In these Conditions, unless the context requires otherwise:
"Buyer" means the person (dealing otherwise than as consumer as defined in section 12 of the Unfair Contract Terms Act (Cap. 396)) who buys or agrees to buy the Product(s) from the Seller;
"Conditions" mean the terms and conditions of sale set out in this document and any special terms and conditions agreed in writing by the Seller;
"Delivery Date" means the date when the Product(s) are to be delivered, as specified by the Seller;
"Product(s)" means the article(s)/good(s) which the Buyer agrees to buy from the Seller;
"Price" means the price for the Product(s) excluding carriage, packing, insurance and Goods and Services Tax ("GST");
"Seller" means Indoguna Singapore Pte Ltd.
2. Conditions applicable
These Conditions shall apply to all contracts for the sale of Product(s) by the Seller to a Buyer to the exclusion of all other terms and conditions, including any terms or conditions which the Buyer may purport to apply by any means.
All orders for Product(s) shall be deemed to be an offer by the Buyer to purchase Product(s) pursuant to these Conditions.
The Seller shall have accepted that offer only when it has issued an Order Confirmation in its standard form indicating that it has accepted that offer or when delivery is made. Such acceptance shall be a condition precedent to the contract for the sale of Product(s) by the Seller to the Buyer and shall be and take effect only on these Conditions.
Acceptance of delivery of the Product(s) shall be deemed conclusive evidence of the Buyer's acceptance of these Conditions.
Acceptance of delivery of the Product(s) shall occur and be deemed to occur immediately on the entry or inscription of the Buyer's signature on the Seller's delivery order/note, which entry or inscription shall immediately constitute and be deemed to constitute conclusive evidence of the Buyer's satisfaction with and acceptance of the Product(s).
Any variation to these Conditions (including any special terms and conditions agreed between the parties) shall be inapplicable unless agreed in writing by the Seller.
3. Price and payment
The Buyer shall pay the Price for the Product(s) as stated on the Seller's invoice and not (where different) as expressed in any quotation, estimate or documentation, or given orally.
The Price is exclusive of GST which shall be due at the rate in force on the date of the Seller's invoice.
Payment of the Price and GST shall be made on delivery or within fourteen days unless credit terms have been agreed in writing.
Time for payment shall be of the essence.
The Buyer may not withhold payment of any invoice -or other amount due to the Seller, whether by reason of any right of set-off or counterclaim which the Buyer may have or allege to have or for any reason whatever.
If payment is not received by the due date, then without prejudice to any of the Seller's other rights, the Seller may at its sole and absolute discretion:
charge interest on the outstanding amount at the rate of 8% per annum, accruing daily and before and after judgment;
require that the Buyer make a payment in advance of any delivery not yet made;
suspend or cancel deliveries of any Product(s) due to the Buyer;
appropriate any payment made by the Buyer to such of the Product(s), or Product(s) supplied under any other contract with the Buyer; and/or
immediately terminate the contract of sale upon giving the Buyer notice in writing to that effect.
The Seller shall deliver the Product(s) to the address of the Buyer on the Delivery Date.
The Product(s) may be delivered in advance of the Delivery Date upon the giving of reasonable notice to the Buyer.
The Seller reserves the right to make delivery by instalments and to tender a separate invoice in respect of each instalment.
The Seller's failure to deliver any one or more of the instalments that the Seller intimates that it will deliver shall not constitute a repudiation of the contract of sale as a whole, shall not entitle the Buyer to treat the contract of sale as repudiated and shall not entitle the Buyer to repudiate the contract of sale.
The Buyer shall make all arrangements to take delivery of the Product(s) whenever they are tendered for delivery.
For the avoidance of doubt, delivery dates and times given by the Seller under or pursuant to the contract of sale are no more than estimates, and the Seller's conformity with such date/time is not, and shall not in any event or circumstance be or become, of the essence of the contract of sale. The Seller's failure to conform to delivery dates and times shall not give rise to any liability on the part of the Seller, whether in respect of direct or indirect losses alleged to be suffered by the Buyer.
