Terms & Conditions

Below are CSafe’s Terms & Conditions of Sale and Terms & Conditions of Purchase by country or service. Click the + to open the full text and download a PDF if needed based on the country and T&C document you need.

GLOBAL

TERMS AND CONDITIONS OF SALE

The following are the terms and conditions (“Terms”) under which CSafe, LLC, a Delaware limited liability company (“Seller”), agrees to sell and the buyer (“Buyer”) agrees to purchase goods.  Buyer’s assent to these Terms shall be conclusively presumed from Buyer’s acceptance of any or all goods ordered from Seller.

  1. General. These Terms and any related order confirmation and/or invoice, constitute the entire understanding between Buyer and Seller and Seller objects to any additional or different terms.  These Terms also apply to any change orders issued under Seller’s order number except as expressly stated on any related order confirmation.  No modifications or changes to these Terms shall be valid or binding unless Seller and Buyer agree to such modifications in writing.
  2. Shipment and Delivery. Unless otherwise specifically indicated on an invoice, Buyer must pay for freight and shipping, which is included in the price listed on the invoice.  Seller shall not be liable for delays, loss or damage in transit.  Buyer shall have five (5) days after receipt of goods to reject such goods, and to make a claim for shortage.  Buyer’s rejection shall be in writing and state Buyer’s reason for rejection.  Upon rejection, all goods must be held with reasonable care and intact until re-inspection by Seller or Seller’s agent.  Buyer shall be deemed to have accepted all goods if Buyer fails to notify Seller of its rejection as set forth herein.  Buyer acknowledges and agrees that the remedies set forth in this provision are Buyer’s exclusive remedy for non-conforming goods.
  3. Terms of Payment. Terms of payment shall be set forth on the invoice Seller sends to Buyer and if nothing is set forth thereon, net thirty (30) days from the invoice date.  As collateral security for the payment of the purchase price for the goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accession thereto and replacements or modifications thereof, as well as proceeds (including insurance proceeds) of the foregoing.  The security interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code.  Unless prohibited by law, a service charge of one-and-one-half percent (1-1/2%) of the total amount due shall be charged each month on the open account for payments not received within the time specified in the invoice or as otherwise set forth above.  If the foregoing is prohibited by law, there shall be charged to Buyer on account of such payments the maximum contractual amount permitted by law.  Acceptance of this service charge shall not be deemed a waiver of any rights Seller may have by reason of non-payment by Buyer.
  4. Assurance of Performance. Seller reserves the right even after partial payment on account of any contract with Buyer to demand from Buyer adequate assurances or security for the due performance for any and all of the obligations of Buyer and refusal to furnish such adequate assurance or security or the failure of Buyer to perform any of its obligations under this or any other existing contract will entitle Seller, without notice to Buyer, to suspend shipments or cancel a contract or so much of it as may remain unexecuted, all without incurring liability to Buyer and without prejudice to any claim for damages or other remedy Seller may be entitled to make.
  5. Warranties and Consequential Damages. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE GOODS, EITHER EXPRESSED OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT FOR THE FOLLOWING:  (a) unless Buyer’s own goods are being processed, Seller warrants unencumbered title to the goods to be shipped; and (b) Seller warrants that at the time of shipment the goods to be shipped shall conform to the description, grade, specification and condition of goods ordered, confirmed and invoiced.  Buyer agrees that Seller shall not be liable under any circumstances for consequential or incidental damages, and that Seller’s liability arising out of these Terms is limited solely and exclusively to, at Seller’s option, the replacement or repair of defective goods.  In no event shall Seller’s liability under these Terms exceed the price of the goods giving rise to the claim.  When replacing lost, damaged, or defective goods, Seller may reimburse Buyer for the cost of goods, without compensation for conforming the goods to manufacturing specifications or specifications of a set and without compensation for removal, installation or transportation of goods.  No action for any breach of warranty shall be brought more than one (1) year after delivery of such goods to Buyer.  Seller is not responsible for disposal of, or recycling of goods after their intended useful life.  Goods and any components or accessories thereof including, without limitation, PCM bricks and insulated panels are warranted for single use only, unless otherwise agreed to in writing by Seller.  Buyer agrees that it shall be solely responsible and liable to its customers, end users and/or other third-parties in the event of injury, harm or damages suffered by any of them, for any reason and under any circumstance, whether or not due to failure of the goods in any manner, and whether foreseeable or unforeseeable.  Buyer shall indemnify and hold harmless Seller and Seller’s directors, officers, employees and/or other representatives, from any and all claims, however and whenever presented, by any third-party including any customers and end user of the goods, wherein such claim(s) arise out of the goods including packaging, design, materials, and/or manufacturing, or to the acquisition, shipping, storage, handling, assembly, use and/or misuse, marketing, resale, and/or any other action whatsoever of Buyer or of an end user or a third-party, with respect to the goods.  Buyer agrees that the scope of the foregoing indemnification shall include indemnification from damages of any kind, including but not limited to direct, indirect, compensatory, special, incidental, punitive, or consequential damages, and from any expenses required to defend against such claims, including but not limited to legal costs and fees, attorney fees, and reasonable travel expenses, including but not limited to conveyance, lodging, food and reasonable incidental costs.  Buyer further agrees to indemnify and hold harmless Seller from any and all costs associated with performing a recall or other corrective disposition of the goods, whether voluntary or to comply with an order issued by any entity having authority over such matters, including but not limited to all costs to repair, replace, and/or recover the goods and/or to notify any and all affected customers, end users and other third-parties.
  6. Taxes; Compliance with Law. Buyer shall be responsible for any taxes or duties, now or hereafter imposed by the United States, and state, local or other government entity on the sale, export, import, or use of the goods.  Buyer shall comply with all applicable laws, regulations and ordinances.  Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.
  7. Force Majeure. Seller shall not be liable for any delay or failure in manufacturing or delivery due to fire, strikes, disputes with workers, war, civil commotion, epidemics, pandemics, floods, accidents, delays in transportation, shortages of fuel or other materials, shortages of labor, acts, demands, or requirements of the government, or to any other causes beyond the reasonable expectation or control of Seller.  The existence of such cause of delay shall justify the suspension of Seller’s obligations and shall extend the time of performance on the part of Seller to such extent as may be necessary to enable it to make delivery in the exercise of reasonable diligence after the causes of delay have been removed.  If the performance of Seller is rendered more burdensome by reason of any of the causes above-mentioned, Seller may request an increase in the price of the goods to compensate for such extra burden and may cancel the sale without penalty upon failure of Buyer to agree to such price increases and to satisfactorily secure their payment.  If the delay shall continue for ninety (90) days, then either party may, by written notice to the other, cancel the sale except as to goods manufactured, or in the process of manufacture, at the time such notice is received.
  8. Title and Risk of Loss. Title and risk of loss or damage shall pass to Buyer upon the earlier of Seller’s delivery of goods to a carrier or receipt of goods by Buyer.  If, upon Buyer’s request, Seller assists Buyer in processing claims against a carrier, Buyer solicits and accepts such assistance at its own risk.
  9. Cancellation. Seller may terminate an order with immediate effect upon written notice to Buyer, if Buyer:  (i) fails to pay any amount when due under the invoice; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  Except as otherwise provided in these Terms, no order for goods shall be cancelled except by mutual consent.  Notice is hereby given that Seller will not consent to cancellation if processing of Buyer’s goods has commenced, special stock has been purchased or manufactured for this order, stock has been assembled for loading, or the goods for the order are being loaded or are in route to destination.
  10. Partial Shipment. In any sale contemplating shipment by Seller, Seller shall not be required to ship the total amount of the subject goods in one shipment but may make partial shipments at Seller’s convenience.  If partial shipments are made, Seller at its option may invoice by or for such partial shipment and Buyer shall pay according to the terms thereof.
  11. Governing Law; Jurisdiction. The Uniform Commercial Code and other laws set forth in the laws of the State of Ohio, United States of America shall be the governing law of these Terms and each contract thereunder, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of Ohio.  Each party irrevocably agrees that the courts in Cincinnati, Ohio shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation.
  12. Attorney Fees. Buyer agrees to pay all costs of collection for sums due for the sale of goods, including reasonable attorney fees, whether or not litigation is actually commenced.  In the event a legal proceeding is instituted to enforce any term of condition of sale, the prevailing party shall be entitled to recover from the other party such sum as the court may deem reasonable as attorney fees at trial or on appeal in addition to all other sums provided by law.
  13. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with any order and these Terms is confidential, solely for the use of performing any orders in accordance with these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing.  Upon Seller’s request, Buyer shall promptly return or destroy all documents and other materials received from Seller.  Seller shall be entitled to injunctive relief for any violation of this provision.  This provision does not apply to information that is:  (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
  14. Binding Effect. These Terms shall inure to the benefit of and be binding upon Buyer and Seller, their legal representatives, successors and permitted assigns.  No right hereunder may be assigned by Buyer without the prior written consent of Seller, which shall not be unreasonably withheld.
  15. Severability. If any provision of these Terms is invalid or unenforceable in any respect for any reason, the validity and enforceability of the provision in any other respect and of the remainder of these Terms shall be unimpaired.
  16. Waiver. Waiver by Seller or Buyer of strict performance of any of these terms or conditions shall not be a waiver of or prejudice of any right to require strict performance of the same terms or conditions in the future or of any other of these terms or conditions.
  17. No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  18. Relationship of the Parties. The relationship between the parties is that of independent contractors.  Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  19. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the order confirmation and/or invoice or to such other address that may be designated by the party in writing.  All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided herein, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this provision.

 

June 2022

CSafe, LLC – Terms and Conditions of Purchase

 

  1. Definitions

In these Conditions the following expressions have the following meanings:
“Purchaser” means CSafe, LLC or any of its subsidiary or affiliate companies;
“Conditions” mean these terms and conditions for the purchase of Products and/or Services which are incorporated into and form part of the Contract;
“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“CSafe Issued Material” means any property, materials, specifications or data issued to Seller by Purchaser to be used in fulfilment of Seller’s obligations under the Contract;

“Products” mean the products, goods or items which are the subject of the Contract;

“Purchase Order” means Purchaser’s order for Products and/or Services as set out in the purchase order, which may without limitation include statements of work, specifications or similar;

“Seller” means the person, firm or company referred to on the face of the Purchase Order with whom the Contract is made by Purchaser;

“Services” means the services which are to be provided by Seller under the Contract as set out in the Purchase Order;

“Contract” means the agreement (contract) between Seller and Purchaser for the supply of the Products and/or Services.

  1. Application
  • The Purchase Order constitutes an offer by Purchaser to purchase Products and/or Services from Seller in accordance with these Conditions. The Purchase Order shall be deemed to be accepted on the earlier of Seller issuing written acceptance of the Purchase Order or any act by Seller consistent with fulfilling the Purchase Order, at which point and on which date the Contract shall come into existence. These Conditions shall apply to the Contract to the exclusion of any terms that Seller seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No terms or conditions endorsed on, delivered with, or contained in Seller’s quotation, sales conditions, order confirmation or acknowledgement, specification, invoice or other document shall form part of the Contract except to the extent that Purchaser otherwise agrees in writing. All of these Conditions shall apply to the supply of both Products and Services except where the application to one or the other is specified.
  1. Quality and Description

3.1 All Products shall:

3.1.1 conform to the quantity, quality, description and any other particulars contained in the Purchase Order or the Contract;

3.1.2 correspond with any sample, drawing, description and specification furnished;

3.1.3 be of satisfactory quality, fit for any intended use expressly or impliedly made known to Seller;

3.1.4 be free from defects in design, materials and workmanship and remain so for twelve (12) months from delivery; and

3.1.5 comply with all performance specifications included in the Purchase Order.

3.2 All Services shall (i) be provided in full accordance with the terms of the Contract and applicable Purchase Order, (ii) be performed in a proper and skilful manner with the best care and diligence by properly qualified and experienced personnel and (iii) conform to the best industry standards.

Testing, inspection and/or acceptance by Purchaser or end user under Clause 5 shall not be deemed a waiver of Seller’s obligations under this Clause 3. This Clause 3 shall include and apply to any replacement, repaired, substituted or remedial Products or substituted or remedial Services provided by Seller.

  1. Statutory Obligations

4.1 Seller shall comply with all relevant statutes, rules and regulations affecting its obligations and the performance of the Contract.

4.2 Whilst on Purchaser’s premises, Seller shall abide by any written or verbal instructions in relation to safety and security issued by Purchaser.

  1. Inspection and Rejection

5.1 Seller warrants that it has inspected and tested the Products for compliance with the Contract prior to delivery and shall, if requested, supply Purchaser with certificates of origin and/or testing. Such certificates must state the Purchase Order number together with any Product item numbers detailed within the Purchase Order

5.2 If the Products and/or Services do not comply with the Purchase Order, Purchaser shall within a reasonable time give notice of rejection to Seller and without prejudice to any of its other rights, Purchaser may in its discretion require Seller to comply with the Contract by expeditiously replacing or repairing as appropriate any rejected Products and replacing or otherwise correcting or re-performing any rejected Services. The rejected Products shall be returned to Seller at Seller’s risk and expense.

5.3 Any reference to Seller in this clause includes any affiliate or sub-contractor of Seller. Where Seller repairs, replaces or re-performs any Products or Services pursuant to this Clause 5, the Conditions shall apply to the repaired, replaced or re-performed Products or Services.

5.4 Purchaser reserves the right at reasonable times on reasonable prior written notice to inspect or test the Products or the Services at any stage before delivery and Seller shall give rights of access to its premises and such facilities as Purchaser may reasonably require for such inspection.

  1. Delivery and Risk

6.1 Products and Services shall be delivered on the dates and at the rates and at the places specified in the Purchase Order. Delivery may be direct to Purchaser’s end user if so specified on the Purchase Order. Purchaser acting reasonably may delay or alter such dates, rates and places by giving Seller reasonable notice in writing of such alterations.

6.2 Time of delivery is of the essence for the Contract.

6.3 Seller shall ensure that all Products are marked in accordance with the provisions of the Contract and any instructions issued by Purchaser. Products shall be packed so as to reach the places of delivery undamaged and in good condition. Seller shall provide in respect of each shipment of Products a packaging note detailing the applicable Purchase Order number, description, code number (if any) and the quantity of Products shipped.

6.4 If Seller fails to deliver in accordance with the Contract, then Purchaser may cancel the Contract or any part of it and reserves all rights in damages and otherwise arising including but not limited to the right to purchase substitute Products or Services elsewhere and to hold Seller liable for any loss, expense or additional cost incurred.

6.5 Risk of loss to the Products passes to Purchaser on delivery to the location specified in the applicable Purchase Order without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6.

6.6 Any of Seller’s property brought onto Purchaser’s premises will be at and will remain at risk of Seller.

6.7 Any CSafe Issued Material or material issued by a manufacturing partner will be at Seller’s risk whilst in Seller’s possession and/or control.

  1. Title

Seller warrants that it has good title to the Products it is selling to Purchaser. Title to Products shall pass to Purchaser on delivery to Purchaser or collection by Purchaser from Seller’s point of dispatch without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6. Seller acknowledges that the Products or Services may be sold on to an end user by Purchaser and warrants that Purchaser will be able to supply the end user with good title.

  1. Prices
  • All prices shall be as stated in the Contract. The prices are fixed and include delivery and all other charges which shall not be adjusted, excepting where the Contract expressly specifies otherwise, and save as provided for in these Conditions.

8.2 Prices do not include VAT or sales tax which shall be added by Seller at the rate and in the manner from time to time prescribed by law.

  1. Payment
  • Seller shall send to Purchaser a detailed invoice referencing the applicable Purchase Order (including Purchase Order number), packaging note and date of delivery, together with any Products or Services reference number. Terms of payment are as stated on the front of the Purchase Order.
  1. Confidentiality

10.1 Seller shall keep in strict confidence all CSafe Issued Materials, Purchase Order, technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Seller by Purchaser, its affiliates, employees, agents or subcontractors, and any other confidential information concerning Purchaser’s business, its products and services which Seller may obtain. Seller shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging its obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. Seller may also disclose such of Purchaser’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

10.2 Seller shall not, without Purchaser’s written consent, advertise or otherwise make known that Seller supplies or has supplied Products or Services to Purchaser.

  1. Equipment and other Facilities

All CSafe Issued Material shall be and remain the property of Purchaser. Seller hereby undertakes to maintain SBS Issued Material in good order and condition, to keep it separate from Seller’s property and to identify it as the property of Purchaser. Seller shall not use CSafe Issued Material except in respect of Contracts with Purchaser. Risk in CSafe Issued Material shall be with Seller who shall procure comprehensive insurance against all risks of its loss or damage of an amount equal to its replacement cost with Purchaser’s interest noted on the policy and with Purchaser named as loss payee.

  1. Variation of Goods/Services

12.1 If at any time during the term of the Contract, Purchaser wishes to vary the Services and/or Products ordered, it shall notify Seller in writing and Seller shall, within two (2) business days provide a written statement of the amount by which such variation would increase or decrease:

  1. a) the dates, timescales or milestones, and
  2. b) the charges;

which have been agreed in the Contract, and such other information as Purchaser may reasonably require.

12.2 The implementation of any variation to the Services and/or Products shall be subject to the agreement of the parties. Seller shall not undertake any such variations unless specifically instructed to do so by Purchaser.

12.3 Delivery Tolerances only: Purchaser accepts that it is of the nature of some processes that the final amount produced may vary. In consideration of this Purchaser accepts that a delivery tolerance of no more than ten percent (10%) may be supplied in fulfilment of the Contract where Seller has advised Purchaser in writing of this possibility. This is a maximum permitted value and Seller must use best efforts to ensure that the amount stipulated within the Contract is the amount actually delivered. All delivery and invoice documentation must reflect the actual delivered values.

12.4 All variations must be confirmed in writing.

  1. Indemnity

13.1 Seller shall indemnify Purchaser against any claims, liabilities, actions, damages, costs, losses and expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by Purchaser as a result of or in connection with:

13.1.1 any alleged or actual infringement by any of the Products or Services of any third-party Intellectual Property Right including but not limited to patents, copyright, trademarks, service marks, registered designs, design rights or other rights and Seller shall at its own cost defend or settle all such claims or actions and proceedings brought or threatened to be brought against Purchaser;

13.1.2 Seller’s failure to perform its obligations under the Contract; or

13.1.3 death, injury, loss or damage to persons or property caused or contributed to by the negligence of Seller or its employees, sub-suppliers (if permitted) or agents.

Seller accepts liability for all other loss or damage suffered by Purchaser and which is attributable to the negligence of Seller or its employees, sub-suppliers (if permitted) or agents or otherwise results from a breach of the Contract.

  1. Force Majeure

Neither party shall be liable to the other for any loss or damage which may be suffered by the other as a direct or indirect result of the performance of its obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond its reasonable control including but not limited to acts of God, war, riot, accident, fire, flood, storm, explosion, epidemic or government action, but expressly excluding lockout, strike, trade dispute or labour disturbance involving its own workforce.

  1. Licences
  • If the Products or Services supplied under the Contract require Purchaser to have any permit or licence from any commercial, governmental or other regulatory authority, the Contract shall be deemed conditional upon such permit or licence being granted at the required time. Seller warrants that it has all necessary permits and licences to allow it to sell the Products and Services to Purchaser.
  1. Termination

16.1 Either party may terminate the Contract with immediate effect by notice in writing in the following situations:

16.1.1 if the other party is in breach and, in the event the breach is capable of remedy, fails to remedy the breach within fourteen (14) days of being asked to do so in writing. If the breach cannot be remedied, the party not in breach may terminate the Contract immediately;

16.1.2 if the other party ceases or threatens to cease business, or commits an act of bankruptcy, or it or a third-party takes action for it to go into liquidation unless this is to reconstruct or merge the company or if an administrator, administrative receiver, receiver or manager is appointed for any part of its business;

16.1.3 if, in the reasonable opinion of one party, there occurs a material change in the financial position of the other party which is likely to affect such other party’s ability to perform its obligations under the Contract; or

16.1.4 if there is a change in control of the other party which in the reasonable opinion of the party terminating adversely affects the position, rights or interests of the party terminating.

