1. OFFER, CONFIRMATION OR AGREEMENT
These terms and conditions of commercial sale of Home Control Singapore Pte
Ltd. (the “Terms and Conditions”) apply to and form an integral part of all
quotations and offers made by Home Control Singapore Pte Ltd. (“Home
Control”), all acceptances, acknowledgements and confirmations by Home Control
of any orders by Buyer and any agreements (“Agreements”) regarding the sale by
Home Control and purchase by Buyer of goods and services (“Products”), unless
and to the extent Home Control explicitly agrees otherwise. Any terms and
conditions set forth on any document or documents issued by Buyer either
before or after issuance of any document by Home Control setting forth or
referring to these Terms and Conditions are hereby explicitly rejected and
disregarded by Home Control, and any such terms shall be wholly inapplicable
to any sale made by Home Control to Buyer and shall not be binding in any way
on Home Control. Home Control’s offers are open for acceptance within the
period stated by Home Control in the offer or, when no period is stated,
within thirty (30) days from the date of the offer, but any offer may be
withdrawn or revoked by Home Control at any time prior to the receipt by Home
Control of Buyer’s acceptance thereof.
2. PRICING
Prices in any offer, confirmation or Agreement are in [Singapore Dollars] ,
based on delivery Ex-Works (INCOTERMS latest version) Home Control’s
manufacturing facility or other facility designated by Home Control, unless
agreed otherwise in writing between Buyer and Home Control and do not include
any taxes, duties or similar levies, now or hereafter enacted, applicable to
the Products. Home Control will add taxes, duties and similar levies to the
sales price where Home Control is required or enabled by law to pay or collect
them and these will be paid by Buyer together with the price.
3. PAYMENT
(a) Unless agreed otherwise between Home Control and Buyer in writing, Home
Control may invoice Buyer for the price of the Products delivered upon
delivery of the Products in accordance with the applicable INCOTERM. Net
payment is due within thirty (30) days of date of invoice unless agreed
otherwise between Home Control and Buyer in writing. All payments shall be
made to the designated Home Control address. If deliveries are made in
installments, each installment may be separately invoiced and shall be paid
for when due. No discount is allowed for early payment unless agreed to in
writing by Home Control. In addition to any other rights and remedies Home
Control may have under applicable law, interest will accrue on all late
payments at the rate of eighteen percent (18%) per annum or the applicable
statutory rate, whichever is higher and to the extent permitted by applicable
law, from the due date until payment in full.
(b) All deliveries of Products agreed to by Home Control shall at all times be
subject to credit approval of Home Control. If, in Home Control’s judgment,
Buyer’s financial condition at any time does not justify production or delivery
of Products on the above payment terms, Home Control may require full or
partial payment in advance or other payment terms as a condition to delivery,
and Home Control may suspend, delay or cancel any credit, delivery or any
other performance by Home Control.
(c) In the event of any default by Buyer in the payment of any fees or charges
due, or any other default by Buyer, Home Control shall have the right to
refuse performance and/or delivery of any Products until payments are brought
current and Home Control may suspend, delay or cancel any credit, delivery or
any other performance by Home Control. Such right shall be in addition to, and
not in lieu of, any other rights and remedies available under the Agreement or
at law.
4. DELIVERY AND QUANTITIES
(a) Products shall be delivered Ex-Works (INCOTERMS latest version) as
designated by Home Control, unless otherwise agreed in writing. Delivery dates
communicated or acknowledged by Home Control are approximate only, and Home
Control shall not be liable for, nor shall Home Control be in breach of its
obligations to Buyer, for any delivery made within a reasonable time before or
after the communicated delivery date. Home Control agrees to use commercially
reasonable efforts to meet the delivery dates communicated or acknowledged by
it on the condition that Buyer provides all necessary order and delivery
information sufficiently prior to the such delivery date.
(b) Buyer will give Home Control written notice of failure to deliver and
thirty (30) days within which to cure. If Home Control does not deliver within
such thirty (30) day period, Buyer’s sole and exclusive remedy is to cancel
the affected and undelivered portions of the Agreement.