The risk in the Product(s) shall pass to the Buyer upon delivery by the Seller to the Buyer or, if the Buyer fails to take delivery at the time when the Product(s) are due and ready for delivery, as of that date. For the avoidance of doubt, where the Seller agrees to deliver the Product(s) at a place other than the place at which they are sold, the risk undertaken by the Seller until delivery shall not extend to any risk of deterioration in the Product(s) that is necessarily incident to the course of transit.
The Buyer acknowledges and agrees that the Product(s) are perishable or have expiration dates and that the Buyer would upon delivery of the Product(s) assume full responsibility for the proper handling, storage and use of the Product(s).
The property in the Product(s) shall not pass to the Buyer until the Seller has received the full amount of the Price and any other sums that are owed to the Seller by the Buyer.
Clause 6.1 shall apply irrespective of whether delivery has been made.
The Seller shall be entitled to sue for the Price notwithstanding that property in the Product(s) has not passed to the Buyer.
Until property in the Product(s) passes to the Buyer, the Seller retains the immediate right to possession of the Product(s) and shall be entitled at any time recover possession of any or all of the Product(s) free from any lien charge or encumbrance, and may for that purpose enter any premises occupied by the Buyer or to which the Buyer has access (including locked and steadfast premises) and in which the Seller believes that the Product(s) are situated.
Nothing in this clause 6 shall prejudice any other rights or remedies the Seller may have against the Buyer by reason of the Buyer's breach of the contract of sale, whether in contract, tort, bailment, restitution or under the law of equity and trusts.
7. Disclaimer and exclusion
The Seller does not make or give (and shall not be deemed to make or give) any representation or undertaking to the Buyer, and shall, to the fullest extent permissible by law, be bound by no condition, warranty, innominate term or other obligation (whether express or implied, and whether imposed or implied by statute, at common law or otherwise) concerning the condition, quality, physical state or attributes, location, origin, fitness or suitability for any purpose, or conformity with description or sample (notwithstanding any description or sample the Seller may have supplied of the Product(s)), of the Product(s).
The Seller shall not be liable for loss of profit/business/goodwill or any special, indirect or consequential loss or damage resulting from or arising out of the contract of sale.
To the extent that the Seller is liable in contract, tort or otherwise for any loss, damage or injury arising directly or indirectly from any defect in or non-compliance of the Product(s) or breach of the Seller's obligations hereunder, such liability shall not in any event exceed an amount equivalent to the price of the Product(s).
Nothing in these Conditions shall exclude or limit the Seller's liability for any death or personal injury resulting from the Seller's negligence.
8. Acceptance or rejection of the Product(s)
The Buyer shall inspect the Product(s) on delivery. The Buyer acknowledges and agrees that the entry or inscription of the Buyer's signature on the Seller's delivery note on delivery of the Product(s) to the Buyer shall be conclusive evidence that the Buyer has examined the Product(s) and that the Product(s) correspond in every respect with the Product(s) that the Buyer is entitled to receive under the contract of sale.
The Buyer shall also be deemed to have accepted the Product(s):
in the case of live/fresh seafood products, at the time of delivery to the Buyer;
in the case of other products, 24 hours after delivery to the Buyer;
if the Buyer does not, within the relevant time period as specified in this clause 8.2, intimate to the Seller in writing that the Buyer has rejected the Product(s).
Where the Buyer, having received delivery of the Product(s), rejects them, the Seller reserves the right to require the Buyer to return the Product(s) to the Seller, irrespective of whether the Buyer is entitled to reject the Product(s).
The Buyer may not reject, on the grounds of short delivery, the Product(s) that have been delivered by the Seller to the Buyer and shall pay the Seller at the contract rate for the Product(s) that have been delivered.
Where the Buyer does within the relevant time period as specified in clause 8.2 notify the Seller in writing of any claim that the Product(s) delivered are defective or damaged or that there has been non-delivery of the Product(s), the Seller shall be given a reasonable opportunity to inspect the delivered Product(s) concerned and/or otherwise investigate the Buyer's claim(s).