16.2 Termination of a Contract shall not discharge either party from any existing obligation accrued due on or prior to the date of termination.

16.3 Purchaser may cancel a Contract at any time by notice in writing. It will pay for and accept delivery of all finished Products manufactured by Seller at the date of cancellation and shall pay Seller a fair and reasonable sum in respect of all work in progress at the date of cancellation subject to work in progress being transferred to Purchaser.

  1. Miscellaneous

17.1 All Intellectual Property Rights in the work carried out under the Contract are hereby assigned to and shall vest in Purchaser absolutely with full title guarantee and free of all third-party rights.

17.2 If any court or other competent authority finds that any provision, or part of any provision, of the Contract is invalid, illegal or unenforceable that provision, or part, shall, to the extent required be deemed to be deleted, and the validity and/or enforceability of the remaining provisions of the Contract shall not be affected.

17.3 If either party delays, forgets or chooses not to enforce their rights under the Contract it shall not affect their rights to do so at a later date. Should either wish to formally waive a right or remedy it shall not in any way restrict their exercise of any right or remedy at a future date.

17.4 The Contract is the entire agreement between the parties and may not be modified or amended unless agreed in writing by properly authorised representatives of both parties.

17.4 All notices must be in writing and sent to the postal address, fax number or email address set out in the Contract. They may be delivered by hand, by first class post, by facsimile or by email and all email notices are to be sent by an email client that has the facility to obtain “delivered” and “read” notifications from the email computer server of the other party, and shall be deemed to have been served:

if by hand, at time of delivery;`
if by first class post, two (2) business days after posting;
if by facsimile, on the date printed on the facsimile advice note produced by the sender’s machine; and

If by email, at the date and time produced by the email “delivered” receipt.

17.5 Headings do not affect interpretation.

17.6 The Contract shall be governed and construed in accordance with the laws of the State of Ohio. Any dispute or claim arising under the Contract, including non-contractual disputes or claims, shall be irrevocably subject to the exclusive jurisdiction of the state and federal courts of Cincinnati, OH. 

UNITED STATES / LATAM

TERMS AND CONDITIONS OF SALE

 

The following are the terms and conditions (“Terms”) under which Softbox Systems, Inc., a South Carolina corporation (“Seller”), agrees to sell and the buyer (“Buyer”) agrees to purchase goods.  Buyer’s assent to these Terms shall be conclusively presumed from Buyer’s acceptance of any or all goods ordered from Seller.

  1. 1. General. These Terms and any related order confirmation and/or invoice, constitute the entire understanding between Buyer and Seller and Seller objects to any additional or different terms.  These Terms also apply to any change orders issued under Seller’s order number except as expressly stated on any related order confirmation.  No modifications or changes to these Terms shall be valid or binding unless Seller and Buyer agree to such modifications in writing.
  2. 2. Shipment and Delivery. Unless otherwise specifically indicated on an invoice, Buyer must pay for freight and shipping, which is included in the price listed on the invoice.  Seller shall not be liable for delays, loss or damage in transit. Buyer shall have five (5) days after receipt of goods to reject such goods, and to make a claim for shortage.  Buyer’s rejection shall be in writing and state Buyer’s reason for rejection.  Upon rejection, all goods must be held with reasonable care and intact until re-inspection by Seller or Seller’s agent.  Buyer shall be deemed to have accepted all goods if Buyer fails to notify Seller of its rejection as set forth herein.  Buyer acknowledges and agrees that the remedies set forth in this provision are Buyer’s exclusive remedy for non-conforming goods.
  3. 3. Terms of Payment. Terms of payment shall be set forth on the invoice Seller sends to Buyer and if nothing is set forth thereon, net thirty (30) days from the invoice date.  As collateral security for the payment of the purchase price for the goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accession thereto and replacements or modifications thereof, as well as proceeds (including insurance proceeds) of the foregoing.  The security interest granted under this provision constitutes a purchase money security interest under the applicable Uniform Commercial Code.  Unless prohibited by law, a service charge of one-and-one-half percent (1-1/2%) of the total amount due shall be charged each month on the open account for payments not received within the time specified in the invoice or as otherwise set forth above.  If the foregoing is prohibited by law, there shall be charged to Buyer on account of such payments the maximum contractual amount permitted by law.  Acceptance of this service charge shall not be deemed a waiver of any rights Seller may have by reason of non-payment by Buyer.
  4. 4. Assurance of Performance. Seller reserves the right even after partial payment on account of any contract with Buyer to demand from Buyer adequate assurances or security for the due performance for any and all of the obligations of Buyer and refusal to furnish such adequate assurance or security or the failure of Buyer to perform any of its obligations under this or any other existing contract will entitle Seller, without notice to Buyer, to suspend shipments or cancel a contract or so much of it as may remain unexecuted, all without incurring liability to Buyer and without prejudice to any claim for damages or other remedy Seller may be entitled to make.
  5. 5. Warranties and Consequential Damages. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE GOODS, EITHER EXPRESSED OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT FOR THE FOLLOWING:  (a) unless Buyer’s own goods are being processed, Seller warrants unencumbered title to the goods to be shipped; and (b) Seller warrants that at the time of shipment the goods to be shipped shall conform to the description, grade, specification and condition of goods ordered, confirmed and invoiced.  Buyer agrees that Seller shall not be liable under any circumstances for consequential or incidental damages, and that Seller’s liability arising out of these Terms is limited solely and exclusively to, at Seller’s option, the replacement or repair of defective goods.  In no event shall Seller’s liability under these Terms exceed the price of the goods giving rise to the claim.  When replacing lost, damaged, or defective goods, Seller may reimburse Buyer for the cost of goods, without compensation for conforming the goods to manufacturing specifications or specifications of a set and without compensation for removal, installation or transportation of goods.  No action for any breach of warranty shall be brought more than one (1) year after delivery of such goods to Buyer.  Seller is not responsible for disposal of, or recycling of goods after their intended useful life.  Goods and any components or accessories thereof including, without limitation, PCM bricks and insulated panels are warranted for single use only, unless otherwise agreed to in writing by Seller.  Buyer agrees that it shall be solely responsible and liable to its customers, end users and/or other third-parties in the event of injury, harm or damages suffered by any of them, for any reason and under any circumstance, whether or not due to failure of the goods in any manner, and whether foreseeable or unforeseeable.  Buyer shall indemnify and hold harmless Seller and Seller’s directors, officers, employees and/or other representatives, from any and all claims, however and whenever presented, by any third-party including any customers and end users of the goods, wherein such claim(s) arise out of the goods including packaging, design, materials, and/or manufacturing, or to the acquisition, shipping, storage, handling, assembly, use and/or misuse, marketing, resale, and/or any other action whatsoever of Buyer or of an end user or a third-party, with respect to the goods.  Buyer agrees that the scope of the foregoing indemnification shall include indemnification from damages of any kind, including but not limited to direct, indirect, compensatory, special, incidental, punitive, or consequential damages, and from any expenses required to defend against such claims, including but not limited to legal costs and fees, attorney fees, and reasonable travel expenses, including but not limited to conveyance, lodging, food and reasonable incidental costs.  Buyer further agrees to indemnify and hold harmless Seller from any and all costs associated with performing a recall or other corrective disposition of the goods, whether voluntary or to comply with an order issued by any entity having authority over such matters, including but not limited to all costs to repair, replace, and/or recover the goods and/or to notify any and all affected customers, end users and other third-parties.
  6. 6. Taxes; Compliance with Law. Buyer shall be responsible for any taxes or duties, now or hereafter imposed by the United States, and state, local or other government entity on the sale, export, import, or use of the goods.  Buyer shall comply with all applicable laws, regulations and ordinances.  Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.
  7. 7. Force Majeure. Seller shall not be liable for any delay or failure in manufacturing or delivery due to fire, strikes, disputes with workers, war, civil commotion, epidemics, pandemics, floods, accidents, delays in transportation, shortages of fuel or other materials, shortages of labor, acts, demands, or requirements of the government, or to any other causes beyond the reasonable expectation or control of Seller.  The existence of such cause of delay shall justify the suspension of Seller’s obligations and shall extend the time of performance on the part of Seller to such extent as may be necessary to enable it to make delivery in the exercise of reasonable diligence after the causes of delay have been removed.  If the performance of Seller is rendered more burdensome by reason of any of the causes above-mentioned, Seller may request an increase in the price of the goods to compensate for such extra burden and may cancel the sale without penalty upon failure of Buyer to agree to such price increases and to satisfactorily secure their payment.  If the delay shall continue for ninety (90) days, then either party may, by written notice to the other, cancel the sale except as to goods manufactured, or in the process of manufacture, at the time such notice is received.
  8. 8. Title and Risk of Loss. Title and risk of loss or damage shall pass to Buyer upon the earlier of Seller’s delivery of goods to a carrier or receipt of goods by Buyer.  If, upon Buyer’s request, Seller assists Buyer in processing claims against a carrier, Buyer solicits and accepts such assistance at its own risk.
  9. 9. Cancellation. Seller may terminate an order with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under the invoice; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  Except as otherwise provided in these Terms, no order for goods shall be cancelled except by mutual consent.  Notice is hereby given that Seller will not consent to cancellation if processing of Buyer’s goods has commenced, special stock has been purchased or manufactured for this order, stock has been assembled for loading, or the goods for the order are being loaded or are in route to destination.
  10. 10. Partial Shipment. In any sale contemplating shipment by Seller, Seller shall not be required to ship the total amount of the subject goods in one shipment but may make partial shipments at Seller’s convenience.  If partial shipments are made, Seller at its option may invoice by or for such partial shipment and Buyer shall pay according to the terms thereof.
  11. 11. Governing Law; Jurisdiction. The Uniform Commercial Code and other laws set forth in the laws of the State of South Carolina, United States of America shall be the governing law of these Terms and each contract thereunder, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the State of South Carolina.  Each party irrevocably agrees that the courts in Greenville, South Carolina shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation.
  12. 12. Attorney Fees. Buyer agrees to pay all costs of collection for sums due for the sale of goods, including reasonable attorney fees, whether or not litigation is actually commenced.  In the event a legal proceeding is instituted to enforce any term of condition of sale, the prevailing party shall be entitled to recover from the other party such sum as the court may deem reasonable as attorney fees at trial or on appeal in addition to all other sums provided by law.
  13. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with any order and these Terms is confidential, solely for the use of performing any orders in accordance with these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing.  Upon Seller’s request, Buyer shall promptly return or destroy all documents and other materials received from Seller.  Seller shall be entitled to injunctive relief for any violation of this provision.  This provision does not apply to information that is:  (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
  14. Binding Effect. These Terms shall inure to the benefit of and be binding upon Buyer and Seller, their legal representatives, successors and permitted assigns.  No right hereunder may be assigned by Buyer without the prior written consent of Seller, which shall not be unreasonably withheld.
  15. 15. Severability. If any provision of these Terms is invalid or unenforceable in any respect for any reason, the validity and enforceability of the provision in any other respect and of the remainder of these Terms shall be unimpaired.
  16. Waiver. Waiver by Seller or Buyer of strict performance of any of these terms or conditions shall not be a waiver of or prejudice of any right to require strict performance of the same terms or conditions in the future or of any other of these terms or conditions.
  17. No Third-Party Beneficiaries. These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
  18. Relationship of the Parties. The relationship between the parties is that of independent contractors.  Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
  19. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the order confirmation and/or invoice or to such other address that may be designated by the party in writing.  All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided herein, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this provision.

June 2022

Softbox Systems, Inc. – Terms and Conditions of Purchase

 

 

  1. Definitions

In these Conditions the following expressions have the following meanings:
“Purchaser” means Softbox Systems, Inc. (SBS) or any of its subsidiary or affiliate companies;
“Conditions” mean these terms and conditions for the purchase of Products and/or Services which are incorporated into and form part of the Contract;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“SBS Issued Material” means any property, materials, specifications or data issued to Seller by Purchaser to be used in fulfilment of Seller’s obligations under the Contract;

“Products” mean the products, goods or items which are the subject of the Contract;

“Purchase Order” means Purchaser’s order for Products and/or Services as set out in the purchase order, which may without limitation include statements of work, specifications or similar;

“Seller” means the person, firm or company referred to on the face of the Purchase Order with whom the Contract is made by Purchaser;

“Services” means the services which are to be provided by Seller under the Contract as set out in the Purchase Order;

“Contract” means the agreement (contract) between Seller and Purchaser for the supply of the Products and/or Services.

  1. Application
  • The Purchase Order constitutes an offer by Purchaser to purchase Products and/or Services from Seller in accordance with these Conditions. The Purchase Order shall be deemed to be accepted on the earlier of Seller issuing written acceptance of the Purchase Order or any act by Seller consistent with fulfilling the Purchase Order, at which point and on which date the Contract shall come into existence. These Conditions shall apply to the Contract to the exclusion of any terms that Seller seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No terms or conditions endorsed on, delivered with, or contained in Seller’s quotation, sales conditions, order confirmation or acknowledgement, specification, invoice or other document shall form part of the Contract except to the extent that Purchaser otherwise agrees in writing. All of these Conditions shall apply to the supply of both Products and Services except where the application to one or the other is specified.
  1. Quality and Description

3.1 All Products shall:

3.1.1 conform to the quantity, quality, description and any other particulars contained in the Purchase Order or the Contract;

3.1.2 correspond with any sample, drawing, description and specification furnished;

3.1.3 be of satisfactory quality, fit for any intended use expressly or impliedly made known to Seller;

3.1.4 be free from defects in design, materials and workmanship and remain so for twelve (12) months from delivery; and

3.1.5 comply with all performance specifications included in the Purchase Order.

3.2 All Services shall (i) be provided in full accordance with the terms of the Contract and applicable Purchase Order, (ii) be performed in a proper and skilful manner with the best care and diligence by properly qualified and experienced personnel and (iii) conform to the best industry standards.

Testing, inspection and/or acceptance by Purchaser or end user under Clause 5 shall not be deemed a waiver of Seller’s obligations under this Clause 3. This Clause 3 shall include and apply to any replacement, repaired, substituted or remedial Products or substituted or remedial Services provided by Seller.

  1. Statutory Obligations

4.1 Seller shall comply with all relevant statutes, rules and regulations affecting its obligations and the performance of the Contract.

4.2 Whilst on Purchaser’s premises, Seller shall abide by any written or verbal instructions in relation to safety and security issued by Purchaser.

  1. Inspection and Rejection

5.1 Seller warrants that it has inspected and tested the Products for compliance with the Contract prior to delivery and shall, if requested, supply Purchaser with certificates of origin and/or testing. Such certificates must state the Purchase Order number together with any Product item numbers detailed within the Purchase Order

5.2 If the Products and/or Services do not comply with the Purchase Order, Purchaser shall within a reasonable time give notice of rejection to Seller and without prejudice to any of its other rights, Purchaser may in its discretion require Seller to comply with the Contract by expeditiously replacing or repairing as appropriate any rejected Products and replacing or otherwise correcting or re-performing any rejected Services. The rejected Products shall be returned to Seller at Seller’s risk and expense.

5.3 Any reference to Seller in this clause includes any affiliate or sub-contractor of Seller. Where Seller repairs, replaces or re-performs any Products or Services pursuant to this Clause 5, the Conditions shall apply to the repaired, replaced or re-performed Products or Services.

5.4 Purchaser reserves the right at reasonable times on reasonable prior written notice to inspect or test the Products or the Services at any stage before delivery and Seller shall give rights of access to its premises and such facilities as Purchaser may reasonably require for such inspection.

  1. Delivery and Risk

6.1 Products and Services shall be delivered on the dates and at the rates and at the places specified in the Purchase Order. Delivery may be direct to Purchaser’s end user if so specified on the Purchase Order. Purchaser acting reasonably may delay or alter such dates, rates and places by giving Seller reasonable notice in writing of such alterations.

6.2 Time of delivery is of the essence for the Contract.

6.3 Seller shall ensure that all Products are marked in accordance with the provisions of the Contract and any instructions issued by Purchaser. Products shall be packed so as to reach the places of delivery undamaged and in good condition. Seller shall provide in respect of each shipment of Products a packaging note detailing the applicable Purchase Order number, description, code number (if any) and the quantity of Products shipped.

6.4 If Seller fails to deliver in accordance with the Contract, then Purchaser may cancel the Contract or any part of it and reserves all rights in damages and otherwise arising including but not limited to the right to purchase substitute Products or Services elsewhere and to hold Seller liable for any loss, expense or additional cost incurred.

6.5 Risk of loss to the Products passes to Purchaser on delivery to the location specified in the applicable Purchase Order without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6.

6.6 Any of Seller’s property brought onto Purchaser’s premises will be at and will remain at risk of Seller.

6.7 Any SBS Issued Material or material issued by a manufacturing partner will be at Seller’s risk whilst in Seller’s possession and/or control.

  1. Title

Seller warrants that it has good title to the Products it is selling to Purchaser. Title to Products shall pass to Purchaser on delivery to Purchaser or collection by Purchaser from Seller’s point of dispatch without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6. Seller acknowledges that the Products or Services may be sold on to an end user by Purchaser and warrants that Purchaser will be able to supply the end user with good title.

  1. Prices
  • 1 All prices shall be as stated in the Contract. The prices are fixed and include delivery and all other charges which shall not be adjusted, excepting where the Contract expressly specifies otherwise, and save as provided for in these Conditions.

8.2 Prices do not include VAT or sales tax which shall be added by Seller at the rate and in the manner from time to time prescribed by law.

  1. Payment
  • Seller shall send to Purchaser a detailed invoice referencing the applicable Purchase Order (including Purchase Order number), packaging note and date of delivery, together with any Products or Services reference number. Terms of payment are as stated on the front of the Purchase Order.
  1. Confidentiality

10.1 Seller shall keep in strict confidence all SBS Issued Materials, Purchase Order, technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Seller by Purchaser, its affiliates, employees, agents or subcontractors, and any other confidential information concerning Purchaser’s business, its products and services which Seller may obtain. Seller shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging its obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. Seller may also disclose such of Purchaser’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

10.2 Seller shall not, without Purchaser’s written consent, advertise or otherwise make known that Seller supplies or has supplied Products or Services to Purchaser.

  1. Equipment and other Facilities

All SBS Issued Material shall be and remain the property of Purchaser. Seller hereby undertakes to maintain SBS Issued Material in good order and condition, to keep it separate from Seller’s property and to identify it as the property of Purchaser. Seller shall not use SBS Issued Material except in respect of Contracts with Purchaser. Risk in SBS Issued Material shall be with Seller who shall procure comprehensive insurance against all risks of its loss or damage of an amount equal to its replacement cost with Purchaser’s interest noted on the policy and with Purchaser named as loss payee.

  1. Variation of Goods/Services

12.1 If at any time during the term of the Contract, Purchaser wishes to vary the Services and/or Products ordered, it shall notify Seller in writing and Seller shall, within two (2) business days provide a written statement of the amount by which such variation would increase or decrease:

  1. a) the dates, timescales or milestones, and
  2. b) the charges;

which have been agreed in the Contract, and such other information as Purchaser may reasonably require.

12.2 The implementation of any variation to the Services and/or Products shall be subject to the agreement of the parties. Seller shall not undertake any such variations unless specifically instructed to do so by Purchaser.

