TERMS AND CONDITIONS OF SALE
DPO and Purchaser agree to the terms and conditions herein in respect of the sales and supplies made by DPO in response to the purchases by the Purchaser. The Parties acknowledge that this is a computer-generated document where no signature is required. Upon issuance of the Sales Documents, all purchases made by the Purchaser shall be governed by the Terms and Conditions of Sale set forth herein, together with the terms stated on the front page of the Sales Documents. In the event that a separate written contract has been duly executed and expressly acknowledged by both Parties as governing the sale of goods or services, the terms of such contract shall apply and shall prevail over any conflicting provisions contained herein. Notwithstanding any terms contained in quotations, acknowledgements, order confirmations, or other communications that deviate from the agreed terms, performance under the Sales Documents shall proceed solely in accordance with the terms specified herein, without incorporation of any additional or differing terms. Where deemed applicable by DPO, any reference to DPO shall include DPO’s affiliates such as its parent, related or associated companies and/or subsidiaries
1 DEFINITIONS
1.1 In this Terms, the following expressions will unless the context otherwise requires have the following meaning: –
- “Parties” means the contracting party whose name appear for DPO and Purchaser respectively in the Sales Documents. Jointly referred to as Parties and individually as Party;
- “Products” means the items detailed in this Sales Documents;
- “Sales Documents” means this document including invoice(s) and/or delivery order, detailing the purchase by the Purchaser from DPO with description of Products, any delivery date and quantity of sales to be detailed for delivery of the Products.
- “Sale Contract” means a contract for sale of the Products by DPO to the Purchaser under Clause 2 herein and incorporating the Terms and, if applicable, the agreed terms of the separate contract signed and acknowledged by the Parties to govern the sales detailed in the Sales Documents.
- “Industry Purchaser” means a Purchaser who purchases from DPO consist primarily but not limited to raw materials and food ingredients.
- “Non-Industry Purchaser” means a Purchaser who purchases from DPO consist primarily but not limited to finished, frozen, chilled or ambient products.
- “Same Day” means the period from the time the Products are delivered at the Place of Delivery until 11:59 p.m. on that same calendar day.
- “Terms” means the Terms and Conditions of Sales detailed herein and the terms appearing on the front page of this Sales Documents.
1.2 All references to the Terms herein shall include any Sale Contract unless otherwise stated.
1.3 Time for doing any act or thing under this Terms will if it ends on a Saturday, Sunday or Parties’ statutory or public holiday, be deemed to end on the day next following which is not a Saturday, Sunday or DPO’s statutory or public holiday.
2 ORDER ACCEPTANCE
2.1 Every order placed by the Purchaser constitutes an offer from the Purchaser to purchase Products in accordance with the provisions herein. DPO reserves the right to accept or reject such an offer at its own discretion.
2.2 DPO is not bound by any offer or quotation for the sale of the Products which it provides. Such an offer or quotation only acted as an invitation to the Purchaser to place an order for the purchase of the Products from DPO.
2.3 A Sale Contract is only concluded upon written acceptance by DPO of the Purchaser’s order by way of order confirmation and/or Purchaser’s receipt of relevant Sales Documents.
2.4 All the terms and conditions of sale shall be considered as accepted by the Purchaser once the order placed is submitted to DPO and the Products are delivered to the Purchaser. The Parties shall perform each Sales Contract subject to the provisions herein when the Sales Documents from DPO are issued to the Purchaser. Once DPO issued this Sales Documents to the Purchaser, the Purchaser’s purchase order shall be deemed to be accepted by DPO and the Purchaser agreed to be bound by the Terms contained herein. Silence or non-objection by the Purchaser shall be deemed to be an acceptance.
3 PRICE AND PAYMENT
3.1 Purchaser agrees to pay for the Products to DPO in accordance with the agreed pricing structure detailed in this Sales Documents.
3.2 DPO shall not be held responsible for any payment made by Purchaser, without an official receipt or e-receipt, as the case may be.