Where the Seller after such inspection/investigation agrees that the Product(s) are defective or damaged or that there has been non-delivery of the Product(s), as the case may be, through no fault of the Buyer, the Seller shall at its sole and absolute discretion and without any further liability on its part, be entitled to:
replace the Product(s) or fulfill the delivery of the Product(s), as the case may be;
refund the Price of the Product(s)(or an appropriate portion of the Price).
9. Remedies of Buyer
If the Buyer rejects any Product(s), the Buyer shall have no further rights whatsoever in respect of the supply to the Buyer of such Product(s) or the failure by the Seller to supply Product(s) which conform to the contract of sale.
If the Buyer accepts or has been deemed to have accepted any Product(s), then the Seller shall have no liability whatsoever to the Buyer in respect of those Product(s).
The Seller shall not be liable to the Buyer for late delivery or short delivery of the Product(s).
The Seller may cancel the contract of sale at any time before the Product(s) are delivered by giving written notice to the Buyer. On the giving of such notice, the Seller shall promptly repay to the Buyer any sums paid in respect of the Price. The Seller shall not be liable for any loss or damage whatsoever(including indirect or consequential losses) arising from such cancellation.
Termination or suspension of the contract of sale, whether by the Seller or the Buyer and for whatever cause, shall be without prejudice to the accrued rights of the Seller. Notwithstanding termination of the contract of sale (for whatever cause), all obligations of the Buyer under the contract of sale shall, where relevant, survive termination, and the Seller shall be entitled to require performance of such obligations.
11. Force majeure
Neither party shall owe or incur any liability under or in connection with, or be deemed to be in breach of, the contract of sale by reason of any delays in, revisions to, or failures in performance of the contract of sale that result from circumstances beyond the reasonable control of that party.
No inaction, ommision, failure or delay by the Seller in exercising, or in securing the enforcement or validity of any right, power, privilege or demand arising under or in connection with the contract of sale, and no single or partial exercise of any such right, power, privilege or demand shall impair the existence, operation, content, effect and enforcement of such right, power, privilege or demand, or operate as a waiver of it.
The rights and remedies provided in these Conditions are cumulative and not exclusive of any rights and remedies provided by law.
13. No agency or partnership
The contract of sale shall not constitute or imply any partnership, joint venture, agency or other relationship between the parties, other than, and except as provided for in, the contractual relationship expressly provided for in these Conditions.
Neither party shall have, nor shall either party represent that it has, any authority to make any commitment on the other party's behalf.
14. Entire agreement
These Conditions contain the whole agreement between the parties relating to the sale of goods by the Seller to the Buyer and supersede any prior written or oral agreements, representations or understanding between them relating to such subject matter. The parties confirm that they have not entered into the contract of sale on the basis of any representation that is not expressly incorporated into these Conditions.
Nothing in these Conditions excludes or restricts the liability of any party for fraud or bad faith.
In the event that any provision of these Conditions is held to be a violation of any applicable law or regulation the same shall be deemed to be deleted from these Conditions and shall be of no force and effect and these Conditions shall remain in full force and effect as if such provision had not originally been contained therein.
Subject to clause 16.2, neither party may assign, delegate, sub-contract, mortgage, charge or otherwise transfer any or all of its rights and obligations under the contract of sale without the prior written agreement of the other party.
A party may, however, assign and transfer all its rights and obligations under the contract of sale to any person to which it transfers all of its business, provided that prior written consent is obtained from the other party and the assignee undertakes in writing to the other party to be bound by the obligations to the assignor under the contract of sale.
17. Governing law and jurisdiction
The contract of sale shall be construed and governed by the laws of the Republic of Singapore and the parties hereby agree to submit jointly and severally to the non-exclusive jurisdiction of the Courts of the Republic of Singapore in all matters pertaining thereto and with full liberty for either of the parties to resort to the Courts of any other country where jurisdiction may exist or be established.