12.3 Delivery Tolerances only: Purchaser accepts that it is of the nature of some processes that the final amount produced may vary. In consideration of this Purchaser accepts that a delivery tolerance of no more than ten percent (10%) may be supplied in fulfilment of the Contract where Seller has advised Purchaser in writing of this possibility. This is a maximum permitted value and Seller must use best efforts to ensure that the amount stipulated within the Contract is the amount actually delivered. All delivery and invoice documentation must reflect the actual delivered values.

12.4 All variations must be confirmed in writing.

  1. Indemnity

13.1 Seller shall indemnify Purchaser against any claims, liabilities, actions, damages, costs, losses and expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by Purchaser as a result of or in connection with:

13.1.1 any alleged or actual infringement by any of the Products or Services of any third-party Intellectual Property Right including but not limited to patents, copyright, trademarks, service marks, registered designs, design rights or other rights and Seller shall at its own cost defend or settle all such claims or actions and proceedings brought or threatened to be brought against Purchaser;

13.1.2 Seller’s failure to perform its obligations under the Contract; or

13.1.3 death, injury, loss or damage to persons or property caused or contributed to by the negligence of Seller or its employees, sub-suppliers (if permitted) or agents.

Seller accepts liability for all other loss or damage suffered by Purchaser and which is attributable to the negligence of Seller or its employees, sub-suppliers (if permitted) or agents or otherwise results from a breach of the Contract.

  1. Force Majeure

Neither party shall be liable to the other for any loss or damage which may be suffered by the other as a direct or indirect result of the performance of its obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond its reasonable control including but not limited to acts of God, war, riot, accident, fire, flood, storm, explosion, epidemic or government action, but expressly excluding lockout, strike, trade dispute or labour disturbance involving its own workforce.

  1. Licences
  • If the Products or Services supplied under the Contract require Purchaser to have any permit or licence from any commercial, governmental or other regulatory authority, the Contract shall be deemed conditional upon such permit or licence being granted at the required time. Seller warrants that it has all necessary permits and licences to allow it to sell the Products and Services to Purchaser.
  1. Termination

16.1 Either party may terminate the Contract with immediate effect by notice in writing in the following situations:

16.1.1 if the other party is in breach and, in the event the breach is capable of remedy, fails to remedy the breach within fourteen (14) days of being asked to do so in writing. If the breach cannot be remedied, the party not in breach may terminate the Contract immediately;

16.1.2 if the other party ceases or threatens to cease business, or commits an act of bankruptcy, or it or a third-party takes action for it to go into liquidation unless this is to reconstruct or merge the company or if an administrator, administrative receiver, receiver or manager is appointed for any part of its business;

16.1.3 if, in the reasonable opinion of one party, there occurs a material change in the financial position of the other party which is likely to affect such other party’s ability to perform its obligations under the Contract; or

16.1.4 if there is a change in control of the other party which in the reasonable opinion of the party terminating adversely affects the position, rights or interests of the party terminating.

16.2 Termination of a Contract shall not discharge either party from any existing obligation accrued due on or prior to the date of termination.

16.3 Purchaser may cancel a Contract at any time by notice in writing. It will pay for and accept delivery of all finished Products manufactured by Seller at the date of cancellation and shall pay Seller a fair and reasonable sum in respect of all work in progress at the date of cancellation subject to work in progress being transferred to Purchaser.

  1. Miscellaneous

17.1 All Intellectual Property Rights in the work carried out under the Contract are hereby assigned to and shall vest in Purchaser absolutely with full title guarantee and free of all third-party rights.

17.2 If any court or other competent authority finds that any provision, or part of any provision, of the Contract is invalid, illegal or unenforceable that provision, or part, shall, to the extent required be deemed to be deleted, and the validity and/or enforceability of the remaining provisions of the Contract shall not be affected.

17.3 If either party delays, forgets or chooses not to enforce their rights under the Contract it shall not affect their rights to do so at a later date. Should either wish to formally waive a right or remedy it shall not in any way restrict their exercise of any right or remedy at a future date.

17.4 The Contract is the entire agreement between the parties and may not be modified or amended unless agreed in writing by properly authorised representatives of both parties.

17.4 All notices must be in writing and sent to the postal address, fax number or email address set out in the Contract. They may be delivered by hand, by first class post, by facsimile or by email and all email notices are to be sent by an email client that has the facility to obtain “delivered” and “read” notifications from the email computer server of the other party, and shall be deemed to have been served:

if by hand, at time of delivery;

if by first class post, two (2) business days after posting;

if by facsimile, on the date printed on the facsimile advice note produced by the sender’s machine; and

If by email, at the date and time produced by the email “delivered” receipt.

17.5 Headings do not affect interpretation.

17.6 The Contract shall be governed and construed in accordance with the laws of the State of South Carolina. Any dispute or claim arising under the Contract, including non-contractual disputes or claims, shall be irrevocably subject to the exclusive jurisdiction of the state and federal courts of Greenville, SC.

Europe

SOFTBOX TERMS AND CONDITIONS OF SALE

 

  1. Interpretation
    • Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in London are open for business.

Conditions: the terms and conditions set out in this document [as amended from time to time in accordance with clause 13.3.

Contract: the contract between SBS and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from SBS.

Force Majeure Event: event / circumstance beyond a party’s reasonable control.

Goods: the goods (or any part of them) set out in the Order Acknowledgement.

Order: the Customer’s order for the Goods.

Order Acknowledgement: SBS’s written acknowledgement of an Order.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed by the Customer and SBS.

SBS: Softbox Systems Limited (registered in England and Wales with company number 03112875) whose registered office is at Unit 1 Ridge Way, Drake’s Drive, Long Crendon, Aylesbury, Bucks, HP18 9BF.

  • Interpretation:
  • A reference to writing or written includes emails.
  1. Basis of contract
    • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    • The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Order shall only be deemed to be accepted when SBS issues an Order Acknowledgement, at which point the Contract shall come into existence.
    • Any samples, drawings or advertising produced by SBS and any descriptions or illustrations contained in SBS’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
    • A quotation for Goods given by SBS shall not constitute an offer. A quotation shall only be valid for [20] Business Days from its date of issue.
  2. Goods
    • Test results for the Goods shown in SBS documents, marketing materials or other communications (Results) illustrate the performance of the Goods under precisely controlled packing and testing conditions in an environmental chamber. The temperature profiles used for testing are designed to simulate fluctuations in ambient temperature experienced during live shipping. However, as SBS has no control for what may happen during a live shipment, no liability will be accepted for any temperature excursions, resultant loss of Goods or compensation claim that may result from the failure of the Goods to perform in line with the Results.
    • SBS shall have no liability in respect of any variation in the dimensions of the Goods where such variation comes within the bounds of agreed tolerances.
    • The colour of the Goods is subject to reasonable variation.
    • To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify SBS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by SBS in connection with any claim made against SBS for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with SBS’s use of the Specification. This clause 3.4 shall survive termination of the Contract.
    • SBS reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
  3. Delivery
    • The Goods will be delivered in accordance with the Incoterms ® 2010 rule stated in the Order Acknowledgement, which is incorporated into the Contract.
    • Any dates or periods of time quoted for delivery are approximate only, and the time of delivery is not of the essence. Any stipulated period of time for delivery shall date from the issue of the Order SBS shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide SBS with adequate delivery instructions or any other instructions relevant to the supply of the Goods.
    • Customer shall have five (5) days after receipt of goods and services to reject such goods and services, and to make a claim for shortage.
    • If SBS fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. SBS shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide SBS with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    • If SBS delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
    • SBS may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  4. Quality
    • SBS warrants that on delivery the Goods shall:
      • conform in all material respects with the Specification; and
      • be free from material defects in design, material and workmanship.
    • Subject to clause 5.3, if:
      • the Customer gives notice in writing to SBS within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
      • SBS is given a reasonable opportunity of examining such Goods; and
      • the Customer (if asked to do so by SBS) returns such Goods to SBS’s place of business at the Customer’s cost,

SBS shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

  • SBS shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
    • the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
    • the defect arises because the Customer failed to follow SBS’s oral / written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
    • the defect arises as a result of SBS following any drawing, design or Specification supplied by the Customer;
    • the Customer alters or repairs such Goods without written consent of SBS;
    • the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
    • the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  • Except as provided in this clause 5, SBS shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty per 5.1.
  • The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 are, to the fullest extent permitted by law, excluded from the Contract.
  • These Conditions shall apply to any repaired or replacement Goods supplied by SBS.
  1. Title and risk
    • The risk in the Goods shall pass to the Customer in accordance with the relevant Incoterms ® 2010 rule.
    • Title to Goods shall not pass to the Customer until SBS receives payment in full (in cash / cleared funds) for the Goods and any other goods that SBS has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
    • Until title to the Goods has passed to the Customer, the Customer shall:
      • store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as SBS’s property;
      • not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      • maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      • notify SBS immediately if it becomes subject to any of the events listed in clause 10.1; and
      • give SBS such information relating to the Goods as SBS may require from time to time.
    • Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before SBS receives payment for the Goods. However, if the Customer resells the Goods before that time:
      • it does so as principal and not as SBS’s agent; and
      • title to the Goods shall pass from SBS to the Customer immediately before the time at which resale by the Customer occurs.
    • If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 8.1, then, without limiting any other right or remedy SBS may have:
      • the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
      • SBS may at any time:
        • require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
        • if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored to recover them.
  1. Intellectual Property Rights
    • If the Goods are to be manufactured or any process is to be applied to the Goods by SBS in accordance with a specification or design submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of SBS) indemnify SBS in full against any loss, costs, damages, charges, expenses and other liabilities suffered by SBS as a result of or in connection with:
      • any allegation relating to infringement of any patents, copyright, trademarks and service marks, rights in designs, database rights, rights to use or any other intellectual property rights of any kind of any person, firm or company and/or passing off and/or unauthorised sue of confidential information which results from SBS’s use of the Customer’s specification or design; and/or
      • any other liability of any kind to any third party including without limitation for defective goods, personal injury or death to the extent that it arises from the Customer’s specification or design.
    • The price of the Goods shall be the price set out in the Order Acknowledgement (Price). The Price applies solely to the quantity of Goods ordered and must not be taken to apply to any subsequent order for any lessor quantity of the Goods.
    • SBS may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
      • any factor beyond SBS’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      • any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
      • any delay caused by any instructions of the Customer or failure of the Customer to give SBS adequate or accurate information or instructions.
    • The price of the Goods excludes amounts in respect of value added tax (VAT), which the Customer shall additionally be liable to pay to SBS at the prevailing rate, subject to the receipt of a valid VAT invoice.
    • SBS may invoice the Customer for the Goods on or at any time after the completion of delivery.
    • The Customer shall pay the invoice in full and in cleared funds in accordance with the payment terms and to the bank account stated in the Order Acknowledgement. Time for payment is of the essence.
    • If the Customer fails to make any payment due to SBS under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
    • The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). SBS may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by SBS to the Customer.
  2. Cancellation
    • Except as provided in these Conditions, no Order shall be cancelled except by mutual consent. SBS will not consent to cancellation if processing of the Goods has commenced, special stock has been purchased or manufactured for the Order, Goods have been assembled for loading, loading has commenced or the Goods are in transit.
  3. Termination
    • Without limiting its other rights or remedies, SBS may terminate this Contract with immediate effect by giving written notice to the Customer if:
      • the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
      • the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      • the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
      • the Customer’s financial position deteriorates to such an extent that in SBS’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    • Without limiting its other rights or remedies, SBS may suspend provision of the Goods under the Contract or any other contract between the Customer and SBS if the Customer becomes subject to any of the events listed in clause 10.1(a) to clause 10.1(d), or SBS reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
    • Without limiting its other rights or remedies, SBS may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date.
    • On termination of the Contract for any reason the Customer shall immediately pay to SBS all of SBS’s outstanding unpaid invoices and interest.
    • Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in force.
  4. Limitation of liability
    • Nothing in these Conditions shall limit or exclude SBS’s liability for:
      • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      • fraud or fraudulent misrepresentation; or
      • breach of the terms implied by section 12 of the Sale of Goods Act 1979.
    • Subject to clause 10.1:
      • SBS shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
      • SBS’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
  1. Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for more than three months, SBS may terminate this Contract with immediate effect by giving written notice to the affected party.

  1. General
    • Assignment and other dealings.
      • SBS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its contractual rights or obligations.
      • The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its contractual rights or obligations without the prior written consent of SBS.
    • Entire agreement.
      • This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    • No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
      • Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
      • A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 13.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
      • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    • Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
    • Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of England and Wales.
    • Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
  2. How We Use Your Personal Information (Data Protection)
    • All personal information that we may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and your rights under the GDPR.
    • For complete details of our collection, processing, storage and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to our Privacy Note available upon request from Unit 1, Ridge Way, Drakes Drive, Long Crendon, Aylesbury, Buckinghamshire, HP18 9BF, United Kingdom.

 

July 2022

Softbox Systems Limited – Terms and Conditions of Purchase

 

 

  1. Definitions

In these Conditions the following expressions have the following meanings:
“Purchaser” means Softbox Systems Limited (SBS) or any of its subsidiary or affiliate companies;
“Conditions” mean these terms and conditions for the purchase of Products and/or Services which are incorporated into and form part of the Contract;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“SBS Issued Material” means any property, materials, specifications or data issued to Seller by Purchaser to be used in fulfilment of Seller’s obligations under the Contract;

“Products” mean the products, goods or items which are the subject of the Contract;

“Purchase Order” means Purchaser’s order for Products and/or Services as set out in the purchase order, which may without limitation include statements of work, specifications or similar;

“Seller” means the person, firm or company referred to on the face of the Purchase Order with whom the Contract is made by Purchaser;

“Services” means the services which are to be provided by Seller under the Contract as set out in the Purchase Order;

“Contract” means the agreement (contract) between Seller and Purchaser for the supply of the Products and/or Services.

  1. Application
  • The Purchase Order constitutes an offer by Purchaser to purchase Products and/or Services from Seller in accordance with these Conditions. The Purchase Order shall be deemed to be accepted on the earlier of Seller issuing written acceptance of the Purchase Order or any act by Seller consistent with fulfilling the Purchase Order, at which point and on which date the Contract shall come into existence. These Conditions shall apply to the Contract to the exclusion of any terms that Seller seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No terms or conditions endorsed on, delivered with, or contained in Seller’s quotation, sales conditions, order confirmation or acknowledgement, specification, invoice or other document shall form part of the Contract except to the extent that Purchaser otherwise agrees in writing. All of these Conditions shall apply to the supply of both Products and Services except where the application to one or the other is specified.
  1. Quality and Description

3.1 All Products shall:

3.1.1 conform to the quantity, quality, description and any other particulars contained in the Purchase Order or the Contract;

3.1.2 correspond with any sample, drawing, description and specification furnished;

3.1.3 be of satisfactory quality (as defined in the Sale of Goods Act 1979, as amended), fit for any intended use expressly or impliedly made known to Seller;

3.1.4 be free from defects in design, materials and workmanship and remain so for twelve (12) months from delivery; and

3.1.5 comply with all performance specifications included in the Purchase Order.

3.2 All Services shall (i) be provided in full accordance with the terms of the Contract and applicable Purchase Order, (ii) be performed in a proper and skilful manner with the best care and diligence by properly qualified and experienced personnel and (iii) conform to the best industry standards.

Testing, inspection and/or acceptance by Purchaser or end user under Clause 5 shall not be deemed a waiver of Seller’s obligations under this Clause 3. This Clause 3 shall include and apply to any replacement, repaired, substituted or remedial Products or substituted or remedial Services provided by Seller.

  1. Statutory Obligations

4.1 Seller shall comply with all relevant statutes, rules and regulations, by-laws and, if applicable European Union directives’ affecting its obligations and the performance of the Contract.

4.2 Whilst on Purchaser’s premises, Seller shall abide by any written or verbal instructions in relation to safety and security issued by Purchaser.

  1. Inspection and Rejection

5.1 Seller warrants that it has inspected and tested the Products for compliance with the Contract prior to delivery and shall, if requested, supply Purchaser with certificates of origin and/or testing. Such certificates must state the Purchase Order number together with any Product item numbers detailed within the Purchase Order

5.2 If the Products and/or Services do not comply with the Purchase Order, Purchaser shall within a reasonable time give notice of rejection to Seller and without prejudice to any of its other rights, Purchaser may in its discretion require Seller to comply with the Contract by expeditiously replacing or repairing as appropriate any rejected Products and replacing or otherwise correcting or re-performing any rejected Services. The rejected Products shall be returned to Seller at Seller’s risk and expense.

5.3 Any reference to Seller in this clause includes any affiliate or sub-contractor of Seller. Where Seller repairs, replaces or re-performs any Products or Services pursuant to this Clause 5, the Conditions shall apply to the repaired, replaced or re-performed Products or Services.

5.4 Purchaser reserves the right at reasonable times on reasonable prior written notice to inspect or test the Products or the Services at any stage before delivery and Seller shall give rights of access to its premises and such facilities as Purchaser may reasonably require for such inspection.

  1. Delivery and Risk

6.1 Products and Services shall be delivered on the dates and at the rates and at the places specified in the Purchase Order. Delivery may be direct to Purchaser’s end user if so specified on the Purchase Order. Purchaser acting reasonably may delay or alter such dates, rates and places by giving Seller reasonable notice in writing of such alterations.

6.2 Time of delivery is of the essence for the Contract.

6.3 Seller shall ensure that all Products are marked in accordance with the provisions of the Contract and any instructions issued by Purchaser. Products shall be packed so as to reach the places of delivery undamaged and in good condition. Seller shall provide in respect of each shipment of Products a packaging note detailing the applicable Purchase Order number, description, code number (if any) and the quantity of Products shipped.

6.4 If Seller fails to deliver in accordance with the Contract, then Purchaser may cancel the Contract or any part of it and reserves all rights in damages and otherwise arising including but not limited to the right to purchase substitute Products or Services elsewhere and to hold Seller liable for any loss, expense or additional cost incurred.

6.5 Risk of loss to the Products passes to Purchaser on delivery to the location specified in the applicable Purchase Order without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6.

6.6 Any of Seller’s property brought onto Purchaser’s premises will be at and will remain at risk of Seller.

6.7 Any SBS Issued Material or material issued by a manufacturing partner will be at Seller’s risk whilst in Seller’s possession and/or control.

  1. Title

Seller warrants that it has good title to the Products it is selling to Purchaser. Title to Products shall pass to Purchaser on delivery to Purchaser or collection by Purchaser from Seller’s point of dispatch without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6. Seller acknowledges that the Products or Services may be sold on to an end user by Purchaser and warrants that Purchaser will be able to supply the end user with good title.

  1. Prices
  • All prices shall be as stated in the Contract. The prices are fixed and include delivery and all other charges which shall not be adjusted, excepting where the Contract expressly specifies otherwise, and save as provided for in these Conditions.

8.2 Prices do not include VAT or sales tax which shall be added by Seller at the rate and in the manner from time to time prescribed by law.

  1. Payment
  • Seller shall send to Purchaser a detailed invoice referencing the applicable Purchase Order (including Purchase Order number), packaging note and date of delivery, together with any Products or Services reference number. Terms of payment are as stated on the front of the Purchase Order.
  1. Confidentiality

10.1 Seller shall keep in strict confidence all SBS Issued Materials, Purchase Order, technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Seller by Purchaser, its affiliates, employees, agents or subcontractors, and any other confidential information concerning Purchaser’s business, its products and services which Seller may obtain. Seller shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging its obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. Seller may also disclose such of Purchaser’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

10.2 Seller shall not, without Purchaser’s written consent, advertise or otherwise make known that Seller supplies or has supplied Products or Services to Purchaser.