3.3 Unless otherwise stated in the respective Sales Documents, prices shall exclude all import or other taxes imposed on the sale of the Products. All invoices shall be paid at the latest on the due date as stated on the invoices. No set-off is permitted unless there is prior agreement in writing between parties. All complaints or discrepancies concerning the invoices must be made in writing and within seven (7) days from the date of the invoice, otherwise it will be considered correct and payable in full by the Purchaser.
3.4 In the event that the Purchaser failed to pay for the Products when it is due and payable;
- DPO shall be entitled to suspend or terminate all existing contractual obligations with the Purchaser, at no costs or liabilities to the Purchaser or any third parties;
- Time for payment is of the essence. All outstanding payments by the Purchaser to DPO shall become immediately due and payable and subject to late payment interest of 1.5% per month on the outstanding payments from date of default till date of full settlement;
- All outstanding payments by the Purchaser to DPO shall subject to DPO’s right of set-off, if applicable.
4 E-Invoicing Compliance (Where Applicable)
4.1 Effective from the applicable date prescribed by the relevant tax authority, all invoices issued pursuant to this Terms shall comply with the e-invoicing requirements mandated under applicable laws, regulation or guidelines which may be introduced or amended from time to time.
4.2 The Purchaser agrees that DPO shall issue e-Invoices through designated platform or system as required by the relevant tax authority, and such e-Invoices shall be deemed valid and conclusive evidence of the purchase(s) under this Terms. The Purchaser acknowledges and agrees to provide all necessary and accurate information required for the generation and issuance of e-invoices including but not limited to valid tax identification number (TIN), taxpayer registration code and business registration details, as may be applicable.
4.4 DPO shall not be held liable for any delay or non-issuance of e-Invoices arising from incomplete or inaccurate information provided by the Purchaser. In the event of any dispute concerning an E-Invoice, the Purchaser shall notify DPO in writing within forty-eight (48) hours from the date of the invoice validation by the relevant tax authority.
5 DELIVERY, TITLE AND RISK IN THE PRODUCTS
5.1 Unless expressly agreed otherwise in writing, the goods shall be delivered in accordance with details in the respective Sales Documents. Any delivery times are estimate only. DPO shall make reasonable efforts to meet delivery time
5.2 Where applicable, in any direct shipment from overseas to Purchaser, Bill of Lading date shall be accepted as the conclusive date of shipment irrespective of actual shipment date. If any delay in shipment or additional charges arise as a direct result of any act or omission of the Purchaser including without limitation to refusal or failure to take delivery in accordance with the Sales Contract, the Purchaser shall indemnify and hold DPO harmless from and against all related charges, penalties, expenses, increased duties, fees, storages fees, demurrage, taxes, tariffs and claims. In such event, the Purchaser shall be liable to pay interest at the rate of two percent (2%) per month on all the costs and expenses incurred by DPO. All insurance shall be borne by Purchaser at one-hundred and ten percent (110%) of the invoice amount under CFR (Incoterms 2000 or applicable update). War risk and/or any other additional cover shall be made at the specific request of the Purchaser and at the Purchaser’s expense. Any unforeseen increase in freight and/or insurance premium attributed to any of the Sales Contract shall be to the Purchaser’s account.
5.3 Unless expressly agreed otherwise in writing or due to the Force Majeure in accordance to clause 11 herein, DPO shall not be responsible for any loss or constitute a ground of termination or cancellation of the Sale Contract by the Purchaser, as the case may be.
5.4 All title to the Products shall pass to the Purchaser from DPO only upon due payment for such Products by the Purchaser.
5.5 In the event that the Products have been sold by the Purchaser before payment for the same has been made, the Purchaser shall:
- pay DPO for such Products as per the Sales Order; and
- account for the profit obtained from the sales of the Products.
5.6 The risk of loss of or damage to the Products shall be transferred from DPO to the Purchaser upon delivery.
5.7 In the event Purchaser fails to take delivery of the Products in accordance with delivery terms under the Sales Documents save force majeure events, the Purchaser shall bear a surcharge and pay forthwith DPO upon demand. Such surcharge will be equivalent to 0.5% of the total order value or based on actual loss suffered by DPO, whichever as decided by DPO.
