special, incidental, punitive, multiple, exemplary or consequential damages that Buyer might incur under the Contract, or that may arise from or in connection to a Product, even if SAP had notice of the possibility of such damages. SAP’s maximum aggregate liability arising out of or in connection with this Contract, or any Product or service, is limited to the amount Buyer paid to SAP for the Product purchased that gave rise to the liability.
12. Force Majeure
SAP, at its sole discretion, shall be entitled to cancel or rescind the Contract, without liability for loss or damage resulting therefrom, if the performance of SAP’s obligations under the Contract is any way adversely affected by the occurrence of any contingency beyond the control of either SAP or SAP’s suppliers, including but not limited to: (a) war (whether an actual declaration thereof is made or not), sabotage, insurrection, riot, act of a public enemy, or other act of civil disobedience; (b) failure or delay in transportation; (c) act of any government, government agency or subdivision of any government, or any judicial action affecting the terms of the Contract; (d) labor dispute, shortage of labor, fuel, raw material or technical or yield failure where SAP has exercised ordinary care in the prevention thereof; and (e) accident, fire, explosion, flood, storm, epidemic or pandemic or other act of God.
13. Indemnification
Buyer shall release and indemnify, defend and hold harmless SAP, its officers, directors, employees, affiliates and agents against any and all losses, damages, claims, lawsuits, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection, directly or indirectly, with any injury, disease or death of persons (including, without limitation, Buyer's employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the Contract (including but not limited to the sale, transportation, installation, use, or repair of a Product by Buyer or of the information, designs, services or other work supplied to Buyer), whether caused by the concurrent and/or contributory negligence of SAP, or any of its agents, employees or suppliers.
14. Confidential Information
To effect obligations hereunder, the parties may exchange Confidential Information. Except as required by law, each party shall only use the other party’s Confidential Information for the purposes for which it was provided and shall only disclose the other party’s Confidential Information to its employees with a need-to-know. Neither party shall divulge or communicate to any third party any Confidential Information of the other. “Confidential Information” means any information that a party reasonably considers to be confidential, privileged or proprietary, whether or not patentable or copyrightable. Confidential information shall not include information which (a) is already known to the receiving party; (b) is or becomes part of the public domain through no breach of the Contract by the receiving party; (c) is lawfully disclosed to the receiving party by a third party which is under no obligation of confidentiality; or (d) is independently developed by or for the receiving party without breach of the Contract.
15. Compliance with Laws
15.1 Compliance with Laws. Buyer agrees to comply fully with all applicable federal, state, county and local laws, rules and regulations concerning the purchase, sale and use of any Product, including but not limited to import and export control regulations, and anticorruption laws (including the U.S. Foreign Corrupt Practices Act and the U.K. Anti-Bribery Act).
15.2 Research Use Only. Except medical devices or designated clinical versions of analytical and measuring instruments, Buyer understands and affirms that all Products shall be for Research Use Only and not for use in the diagnosis of disease or other conditions, including a determination of the state of health, in order to cure, mitigate, treat or prevent disease or its sequelae.
15.3. Prohibition of Purchase for Military Purposes. A Buyer’s declaration on prohibition of purchase for any military purpose shall be submitted to SAP as and when required for compliance purpose. Even after receiving an order from Buyer, SAP may cancel the said order without assuming any compensation liability to Buyer if SAP deems that fulfillment of the said order possibly conflicts with the SAP’s and/or its parent company’s export control policy, whether or not Buyer is requested to submit the declaration,
16. General Provisions
16.1 Entire Agreement. This Contract is intended by the parties as a complete and exclusive statement of the terms of their agreement, and supersede all prior agreements, written or oral. No course of prior dealings between the parties and no usage of the trade may be used by Buyer to supplement or explain any term used herein.
16.2 Assignment. Buyer may not assign any rights or claims hereunder without the prior written consent of SAP. The rights and obligations under the Contract will inure to the benefit of, and be binding upon, the parties hereto and their respective heirs, administrators, executors, personal representatives, successors and permitted assigns.
16.3 Governing Law. Regardless of where entered into, the Contract shall be governed, enforced and interpreted in accordance with the laws of Singapore, without regard for its conflicts of laws provisions.
16.4 Exclusive Jurisdiction and Venue. The parties agree that the competent courts located in Singapore shall have sole and exclusive jurisdiction and venue for the resolution of all disputes arising under the terms of this Contract and the transactions contemplated herein.
16.5 No Waiver. No action, failure of action or delay by either party will constitute a waiver of any of its rights or remedies under the Contract.
16.6 Headings. The section headings are for reference only and will not be considered controlling as to the content and/or interpretation of any section.
16.7 Notices. Any notice or communication required or permitted hereunder must be provided to the other party in writing to the other party’s business address or an authorized corporate email.
16.8 Severability. The waiver of a breach of any provision does not constitute a waiver of a subsequent breach of the same or different provision. If any of the terms of the Contract are subsequently or are now illegal, they will be severed without affecting the remaining term.
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