  1. Equipment and other Facilities

All SBS Issued Material shall be and remain the property of Purchaser. Seller hereby undertakes to maintain SBS Issued Material in good order and condition, to keep it separate from Seller’s property and to identify it as the property of Purchaser. Seller shall not use SBS Issued Material except in respect of Contracts with Purchaser. Risk in SBS Issued Material shall be with Seller who shall procure comprehensive insurance against all risks of its loss or damage of an amount equal to its replacement cost with Purchaser’s interest noted on the policy and with Purchaser named as loss payee.

  1. Variation of Goods/Services

12.1 If at any time during the term of the Contract, Purchaser wishes to vary the Services and/or Products ordered, it shall notify Seller in writing and Seller shall, within two (2) business days provide a written statement of the amount by which such variation would increase or decrease:

  1. a) the dates, timescales or milestones, and
  2. b) the charges;

which have been agreed in the Contract, and such other information as Purchaser may reasonably require.

12.2 The implementation of any variation to the Services and/or Products shall be subject to the agreement of the parties. Seller shall not undertake any such variations unless specifically instructed to do so by Purchaser.

12.3 Delivery Tolerances only: Purchaser accepts that it is of the nature of some processes that the final amount produced may vary. In consideration of this Purchaser accepts that a delivery tolerance of no more than ten percent (10%) may be supplied in fulfilment of the Contract where Seller has advised Purchaser in writing of this possibility. This is a maximum permitted value and Seller must use best efforts to ensure that the amount stipulated within the Contract is the amount actually delivered. All delivery and invoice documentation must reflect the actual delivered values.

12.4 All variations must be confirmed in writing.

  1. Indemnity

13.1 Seller shall indemnify Purchaser against any claims, liabilities, actions, damages, costs, losses and expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by Purchaser as a result of or in connection with:

13.1.1 any alleged or actual infringement by any of the Products or Services of any third-party Intellectual Property Right including but not limited to patents, copyright, trademarks, service marks, registered designs, design rights or other rights and Seller shall at its own cost defend or settle all such claims or actions and proceedings brought or threatened to be brought against Purchaser;

13.1.2 Seller’s failure to perform its obligations under the Contract; or

13.1.3 death, injury, loss or damage to persons or property caused or contributed to by the negligence of Seller or its employees, sub-suppliers (if permitted) or agents.

Seller accepts liability for all other loss or damage suffered by Purchaser and which is attributable to the negligence of Seller or its employees, sub-suppliers (if permitted) or agents or otherwise results from a breach of the Contract.

  1. Force Majeure

Neither party shall be liable to the other for any loss or damage which may be suffered by the other as a direct or indirect result of the performance of its obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond its reasonable control including but not limited to acts of God, war, riot, accident, fire, flood, storm, explosion, epidemic or government action, but expressly excluding lockout, strike, trade dispute or labour disturbance involving its own workforce.

  1. Licences
  • If the Products or Services supplied under the Contract require Purchaser to have any permit or licence from any commercial, governmental or other regulatory authority, the Contract shall be deemed conditional upon such permit or licence being granted at the required time. Seller warrants that it has all necessary permits and licences to allow it to sell the Products and Services to Purchaser.
  1. Termination

16.1 Either party may terminate the Contract with immediate effect by notice in writing in the following situations:

16.1.1 if the other party is in breach and, in the event the breach is capable of remedy, fails to remedy the breach within fourteen (14) days of being asked to do so in writing. If the breach cannot be remedied, the party not in breach may terminate the Contract immediately;

16.1.2 if the other party ceases or threatens to cease business, or commits an act of bankruptcy, or it or a third-party takes action for it to go into liquidation unless this is to reconstruct or merge the company or if an administrator, administrative receiver, receiver or manager is appointed for any part of its business;

16.1.3 if, in the reasonable opinion of one party, there occurs a material change in the financial position of the other party which is likely to affect such other party’s ability to perform its obligations under the Contract; or

16.1.4 if there is a change in control of the other party which in the reasonable opinion of the party terminating adversely affects the position, rights or interests of the party terminating.

16.2 Termination of a Contract shall not discharge either party from any existing obligation accrued due on or prior to the date of termination.

16.3 Purchaser may cancel a Contract at any time by notice in writing. It will pay for and accept delivery of all finished Products manufactured by Seller at the date of cancellation and shall pay Seller a fair and reasonable sum in respect of all work in progress at the date of cancellation subject to work in progress being transferred to Purchaser.

  1. Miscellaneous

17.1 All Intellectual Property Rights in the work carried out under the Contract are hereby assigned to and shall vest in Purchaser absolutely with full title guarantee and free of all third-party rights.

17.2 If any court or other competent authority finds that any provision, or part of any provision, of the Contract is invalid, illegal or unenforceable that provision, or part, shall, to the extent required be deemed to be deleted, and the validity and/or enforceability of the remaining provisions of the Contract shall not be affected.

17.3 If either party delays, forgets or chooses not to enforce their rights under the Contract it shall not affect their rights to do so at a later date. Should either wish to formally waive a right or remedy it shall not in any way restrict their exercise of any right or remedy at a future date.

17.4 The Contract is the entire agreement between the parties and may not be modified or amended unless agreed in writing by properly authorised representatives of both parties.

17.4 All notices must be in writing and sent to the postal address, fax number or email address set out in the Contract. They may be delivered by hand, by first class post, by facsimile or by email and all email notices are to be sent by an email client that has the facility to obtain “delivered” and “read” notifications from the email computer server of the other party, and shall be deemed to have been served:

if by hand, at time of delivery;

if by first class post, two (2) business days after posting;

if by facsimile, on the date printed on the facsimile advice note produced by the sender’s machine; and

If by email, at the date and time produced by the email “delivered” receipt.

17.5 Headings do not affect interpretation.

17.6 The Contract shall be governed and construed in accordance with English law and the parties agree to submit to the exclusive jurisdiction of the English Courts. Any dispute or claim arising under the Contract, including non-contractual disputes or claims, shall be irrevocably subject to the exclusive jurisdiction of the courts of England and Wales.

SALES TERMS AND CONDITIONS

The following sales terms and conditions (the “Terms”) govern all contractual relationships between Tempack Packaging Solutions, S.L (the “Vendor”) and its customers (the “Vendee”) resulting from the sales of Products by Vendor to Vendee in terms of orders placed by the latter and accepted by the Vendor (the “Order”).
The Vendee hereby accepts the Sales Terms and Conditions when placing the Order of Products with the Vendor, declares to have previously read their content, either in the document provided by the Vendor, or the Terms available on the website www.tempack.com The Products purchase Orders shall be governed by the Sales Terms and Conditions and shall be completed, when applicable, by the specific terms and conditions, which could be concluded by the Vendor and the Vendee. The aforementioned specific terms and conditions prevail over the Sales Terms and Conditions provided that an explicit written consent of the Vendor has been issued.

1. Product selection and order acceptance
1.1 The Purchaser is solely responsible for the selection of the product under the sale (the “Product”), and of the use or function given thereto. Therefore, the Seller is not responsible and does not guarantee that the Product is suitable for any technical applications intended by the Purchaser, or to achieve, in whole or in part, the objectives set for the Product at the time of purchase thereof.
1.2 The Vendee shall issue a written version of the Purchase orders (hand-written, via fax or email), specifying the type of Products, quantity and requested delivery date; as well as a reference of the Vendor, if applicable.
1.3 The Order shall be accepted by the Vendor for the sales agreement to be deemed concluded and legally binding. In 7 days following the reception of the Order, the Vendor shall inform the Vendee about his acknowledgement.
1.4 Once the order is acknowledged by the Vendor, it shall only be cancelled by the Vendee with a prior written consent of the Vendor, in which case the latter shall deduce of any sum of prepay or deposit paid by the Vendee, all the inherent loss, cost, damage, charge and fees, directly and indirectly, as a result of the aforementioned cancellation (the “Losses”) and shall reimburse the remaining balance (if applicable) to the Vendee. If the losses are greater than the amount of the prepay or of the deposit paid to the Vendor (or if deposit was not paid), the Vendee shall compensate the Vendor for all the Losses, which become due at Vendor’s request.

2. Delivery
2.1 The Vendor shall deliver the Products in accordance with the INCOTERM EX WORKS (EXW).
2.2 The title and risk on the Products shall be transferred onto the Vendee upon provision of the Products by the Vendor in the place and according to conditions agreed upon, except for agreed special conditions. If the Products are to be collected by the Vendee, the Vendor shall provide him a notification containing the hour, date and place of the collection and the Vendee shall collect the Products within a deadline of three days following the date specified on the aforementioned notification.
2.3 The Seller may deliver the Products in different instalments. Products to be delivered within a specified instalment may be withheld until any overdue invoices corresponding to previous instalments are fully paid.
2.4 Shall the Vendee refuse the delivery of the Products, being in compliance with the agreed delivery schedule; or if the Vendor cannot deliver the Products due to a lack of sufficient or clear instructions from the Vendee, it is deemed that the risk of products has been transferred onto the Vendee and that the Products have been successfully delivered. In such circumstances, the Seller may store or arrange storage of the Products and charge the Purchaser for any costs and expenses (including insurance) incurred for this reason, the Seller may also proceed to sell the Products after fifteen days from failure of acceptance of delivery, and shall deduct any amounts owed by the Purchaser and repay any excess to the Purchaser.
2.5 Dispatch and delivery times shall be counted from the acceptance of the purchase order and are indicative only. The Purchaser shall not be entitled to any compensation for any delays in delivery. In the case of instalments, if the Purchaser continues to fail collection of the Products, the Seller may terminate the contract by consequently cancelling the pending part of the purchase order. Internal reasons of the Seller involving strokes, suspension or temporary reduction of production shall entitle to extensions for a time equal to their duration, but may not be invoked by the parties as a reason of cancellation of purchase orders, except in cases of force majeure.

3. Force majeure
In cases of force majeure impeding the manufacture or delivery of the goods, the Seller shall be entitled to delay delivery and, if the causes persist for more than a month, to cancel orders without liability for damages in any case. Force majeure cases shall include: strikes, lack of transportation, accidents in factories, fire, and, in general, any cause beyond the Seller’s will.

4. Price and payment
4.1 The price of Products being purchased shall be specified in the Order and shall not include VAT or any other applicable tax or surcharge tax, which will be added to the price upon the issue of corresponding invoice. Before placing an order, the Vendee can check the prices or request a list containing current prices for the Products being purchased.
4.2 The Vendee shall pay the purchase price within a 30 day deadline from the Vendor invoice is issued, except if the Order was placed with a different deadline.
4.3 The Seller may invoice the Purchaser for the amount due corresponding to the Products at any time after delivery of the Products. Products delivered in instalments shall be invoiced at the time that each delivery is made. If the delivery of the Products is postponed or delayed for reasons attributable to the Purchaser, the Seller shall be entitled to invoice the Purchaser at any time after the Products are ready for delivery.
4.4 The Purchaser shall make payments in full, in authorized funds, without any deduction, compensation, discount or reduction. All payments shall be made in Euros, unless otherwise agreed by the parties. If the Purchaser is located outside of Spain, the Seller may require that the price be satisfied through special payment methods such as letters of credit or other agreements relating to the collection of payment. The Seller may allocate any payment made by the Purchaser to pay the outstanding bills.
4.5 The time of payment shall be essential. If the Purchaser fails to fulfill payment obligations, he/she shall indemnify the Seller for any eventual expenses and legal costs incurred to recover sums due, without prejudice to any other rights or remedies that the Seller may be entitled to under legal provisions.

5. Claims
Only claims received by letter or certified fax with a return receipt shall be admitted. The deadline for claims shall be within: (a) five days (counting from the arrival of the goods to the destination specified by the Purchaser): when there is non-conformity with the delivery and the order in terms of quality or quantity,
(b) ten days (counting from the arrival of the goods to the destination specified by the Purchaser), and always before use of the goods: when the defect or irregularity cannot be detected by a simple examination or basic verification;
(c) three months (counting from the arrival of the goods at the destination specified by Purchaser): when the defect or irregularity is not detectable (or it may only be detected after deep examination or testing). The finding of a defect that affects only a part of the goods delivered shall not entitle the Purchaser not to fulfill his/her payment obligation of the entirety of goods within the deadline, and shall not motivate complete refusal thereof.

6. Guarantee
6.1 The Vendor guarantees quality and proper functioning of the Products for the specific purposes that they serve, for a period of three (3) months from the delivery date.
This guarantee does not include cases where: (i) the product is damaged due to careless handling, contrary to the safety standards or product techniques, inadequate monitoring or any negligence from the Purchaser; (ii) flaws and/or defects caused by faulty management and/or assembly or installation by the Purchaser or by reason of alterations or repair carried out without following the instructions provided by the Seller, if applicable; (iii) defects caused by materials, fluids, energy or services used by the Purchaser, or caused by a design imposed by the Purchaser, and (iv) failure caused by fortuitous events, force majeure (weather or geological phenomena) and disasters or other natural catastrophes.
6.2 If any Product fails to conform to the provisions of the first paragraph of clause 6.1 above, the Purchaser may opt to have the Seller repair or replace the Product(s) in question, or, reimburse the price of the defective Product(s). Whenever requested by the Seller, the Purchaser, on his behalf, shall return the defective Product(s).

7. Liability
7.1 The Seller shall only be liable to the Purchaser for fraud or gross negligence and only in relation to eventual direct economic damages suffered by the Purchaser.
7.2 The Seller shall not provide any guarantees other than that specified in Clause 6 above, all other guarantees and liabilities provided for under applicable law are totally excluded from the Agreement or to the maximum extent permitted by law.
7.3 In conformity with the conditions set forth in Articles 7.1 and 7.2 hereto, the total responsibility of the Vendor, contractual or extra-contractual (including serious negligence or failure to comply with a legal duty), arising from this Agreement, shall be limited to the quantity corresponding to the relevant price of the Product Order causing the damage (excluding VAT).
7.4 The Seller shall not be liable to the Purchaser for any damage or indirect or consequential damages (whether for loss of profits, loss of business, decreased clientele or otherwise), costs, expenses, third party claims and other claims for indirect damages (regardless of the causes that motivate the claims) arising out of this Agreement or in connection therewith.

8. Risk, property and ownership retention
8.1 Without prejudice to Clause 2.2 above, the risk shall be transferred to the Purchaser upon delivery of the Products. Ownership of the Products shall not be transferred to the Purchaser until the Seller has received full payment of the invoice. Until ownership of the Products is transmitted, the Purchaser shall keep the same in trust, as trustee of the Seller. The Purchaser is not entitled to demand any payment to the Seller for such deposit.
8.2 The Seller is entitled to demand payment of the Products, regardless of whether ownership thereof has been transferred or not.

9. Law and jurisdiction
These Sales Terms and Conditions shall be governed and interpreted according to the Spanish Law, excluding the 1980 Vienne Convention on Contracts for the International Sale of Goods. Any litigious dispute, which fails to be settled amicably within a deadline of 30 days, shall fall into exclusive competence of the Tribunals of Barcelona.

10. Privacy Policy
The Seller will enter the personal data provided by the Purchaser through forms, on-line applications, product orders or services or through any other form into the Client archive, as well as data of the Purchaser obtained through common files of delinquency and creditworthiness or any other legitimate means.
The Seller undertakes to adopt the necessary measures to ensure the confidentiality of such data and avoid their alteration, loss, treatment or unauthorized access in accordance with the provisions of applicable law measures. A Purchaser who has data registered in the Seller’s Client archive may exercise at any time the right to access, rectify and, where appropriate, cancel any personal data provided to the Seller, through a written request addressed to Tempack Packaging Solutions, S.L. el Prat de Llobregat (Barcelona), Av. Verge de Montserrat No. 2. Information collected may be used to communicate via e-mail, any incidents, Purchase Orders or changes to the Purchaser. At any time that the Purchaser provides his/her e-mail address for the first time to the Seller, the Purchaser has the ability to declare not to receive such information.
The Seller will also include in its e-mail messages instructions on how to unsubscribe, in case the Purchaser later decides not to receive further e-mails or business contacts.
The Purchaser expressly authorizes the entity to transfer the data included in said archive, to the group’s entities for purposes directly related to the functions for which they were requested.

11. Language
These Terms are also available in English, French, and German. In case of discrepancy, the Spanish version shall prevail

MAINLAND CHINA

销售条款和条件

TERMS AND CONDITIONS OF SALE

 

以下是上海铝图保温材料有限公司,一家中华人民共和国(“中国”,为本条款之目的不包括香港、澳门和台湾)成立的有限责任公司(”卖方”),的销售条款和条件(”条款”)。根据本条款,卖方同意出售且买方(”买方”)同意购买商品。买方接收卖方商品推定为买方同意本条款。

The following are the terms and conditions (“Terms”) pursuant to which Softbox Systems China Co., Ltd. a limited liability company incorporated under the law of People’s Republic of China (“PRC”, for the purpose of these Terms, excluding Hong Kong, Macau and Taiwan) (“Seller”), agrees to sell and the buyer (“Buyer”) agrees to purchase goods.  Buyer’s assent to these Terms shall be implied from Buyer’s acceptance of any or all goods ordered from Seller.

  1. 1. 总则 本条款和所附账单,构成了买方和卖方之间的全部的意思表示,卖方不容易任何附加或不同的条款。本条款也适用于根据卖方的订单号出具的任何订单变更,除非变更订单明确说明本条款不适用。除非卖方和买方以书面形式修改本条款,否则本条款的任何修改或变更都不具有约束力。

General.  These Terms and the attached invoice, constitute the entire understanding between Buyer and Seller and Seller objects to any additional or different terms.  These Terms also apply to any change orders issued under Seller’s order number except as expressly stated on the face thereof.  No modifications or changes to these Terms shall be valid or binding unless Seller and Buyer agree to such modifications in writing.

  1. 2. 装运和交付 除非账单上另有具体说明,否则买方必须支付运费,这已包括在账单上所列的价格中。 卖方不对运输过程中的延误、损失或损坏负责。买方应在收到商品和服务后的五(5)天内拒收这些商品和服务,并对短缺情况提出索赔。买方应以书面形式提出拒收,并说明拒绝的理由。  拒收后,所有货物必须以合理的方式保管,并保持完好无损,直到卖方或卖方的代理人重新进行检查。  如果买方未能按照本条款的规定通知卖方其拒收,则应视为买方已接受所有商品和服务。买方承认并同意,本第2条中规定的补救措施是买方对不合格商品的唯一补救措施。

Shipment and DeliveryUnless otherwise specifically indicated on an invoice, Buyer must pay for freight and shipping, which is included in the price listed on the invoice.  Seller shall not be liable for delays, loss or damage in transit. Buyer shall have five (5) days after receipt of goods and services to reject such goods and services, and to make a claim for shortage.  Buyer’s rejection shall be in writing and state Buyer’s reason for rejection.  Upon rejection, all goods must be held with reasonable care and intact until re-inspection by Seller or Seller’s agent is made.  Buyer shall be deemed to have accepted all goods and services if Buyer fails to notify Seller of its rejection as set forth herein. Buyer acknowledges and agrees that the remedies set forth in this provision are Buyer’s exclusive remedy for non-conforming goods.