6 INTELLECTUAL PROPERTY RIGHTS
6.1 Notwithstanding delivery of and the passing of title in any Products, nothing shall have the effect of granting or transferring to the Purchaser any intellectual property rights in or to any Products.
7 INSPECTION AND ACCEPTANCE OF PRODUCTS
7.1 Purchaser shall be deemed to have accepted the Products unless Purchaser notifies DPO in writing of its rejection because of non-conformity within the Same Day of delivery to the place of delivery and confirm by writing notification within three (3) days of delivery of the Products to Purchaser for Non-Industry Purchaser and within seven (7) days of delivery of the Products to Purchaser for Industry Purchaser.
7.2 Notification of rejection to DPO must include reasonable detail concerning the reasons for rejection. Provided that Purchaser is obligated to ensure the Products are intact and afford DPO or its agents the earliest opportunity to inspect the Products before they are further handled, processed, disposed of or otherwise dealt with. Any products intended for return must be made available for collection at the original delivery location within seven (7) days from the date of delivery.
7.3 In relation to Clause 7.1, if such complaint is duly communicated to DPO within the stipulated timeframe, DPO shall be entitled, at its own discretion, to replace, refund or repair upon investigation, subject to the Purchaser’s proof that such defects are not caused by the Purchaser. No return of Products shall be accepted without prior agreement in writing by DPO. Complaints shall not entitle the Purchaser to postpone, withhold or delay any payment to DPO.
8 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
8.1 Purchaser warrants that it has the capacity and authority to agree on the terms in this Sales Order as well as the Sale Contract.
8.2 DPO shall not be liable for normal manufacturing defects or customary variations from specifications or for any damage or deterioration in quality or loss in weight during transit or due to causes beyond its control.
8.3 Purchaser warrants that it has the capacity and authority to agree on the terms in this Sales Documents as well as the Sale Contract.
9 LIMITATION OF LIABILITY
9.1 DPO’s liability to the Purchaser shall only be limited to actual loss if it is held liable, to the exclusion of indirect loss, loss of business profit or income, loss of its customers, loss of reputation, damage to third parties and for any special, indirect or consequential damages of any nature whatsoever.
9.2 DPO shall not be held liable for damage or loss resulting from the Purchaser’s failure to fulfill its obligation.
9.3 Purchaser shall indemnify, defend and hold harmless DPO and its affiliates, and related company from and against any and all claims, losses, damages, costs and expenses which may be incurred or suffered as a result of any claim, demand, suits, proceedings or cause of action in any manner from any acts or omissions by Purchaser or its agents or employees arising out of or relating to Purchaser’s purchase, handling, transportation, export, re-export, re-transfer, import, possession, use, marketing, sale, storage fees, demurrage, disposition, distribution or maintenance of the Products or any failure of Purchaser to comply with any law applicable to the Terms or the performance of Purchaser’s obligations under the Sales Contract.
9.4 DPO’s total liability herein in respect of each event or series of connected events shall not exceed the purchase price of the Products supplied under the respective Sales Contract and/or Sales Documents.
10 CONFIDENTIALITY
10.1 The Parties shall regard all commercially sensitive information, including pricing, as confidential information and shall not divulge it without the written approval of the other.
10.2 Confidential information shall not include information which:-
- is already known (without restriction or breach of this provisions) to the recipient party; or
- is or becomes publicly known through no wrongful act of the recipient party; or
- is rightfully received from a third party without similar restriction and without breach of any obligation of confidentiality; or
- is independently developed by the recipient party without breach of this provision; or
- is approved for release by written authorisation of the furnishing party, to the extent of such written authorisation.
10.3 The Terms of this Clause shall survive the termination or completion of each Sale Contract.
11 FORCE MAJEURE
11.1 Each Party must make all reasonable efforts to minimize Force Majeure event. A Force Majeure event shall mean any event or circumstances beyond its reasonable control or otherwise unavoidable, including without limitation to acts of God, government orders, pandemic or epidemic, rules or restrictions, generally caused by food borne illness, food scare or food safety concern, fire, flood, war strikes or any other casualties or contingencies.