(c) Title in the Products shall pass to Buyer upon payment in full of the
purchase price in respect thereof. Risk of loss in the Products shall pass to
Buyer upon Home Control’s delivery in accordance with the applicable
INCOTERMS.
(d) If Buyer fails to take delivery of Products ordered, then Home Control may
deliver the Products in consignment at Buyer’s cost.
(e) In the event Home Control’s production is curtailed for any reason, Home
Control shall have the right to allocate its available production and
Products, in its sole discretion, among its various customers and as a result
may sell and deliver to Buyer fewer Products than specified in the Agreement,
as the case may be.
5. FORCE MAJEURE
Home Control shall not be liable for any failure or delay in performance if:
(i) such failure or delay results from interruptions in the Product
manufacturing process; or
(ii) such failure or delay is caused by Force Majeure as defined below or by
law.
In case of such a failure as set forth above, the performance of the relevant
part(s) of the Agreement will be suspended for the period such failure
continues, without Home Control being responsible or liable to Buyer for any
damage resulting therefrom.
The expression “Force Majeure” shall mean and include any circumstances or
occurrences beyond Home Control’s reasonable control – whether or not
foreseeable at the time of the Agreement – as a result of which Home Control
cannot reasonably be required to execute its obligations including force
majeure and/or default by one of Home Control’s suppliers. In the event that
the Force Majeure extends for a period of three (3) consecutive months (or in
the event that the delay is reasonably expected by Home Control to extend for
a period of three (3) consecutive months), Home Control shall be entitled to
cancel all or any part of the Agreement without any liability towards Buyer.
6. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY
Subject to the provisions set forth herein, the sale by Home Control of a
Product implies the non-exclusive and non-transferable limited license to
Buyer under any of Home Control’s and/or its affiliates’ intellectual property
rights (“Home Control’s IPR”) in the territory to use and resell Products as
sold by Home Control to Buyer.
To the extent that software and/or documentation is embedded in or delivered
with a Product, the sale of such Product shall not constitute the transfer of
ownership rights or title in such software and/or documentation to Buyer, but,
subject to the provisions set forth herein, shall only imply a non-exclusive
and non-transferable license to Buyer under Home Control intellectual property
rights to use such software and/or documentation in conjunction with and as
embedded in or delivered with the Products as supplied by Home Control in the
territory. Buyer shall not: (a) modify, adapt, alter, translate, or create
derivative works from any software residing in or provided by Home Control in
conjunction with any Products; (b) assign, sublicense, lease, rent, loan,
transfer, disclose, or otherwise make available such software; (c) merge or
incorporate such software with or into any other software; or (d) reverse
assemble, decompile, disassemble, or otherwise attempt to derive the source
code for such software without written authorization from Home Control except
as explicitly allowed under applicable law. Buyer shall reproduce, without any
amendments or changes thereto, any proprietary rights legends of Home Control
and/or its affiliates or its third party suppliers in any software or
documentation provided by Home Control. License terms of third parties may
apply.
7. LIMITED WARRANTY AND DISCLAIMER
(a) Home Control warrants that under normal use in accordance with the
applicable user manual the Products, (excluding any software that is not
embedded in a Product by Home Control) shall, at the time of delivery to Buyer
and for a period of twelve (12) months from the date of delivery (or such
other period as may be agreed upon in writing by the parties), be free from
defects in material or workmanship and shall substantially conform to Home
Control’s specifications for such Product, or such other specifications as Home
Control has agreed to in writing, as applicable. Home Control’s sole and
exclusive obligation, and Buyer’s sole and exclusive right, with respect to
claims under this warranty shall be limited, at Home Control’s option, either
to the replacement or repair of a defective or non-conforming Product or to an
appropriate credit for the purchase price thereof. Home Control will have a
reasonable time to repair, replace or credit. The non-conforming or defective
Products shall become Home Control’s property as soon as they have been
replaced or credited.
(b) Buyer may ship Products returned under warranty to Home Control’s
designated facility only in conformance with Home Control’s then-current return
material authorization policy. Where a warranty claim is justified, Home
Control will pay for freight expenses. Buyer shall pay for returned Products
that are not found to be defective or non-conforming together with the
freight, testing and handling costs associated therewith.