  1. 3. 付款条款 付款条款应在卖方发送给买方的账单上列明。除非法律禁止,否则对于未在账单规定时间内收到的付款,应每月收取应付未付总额的百分之一点五(5%)的利息作为违约金。如果法律禁止上述做法,则应向买方收取法律允许的最高金额。接受利息不应视为卖方放弃因买方不付款而可能拥有的任何权利。

Terms of Payment.  Terms of payment shall be set forth on the invoice Seller sends to Buyer.  Unless prohibited by law, a late payment interest of one and one half percent (1.5%) of the total amount due shall be charged each month as liquidated damages on the open account for payments not received within the time specified in the invoice.  If the foregoing is prohibited by law, there shall be charged to Buyer on account of such payments the maximum amount permitted by law.  Acceptance of this  late payment interest shall not be deemed a waiver of any rights Seller may have by reason of non-payment by Buyer.

  1. 4. 履约保证 即使买方根据任何合同支付部分款项后,卖方仍保留权利,要求买方提供充分的保证或担保,以确保买方任何和所有的义务得到充分履行。如果买方拒绝提供这种保证或担保或买方未能履行其在本合同或任何其他现有合同下的任何义务,卖方有权,在不通知买方的情况下,暂停发货或取消合同、或取消可能尚未执行的部分合同,卖方不承担由此产生的任何责任,并且不影响卖方拥有的主张任何损害赔偿或其他救济措施的权利。

Assurance of PerformanceSeller reserves the right even after partial payment on account of any contract with Buyer to demand from Buyer adequate assurances or security for the due performance for any and all of the obligations of Buyer and refusal to furnish such adequate assurance or security or the failure of Buyer to perform any of its obligations under this or any other existing contract will entitle Seller, without notice to Buyer, to suspend shipments or cancel a contract or so much of it as may remain unexecuted, all without incurring liability to Seller and without prejudice to any claim for damages or other remedy Seller may be entitled to make.

  1. 5. 保证和间接损害赔偿 卖方不对商品做出任何形式的陈述或保证,无论是通过法律的明示或暗示、交易过程、履约过程、贸易惯例或其他方式,包括对适销性和特定用途的适用性的暗示保证,但以下情况除外。  (a) 如果是加工买方自己的商品,卖方保证对待运商品的所有权不受影响;以及 (b) 卖方保证在装运时,待运商品应符合订购和账单上的商品或加工的描述、等级和条件。  买方同意,卖方在任何情况下都不对间接或偶然的损害负责,并且卖方在本条款中所产生的责任只限于对有缺陷的商品进行更换或维修,由卖方选择。在更换丢失、损坏或有缺陷的商品时,卖方可以补偿买方的商品成本,但不补偿使商品符合制造规格或成套规格的费用,也不补偿商品的拆除、安装或运输费用。在向买方交付此类商品或服务超过一(1)年后,不得对任何违反保证的行为提起诉讼。卖方不负责在这些商品的预期使用寿命结束后对其进行处置或回收。买方同意,如果其客户、最终用户和/或其他第三方因任何原因和在任何情况下遭受伤害、损害或损失,无论是否由于商品以任何方式出现故障,也无论是否可预见,买方都应独自负责并承担相应责任。买方应赔偿卖方和卖方的董事、管理人员、雇员和/或其他代表,使其免受任何第三方(包括买方客户和商品的最终用户)提出的任何和所有索赔,无论何时何地,只要这些索赔是由商品(包括包装、设计、材料和/或制造)引起的,或由买方或最终用户或第三方对商品的采购、运输、储存、处理、组装、使用和/或滥用、营销、转售和/或任何其他行为引起的。买方同意,上述赔偿的范围应包括任何形式的损害赔偿,包括但不限于直接、间接、补偿性、特殊、附带、惩罚性或后果性损害,以及为防止此类索赔所产生的任何费用,包括但不限于法律成本和费用、律师费、以及合理的差旅费用,包括但不限于交通工具、食宿和合理的附带费用。 买方还同意赔偿卖方并使其免于承担与执行商品召回或其他纠正性处置有关的任何和所有费用,无论是自愿的还是为了遵守任何有权处理此类事项的实体发出的命令,包括但不限于修复、更换和/或恢复商品和/或通知任何和所有受影响的客户、最终用户和其他第三方的所有费用。

Warranties and Consequential DamagesSELLER MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WITH RESPECT TO THE GOODS, EITHER EXPRESSED OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EXCEPT FOR THE FOLLOWING:  (a) unless Buyer’s own goods are being processed, Seller warrants unencumbered title to the goods to be shipped; and (b) Seller warrants that at the time of shipment the goods to be shipped shall conform to the description, grade and condition of goods or processing ordered and invoiced.  Buyer agrees that Seller shall not be liable under any circumstances for consequential or incidental damages, and that Seller’s liability arising out of these Terms is limited solely and exclusively to, at Seller’s option, the replacement or repair of defective goods.  When replacing lost, damaged, or defective goods, Seller may reimburse Buyer for the cost of goods, without compensation for conforming the goods to manufacturing specifications or specifications of a set and without compensation for removal, installation or transportation of goods.  No action for any breach of warranty shall be brought more than one (1) year after delivery of such goods or services to Buyer.  Seller is not responsible for disposal of, or recycling of these goods after their intended useful life.  Buyer agrees that it shall be solely responsible and liable to its customers, end users and/or other third-parties in the event of injury, harm or damages suffered by any of them, for any reason and under any circumstance, whether or not due to failure of the goods in any manner, and whether foreseeable or unforeseeable.  Buyer shall indemnify and hold harmless Seller and Seller’s directors, officers, employees and/or other representatives, from any and all claims, however and whenever presented, by any third-party including and customers and end user of the goods, wherein such claim(s) arise out of the goods including packaging, design, materials, and/or manufacturing, or to the acquisition, shipping, storage, handling, assembly, use and/or misuse, marketing, resale, and/or any other action whatsoever of Buyer or of an end user or a third-party, with respect to the goods.  Buyer agrees that the scope of the foregoing indemnification shall include indemnification from damages of any kind, including but not limited to direct, indirect, compensatory, special, incidental, punitive, or consequential damages, and from any expenses required to defend against such claims, including but not limited to legal costs and fees, attorney fees, and reasonable travel expenses, including but not limited to conveyance, lodging, food and reasonable incidental costs.  Buyer further agrees to indemnify and hold harmless Seller from any and all costs associated with performing a recall or other corrective disposition of the goods, whether voluntary or to comply with an order issued by any entity having authority over such matters, including but not limited to all costs to repair, replace, and/or recover the goods and/or to notify any and all affected customers, end users and other third-parties.

 

  1. 6. 税收;遵守法律 买方应负责中国政府部门现在或将来对制造、销售、出口、进口或使用本条款规定的商品或服务所征收的任何税费。买方应遵守所有适用的法律、法规和条例。买方应保持其在本条款下履行义务所需的所有证照、许可、授权、同意和许可证是有效的。

Taxes; Compliance with LawBuyer shall be responsible for any taxes or duties, now or hereafter imposed by any government entities in the PRC on the manufacture, sale, export, import, or use of the goods or services specified on the face hereof. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.

  1. 7. 不可抗力 由于火灾、罢工、工人纠纷、战争、内乱、流行病、洪水、事故、运输延误、燃料或其他材料短缺、劳动力短缺、政府行为、政府需求或政府要求,或任何其他超出卖方合理预期或控制的事件,卖方不对任何制造或交付的延误或失败负责。上述原因应成为卖方暂停履行其义务的理由,并应将卖方的履约时间延长到必要的程度,以使其在上述原因消除后能够合理地履约。  如果由于上述任何原因,卖方的履约成本上升,卖方可以要求提高商品或服务的价格,以补偿这种额外的成本,如果买方不同意价格上涨或卖方无法令其满意地方式确保收到货款,卖方有权取消该笔销售且无需支付任何罚款。如果延误持续九十(90)天,那么任何一方都可以通过书面通知对方,取消该笔销售,但在收到该通知时已生产或正在生产的商品除外。

Force MajeureSeller shall not be liable for any delay or failure in manufacturing or delivery due to fire, strikes, disputes with workers, war, civil commotion, epidemics, floods, accidents, delays in transportation, shortages of fuel or other materials, shortages of labor, acts, demands, or requirements of the Government, or to any other causes beyond reasonable expectation or control of Seller.  The existence of such cause of delay shall justify the suspension of Seller’s obligations and shall extend the time of performance on the part of Seller to such extent as may be necessary to enable it to make delivery in the exercise of reasonable diligence after the causes of delay have been removed.  If the performance of Seller is rendered more burdensome by reason of any of the causes above-mentioned, Seller may request an increase in the price of the goods or services to compensate for such extra burden and may cancel the sale without penalty upon failure of the purchaser to agree to such price increases and to satisfactorily secure their payment.  If the delay shall continue for ninety (90) days, then either party may, by written notice to the other, cancel the sale except as to goods manufactured, or in the process of manufacture, at the time such notice is received.

  1. 8. 所有权和损失风险

8.1 在卖方将商品交付给承运人或买方收到商品的较早时间,所有权和损失的风险应转移给买方。 如果根据买方的要求,卖方协助买方处理对承运人的索赔,则所有风险买方承担。

Title and Risk of LossTitle and risk of loss or damage shall pass to Buyer upon the earlier of Seller’s delivery of goods to a carrier or receipt of goods by Buyer.  If, upon Buyer’s request, Seller assists Buyer in processing claims against a carrier, Buyer solicits and accepts such assistance at its own risk.

8.2 尽管商品交付及风险的转移,卖方应始终保留提供给买方全部产品的所有权,直到所有货款以现金或收讫的资金全部付清。在全部货款付清前,(a)法律上的权利和所有权将不改变,买方应作为卖方的受托代理人和受托人保管产品,并应将其与买方和第三方的物品分开,适当地储存、保护和保险及标明为卖方的财产;(b)买方应有权在其正常业务中出售或使用商品,但应将商品出售或以其它方式处置的收益计入卖方的账下,不论该收益是有形或无形的,包括保险收益,并应将该收益与买方和其它第三方的任何钱、物分开存放。若收益为有形物,则应对其进行适当地储存、保护和保险。

Notwithstanding delivery and the passing of risk in the goods, Seller shall retain ownership of all goods until payment has been made in full in cash or cleared funds.  Until such payment has been made (a) legal title and ownership will not change and Buyer shall hold the goods as Seller’s fiduciary agent and bailee and shall keep the goods separate from those of Buyer and third parties and properly stored, protected and insured and identified as Seller’s property and (b) Buyer shall be entitled to resell or use the goods in the ordinary course of its business, but shall account to Seller for the proceeds of sale or otherwise of the goods, whether tangible or intangible, including insurance proceeds and shall keep such proceeds separate from any moneys or property of Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.

  1. 9. 取消 如果买方:(i) 未能支付账单项下的任何到期款项;(ii) 未以其他方式履行或遵守本条款的全部或部分内容;或 (iii) 破产、提交破产申请、被接管、重组或为债权人利益转让,则卖方可在发出书面通知后立即终止订单。除本条款另有规定外,除非双方同意,否则不得取消商品或服务的订单。 特别需要通知的是,如果买方的商品已经开始加工、卖方已经为该订单购买或制造了特殊的部件、部件已经组装好装车,或者该订单的商品正在装车或正在运往目的地,则订单不得取消。

CancellationSeller may terminate an order with immediate effect upon written notice to Buyer, if Buyer:  (i) fails to pay any amount when due under the invoice; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy, receivership, reorganization or assignment for the benefit of creditors.  Except as otherwise provided in these Terms, no order for goods or services shall be cancelled except by mutual consent.  Notice is hereby given that Seller will not consent to cancellation if processing of Buyer’s goods has commenced, special stock has been purchased or manufactured for this order, stock has been assembled for loading, or the goods for the order are being loaded or are in route to destination.

  1. 10. 分批装运 若卖方负责装运,卖方不需要一次性装运所有标的商品,卖方可以按其方便分批装运。 如果卖方分批装运,卖方可以选择按分批装运出具账单,买方应根据账单付款。

Partial ShipmentIn any sale contemplating shipment by Seller, Seller shall not be required to ship the total amount of the subject goods in one shipment but may make partial shipments at Seller’s convenience.  If partial shipments are made, Seller at its option may invoice by or for such partial shipment and Buyer shall pay according to the terms thereof.

  1. 11. 管辖法律;管辖权 中国法律应作为本条款的管辖法律,不适用中国法律以外的任何其他管辖法律或法律冲突条款或规则。双方都不可撤销地同意,卖方所在地法院对解决因本条款引起的或与之相关的任何争议或主张(包括非合同性争议或主张)具有专属管辖权。

Governing Law; JurisdictionPRC law shall be the governing law of these Terms, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the PRC.  Each party irrevocably agrees that the courts of Seller shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with these Terms or their subject matter or formation.

  1. 12. 律师费 买方同意支付卖方为收取货款而产生的所有费用,包括合理的律师费,无论是否实际开始诉讼。 如果为执行任何销售条款和条件而提起法律诉讼,胜诉方有权向另一方收回法院认为合理的审判或上诉中的律师费,此外还有法律规定的所有其他款项。

Attorney FeesBuyer agrees to pay all costs of collection for sums due for the sale of goods and services, including reasonable attorney fees, whether or not litigation is actually commenced.  In the event legal proceeding is instituted to enforce any term of condition of sale the prevailing party shall be entitled to recover from the other party such sum as the court may deem reasonable as attorney fees at trial, or on appeal, in addition to all other sums provided by law.

  1. 保密信息。卖方向买方披露的所有非公开的、保密的或专有的信息,包括但不限于规格、样品、图案、设计、计划、图纸、文件、数据、商业运作、客户名单、定价、折扣或让利,无论是口头披露还是以书面、电子或其他形式或媒体获取,以及无论是否标记、指定或以其他方式确定为与订单和本条款“保密”,该信息都是保密的,且应仅用于执行订单和本条款。除非事先得到卖方的书面授权,否则不得泄露或复制。根据卖方的要求,买方应及时归还从卖方处收到的所有文件和其他材料。对于任何违反本第13条的行为,卖方应有权获得禁止性救济。本第13条不适用于以下信息:(a) 公共领域的信息;(b) 在披露时买方已知的信息;或(c) 买方在非保密的基础上从第三方合法获得的信息。

Confidential Information.  All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in  connection with the order and these Terms is confidential, solely for the use of performing the order and these Terms and may not be disclosed or copied unless authorized in advance by Seller in writing.  Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this provision.  This provision does not apply to information that is:  (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

  1. 约束力。 本条款对买方和卖方,以及他们的继承人和允许的受让人都有约束力。 未经卖方事先书面同意,买方不得转让本条款项下的任何权利,卖方可自行决定不予同意。

Binding Effect.  These Terms shall inure to the benefit of and be binding upon Buyer and Seller, their successors and permitted assigns.  No right hereunder may be assigned by Buyer without the prior written consent of Seller, which may be withheld by Seller at Seller’s sole discretion.

  1. 15. 可分割性。如果任何法院或具有有效管辖权其他部门发现本条款任何条款(或任何条款的部分)无效、非法或不可执行,则按照需要限度,该条款或部分条款不应被视为构成本条款的一部分,但是,本条款的其他部分的效力和可执行性不应受到影响。如果本条款任一条款(或条款的一部分)被发现非法、无效或不可执行,则该条款应在进行必要的最低限度的修订,以使其合法、有效和可执行后适用。

Severability.  If any provision of these Terms (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of these Terms, and the validity and enforceability of the other provisions of these Terms shall not be affected.  If a provision of these Terms (or part of any provision) is found illegal, invalid or unenforceable, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

  1. 弃权。卖方或买方放弃严格履行本条款,不应视为放弃要求在未来严格履行相同条款或条件或本条款中的任何其他条款或条件的权利。

Waiver.  Waiver by Seller or Buyer of strict performance of any of these Terms shall not be a waiver of or prejudice of any right to require strict performance of the same terms or conditions in the future or of any other of these Terms.

  1. 没有第三方受益人。本条款仅适用于本条款各方及其各自的继承人和允许的受让人。本条款的任何内容,无论是明示还是暗示,都无意赋予任何个人或实体在本条款下或因本条款产生的任何性质的法律权利、利益或救济。

No Third-Party Beneficiaries.  These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any person or entity any legal right, benefit or remedy of any nature whatsoever under or by reason of these Terms.

  1. 双方关系。双方之间的关系是独立承包商的关系。本条款中的任何内容都不应被解释为在双方之间建立任何代理、合伙、合资或其他形式的联合企业、雇佣或信托关系,而且任何一方都无权以任何方式为另一方订立合同或使其受到约束。

Relationship of the Parties.  The relationship between the parties is that of independent contractors.  Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.

  1. 通知。所有的通知、请求、同意、索赔、要求、弃权和其他通信(单独称为 “通知”)都应以书面形式,按账单上的地址寄给双方,或寄给接收方可能以书面形式指定的其他地址。所有的通知应以专人递送、国家认可的隔夜快递(预付所有费用)、传真或电子邮件(有传输确认)或认证或挂号邮件(在每一种情况下,要求回执、预付邮费)的方式进行。除本条款另有规定外,通知只有在(a)接收方收到后和(b)发出通知的一方遵守了本条款的要求时才有效。

Notices.  All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the invoice or to such other address that may be designated by the receiving party in writing.  All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or e-mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid).  Except as otherwise provided herein, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this provision.

 

  1. 语言。本合同用中英文写成,两种版本同等有效。若有差异,以英文本为准。

Language.  This Contract is written in English and Chinese, and both language versions are equally binding.  In case of any discrepancy, the English version shall prevail.

August 2022

AUSTRALIA

TP3 GLOBAL TERMS AND CONDITIONS OF SALE

  1. Interpretation
    • Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Victoria, Australia are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 16.3.

Contract: the contract between TP3 and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from TP3.

Force Majeure Event: event / circumstance beyond a party’s reasonable control.

Goods: the goods (or any part of them) set out in the Order Acknowledgement.

Order: the Customer’s order for the Goods.

Order Acknowledgement: TP3’s written acknowledgement of an Order.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed by the Customer and TP3.

TP3: TP3 Global (Australasia) Pty Ltd ACN 168 321 597 (registered in Australia) whose registered office is at C/- Kaias Phillips, 129 Station Street, Fairfield VIC 3078.