11.2 In the event of a Force Majeure occurrence as defined herein, DPO shall be entitled to a reasonable extension of time to perform its obligations herein or under the relevant Sale Contract. If, in DPO’s reasonable discretion, continued performance is impracticable or commercially unfeasible due to such Force Majeure, DPO may, at its sole discretion and without incurring any liability, terminate the affected Sale Contract in whole or in part by written notice to the Purchaser. Such termination shall not give rise to any claim for damages, compensation, or other remedies by the Purchaser.
12 ENTIRE AGREEMENT
12.1 No addition to or modification of any provision of these Terms shall be binding upon the Parties unless made by a written instrument signed by duly authorized representative of each of the Parties;
13 TERMINATION FOR DEFAULT OR INSOLVENCY
13.1 Preservation of other claims
If the Purchaser breaches (including repudiates) the Terms, nothing herein will prejudice the right of DPO to recover damages or exercise any other right or remedy.
13.2 Notice of default
If Purchaser fails to punctually comply with the Terms, DPO is entitled to give Purchaser a notice of default either requiring the default to be remedied within a specified period of time or stating the default cannot be remedied.
13.3 Effect of default
If Purchaser suffers an event of insolvency or otherwise in the opinion of DPO that it is in such financial circumstances as to prejudice proper performance of the Terms, fails to remedy a default within the period stated in the notice or the default cannot be remedied, DPO may by written notice to Purchaser terminate the Sale Contract without liability.
13.4 Effect of termination
On receipt of a notice of termination from DPO, Purchaser must immediately do everything possible to mitigate any costs resulting from the termination; and take any other action relating to termination that DPO may reasonably require.
14 NON-SOLICITING
14.1 The Purchaser shall not solicit, or encourage or permit any organization directly or indirectly controlled by the Purchaser to solicit:
- Any employee of DPO to leave the employ of DPO; and
- For employment, hire or engage as an independent contractor, any person who was employed by DPO.
14.2 The Purchaser shall be restrained from inducing or attempting to induce any customer, principal, agent, broker or supplier, licensee or business relation of DPO to cease doing business with DPO, or in any way interfere with the relationship between DPO and its customer, principal, agent, broker or supplier, licensee or business relation of DPO.
15 CONTRACT ASSIGNMENT/ SUBCONTRACTING
15.1 The Purchaser shall not assign or subcontract any part of the Sale Contract without the written consent of DPO.
16 Product Recall
16.1. In the event of a Product Recall affecting the Products, Purchaser shall immediately cease using the Products upon receipt of written notice from DPO.
16.2. DPO’s sole obligation in such event shall be providing replacement to Purchaser upon receiving such replaced Products from manufacturer or upon its stock availability.
17 MISCELLANEOUS
17.1 No agency, employment or partnership between the Parties is created by this Sales Documents.
17.2 Any notice to be given shall be in writing, if delivered by hand or by email or by other method of electronic written communication to its postal address or email address on the Sales Documents, shall be deemed received on the day of writing.
17.3 The United Nations’ convention on contract for the international sale of goods shall not apply to the Sales Contract nor to any dispute or claim arising under or related to the Sales Contract.
17.4 The Purchaser shall comply with applicable laws and regulations relating to anti-bribery and anti-corruption where this Sales Documents occurs and shall not engage in any activity directly or indirectly which would constitute an offence under the anti-bribery and anti-corruption laws.
17.5 These Terms is governed by and will be interpreted in accordance with the laws of DPO office as stated on the Sales Documents and Parties shall submit to the non-exclusive court jurisdiction in the country that the DPO office is located.
17.6 The waiver of any Terms does not operate as a waiver of another provision or of a continuing breach of that provision in the Terms. Unless provided otherwise, failure to exercise or any delay in exercising any right, power or privilege by DPO does not operate as a waiver of that right, power or privilege.
17.7 If any provision of this Terms is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and the legality, validity and enforceability of the remaining provisions of the Terms shall not be affected or impaired thereby.