(c) Notwithstanding the foregoing, Home Control shall have no obligations
under warranty if the alleged defect or non-conformance is found to have
occurred as a result of environmental or stress testing, misuse, use other
than as set forth in the user manual, neglect, improper installation or
accident, or as a result of improper repair, alteration, modification,
storage, transportation or improper handling.
(d) The express warranty granted above shall extend directly to Buyer and not
to Buyer’s customers, agents or representatives and is in lieu of all other
warranties, whether express or implied, including without limitation any
implied warranties of fitness for a particular purpose, merchantability, or
non-infringement of intellectual property rights. All other warranties are
hereby specifically disclaimed by Home Control.
(e) Subject to the exclusions and limitations set forth in Section 9 of the
Terms and Conditions, the foregoing states the entire liability of Home
Control in connection with defective or non-conforming Products supplied
hereunder.
8. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
(a) Home Control, at its sole expense, shall: (i) defend any legal proceeding
brought by a third party against Buyer to the extent that the proceeding
includes a claim that any Product as furnished by Home Control under an
Agreement directly infringes the claimant’s patent, copyright, trademark, or
trade secret; and (ii) hold Buyer harmless against damages and costs awarded
by final judgment in such proceeding to the extent directly and solely
attributable to such infringement.
(b) Home Control shall have no obligation or liability to Buyer under Section
(a) (1) if Home Control is not: (i) promptly notified in writing of any such
claim; (ii) given the sole right to control and direct the investigation,
preparation, defense and settlement of such claim, including the selection of
counsel; and (iii) given full reasonable assistance and cooperation by Buyer
in such investigation, preparation, settlement and defense; (2) if the claim
is made after a period of three (3) years from the date of delivery of the
Product.
(c) If any Product is, or in Home Control’s opinion is likely to become, the
subject of a claim of infringement as referred to under Section 8 (a) above,
Home Control shall have the right, without obligation and at its sole option,
to: (i) procure for Buyer the right to continue to use or sell the Product;
(ii) provide replacement Product, or (iii) modify the Product in such a way as
to make the modified Product non-infringing; or (iv) terminate any Agreement
to the extent related to such Product.
(d) Subject to the exclusions and limitations set forth in Section 9 of the
Terms and Conditions, the foregoing states Home Control’s entire liability and
obligation to Buyer and Buyer’s sole remedy with respect to any actual or
alleged infringement of any intellectual property rights or any other
proprietary rights of any kind.
9. LIMITATION OF LIABILITY
(a) HOME CONTROL SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOSS
OF REPUTATION, LOSS OF GOODWILL, INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR
THE SALE OF ANY PRODUCTS OR SERVICES BY HOME CONTROL OR THE USE THEREOF
WHETHER OR NOT SUCH DAMAGES ARE BASED ON TORT, WARRANTY, CONTRACT OR ANY OTHER
LEGAL THEORY – EVEN IF HOME CONTROL HAS BEEN ADVISED, OR IS AWARE, OF THE
POSSIBILITY OF SUCH DAMAGES.
HOME CONTROL’S AGGREGATE AND CUMULATIVE LIABILITY TOWARDS BUYER UNDER ANY
AGREEMENT SHALL NOT EXCEED AN AMOUNT OF TEN PERCENT (10%) OF THE RELATED
AGREEMENT.
(b) Any Buyer’s claim for damages must be brought by Buyer within ninety (90)
days of the date of the event giving rise to any such claim, and any lawsuit
relative to any such claim must be filed within one (1) year of the date of
the claim. Any claims that have been brought or filed not in accordance with
the preceding sentence are null and void.
(c) The limitations and exclusions set forth above in this Section 9 shall
apply only to the extent permitted by applicable mandatory law.
10. CONFIDENTIALITY
Buyer acknowledges that all technical, commercial and financial data disclosed
to Buyer by Home Control and/or its affiliates is the confidential information
of Home Control and/or its affiliates. Buyer shall not disclose any such
confidential information to any third party and shall not use any such
confidential information for any purpose other than as agreed by the parties
and in conformance with the purchase transaction contemplated herein.