  • Interpretation:
  • A reference to writing or written includes emails.
  1. Basis of contract
    • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    • The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Order shall only be deemed to be accepted when TP3 issues an Order Acknowledgement, at which point the Contract shall come into existence.
    • Any samples, drawings or advertising produced by TP3 and any descriptions or illustrations contained in TP3’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
    • A quotation for Goods given by TP3 shall not constitute an offer. Unless otherwise noted on the quotation itself, a quotation shall only be valid for twenty (20) Business Days from its date of issue.
  2. Goods
    • Test results for the Goods shown in TP3 documents, marketing materials or other communications (Results) illustrate the performance of the Goods under precisely controlled packing and testing conditions in an environmental chamber. The temperature profiles used for testing are designed to simulate fluctuations in ambient temperature experienced during live shipping. However, as TP3 has no control for what may happen during a live shipment, no liability will be accepted for any temperature excursions, resultant loss of Goods or compensation claim that may result from the failure of the Goods to perform in line with the Results.
    • TP3 shall have no liability in respect of any variation in the dimensions of the Goods where such variation comes within the bounds of agreed tolerances.
    • The colour of the Goods is subject to reasonable variation.
    • To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify TP3 against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by TP3 in connection with any claim made against TP3 for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with TP3’s use of the Specification. This clause 4 shall survive termination of the Contract.
    • TP3 reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
  3. Delivery
    • Unless otherwise stated in the Order Acknowledgement, which is incorporated into the Contract, the Goods will be delivered Ex Works (Incoterms® 2020).
    • Any dates or periods of time quoted for delivery are approximate only, and the time of delivery is not of the essence. Any stipulated period of time for delivery shall date from the issue of the Order TP3 shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide TP3 with adequate delivery instructions or any other instructions relevant to the supply of the Goods.
    • Customer shall have five (5) days after receipt of goods and services to reject such goods and services, and to make a claim for shortage.
    • If TP3 fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. TP3 shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide TP3 with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    • If TP3 delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
    • TP3 may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  4. Quality
    • TP3 warrants that on delivery the Goods shall:
      • conform in all material respects with the Specification; and
      • be free from material defects in design, material and workmanship.
    • Subject to clause 3, if:
      • the Customer gives notice in writing to TP3 within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 1;
      • TP3 is given a reasonable opportunity of examining such Goods; and
      • the Customer (if asked to do so by TP3) returns such Goods to TP3’s place of business at the Customer’s cost,

TP3 shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

  • TP3 shall not be liable for the Goods’ failure to comply with the warranty set out in clause 1 in any of the following events:
    • the Customer makes any further use of such Goods after giving notice in accordance with clause 2;
    • the defect arises because the Customer failed to follow TP3’s oral / written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
    • the defect arises as a result of TP3 following any drawing, design or Specification supplied by the Customer;
    • the Customer alters or repairs such Goods without written consent of TP3;
    • the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
    • the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  • Except as provided in this clause 5, TP3 shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty per 5.1.
  • These Conditions shall apply to any repaired or replacement Goods supplied by TP3.
  1. Title and risk
    • The risk in the Goods shall pass to the Customer in accordance with the relevant Incoterms ® 2020 rule.
    • Title to Goods shall not pass to the Customer until TP3 receives payment in full (in cash / cleared funds) for the Goods and any other goods that TP3 has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
    • Until title to the Goods has passed to the Customer, the Customer shall:
      • store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as TP3’s property;
      • not resell, dispose of, part with possession of, create any interest in or use the Goods, except in the ordinary course of its business (subject to clause 5);
      • not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      • maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      • notify TP3 immediately if it becomes subject to any of the events listed in clause 1; and
      • give TP3 such information relating to the Goods as TP3 may require from time to time.
    • Subject to clause 5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before TP3 receives payment for the Goods. However, if the Customer resells the Goods before that time:
      • it does so as principal and not as TP3’s agent; and
      • title to the Goods shall pass from TP3 to the Customer immediately before the time at which resale by the Customer occurs; and
      • it must hold in trust for TP3 the proceeds of such resale until TP3 receives full payment for the Goods and, if the Customer becomes subject to any of the events listed in clause1 and clause 12.3, must on TP3’s demand apply such proceeds toward full payment for the Goods.
    • If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 12.1 and clause 12.3, then, without limiting any other right or remedy TP3 may have:
      • the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
      • TP3 may at any time:
        • require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
        • if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored to recover them.
  1. Intellectual property rights
    • If the Goods are to be manufactured or any process is to be applied to the Goods by TP3 in accordance with a specification or design submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of TP3) indemnify TP3 in full against any loss, costs, damages, charges, expenses and other liabilities suffered by TP3 as a result of or in connection with:
      • any allegation relating to infringement of any patents, copyright, trademarks and service marks, rights in designs, database rights, rights to use or any other intellectual property rights of any kind of any person, firm or company and/or passing off and/or unauthorised sue of confidential information which results from TP3’s use of the Customer’s specification or design; and/or
      • any other liability of any kind to any third party including without limitation for defective goods, personal injury or death to the extent that it arises from the Customer’s specification or design
  1. Price and payment
    • The price of the Goods shall be the price set out in the Order Acknowledgement (Price). The Price applies solely to the quantity of Goods ordered and must not be taken to apply to any subsequent order for any lessor quantity of the Goods.
    • TP3 may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
      • any factor beyond TP3’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      • any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
      • any delay caused by any instructions of the Customer or failure of the Customer to give TP3 adequate or accurate information or instructions.
    • TP3 may invoice the Customer for the Goods on or at any time after the completion of delivery.
    • The Customer shall pay the invoice in full and in cleared funds in accordance with the payment terms and to the bank account stated in the Order Acknowledgement. Time for payment is of the essence.
    • If the Customer fails to make any payment due to TP3 under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the lower of the rate of 2% per annum above Reserve Bank of Australia Target ‘Cash Rate’, or the maximum permitted by law from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
    • The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). TP3 may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by TP3 to the Customer.
  2. GST
    • In this clause 9, a word or expression defined in A New Tax System (Goods and Services Tax) Act 1999 (Cth) which is not otherwise defined in these Conditions of Sale has the meaning given to it in that Act.
    • All consideration provided under these Conditions of Sale is exclusive of GST unless it is specifically expressed to be GST inclusive. If a party (Supplier) makes a taxable supply to another party (Recipient) under or in connection with these Conditions of Sale in respect of which GST is payable, the Recipient must pay the Supplier an additional amount equal to the GST payable on the supply (unless the consideration for the taxable supply was specified to include GST). The additional amount must be paid by the Recipient by the later of:
    • the date when any consideration for the taxable supply is first paid or provided; and
    • the date when the Supplier issues a tax invoice to the Recipient.
    • If an adjustment event varies the amount of GST payable by a Supplier under these Conditions of Sale, the Supplier must adjust the amount payable by the Recipient to take account of the adjustment event. Any resulting payment must be paid by the Supplier to the Recipient, or the Recipient to the Supplier (as appropriate) within ten (10) business days of the Supplier becoming aware of the adjustment event. Any payment under this clause is to be treated as an increase or decrease of the additional amount payable under clause 2.
    • If the GST payable in relation to a supply is less than the amount the Recipient has paid the Supplier under clause 2, the Supplier is only obligated to pay a refund of GST to the Recipient to the extent the Supplier receives a refund of that GST from the Australian Taxation Office.
    • Subject to an express provision in these Conditions of Sale to the contrary, any payment, reimbursement or indemnity required to be made to a party (the Payee) under this Agreement which is calculated by reference to an amount paid or payable by the Payee to a third party (Outgoing) will be calculated by reference to that Outgoing inclusive of GST, less the amount of any input tax credit which the Payee is entitled to claim on that Outgoing.
  3. Personal Property Securities Act 2009
    • In this clause 10, unless context requires another meaning, the following capitalised words and expressions have the same meanings as those words and expressions (although uncapitalised) in the Personal Property Securities Act 2009 (Cth) (PPSA): Financing Statement, Financing Change Statement, Proceeds, Purchase Money Security Interest, Security Interest, and Verification Statement.
    • For the purposes of sections 115(1) and 115(7) of the PPSA:
      • TP3 is not required to comply with sections 95, 118, 121(4), 125, 130, 132(3)(d), 132(4), and 135 of the PPSA; and
      • sections 142 and 143 of the PPSA are excluded.
    • For the purposes of section 115(7) of the PPSA, TP3 is not required to comply with sections 132 and 137 of the PPSA.
    • The Customer grants to TP3 a Security Interest, and must not create, or permit to exist, any prior ranking Security Interest in favour of any other person, in the Goods supplied by TP3 or their Proceeds.
    • The Customer acknowledges and agrees that TP3 may make any registration, including under the PPSA, in respect of any Security Interest (TP3 Security Interest) arising, or created or deemed to be created under the PPSA, in favour of TP3 in any Goods supplied by TP3 to the Customer from time to time and their Proceeds. The Customer acknowledges and agrees that the TP3 Security Interest is a Purchase Money Security Interest.
    • The Customer waives its right to receive any notice required by any provision of the PPSA, including notice of any Verification Statement in respect of any Financing Statement or Financing Change Statement related to the TP3 Security Interest.
    • To the extent permitted by law, TP3 is not required to give notice to or account to the Customer or any other person or deal with any Goods in a particular way when enforcing the TP3 Security Interest.
    • To the extent permitted by law, the Customer waives any time period that must otherwise lapse under any law before the TP3 Security Interest can be enforced and that, if the law which requires a period of notice or a lapse of time cannot be excluded, but the law provides that the period of notice or lapse of time may be agreed, that period or lapse is one day or the minimum period the law allows to be agreed (whichever is the longer).
    • If TP3 exercises a right, power, remedy or discretion in connection with a TP3 Security Interest, that exercise shall be taken not to be an exercise of a right, power, remedy or discretion under the PPSA unless TP3 states otherwise at the time of exercise or such right, power, remedy or discretion can only be exercised under the PPSA.
    • The Customer shall promptly at its own expense do anything required by TP3 (including giving, procuring or executing any information, notice, consent, agreement or document) to ensure that the TP3 Security Interest is fully effective, enforceable and perfected and has the priority required by TP3.
    • The Customer indemnifies TP3 on demand for any liability, loss, cost or expense incurred or payable by TP3 in connection with the registration, maintenance, contemplated or actual enforcement, preservation or discharge of the TP3 Security Interest.
    • The Customer agrees that it will not, without 10 Business Days prior written notice to TP3, change any of its details (including name, address, ABN, and ACN) or any other details related to the TP3 Security Interest.
    • If the Customer holds any Security Interests in the Goods supplied by TP3 to the Customer from time to time, the Customer agrees to implement, maintain and comply in all material respects with, procedures for the perfection of those Security Interests. These procedures must include procedures designed to ensure that the Customer takes all steps under the PPSA to perfect continuously any such Security Interest including all steps necessary:
      • for the Customer to obtain the highest ranking priority possible in respect of such Security Interest (such as perfecting a Purchase Money Security Interest); and
      • to reduce as far as practicably possible the risk of a third party acquiring an interest free of such Security Interests.
    • Subject to clause 15 and the terms of any supply agreement between TP3 and the Customer, each of the Customer and TP3 agrees that it will not disclose any of the information set out in section 275(1) of the PPSA in relation to any TP3 Security Interest to the person (except that TP3 may do so where required due to the operation of section 275(7) of the PPSA).
  4. Cancellation
    • Except as provided in these Conditions, no Order shall be cancelled except by mutual consent. TP3 will not consent to cancellation if processing of the Goods has commenced, special stock has been purchased or manufactured for the Order, Goods have been assembled for loading, loading has commenced or the Goods are in transit.
  5. Termination
    • Without limiting its other rights or remedies, TP3 may terminate this Contract with immediate effect by giving written notice to the Customer if:
      • the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of that party being notified in writing to do so;
      • the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      • the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
      • the Customer’s financial position deteriorates to such an extent that in TP3’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    • Without limiting its other rights or remedies, TP3 may suspend provision of the Goods under the Contract or any other contract between the Customer and TP3 if the Customer becomes subject to any of the events listed in clause 1(a)to clause 12.1(d), or TP3 reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
    • Without limiting its other rights or remedies, TP3 may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date.
    • On termination of the Contract for any reason the Customer shall immediately pay to TP3 all of TP3’s outstanding unpaid invoices and interest.
    • Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in force.
  6. Limitation of liability
    • Terms, conditions, warranties and guarantees implied by law (including the Competition and Consumer Act 2010 (Cth)) may apply to these Conditions of Sale to the extent required by those laws (Non-Excludable Guarantees).
    • Nothing in these Conditions of Sale (i) restricts, excludes or modifies, or purports to restrict, exclude or modify, any Non-Excludable Guarantee, or (ii) limits or excludes TP3’s liability for:
      • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable); or
      • fraud or fraudulent misrepresentation.
    • Subject to clause 1.
      • TP3 shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
      • TP3’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
  1. Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for more than three months, TP3 may terminate this Contract with immediate effect by giving written notice to the affected party.

  1. Confidentiality
    • Each party undertakes that it shall not disclose to any person any confidential information concerning the business, customers or suppliers of the other party, or any member of its group of companies, for a period of two years after receipt of the same from the other party, except where: (a) its employees, officers, representatives or advisers need to know such information for the purposes of carrying out its obligations in connection with this Contract (in which case each party shall ensure that its employees, officers, representatives or advisers comply with this clause 15); (b) where such confidential information is proven to be known to the other party other than by breach of the Contract; (c) where such information enters the public domain; or (d) where such information may be required to be disclosed by law, a court of competent jurisdiction, the rules of any stock exchange, or by any governmental or regulatory authority (provided however that this provision does not permit the disclosure of any information under section 275(4) of the PPSA unless section 275(7) of the PPSA applies).
    • Neither party shall use the other party’s confidential information for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
    • Each party acknowledges that damages may not be an adequate remedy for breach of this clause 15 and breach will cause irreparable injury to the party which first disclosed that confidential information (Disclosing Party) to the other party (Receiving Party). Each party further acknowledges that the Disclosing Party may apply for and obtain injunctive relief in any court of competent jurisdiction in addition to all other remedies that might be available to it if the Receiving Party breaches or threatens to breach this clause 15, or the Disclosing Party reasonably believes that the Receiving Party is likely to breach this clause 15.
  2. General
    • Assignment and other dealings.
      • TP3 may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its contractual rights or obligations.
      • The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its contractual rights or obligations without the prior written consent of TP3.
    • Entire agreement.
      • This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    • No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
      • Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
      • A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause (a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
      • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    • Third party rights. No one other than a party to this Contract and their permitted assignees shall have any right to enforce any of its terms.
    • Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the law of Victoria, Australia.
    • Each party irrevocably agrees that the courts of Victoria, Australia shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
  3. How we use your personal information (Data Protection)
    • All personal information that we may use will be collected, processed, used and held in accordance with the provisions of the Privacy Act 1988 (Cth) (Privacy Act) and your rights under the Privacy Act.
    • For complete details of our collection, processing, storage and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to our APP 5 Collection Notice and Privacy Policy available at csafeglobal.com or upon request from data-protection-team@csafeglobal.com.

August 2022

SINGAPORE

SOFTBOX SYSTEMS TERMS AND CONDITIONS OF SALE

 

  1. Interpretation
    • Definitions:

Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Singapore are open for business.

Conditions: the terms and conditions set out in this document as amended from time to time in accordance with clause 12.3.

Contract: the contract between SBS and the Customer for the sale and purchase of the Goods in accordance with these Conditions.

Customer: the person or firm who purchases the Goods from SBS.

Force Majeure Event: event / circumstance beyond a party’s reasonable control.

Goods: the goods (or any part of them) set out in the Order Acknowledgement.

Order: the Customer’s order for the Goods.

Order Acknowledgement: SBS’s written acknowledgement of an Order.

Specification: any specification for the Goods, including any related plans and drawings, that is agreed by the Customer and SBS.

SBS: Softbox Systems Pte. Ltd. (registered in Singapore with company number 201007965Z) whose registered office is at 2 Bukit Batok Street 23, #05-04, Bukit Batok Connection, Singapore 659554.

  • Interpretation:
  • A reference to writing or written includes emails.
  1. Basis of contract
    • These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
    • The Order constitutes an offer by the Customer to purchase the Goods in accordance with these Conditions. The Order shall only be deemed to be accepted when SBS issues an Order Acknowledgement, at which point the Contract shall come into existence.
    • Any samples, drawings or advertising produced by SBS and any descriptions or illustrations contained in SBS’s catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them. They shall not form part of the Contract nor have any contractual force.
    • A quotation for Goods given by SBS shall not constitute an offer. Unless otherwise noted on the quotation itself, a quotation shall only be valid for twenty (20) Business Days from its date of issue.
  2. Goods
    • Test results for the Goods shown in SBS documents, marketing materials or other communications (Results) illustrate the performance of the Goods under precisely controlled packing and testing conditions in an environmental chamber. The temperature profiles used for testing are designed to simulate fluctuations in ambient temperature experienced during live shipping. However, as SBS has no control for what may happen during a live shipment, no liability will be accepted for any temperature excursions, resultant loss of Goods or compensation claim that may result from the failure of the Goods to perform in line with the Results.
    • SBS shall have no liability in respect of any variation in the dimensions of the Goods where such variation comes within the bounds of agreed tolerances.
    • The colour of the Goods is subject to reasonable variation.
    • To the extent that the Goods are to be manufactured in accordance with a Specification supplied by the Customer, the Customer shall indemnify SBS against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by SBS in connection with any claim made against SBS for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with SBS’s use of the Specification. This clause 3.4 shall survive termination of the Contract.
    • SBS reserves the right to amend the Specification if required by any applicable statutory or regulatory requirements.
  3. Delivery
    • Unless otherwise stated in the Order Acknowledgement, which is incorporated into the Contract, the Goods will be delivered Ex Works (Incoterms® 2020).
    • Any dates or periods of time quoted for delivery are approximate only, and the time of delivery is not of the essence. Any stipulated period of time for delivery shall date from the issue of the Order SBS shall not be liable for any delay in delivery of the Goods that is caused by a Force Majeure Event or the Customer’s failure to provide SBS with adequate delivery instructions or any other instructions relevant to the supply of the Goods.
    • Customer shall have five (5) days after receipt of goods and services to reject such goods and services, and to make a claim for shortage.
    • If SBS fails to deliver the Goods, its liability shall be limited to the costs and expenses incurred by the Customer in obtaining replacement goods of similar description and quality in the cheapest market available, less the price of the Goods. SBS shall have no liability for any failure to deliver the Goods to the extent that such failure is caused by a Force Majeure Event or the Customer’s failure to provide SBS with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods.
    • If SBS delivers up to and including 10% more or less than the quantity of Goods ordered the Customer may not reject them, but on receipt of notice from the Customer that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Order invoice.
    • SBS may deliver the Goods by instalments, which shall be invoiced and paid for separately. Any delay in delivery or defect in an instalment shall not entitle the Customer to cancel any other instalment.
  4. Quality
    • SBS warrants that on delivery the Goods shall:
      • conform in all material respects with the Specification; and
      • be free from material defects in design, material and workmanship.
    • Subject to clause 5.3, if:
      • the Customer gives notice in writing to SBS within a reasonable time of discovery that some or all of the Goods do not comply with the warranty set out in clause 5.1;
      • SBS is given a reasonable opportunity of examining such Goods; and
      • the Customer (if asked to do so by SBS) returns such Goods to SBS’s place of business at the Customer’s cost,

SBS shall, at its option, repair or replace the defective Goods, or refund the price of the defective Goods in full.