11. EXPORT/IMPORT CONTROLS
If the delivery of Products under the Agreement is subject to the granting of
an export or import license by a government and/or any governmental authority
under any applicable law or regulation, or otherwise restricted or prohibited
due to export or import control laws or regulations, Home Control may suspend
its obligations and Buyer’s rights regarding such delivery until such license
is granted or for the duration of such restriction and/or prohibition,
respectively, and Home Control may even terminate the Agreement, without
incurring any liability towards Buyer.
Furthermore, if an end-user statement is required, Home Control shall inform
Buyer immediately thereof and Buyer shall provide Home Control with such
document upon Home Control’s first written request; if an import license is
required, Buyer shall inform Home Control immediately thereof and Buyer shall
provide Home Control with such document as soon as it is available.
By accepting Home Control’s offer, entering into any Agreement and/or accepting
any Products, Buyer agrees that it will not deal with the Products and/or
documentation related thereto in violation of any applicable export or import
control laws and regulations.
12. ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under the Agreement without
the prior written consent of Home Control. Buyer shall have no right to
withhold or reduce any payments or to offset existing and future claims
against any payments due for Products sold under the Agreement or under any
other agreement that Buyer may have with Home Control or any of its affiliates
may have and agrees to pay the amounts hereunder regardless of any claimed
offset which may be asserted by Buyer or on its behalf.
13. GOVERNING LAW AND FORUM
All offers, confirmations and Agreements are governed by and construed in
accordance with the laws of Singapore. All disputes arising out of or in
connection with any Agreement shall first be attempted by Buyer and Home
Control to be settled through consultation and negotiation in good faith in a
spirit of mutual cooperation. All disputes which cannot be resolved amicably
shall be submitted to the exclusive jurisdiction of the courts of Singapore,
provided that Home Control shall always be permitted to bring any action or
proceedings against Buyer in any other court of competent jurisdiction. The
United Nations Convention on Contracts for the International Sale of Goods
shall not apply to any offer, confirmation or Agreement. Nothing in this
Section 13 shall be construed or interpreted as a limitation on either Home
Control’s or Buyer’s right under applicable law for injunctive or other
equitable relief or to take any action to safeguard its possibility to have
recourse on the other party.
14. BREACH AND TERMINATION
Without prejudice to any rights or remedies Home Control may have under the
Agreement or at law, Home Control may, by written notice to Buyer, terminate
with immediate effect the Agreement or any part thereof without any liability
whatsoever, if:
(a) Buyer violates or breaches any of the provisions of the Agreement;
(b) any proceedings in insolvency, bankruptcy (including reorganization)
liquidation or winding up are instituted against Buyer, whether filed or
instituted by Buyer, voluntary or involuntary, a trustee or receiver is
appointed over Buyer, or any assignment is made for the benefit of creditors
of Buyer.
Upon occurrence of any of the events referred to above, all payments to be
made by Buyer under the Agreement shall become immediately due and payable.
In the event of cancellation, termination or expiration of an Agreement the
terms and conditions destined to survive such cancellation, termination or
expiration shall so survive.
15. MISCELLANEOUS
(a) In the event that any provision(s) of these Terms and Conditions shall be
held invalid or unenforceable by a court of competent jurisdiction or by any
future legislative or administrative action, such holding or action shall not
negate the validity or enforceability of any other provisions thereof. In the
event that any provision of these Terms and Conditions shall finally be
determined to be unlawful or unenforceable, such provision shall be deemed
severed from these Terms and Conditions, but every other provision shall
remain in full force and effect, and in substitution for any such provision
held unlawful or unenforceable, there shall be substituted a provision of
similar import reflecting the original intent of the clause to the extent
permissible under applicable law.
(b) The failure on the part of either party to exercise, or any delay in
exercising, any right or remedy arising from the Agreement shall not operate
as a waiver thereof; nor shall any single or partial exercise of any right or
remedy arising there from preclude any other or future exercise thereof or the
exercise of any other right or remedy arising from the Agreement or from any
related document or by law.