  • SBS shall not be liable for the Goods’ failure to comply with the warranty set out in clause 5.1 in any of the following events:
    • the Customer makes any further use of such Goods after giving notice in accordance with clause 5.2;
    • the defect arises because the Customer failed to follow SBS’s oral / written instructions as to the storage, commissioning, installation, use and maintenance of the Goods or (if there are none) good trade practice regarding the same;
    • the defect arises as a result of SBS following any drawing, design or Specification supplied by the Customer;
    • the Customer alters or repairs such Goods without written consent of SBS;
    • the defect arises as a result of fair wear and tear, wilful damage, negligence, or abnormal storage or working conditions; or
    • the Goods differ from the Specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
  • Except as provided in this clause 5, SBS shall have no liability to the Customer in respect of the Goods’ failure to comply with the warranty per 5.1.
  • The terms implied by sections 13 to 15 of the Sale of Goods Act 1979 (2020 Revised Edition) of Singapore are, to the fullest extent permitted by law, excluded from the Contract.
  • These Conditions shall apply to any repaired or replacement Goods supplied by SBS.
  1. Title and risk
    • The risk in the Goods shall pass to the Customer in accordance with the relevant Incoterms ® 2020 rule.
    • Title to Goods shall not pass to the Customer until SBS receives payment in full (in cash / cleared funds) for the Goods and any other goods that SBS has supplied to the Customer in respect of which payment has become due, in which case title to the Goods shall pass at the time of payment of all such sums; and
    • Until title to the Goods has passed to the Customer, the Customer shall:
      • store the Goods separately from all other goods held by the Customer so that they remain readily identifiable as SBS’s property;
      • not remove, deface or obscure any identifying mark or packaging on or relating to the Goods;
      • maintain the Goods in satisfactory condition and keep them insured against all risks for their full price from the date of delivery;
      • notify SBS immediately if it becomes subject to any of the events listed in clause 9.1; and
      • give SBS such information relating to the Goods as SBS may require from time to time.
    • Subject to clause 6.5, the Customer may resell or use the Goods in the ordinary course of its business (but not otherwise) before SBS receives payment for the Goods. However, if the Customer resells the Goods before that time:
      • it does so as principal and not as SBS’s agent; and
      • title to the Goods shall pass from SBS to the Customer immediately before the time at which resale by the Customer occurs.
    • If before title to the Goods passes to the Customer the Customer becomes subject to any of the events listed in clause 9.1, then, without limiting any other right or remedy SBS may have:
      • the Customer’s right to resell the Goods or use them in the ordinary course of its business ceases immediately; and
      • SBS may at any time:
        • require the Customer to deliver up all Goods in its possession that have not been resold, or irrevocably incorporated into another product; and
        • if the Customer fails to do so promptly, enter any premises of the Customer or of any third party where the Goods are stored to recover them.
  1. Intellectual property rights
    • If the Goods are to be manufactured or any process is to be applied to the Goods by SBS in accordance with a specification or design submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of SBS) indemnify SBS in full against any loss, costs, damages, charges, expenses and other liabilities suffered by SBS as a result of or in connection with:
      • any allegation relating to infringement of any patents, copyright, trademarks and service marks, rights in designs, database rights, rights to use or any other intellectual property rights of any kind of any person, firm or company and/or passing off and/or unauthorised sue of confidential information which results from SBS’s use of the Customer’s specification or design; and/or
      • any other liability of any kind to any third party including without limitation for defective goods, personal injury or death to the extent that it arises from the Customer’s specification or design.
  1. Price and payment
    • The price of the Goods shall be the price set out in the Order Acknowledgement (Price). The Price applies solely to the quantity of Goods ordered and must not be taken to apply to any subsequent order for any lesser quantity of the Goods.
    • SBS may, by giving notice to the Customer at any time before delivery, increase the price of the Goods to reflect any increase in the cost of the Goods that is due to:
      • any factor beyond SBS’s control (including foreign exchange fluctuations, increases in taxes and duties, and increases in labour, materials and other manufacturing costs);
      • any request by the Customer to change the delivery date(s), quantities or types of Goods ordered, or the Specification; or
      • any delay caused by any instructions of the Customer or failure of the Customer to give SBS adequate or accurate information or instructions.
    • The price of the Goods excludes amounts in respect of goods and services tax (GST), which the Customer shall additionally be liable to pay to SBS at the prevailing rate, subject to the receipt of a valid invoice indicating the amount of GST applicable.
    • SBS may invoice the Customer for the Goods on or at any time after the completion of delivery.
    • The Customer shall pay the invoice in full and in cleared funds in accordance with the payment terms and to the bank account stated in the Order Acknowledgement. Time for payment is of the essence.
    • If the Customer fails to make any payment due to SBS under the Contract by the due date for payment, then the Customer shall pay interest on the overdue amount at the rate of 2% per annum above Barclays Bank’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. The Customer shall pay the interest together with the overdue amount.
    • The Customer shall pay all amounts due under the Contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). SBS may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Customer against any amount payable by SBS to the Customer.
  2. Cancellation
    • Except as provided in these Conditions, no Order shall be cancelled except by mutual consent. SBS will not consent to cancellation if processing of the Goods has commenced, special stock has been purchased or manufactured for the Order, Goods have been assembled for loading, loading has commenced or the Goods are in transit.
  3. Termination
    • Without limiting its other rights or remedies, SBS may terminate this Contract with immediate effect by giving written notice to the Customer if:
      • the Customer commits a material breach of any term of the Contract and (if such a breach is remediable) fails to remedy that breach within 30 days of it being notified by SBS in writing to do so;
      • the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
      • the Customer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
      • the Customer’s financial position deteriorates to such an extent that in SBS’s opinion the Customer’s capability to adequately fulfil its obligations under the Contract has been placed in jeopardy.
    • Without limiting its other rights or remedies, SBS may suspend provision of the Goods under the Contract or any other contract between the Customer and SBS if the Customer becomes subject to any of the events listed in clause 9.1(a) to clause 9.1(d), or SBS reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.
    • Without limiting its other rights or remedies, SBS may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under the Contract on the due date.
    • On termination of the Contract for any reason the Customer shall immediately pay to SBS all of SBS’s outstanding unpaid invoices and interest.
    • Termination of the Contract shall not affect any of the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Contract that existed at or before the date of termination.
    • Any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in force.
  4. Limitation of liability
    • Nothing in these Conditions shall limit or exclude SBS’s liability for:
      • death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors (as applicable);
      • fraud or fraudulent misrepresentation; or
      • breach of the terms implied by section 12 of the Sale of Goods Act 1979 (2020 Revised Edition) of Singapore.
    • Subject to clause 10.1:
      • SBS shall under no circumstances whatsoever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract; and
      • SBS’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the price of the Goods.
  1. Force majeure

Neither party shall be in breach of this Contract nor liable for delay in performing, or failure to perform, any of its obligations under this Contract if such delay or failure result from a Force Majeure Event. If the period of delay or non-performance continues for more than three months, SBS may terminate this Contract with immediate effect by giving written notice to the affected party.

  1. General
    • Assignment and other dealings.
      • SBS may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its contractual rights or obligations.
      • The Customer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its contractual rights or obligations without the prior written consent of SBS.
    • Entire agreement.
      • This Contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
      • Each party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    • No variation of this Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
    • No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
    • If any provision or part-provision of the Contract is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of the Contract.
      • Any notice or other communication given to a party under or in connection with the Contract shall be in writing, addressed to that party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, or email.
      • A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in clause 12.6(a); if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed; or, if sent by email, one Business Day after transmission.
      • The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
    • Third party rights. A person who is not a party to this Contract has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce or to enjoy the benefit of any term of this Contract.
    • Governing law. The Contract, and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation, shall be governed by and construed in accordance with the laws of Singapore.
    • Each party irrevocably agrees that the courts of Singapore shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with this Contract or its subject matter or formation.
  2. How we use your personal information (data protection)
    • All personal information that we may use will be collected, processed, and held in accordance with the provisions of the Personal Data Protection Act 2012, Chapter 26 of Singapore.
    • For complete details of our collection, processing, storage and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of your rights and how to exercise them, and personal data sharing (where applicable), please refer to our Privacy Note available at csafeglobal.com or upon request by emailing data-protection-team@csafeglobal.com.

August 2022

Softbox Systems Limited – Terms and Conditions of Purchase

 

 

  1. Definitions

In these Conditions the following expressions have the following meanings:

“Conditions” mean these terms and conditions for the purchase of Products and/or Services which are incorporated into and form part of the Contract;

“Contract” means the agreement (contract) between Seller and Purchaser for the supply of the Products and/or Services;

“Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;

“Products” mean the products, goods or items which are the subject of the Contract;

“Purchase Order” means Purchaser’s order for Products and/or Services as set out in the purchase order, which may without limitation include statements of work, specifications or similar;

“Purchaser” means Softbox Systems Pte. Ltd. or any of its subsidiary or affiliate companies;

“SBS Issued Material” means any property, materials, specifications or data issued to Seller by Purchaser to be used in fulfilment of Seller’s obligations under the Contract;

“Seller” means the person, firm or company referred to on the face of the Purchase Order with whom the Contract is made by Purchaser; and

“Services” means the services which are to be provided by Seller under the Contract as set out in the Purchase Order.

  1. Application
  • The Purchase Order constitutes an offer by Purchaser to purchase Products and/or Services from Seller in accordance with these Conditions. The Purchase Order shall be deemed to be accepted on the earlier of Seller issuing written acceptance of the Purchase Order or any act by Seller consistent with fulfilling the Purchase Order, at which point and on which date the Contract shall come into existence. These Conditions shall apply to the Contract to the exclusion of any terms that Seller seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. No terms or conditions endorsed on, delivered with, or contained in Seller’s quotation, sales conditions, order confirmation or acknowledgement, specification, invoice or other document shall form part of the Contract except to the extent that Purchaser otherwise agrees in writing. All of these Conditions shall apply to the supply of both Products and Services except where the application to one or the other is specified.
  1. Quality and Description

3.1 All Products shall:

3.1.1 conform to the quantity, quality, description and any other particulars contained in the Purchase Order or the Contract;

3.1.2 correspond with any sample, drawing, description and specification furnished;

3.1.3 be of satisfactory quality and fit for any intended use expressly or impliedly made known to Seller;

3.1.4 be free from defects in design, materials and workmanship and remain so for twelve (12) months from delivery; and

3.1.5 comply with all performance specifications included in the Purchase Order.

3.2 All Services shall (i) be provided in full accordance with the terms of the Contract and applicable Purchase Order, (ii) be performed in a proper and skilful manner with the best care and diligence by properly qualified and experienced personnel and (iii) conform to the best industry standards.

Testing, inspection and/or acceptance by Purchaser or end user under Clause 5 shall not be deemed a waiver of Seller’s obligations under this Clause 3. This Clause 3 shall include and apply to any replacement, repaired, substituted or remedial Products or substituted or remedial Services provided by Seller.

  1. Statutory Obligations

4.1 Seller shall comply with all relevant statutes, rules and regulations, by-laws and, if applicable European Union directives’ affecting its obligations and the performance of the Contract.

4.2 Whilst on Purchaser’s premises, Seller shall abide by any written or verbal instructions in relation to safety and security issued by Purchaser.

  1. Inspection and Rejection

5.1 Seller warrants that it has inspected and tested the Products for compliance with the Contract prior to delivery and shall, if requested, supply Purchaser with certificates of origin and/or testing. Such certificates must state the Purchase Order number together with any Product item numbers detailed within the Purchase Order

5.2 If the Products and/or Services do not comply with the Purchase Order, Purchaser shall within a reasonable time give notice of rejection to Seller and without prejudice to any of its other rights, Purchaser may in its discretion require Seller to comply with the Contract by expeditiously replacing or repairing as appropriate any rejected Products and replacing or otherwise correcting or re-performing any rejected Services. The rejected Products shall be returned to Seller at Seller’s risk and expense.

5.3 Any reference to Seller in this clause includes any affiliate or sub-contractor of Seller. Where Seller repairs, replaces or re-performs any Products or Services pursuant to this Clause 5, the Conditions shall apply to the repaired, replaced or re-performed Products or Services.

5.4 Purchaser reserves the right at reasonable times on reasonable prior written notice to inspect or test the Products or the Services at any stage before delivery and Seller shall give rights of access to its premises and such facilities as Purchaser may reasonably require for such inspection.

  1. Delivery and Risk

6.1 Products and Services shall be delivered on the dates and at the rates and at the places specified in the Purchase Order. Delivery may be direct to Purchaser’s end user if so specified on the Purchase Order. Purchaser acting reasonably may delay or alter such dates, rates and places by giving Seller reasonable notice in writing of such alterations.

6.2 Time of delivery is of the essence for the Contract.

6.3 Seller shall ensure that all Products are marked in accordance with the provisions of the Contract and any instructions issued by Purchaser. Products shall be packed so as to reach the places of delivery undamaged and in good condition. Seller shall provide in respect of each shipment of Products a packaging note detailing the applicable Purchase Order number, description, code number (if any) and the quantity of Products shipped.

6.4 If Seller fails to deliver in accordance with the Contract, then Purchaser may cancel the Contract or any part of it and reserves all rights in damages and otherwise arising including but not limited to the right to purchase substitute Products or Services elsewhere and to hold Seller liable for any loss, expense or additional cost incurred.

6.5 Risk of loss to the Products passes to Purchaser on delivery to the location specified in the applicable Purchase Order without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6.

6.6 Any of Seller’s property brought onto Purchaser’s premises will be at and will remain at risk of Seller.

6.7 Any SBS Issued Material or material issued by a manufacturing partner will be at Seller’s risk whilst in Seller’s possession and/or control.

  1. Title

Seller warrants that it has good title to the Products it is selling to Purchaser. Title to Products shall pass to Purchaser on delivery to Purchaser or collection by Purchaser from Seller’s point of dispatch without prejudice to any right of rejection to which Purchaser may be entitled under Clauses 5 and 6. Seller acknowledges that the Products or Services may be sold on to an end user by Purchaser and warrants that Purchaser will be able to supply the end user with good title.

  1. Prices
  • 1 All prices shall be as stated in the Contract. The prices are fixed and include delivery and all other charges which shall not be adjusted, excepting where the Contract expressly specifies otherwise, and save as provided for in these Conditions.

8.2 Prices do not include VAT or sales tax which shall be added by Seller at the rate and in the manner from time to time prescribed by law.

  1. Payment
  • Seller shall send to Purchaser a detailed invoice referencing the applicable Purchase Order (including Purchase Order number), packaging note and date of delivery, together with any Products or Services reference number. Terms of payment are net sixty (60) unless otherwise stated on the front of the Purchase Order.
  1. Confidentiality

10.1 Seller shall keep in strict confidence all SBS Issued Materials, Purchase Order, technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to Seller by Purchaser, its affiliates, employees, agents or subcontractors, and any other confidential information concerning Purchaser’s business, its products and services which Seller may obtain. Seller shall only disclose such confidential information to those of its employees, agents and subcontractors who need to know it for the purpose of discharging its obligations under the Contract, and shall ensure that such employees, agents and subcontractors comply with the obligations set out in this clause as though they were a party to the Contract. Seller may also disclose such of Purchaser’s confidential information as is required to be disclosed by law, any governmental or regulatory authority or by a court of competent jurisdiction.

10.2 Seller shall not, without Purchaser’s written consent, advertise or otherwise make known that Seller supplies or has supplied Products or Services to Purchaser.

  1. Equipment and other Facilities

All SBS Issued Material shall be and remain the property of Purchaser. Seller hereby undertakes to maintain SBS Issued Material in good order and condition, to keep it separate from Seller’s property and to identify it as the property of Purchaser. Seller shall not use SBS Issued Material except in respect of Contracts with Purchaser. Risk in SBS Issued Material shall be with Seller who shall procure comprehensive insurance against all risks of its loss or damage of an amount equal to its replacement cost with Purchaser’s interest noted on the policy and with Purchaser named as loss payee.

  1. Variation of Goods/Services

12.1 If at any time during the term of the Contract, Purchaser wishes to vary the Services and/or Products ordered, it shall notify Seller in writing and Seller shall, within two (2) business days provide a written statement of the amount by which such variation would increase or decrease:

  1. a) the dates, timescales or milestones, and
  2. b) the charges;

which have been agreed in the Contract, and such other information as Purchaser may reasonably require.

12.2 The implementation of any variation to the Services and/or Products shall be subject to the agreement of the parties. Seller shall not undertake any such variations unless specifically instructed to do so by Purchaser.

12.3 Delivery Tolerances only: Purchaser accepts that it is of the nature of some processes that the final amount produced may vary. In consideration of this Purchaser accepts that a delivery tolerance of no more than ten percent (10%) may be supplied in fulfilment of the Contract where Seller has advised Purchaser in writing of this possibility. This is a maximum permitted value and Seller must use best efforts to ensure that the amount stipulated within the Contract is the amount actually delivered. All delivery and invoice documentation must reflect the actual delivered values.

12.4 All variations must be confirmed in writing.

  1. Indemnity

13.1 Seller shall indemnify Purchaser against any claims, liabilities, actions, damages, costs, losses and expenses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs and all other professional costs and expenses) suffered or incurred by Purchaser as a result of or in connection with:

13.1.1 any alleged or actual infringement by any of the Products or Services of any third-party Intellectual Property Right including but not limited to patents, copyright, trademarks, service marks, registered designs, design rights or other rights and Seller shall at its own cost defend or settle all such claims or actions and proceedings brought or threatened to be brought against Purchaser;

13.1.2 Seller’s failure to perform its obligations under the Contract; or

13.1.3 death, injury, loss or damage to persons or property caused or contributed to by the negligence of Seller or its employees, sub-suppliers (if permitted) or agents.

Seller accepts liability for all other loss or damage suffered by Purchaser and which is attributable to the negligence of Seller or its employees, sub-suppliers (if permitted) or agents or otherwise results from a breach of the Contract.

  1. Force Majeure

Neither party shall be liable to the other for any loss or damage which may be suffered by the other as a direct or indirect result of the performance of its obligations under the Contract being prevented, hindered or delayed by reason of circumstances or events beyond its reasonable control including but not limited to acts of God, war, riot, accident, fire, flood, storm, explosion, epidemic or government action, but expressly excluding lockout, strike, trade dispute or labour disturbance involving its own workforce.

  1. Licences
  • If the Products or Services supplied under the Contract require Purchaser to have any permit or licence from any commercial, governmental or other regulatory authority, the Contract shall be deemed conditional upon such permit or licence being granted at the required time. Seller warrants that it has all necessary permits and licences to allow it to sell the Products and Services to Purchaser.
  1. Termination

16.1 Either party may terminate the Contract with immediate effect by notice in writing in the following situations:

16.1.1 if the other party is in breach and, in the event the breach is capable of remedy, fails to remedy the breach within fourteen (14) days of being asked to do so in writing. If the breach cannot be remedied, the party not in breach may terminate the Contract immediately;

16.1.2 if the other party ceases or threatens to cease business, or commits an act of bankruptcy, or it or a third-party takes action for it to go into liquidation unless this is to reconstruct or merge the company or if an administrator, administrative receiver, receiver or manager is appointed for any part of its business;

16.1.3 if, in the reasonable opinion of one party, there occurs a material change in the financial position of the other party which is likely to affect such other party’s ability to perform its obligations under the Contract; or

16.1.4 if there is a change in control of the other party which in the reasonable opinion of the party terminating adversely affects the position, rights or interests of the party terminating.

16.2 Termination of a Contract shall not discharge either party from any existing obligation accrued due on or prior to the date of termination.

16.3 Purchaser may cancel a Contract at any time by notice in writing. It will pay for and accept delivery of all finished Products manufactured by Seller at the date of cancellation and shall pay Seller a fair and reasonable sum in respect of all work in progress at the date of cancellation subject to work in progress being transferred to Purchaser.

  1. Miscellaneous

17.1 All Intellectual Property Rights in the work carried out under the Contract are hereby assigned to and shall vest in Purchaser absolutely with full title guarantee and free of all third-party rights.

17.2 If any court or other competent authority finds that any provision, or part of any provision, of the Contract is invalid, illegal or unenforceable that provision, or part, shall, to the extent required be deemed to be deleted, and the validity and/or enforceability of the remaining provisions of the Contract shall not be affected.

17.3 If either party delays, forgets or chooses not to enforce their rights under the Contract it shall not affect their rights to do so at a later date. Should either wish to formally waive a right or remedy it shall not in any way restrict their exercise of any right or remedy at a future date.

17.4 The Contract is the entire agreement between the parties and may not be modified or amended unless agreed in writing by properly authorised representatives of both parties.

17.4 All notices must be in writing and sent to the postal address, fax number or email address set out in the Contract. They may be delivered by hand, by first class post, by facsimile or by email and all email notices are to be sent by an email client that has the facility to obtain “delivered” and “read” notifications from the email computer server of the other party, and shall be deemed to have been served:

if by hand, at time of delivery;

if by first class post, two (2) business days after posting;

if by facsimile, on the date printed on the facsimile advice note produced by the sender’s machine; and

If by email, at the date and time produced by the email “delivered” receipt.

17.5 Headings do not affect interpretation.

17.6 The Contract shall be governed and construed in accordance with the laws of Singapore. Any dispute or claim arising under the Contract, including non-contractual disputes or claims, shall be irrevocably subject to the exclusive jurisdiction of the courts of Singapore.

INDIA

India Conditions of Sale

Terms and Conditions

  1. Definitions:

“SBS” or “The Company” – Softbox Systems (India) PVT Ltd;

“Customer” – the person, firm or company with whom or with which SBS contracts;

“Contract” – the contract for the sale and purchase of the Goods formed by the Customer’s acceptance of these terms;

“Goods” – all or any of the goods which SBS is to sell is in accordance with the Contract.

“Act of Insolvency” – shall be deemed to mean and include any one or more of the following namely the passing of a resolution or the presentation of a petition for winding-up the presentation of a petition for the appointment of an administrator, the appointment of a receiver and/or manager or administrative receiver over the whole or any part of the Customer’s undertaking and assets, making of a proposal for a voluntary arrangement or a proposal for any other composition scheme or arrangement with or the calling by the Customer of any meeting of its creditors generally, the presentation of a petition in respect of a bankruptcy order, an application for an interim order in connection with any proposals for a voluntary arrangement of the Customer’s affairs, anything analogous to any of the foregoing under the law of any jurisdiction.

  1. Basis of Contract: These conditions shall govern the Contract to the exclusion of any other terms and conditions. Qualifications of these terms and conditions contained in any document of the Customer will be inapplicable unless expressly accepted in writing by SBS. All implied conditions and warranties and other terms whether implied by statute or at common law or otherwise and whether as to quality, fitness for purpose, performance, merchantability or otherwise in relation to the goods and to the sale or supply thereof by SBS are hereby excluded.
  2. Quantity:

The price is for the stipulated quantity of goods only and must not be taken to apply to an order for any lesser quantities. All Quotation for goods to be delivered from stock is subject to these goods being available on receipt of order.

  1. Taxes: GST @ 18 %
  2. Tolerance: No claim will be allowable on the grounds that goods supplied do not conform to certain dimensions where it is shown that such goods come within the bounds of a stated and agreed tolerance.
  3. Colour: Colour shall be subject to reasonable variation.
  4. Delivery: Any stipulated period of time for delivery shall date from the receipt by SBS of the Customer’s written order to proceed or of all necessary information and drawings enabling SBS to put the work in hand, whichever shall be the later. Where the Goods are delivered in installments ,each delivery shall constitute a separate contract and failure by SBS to deliver any one or more of the installments or any claim by the Customer in respect of any one or more installments shall not entitle the Customer to treat the Contract as a whole as repudiated. Where delivery of the goods is to be made by SBS in bulk SBS reserves the right to deliver up to 5 per cent more or less than the quantity ordered and the price shall be adjusted accordingly. SBS shall not be liable for any loss or damage which may be sustained by the Customer through failure on the part of SBS to deliver at the rate or within the time specified, nor for any loss or damage incurred by reason of Acts of God, war, riots, fires, strikes, lockout, cessation of labour, accidents of any kind, inability to procure materials or articles required for the performance of the order or any other cause whatsoever beyond SBS’ control whether similar to those aforesaid or not. In the event of any such delay from any cause beyond SBS’ control continuing for a period of more than three calendar months, SBS reserves the right to cancel the Contract by notice in writing in respect of any Goods undelivered at the time of the giving of such notice. No claim for loss or damage in transit or non-delivery will be claimable unless the Customer shall have advised SBS and the carriers within three days of the termination of the transit, or, in the case of non-delivery within fourteen days from the date of the invoice.
  5. Risk and Title: In the case of Goods to be collected from SBS the point of delivery and transfer of risk shall occur as the Goods are loaded on to the collection vehicle or as the Goods pass out of SBS’ storage area as the case may be. In the case where Goods are delivered to an address in India the delivery point shall occur as the Goods are removed from the transportation vehicle. Off-loading shall be at the Customer’s risk. Notwithstanding delivery and passing of risk, property in and title to the Goods shall remain in SBS (which reserves the right to dispose of them)until SBS has received payment in cash or cleared funds of all debts owed by the Customer to the Company in respect of the supply of goods or services. The Customer’s power to deal with the Goods shall automatically cease if the Customer shall commit or be subject to any Act of Insolvency. Until title in the Goods passes to the Customer under this condition the Customer shall place the Goods at the disposal of the Company and the Company and its servants and agents are hereby irrevocably authorized without the need for consent of any third party using only such force as may be necessary to enter upon any premises of the Customer for the purpose of removing the Goods.
  6. Consequential Loss: SBS shall not be liable for personal injuries or consequential damage or loss arising from any defects (including in particular damage to goods or persons caused by leakage from or explosion of a bottle, container or moulding supplied by SBS) or from the use of any of SBS’ Goods.
  7. Terms of Payment: Unless otherwise stated on the quotation payment for goods shall be due by the Customer within 30 days from the date of invoice, including any duties and taxes, with an agreed 24% p.a.of the invoice value paid in advance of Delivery. SBS may appropriate any payment made by the Customer to such of the Goods (or the goods supplied under any other contract between SBS and the Customer) as SBS may think fit (not withstanding any purported appropriation by the Customer). The Customer shall not be entitled to withhold or delay payment or exercise any right of set-off whatsoever and howsoever arising or arisen which might otherwise be available to it.

10i. Notice Period Unless otherwise agreed in writing, SBS and the Customer shall provide three months’ notice of termination of Contract, other than in an Act of Insolvency.

10ii. Any invoices not paid within the agreed credit period will incur interest charged at 24% per annum.

  1. Price Variations: If during the Contract there are 10%+ increases in labour, material or transport costs, SBS may submit to the Customer a revised price and such revised price may have regard not only to such specific items. In the event of the Customer not agreeing to pay any such increased revised price SBS shall have the option of continuing the Contract on existing terms or regarding the Contract as terminated and in the latter event may terminate the Contract by notice to the Customer to that effect.

11i Prices for Goods will be those agreed in writing. All Quotation will be valid for one month from date of offer and once accepted by a purchase order in advance.

  1. Intellectual Property Rights: If the Goods are to be manufactured or any process is to be applied to the Goods by SBS in accordance with a specification or design submitted by the Customer, the Customer shall (without prejudice to the other rights and remedies of the Company) indemnify SBS in full against all loss, costs, damages, charges, expenses and other liabilities suffered or incurred by the Company as a result of or in connection with:

(i) Any allegation relating to infringement of any patent, copyright design, registered trade or service mark or other industrial or intellectual property rights of any kind or any person, firm or company and/or passing off and/or unauthorized use of confidential information which results from the Company’s use of the Customer’s specification or design;

(ii) Any other liability of any kind to any third party including without limitation for defective goods, personal injury or death to the extent that it arises from the specification or design.

  1. Insolvency: If there shall be an Act of Insolvency in relation to the Customer then SBS shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Customer and if Goods and Services have been delivered but have not been paid for, the price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
  2. General: It shall be the responsibility of the Customer to ensure that all requirements applicable to the Contract, whether statutory, regulatory, municipal and/or otherwise howsoever (including without limitation any relating to the importation or use of the Goods in the country of destination and for the payment of duties thereon) are duly complied with. No failure to delay on the part of the Company to exercise any of its rights under the Contract shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or further exercise thereof. Any waiver by SBS of any breach by the Customer of any of its obligations under the Contract shall not affect the rights of SBS in the event of any further or additional breach or breaches. Each and every obligation contained in these conditions shall be treated as a separate obligation and shall be severally enforceable as such notwithstanding the non-enforceability of any other such obligation. Any notice required to be given in writing under the Contract shall be given, where possible, by facsimile transmission and otherwise by first class post addressed to the registered office (in the case of a limited company) or to the last known address of the party for which it is intended, or to such other address as may be notified in writing by either party to the other for the purpose, and shall be deemed to have been received, in the case of a facsimile transmission, upon transmission and, in the case of a letter, forty-eight hours after posting. In providing service by letter, it shall be sufficient to show that the envelope containing the notice was properly addressed and stamped and duly posted.
  3. Jurisdiction: The Contract shall in all respects be governed by and constructed in accordance with Indian or English Law and it is irrevocably agreed that the Courts of India or England are to have jurisdiction in respect thereof.
  4. Force Majeure: SBS cannot be held liable for any events outside of its control, including but not limited to, bad weather, national disturbances, fires, power\failures and other natural occurrences.

SHIPMENT VISIBILITY

Track and Trace Services
Terms and Conditions

PLEASE READ CAREFULLY–THIS IS A BINDING CONTRACT

THESE TRACK AND TRACE SERVICES TERMS AND CONDITIONS (“T&C“) ARE PART OF YOUR OR YOUR COMPANY’S AGREEMENT WITH CSAFE, LLC AND ARE A BINDING AGREEMENT BETWEEN CSAFE, LLC (“LESSOR”), YOU AND THE COMPANY OR LEGAL ENTITY THAT YOU REPRESENT (YOU AND/OR YOUR COMPANY OR LEGAL ENTITY MAY BE COLLECTIVELY REFERRED TO AS “LESSEE”) FOR YOUR USE OF THE TRACK AND TRACE SERVICES. THESE T&C MAY BE MODIFIED BY LESSOR FROM TIME TO TIME.

1. SERVICES

1.1. Track and Trace Services. In connection with the existing Master Equipment Lease Agreement between Lessor and Lessee (the “MLA”) and subject to the terms of these T&C, Lessor agrees to provide Lessee with certain information about the shipping containers that are leased to Lessee under the MLA. Through the use of devices installed in such containers, Lessor is able to provide Lessee with real-time location, container temperature, ambient temperature, container tilt, container shock, door opening/closing events and humidity information regarding the container and its contents (the “Services”). The terms and conditions of the MLA are incorporated herein by reference; provided, however, that in the event of a conflict between the terms of the MLA and the terms of these T&C, the terms of these T&C will control as it relates to the Services only. In all other instances, the MLA will control.

1.2. Access. Lessee may access such Services by logging into an electronic customer portal (“Customer Portal”) using the link to be provided by Lessor. Lessor will notify Lessee of the login ID and other necessary information to use the Services via the Customer Portal (“Login Information”). Lessor hereby grants to Lessee and its Users a limited, non-exclusive, non-transferable, worldwide right during the Term to use the Services for its internal business purposes, in accordance with the terms and conditions of these T&C. “Users” are defined as Lessee’s officers, directors, employees, agents, customers, independent contractors or subcontractors performing work for Lessee and interacting with or using the Services on Lessee’s behalf. Lessee is responsible for maintaining and protecting the Login Information. Lessee is entitled to manage any additions, changes and removals of any User. Lessee is responsible for any act or omission of its Users that would, if it were an act or omission of the Lessee, have been a breach of these T&C. Lessor shall not be liable for any damages to Lessee that are caused by a leak of Login Information to a third party due to reasons not attributable to Lessor. In case the Login Information is forgotten or stolen, Lessee shall promptly notify Lessor thereof and follow Lessor’s instructions if given.

1.3. Restrictions on Use. Lessee agrees that it will not allow its Users or any other party to: (i) modify, copy or create derivative works based on the Services; (ii) reverse engineer the Services; (iii) access the Services in order to (A) build or benchmark a competitive product or service, or (B) copy any ideas, features, functions or graphics of the Services; (iv) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party other than its Users; (v) send or store infringing, obscene, threatening, libelous or otherwise unlawful or tortious material, including material that violates third party privacy rights; (vi) send or store malicious code; (vii) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or (viii) attempt to gain unauthorized access to the Services or its related systems or networks.

1.4. Third Party Materials. Lessee will comply with any additional terms and conditions regarding any services, software or other materials that are owned by a third party and provided to Lessee by Lessor as part of the Services (“Third Party Materials”). Lessee’s right to use the Services may be subject to Lessee agreeing to additional terms and conditions regarding any necessary Third-Party Materials.

1.5. Intellectual Property Rights. Lessee acknowledges and agrees that it has no proprietary interest in or to the Services and that all intellectual property rights and other proprietary rights in and to the Services belong to Lessor or its third-party licensors.

2. DATA; FEEDBACK; MODIFICATIONS

2.1. Data. Lessee’s use of the Services requires Lessor to use, collect and analyze certain data regarding Lessee and its shipments and operations (“Customer Data”) to provide accurate information regarding the container and its contents (“Shipping Data”) to Lessee in fulfillment of the Services. Lessee hereby represents and warrants that Lessor has the necessary consents and permission to use the Customer Data and the Shipping Data as set forth herein. Lessor’s use of the Customer Data and the Shipping Data is governed by its Privacy Policies that are posted at https://csafeglobal.com/about-csafe/website-policies/. These policies may be updated by Lessor from time to time.

2.2. Feedback. Lessee may from time to time provide suggestions, comments or other feedback (“Feedback”) to Lessor with respect to the Services and/or Shipping Data. The parties agree that all Feedback is and will be given voluntarily. Lessee hereby grants to Lessor a royalty-free, non-exclusive, sublicensable, transferable, perpetual, irrevocable, worldwide right and license to use, disclose, reproduce, distribute or otherwise exploit the Feedback for any purpose.

2.3. Security. Lessor will use its best efforts to implement commercially reasonable (as determined by Lessor) security controls and measures directed to securing the Services, Customer Data and Shipping Data against accidental or unlawful loss, access or disclosure.

2.4. Modifications. Lessor may modify these T&C, or any policy or other terms referenced in here (each, an “Additional Policy”) at any time by posting a revised version of these T&C or such Additional Policy on its website at https://csafeglobal.com/about-csafe/website-policies/. Unless otherwise stated in the Additional Policy, any revised terms will become effective thirty (30) days after they are posted. Notwithstanding the foregoing, if Lessor provides a click-through or other means of accepting the revised terms, the revised terms will become effective upon Lessee’s acceptance. Continued use of the Services after the revised terms become effective constitutes acceptance by Lessee of such Additional Policies.

3. TERM; TERMINATION

3.1. Term. Lessor will continue to provide the Services to Lessee for so long as the MLA remains in force between the parties (the “Term”). In the event the MLA terminates or expires, these T&C will also terminate.

3.2. Effect of Termination. Upon termination, Lessee will cease all use of the Services and Lessor will no longer be obligated to provide the Services or any Shipping Data to Lessee. All amounts owed to Lessor will become due immediately upon the effective date of termination. Termination will not relieve Lessee of its obligations to make the payments required for the Services rendered or Shipping Data delivered through the date of termination.

3.3. Survival. Termination of the MLA and/or the Services will not discharge or relieve either party of any obligations and provisions that are intended to survive the termination of these T&C, including but not limited to Sections 1.3, 1.5, 2, 3.3, 6-8.

4. FEES AND PAYMENT

4.1. Fees. Unless otherwise stated, the fees for the use of the Services and Shipping Data are included in the Lease Charges paid by Lessee for use of the container as set forth in the MLA (“Fees”). Payment will be made as set forth in the MLA.

4.2. Suspension. Without prejudice to any other rights available to Lessor, Lessor reserves the right, in its sole and absolute discretion, to suspend the Services or delivery of any Shipping Data if Lessee has failed to make timely payments, including time to cure any late payments, of Fees. Upon payment of all outstanding Fees due, Lessor will resume the Services and provide the Shipping Data pursuant to the terms of these T&C.

5. WARRANTIES; DISCLAIMER

5.1. Authorization Warranty. You represent and warrant that: (i) the information you provide in connection with your registration for the Services is accurate and complete; (ii) if you are registering for the Services as an individual, that you are at least eighteen (18) years of age and have the legal capacity to enter into these T&C; and (iii) if you are registering for the Services as an entity or organization, that (a) you are duly authorized to do business in the country or countries where you operate; (b) the individual accepting these T&C and completing the registration for the Services meets the requirements of subsection (ii) above and is an authorized representative of your entity; and (c) any Users accessing the Services are duly authorized to access the Services on behalf of your entity and to legally bind you and your entity to these T&C and all transactions conducted under your account.

5.2. Disclaimer. LESSEE ACKNOWLEDGES AND AGREES THAT THE SERVICES AND THE SHIPPING DATA ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND LESSOR DOES NOT MAKE ANY, AND HEREBY SPECIFICALLY DISCLAIMS ALL, WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE SERVICES OR SHIPPING DATA WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS. LESSOR DOES NOT WARRANT THAT THE SERVICES WILL FUNCTION AS DESCRIBED, WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT THE CUSTOMER DATA AND SHIPPING DATA WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED. LESSOR WILL NOT BE LIABLE FOR THE OPERATIONS OF ANY THIRD-PARTY MATERIALS.

6. INDEMNIFICATION

6.1. By Lessee. Lessee will indemnify, defend and hold harmless Lessor, its officers, directors, employees and its third party licensors, from any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) arising from or relating to (i) Lessee’s breach of the terms of these T&C; (ii) Lessee’s gross negligence or willful misconduct; or (iii) any claims that Lessor’s use of Customer Data or Shipping Data infringes upon or violates the rights of a third party, including intellectual property rights.

6.2. Process. Lessor will promptly give written notice of a Claim to Lessee (provided that any delay in giving such notice will not relieve Lessee of its obligations under this Section 6 except to the extent that such delay has compromised Lessee’s defense of the Claim). At Lessor’s sole option, Lessor may give Lessee sole control of the defense and settlement of the Claim, provided that Lessee must obtain Lessor’s consent (not to be unreasonably withheld or delayed) to any proposed settlement and that Lessor may, at any time, elect to take over control of the defense and settlement of the Claim.

7. LIMITATION OF LIABILITY

7.1. EXCEPT IN THE CASE OF LESSEE’S BREACH OF SECTION 1.3 OR SECTION 8 OR LESSEE’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 6, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, REVENUES OR DATA AND THE LIKE, HOWEVER ARISING, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL LESSOR’S TOTAL LIABILITY TO LESSEE EXCEED THE FEES PAID TO LESSOR BY LESSEE IN THE THREE (3) MONTHS PRECEDING THE CLAIM.

7.2. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO LESSEE, AND LESSEE MAY HAVE ADDITIONAL RIGHTS. IN SUCH JURISDICTIONS, LESSOR’S LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

8. CONFIDENTIALITY

8.1. Nonuse; Nondisclosure. Lessee and its Users will not disclose the non-public information of Lessor or its business partners regarding the Services that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential (“Confidential Information”). Confidential Information includes, without limitation: (i) the Services, Third-Party Materials, manuals, program listings, data structures, functional specifications, future product and service development plans, price lists and the terms of these T&C; (ii) the concepts, techniques, ideas and know-how embodied and expressed in the Services; and (iii) all other information that could reasonably be considered confidential and/or proprietary including, without limitation, research, finances, methods, procedures and service information. Upon termination or expiration of the MLA or this Service, Lessee will erase, destroy or return all of the Confidential Information in its possession.

8.2. Exclusions. Confidential Information excludes information that Lessee can show through written, contemporaneous documentation: (i) is already known to Lessee at the time of receipt free of any obligation of non-disclosure; (ii) is or subsequently becomes publicly known through no wrongful act or omission of Lessee; (iii) is disclosed to or provided to Lessee by a third-party who has the legal right to make such disclosure; or (iv) has been independently developed by Lessee without reliance on any Confidential Information or otherwise in violation of these T&C. If Lessee is required by law to disclose Confidential Information, Lessee will, prior to making such disclosure, notify Lessor and reasonably cooperate with Lessor, at Lessor’s expense, to resist or limit the scope of the legally required disclosure.

8.3. Equitable Relief. Lessee acknowledges and agrees that due to the unique and proprietary nature of the Confidential Information, any breach of this Section 8 will cause irreparable harm to Lessor for which damages are not an adequate remedy, and, accordingly, Lessor will be entitled to seek equitable relief in addition to all other remedies available at law. Lessee agrees that no bond or other security will be required in obtaining any equitable relief.